What Makes a War?

David Luban

Today’s New York Times provides this analysis of a curious semantic question: whether the catastrophic violence ruining Iraq is or is not a "civil war." It turns out (unsurprisingly) that politics, not lexicography, drives the debate. The U.S. government refuses to call the bombings and killings in Iraq a "civil war" because that would imply American failure in the invasion’s aftermath. Instead, it is "ethnic violence" or an "insurgency," which to my ears connotes a relatively small-scale uprising against a legitimate government.

Curiously, a parallel debate exists over whether the U.S. conflict with Al Qaeda is or is not a "war." The conflict against Al Qaeda is of course far smaller than the violence in Iraq – not only in absolute numbers of casualties, but also in the density of casualties, that is, casualties per unit of time. But here the government’s position practically from 9/11 on has been that it is a genuine war. This, despite the fact that most of the time, in most of the world, it is indistinguishable from peace. So Iraq is an insurgency or ethnic violence, not a war; but the struggle against Al Qaeda is a war.

Here too, the motive is political, in two different ways. First, most obviously, it allowed President Bush to wrap himself in the mantle of "war president," a resolute, noble figure around whom Americans should rally. As "war president," Bush pretty much had his way in elections until November 2006.

But calling the conflict with Al Qaeda a "war" served a deeper political purpose as well. If it is a war, then the President’s "war powers" kick in. Bush, Cheney, and advisors such as David Addington and John Yoo had been searching for ways to expand executive power, and this was the golden opportunity. Their constitutional theory is this: the President is commander-in-chief of the armed forces, and as such he has wide, virtually plenary, powers over the battlefield – the power to order troops to kill the enemy, the power to detain enemy captives until the battle is over, the power to seek intelligence through fair means or foul. On the battlefield, commanders-in-chief are near dictators. They are like Patton at the Battle of the Bulge. And, in the Global War on Terror, the whole world is the battlefield.

Better yet for the executive power freaks, only the President is the commander-in-chief, so the separation of powers suggests that any efforts to limit what the President does in pursuit of his war on terror would be unconstitutional. The idea that Congress could stop the President from, say, warrantless wiretapping within the U.S. (the "battlefield"), or pass a law forbidding the President to interrogate prisoners through torture, would be – on this topsy-turvy logic – "unprecedented" interference by civilians with a battlefield commander. Not only unprecedented, of course – it would also be insanely unwise. You don’t let a bunch of congressmen and judges second-guess Patton’s tank tactics. In reality, of course, there is nothing "unprecedented" about asserting that the President is not above the law; it's the opposite assertion that is startling and scary.

The Bush constitutional theory of the "commander-in-chief override," according to which the commander-in-chief power trumps acts of Congress, appeared most famously in the August 1, 2002 "torture" memo, later withdrawn. There, the idea was that it would be unconstitutional interference for Congress to enforce criminal laws prohibiting torture, if the torturing was done by the President’s agents (pp. 33-39). Public outrage against this theory was one reason the Justice Department withdrew the torture memo.

But the commander-in-chief override also appears in an Office of Legal Counsel opinion (written by John Yoo) of September 25, 2001 – and that memo has never been withdrawn. Until we learn otherwise, it is still the way the executive branch understands its constitutional prerogatives. At every moment, therefore, we live under battlefield rules – virtual military dictatorship – if the President says we do.

Does that mean that it was a disastrous mistake to label the conflict with Al Qaeda a "war"? Many people, including friends in the human rights community, think the answer is yes. They reject the "war" label, insisting instead that peacetime rules of due process apply, and are sufficient for national security.

I don’t see matters that way. The U.S. government correctly interpreted 9/11 as an act of war, and retrospectively observed that Al Qaeda’s earlier attacks on the U.S.S. Cole and the U.S. embassies in Tanzania and Kenya were also acts of war. That is because they formed a pattern, indicating a plan and a campaign. I think this is right. While it may sound peculiar to say that a nation could be at war for several years without knowing it, there is nothing odd about noticing a pattern among attacks where at first there seemed to be no pattern. Most importantly, what makes these patterns of attack a "war" was the political reason they took place. They were launched by an enemy that had a political aim (restoring the Arab world to the greatness of a unified caliphate), a grand strategy (inciting popular uprisings against despotic Arab regimes), and a set of tactics (high-visibility terrorist attacks against Western targets, selected on political grounds). If war is politics by other means, this is war. (However, the Al Qaeda grand strategy has been a dismal failure. No popular uprisings occurred in the Arab world after 9/11, and the only despot who has fallen is Saddam Hussein, thanks to the U.S. rather than to Al Qaeda. Through the ironies of the Law of Unintended Consequences, Al Qaeda’s long-term plan of a restored Sunni caliphate has instead led, via the U.S. Iraq misadventure, to a resurgence of Shi’ite power from Iran westward through Iraq and Syria all the way to Lebanon.)

The real fallacy does not lie in labeling the struggle with Al Qaeda a "war," but in the false constitutional theory that gives the President a vast set of "war powers" to be used everywhere he discerns a "battlefield," which of course can be anywhere on Earth. Nothing in the Constitution suggests anything of the sort, and it is hard to see why a democratic constitution ought to do so. Perhaps, in a moment of supreme emergency, the President would be compelled to declare martial law. Bush’s constitutional theory turns a hypothetical "state of exception" into a long-term state of siege, the basic tactic of tyrants for the past two centuries, as Giorgio Agamben notes in his remarkable book State of Exception. Under the Bush theory, moreover, the President can have his martial law without ever declaring it publicly. That is the significance of the Administration’s secret illegal wiretapping. In their view, it was not illegal: it was part and parcel of the President’s war powers. But the public need not and should not know that the President was exercising those powers, because that might lead to political blowback that would interfere with his war plan. In other words, the fact that our phone conversations fall under a kind of martial law was a state secret.

Outrageously, we have seen U.S. courts extend the "state secret" logic to amazing extremes. Lawsuits by Maher Arar (414 F.Supp.2d 250 (E.D.N.Y. 2006)) and Khalid el-Masri (437 F.Supp.2d 530 (E.D.Va. 2006)) seeking justice for their kidnappings and renditions by U.S. agents were tossed out of federal court on the ground that revealing secret U.S. misconduct could harm national security. That is the same argument the government has now offered to deny Majid Khan (detained in Guantanamo) access to lawyers: he might tell them how he was tortured, and that is a state secret of utmost gravity. (See the posts by Jack and Marty.)

In the end, what's wrong with calling the struggle against Al Qaeda a "war" is not that the war label is inaccurate. Rather, it's that the administration uses that label to justify an outrageous presidential power-grab, which apparently includes the power to conceal just how much power the President has grabbed. Oddly, it appears that not calling the Iraq debacle a "civil war" serves the same purpose: concealment for political reasons. Language becomes a tool to obfuscate, not to communicate. War is peace.
Posted 12:02 PM by David Luban [link]