- Home
- Faculty & Staff
- Doug Thiel
War on Terror
This essay was written by Douglas Thiel for discussion in philosophy sessions at Moorpark College on September 10th and 12th, 2002. Note: footnotes did not accompany the text at the appropriate locations but they do appear at the end of the essay.
IS OUR UNDECLARED WAR ON TERRORISM MORALLY JUSTIFIED?
There is a just war theory in philosophy. Jus ad bellem refers to the "reasons" and foundations that a country ought to use to morally justify war. Jus in bello conventions address the "conduct" of the war...the way in which it ought to be fought so that there is cohesion between the reasons for fighting a war and the way in which the fighting is pursued. The pedigree of jus ad bellem has evolved from Roman times though both religious and non-religious thinkers and sees modern-day codification in Article 51 of the United Nations Charter. No less a thinker that Saint Augustine stated the only acceptable reason for waging war was "to bring about the peace". This has been largely understood as a "self-defense" doctrine and that which constitutes the only "just cause" for war. In addition to this just cause proviso, jus ad bellem requires that the group declaring war exist as a sovereign nation exercising the "right intentions". To be morally sound these intentions are limited to using only the "reasonable" force necessary to provide adequate self-defense and to bring about the peace. The actual conduct of war, jus in bello, is often captured in reference to the "rules of engagement" or protocol outlined in such documents as "The Geneva Convention". In cases where it appears that the jus ad bellem convention is satisfied in a modern conflict (requiring that the war is being waged for national defense or the self-defense of an allied nation), philosophers, and others, are then inclined to concentrate their criticisms on the irregularities and mistakes associated with the way these wars have been conducted. So the focus turns to jus in bello. I believe this is a mistake. In terms of our current War on Terrorism, I want to demonstrate the following: 1). Our conventional military responses are not justified by just ad bellum considerations. This war is not a simple exercise in self-defense. 2) The most compelling reason for statement (1) is our use of aerial bombardment in Afghanistan. The use of this technology involves inevitable mistakes. Our current claims of national "self-defense" do not rise to a level that justifies these mistakes. This effects both the "right intentions" provision of just ad bellum and the protocol concerns that motivate jus in bello. 3) It is irrelevant that this war is undeclared because we are using conventional military assets in the Afghanistan theater. Persistent reports indicate that our government intends to launch conventional military forces against Iraq either in the fall of 2002 or the early winter of 2003. I do not believe this would conform to just war theory. I will propose an alternate strategy to conventional military operations.
Moral Justification - Modern War as Self-Defense - Jus an bellum
"Just cause" meaning "self-defense" seems to be the key to understanding the moral foundation within a just war theory. Absent a strict adherence to pacifism, it would seem that there is an analogy between my right of personal self-defense and the "collective right of self-defense" of a sovereign nation. Without unnecessarily complicating this essay, I would also advance that within the divergent views of deontological and consequential moral frameworks, a prima facie right to personal self-defense would be largely uncontroversial. So, let us explore the normative rights I might expect to hold in cases of personal attack.
Intruder Example #1: I am sleeping in my house when I hear the sound of breaking glass. I live alone and I know that all my doors and windows have been locked. I have a flashlight and a .40 caliber automatic pistol. Although this weapon is generally accurate, it does have a certain inherent flaw...it does not always shoot straight. I hear the “intruder” walking down the hallway. I roll the flashlight down the hallway and the armed intruder fires his pistol at the flashlight. I turn on the hall light and see a masked stranger with his gun smoking from having just fired at the flashlight. He now turns his gun in my direction. I shoot first. The pistol hits its mark and the intruder dies. The subsequent investigation calls my actions “justifiable homicide”. It would seem that I have both the legal and moral right to defend my life. Are not those that attacked America on September 11, 2001 the same types of intruders? It is reported that prior to the second airliner crashing into the Twin Towers in New York, American jet fighters were attempting to overtake and shoot down this second aircraft. Would not this be morally justifiable? I would say yes (with further discussion necessary regarding the status of the innocents on board). However, if we go back to my example of personal self-defense...it would seem that my moral justification to shoot before being shot was immediate. Or to say this another way, it was morally justifiable at the time.
Consider Intruder Example #2: I am shot (and wounded by the intruder) and the intruder escapes. Am I morally justified in shooting the intruder the next time I see him? My immediate case of self-defense has disappeared and there are alternatives available for my safety (police apprehension and imprisonment). But suppose there were no alternatives available. I live where there is no law enforcement. Could I now morally shoot this person if I saw him again? After all, he has already shot me once and I had a moral right of self-defense (at least at the time he shot at me) and I now suspect he will do this again and I have no one that can protect me from subsequent attacks. Suppose one were inclined to say that with no law enforcement possible I had the moral right to shoot the intruder the next time I saw him. How far would this reasoning extend? Suppose I am 95% convinced of the identity of the intruder. I believe I see him and I chase him down a crowed street. I take aim and one of two things occur : a) my gun did not shoot straight (remember I knew about this): or b) the intruder ducked. In any event, the result is that I have shot and killed an innocent by-stander. Am I still within my moral rights?
When Saint Aquinas addressed jus ad bellem he specifically included a discussion of “right intentions”. In the intervening years, such divergent writers as Groitus and Daniel Webster both provided elaboration and the concept of the “reasonable and not excessive use of force” emerged to clearly address "intentions". After the Nuremberg War Trials, it was asserted that traditional "just war theory" was, in fact, binding customary law. I believe a legitimate concern for reasonable force requires one to consider the problem of foreseen but unintended side effects that are raised in Intruder Example #2. The airliner about to crash into the second tower (with innocents aboard) could be shot down as an immediate case of self-defense for thousands of other innocent persons. And, one could argue that it was the intention to stop the plane and not the intention to kill innocent passengers. But once the immediate threat has ended it appears that the force of this moral reasoning must be re-examined. The “immediate” threat might be extended to include instances in which the intruder is still within the residence (occupational armies) and still in the process of subjugation. But when the attacker retreats and we go in pursuit of “justice” we are no longer the hunted, instead we become the hunter and the potential executioner. In Intruder Example #2, I am aware that my pistol will sometimes malfunction and shoot in a different direction than I aim. I know this before I go looking to find the intruder who shot me. But, remember that I have no one else that can do this job for me. I have also learned that the only place that I will ever find this intruder will be on a crowded street. I know that this same problem (that I now face) has been faced by many others before me. In all cases where the person sought to find and eliminate the intruder, innocent bystanders were shot and killed by the person “seeking justice”. Under these conditions, with this type of knowledge beforehand, am I in a position to morally justify this enterprise by saying that my “intention” is just to kill the intruder (as a matter of justice and self-preservation) and the collateral damage is foreseeable but unintended? Could such a scenario ever be ruled “justifiable homicide”? Could I suggest that the death of an innocent person is the responsibility of the “intruder” in much the same way that we use the concept of the “felony murder rule” to charge bank robbers for murder when law enforcement officers accidentally shoot an innocent person while trying to apprehend the actual robbers? I do not think so. I would submit that the use of a crooked gun on crowded streets (in the case of Intruder example #2) would not be the “reasonable and not excessive use” of force. The Doctrine of the Double Effect does not provide relief. My goal may be self-defense (okay) and my intention may only be to find and stop the intruder (okay) and the collateral damage is foreseen and unintended (okay?). But these intentions must reflect "the reasonable and not excessive use" of force. This requires that I not employ practices that would constitute a reckless disregard for this principle. Suppose a nervous soon-to-be father driving his wife in labor to a hospital does not wait for a light to turn green and goes through an intersection after observing it was clear. We might see this minor traffic violation as reasonable under the circumstances. But we would we excuse this father’s extended driving on a sidewalk even if he said his intention was only to go around a traffic jam that “got in his way”? The inherent nature of this act is reckless and disregards the obvious variables (children suddenly appearing from yards on bikes). If such a soon-to-be father struck and killed an innocent child while attempting this sidewalk driving, his "intention" (which the prosecutor would need to establish to charge him with a crime) might be called his "wanton disregard for the safety of others". In other words his act was "reckless" to the extreme. And a reasonable person should have recognized it as “excessive”.
