May 21, 2006

Bobbitt in the Speccie

Via a Matthew d'Ancona cover piece in the current Spectator (registration required), a very interesting interview of Philip Bobbitt (PDF), a professor at the University of Texas Law School.

Excerpts:

Matthew d’Ancona: And on that note, one of the things that struck me, thinking about your attempt to marry the concept of the market state with the new context is that - I mean, I’m probably one of the last five people in Britain who thinks the Iraq war is a good idea, but to use your analysis, it was not a good outing for this germinating idea of the market state for several reasons. For instance, it encouraged the idea that the market state pedals false information, in the manner of a company to clients. That the Halliburton connection encouraged the notion that there were market elements is rather bigger then the accountable democratic state dimension. The horrors of Abu Ghraib, in which there were these mysterious private contractors engaged in acts of torture, again encouraged the idea that the state is simply contracting out acts that it would normally not have been willing to do in order to avoid accountability. So I wondered if you might say something about how you see the aftermath of Iraq, with reference to your analysis?

Philip Bobbitt: You also might have mentioned extraordinary renditions as another example of outsourcing by the states. You’ve put it perfectly. The crucial part of a diplomatic and military campaign for a market state is to unify strategy and law. The nation state separated them. It professionalised both. The military people are often heard to say you wouldn’t want a politician to do brain surgery, Mr President; you don’t want a civilian to do warfare either. Leave it to the pros, we’ll do it, you give us the goal, we’ll achieve it if we can. This kind of separation was characteristic in many, many areas of professionalisation in the 20th century. In the 21st century just the opposite is going to happen, because you’re trying to protect civilians, rather then kill enemy soldiers, as your first objective. You must bring the law into the closest possible coordination with strategy, and what this administration has done, and I support the war in Iraq, what they have done is heartbreaking, because they have steadily removed the greatest source of their power, which was the rule of the law. You may think of Abu Ghraib as a battle and we lost. Guantanamo is a battle that we have lost. It will cost us lives, it will cost us political influence, and above all it may cost us, our strategic objectives. Not simply by ignoring it but by having a studied contempt of the law, and not just international law, which needs desperately to be reformed, but for even our domestic laws. The administration has kicked away what should have been its strongest prop. It baffles me. And it angers me.

It angers me too. And a lot.

More.

Question: There are two questions prompted by the changing use of the term terrorism. If you look back before the second world war every organisation one thinks of as being terrorists, whether it would be the French Revolution of the 19th century or Russia in the 1930s, were actioned by the state against their own citizens, whereas what we now call terrorism is more action by citizens or groups of citizens against states, which may not be their own states. The first question is given the range of examples in your answer just now, how useful is it, do you think, to use the term terror or terrorism in terms of formulating a policy response, or are there two many different kinds of terrorism to make it a useful term? The second question is, again if you consider these two different historical types of terrorism, it is taking as a crude measure of the number of people whose lives have been terminated, that it’s hard to say that terrorism in its modern sense has actually killed more people or terminated more lives early then the actions of states against people, and therefore are we not perhaps in danger of exaggerating the terrorist problem and not placing enough emphasis on the need to control the international community, legal state action against people?

Philip Bobbit: Let me just answer the two parts to that. I don’t really see terrorism I think quite the way you do, and I find the use of the term terrorist rather useful because I see it in the context of the state as I just mentioned before. So when I think about 19th century terrorism I do think about the French revolution of course, but mainly about the anarchist movement, a movement that was not defeated, it simply passed away when the kind of states passed away; the Imperial states passed away, they took their terrorism with them. So I do find it a useful term. But I take your point that if you want to talk about terror then you only move into the big leagues when you get states, whether it’s China, Soviet Union, Nazi Germany.

