Romantics at War

by Fletcher, George P.

• ISBN13: 9780691006512
• ISBN10: 0691006512
• Format: Hardcover
• Copyright: 2002-09-16
• Publisher: Princeton Univ Pr

Summary

America is at war with terrorism. Terrorists must be brought to justice.We hear these phrases together so often that we rarely pause to reflect on the dramatic differences between the demands of war and the demands of justice, differences so deep that the pursuit of one often comes at the expense of the other. In this book, one of the country's most important legal thinkers brings much-needed clarity to the still unfolding debates about how to pursue war and justice in the age of terrorism. George Fletcher also draws on his rare ability to combine insights from history, philosophy, literature, and law to place these debates in a rich cultural context. He seeks to explain why Americans--for so many years cynical about war--have recently found war so appealing. He finds the answer in a revival of Romanticism, a growing desire in the post-Vietnam era to identify with grand causes and to put nations at the center of ideas about glory and guilt.Fletcher opens with unsettling questions about the nature of terrorism, war, and justice, showing how dangerously slippery the concepts can be. He argues that those sympathetic to war are heirs to the ideals of Byron, Fichte, and other Romantics in their belief that nations--not just individuals--must uphold honor and be held accountable for crimes. Fletcher writes that ideas about collective glory and guilt are far more plausible and widespread than liberal individualists typically recognize. But as he traces the implications of the Romantic mindset for debates about war crimes, treason, military tribunals, and genocide, he also shows that losing oneself in a grand cause can all too easily lead to moral catastrophe.A work of extraordinary intellectual power and relevance, the book will change how we think not only about world events, but about the conflicting individualist and collective impulses that tear at all of us.

Author Biography

George P. Fletcher is Cardozo Professor of Jurisprudence at Columbia University.

Table of Contents

Preface	ix
War's Appeal	1	(25)
Irreconcilable Conflicts	26	(18)
Collective Crime	44	(27)
The Guilt of Nations	71	(21)
Individuals at War	92	(25)
Guilty Relations	117	(22)
Romantic Perversions	139	(18)
Distributing Guilt	157	(22)
Shadows of the Past	179	(17)
Living with Guilt	196	(19)
Notes	215	(26)
Index	241

Excerpts

War's Appeal

Sometime they'll give a war and nobody will come.

- Carl Sandburg

When the first plane hit, we thought it was an accident. We did not anticipate an attack. We could not even muster fighter planes fast enough to protect the second World Trade Center tower or the Pentagon. If the passengers on the fourth hijacked jet had not been courageous, we might have suffered even more serious harm in Washington, D.C. But not only our military was caught by surprise. Our minds were also asleep.

We had received all the clues necessary to know that we were in danger. Islamic fundamentalist terrorists had already tried to blow up the World Trade Center. Al Qaeda had attacked the battleship USS Cole and the American embassy in Nairobi. We were put on notice that a dramatic attack was in the offing: We ignored it.

Experts rarely know what is going to happen tomorrow. The sovietologists did not foresee the collapse of the Communist empire in 1989. The market watchers-with few exceptions-did not expect the NASDAQ crash that hit investors in March 2000. September 11 was no more visible to the eye than these other world-shaking events.

But I am less concerned with the ability of military experts to predict specific events than with our general ability to think clearly about the aftermath, about the life-and-death questions that have tormented us since we sat stunned in front of our television sets. We may have been unprepared for that morning, but there is no reason to muddle the meaning of that event and to accept our military and legal responses without serious reflection. We must ask ourselves how we justify our use of force to the rest of the world and, more importantly, to ourselves. Is this war? Are we engaged in self-defense, in the pursuit of justice, in establishing a "new world order?" Who is the enemy? These are not easy questions.

I write in an effort to bring some clarity to these issues. This is a book about going to war, about war's appeal to us and to our enemy, about honor, about crimes that are committed in the name of war, and about the guilt of those who collectively commit crimes. In the face of a military attack, we all see our lives and our futures on the line. Without a firm understanding of the miliary actions taken in our name, we cannot be at ease; we cannot allow others to risk their lives and allow our opponents to die without knowing why.

Let us think first about the language we use. One word is on everybody's lips-terrorism-but what does it mean? The concept eludes easy definition. Were the American revolutionaries not terrorists? Did they not fight without wearing uniforms? Did they not conduct unorthodox raids against English regulars marching in uniform? Were we engaged in an act of terror when we dropped the atomic bomb on Hiroshima? There are too many questions and too few easy answers.