We may be inclined to understand the behavior and actions of our soon-to-be father as unreflective. In other words, he reacted to the stress of the "minute" and defense attorneys seek to counter “reckless intention” accusations with the “actual state of mind” of the defendant. After September 11, 2001 and prior to our troops going into Afghanistan we had sufficient time for reflection. Modern aerial bombardment carries unavoidable risks. Technology will malfunction and no military authority figure claims that “smart” bombs are 100 per cent accurate. In short, aerial bombardment is a crooked "technologically advanced" gun which guarantees the killing of innocent by-standers in such circumstances as we face in Afghanistan. When Saint Thomas Aquinas refined the just war theory of Saint Augustine in the Summa Theologia it was still within the context of medieval combat. The available technology and conduct of war was more primitive and straightforward. Enemies traveled by foot or on horseback. Mistaken identities were vastly reduced by elaborate markings. Armies often met in open fields. Now, this is not to suggest that innocent lives were not lost. Men forced into military service against their own desires, towns brought under siege and starvation created a medieval horror all to its own. But, in theory, it could be argued that a just war could be fought as a kind of "collective self-defense". Large armies meeting other large armies (away from the civilian population) on the field of battle to decide the outcome. The "reasonable and not excessive" use of force was meant to control the "slaughter"...to minimize the deaths of the combatants once the contest was decided. As technology has advanced we have witnessed increasing examples of the crooked gun that slaughters both combatants and non-combatants alike. Civilian causalities in both World Wars of the 20th Century surpassed the military causalities. The aerial bombing by our increasingly sophisticated technology in Korea, Vietnam and Desert Storm resulted in the innocent loss of life to civilians and "friendly" military personnel on numerous occasions. I am not suggesting that all uses of aerial bombardment would be unjustified from a self-defense standpoint. The justifications for these other conflicts is not at issue here. They are cited to demonstrate that our government was aware "beforehand" that an application of aerial bombardment in our pursuit of the "intruders" of September 11, 2001 would result in deadly mistakes. As of July 4th, 2002, senior military officials have acknowledged innocent fatalities from an AC-130 gunship bombing of a “friendly village” in the Uruzgan providence due to an "intelligence error". The loss of life is estimated at 48 with an additional 177 wounded.
My point is this: Given the “best possible” soldiers, well trained and well led, and the “best possible” modern weaponry, we are in the same position that I would find myself in Intruder Example #2. The intruder attacked and I was wounded. I decided that my primary offensive weapon should be a "crooked gun" and I actively sought the intruder on the crowded streets outside my house. This is reckless. It does not conform to the “right intentions” of jus ad bellum because my intended use of force is excessive and unreasonable. When our military forces left our shores to go to Afghanistan to wage a "just" war (in defense of our country as we are now doing), they took a pistol that doesn’t always shoot straight that they know from past experiences of this type will hit and kill innocent civilians. This is not morally justified in the same way that my personal self-defense was justified in Intruder Example #1 when I faced my intruder who was pointing his gun at me at that time. Our War on Terrorism is not a simple exercise that justifies unrestricted self-defense. We are morally obliged to use reasonable force. In terms of Afghanistan, it would cash out in terms of a more prohibitive "rules of engagement". Ones that would severely limit the use of aireal bombardment on targets that resemble "crowded streets".
In 1946, Albert Camus serialized an essay entitled “Neither Victims nor Executioners”. He asked the following questions:
"Do you, or do you not, directly or indirectly, want to be killed or assaulted? Do you or do you not, directly or indirectly, want to kill or assault? All who say No to both these questions are automatically committed to a series of consequences which must modify the way of posing the problem."
Camus fought in the French resistance in World War II. He was not a pacifist. But his wartime experiences convinced him that war compromises with murder. He further argued:
“All I ask is that, in the midst of a murderous world, we agree to reflect on murder and to make a choice. After that, we can distinguish those who accept the consequences of being murders themselves or the accomplices of murders, and those who refuse to do so with all their force and being. Since this terrible dividing line does actually exist, it will be a gain if it be clearly marked.”
In Camus’ spirit let us continue to “pose the problem” and “mark the dividing line”.
Jus in Bello and the Death Penalty
I have tried to show the problematic nature of calling our current “War on Terrorism” a simple case of “self-defense” that yields the further notion “just cause”. Since I believe we have a collective moral right to self-defense (in the immediate sense) it could be argued that my objection is how this war is being waged as opposed to why we ought to rage it. Since I agree that both components require moral justification in order to produce a just war verdict, it seems, in the final analysis, that it would be a moot point to argue whether or not what I have said regarding jus ad bellum more properly belongs to a consideration of jus in bello. The difference, I believe, is that the historical "self defense" justification must be understood in narrower confines to remain morally decent. Since the refinements offered by Saint Aquinas, the jus ad bellum component has included "right intentions" and this is increasingly difficult to control with the "sophistication" of modern weaponry. Conceptually, Saint Aquinas and those that followed have poised the "why" question of war ("why go to war" meaning "is it justified?...jus ad bellum) with not only a consideration of self-defense but with a consideration of the circumstances and means available to conduct this self-defense. "Right intentions" forces one to look down the road...towards the "how" of jus in bello. Before I fully justify the "why" I must give consideration to the "how" I intend to conduct this struggle so that it represents the "reasonable and not excessive use" of force. Otherwise, my "right intentions" are compromised.
The aftermath of September 11, 2001 left the following jus ad bellum complications: The attackers were dead. There was not a standing army claiming responsibility and poised for further attacks (as in Japan and her naval landing troops after December 7, 1941); there were no "insurgent" forces attacking and occupying sections of an allied country (Korea and Vietnam); there was no occupational army which had attacked, defeated, and pillaged an allied country (Iraq's attack and occupation of Kuwait). The most clear-cut "suspect" for September 11, 2001 was Osma bin-Ladin and the al-Queda. But they had not claimed responsibility. There was the militant Taliban regime in Afghanistan which was providing sanctuary to bin-Ladin. Without a declaration of war, we have subsequently sent in our military personnel and equipment to assist in the overthrow of the Taliban and to find and capture those responsible for the attack on America. We call this our "War on Terrorism". Our military personnel have engaged in ground combat and in aerial bombardment of suspected terrorist positions. The fact that the Taliban regime was cruel and committed to basic human rights violations seems clear. It was also clear that there were Afghanistans who were fighting to "rid" the country of this regime. But our world is presently filled with such countries that demonstrate this kind of inner turmoil. Of and in itself this does not allow us to intervene as a matter of our own "self defense". As unfortunate as these situations are they do not constitute a sufficient reason under jus ad bellum to wage a war. We found ourselves in Intruder Example #2. We decided to pursue the terrorists/intruders wherever they may be hiding. The idea is to prevent further "break-ins" and further acts of destruction to our "house" and to our person. I will grant that such a pursuit is necessary. However I have argued that this pursuit must be conceived and carried out with the "reasonable and not excessive use of force". The United States' military bombardment in Afghanistan violates this proviso.