I also may depart from you about the kind of threat that this poses. Despite a campaign against Americans including 9/11 but really going back some time before that, of terror against American civilians, travellers, diplomats, more people have died since oh say mid-seventies, by falls in bath-tubs in America then have been killed by terrorists. I think it would be neurotic to define public policy, much less strategy in general by forgetting about states and focussing on Al Qaeda. But Al Qaeda is not I think the mature threat that I worry about. It may sound absurd to say this but I think these are our salad days. I think we will think of Al Qaeda as a sort of market innovator, if you will, but not as a terrible threat … or I sincerely hope that’s the case. It’s only when you see the intersection of weapons of mass destruction and a network, global outsourcing group that can exploit those that you really get into some very deep water. And then you are talking about real casualties of the kind that only states could produce in the past. In the book The Shield of Achilles, which Matthew d’Ancona was so generous about, I begin with a passage that says something like, for five centuries it has taken a state to destroy another state. Only states could keep armies in the field for decades, master complex logistics, levy the tremendous taxation necessary to wage war. In fact the State was created as a way of defending societies from warfare. And I believe soon this will change. I can’t say this will happen next week or next year and I hope for everyone here that it’s not even in this decade or the next couple of decades, I hope and I pray that’s true. But I’m not prepared to say that the revolution in information has brought us so many things, that also brings us plasma for DNA starter kits, growth media, the blue-prints for polio and smallpox that are now on the web, that these things will require states to exploit them. I’m afraid I don’t believe that.

Matthew d’Ancona: Can I just interrupt you there? I mean, the bathtub contention, because if you look at July 7th I mean only about I think 52 people actually died but the event sprayed psychological shrapnel across this country and it generated a debate, a very angry, neurotic debate about civil liberties, about detention and about the correct and appropriate proportional response by the state to this single event. So is it right to say that in fact the real problem is high technology WMD converging with terrorism if in fact we’re talking about organisation that for all their primitivism have a profound understanding of how to destabilise political systems they attack.

Philip Bobbitt: That may be giving them a bit too much credit. I would say instead that our systems are very unstable themselves. I analogise this to a guy playing roulette, and he puts his chips on number 18 and he wins. He lets his winning ride. Number 18 hits again, he lets his bet ride again. Eventually he builds these towers of chips that are very, very fragile but he’s wealthier then ever. You can’t tell him to move off number 18; it’s paying out like a machine. The ripple effect you saw throughout the society was a consequence, I think, of media coverage, of the vulnerability of our transportation system. It’s not an act of genius on the part of the terrorist that’s responsible for this. Secondly I think when you go to weapons of mass destruction you’re talking about just a completely different level of horror and disruption. And I think that these debates now, although I’m perplexed sometimes by the course they take, are really very, very important. We must come, as societies, to some understanding of what we’re facing, and in these times of tranquillity organise ourselves and debate about what we will do if a catastrophe should come to pass. We should stockpile laws for such an eventuality, just as we stockpile vaccines. Then I think we have an excellent chance of getting through these attacks with systems of consent in place. But if we don’t do that, if we say oh, get real, this isn’t another second world war, surely you’re exaggerating the threat, this couldn’t possibly threaten our society now! It hasn’t yet! And if you don’t use the democratic process to put laws in place now, then in a way you become the ally of the terrorists because when a truly terrible series of mass atrocities really does occur and you don’t have anything to fall back on, that’s when you get martial law, that’s when you get the system that’s in democratic collapse, and you become the source of terror yourself. No, Bin Ladin isn’t going to invade and occupy Westminster and put Mullah Omar in the House of Lords, he’s not going to take over. If Britain becomes a state of terror it will be because we did it to ourselves and we did it because we did not prepare when we had the time and the peace to do so by law and by consensual systems.The United States can do the same thing. If we are busy throwing away laws, the one steady craft we have to get through this, Washington will turn us into a state of terror, we’ll do it. We’ll embrace it enthusiastically. [my emphasis throughout]

I like Bobbit's analogy of stockpiling laws like we stockpile vaccines. I think a terror attack on the American homeland that dwarfed 9/11 (say 100,000 dead in a major city via a biological or crude nuclear device) would imperil American democracy like nothing that has occured before in our history. We should be thinking about preserving our bedrock values and the most cherished aspects of our rule of law in the face of such bleak scenarios. Such eventualities may seem very far-fetched, now almost half a decade since 9/11 with no terror attack having taken place in the United States (save a disgruntled jihadi manque plowing his jeep about some Carolinean campus), but this doesn't mean we're out of the woods, not by a long shot.

The major controversies raging over NSA wiretaps point to the difficulties we are already having--together as a society that ideally moves forth on a consensual basis-- balancing intelligence gathering efforts with civil liberties. Statute interpretation exercises aside, and there are relatively cogent arguments on both sides of the NSA wars, what's clear is that the President should not be secretly reaching judgments regarding the constitutionality or unconstitutionality of various statutes and related legal requirements. Without ever fully revealing the details of our tactics to our enemies, we must nonetheless better ensure society is consenting to the broad direction the goverment is taking--as a basically united polity (to the maximum extent possible)--in balancing national security imperatives with our basic liberties. Piecemeal revelations about NSA activity in the pages of the NYT and USA Today are not the way to forge a societal compact on such matters, and I shudder to think how the world would change after a mega-attack that made 9/11 look relatively small fry, vis-a-vis an unchecked Executive Branch forging ahead brutishly amidst the resulting chaos (we have already seen after 9/11 how supine the Legislative Branch, including the opposition party, can be in the face of major dislocations and national traumas).

