On Justice and War: Contradictions in the Proposed Military Tribunals
Fletcher, George P., Harvard Journal of Law & Public Policy
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. …