Leaving this distinction aside, I want to turn directly to jus in bello. Here, the focus is clearly on the "conduct" of the war. This is an operational question--the "how" we fight the war (as opposed to the "why"). I find it rather surprising that when one looks at the "operational" side of death penalty laws in this country there are numerous and vociferous critics, whereas, this same level of criticism is far less pronounced when one looks at the "operational" side of our current military operations. I believe that the way we are conducting our current war entails the same moral defects as capital punishment. And while I acknowledge that capital punishment is still controversial in America, my point is that both advocates and critics cannot ignore the “how” of capital punishment. “Why” we want to execute may be a question of “just deserts”. Some individuals feel very strongly that this is one way to "right" the moral outrage or "imbalance" caused by the actions of the condemned (much like an "eye for an eye"). But “how” we plan to carry out such executions remains a separate and disturbing problem.
Consider two examples by philosophers on the issue of the death penalty, David Hoekema’s “Capital Punishment: The Question of Justification” and Hugo Adam Bedau’s “The Right to Life and the Right to Kill”. In their respective essays they go to great lengths to analyze the potential "justifications" for the death penalty statue and then they dismantle these rationales and conclude that the death penalty is inherently unjust. Bedau argues that the State has the statutory "right" to enact the death penalty law, but it can never be the "right" thing, morally, to enforce. It cannot be the moral thing to do because it will entail the killing of innocent persons. Hoekema argues that the various "practices" associated with the death penalty forces one to conclude that this law is fatally flawed. In both Bedau's and Hoekema’s essays, the inconsistencies and flawed practices of the death penalty laws are systemic and unavoidable. There arguments appear in various other contexts and are they are familiar to both philosophers and non-philosophers alike. The best of all human judicial systems will produce errors...and death penalty errors are irrevocable. Can the benefits of a death penalty law justify the loss of innocent life? Especially in view of the fact the death penalty is not an “unintended side effect” but the actual intention is to cause death of the prisoner. And, there is an alternative to the death penalty, life imprisonment, that satisfies the demands of self defense.
Against this stands the Freddie Franks of this world. Theodore Franks was the poster child for the "worst of the worst" and the moral outrage that we experience when we learn of such cases. A paroled child molester, Franks kidnapped, raped and tortured a two year old girl named Amy Sue Seitz in Camarillo, California in 1980. Police uncovered his diary during their investigation. In his own words, Franks discussed the torture (Amy's cries for help) and the sexual gratification he received during this gruesome murder. His diary became part of the trial and he was sentenced to death. However, he spent over twenty years on death row. During his "time" in prison, Franks earned a reputation as an artist. His artistic subjects were partially clad children. His art supporters went so far as to give "exhibitions" of his work and extolled critics to "separate" his art from his life. During those twenty years, Franks' case underwent bizarre legal twists. His dairy was "thrown out" on a technically by then California Supreme Court Justice Rose Bird who admitted she was personally opposed to the death penalty. Franks was re-tired minus the diary, but was convicted because of the advances in DNA technology. He was finally executed in 2001.
I digress into the above case to show how someone (including myself) finds a kind of "moral satisfaction" that Mr. Franks is deceased and not spending the remainder of his life behind bars painting semi-lewd pictures of children that receives accolades is some circles. But such moral satisfaction is not the same as moral justification. I could grant that Franks “deserved” death. But in allowing Franks to be executed, I must also endorse a system of executions under capital punishment. It is this system that cannot be morally justified. Likewise, I see no redemption for those responsible for the murderous attacks on American soil this past September 11th. It might seem that a certain moral satisfaction would follow if those who planned the attacks received the same fate as their suicidal followers. Just war theory speaks to the "reasonable and not excessive use of force" in the pursuit of peace and national self-defense. It does not speak to punishment and revenge motifs. We know, without question, the prosecution of this war far surpasses the death penalty law in its ability to bring about the wrongful death of innocents. There are currently over 12,500 websites dedicated to "U. S. Bombing Mistakes in Afghanistan". While some exist as propaganda, we can be fairly certain that besides the "intelligence errors" at Uruzgan, our military operations have resulted in the "friendly fire" deaths of Canadian soldiers and the inaccurate strafing of numerous Afghan truck convoys that were neither Taliban or al-Qaeda. Make no mistake, these deaths were grotesque, they did not resemble the painless and “humane” deaths that we plan to give to our potentially innocent victims of capital punishment. These innocents suffered the cruel deaths (and wounds) that are inflicted by exploding metal shrapnel.
I believe there was a certain brilliance in Aquinas' concern for "right intentions" before we go to war as part of our jus ad bellum deliberations. The question of the "means" that one seeks to accomplish the necessary "end" (self-defense) were morally co-joined. The subsequent "protocol" of the war, jus in bello, was simply a continuation of this concern for using the appropriate methods as the war unfolded. Jus in bello is equally committed to the application of "reasonable and not excessive use of force". Our current use of aerial bombardment in Afghanistan is unjustified by either account.
The Need for a Paradigm Shift
Earlier I suggested that both a consequentialist and a deontologist might grant a prima facie right to personal self-defense. As we have seen, the just war theory tradition combines a consideration for the right of "national self-defense" with further reflection on the manner by which this defense can be morally conducted. A sophisticated consequentialist might be inclined to favor the "national right of self-defense" as the primary focus. Depending on the threat levels and impediments to achieving this goal, the manner in which war is to be fought would be "morally" proportioned. This may have be attractive as a kind of common sense appeal; but, I do not believe such consequentialist reasoning captures the spirit of jus ad bellum and jus in bello. I believe that the "right intentions" of jus ad bellum requires a focus on the means employed to achieve the ends that is difficult to place in consequentialist terms. But a defense of that thesis would be book length.
I will suggest that a deontologist, and others, are more inclined to take a hard look at the methods we intend to employ in our War on Terrorism. If we cannot morally justify the use of conventional military air power in our current conflict (because it cannot satisfy the demands of "right intentions" which include the "reasonable but not excessive use of force") then we are not allowed to proceed because it satisfies the prudential concerns I voiced with Intruder Problem #2. I may well feel that I have no alternative but to pursue my intruder down crowded streets with a defective weapon in order to feel secure in my house. But the inherent reckless nature of this act negates my claims to have "right intentions". My intention is flawed by the fact that a reasonable person should reflect on the totality of my circumstances. Those circumstances do not justify the use of this kind of force. If our War on Terrorism does not satisfy jus ad bellum it cannot be transformed into the moral course of action by proclaiming it is in our "national self-interest". Choice lies at the heart of moral dilemmas. As Camus suggests, I do not have to compromise with murder.
In using the capital punishment analogy, I was concerned with the fact that many reasonable persons cannot morally justify this practice because it entails the inevitable executions of innocent persons. And, in the case of our current war, this main grievance, the death of innocent persons, is being horribly magnified. Many argue that the death penalty should be banned. And not because certain individuals, like our real-life Freddie Franks, do not "deserve" death, but rather because the instrument of death requires the establishment of procedures that will yield fatal inconsistencies. And although inconsistency is a "way of life" in most areas of human affairs, death is different to borrow a phrase. Fines and imprisonment may be corrected or modified for the purposes of justice whereas executions cannot. With life imprisonment, there is a viable alternative to satisfy our collective "self defense". I understand that in our current War on Terrorism it could be argued that we have no such alternative. How can we apprehend and imprison the entire criminal network that is bent on our destruction? Let us continue to "pose the problem" and "mark the dividing line".
