an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In a recent e-mail Gary Haubold, responding to my post on the coming war with Iraq, takes issue with my reasons for caution:
Here’s what I said:
The major problem, as I see it, is that we really don’t know how long the war will last, how many people will be killed and dislocated, how many refugees we will create, how many lives we will shorten through sickness and famine, whether we will destabilize other regimes in the Middle East, and whether America’s enemies will use our preoccupation to gain advantages elsewhere in the world (think about North Korea, for example).
Here’s Gary’s concern:
Thinking back over every war the United States has fought over the past 200+ years, I can't identify one war that would have been supportable under your framework. Did you really mean to write that the U.S. shouldn't fight any war, because the consequences are so extreme and unknowable?
Gary reads me as saying we should never go to war in conditions of uncertainty. Of course, that’s not my position. One always goes to war in conditions of uncertainty. But before going to war, you must ask: How many casualties are likely to your people and to the other side, and what collateral consequences will occur? How will this affect your strategic situation, five, ten, twenty years from now? While the war with one enemy is going on, what will your other enemies do in response while you are preoccupied? If you do manage to win, how long will you have to occupy your former enemy’s country? How much will the occupation cost? What new wars and conflicts will your occupation provoke? If you don’t ask these sorts of questions, you are just being foolish. This is exactly what the great military strategist Sun Tzu said two thousand years ago. He who reduces uncertainty before going into battle wins, he who embraces uncertaintly loses. That is what I meant by my previous post. The problem is that right now we are not reducing uncertainty. We are embracing it.
There is some evidence that the war with Iraq will not be as painless or quick as the President hopes, but put that aside. Even if the war is painless and quick, as I hope it will be, there is good reason to think that the occupation following the war will be particularly difficult and complicated. Jim Fallows has offered a good summary of the problems, and I recommend it to Gary and to anyone else who is interested. I don’t think one can make a decision about going to war without taking these issues into account. I fear that the Bush Administration is not being sufficiently realistic about these issues. I think there is a lot of wishful thinking going on about about American invulnerability, and about America's ability to remake Iraq any way it wants.
At one point Fallows interviews Merrill McPeak, a retired Air Force General who is dubious about a preemptive strike:
There is an even larger realm of imagination [necessary to understanding the costs of war], McPeak suggested to me. It involves the chain of events a war can set off. Wars change history in ways no one can foresee. The Egyptians who planned to attack Israel in 1967 could not imagine how profoundly what became the Six Day War would change the map and politics of the Middle East. After its lightning victory Israel seized neighboring territory, especially on the West Bank of the Jordan River, that is still at the heart of disputes with the Palestinians. Fifty years before, no one who had accurately foreseen what World War I would bring could have rationally decided to let combat begin. The war meant the collapse of three empires, the Ottoman, the Austro-Hungarian, and the Russian; the cresting of another, the British; the eventual rise of Hitler in Germany and Mussolini in Italy; and the drawing of strange new borders from the eastern Mediterranean to the Persian Gulf, which now define the battlegrounds of the Middle East. Probably not even the United States would have found the war an attractive bargain, even though the U.S. rise to dominance began with the wounds Britain suffered in those years.
What General McPeak is talking about here is exactly what I had in mind when I spoke about the uncertainties of war, and the unintended consequences that war can bring. To my mind, those uncertainties should not be taken as lightly as Gary seems to do. Good generals and good political leaders never take them lightly.
And there is another issue that goes beyond mere strategy. It is the question of how much new evil we will unleash on the world through our use of force. We often talk as if once we know that our cause is a just one, the deaths, the sickness, the famine, the refugees, the dislocations caused by war don’t really count or aren’t our concern. I think that is wrong. Whenever we exercise our power we affect others, and we are morally responsible for what we do. The more evil we cause in the world through our military action, the greater must be the showing that it is counterbalanced by the good we will accomplish. If we do not take this into account when we go to war, we are not living up to our own ideals. The deaths of Iraqis are the deaths of fellow human beings. The refugees we will create are fellow human beings. The children who will die of malnutrition and disease both during and after the war are fellow human beings. That is why Sun Tzu said that the best general is one that never has to fight. He recognized that when you go to war, you destroy-- often in unpredictable ways that can quickly spin out of control. And such destruction is to be avoided unless there is no other way. War is a necessary evil. When it is necessary it must be pursued vigorously, without apology; but when a necessary evil is not necessary it is just plain evil.
Most Americans I listen to today who talk about the war with Iraq do not seem to worry much about the evils that others will suffer. They worry only about American casualties. I think this is short-sighted. The evil we do today, even for the best of reasons, will live on, spreading its effects throughout the globe, and coming back to haunt us in unexpected ways. War is the most serious business of the state, posing the ultimate question of life or death. It should not be treated carelessly or cavalierly. I fear that is precisely what we are about to do.