The autumn of our anguish has passed, and we are still confused about how to describe the use of military force in Afghanistan. We are tom between using the language of justice and the language of war. Is this an attack by private individuals, a case of a single terrorist writ large? If the mass killings of September 11 are the crimes of individuals--Islamic fundamentalist versions of Timothy McVeigh--then we can think about arresting them and bringing them to "justice." The mantra of the Bush team, "bringing justice to them and them to justice," has seeped through the media and become part of the standard discourse of people thinking and writing about the War.
Yes, the war. What else should we call the military response to one of the most serious attacks ever executed on the soil of the United States? From its initial pronouncements, the White House has found it easy to invoke the rhetoric of armed aggression and collective self-defense. This has been a war in anyone's book except perhaps in the minds of traditional international lawyers who claim that you cannot fight a war against a nonstate organization. (1)
Justice and war: how well do they sit together? The former is about restoring moral order in the universe. The latter is about securing the survival and achieving the partisan goals of a particular nation. And yet we want to think that this war, in particular, is about pursuing justice. The targets and the arguments, however, are different, depending on whether the agenda is justice or war. If our goal is doing justice, then we should focus on the individual culprits. If the point is to execute and win a war, then the primary concern should be our military objectives. The discourse of war suppresses the identity of particular actors in the aims of a collective military force. We were not concerned about the individual Japanese pilots who returned safely from the attack on Pearl Harbor. They were not criminals but rather agents of an enemy power. They were not personally "guilty" for the attack, nor were their commanders, who acted in the name of the Japanese nation. Yet somehow we think things are different today. Individual soldiers cannot lose their identity in a collective movement. They remain potentially liable to be brought to "justice" for their actions. We should ponder whether this is a coherent and consistent way of thinking about armed conflicts in our time. (2)
The arguments of justice are retrospective. They aim to set the scales aright. If we have lost five thousand people, the principles of retribution, or justice in punishment, require that our attackers should too. The principles of warfare, however, are entirely prospective. The way to see the difference is to suppose that the entire infrastructure of the terrorist movement suddenly surrendered or to imagine that they credibly pledged never to attack again. Would we have any justification for harming a single soul? Yes, in the pursuit of justice. No, in waging war.
In addition to our conceptual dance around the poles of justice and war, other metaphors have entered our conceptual space since September 11. Anne-Marie Slaughter has argued that the proper analogy is between the attackers of September 11 and the pirates of old. (3) I see no appeal to this analogy except that the word "piracy" is mentioned in the Constitution as a fit object of Congressional penal legislation. (4) Pirates rob for loot: they seek lucre on the high seas, where no state can claim territorial jurisdiction. The presumed enemies of September 11 have plenty of cash; they act not for profit, but for the sake of glory and their conception of God. They commit crimes on national territory, where courts should be operating. True, the prosecution of pirates has some resonance in international law. Under the principle of universal jurisdiction, all states, including the United States, can punish piracies committed on the high seas. (5) If the United States acquires custody over bin Laden or his top lieutenants, however, the government would have no problem indicting them for conspiracy to commit murder in the state of New York. We have little need for an analogy to pirates to justify jurisdiction for murder committed on the territory of the prosecuting state.
Equally inapt is the frequent analogy to Al Qaeda as "outlaws." (6) Outlaws inhabit a twilight space outside the legal order, and they are subject to being shot at will. The idea of killing enemy soldiers on the spot is compatible neither with the pursuit of justice nor with the laws of war. The outlaw is subhuman, undeserving of minimally decent treatment. I do not think we really want to make that claim about terrorists. (7) Nor does it make sense to flatter terrorists by associating them with romantic outlaws who retreat from society to live, metaphorically, with Robin Hood in Sherwood Forest. The purpose of thinking legally about the events of September 11 should be to help describe the danger we confront and to provide a justification, so far as possible, for the shared sentiment that the use of force is an acceptable response.
Unfortunately, we are in a state of collective confusion, not knowing whether to favor the ideas of justice or the principles of war, to adopt the analogy to piracy, or to resort to branding the enemy as "outlaws." Our conceptual waffling has become dangerous, for at the same time that we cannot articulate what we are doing, we believe strongly that we must be doing the right thing. The Presidency, the media, and most people one meets, it seems, now participate in the great patriotic fervor that has gripped the United States. I have no objection to patriotism, (8) and I think it is proper to describe our state of military engagement as a war. This description, however, is clearly not shared by those who insist on thinking of the conflict as the pursuit of justice, the searching for pirates, or the liquidation of outlaws. We cannot agree on what we are doing, other than to affirm that it is the right thing to do! With this degree of conceptual fusion, and, one might add, arrogance, we run the risk of committing great moral and legal error.
A sign of error appeared on November 13 when President Bush issued an order establishing military tribunals to prosecute enemy terrorists who come into our custody. (9) Civil libertarians have criticized the order as a deprivation of basic constitutional rights, such as an independent court, a jury trial, an appeal to independent judges, and a right to have full access to the evidence used to support a conviction. (10) The Military Order deprives individuals of all these rights, and the critique of these repressive procedures is clear to anyone trained in the law. (11) The most disturbing fact, however, is that the President and his Cabinet are fully aware that they are cutting back on basic rights of due process, and yet they proceed.
In the move to establish these tribunals, we can understand the peculiar advantage of trying to think of the military operation in Afghanistan as both the pursuit of justice and the execution of war. The military tribunals look like a means to bring culprits to justice. The Military Order purports to guarantee "a full and fair trial" (12) with the right to assistance of counsel. Yet a similar tribunal would be unthinkable as a way of catching and prosecuting a Mafia chieftain or an ideological killer like Timothy McVeigh. What is the difference with regard to international terrorists? One is tempted to say, "It is the war, stupid." Bombing Afghanistan supposedly creates a practical necessity to circumvent the processes of justice that ordinarily apply to crimes committed in the United States. As President Bush was quoted one week after issuing the order, "the option to use a military tribunal in a time of war makes a lot of sense." (13)
Through invoking the language of war, the President has ignored an important principle of the law that has always governed our military conflicts. If the "individuals" detained as combatants engaged in fighting for the enemy, they are entitled to treatment as prisoners of war. (14) They cannot be tried for acts of violence that are normal and standard in fighting wars, and they must be released when hostilities cease. As combatants they may be liable for war crimes but not for violations of the criminal code of the country they have attacked. Yet one can imagine the Administration's response to this critique: "this is not really a war; this is bringing them to justice." This is the great advantage of conceptual confusion. When it suits its purposes, the administration justifies its actions as the pursuit of justice; if the justice argument fails, the move is to think in the language of war and collective self-defense.
We see both of these arguments interwoven in the "findings" that provide the basis for the Military Order. On the one hand, there is an emphasis on the "individuals acting alone and in concert" who "have carried out attacks on the United States," diplomatic and military personnel and facilities abroad and on citizens and property at home. (15) The purpose of the order, however, is not to punish these perpetrators of the past, but rather to "protect the United States and its citizens." (16)
The constitutionality of the proposed tribunals is far more complicated than meets the eye. To analyze the issues properly, we should take a closer look at the Military Order in light of two cases in which the Supreme Court upheld military tribunals, namely, Ex parte Quirin, (17) which upheld the tribunal based on the Executive...