We lost approximately 3,000 innocent persons and two destroyed buildings to “foreign terrorists” on September 11, 2001. We lost 168 lives and a large portion of the Federal Government building in the Oklahoma City bombing incident in 1995. In the World Trade Center case, both military forces and civilian law enforcement were employed. The arrest and conviction of those responsible for the Oklahoma bombing was conducted by law enforcement exclusively. We eventually caught, tired and executed Timothy McVeigh. However, his life-imprisonment would have accomplished our mutual goals of punishment and national self-defense. Of philosophical importance is “how” we waged the war on Timothy McVeigh versus how we are waging the war on Osma bin-Laden and his network. At no point in the investigation of the Oklahoma bombing was it suggested that McVeigh be brought it by law enforcement officials “dead or alive” (“makes no difference to me” as President Bush stated about Osma bin-Laden). At no point did we consider the political destabilization of a modern American City or State in which McVeigh sought harbor. Nor did we suggest that anyone that harbored Timothy McVeigh was just as guilty as just as likely to be killed as McVeigh himself. Nor did we use the weaponry of our military to assure his capture by bombing areas where he was thought to be hiding. I could continue with these dissimilarities. The point is both were severe acts of terrorism. Both required intervention to make sure that future acts against innocent persons by these “intruders” would not occur. McVeigh’s twisted ideology was every bit as amoral, unjustifiable and dangerous as the rhetoric of bin-Laden. In the case of McVeigh, the “network” was smaller and the threat potential much less than in the case with al-Queda. Is it this smaller “threat potential” that alone justifies the vast differences in the way we went about their respective apprehensions? Surely, one could not justify these differences because in one case it was a “domestic” terrorist and in the other case it was a “foreign” terrorist. I would not want to base such distinctions on ethnicity or national origins. Admittedly, the analogy of our pursuit of McVeigh and our pursuit bin-Laden and al-Queda is flawed in terms of local cooperation. We had the full support (and jurisdiction) of the local law enforcement agencies in areas where McVeigh was hiding. We do not have such cooperation in the countries in which bin-Laden and this terrorist have sought shelter. However, we are not prevented from pursuing this model and creating the necessary partnerships with foreign law enforcement agencies as we seek to apprehend these international terrorists. And we are not prevented from creativity in pursuing methods to make this happen. It will entail the same of kind of covert operations and infiltration strategies that some countries have used (and continue to employ) to dismantle the "hidden empires" of organized crime.
Our military largely operates with a death penalty mentality. Combat troops are taught to "kill". Military wars are fought as if the enemy was already under a death penalty sentence and they are the potential executioners. The weapons of the military ensure the greatest amount of destruction and death as it is possible to create. This may be necessary as one considers the “worst case scenario” in which we are faced with a full-scale military attack. Our civilian law enforcement is quasi-military in its command structure. Law enforcement officers are committed to peaceful solutions but they are prepared to use the reasonable force necessary to resolve conflicts and make criminal apprehensions. And, in some cases, police vehicle pursuits and police shoot-outs can injure and kill innocent by-standers. But the fundamental difference is that police officers are not trained as executioners. When they cross this line and become too "military-like" they are unilaterally condemned. Waco, Texas in April of 1993 is but one example. Standard law enforcement "containment" was finally abandoned for a more "military-like" operation and the result was the loss of 74 Branch Davidians (men, women and children). No less than the acting Attorney General, Janet Reno, apologized for this "tactical error." In 1995, the FBI admitted to the U. S. Senate that its "pro-active" (military-like) shooting policy at Randy Weaver's compound in Ruby Ridge, Idaho was inappropriate. The Senate censured the FBI for its conduct and juries awarded cash settlements to the survivors. Consider this: A modern-day police SWAT operation does not include the "preparatory bombing of the enemy target". The goal is apprehension and not death. The SWAT team makes "dynamic entry" using non-lethal "flash bomb" distraction devices. The are prepared to protect themselves from an immediate deadly threat to their person or the persons of others, but they are not there to "kill the enemy" for his crimes, however grievous. They are not there to seek vengeance or to retaliate with deadly force. At all times they are tasked with using "reasonable and not excessive force." If the "force" of their entry causes the suspect to surrender, this is considered their victory. A "body count" is always considered a failure. Law enforcement does not require a death penalty law in order to perform its primary job of apprehension for trial. The differences between the use of conventional military force and civilian-style law enforcement is morally significant. Our military has understood the need to "temporally" adopt law enforcement models when required to intervene in civil unrest within our country. And the problems associated with this transition were clearly evidenced at Kent State in 1970. However, our modern-day army has continued to incorporate improvements in law enforcement type training as the "rules of engagement" tighten in foreign conflicts. Our armed forces have participated in numerous "police" type operations in the modern era. However, this transition and commitment needs significant re-enforcement and a clear sense of direction in our current War on Terrorism.
If we made such a dramatic paradigm shift and replaced the waging of conventional war with the practices associated with our domestic law enforcement, this might allow a deontologist, and others, to condemn our current military-style campaign in Afghanistan (where our immediate and sustained self-defense is now unclear and ambiguous) with the waging of international "law enforcement" efforts to identify and capture terrorists criminals. It would not be a quick fix. In terms of historical precedence, we witnessed the tenacity of Israel’s Mossad agents as they eventually captured Adolf Eichmann in 1960 in Argentina. Eichmann’s war crimes were committed in the 1942-45 period. Admittedly, after the collapse of the Third Reich, Eichmann lost the means to cause further damage. But, Argentina clearly harbored Eichmann and refused attempts to have him extradited for trial. Israel did not use military weaponry to force this issue (questions of practicality not withstanding). What is of interest is that his arrest and removal from Argentina did not involve the killing of innocent persons.
We intervened militarily in an internal struggle in Afghanistan in order to pursue bin-Laden. We have employed aerial bombardment that has killed persons who were neither terrorists nor members of al-Qaeda. As I write this, our country is poised to attack Iraq in a military-style operation to un-seat Saddam Hussein with the reasoning that it will be a “pre-emptive” strike against future acts of terrorism. I do not believe this can be conducted in a way that conforms to the just war theories we have surveyed. In order to become neither victims nor executioners, we must collectively work to find morally acceptable alternatives. We should not endorse the excessive use of force to satisfy our collective goals of home defense. We should seek the apprehension of those responsible for September 11, 2001. But at this stage, our paradigm should not be the application of the high-tech “crooked guns” of military intervention and bombardment. We are seeking international criminals. And, where there is no international law enforcement community capable of doing the present job, it should be our goal to create one. This requires significant coalition and consensus building with other nations. It is clear that our allies do not support our “intended” military efforts against Iraq. This should be one of many clear signals that this attack would be the wrong, and the immoral, course of action to take.
1. see "Charter of the United Nations" go to http://www.un.org/aboutun/charter and use the hyperlink for Chapter VII
2. see "Just War Theory and the Recent U.S. Air Strikes against Iraq" published as a Doctoral Thesis by Mark Edward Deforest (http://law.gonzaga.edu/borders/documents/deforest.htm) pp 5-6
3. ibid. 6
War on Terror
This essay was written by Douglas Thiel for discussion in philosophy sessions at Moorpark College on September 10th and 12th, 2002. Note: footnotes did not accompany the text at the appropriate locations but they do appear at the end of the essay.
