Two important new books examine how the law and the nature of war have changed since 9/11. Neither paints a rosy picture.
Karen J. Greenberg is a historian and founding Director of Fordham Law School’s Center for National Security. Over the past fifteen years, she has provided an intellectual home for serious students and scholars of America’s so-called War on Terrorism. The conferences she runs and the books she has written or edited have proven central to the discussion, shaping our understanding of torture, Guantanamo, Abu Ghraib, and even Al Qaeda. She has also been one of the most dedicated observers of the trials of accused terrorists.
Now Greenberg distills much of this experience into a powerful monograph, Rogue Justice: The Making of the Security State. She focuses not on America’s overseas wars but on counter-terrorism efforts at home, such as the profligate surveillance programs and the halting efforts to try accused terrorists in ordinary courts and military tribunals. Greenberg carefully traces the many ways that counter-terrorism programs have degraded our criminal justice system and our government’s respect for the dignity of individuals. She enriches our knowledge with each vignette, relying in great part on numerous interviews with those who were in the room for important decisions. And she throughout keeps her eyes on the prize: how these decisions affected civil liberties. The story’s narrative arc starts with panic and loss over the five years following 9/11 followed by a decade of halting measures to rebalance security policies to better conform to evolving understanding of the threats and the demands of justice. She attributes much of the restoration to date to individuals of integrity such as Jack Goldsmith, David Kris and to institutions, most notably the American Civil Liberties Union and the federal courts.
Rosa Brooks asks the same questions and many more in her wide-ranging How Everything Became War and the Military Became Everything: Tales from the Pentagon. Brooks is a professor of international and constitutional law at Georgetown who served in the Departments of State and Defense under Presidents Bill Clinton and Barack Obama. Her new book also draws on a long record of insightful scholarship and first-hand experience. She takes up Greenberg’s theme – that counterterrorism policies have blurred important legal distinctions – and runs with it to explore ways that other recent developments blur the boundaries between war and peace.
For centuries, the post-1648 Westphalian world order privileged nation states in an international system intended to constrain war by time and place (jus ad bellum) as well as means (jus in bello). In the half-century following the world wars, these constraints reached their apogee, much to the benefit of people fortunate enough to live in strong states. At the same time, a global system of international human rights arose to constrain the ability of those very states to abuse their residents. Outlawing war and promoting the progressive realization of human rights, the post-war system promised a world of “larger freedom.” Humanity has made great progress, especially toward reducing extreme poverty.
But over the quarter century since the fall of the Berlin War, we have also witnessed the release of a stunning variety of disruptive forces. Influential non-state actors, globalized markets, inexpensive global communication networks and travel, dual-use technology have generated wonderful new opportunities to free us from fear and want. At the same time, they have often weakened states as guarantors of security. Within the U.S. government, civilian government agencies have been beaten down by infighting, incompetence and budget cuts, while military enjoys unrivalled prestige and resources. As a result, policymakers turn increasingly to the military to perform unwarlike tasks around the world. Brooks explains how each of these changes weakens the legal framework of international peace and security. She argues compellingly that America’s decisions about how to conduct a so-called War on Terror have greatly accelerated the disruptive effects of these changes.
Brooks illustrates with personal anecdotes the way America wages global war blurs the norms that we had relied on for our own security. As the U.S. military engages in nation building in the Near East, that humanitarian enterprise becomes an instrument of war and therefore a target for our enemies. Because the Department of Defense has a mission to “shape the battle space” before conflicts arise and far greater resources than other departments, the U.S. presence in Africa and much of Asia has become militarized. As the CIA and the Air Force deploy drones outside of traditional battle zones to kill terrorists, greater swathes of the planet effectively become theaters of war. Because many of our military missions are low intensity, clandestine or otherwise outside the traditional scope of warfare, neither peacetime law (jus ad bellum) nor the law of war (jus in bello) squarely regulate their conduct. This mismatch degrades the rule of law everywhere. As so many of the justifications for these activities remain secret, the world sees the US as acting outside the law, thereby subverting respect for the fundamental principle of legality.
If the US exercises its capacity to strike lethally anywhere and anytime without answering to anyone, then what will restrain other powers from doing the same? Having degraded the protection offered by the rule of law, we now live in an era of war unbounded by time, place, or law. Brooks quotes Thomas Hobbes twice to drive home the conclusion that we are contributing to the remaking of the world into one in which life is “nasty, brutish, and short.” We are returning to a state of nature, with IEDs and hellfire missiles taking the place of sticks and rocks.
These new books make a powerful if distressing pair. They explain how we have lost so much freedom and security over the past 15 years. They argue (and I agree) that the most hurtful losses were self-inflicted, as we sacrificed our most treasured values for short-term, shortsighted gains. Kudos to Greenberg and Brooks for their sustained efforts to guide us to better decisions over these past 15 years and for their powerful new books. I can only hope that we make better choices over the next 15 years.
Mark R. Shulman is a member of the Board of Directors of the Columbia Journal of Transnational Law Association. Follow him on Twitter at @MarkRShulman.