When it comes to the war of words, President George W. Bush is all over the place. In one moment, hes declaring war. In another, hes fighting terrorism. At other times, hes pursuing criminals. Sometimes, hes leading a crusade against evil. These interpretations of the cause are hardly synonymous. Fighting a war against Osama bin Laden means something very different from pursuing him as a criminal suspect.
Part of this kitchen-sink rhetoric is pure Bush, the opportunistic, folksy ad libs of a patrician Texan who never thought to give much thought about the wide world. But for all his lack of introspection, Bush and his meandering metaphors are fundamentally all-American. He follows a long line of American leaders as he moves back and forth between the concepts of war and crime, internationalism and sovereignty, to justify the policy of the moment. Which for Bush and, apparently, much of the rest of America, is a journey toward force, toward reprisal, toward some measure of bloodshed against what Bush has characterized as forces of evil.
Demonizing the opposition is, of course, a familiar refrain in American history, one that in the best sense rallies the troops and the public, as it did in the war against Nazi Germany. In a democracy, a leader must inevitably make the case for war. But that prerequisite and a mindset that inherently presumes the moral superiority of American interests has often provoked overreaction and counterproductive policies. Its even resulted in outright injustice, in the treatment of American Indians, for example. And it could do so again in Afghanistan, or Iraq, or wherever President Bush intends to extend this war beyond the purpose of capturing those responsible for the September 11 attacks.
As for the attacks themselves, whoever was involved is an international criminal, as enumerated by treaties that ban hijacking, the taking of hostages and other specified terrorist acts. But defining the guilt of the Taliban and justifying the bloody obliteration of that regime is dicier fare. The fledgling field of international law offers no particular support for it.
But dont expect that to stop George W. Bush, who honors a tradition centuries older than international law, the one that makes powerful nations a law unto themselves. The U.S. practice of this realpolitik is especially striking, because it goes hand in hand with the express patriotic faith that we are preserving and extending freedom, prosperity and democracy, when we are often doing nothing of the kind.
Bin Laden and the oppressive Taliban turn out to be the perfect foils for warmongering, but they are only the latest fatal attractions. Historian Peter Maguire, in Law and War: An American Story, recounts how the Plains Indians, in the 1860s, conducted a brand of warfare that was the equivalent of terrorism to frontier settlers. The aftermath offers a disturbing parallel to the events of today. In the settlers world-view, differences between them and the primitives should have been solved peacefully and, it should be added, according to the settlers terms. When fighting did erupt, it was supposed to happen offstage, between the primitives and the cavalry.
But the Indians would attack civilian towns directly -- burning dwellings, seizing hostages, and committing rapes and mutilations that were wartime atrocities by any measure. Part of this battle style was born of a different military tradition -- one that permitted such acts; part was born of desperation. For the Indian tribes, the conflict was total war from the start, against an overwhelming adversary that broke treaties before the ink was dry, claimed their territory and destroyed their civilization.
And how did the U.S. respond?
When American settlers and soldiers squared off against foes they deemed a savage or barbarian, they often fought with the same lack of restraint as their adversaries, noted Maguire in a recent interview. What also became clear, long before the United States even gained independence, was that the others, in this case the slave population and North Americas native inhabitants, would pay the greatest price for American freedom.
Union soldiers were battling Santee Indians in Minnesota at the same time as the North was fighting the South. During the American Civil War, the two sides -- especially the North -- followed certain civilized norms, such as the humane treatment of prisoners. Nonetheless, Union forces felt empowered to search and destroy frontier Indians, including women and children. American forces were equally brutal in quelling an 1898 revolt against the U.S. colonization of the Philippines.
European powers, too, followed one formula for resolving disputes involving each other, and another model when facing an opponent regarded as ethnically, religiously or culturally inferior, such as insurgents in an African colony, for example, as chronicled by Sven Lindqvist in A History of Bombing.
In World War II, both Germany and Japan broke with that tradition and the Allies were quick to adopt similar battlefield strategies, killing as many as 100,000 Tokyo civilians, for example, in a single night of bombing in March 1945.
International law on the conduct of war has been laid out through the Geneva Conventions and the United Nations -- and by the exigencies of superpower competition. Modern treaties plead for the humane treatment of prisoners and the sparing of civilians, but even these underpinnings are trumped by the notion of preserving the status quo in the name of mutually beneficial stability. International norms for conducting battle, however high-minded the intentions, have typically served nation-states that do not wish to have their sovereignty challenged by revolutionaries or by each other.
International law actually forbids bin Laden from taking up arms in the first place. Terrorists are considered to be noncombatants, meaning they have no right to wage war, said Julie Mertus, a professor in the School of International Service at American University in Washington, D.C. Thumbing through the operational handbook of the U.S. Army, Mertus noted that Terrorists blow it in all directions. Terrorists dont wear insignia. They dont carry arms openly. They are not commanded by a person responsible for group actions. They dont conduct operations in accordance with the laws of war. The handbook states that only combatants can legitimately attack military targets.
Of course, by that rubric, the first colonists to take up arms in the American Revolution were noncombatants. If terrorist had been part of the vocabulary, British authorities would no doubt have applied the term to the armed colonists. Successful revolutionaries become Founding Fathers; unsuccessful ones are hanged for treason.
None of which makes bin Laden our sort of patriot. His violent, intolerant and undemocratically fundamentalist view of civil society is nothing that we can or ought to endorse. But then, an Islamic Gandhi would be hard-pressed to achieve justice in Saudi Arabia, and would find U.S. might lined up against him. This utter inaccessibility to justice in large parts of the world is a powerful force that pushes adherents to join with bin Laden and other extremists.
Given his track record, bin Laden is the ideal evil other upon whom the United States can pour its wrath. The Taliban also have played this part to perfection. Taking up arms against them, however, raises profound issues for experts in the developing field of international law.
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Usually its really hard to make a state responsible for a non-state action unless there is some kind of authorization of this action, noted Professor Mertus, who is also a senior fellow at the U.S. Institute of Peace, a nonpartisan, federally funded organization. In her judgment, a regime couldnt be unseated, under accepted international norms, simply for failing to rein in bin Laden. If Afghanistan were just harboring bin Laden and doing nothing else, the appropriate countermeasure could be sanctions, but not bombing.
Constitutional-law expert David Wagner is more hawkish, but also concedes the conundrum. If this is a crime and only a crime, you have to essentially put away the military plans and roll out the indictments and the judicial proceedings, said Wagner, an associate professor at Regent University in Virginia.
Does the U.S. invade, bomb or overthrow a regime, however reprehensible, because it refuses to extradite a criminal suspect? Overreaction could claim innocent lives and also undermine our long-term efforts to thin the ranks of terrorists by contributing to the belief, in many parts of the world, that the U.S. is concerned only with its geopolitical and economic self-interest, a preoccupation that tolerates and even supports oppression abroad. The 1953, CIA-backed overthrow of a democratic government in Iran, which led to more than two decades of oppression by the shah, is not ancient history to Muslims. Nor should it be to us, given that the 1979 Iranian revolution contributed to the rise of the Islamic fundamentalists who last month crashed airplanes into our skyscrapers.
If the past is prologue, the Bush administration is not likely to give sufficient thought to such precedents. Afghanistan would probably have been bombed already if it had much to bomb. And if the U.S. sees deposing the Taliban as in its own interests, expect the invasion to begin in short order.