Do We Have to Get Our Hands Dirty to Win the War on Terrorism? And What Does that Mean, Exactly?

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Mr. Khawaja is adjunct professor of philosophy at Mercer County College and The College of New Jersey, and lecturer in politics at Princeton University.

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Michael Ignatieff’s recent essay in the New York TimesMagazine--“Lesser Evils: What It Will Cost Us to Succeed in the War on Terror"--is a useful corrective to much of the conventional wisdom on fighting the war on terrorism. But useful as it is, the essay (I want to suggest) is marred by Ignatieff’s failure to question three recurring and distinctively liberal dogmas on the subject—dogmas for which he offers nothing in the way of argument, and for which, as he must know, satisfactory arguments have rarely if ever been produced.

“ Liberty” versus “Security”

The first of these dogmas is Ignatieff’s dichotomy between “liberty” and “security,” as though it were obvious that liberty and security were two mutually exclusive and incompatible goods rather than complementary aspects of one and the same good. “Abiding disagreement about the trade-off between liberty and security is a permanent characteristic of any free society. The founding fathers designed the Constitution to enable our institutions to adjudicate such fundamental disagreements of principle.” But contrary to Ignatieff, it’s not really clear that the founders thought there was a “disagreement of principle” to adjudicate in the first place. Consider Alexander Hamilton’s discussion of the subject in Federalist #1. It is often forgotten, Hamilton writes,

that the vigor of government is essential to the security of liberty; that in the contemplation of a sound and well-informed judgment, their interests can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidding appearance of zeal for the firmness and efficiency of government.

Hamilton clearly doesn’t think of liberty as opposed to security; that’s why he refers to the “security of liberty.” They can’t be separated or traded off against one another, he implies, because they’re two aspects of the same thing.

Hamilton’s approach, I think, is the right one. Think of it this way: Liberty is the condition in which a person can exercise his rights without impediment. Insecurity is the condition in which something consistently threatens the exercise of those rights. Security, then, could reasonably denote the condition in which liberty is protected from persistent threats to it. If we think of things this way, there is no reason to think of liberty and security as being intrinsically opposed to one another, and no reason to think that we face an irreconcilable dilemma (as Ignatieff seems to think) of choosing between them. It may be difficult to know what security measures to take to protect our liberties, but we can know in advance that since any liberty can be threatened, every liberty must be secured; security is not something to be reconciled with liberty as though alien to it, but a necessary condition of its viability.

It would take an essay of its own to explain how the Hamiltonian approach applies in detail to the war on terrorism, but suffice it to say that adopting it might mitigate the burdens of what Ignatieff calls our “permanent disagreements.”

Only “Imminent” Threats Justify Pre-Emption

The second dogma (or set of them) goes to Ignatieff’s account pre-emptive military action. In a puzzling passage on the subject, Ignatieff offers the following criteria for the justifiability of pre-emptive military action:

Pre-emptive war can be justified only when the danger that must be pre-empted is imminent, when peaceful means of averting the danger have been tried and have failed and when democratic institutions ratify the decision to do so.

My concern here is with the first criterion: “imminence.” Ignatieff offers no definition of the term that can be put into military practice; neither, I should add, has anyone else I’ve read on the subject. And a definition is imperative in this context: if imminence is what justifies military action, the line between imminence and non-imminence must be sharp in theory and in practice, and it can be neither without an explicit definition. Nor does Ignatieff address or answer a series of obvious questions about the concept. Imminent threats represent one type of threat, but there are others that, while not imminent, are equally threatening. To say that a threat is not imminent is not to say that it isn’t a threat. Why then should imminent threats be the only ones subject to pre-emptive action?

The issues here are as obvious as they are crucial. If a threat is imminent, it is in some sense proximate in space and/or time. If it is proximate in that sense, it may be too proximate to be averted by any action. Does it then make sense to let a threat become imminent before pre-emptive action is taken with respect to it? Why not pre-empt attacks that have not yet become imminent, so as to avoid the nightmare situation in which one faces an attack which one is powerless to prevent? (Think of the Clinton Administration’s cruise missile attack on the Al Shifa Pharmaceutical Plant in Khartoum, Sudan in August 1998; there was evidence of a bin Laden/Saddam/WMD connection in that case, but no evidence of an “imminent” threat. Does Ignatieff regard the Al Shifa attack as unjustified?) One difficulty here is that it’s not clear that the concept of imminence can consistently be applied before an event as opposed to after it. It is much easier to say that something was imminent than to say that it is—a serious liability for a concept with the strategic importance that “imminence” has now come to acquire. Unfortunately, Ignatieff has nothing to say about these issues; indeed, the rule he promulgates practically “pre-empts” discussion of it.

Unsavory Methods are “Lesser Evils”

The last dogma is Ignatieff’s confident assumption that unsavory methods of dealing with terrorism are “lesser evils” (my emphasis)—that in employing them even to defend ourselves, we are forced to do what is necessary but morally wrong. As Ignatieff asks in his essay, how can free societies “resort to the lesser evil without succumbing to the greater?”

Putting the problem this way is not popular. Civil libertarians don’t want to think about lesser evils…But thinking about lesser evils is unavoidable.

This vocabulary and line of thought owe an obvious debt to Michael Walzer’s well-known ruminations on the so-called “problem of dirty hands,” discussed in Walzer’s essay “Political Action: The Problem of Dirty Hands,” (first published in the academic journal Philosophy and Public Affairs [vol. 2:2, Winter 1973], and later reprinted in the book War and Moral Responsibility ([Princeton: 1974], edited by Marshall Cohen, Thomas Nagel, and Thomas Scanlon). Though Ignatieff draws on the themes and language of Walzer’s essay, he doesn’t explicitly credit the essay, and so conceals (in effect, not in intention) the controversial assumptions on which Walzer’s claims rest.

According to Walzer, a good politician is occasionally forced to do what is morally wrong; when he does so, his action is politically justified but morally evil. In Walzer’s words,

In modern times the dilemma appears most often as the problem of “dirty hands” and it is typically stated by the Communist leader Hoerderer in Sartre’s play of that name: “I have dirty hands right up to the elbows. I’ve plunged them in filth and blood. Do you think you can govern innocently?” My own answer is no, I don’t I could govern innocently; nor do most of us believe that those who govern are innocent—as I shall argue below—even the best of them. But this does not mean that it isn’t possible to do the right think while governing. It means that a particular act of government (in a political party or in the state) may be exactly the right thing to do in utilitarian terms and yet leave the man who does it guilty of a moral wrong. [War and Moral Responsibility, p. 63.]

As Walzer admits, the formulation is intentionally paradoxical: some political theorists accept the paradox at face value, while others equally emphatically reject it. (I fall into the latter category.) Clearly, Ignatieff has at least some sympathy for the Walzerian formulation: the war on terrorism, Ignatieff repeatedly suggests, will require “lesser evils” and “dirty hands.”

Ignatieff doesn’t mention the alternative way of looking at things, however. A contrary thesis holds that there is no such bifurcation to be made between “good politicians” and “good persons,” or between “morality” and “politics”—and thus no room for a notion of “lesser evils” or “dirty hands.” The proper function of government is to secure our liberty. If liberty is the end of government, that end (sincerely pursued) really does morally justify whatever means are required to secure liberty. If an act is justified in this way, it cannot accurately be described as “evil,” however bloody or repulsive it might be.