IS OUR UNDECLARED WAR ON TERRORISM MORALLY JUSTIFIED?
There is a just war theory in philosophy. Jus ad bellem refers to the "reasons" and foundations that a country ought to use to morally justify war. Jus in bello conventions address the "conduct" of the war...the way in which it ought to be fought so that there is cohesion between the reasons for fighting a war and the way in which the fighting is pursued. The pedigree of jus ad bellem has evolved from Roman times though both religious and non-religious thinkers and sees modern-day codification in Article 51 of the United Nations Charter. No less a thinker that Saint Augustine stated the only acceptable reason for waging war was "to bring about the peace". This has been largely understood as a "self-defense" doctrine and that which constitutes the only "just cause" for war. In addition to this just cause proviso, jus ad bellem requires that the group declaring war exist as a sovereign nation exercising the "right intentions". To be morally sound these intentions are limited to using only the "reasonable" force necessary to provide adequate self-defense and to bring about the peace. The actual conduct of war, jus in bello, is often captured in reference to the "rules of engagement" or protocol outlined in such documents as "The Geneva Convention". In cases where it appears that the jus ad bellem convention is satisfied in a modern conflict (requiring that the war is being waged for national defense or the self-defense of an allied nation), philosophers, and others, are then inclined to concentrate their criticisms on the irregularities and mistakes associated with the way these wars have been conducted. So the focus turns to jus in bello. I believe this is a mistake. In terms of our current War on Terrorism, I want to demonstrate the following: 1). Our conventional military responses are not justified by just ad bellum considerations. This war is not a simple exercise in self-defense. 2) The most compelling reason for statement (1) is our use of aerial bombardment in Afghanistan. The use of this technology involves inevitable mistakes. Our current claims of national "self-defense" do not rise to a level that justifies these mistakes. This effects both the "right intentions" provision of just ad bellum and the protocol concerns that motivate jus in bello. 3) It is irrelevant that this war is undeclared because we are using conventional military assets in the Afghanistan theater. Persistent reports indicate that our government intends to launch conventional military forces against Iraq either in the fall of 2002 or the early winter of 2003. I do not believe this would conform to just war theory. I will propose an alternate strategy to conventional military operations.
Moral Justification - Modern War as Self-Defense - Jus an bellum
"Just cause" meaning "self-defense" seems to be the key to understanding the moral foundation within a just war theory. Absent a strict adherence to pacifism, it would seem that there is an analogy between my right of personal self-defense and the "collective right of self-defense" of a sovereign nation. Without unnecessarily complicating this essay, I would also advance that within the divergent views of deontological and consequential moral frameworks, a prima facie right to personal self-defense would be largely uncontroversial. So, let us explore the normative rights I might expect to hold in cases of personal attack.
Intruder Example #1: I am sleeping in my house when I hear the sound of breaking glass. I live alone and I know that all my doors and windows have been locked. I have a flashlight and a .40 caliber automatic pistol. Although this weapon is generally accurate, it does have a certain inherent flaw...it does not always shoot straight. I hear the “intruder” walking down the hallway. I roll the flashlight down the hallway and the armed intruder fires his pistol at the flashlight. I turn on the hall light and see a masked stranger with his gun smoking from having just fired at the flashlight. He now turns his gun in my direction. I shoot first. The pistol hits its mark and the intruder dies. The subsequent investigation calls my actions “justifiable homicide”. It would seem that I have both the legal and moral right to defend my life. Are not those that attacked America on September 11, 2001 the same types of intruders? It is reported that prior to the second airliner crashing into the Twin Towers in New York, American jet fighters were attempting to overtake and shoot down this second aircraft. Would not this be morally justifiable? I would say yes (with further discussion necessary regarding the status of the innocents on board). However, if we go back to my example of personal self-defense...it would seem that my moral justification to shoot before being shot was immediate. Or to say this another way, it was morally justifiable at the time.
Consider Intruder Example #2: I am shot (and wounded by the intruder) and the intruder escapes. Am I morally justified in shooting the intruder the next time I see him? My immediate case of self-defense has disappeared and there are alternatives available for my safety (police apprehension and imprisonment). But suppose there were no alternatives available. I live where there is no law enforcement. Could I now morally shoot this person if I saw him again? After all, he has already shot me once and I had a moral right of self-defense (at least at the time he shot at me) and I now suspect he will do this again and I have no one that can protect me from subsequent attacks. Suppose one were inclined to say that with no law enforcement possible I had the moral right to shoot the intruder the next time I saw him. How far would this reasoning extend? Suppose I am 95% convinced of the identity of the intruder. I believe I see him and I chase him down a crowed street. I take aim and one of two things occur : a) my gun did not shoot straight (remember I knew about this): or b) the intruder ducked. In any event, the result is that I have shot and killed an innocent by-stander. Am I still within my moral rights?
When Saint Aquinas addressed jus ad bellem he specifically included a discussion of “right intentions”. In the intervening years, such divergent writers as Groitus and Daniel Webster both provided elaboration and the concept of the “reasonable and not excessive use of force” emerged to clearly address "intentions". After the Nuremberg War Trials, it was asserted that traditional "just war theory" was, in fact, binding customary law. I believe a legitimate concern for reasonable force requires one to consider the problem of foreseen but unintended side effects that are raised in Intruder Example #2. The airliner about to crash into the second tower (with innocents aboard) could be shot down as an immediate case of self-defense for thousands of other innocent persons. And, one could argue that it was the intention to stop the plane and not the intention to kill innocent passengers. But once the immediate threat has ended it appears that the force of this moral reasoning must be re-examined. The “immediate” threat might be extended to include instances in which the intruder is still within the residence (occupational armies) and still in the process of subjugation. But when the attacker retreats and we go in pursuit of “justice” we are no longer the hunted, instead we become the hunter and the potential executioner. In Intruder Example #2, I am aware that my pistol will sometimes malfunction and shoot in a different direction than I aim. I know this before I go looking to find the intruder who shot me. But, remember that I have no one else that can do this job for me. I have also learned that the only place that I will ever find this intruder will be on a crowded street. I know that this same problem (that I now face) has been faced by many others before me. In all cases where the person sought to find and eliminate the intruder, innocent bystanders were shot and killed by the person “seeking justice”. Under these conditions, with this type of knowledge beforehand, am I in a position to morally justify this enterprise by saying that my “intention” is just to kill the intruder (as a matter of justice and self-preservation) and the collateral damage is foreseeable but unintended? Could such a scenario ever be ruled “justifiable homicide”? Could I suggest that the death of an innocent person is the responsibility of the “intruder” in much the same way that we use the concept of the “felony murder rule” to charge bank robbers for murder when law enforcement officers accidentally shoot an innocent person while trying to apprehend the actual robbers? I do not think so. I would submit that the use of a crooked gun on crowded streets (in the case of Intruder example #2) would not be the “reasonable and not excessive use” of force. The Doctrine of the Double Effect does not provide relief. My goal may be self-defense (okay) and my intention may only be to find and stop the intruder (okay) and the collateral damage is foreseen and unintended (okay?). But these intentions must reflect "the reasonable and not excessive use" of force. This requires that I not employ practices that would constitute a reckless disregard for this principle. Suppose a nervous soon-to-be father driving his wife in labor to a hospital does not wait for a light to turn green and goes through an intersection after observing it was clear. We might see this minor traffic violation as reasonable under the circumstances. But we would we excuse this father’s extended driving on a sidewalk even if he said his intention was only to go around a traffic jam that “got in his way”? The inherent nature of this act is reckless and disregards the obvious variables (children suddenly appearing from yards on bikes). If such a soon-to-be father struck and killed an innocent child while attempting this sidewalk driving, his "intention" (which the prosecutor would need to establish to charge him with a crime) might be called his "wanton disregard for the safety of others". In other words his act was "reckless" to the extreme. And a reasonable person should have recognized it as “excessive”.