We know that terrorism is about violence. But there is good violence and bad violence. Is every violent crime an act of terror? Hardly. It is not clear, when we use the word today, whether we mean to refer to haphazard violence-something like the terror that descended on the French with Robespierre and the guillotine-or we mean to talk about terror as an instrument of national policy, with clear objectives of intimidating and manipulating civilian populations. Dropping the A-bomb in Japan was not haphazard, but it may have had the purpose of scaring the public into a posture of surrender. It is not clear whether the use of violence is worse when it is helter-skelter (à la Charles Manson) or when its purpose is to intimidate.

Fighting terrorism is not like going to war against Germany or Japan. We knew what Germany was, where it was. Not only do we not know where the terrorists are; we would not know them if we saw them. We are fighting with the most modern instruments, but we are flying in the dark.

War and Justice

If the use of the word "terrorist" is problematic, what about "war"? We have been in a state of armed conflict with Al Qaeda and the Taliban in Afghanistan, but does this conflict amount to a "war"? Not every shootout at the OK Corral qualifies. Perhaps the United States is just acting like the sheriff bringing the culprits to justice. From the very beginning, President George W. Bush and his administration used the language of both war and justice-as though these two ways of thinking about violence were compatible. Bush has said repeatedly that the attack was "an act of war." That makes it sound like Pearl Harbor. Yet the early mantra of the war was: "We have to bring them to justice." That makes it sound like the prosecution of Timothy McVeigh.

War and justice are radically different ideas. War is about pursuing and protecting our national interests-in this case, the security of our own territory. We have the right to go to war without having any cause greater than survival. So why do we hear so much talk about justice?

The Pentagon initially labeled the military campaign "Infinite Justice," and from the beginning of the military campaign the focus was on Osama bin Laden as the master criminal, the ringleader of the whole operation. The bombing of Afghanistan-and the relentless search of the caves in Tora Bora-had the style of an episode in the hit television series Law and Order . Are we serious? Is bombing a foreign country merely a case of doing justice by more violent means? If so, it is justice by violent reprisal.

Justice is about giving every person his or her due, about restoring moral order in the universe. Seeking to correct the balance leads to thinking about the interests of victims and the importance of reintegrating them into society. The government must prosecute criminals in order to do justice for the victims. The Latin Americans have bequeathed to the international community the term impunidad (impunity) to capture the particular corruption of governments that fail to prosecute. Abandoned victims, it is argued, suffer twice: first from the crime, and second from the failure of others to express solidarity with them by hunting down the culprits and punishing them.

The search for justice leads to the moral equation of an "eye for an eye"-the biblical principle of comparing the numbers of victims who have suffered with the number of offenders to be punished. If we lost three thousand people in the collapse of the World Trade Center, the theory goes, those responsible for the attacks should also lose three thousand lives.

Justifying war demands less of our moral sensitivities. Abraham Lincoln insisted on war against the eleven rebellious states not because the Union was a righteous cause but simply because it existed . The logic was simple: The Union was and it must be. As president he was committed to preserving the United States as a single nation. This was not a cause of rectitude but of survival. Later in the war, with the Proclamation of January 1, 1863, which liberated the slaves still under the control of the Confederacy, the "great emancipator" began to think of the Civil War as a moral cause. But even emancipation had a military purpose: the slaves so liberated would rise up as a fifth column and fight their former overlords. Other wars of national unity, fought at roughly the same time in Germany and slightly later in Italy, made no claim to being causes of justice at all. These were wars fought to realize the needs of the nation. The yearning of the culture to consolidate under a single government was all that was required to go to war. Lincoln was clear about the difference between a pragmatic war to preserve the Union and a moral war to abolish slavery. Would that we were so clear today.

To make an arrest, the police are not entitled to send in B-52s and target population centers just to eliminate the offender's base of operations. European police will not even enter a foreign country, except in "hot pursuit"-on the trail of a fleeing suspect. The claim that the United States is the sheriff of the world, entitled to use its armies as a means of law enforcement, verges on megalomania.

If this is justice, then we should be focused on the individual culprits. If this is war, then individuals are beside the point. No one cared about the Japanese pilots who returned safely from the attack on Pearl Harbor. They were not criminals but rather agents of an enemy power. They were not personally "guilty" for the attack, nor were their commanders, who acted in the name of the Japanese nation. The same principle arguably applies to the minions of the organized terrorist movement. They follow orders within the chain of command, even though in this case their sponsors and organizers may be as diffuse as the World Wide Web.

The worst part of the conceptual morass attendant on the war in Afghanistan is the accompanying silence on the issues that matter. The bombing was well managed but the arguments of justification are treated at best as disposable rhetoric. Words may not be laser-directed missiles but they have an explosive power of their own. Describing the conflict as war or justice lays a verbal mine that could be a treacherous obstacle in the future.