Some examples may help drive the point home. If the Allies were strategically justified in bombing Dresden—as Frederick Taylor suggests in his book Dresden: Tuesday, February 14, 1945—then the bombing of Dresden was not an “evil,” but perfectly moral. If the atom bombings of Hiroshima and Nagasaki were the only ways of securing victory against Japan (and victory was itself justified), then those bombings were not “lesser evils,” but again, perfectly moral. More recently, as Christopher Hitchens has suggested in a recent essay in Slate, if the Algerian fundamentalists elected in the 1991 Algerian elections were a threat to the liberty of Algeria’s secular citizens, then the tactics used by the Algerian military to squelch them may have been “repulsive” but were “broadly right,” i.e., morally justified. So it is with General Musharraf’s occasionally sharp-elbowed dealings with Pakistan’s fundamentalist parties, or the Israel Defense Forces’ assassinations of Hamas terrorist leaders.

One might quarrel or quibble with this or that example on this list, but what is important is the principle behind each of them: what is genuinely “necessary” to preserving rights is not a necessary or lesser evil; it’s not an evil at all. It is simply what has to be done. In this respect, Barry Goldwater was precisely correct to say that “extremism in the defense of liberty is no vice.” It isn’t.

This distinction between the Walzerian and anti-Walzerian views of evil may seem “merely semantic,” but in fact, it’s of the utmost importance. The bifurcation of political and non-political morality implicit in the Walzerian thesis—and the cavalier attitude in Ignatieff’s essay about the necessity of doing “evil”—is both deeply confusing and profoundly demoralizing to a population at war. Contrary to Ignatieff, it’s not clear that anyone can sustain a long-term commitment to policies and principles avowed as “evil,” or to do so in a consistent and clear-headed way. If so, the language of “dirty hands” and “lesser evils” is a liability in the war on terrorism. It doesn’t clarify matters; it confuses them.

If we’re to use the Walzerian language at all, the rationale for doing so ought to be made more explicit than Ignatieff (or for that matter Walzer) manages to make it. But as someone familiar with the “dirty hands” literature in philosophy and political theory, I’m inclined to say that no compelling rationale has ever been produced for using the language of “dirty hands” in the first place. The idea that politics requires “lesser evils” and “dirty hands” is an unargued dogma, characteristically asserted with vigor, but essentially undefended now for decades. It should either be defended more rigorously or abandoned.


It may seem fanciful to think that our victory or defeat in the war on terrorism could turn on conceptual niceties like the ones I’ve raised. But perhaps it’s worth remembering that this war is as much a military matter as it is an ideological one. We’re less likely to be defeated by force of arms than by our own confusions. That’s why as Ignatieff puts it, to win the war on terrorism, “we need to change the way we think, to step outside the confines of our cozy conservative and liberal boxes.” But as I've suggested here, Ignatieff is perhaps more ensconced in a cozy liberal box than he seems to realize. The unexamined life, Socrates once said, is not worth living. In wartime, as it happens, unexamined dogmas turn out not to be something we can get away with, either.

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Peter K. Clarke - 10/9/2007

This is an interesting discussion covering a number of important semantic points, but it skirts around the real problem. We are not dealing here fundamentally with a "war on terrorism" here, but with a political campaign pretending to be a "war on terrorism".

As a number of insightful observers have pointed out, the term "war on terrorism" is a dangerous and misleading deception. Of course, we cannot be literally fighting a "war on terrorism" anymore than we were fighting a "war on Blitzkrieg" in the 1940s. We have in fact been fighting a series of short wars against the Taliban, the Baath regime of Iraq, and a number of Al Qaeda cells, accompanied by a ongoing series of preventative measures designed to deter, and protect us against, future acts of terrorism: new rules for passports, airline security, etc. all of which are unfortunately dwarfed to a great extent by a reckless, unilateral, illegitimate, and above all blunder-ridden occupation of Iraq. We can still win all the short episodic actual wars, and even survive the actual quagmires like the Iraqi “slam-dunk” “cakewalk”, let lose our liberty, if we continue to unquestioningly endorse the Orwellian pretense that the larger (and by definition, never ultimately winnable) metaphorical war needs to prosecuted using essentially the same techniques as the real but episodic military conflicts that occasionally overlap with it.

It was a tremendous victory for Osama bin Laden when the floundering Bush Administration, trying to cover its ineptitude and responsibility for the 9-11 disaster, dignified Al Qaeda’s heinous acts of mass murder by calling them acts of war. As if the 19 suicidal killers were fundamentally from the same branch of humanity as, say, the soldiers landing on Normandy beach on D-day.

We need to retire this dangerous and ahistorical term "war on terrorism" and sent it, along with its hypocritical and corrupt coiners, back to the Texas swamp of arrogant incompetence whence it came. Then, under less dishonest, less stubborn, and more competent leaders we can begin to take up the long term struggle against terrorism with greater clarity, patience, consistency, and international assistance, and with a more sensible mixture of policies that do not rely 95% on failed corporate executives hijacking the Pentagon and our foreign policy and trashing America’s allies and traditions.

Irfan Khawaja - 8/4/2006

I'll have to read the Record article before I can comment on the first point, but personally, I would say (and have said elsewhere) that the Iraq war was an act of enforcement. It enforced UN Resolutions 687 and 1441 (or alternatively, you could say that it enforced Iraq's disarmament obligations to the victors in the 1991 war).

Regarding your second set of questions: A government's principal task is to defend the liberty of its own citizens. So the US Government's goal is the protection of the liberty of Americans. In cases where the defense of our liberty requires an attack on others, I would say that responsibility for the casualties of war rests with the attacker. Since the attacker is initiating the rights-vioating act, the subsequent deprivation of liberties is his responsibility, not the defender's. In that context, I would say it is perfectly justified to "deprive" others of their liberty in order to protect one's own--adding that responsibility for the deprivation is not one's own.

As for "how many lives," it's hard to answer on one foot, but I'd say that the general principle is: given an attack on your country that justifies a war against someone else (only certain acts of aggression will cross that threshold), minimize collateral damage to the extent that that's possible, consistent with the requirements of victory. And refrain from doing anything that will so demean people on your own side that you'd be afraid to integrate them back into peacetime life.

On the last point, I disagree. What Palestinian militants "feel" is irrelevant to what's true. There are contexts in which Palestinians would be justified in using force to repel attacks on their persons or property. And I'd be the last to advise them to "go easy" on their attackers in those cases. But that simply doesn't describe most Palestinian violence today, whatever Palestinian militants may believe. Violence has simply become an end in itself in that quarter, not a means of promoting liberty.

Irfan Khawaja - 8/4/2006

To Matt:

On your first point, that's why I put the parenthetical in. You could take "enforcement" one of two ways. You could either take it absolutely legalistically as denoting enforcement of UN Res 687/1441 by UN procedures. Or you could take Iraq's post-war act of agreeing to be disarmed in the 1991 war as an act that binds it, regardless of the UN's procedures.