We may be inclined to understand the behavior and actions of our soon-to-be father as unreflective. In other words, he reacted to the stress of the "minute" and defense attorneys seek to counter “reckless intention” accusations with the “actual state of mind” of the defendant. After September 11, 2001 and prior to our troops going into Afghanistan we had sufficient time for reflection. Modern aerial bombardment carries unavoidable risks. Technology will malfunction and no military authority figure claims that “smart” bombs are 100 per cent accurate. In short, aerial bombardment is a crooked "technologically advanced" gun which guarantees the killing of innocent by-standers in such circumstances as we face in Afghanistan. When Saint Thomas Aquinas refined the just war theory of Saint Augustine in the Summa Theologia it was still within the context of medieval combat. The available technology and conduct of war was more primitive and straightforward. Enemies traveled by foot or on horseback. Mistaken identities were vastly reduced by elaborate markings. Armies often met in open fields. Now, this is not to suggest that innocent lives were not lost. Men forced into military service against their own desires, towns brought under siege and starvation created a medieval horror all to its own. But, in theory, it could be argued that a just war could be fought as a kind of "collective self-defense". Large armies meeting other large armies (away from the civilian population) on the field of battle to decide the outcome. The "reasonable and not excessive" use of force was meant to control the "slaughter"...to minimize the deaths of the combatants once the contest was decided. As technology has advanced we have witnessed increasing examples of the crooked gun that slaughters both combatants and non-combatants alike. Civilian causalities in both World Wars of the 20th Century surpassed the military causalities. The aerial bombing by our increasingly sophisticated technology in Korea, Vietnam and Desert Storm resulted in the innocent loss of life to civilians and "friendly" military personnel on numerous occasions. I am not suggesting that all uses of aerial bombardment would be unjustified from a self-defense standpoint. The justifications for these other conflicts is not at issue here. They are cited to demonstrate that our government was aware "beforehand" that an application of aerial bombardment in our pursuit of the "intruders" of September 11, 2001 would result in deadly mistakes. As of July 4th, 2002, senior military officials have acknowledged innocent fatalities from an AC-130 gunship bombing of a “friendly village” in the Uruzgan providence due to an "intelligence error". The loss of life is estimated at 48 with an additional 177 wounded.
My point is this: Given the “best possible” soldiers, well trained and well led, and the “best possible” modern weaponry, we are in the same position that I would find myself in Intruder Example #2. The intruder attacked and I was wounded. I decided that my primary offensive weapon should be a "crooked gun" and I actively sought the intruder on the crowded streets outside my house. This is reckless. It does not conform to the “right intentions” of jus ad bellum because my intended use of force is excessive and unreasonable. When our military forces left our shores to go to Afghanistan to wage a "just" war (in defense of our country as we are now doing), they took a pistol that doesn’t always shoot straight that they know from past experiences of this type will hit and kill innocent civilians. This is not morally justified in the same way that my personal self-defense was justified in Intruder Example #1 when I faced my intruder who was pointing his gun at me at that time. Our War on Terrorism is not a simple exercise that justifies unrestricted self-defense. We are morally obliged to use reasonable force. In terms of Afghanistan, it would cash out in terms of a more prohibitive "rules of engagement". Ones that would severely limit the use of aireal bombardment on targets that resemble "crowded streets".
In 1946, Albert Camus serialized an essay entitled “Neither Victims nor Executioners”. He asked the following questions:
"Do you, or do you not, directly or indirectly, want to be killed or assaulted? Do you or do you not, directly or indirectly, want to kill or assault? All who say No to both these questions are automatically committed to a series of consequences which must modify the way of posing the problem."
Camus fought in the French resistance in World War II. He was not a pacifist. But his wartime experiences convinced him that war compromises with murder. He further argued:
“All I ask is that, in the midst of a murderous world, we agree to reflect
on murder and to make a choice. After that, we can distinguish those
who accept the consequences of being murders themselves or the accomplices of murders, and those who refuse to do so with all their force and being. Since this terrible dividing line does actually exist, it will be a gain if it be clearly marked.”
In Camus’ spirit let us continue to “pose the problem” and “mark the dividing line”.
Jus in Bello and the Death Penalty
I have tried to show the problematic nature of calling our current “War on Terrorism” a simple case of “self-defense” that yields the further notion “just cause”. Since I believe we have a collective moral right to self-defense (in the immediate sense) it could be argued that my objection is how this war is being waged as opposed to why we ought to rage it. Since I agree that both components require moral justification in order to produce a just war verdict, it seems, in the final analysis, that it would be a moot point to argue whether or not what I have said regarding jus ad bellum more properly belongs to a consideration of jus in bello. The difference, I believe, is that the historical "self defense" justification must be understood in narrower confines to remain morally decent. Since the refinements offered by Saint Aquinas, the jus ad bellum component has included "right intentions" and this is increasingly difficult to control with the "sophistication" of modern weaponry. Conceptually, Saint Aquinas and those that followed have poised the "why" question of war ("why go to war" meaning "is it justified?...jus ad bellum) with not only a consideration of self-defense but with a consideration of the circumstances and means available to conduct this self-defense. "Right intentions" forces one to look down the road...towards the "how" of jus in bello. Before I fully justify the "why" I must give consideration to the "how" I intend to conduct this struggle so that it represents the "reasonable and not excessive use" of force. Otherwise, my "right intentions" are compromised.
The aftermath of September 11, 2001 left the following jus ad bellum complications: The attackers were dead. There was not a standing army claiming responsibility and poised for further attacks (as in Japan and her naval landing troops after December 7, 1941); there were no "insurgent" forces attacking and occupying sections of an allied country (Korea and Vietnam); there was no occupational army which had attacked, defeated, and pillaged an allied country (Iraq's attack and occupation of Kuwait). The most clear-cut "suspect" for September 11, 2001 was Osma bin-Ladin and the al-Queda. But they had not claimed responsibility. There was the militant Taliban regime in Afghanistan which was providing sanctuary to bin-Ladin. Without a declaration of war, we have subsequently sent in our military personnel and equipment to assist in the overthrow of the Taliban and to find and capture those responsible for the attack on America. We call this our "War on Terrorism". Our military personnel have engaged in ground combat and in aerial bombardment of suspected terrorist positions. The fact that the Taliban regime was cruel and committed to basic human rights violations seems clear. It was also clear that there were Afghanistans who were fighting to "rid" the country of this regime. But our world is presently filled with such countries that demonstrate this kind of inner turmoil. Of and in itself this does not allow us to intervene as a matter of our own "self defense". As unfortunate as these situations are they do not constitute a sufficient reason under jus ad bellum to wage a war. We found ourselves in Intruder Example #2. We decided to pursue the terrorists/intruders wherever they may be hiding. The idea is to prevent further "break-ins" and further acts of destruction to our "house" and to our person. I will grant that such a pursuit is necessary. However I have argued that this pursuit must be conceived and carried out with the "reasonable and not excessive use of force". The United States' military bombardment in Afghanistan violates this proviso.