Stockpiling laws in the event of a major WMD attack on the continental U.S. might seem over the top. But having a respected bipartisan group of experts begin to ponder these issues more systematically might quite advisable indeed. The future of our democratic system itself could well be at stake. Hyperbole? Perhaps. But we live in interesting times, as the saying goes, and really anything can happen. Let's at least put such risks in the known unknown category, and try to think about them in greater detail, if god forbid, such horrific events come to pass.

During WWII German POW's were welcomed at restaurants en route to the POW camps, while their black GI guards had to eat in the parking lot or kitchen. This insult to our professed war aims were covered by the media at the time, but with a sense of proportion that has been completely lacking in our MSM. I do not deny that the next President will have to issue a public apology for this administration's ethical blind spots, but I wish we would keep some sense of context when we discuss these issues.

Posted by: wks at May 21, 2006 01:03 PM | Permalink to this comment

continued [hit enter accidently]

The idea that the loyal opposition in the press or Democrat party would allow a "stockpiling of laws' and not try to argue that our entire War on Terror is just a figment of Cheney and Halliburton's imagination is just wishful thinking.

Posted by: wks at May 21, 2006 01:17 PM | Permalink to this comment

I like the idea in general. But how would it go in detail?

Suppose that we had laws "stockpiled" in preparation for Katrina. What would they have been like? What special laws would we need for a nuclear disaster on that scale?

When I think about it we could use some laws to protect survivors and internal refugees. We don't need "outsourced" paramilitary groups driving around shooting whoever they want. Etc.

OK, yes. We need laws set up ahead of time.

Posted by: J Thomas at May 21, 2006 02:56 PM | Permalink to this comment

If Britain becomes a state of terror it will be because we did it to ourselves and we did it because we did not prepare when we had the time and the peace to do so by law and by consensual systems

I wish, just for once, that an Iraq war supporter would note that all of these issues that he or she is just now coming to see have been mooted by anti-Iraq war folks for weeks, months, and years. No small part of the opposition to the Bush Administration has to do with what it has done to American notions of civil liberties with the freedom of action Americans gave it after 9/11. There are anti-Iraq war libertarians (I'm not one) who've been making these points forever.

Posted by: SomeCallMeTim at May 21, 2006 04:09 PM | Permalink to this comment

Here is a hint to what baffles you: the goals of the Bush Administration are twain. First, re-election. Second, concentration of power in the hands of the Unitary Executive (aka Elected Tyrant). What is Gitmo except the Josée Padilla case in replicate? We have elected a leader whose 'gut" is to substitute for centuries of Anglo-American legal tradition. Bad move, but at least by 2004 you can't say we weren't warned.

Posted by: Andrew J. Lazarus at May 21, 2006 11:16 PM | Permalink to this comment

wks,

Off topic, but I noticed you used the term Democrat Party. Was that an intentional slight or just a writing mistake?

Posted by: EPMason at May 22, 2006 03:06 AM | Permalink to this comment

Call Me,

If people actually cared about civil liberties the drug war has been 100X worse than the post 9/11 stuff.

No knock warrants executed at 3AM by masked men using flash bang grenades and battering rams?

What is that I hear?

Crickets?

Well never mind. Sorry to have bothered you.

Posted by: M. Simon at May 22, 2006 12:36 PM | Permalink to this comment

M Simon, you have a point. I think 100X worse is far overstating it, but the drug war has been exceptionally bad for civil liberties.

Still, if a victim happens to survive the no knock raid, he still gets Miranda rights and a trial and all. This 9/11 stuff doesn't even give him that, except for a few show cases.

Clearly what we need to do is restore civil liberties, regardless which "war" we lost them in.

Posted by: J Thomas at May 22, 2006 01:32 PM | Permalink to this comment

Democrat Party is a mild pejoritive - I retract it, but admit it was intentional.

Posted by: wks at May 22, 2006 08:26 PM | Permalink to this comment