The second interpretation is made plausible by the fact that the UN was clearly derelict in its duties to enforce its Resolutions, and arguably too corrupt to do so. Given that Iraq agreed to be disarmed, its failure to comply with those obligations was a casus belli.

On the Palestinian issue, your hypothetical is hard to process because it's just too far from the actual facts. I wouldn't rule out attacks on civilians in a war of liberation, so long as doing so really did promote liberty. But that simply is not true of any Palestinian militant group today, and it is not likely to be true of any Palestinian state. They (those groups) aren't after liberty, and if they were somehow successful in defeating the Israelis, the result would be worse than the Israeli occupation.

Nor would the Palestinians be helped by appealing to the terrorism of the Zionists. The Zionists' terrorism wasn't justified any more than the Palestinians' is. It's six of one and a half dozen of the other.

Irfan Khawaja - 8/4/2006

To CP:

I think the quickest and simplest response to your extended ad hominem temper tantrum is that it neither responds to my argument nor gets it right.

It also begs the question by assuming that whatever international law says is morally right--an odd stance, coming from someone who is accusing me of the position that "might makes right." At any rate, my argument was not fundamentally legal in nature, and has absolutely nothing to do with Machiavelli or legal positivism.

I had to laugh a bit at the charge of "legal positivism," actually. The absurdity of the charge of would be apparent to anyone who actually knew what legal positivism was. Calm down a bit, and then look a little harder at the way I discussed UN Resolutions 687 and 1441 on the comment board. I took pains to say that it wasn't the legal procedures that made Iraq's obligation to disarm binding on it, but the sheer fact that it promised to disarm. I was thus interpreting Iraq's promise as binding Iraq independently of the UN's legal procedures--precisely the opposite of what a legal positivist would say.

Talk about "misinterpretations, mistakes, and semantics"....

Irfan Khawaja - 8/4/2006

To Ephraim Simon:

I don't disagree with anything in the first paragraph of your post, but your second paragraph is a stretch. The "Zionists" to which we were referring in the previous discussion was the pre-Israeli Yishuv, and the terrorism to which we were referring was that which brought Israel into existence. Its goal was to create a Jewish state--and a numerical Jewish majority--in a place where Jews were substantially outnumbered and outowned. I don't think that's a legitimate goal. So the terrorism used as a means to it was not justified, either. It would take a real leap of inference to claim that the King David Hotel bombing was justified because some day it might put Aharon Barak where he is.

I agree that Israel is nowadays making important strides in the direction of liberty (in Israel proper, anyway). But I think that's the result of the post-Zionist orientation of contemporary Israelis. They have become more realistic and liberty-oriented, not more Zionist.

I agree with your claim that "terrorism seems increasingly more like..." and the rest of what you say there to the end of your post. What I dispute is that *any* targeting of civilians is ipso facto immoral or terrorist. If the cause is just, and targeting civilians is a genuine strategic necessity, it is in my view not wrong to target them.

In other words, I simply do not accept the doctrine of "non-combatant immunity." Hiroshima, Nagasaki, and the strategic bombing of Germany targeted enemy civilians. So did Sherman's March to the Sea. So did many slave revolts. I have never been convinced that these actions were morally wrong--or even "lesser evils". Nor is it realistic to defend them by saying that civilians were "collateral damage." The civilians were targets, not collateral damage.

In consistency, then, I have to admit that if a "terrorist group" had no choice but to target civilians in a just cause, that could in principle be justified. I just don't think that the Zionists or Palestinians fit the bill. Few do. But that doesn't mean none could.

Irfan Khawaja - 8/4/2006

I'm not trying to avoid the implication you're describing. If you put it in the hypothetical form you've just used, I would agree: If there *was* a Palestinian group seeking liberty, and it couldn't achieve liberty in any way but the targeting of civilians, then it could justifiably target civilians. Absolutely. I just didn't want to give the impression that that was an accurate characterization of currently-existing groups.

To use a different example: I would say that it was justified (where necessary) to target civilians during slave revolts. (Of course, it would make no sense to target a civilian who was against slavery. I don't mean
that targeting should be indiscriminate.)

I don't think morality is a matter of intentions rather than actions or vice versa. It's a matter of both. On "how many deaths," I can't improve on what I said before. I think Hiroshima and Nagasaki were justified. In that case, we're talking about hundreds of thousands of deaths. I think part of the strategic bombing campaign during WW II was justified. Again, hundreds of thousands of deaths. If we talk nuclear deterrence, we're talking tens of millions of deaths.

So long as (a) the cause is just, and (b) the killing is *genuinely* a strategic necessity (not revenge or blood lust, etc.) then I can't put an upper bound on the number. You just have to ask whether liberty can survive the consequences of what you do. If it can, and you have no better options for preserving liberty, you do whatever needs to be done to keep your country free. And in my view, when you're done, your hands are clean.

Irfan Khawaja - 8/4/2006

I basically agree with both Bill and Mark on this. Thanks Bill, for the compliment, but I'll take that back if you call me "Dr Khawaja" again.

Irfan Khawaja - 8/4/2006


You may be a lawyer, but sorry, you really aren't particularly well versed in "legal philosophy". Actually, before getting to legal philosophy, you may want to begin with reading comprehension. This would help you read the bio under my name, and discover that I am a professional philosopher, not a historian.

As for Hart, Fuller, Austin, Machiavelli, and Aquinas, thanks for the tip, but I do believe I've done my fair share of reading--and teaching--these authors. Indeed, I've done enough to know that you don't know what you're talking about, and it would be quixotic to clarify the issues for you here.

If you'll calm down long enough to allow yourself the luxury of cognition, you'll see that the structure of your argument is: Khawaja rejects international law, hence Khawaja rejects moral norms--but Khawaja defends the use of military force in the name of a sovereign, hence he is a legal positivist.

It's an act of charity to you to explain the structure of your argument more concisely than you have, and also an act of charity to point out that the argument is unsound. The conclusion only follows if you assume, falsely, that there are no true moral norms not already codified in international law. But I think there are, and as powerfully as you've flailed against my claims on that issue, you haven't refuted any of them. As a matter of inductive logic, I think I'm entitled to infer that you won't be doing so anytime soon, so you'll have to pardon me if I don't take this discussion any further with you.

Irfan Khawaja - 8/4/2006

Apologies for the typo in the subtitle of the Frederick Taylor book in my piece--it is Tuesday, February 13, 1945--not February 14.

Irfan Khawaja - 8/4/2006

One of the remarkable things about that post, despite its length, is that--read carefully--it does not in fact address my argument at all.

My argument is: if liberty is the end, then that end justifies any means required to preserve it, and if international law doesn't promote the end, liberty trumps internationa law. You open by expressing your incredulity at the doctrine "that the end justifies the means." But the obvious retort to that is that an end is the only thing that COULD justify a means. What is a means, but something causally conducive to an end? How else does one justify anything, except to cite the end to which it contributes as a means? Your expression of incredulity on this score is actually an expression of incredulity at the central principle of practical rationality--that if you will an end, you're obliged to will the means to it, and if the end is justified, so are the necessary and available means.

Skipping to your last paragraph, you say "there is no moral calculus that excuses aggression." True. But I wasn't defending aggression. I was defending the use of force to protect liberty.