In Afghanistan the future came fast. A few months after the bombing began, the United States military forces began capturing enemy fighters, whom they shipped back to the Guantánamo Bay base in Cuba. Once again the Bush administration refused to choose between justice and war. Yet at this phase of the war it was not both ; it was neither . Not war, not justice. Had it been war, the military would have been obligated to treat the detainees as prisoners of war and accord them the protections of the Geneva conventions. The camp conditions were probably not substandard, but the military insisted on interrogating the detainees, and this was not likely to be successful with prisoners recognized as POWs. Under international treaty provisions, prisoners of war are required to disclose only their name, rank, and serial number.

If this is not war but the pursuit of justice-a criminal prosecution-the provisions of the Bill of Rights bearing on a fair trial should apply in Guantánamo as they do in the United States; some experts argue to the contrary, but there is little law on the subject. If the Fifth and Sixth Amendments apply to the detainees, then as detainees they are entitled to representation by counsel. Either way, the interrogations would have been practically impossible. Thus the Bush administration began in late September 2001 by being committed to both military principles and the criteria of justice, and by the beginning of 2002, it appeared devoted to neither. (Eventually the government conceded that the Geneva Conventions applied to the Taliban but not to Al Qaeda. Still, it refused to draw the necessary conclusion and treat Taliban fighters as POWs.)

This conceptual confusion creates a dangerous situation, one that will not be resolved without considerable intellectual battle. We need to rethink the basic concepts of our jurisprudence of war and assess which of these concepts can survive and apply in a world beset with nontraditional threats from agents we call "terrorists."

The conflict in Afghanistan was certainly an "international armed conflict." And perhaps that is all that is required to say that it is a war. Some international lawyers object to calling it a war because Al Qaeda is not an organized state recognized by other states. But this form of legal recognition was discarded a long time ago as a requirement of war. The Civil War was a war in the fullest sense even though no one recognized the Confederacy as a state. After the Battle of Bull Run, the Union and Confederate armies exchanged prisoners. Recognition of these reciprocal duties has made war respectable in the history of international armed conflict. War is supposed to be civilized behavior. That is why we have the Hague and the Geneva Conventions laying down the basic rights and duties of all nations at war.

Captured "terrorists" frequently want to be treated as POWs. It is a coveted status. It confers legitimacy and ensures that the detention cannot last longer than the war itself. When hostilities cease they are entitled to go home. Timothy McVeigh wanted to be treated as a POW, but he was not taken seriously. The captured Palestinian fighters in Israel also claim that they are entitled to POW status, but the Israeli government insists on treating them as criminals subject to prosecution for their crimes. At the same time, the Israeli military targets suspected terrorists for assassination, a justified procedure if this is an armed conflict between two combative states. Everyone-governments and rebels alike-wants to have it both ways. It is no wonder that we are in a conceptual morass.

There is much to be said for recognizing the battle against the elusive enemy of terrorists as a "war." For many, this word breeds fear; it sounds too bellicose and dangerous. "Justice" sounds like a more humanitarian objective. But this is an illusion based on a misconception of the nature of war. In an international armed conflict we pursue particular policy objectives that can be achieved only by employing the lamentable means of destruction and death. It is bad enough to think of war as politics by other means. But to think of war as justice by other means runs the risk of imitating the holy mission of the enemy. Suppose the terrorists of September 11 credibly pledged never to attack again. Would we have any justification for harming a single soul? Yes-as punishment in the pursuit of justice. No-as action in pursuit of our military interests. Yes-for the sake of the victims. No-if the objective is safeguarding our security. This shows that the aims of war can be more merciful than the imperatives of seeking moral order.

Those now stuck in the idiom of justice argue that if the United States has killed more civilians in Afghanistan than the civilian losses it suffered on September 11, then the war cannot be justified. This argument is just as misleading as demanding an eye for an eye for every American lost. A war of self-defense does not seek to right the moral equation. It responds rather to fear. It seeks not revenge but safety. The purpose of neutralizing and disabling the enemy is solely to prevent future attacks and to restore the conditions of peacetime commerce.

A whole set of interconnected ideas beg for clarification. We want to know what a terrorist is, what war is, and what kind of groups can enter into war. These elusive concepts will continue to nag at us. I will attempt to make some sense of these ideas and provide some verbal tools for thinking clearly about American policies in the wake of September 11, but I cannot promise too much. We must live with a certain ambiguity.

Continues...

Excerpted from Romantics at War by GEORGE P. FLETCHER Copyright © 2002 by Princeton University Press
Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.