Are We at War?
by Robert McKay
With some hesitation, I summarize the thesis of my recent Gauss Memorial Lecture, titled “Are We At War?” I know the views I express here, which are personal, political (and, frankly, angry) are bound to offend at least some of my readers. The classroom, especially the philosophy classroom, is the place for careful, fair-minded examination of all available points of view. I do not attempt that here; sometimes one must speak out, and all I can do is look forward to debating the issues with whoever wants to show me just how mistaken, in fact, I am.
The Taliban War of 2001 in Afghanistan, and the Iraq War in 2003, were real wars. Whatever one may think of the wisdom of the latter conflict, we quickly emerged victorious in both countries, and are now occupying them with consequences which are all too familiar. Those consequences, however, are not my topic.
Instead, I want to address a deeper assumption, one which all too many Americans have come to share: namely, that we are (literally) at war with al Qaeda, or engaged in what is sometimes called a Global War on Terrorism. This latter war, I want to argue, is a phony war, a duplicitous construction of events put over on the public (and, sad to say, many judges, and even some law-of-war experts) in order to achieve political ends which could not succeed without its cover.
As John Yoo, a Berkeley law professor and former member of the Justice Department’s Office of Legal Counsel (where he co-authored the famous “Torture Memos,” and was a principal architect of the legal theory behind the “war on terror”) puts it in his recent book, War By Other Means,
Uncertainty about whether September 11 started a war is at the root of most of the confusion about the United States’strategy in the war on terrorism...If 9/11 started a war between the United States and al Qaeda, the United States can employ its war powers to kill enemy operatives and their leaders, detain them without trial until the end of the conflict, interrogate them without lawyers or Miranda protections, and try them without civilian juries (2-3)
Some of what Yoo says here sounds reasonable, until you combine it with other facets of the current administration’s policy. For example, the “enemy operatives” Yoo mentions turn out to be anyone, foreigner or American citizen, whom the President “finds” or “determines” (that is, arbitrarily asserts, with no opportunity for review or legal challenge) is somehow connected with “terrorism.” And, as the President’s lawyers have argued, this “war” is “different,” in that there will be no surrender, no peace treaty, no return to peace-time conditions. In other words, the war will last as long as the President, and the President alone, “determines” it should. So anyone, citizen or no, which the administration arbitrarily decides is an “enemy combatant” can be imprisoned forever, with no charges, no legal representation, no challenge or recourse of any kind.
Moreover, the President’s lawyers at their most extreme have asserted that, in the “war on terror,” every country, including our own, no matter how peaceful in appearance, is part of a war zone. And in any part of that war zone, the commander-in-chief of one country – our own – can legally, they say, preempt the powers of the local government (or in our case the laws and Constitution), and kill, kidnap, imprison or “rendition” any human being on earth who is “found” (that is, arbitrarily asserted) to have connections to terrorism.
Another illustration: Last fall, a submissive and complicit Republican Congress handed the administration a flagrantly unconstitutional law (the Military Commissions Act) which stripped the Supreme Court of jurisdiction over any cases involving “enemy combatants,” and potentially cleared the way for a suspension of the writ of habeas corpus. When, in Senate hearings on April 26th, Senator Patrick Leahy criticized the bill as un-American, Senator John Warner could do no more than splutter in reply, “This is a nation at war!” And indeed, when you think about it, without that assumption the Bush administration’s post-9/11 policy construction collapses like a house of cards.
There is a fairly vigorous argument in the legal literature over the question whether it is legitimate to call our confrontation with terrorism a war. To enter into details would be too involved and take too much space. But let us notice just a couple of points.
Under the classic law of war, only a legitimate authority (most often a state) can undertake to fight a war (as opposed to banditry, insurrection, and so on). It is often pointed out by supporters of the “war” theory that in 1996 al Qaeda, in the person of bin Laden, issued a fatwa declaring holy war on the United States. But bin Laden has no authority to declare war. He doesn’t even have the authority to issue a fatwa. This contention is a non-starter. Again, advocates of a “war” against al Qaeda sometimes fall back on saying that this is a different, a “new” kind of war; and they chide their opponents with being behind the times, with not recognizing that “9/11 changed everything.” As far as I can see, this argument simply begs the question.
Nor does everyday experience bear out the “war” talk. Had al Qaeda, operating from bases or “cells” either inside or outside the country, hit us repeatedly with attacks comparable in scale to the strikes on 9/11, such talk would have some empirical foundation (that is, after all, what real war is like). But neither in our own country nor in any of the other countries, except Iraq, which have recently been the targets of terrorism presumably inspired by al Qaeda (Spain, England, Indonesia, Kenya, Tanzania), do we see the intensity of military operations necessary to render a geographic area a war zone. And, of course, none of these other countries have seen fit to declare war on al Qaeda. It should make us suspicious that ours has.
Let me end by hinting at the source of my own suspicions, and what I meant earlier by saying that the notion of a (literal) war on terror has been put over on us in order to achieve political ends which could not succeed without its cover. It is a platitude that the current administration’s policies bear the impress of a particular ideology, that of a group of intellectuals and publicists inside and outside of government commonly called “neo-conservatives.” Their ideology, which has a particular and philosophically very powerful source, has, as it were, two levels. In immediate political terms, it appears as the theory of the “unitary executive,” that is of an all-powerful, absolute, or in Hobbesian terms Sovereign, executive, able to neutralize the checking role of the other two branches by invoking commander-in-chief powers (together with any number of other dodges).
Deeper down, their philosophy is that of the Athenian generals at Melos. Words like ‘just’ and ‘unjust’ (or, we might add, “spreading democracy and freedom in the Mideast”) are “fair pretenses,” to be used “when speaking ironically to the vulgar.” What’s real (though not to be avowed) is the never-ending struggle for power as an end in itself.
A couple of years ago, Zbigniew Brzezinski wrote a book called The Choice: Global Domination or Global Leadership. The brains of the Bush administration chose the path of global domination. The fact that, as a consequence, we have lost our ability to lead the world is only one part (though a large enough part) of the damage the present administration has done to our country.
Robert McKay holds the Philip A. Gauss Chair in philosophy which falls under the aegis of the Department of English.