Every argument you offer between the first and last paragraphs begs the question that divides us (or is irrelevant to the real issues between us). You've simply misconstrued everything I've said so as to convey the impression that I'm justifying "amorality," "Machtpolitik," "aggression," "atrocities," "a police state," a "Leviathan" and so on. But I wasn't defending any of that, and it's not an implication of anything I did defend.

As for the meaning of liberty, you are simply wrong that "liberty" only denoted "liberty from government" for the Founders. It denoted then--and it denotes now--a condition in which a person is free to exercise their rights without coercive interference, either from governments or anyone else. The inalienable rights cited in the Declaration are not limited to rights against the government. What you have there is straightforward Lockean doctrine--and one has Lockean liberty rights against everyone, in the state of nature and in civil society. Since those rights have to be secured somehow, the point I made remains untouched: any right can be threatened, and if threatened, has to be secured. Understood in that way, "liberty" and "security" are logical correlatives, not opposed to one another.

As for pre-emptive threats, your claim flouts reality. Whether you recognize it or not, and whether international lawyers recognize it or not, a threat can exist even when the threat is not yet imminent or verifiable. To deny this is to deny an obvious fact, as well as to commit an obvious logical fallacy (conflating genus [threat] with species [imminent threat]). A threat can exist whether or not you can verify its existence, and it can exist whether or not it's imminent. The fact that pre-emptions are "illegal" only raises the obvious--and so far unanswered--question of why the laws are written so as to ignore the obvious.

But I'll leave this subject with one legal rumination for all of you law-worshippers. FAA regulations as of Sept 11, 2001 made it a federal crime to resist hijackers during a hijacking. The law required compliance with all hijacker demands until such time as federal authorities could establish control over the situation. This means that the passengers aboard United Flight 93 over PA were in violation of federal law when they seized the aircraft from the hijackers on 9/11. A truly scrupulous adherence to the law would have required that had they survived, they (along with any surviving hijackers) should have been arrested for violation of federal regulations. Had they survived, in other words, they would most likely be in prison right now.

Any takers? I mean--the law is the law, isn't it?

Irfan Khawaja - 8/4/2006

First, a clarification: I'm not defending "terrorism." I'm defending the idea that civilians can legitimately be targeted under certain (highly circumscribed) conditions. But when that is the case--when it is justified--I wouldn't call it terrorism. I reserve that term "terrorism" for unjustified uses of force (just as "murder" denotes unjustified homicide).

I don't agree with your claim that terror-inducing tactics (not "terrorism") are more likely to succeed against democracies. Think of how Arab governments deal with their homegrown Islamists--e.g., the Syrians vs their Islamists. (I am not justifying them, I'm just pointing out a fact.) They really did break the back of the Islamist movement there by targeting civilians at Hama, for instance. But the Islamists were not a democracy, and neither is Syria.

Anyway, I don't have any particular view on likelihoods one way or another--I'm not apt to generalize. I would simply leave it at this: IF you're really defending liberty, and some entity is aggressing against that liberty, and the only way of securing your liberty is to target their civilians, neither military strategy nor morality rule out doing just that. How often all those conditions will line up, I don't know. But when they do, I see no legitimate reason to refrain.

Irfan Khawaja - 8/4/2006

I agree with a lot of what you say; we probably disagree in our assessments of history up to 1948, but that would be a long story. Thanks for mentioning the Shinui platform, it gives me something to think about.

Irfan Khawaja - 8/4/2006

The end really does justify the means. Your examples don't invalidate that principle.

First, what I said was that the end in question was not the existence of the state per se, but liberty (which some states promote by varying degrees, and others subvert by varying degrees).

That takes care of both of your examples. It makes no sense to use nuclear weapons against another nuclear power because in doing so, you destroy your own population--which deprives them of liberty and then some. Likewise, the Soviet Union is a bad example. Its existence didn't promote liberty at all, so its survival-requirements are irrelevant to my argument.

Putting those examples aside: If international law stood in the way of a liberty-respecting regime's liberty-promoting military practices, then international law would be any impediment to liberty. And I'd say that international law would have to yield to the requirements of liberty, not the other way around.

Arnold Shcherban - 7/19/2004

Mr. Heuisler,
For once you deserved thanks from all unbaised observers
that remained on these boards: by calling Zinn and Chomsky "Marxist bores" you reveal your the true origin
of your intellectual "objectivity" and "honesty".

Arnold Shcherban - 7/19/2004

Your comments make you amoral and inhumane.
Some concepts cannot and should not be taught, explained or argued about; either one has them or not.

E. Simon - 5/30/2004

Your post seems very broad, in contrast to mine - which I believe poses a very simple question.

E. Simon - 5/30/2004

Your post seems very broad, in contrast to mine - which I believe poses a very simple question.

John P Fisher - 5/27/2004

Absolutely correct, we need a thorough police action not a 'war on terror'. This is the Fox News approach to governance, or should I say The Karl Rove tail is wagging the dog of policy?

Alice Jonsson - 5/24/2004

I agree that a terrorist is a murderer to one and a soldier to another. War is about a clash of defintions of 'good'. I don't really care what we want to call the group against which we are defending ourselves.

Alice Jonsson - 5/24/2004

I agree that the US can't say they are defending the UN while going against it. The UN refused to adequately enforce its own resolution. As far as I'm concerned, when they did that, they took themselves out of the game. They don't even take themselves seriously. I feel no obligation to the UN. Why would any nation subvert what it thought best to please the UN? We should be open and honest about it. Every nation has its own agenda because they think its the BEST aganda.

Alice Jonsson - 5/24/2004

Again, two differing definitions of 'liberty' clash. They can attempt to persuade in a nonviolent manner or they can use force. At this point it seems to me that both the Israelis and Palestinians have all but given up on the first method. Additionally, some people are not seeing the inherent difficulties in the relativistic position. Sometimes two definitions of 'liberty' are so at odds with each other that it will come down to war. The notion that we can all live in harmony without forcing anything on each other has NEVER been adequately defended to me.

Alice Jonsson - 5/24/2004

"There is no real conflict between liberty and international law, unless liberty is just the slogan of the conqueror and the imperialist."

Begging the questions: You must define 'liberty'.

"Liberty is an artifact of civilisation: it cannot be promoted by the institution that engages in the destruction of civilisation." The destruction of a civilization that embraces a definition of 'liberty' that threatens my civilization and liberty, as I define it, increases liberty, as I define it. If killing ten civilians means liberty for twenty, apparently you'd prefer to let all thirty remain deprived. You have a right to make that choice, but you need to convince me of the logic of that one. There are side effects to taking action. There are also side effects to inaction.

Alice Jonsson - 5/24/2004

One entity's definition of liberty will differ from another's. This doesn't invalidate the argument: "if liberty is the end, then that end justifies any means required to preserve it, and if international law doesn't promote the end, liberty trumps international law." When nonviolent attempts to sell one definition of liberty over another fail, the entities may have to duke it out. International law that flows from a definition of liberty with which I disagree is not law I feel compelled to follow.