Leaving this distinction aside, I want to turn directly to jus in bello. Here, the focus is clearly on the "conduct" of the war. This is an operational question--the "how" we fight the war (as opposed to the "why"). I find it rather surprising that when one looks at the "operational" side of death penalty laws in this country there are numerous and vociferous critics, whereas, this same level of criticism is far less pronounced when one looks at the "operational" side of our current military operations. I believe that the way we are conducting our current war entails the same moral defects as capital punishment. And while I acknowledge that capital punishment is still controversial in America, my point is that both advocates and critics cannot ignore the “how” of capital punishment. “Why” we want to execute may be a question of “just deserts”. Some individuals feel very strongly that this is one way to "right" the moral outrage or "imbalance" caused by the actions of the condemned (much like an "eye for an eye"). But “how” we plan to carry out such executions remains a separate and disturbing problem.
Consider two examples by philosophers on the issue of the death penalty, David Hoekema’s “Capital Punishment: The Question of Justification” and Hugo Adam Bedau’s “The Right to Life and the Right to Kill”. In their respective essays they go to great lengths to analyze the potential "justifications" for the death penalty statue and then they dismantle these rationales and conclude that the death penalty is inherently unjust. Bedau argues that the State has the statutory "right" to enact the death penalty law, but it can never be the "right" thing, morally, to enforce. It cannot be the moral thing to do because it will entail the killing of innocent persons. Hoekema argues that the various "practices" associated with the death penalty forces one to conclude that this law is fatally flawed. In both Bedau's and Hoekema’s essays, the inconsistencies and flawed practices of the death penalty laws are systemic and unavoidable. There arguments appear in various other contexts and are they are familiar to both philosophers and non-philosophers alike. The best of all human judicial systems will produce errors...and death penalty errors are irrevocable. Can the benefits of a death penalty law justify the loss of innocent life? Especially in view of the fact the death penalty is not an “unintended side effect” but the actual intention is to cause death of the prisoner. And, there is an alternative to the death penalty, life imprisonment, that satisfies the demands of self defense.
Against this stands the Freddie Franks of this world. Theodore Franks was the poster child for the "worst of the worst" and the moral outrage that we experience when we learn of such cases. A paroled child molester, Franks kidnapped, raped and tortured a two year old girl named Amy Sue Seitz in Camarillo, California in 1980. Police uncovered his diary during their investigation. In his own words, Franks discussed the torture (Amy's cries for help) and the sexual gratification he received during this gruesome murder. His diary became part of the trial and he was sentenced to death. However, he spent over twenty years on death row. During his "time" in prison, Franks earned a reputation as an artist. His artistic subjects were partially clad children. His art supporters went so far as to give "exhibitions" of his work and extolled critics to "separate" his art from his life. During those twenty years, Franks' case underwent bizarre legal twists. His dairy was "thrown out" on a technically by then California Supreme Court Justice Rose Bird who admitted she was personally opposed to the death penalty. Franks was re-tired minus the diary, but was convicted because of the advances in DNA technology. He was finally executed in 2001.
I digress into the above case to show how someone (including myself) finds a kind of "moral satisfaction" that Mr. Franks is deceased and not spending the remainder of his life behind bars painting semi-lewd pictures of children that receives accolades is some circles. But such moral satisfaction is not the same as moral justification. I could grant that Franks “deserved” death. But in allowing Franks to be executed, I must also endorse a system of executions under capital punishment. It is this system that cannot be morally justified. Likewise, I see no redemption for those responsible for the murderous attacks on American soil this past September 11th. It might seem that a certain moral satisfaction would follow if those who planned the attacks received the same fate as their suicidal followers. Just war theory speaks to the "reasonable and not excessive use of force" in the pursuit of peace and national self-defense. It does not speak to punishment and revenge motifs. We know, without question, the prosecution of this war far surpasses the death penalty law in its ability to bring about the wrongful death of innocents. There are currently over 12,500 websites dedicated to "U. S. Bombing Mistakes in Afghanistan". While some exist as propaganda, we can be fairly certain that besides the "intelligence errors" at Uruzgan, our military operations have resulted in the "friendly fire" deaths of Canadian soldiers and the inaccurate strafing of numerous Afghan truck convoys that were neither Taliban or al-Qaeda. Make no mistake, these deaths were grotesque, they did not resemble the painless and “humane” deaths that we plan to give to our potentially innocent victims of capital punishment. These innocents suffered the cruel deaths (and wounds) that are inflicted by exploding metal shrapnel.
I believe there was a certain brilliance in Aquinas' concern for "right intentions" before we go to war as part of our jus ad bellum deliberations. The question of the "means" that one seeks to accomplish the necessary "end" (self-defense) were morally co-joined. The subsequent "protocol" of the war, jus in bello, was simply a continuation of this concern for using the appropriate methods as the war unfolded. Jus in bello is equally committed to the application of "reasonable and not excessive use of force". Our current use of aerial bombardment in Afghanistan is unjustified by either account.
The Need for a Paradigm Shift
Earlier I suggested that both a consequentialist and a deontologist might grant a prima facie right to personal self-defense. As we have seen, the just war theory tradition combines a consideration for the right of "national self-defense" with further reflection on the manner by which this defense can be morally conducted. A sophisticated consequentialist might be inclined to favor the "national right of self-defense" as the primary focus. Depending on the threat levels and impediments to achieving this goal, the manner in which war is to be fought would be "morally" proportioned. This may have be attractive as a kind of common sense appeal; but, I do not believe such consequentialist reasoning captures the spirit of jus ad bellum and jus in bello. I believe that the "right intentions" of jus ad bellum requires a focus on the means employed to achieve the ends that is difficult to place in consequentialist terms. But a defense of that thesis would be book length.
I will suggest that a deontologist, and others, are more inclined to take a hard look at the methods we intend to employ in our War on Terrorism. If we cannot morally justify the use of conventional military air power in our current conflict (because it cannot satisfy the demands of "right intentions" which include the "reasonable but not excessive use of force") then we are not allowed to proceed because it satisfies the prudential concerns I voiced with Intruder Problem #2. I may well feel that I have no alternative but to pursue my intruder down crowded streets with a defective weapon in order to feel secure in my house. But the inherent reckless nature of this act negates my claims to have "right intentions". My intention is flawed by the fact that a reasonable person should reflect on the totality of my circumstances. Those circumstances do not justify the use of this kind of force. If our War on Terrorism does not satisfy jus ad bellum it cannot be transformed into the moral course of action by proclaiming it is in our "national self-interest". Choice lies at the heart of moral dilemmas. As Camus suggests, I do not have to compromise with murder.
In using the capital punishment analogy, I was concerned with the fact that many reasonable persons cannot morally justify this practice because it entails the inevitable executions of innocent persons. And, in the case of our current war, this main grievance, the death of innocent persons, is being horribly magnified. Many argue that the death penalty should be banned. And not because certain individuals, like our real-life Freddie Franks, do not "deserve" death, but rather because the instrument of death requires the establishment of procedures that will yield fatal inconsistencies. And although inconsistency is a "way of life" in most areas of human affairs, death is different to borrow a phrase. Fines and imprisonment may be corrected or modified for the purposes of justice whereas executions cannot. With life imprisonment, there is a viable alternative to satisfy our collective "self defense". I understand that in our current War on Terrorism it could be argued that we have no such alternative. How can we apprehend and imprison the entire criminal network that is bent on our destruction? Let us continue to "pose the problem" and "mark the dividing line".
