Monday, July 11, 2005

Anthony Dworkin of Crimes of War Website responds to my earlier post on war or law enforcement

(Sorry about the duplicated photos! I was trying to get a smaller size - I'll work on deleting the big one.)

Anthony Dworkin, a good friend and the superb editor of the Crimes of War website, has posted a comment to the previous post on whether the response to terror should properly be conceptualized as war or as law enforcement. It's an outstanding, thoughtful comment, which I am reposting as a separate post here (I will respond to Anthony and add some additional material here, and if you haven't visited Crimes of War, you should):

I read this post with interest since I'm writing on this subject myself just now for the Crimes of War website (

I agree entirely that the threat to the US from al-Qaeda as displayed on 9/11 was too great to be met with the conventional tools of law enforcement alone. But equally I can't accept the idea that there could in any meaningful (i.e. non-rhetorical) sense be a "war" between the US and al-Qaeda since war has always been understood as a formal relationship between two equal parties with corresponding rights and responsibilities.Is there a middle way between these two extremes? It might help a little to break down the claims that proponents of the "war" view use to back their case.

Here there is a curious aspect of Ken Anderson's argument: all the strategic advantages he ascribes to the war view have been endorsed and vigorously pursued by the British government which has at the same time resolutely refused every opportunity to say it is at war with al-Qaeda (let alone terrorism more broadly).

1) A forward strategy: the UK government has passed legislation to put control orders on suspected terrorists without accusing them of any crime. To do this it derogated from Article 5 of the European Convention on Human Rights on the grounds that the UK faced a "public emergency" from terrorism.

2) An anticipatory strategy: no one has been more consistent that Tony Blair in talking of the importance of preventing weapons of mass destruction falling into terrorist hands, and of course he backed the war against Iraq for precisely this reason.

3) The denial of safe haven to terrorists -- well, Britain was a full backer and supporter of the attack on Afganistan -- again for precisely this reason.All these strategic tools are not at all dependent on any notion that there is a "war" with terrorists -- only that the nature of the terrorist threat is "real and existential" (Blair's words).

There is another argument for the importance of the war paradigm that is sometimes made: that it allows you to treat someone as an enemy simply because of his affiliation with an enemy group, not based on any individual guilt. This is of course meaningful in a conventional war with a regular army but is close to meaningless in the case of global terrorism -- as Judge Green's example of the little old lady in DC District Court showed. A membership criterion that is precise enough to avoid such obviously unacceptable outcomes would probably collapse down to the kind of evidence that could be needed to obtain control orders or similar measures on an individual basis.

Against this, what are the dangers of the war paradigm? Principally, as implied above, that it supposes a situation where the enemy threat is clearly bounded in time and represented by a clearly defined group of people. The dangers of allowing the government to detain indefinitely (or in theory shoot to kill) individuals who in most cases dispute the grounds on which they're being held is simply not acceptable in a society that regards itself as ruled by law.

Finally, I'm not sure I see the force of Ken's argument about terrorists challenging the legitimacy of the society. After all the same would be true of an anarchist political agitator. The argument must also assume that they are in a position to threaten the security of the society whose legitimacy they reject. It is true and important I think that al-Qaeda marks the emergence of terrorism that can pose a threat to national security in line with the threat posed by other states in war. That is why I agree that states harbouring the terrorists or supplying them would be legitimate targets for wars of self-defence. But I can't see why the threat can't be adequately handled by a combination of contained wars against countries that support terrorism and (where absolutely necessary) public emergency measures at home that are nevertheless still in line with the domestic rule of law.

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