Derek Charles Catsam - 5/23/2004

I don't feel like getting into the details of this debate, as others have made points I might have more effectively than I may be able to, but I would like to add at least something: Might makes right where might is right. In other words, if it requires force to make sure the right thing happens, then that is the right thing to do. I find the puritinical antiforce folks to be a bit naive inasmuch as sometimes it requires force to deal with an opponent who knows nothing else. Stuffing daisies in the barrels of Nazi rifles would simply have resulted in more fragrant dead bodies, for instance. A relativist might say "how do you know you are right," and while I could get into the argument that nothing is right or wrong but that we decide it is so, and so all judgments ultimately require a leap of faith, in this debate we seem to be dealing not with relativists, who at least make a certain amount of intellectual sense, but rather with people who reject all force. That is, they reject force no matter what, even if it is to overcome a demonstrably greater evil. Might in and of itself does not make right. But might wielded in the name of freedom, democracy, liberty, hope, opportunity, justice -- these are things not only worth fighting for, but also worth asking -- if you are not willing to fight for them, what do you stand for? Peaceful opposition to violent despotism is craven ineffectualism.

Derek Charles Catsam - 5/23/2004

Bill --
I've noticed that you don't spend much or any time looking at the HNN blogs. They are a source of some of the best, most interesting, and most vibrant goings on at HNN. I was a member of Cliopatria for a while, and now have branched off on my own (with two friends and colleagues -- both conservatives -- it'll be like Three's Company, with less fantastic cleavage and hopefully better writing!) in a blog called "Rebunk." I hope you check it out.
Shamelessly Yours,
your favorite sparring partner,

chris l pettit - 5/22/2004

That last comment belies the marrowmindedness of your position professor. It also shows the blindness and inability to see beyond a blatantly positivistic sense. Howard Zinn wrote a great text on the topic "True Democracy, True Dissent" where he dismantles Judge Fortas' famous "rule of law" statements. I suggest you look at it, as it is a fine text, even if it is not written by a true legal mind.

And to answer...civil disobedience and common sense have long been allowable...hence the conscientious objector status for those who disagree with participating in despotism and illegal war and choose not to serve. We all don't have to be blind followers like Mr. Heuisler.


E. Simon - 5/21/2004


I'm reluctant to respond given my agreement with much of what Irfan Khawaja had to say to you and my similar convictions when it comes to holding a reasonable debate or logical analysis - in light of the style you seem to favor. But I generally respect and agree with much of what Mark Safranski has to say and since he feels it's worth his while to engage you, rehabilitating your participation in this corner of the "community of humanity" that is HNN, then I figure it might be worth a shot. But make no mistake, I feel that you've often come way to close to violating the standards set out by the editors.

That said, I want to point that I agree with you on one thing. Might does not make right. However, might should be used - and, ideally, if need be - to enforce what is right. Thus far, there is no international military force that I am aware of comparable in scope to those of the major powers or their alliances. Conflict, as regrettable as it is, has the potential to be even more devastating when it occurs between the current (and former) great powers. Therefore, allowing vetoes within the S.C. encourages consensus, if not unanimity, for brokering major decisions. Outright division is less likely. I see this as a good thing and I would hope a lawyer would understand enough about politics to see why.

As for the U.N. and the currently predominant international systems closely linked to it, I suppose it's possible that they would have come into existence absent the development of the U.S. as a power capable of significant military hegemony as demonstrated in the latter days and aftermath of WWII, but I somehow doubt it. The capacity to use force is not an evil out of hand. Nor is using it. Nor is using it to create a world order over 50 years ago that has not since been in much of a position to understand the importance of occasionally making use of it.

Points pertinent to those addressed in your second paragraph I believe have been discussed between yourself and Mark Safranski repeatedly. Again, you're free to call the U.S. "despotic;" that is your right to think what you will. And yes, people do come here, but twisting my point into its converse didn't help your argument. Once again, people don't *flee*. There is *not* a significant emigration problem in this country. The conclusions to be drawn from that are so obvious that I'm not surprised you chose to twist it into a bizarre and equally indefensible perspective.

The near end of your third paragraph is ludicrous. As I said, sovereignty comes from the people, as embodied through democracy and freedom. I don't recall myself advocating the invasion of free democracies that pose no threat to the U.S. I find the idea of a free democracy posing a threat to the U.S. to be somewhat oxymoronic, as would those who put stock in the idea of the democratic peace.

"the people...would rule...yada yada...not elite corporations and business interests..." Ok, here we're just going to have to differ as well. I'm no more a fan of cronyism than I am of outright corruption - but I'm apparently more of a fan than you are of property rights, trade, wealth creation, capital, economic development - you know, all those horrible things. Since the signing of the Magna Carta, *private* wealth has proven itself time and again as a check against tyranny. I do believe that, unfortunately, money plays a disproportionate role in the American political system, but I much prefer that my politicians go currying the favor and chasing the wealth of private donors then vice versa.

Finally - Despotism, revisited: I somehow notice subtle gray shades of difference when it comes to the U.S. and oh, say, China, N. Korea, etc. Transparency comes to mind. The ability to vote in elections and run for office, maybe. Hmmm... The existence of coercion vs. autonomy when it comes to the role of the state in deciding the course of an individual's life. Minor details, no biggie - however, I'm sure there are others that play a role in preventing this country from becoming a significant source of asylum seekers.

Ok, it's late and I've got some partying to do.

mark safranski - 5/21/2004

Hi Chris,

Wow - things are getting a little heated here in my absence. To tackle your question:

Chris wrote:
"Mark...I agree with you that despotic rulers and minorities that govern...like those in the US, Iran, Israel...can you name me a country besides SOuth Africa to a point where the elites don't govern?"

Minorities who govern with the consent of the majority are not despotic - though they might be oppressive to other, less popular, minorities. The key to political legitimacy in my view is securing consent.

Iran's revolutionary Islamists once were able to secure popular consent but no longer. Israel within the confines of Israel proper is perfectly legitimate ( obviously not so for ruling the Palestinians of Gaza and the West Bank). The US system, for it's numerous flaws, rests upon such democratic consent which is in fact real and capable of overturning established political factions. I'm sure Chomsky and his fellow-travellers have an intricate argument to proffer here on why this is not the case involving "the manufacture of consent" but Chomsky 1) distorts Lippman and is 2) fudging the very significant moral and political difference between *persuasion* and * coercion*. There's a big difference between an argument - even a poorly constructed and misleading one- and a gun.

"...are wrong and that we should be shooting for "democracy. However, you seem to put the argument in terms of nation states and their rights to invade or attempt to overthrow those governments they do not like."

Democracy is not the *only* to determine consent of the governed and thus the legitimacy of a government to exercise a nation's sovereign rights but free elections have the advantage of being *measurable* and *periodic*. No mystical appeals to the volk, the general will, the supreme being or some other irrational justification for the self-apppointed vanguard. Just voting. And few things scream " illegitimacy " faster than ballot fraud or sham elections where El Maximo Caudillo secures 99.9 % of the vote.

Illegitmate governments cannot lawfully wield sovereign power nor can their " rights " be violated as they hold power illegally. They are the governmental equivalent of squatters - no legal title to what they claim to have. They are also, morally suspect, a poisoned tree - I'm sure Nazi Germany passed some common-sense, apolitical, business regulation at some point but you wouldn't want to rest a client's legal claims on that set of regs.