We lost approximately 3,000 innocent persons and two destroyed buildings to “foreign terrorists” on September 11, 2001. We lost 168 lives and a large portion of the Federal Government building in the Oklahoma City bombing incident in 1995. In the World Trade Center case, both military forces and civilian law enforcement were employed. The arrest and conviction of those responsible for the Oklahoma bombing was conducted by law enforcement exclusively. We eventually caught, tired and executed Timothy McVeigh. However, his life-imprisonment would have accomplished our mutual goals of punishment and national self-defense. Of philosophical importance is “how” we waged the war on Timothy McVeigh versus how we are waging the war on Osma bin-Laden and his network. At no point in the investigation of the Oklahoma bombing was it suggested that McVeigh be brought it by law enforcement officials “dead or alive” (“makes no difference to me” as President Bush stated about Osma bin-Laden). At no point did we consider the political destabilization of a modern American City or State in which McVeigh sought harbor. Nor did we suggest that anyone that harbored Timothy McVeigh was just as guilty as just as likely to be killed as McVeigh himself. Nor did we use the weaponry of our military to assure his capture by bombing areas where he was thought to be hiding. I could continue with these dissimilarities. The point is both were severe acts of terrorism. Both required intervention to make sure that future acts against innocent persons by these “intruders” would not occur. McVeigh’s twisted ideology was every bit as amoral, unjustifiable and dangerous as the rhetoric of bin-Laden. In the case of McVeigh, the “network” was smaller and the threat potential much less than in the case with al-Queda. Is it this smaller “threat potential” that alone justifies the vast differences in the way we went about their respective apprehensions? Surely, one could not justify these differences because in one case it was a “domestic” terrorist and in the other case it was a “foreign” terrorist. I would not want to base such distinctions on ethnicity or national origins. Admittedly, the analogy of our pursuit of McVeigh and our pursuit bin-Laden and al-Queda is flawed in terms of local cooperation. We had the full support (and jurisdiction) of the local law enforcement agencies in areas where McVeigh was hiding. We do not have such cooperation in the countries in which bin-Laden and this terrorist have sought shelter. However, we are not prevented from pursuing this model and creating the necessary partnerships with foreign law enforcement agencies as we seek to apprehend these international terrorists. And we are not prevented from creativity in pursuing methods to make this happen. It will entail the same of kind of covert operations and infiltration strategies that some countries have used (and continue to employ) to dismantle the "hidden empires" of organized crime.
Our military largely operates with a death penalty mentality. Combat troops are taught to "kill". Military wars are fought as if the enemy was already under a death penalty sentence and they are the potential executioners. The weapons of the military ensure the greatest amount of destruction and death as it is possible to create. This may be necessary as one considers the “worst case scenario” in which we are faced with a full-scale military attack. Our civilian law enforcement is quasi-military in its command structure. Law enforcement officers are committed to peaceful solutions but they are prepared to use the reasonable force necessary to resolve conflicts and make criminal apprehensions. And, in some cases, police vehicle pursuits and police shoot-outs can injure and kill innocent by-standers. But the fundamental difference is that police officers are not trained as executioners. When they cross this line and become too "military-like" they are unilaterally condemned. Waco, Texas in April of 1993 is but one example. Standard law enforcement "containment" was finally abandoned for a more "military-like" operation and the result was the loss of 74 Branch Davidians (men, women and children). No less than the acting Attorney General, Janet Reno, apologized for this "tactical error." In 1995, the FBI admitted to the U. S. Senate that its "pro-active" (military-like) shooting policy at Randy Weaver's compound in Ruby Ridge, Idaho was inappropriate. The Senate censured the FBI for its conduct and juries awarded cash settlements to the survivors. Consider this: A modern-day police SWAT operation does not include the "preparatory bombing of the enemy target". The goal is apprehension and not death. The SWAT team makes "dynamic entry" using non-lethal "flash bomb" distraction devices. The are prepared to protect themselves from an immediate deadly threat to their person or the persons of others, but they are not there to "kill the enemy" for his crimes, however grievous. They are not there to seek vengeance or to retaliate with deadly force. At all times they are tasked with using "reasonable and not excessive force." If the "force" of their entry causes the suspect to surrender, this is considered their victory. A "body count" is always considered a failure. Law enforcement does not require a death penalty law in order to perform its primary job of apprehension for trial. The differences between the use of conventional military force and civilian-style law enforcement is morally significant. Our military has understood the need to "temporally" adopt law enforcement models when required to intervene in civil unrest within our country. And the problems associated with this transition were clearly evidenced at Kent State in 1970. However, our modern-day army has continued to incorporate improvements in law enforcement type training as the "rules of engagement" tighten in foreign conflicts. Our armed forces have participated in numerous "police" type operations in the modern era. However, this transition and commitment needs significant re-enforcement and a clear sense of direction in our current War on Terrorism.
If we made such a dramatic paradigm shift and replaced the waging of conventional war with the practices associated with our domestic law enforcement, this might allow a deontologist, and others, to condemn our current military-style campaign in Afghanistan (where our immediate and sustained self-defense is now unclear and ambiguous) with the waging of international "law enforcement" efforts to identify and capture terrorists criminals. It would not be a quick fix. In terms of historical precedence, we witnessed the tenacity of Israel’s Mossad agents as they eventually captured Adolf Eichmann in 1960 in Argentina. Eichmann’s war crimes were committed in the 1942-45 period. Admittedly, after the collapse of the Third Reich, Eichmann lost the means to cause further damage. But, Argentina clearly harbored Eichmann and refused attempts to have him extradited for trial. Israel did not use military weaponry to force this issue (questions of practicality not withstanding). What is of interest is that his arrest and removal from Argentina did not involve the killing of innocent persons.
We intervened militarily in an internal struggle in Afghanistan in order to pursue bin-Laden. We have employed aerial bombardment that has killed persons who were neither terrorists nor members of al-Qaeda. As I write this, our country is poised to attack Iraq in a military-style operation to un-seat Saddam Hussein with the reasoning that it will be a “pre-emptive” strike against future acts of terrorism. I do not believe this can be conducted in a way that conforms to the just war theories we have surveyed. In order to become neither victims nor executioners, we must collectively work to find morally acceptable alternatives. We should not endorse the excessive use of force to satisfy our collective goals of home defense. We should seek the apprehension of those responsible for September 11, 2001. But at this stage, our paradigm should not be the application of the high-tech “crooked guns” of military intervention and bombardment. We are seeking international criminals. And, where there is no international law enforcement community capable of doing the present job, it should be our goal to create one. This requires significant coalition and consensus building with other nations. It is clear that our allies do not support our “intended” military efforts against Iraq. This should be one of many clear signals that this attack would be the wrong, and the immoral, course of action to take.
1. see "Charter of the United Nations" go to http://www.un.org/aboutun/charter and use the hyperlink for Chapter VII
2. see "Just War Theory and the Recent U.S. Air Strikes against Iraq" published as a Doctoral Thesis by Mark Edward Deforest (http://law.gonzaga.edu/borders/documents/deforest.htm) pp 5-6
3. ibid. 6
Oxnard College, 4000 South Rose Ave. Oxnard, CA 93033 (805) 986 - 5800