Date: Wed, 26 Sep 2001 13:28:22 -0400
To: Matthew Gaylor <freematt@coil.com>
From: Matthew Gaylor <freematt@coil.com>
Subject: Law and War by Jonathan Wallace
Content-Type: text/plain; charset="us-ascii" ; format="flowed"

From: jw@bway.net
To: freematt@coil.com
Subject: Year zero: War and law
Date: Wed, 26 Sep 2001 03:04:57 GMT

Year Zero


Law and War
by Jonathan Wallace jw@bway.net

September 24, 2001

Year Zero is an episodic series of essays on ethical and practical 
implications of the present crisis. Subscribe here: 
http://www.greenspun.com/spam/home.tcl?domain=ethspec

The Year Zero page is at http://www.spectacle.org/yearzero/

Since Tuesday morning September 11, a certain number of people I 
respect have issued calls to treat the killing of 6,000 people in a 
few hours that morning as a crime justiciable under law, rather than 
an act addressable by war. I think this view is based on a very 
substantial misapprehension.

Our system of law is based, as is everyone's, on a couple of linked 
assumptions that we don't have occasion to examine very often. First, 
law for its full-fledged functioning--as a system, rather than merely 
an aspiration--requires some prior stability. Second, that stability 
is acquired in part by a judicious application of force, according to 
the "rules of law", and therefore with certain checks and balances 
applied.

In order to prosecute the people who bombed the World Trade Center in 
1993, we had to lay hands on them first. That is the role of force in 
connection with the rule of law. We arrested and tried a handful of 
co-conspirators who had carried out the assault, but we were never 
able to try the people behind them, who were inaccessible to the 
F.B.I. and the New York City police.

Law without force is a sham. Like World Court decisions, which are 
not binding on any country that chooses to disregard them, court 
rulings against Osama bin Laden or others responsible for the mass 
murders on Tuesday morning will have no effect if we are not in 
physical possession of the perpetrators.

How do you propose to get hold of them, so that legal sanctions can 
be effective? Most of the advocates of law over war simply choose not 
to answer the question. Professor Francis Boyle, a human rights 
advocate, mapped out a legal campaign against Afghanistan which 
starts with the invocation of an international treaty against 
sabotage signed by both that country and the U.S. The next step 
involves petitioning Afghanistan to withdraw its reservation to World 
Court jurisdiction, and so on. Nowhere in Professor Boyle's roadmap 
is the simple necessary step: "Arrest the defendant."

At a time when two 767's have just slammed into two tall towers, 
killing 6,000 people as a geopolitical chess move of awful 
brilliance, Professor Boyle's recommendations seem impossibly naive. 
While we appeal to international tribunals and ask Afghanistan to 
comply voluntarily (an initiative which has already failed), the 
adversary will continue fighting back, with bombs, not briefs. 
Professor Boyle's idea involves the ultimate in asymmetrical warfare.

Here is what I regard as a simple, striking idea: the police force 
required to insure that the rule of law is meaningful in this case is 
the United States military. If, in the course of an action 
forestalling further harm like the terrible suffering and destruction 
caused on September 11, we happen to gain custody of bin Laden, 
putting him on trial in New York would be perfectly appropriate. In 
fact, it would be far more justifiable than Nuremberg was. Nuremberg 
was a post facto attempt to hold governmental actors responsible for 
acts they had committed within their own borders, under an 
international law of war crimes which did not yet exist. Bin Laden is 
not a governmental actor, and in any event, jurisdiction over him for 
acts committed within United States borders is clearly appropriate.

Even if Bin Laden somehow fell into our grasp tomorrow, without any 
attempt first being made to roll up the Al-Quaeda and related 
organizations, the application of legal procedure to him without 
military backing would not guarantee the security of the judges and 
juries we would be asking to act on our behalf. Crime raised to the 
level of war warps our system out of shape. The Sicilian mafia fought 
back by murdering prosecutors and judges, who became unwilling to 
proceed without military protection. In recent years, we have seen a 
similar phenomenon in Columbia, where it has been unsafe to be a 
judge acting against the narcoterrorists or against death squads. If 
we are not willing in such situations to apply the level of force 
necessary to guarantee the security of our legal system, then we are 
asking jurors and jurists to sacrifice themselves for nothing.

Law enforcement and war lie on a spectrum and it is hard to say 
exactly where one shades into the other. The real question is what is 
the appropriate level of force to apply in order to guarantee the 
stability and efficacy of the legal solution. Conducted carefully, 
the actions we now take against bin Laden, rather than being a 
revenge "crusade", will be a war for law.

---


Subscribe to Freematt's Alerts: Pro-Individual Rights Issues
Send a blank message to: freematt@coil.com with the words subscribe FA
on the subject line. List is private and moderated (7-30 messages per week)
Matthew Gaylor, (614) 313-5722  ICQ: 106212065   Archived at 
http://groups.yahoo.com/group/fa/