And in terms of nation-states, I put the argument in that context because they exist( most of them anyway)and many of them( a fair-sized minority)have the power to assert their rights or press their claims.

" I know that you would support the ending of US aid to Egypt, Saudi Arabia, Azerbaijan and other despots we as Americans support, but can you really claim that US sovereignty is sacred and then turn around and argue for our interference in the affairs of other states?"

American sovereignty is not sacred and inviolable so much as it is *enforceable* at a time when many governments are poorly positioned or politically unwilling to do the same. This could change, fairly easily. I'd also argue that there are some limits to what a state may lawfully do within it's own territory ( back to consent of the governed) - previous understandings that a state could commit genocide " legally " within it's own borders to it's own citizens was an evil sophistry.


Bill Heuisler - 5/21/2004

Mr. Pettit,
Ignorance of the law doesn't disqualify you from having opinions, but substituting insult for fact degrades those opinions. You apparently don't understand your folly.

You're confused about Law, about definitions and about your own country. When challenged, your opinions and childish name-calling stretch to absurd prolixity. The oddest part of the theater is that you don't even realize how foolish your wordy regurgitations of Zinn and Chomsky make even those turgid, Marxist bores seem interesting.
Bill Heuisler

chris l pettit - 5/21/2004

Since when do actual Professors need to resort to personal insults, misinterpretations and attempting to put words in other scholars' mouths in order to defend themselves? What happened to actual intellectual responses? Professor...in your two responses you have not even tried to respond to anything I stated in any meaningful manner.

That being said...congrats on being able to look up legal philosophy and its schools on a Google search. Taught? Wow...I feel sorry for your students. If you are soooo brilliant on the subject, please enlighten me.

In addition, please see Mr. Larison's brilliant post above for a far more eloquent post than this one that continues to highlight the paucity of your scholarship.

As for your misinterpretation of my post and the attempt to put words in my mouth and tell me my own thoughts...allow me to correct you on the egregious errors. I never claimed there were not morals outside of international law...I just pointed out the hypocrisy of your claim to have any moral basis for your claims. And as I stated before, rejection of international law and holding tight to the idea of absolute state sovereignty and a world dictated by nation state self interest...in this case that of the US, is precisely the pure legal positivism that pervades US goverment and academic thought today.

Your claim that the US has the moral authority and superiority to determine "liberty" and what is "pre-emptive" or "preventative" over all other nations is placing the US at the top of the legalistic heap and claiming that only they have the authority to dictate enforcement. This is positivism. it sets the US up as the sovereign that both dictates and enforces the law...in other words a legal despot.

Do morals exist outside of internation law? Possibly, but only if you deny the existence of customary law and respect for other cultures and faiths included in international law. What seems to escape you is that international law is all inclusive and does not pander to certain interests...at least it is not supposed to. What is problematic is when despotic states such as the US administration run roughshod over international law and insist on their moral superiority. Then your values emerge. They are better called immorals (to coin a term) as opposed to morals and are in direct opposition to multi-culturalism, the rule of law and respect for humanity as a whole, but they do exist.

you still fail to address the point that the international law you scoff at and reject is part of US Constitutional law and that your argument falls outside of that. Again...your argument is might makes right, ends justify the means, and that the US version of law and definitions of "liberty" and "freedoms" are the correct ones...in other words positivistic and ultimately hegemonic.

Please at least attempt some sort of academic response to my refutations of your weak article. I apologize that you look foolish, but I am afraid that is the extent of academia in certain circles today. I cannot continue to carry out this debate if all you can offer is personal insults, weak and unsubstantiated denunciations, and blatant misinterpretations aimed at putting words in my mouth.


chris l pettit - 5/21/2004

You state sarcastically that millions flee...implying that millions flock to the US. Well...you are correct, but why are you correct? The myth in the US states that it is because of our values and freedoms. In reality, where else would an immigrant go than to a country where he has the chance to have more success economically than in his own nation that is being raped by US neo-liberal economic policy advocating currency flight, coporate exploitation and the like. You could do to read some Thomas Palley or Joseph Stiglitz. Most of those immigrants entering the country could almost be termed economic refugees if the US would actuallys tep up and recognize them as such. THis is not to mention the fact that the US denies nationals from certain nations entrance while catering to wealthier business interests. So your "freedoms" argument has little or no merit.

In addition...I am not arguing against the 10th Amendment. States rights in matters strictly within their borders is a sacred right that should be reserved. however, in reality, in the current era of globalization, there is very little that one can claim only effect those within a states borders. In addition, human rights and liberties guaranteed and envisioned by the Founding Fathers, who intentionally wrote the Constitution to be a fluid and flexible document to allow for the natural progression of a free society are guaranteed on the federal level and are not changeable by the states...see civil rights, woman's rights, etc. These are the liberties violated by the Patriot Act, and any conception of "liberty" envisioned by our "scholarly" author of the article. I see the US administrations as being despotic...not the people or the fundamental liberties that we should be guaranteed. It is this that you are confusing. I have a problem with individuals that try to lump everything in one package, as you seem to be doing. I just question whether that is the best way to look at things.

You also fail to see that there is an intricate system of checks and balances inherent in the international system...or their could be if the US and other members of the P5 did not possess vetos on the Security Council and the ability to force their interests on the rest of the world. You realize that your argument advocates for US hegemony and completely denies sovereignty for the rest of the world...basically you argue for US sovereignty and ability to violate the sovereignty of others according to our self interest. This is absurd...as it violates the same values of sovereignty you purport to uphold. If you want to argue for US supremacy, that is fine...just don't try to legitimize something that is not able to be legitimated.

In the international community properly ordered humanity...the people...would rule...not elite corporations and business interests. The ideas you support are simply outdated and impossible withoput being despotic in this age of globalization.

In addition...you would do well to read Mr. Larison's brilliant post above...which helps to assist our brilliant Professor (who did not need much more help) to look even more like the foolish ideologue he seems to be.


E. Simon - 5/20/2004

I like this one...

"I know you have no ability to be wrong so I don't know why I even bother with your omnipotence..."

Chris, ponder this - liberty assumes the people are sovereign. Your contempt for the ideals of the Founding Fathers, the philosophical implications of the 10th amendment, that governing best is governing least, that government closer to the people can be more easily checked than one further away - no wonder you think the US is "despotic." Yep, millions try to flee this despotic regime every year. Newsflash... incoming... any group can be called "elite," it doesn't translate into "despotic." Your runaway religious conviction that IL can force people into a "community" that lacks a meaningful form of conventional self-identification and consensus among its "citizens" is ludicrous and hypothetical. The style in which you rant convinces me that you identify with its lack of checks and balances.

Daniel B. Larison - 5/20/2004

Setting aside the amazing claim that the end justifies the means for a moment, what can it mean to call a society "liberty-respecting" if it diminishes the liberties of its members? At what point does a liberty-restricting society cease to be "liberty-respecting"? How can a society that tolerates the compromise of its fundamental protected liberties be considered "liberty-respecting"?

How do principles of international law interfere with liberty, which is entirely a matter of the relationship between a people and its government? International law forbids external aggression of all kinds--this is a condemnation of any conquest government depriving a people of its liberty. International law, in fact, helps to preserve domestic liberties from foreign states. You seem interested in evading this restriction against aggression so that your so-called "liberty-respecting" society can engage in the conquest of someone else's land--why else this need to get rid of international law's restraints? There is no real conflict between liberty and international law, unless liberty is just the slogan of the conqueror and the imperialist. What Jacobin nonsense is this idea that principles of international law must yield to some general liberty? This argument of yours has nothing to do with liberty, Prof. Khawaja--you are seeking to excuse inexcusable government actions by covering them with a word Americans respond to favourably.

How can there be any such thing as a "liberty-promoting" military practice? At best, military activities repel invaders or conquerors, or they destroy opposing armies in a war. The military cannot promote liberty--it is a contradiction in terms. The one is founded on force and coercion, the other on the exact absence of coercion and arbitrariness. Liberty is an artifact of civilisation: it cannot be promoted by the institution that engages in the destruction of civilisation. I can think of a few groups that believe violence and warfare are liberating, but they are not usually regarded as friends of liberty as we understand it.

American liberty was not advanced an inch by the bombing of Dresden, whether or not it was strategically justified (it was not). The only wars that have had anything remotely to do with American liberty were the War for Independence and the War of 1812. Everything else has been a matter of international state competition, most of which has not done much for our liberties, and most of which has subverted our protections from arbitrary government. The government has been very clever in adopting rhetoric about liberty in rallying people to its international conflicts, but that changes nothing about the relationship between those conflicts and our liberty in this country.

Furthermore, even if a military option is strategically optimal, that does not necessarily mean that it is justifiable. Perhaps in calculations of purely amoral Machtpolitik, winning a war might justify atrocities, but Americans do not assume that their wars are fought according to the standards of amoral Machtpolitik. The mass slaughter of civilians is profoundly wrong, no matter the goal. If we cannot state this unequivocally and mean it, then I don't want to hear anyone complaining about moral equivalence between Islamist terrorists and our government, because such denials will be nonsense in the mouths of those who justify such slaughters for the "right" side.

Incidentally, Hiroshima and Nagasaki were also not strategically necessary (the Japanese were willing to surrender long before that time). But even if someone had deemed them so, there is nothing that would justify the incineration of tens of thousands of civilians (whether by nuclear weapons or otherwise). If that is not immediately obvious, then there is nothing more to talk about. Once the evil of killing civilians becomes negotiable, then there is no longer any question of fighting on behalf of a just cause against Islamist terrorists--it becomes purely a matter of which side can kill the most. We will have forsaken any claim to representing a decent moral vision in opposition to theirs.

Prof. Khawaja's use of Hamilton in the original article was incorrect at best. Hamilton was arguing against Antifederalist objections based in their fears that the new federal system would be excessively anti-democratic and unrepresentative. Hamilton's argument was aimed at showing that greater centralisation of power in Washington vis-a-vis the states and the people did not create the aristocratic or monocratic tyranny that the Jeffersonians would later accuse the Federalists of creating. His concern was to show that his model of government was more protective of liberty than the dangers of more democratic government offered by some of the Antifederalists. Had he imagined that his words would be twisted to serve the cause of an intrusive, arbitrary government later on, it would have made him sick.

I can only assume that Prof. Khawaja was well aware of the historical context of the Federalist Papers, and that he has chosen to ignore that his cited example has relatively little bearing on the question of the "trade-off" between liberty and so-called security (which is usually nothing but a code for intrusive government, as Benjamin Franklin knew perfectly well). Liberty in the revolutionary period meant liberty from government--it was not some abstract state of being or general principle that could be served even as it was subverted on a daily basis.

It was Hamilton's purpose to show that this liberty would in no way be compromised by establishing the republican government on more stable foundations in the Constitution--in other words, he wanted to show that the Constitution did not allow for greater government intrusion. That is why the Preamble speaks of "securing" such things for the Framers and their posterity: it was an effort to reconcile the blatant usurpation of power that took place in Philadelphia with the desire to be free from arbitrary government that had been codified in the Articles of Confederation. It has ever been a Federalist myth thereafter that the government created by the Articles was not strong or stable enough to "secure" the liberties preserved after the rebellion, and that the Constitution was necessary to preserve and "secure" what had been saved because of the rebellion.

Subsequent history has shown that he was wrong, and the Antifederalists right, but none of this applies to what Mr. Isikoff was talking about. The problem with Mr. Isikoff's argument is not that he distinguishes between liberty and security, but that he believes that there is any such thing as a reasonable trade-off. The famous quote of Mr. Franklin meant that there can be no reasonable trade-off: the government will always subvert liberty in the name of security, and only a gullible person would accept the government's claims enough to give up his liberty. If he does, he will end up with neither, because it is in the interest of the government to keep the populace insecure and dependent on continuous promises of more security. In reality, the only thing the government delivers is more control. The promise of security is a chimera: no government, no matter how powerful, can fully deliver on it, but it can steal everyone's freedom very easily. To take this basic insight of my country's founders, inherited from the long struggles with royalism in the English tradition, and turn it inside out to create such a perverted meaning of it is quite offensive. What is more, it should be obvious that it is very, very inaccurate. If you want to cheer on Leviathan, Prof. Khawaja, keep the Founders out of it. They would not support the insane foreign policy you champion, nor would they accept the intrusive state apparatus you seek to justify with their words.

Short of a police state, there is no level of security that seriously compensates a people their lost liberty, and so every lost liberty is simply devoured by the state to no particular gain for the people. Furthermore, fundamental constitutional liberties are the absolute minimum of liberty, not its fullest expression--to compromise these bedrock, minimum liberties for any reason is to annihilate in principle any protections from arbitrary government.

"Pre-emption" in the absence of a verifiable and imminent threat ceases to be pre-emptive at all. It is simply aggression, just as invading Iraq was an act of aggression. Mr. Petit is correct that pre-emption is illegal, because no international lawyer worthy of the name recognises a difference between pre-emption and aggression.

Nonetheless, the character of an imminent threat is fairly clear--missiles being retargeted; forces building up along a border, among other things. The distinctions between an imminent and potential threat have always been perfectly clear (North Korea's massive army is a potential threat, but until it is mobilised at the front it will not become imminent). It has been those interested in provoking new wars who have blurred them. It is also because our own concept of national defense has become so ludicrously and wrongly defined to include half the world that anyone finds the need to view any and all states as potential threats.

Prof. Khawaja's oft-cited example of bombing Sudan was aggression, pure and simple. I don't believe for a moment that the links the professor mentioned were real, but even supposing they were real I would still regard it as an act of aggression.

There is no moral calculus that excuses aggression, and there is no goal that justifies it. How can serious people be in doubt about such basic moral truths?

chris l pettit - 5/20/2004

Mark...I agree with you that despotic rulers and minorities that govern...like those in the US, Iran, Israel...can you name me a country besides SOuth Africa to a point where the elites don't govern?...are wrong and that we should be shooting for "democracy." However, you seem to put the argument in terms of nation states and their rights to invade or attempt to overthrow those governments they do not like. I know that you would support the ending of US aid to Egypt, Saudi Arabia, Azerbaijan and other despots we as Americans support, but can you really claim that US sovereignty is sacred and then turn around and argue for our interference in the affairs of other states? THis is the hypocrisy I speak of that is evident in the Professors article.

Professor...my comments on the Resolutions stand...you can make no legal argument to support the contentions that the Resolutions give the US any right to invade Iraq...and the comments made continue to protray your "right makes right" philosophy. I respect your right to that opinion, but just want you to know that you have no moral or legal backing save a very twisted "chosen peoples" view of the world...which I suppose figures since I have seen you support the Israeli government on several occasions...along with such bigots as Mr. Heuisler.

I should remind you Professor that I am an international lawyer and very well versed in legal philosophy. maybe you ought to have a look at the Fuller-Hart debates or Austin and his claims before you embark down this road. I would hate to see you look foolish. Belief in a powerful sovereign dictating law and then being the enforcement of that law is one of the key ideas of positivism. It is why ignorant academics and the American public are so eager to write off international law...it does not necessarily have the enforcement mechanisms that positivists would like...and takes away from the idea of sovereignty and the powr of the US to enforce its interpretation of "laws" and "morals." Read up a little bit and I would love to debate this with you at a future date. By the way...your "promises" statement fits right into the legal positivism structure...the part about the difference between the basis of morals versus the basis of principles. I can see that your legal philosophy background is very weak...you might want to do some interdisciplinary work before trying to justify ideological stances in other manners.

You claim your argument was not legal in nature...well, then you are basically preaching an ideology aren't you since law is what human beings decided on to most objectively determine what the prevailing rights and standards of governance are to be in the world without having to go through the difficulties of all the prejudice and bias that comes from various religious, moral, and ethnic positions. As for the lack of Machiavellianism...well, you can call it what you want, but the "end justifies the means" argument comes directly from the misinterpretation of Machiavelli's The Prince...which draws its inspiration from a misinterpretation of Thomas Aquinas' writings (there is an academic progression from Aquinas to Machiavelli to American foreign policy, but that would take a chapter in a text to articulate)...are you sure you are a historian?

You speak of liberty and democracy yet deny international law and claim that is "might makes right?" How amusing! What could be more democratic than a system of universally recognized morals that are supposed to be applicable to all mankind...not to just those that self interested nation states want to apply them to. Do you forget that by ratifying the Geneva Conventions, the Kellogg Briand Pact, the ICCPR...among countless others, they become part of the supreme law of the land and part of US COnstitutional law? I would hate to think you would advocate the denial of our blessed and almighty legal structure professor. or is it that we get to selectively choose when to abide by it?

how about the "self defense" principle articulated by our own Daniel Webster that is still the accepted definition in philosophy and law today...that the only time self defense applies is when a missle is on the way...or someone has actually pulled a gun and is going to shoot you. There is no way to stretch this definition to the absurd bounds to which you try and move it. Pre-emption...or prevention...are completely untenable as legal concepts and are hypocritical at best in any sort of moral and ethical debate. So to review...you have no legal basis...no moral basis...and no ethical basis...which leaves you with a power philosophy "might makes right" interpretation.

You must have more than a blatant ideological basis for your arguments...or else you become as relevant as a religious advocate on a box on the side of the street. I do deal with your arguments...maybe not in the way you would like by showing you the gaping holes in them and the basic underlying philosophy behind them...whether that philosophy is intentional or not is not for me to judge.

It is good to see that a supposed intellectual responds to criticism with insults and personal attacks...surely you can give a better account of yourself than that professor.

Bill...your misinterpretation of legal positivism is laughable...read a book...again I suggest you look at the debates between Lon Fuller and HLA Hart to see your mistakes. What you articulate sounds almost like the Pure Theory of Law...but in a twisted conservative shell. I know you have no ability to be wrong so I don't know why I even bother with your omnipotence...but maybe the cloud of bigotry and prejudice will lift at some point and you will actually join humanity in the international community.


E. Simon - 5/20/2004

I'm not sure I see the justification for terrorism provided it can secure liberty as different than when perpetrated to achieve any other goal. Since your posts seem to stress the likelihood of success as a deciding factor, I think it's important to realize that terrorism is more likely to succeed when directed *against* a democracy. This phenomenon was recently observed in Spain and seems similar to the concept of the democratic peace - that the high burden of war makes a population less inclined to it, and democracies are more likely to translate that disinclination for suffering the burden into a change of government policy. Replace "war" in the last sentence with "not giving in to terrorism" and you see what I mean.

What is ironic is that terrorists get the message that their tactics are more likely to succeed when directed *against* free countries - since they are almost always democracies, rather than to secure freedom. Therefore, freedom is much more likely to impact success insofar as it describes the victim, not the perpetrator/potential victor or his stated goals.

Bill Heuisler - 5/19/2004

Sorry, Mr. Khawaja.
My admiration apparently knows no bounds.
Bill Heuisler

E. Simon - 5/19/2004

Dr. Khawaja,

I appreciate your reply.

I also appreciate your perspective, and the distinction you note between Zionism and post-Zionism. I agree that it is quite a leap to link specific Zionist acts of terrorism to the emergence of, fifty years later, specific prominent Israeli libertarians. However, the Israeli state and society that produced Tommy Lapid and Barak is fundamentally the same political embodiment that was established in 1948. Yes, there have been basic laws passed, but there have been no significant armed internal revolutions. Oppositionist-Zionist factions that posed significant challenges to the authoritative legitimacy of the democracy born 56 years ago died out with the Altalena.

I certainly agree with you that civilians in Hiroshima and Nagasaki were targets, not collateral damage.

Now I'm sure we could debate at length the legitimacy of establishing a sovereign nation in a land in which a people have not been recently - only historically - a dominant group. Surely the inherent coercion involved in depopulating villages is much easier for me to take offense to than purchasing land from absentee landlords - which is the process that initially led to a Jewish majority in the areas partitioned into a Jewish state by the U.N. However, where I do believe we would find agreement is that in Western minds a link between self-determination, democracy and military revolutions is all too often merely assumed. I see self-determination as the link between liberty and democracy, and the fact that all other alternatives in Palestine in 1948 would have led nowhere near this goal (for anyone) makes me less willing to denounce those Zionist groups who chose to accept it (and partition).

Also, I don't see Shinui's platform (which is statedly pro-Zionist) as being too problematic for its overall goals, goals which I don't see as anything approximating a step backward (although perhaps - over time - a step forward) with regards to the state's relationship to its Arab minority.

I'm not sure what form of terror Matt Duss seems to accuse me of justifying. I think he is simplifying an issue that was once complex.

mark safranski - 5/19/2004

Chris wrote:

"The "liberty" spoken of seems to be the liberty of US interests to impose what they see as the "best" policies throughout the rest of the world...not actual "liberty" of individuals to determine thier own belief structures and governmance within their own culture and religion. What part of liberty is personified by the massacre of innocent civilians, the arbitrary arrest of people who have nothing to do with "terror", support of "terror" to fight "terror." This is hypocrisy at its worst."

Armed minorities that maintain their rule by force against the wishes of their own people - which is what is often really meant when when the argument is raised about US interference in other nation's internal affairs - are not really legitimate governments despite the fact that international law deems them to be so. So when we discuss Iran's hardline mullahs, or Burma's military rulers, or Bashar Assad or similar regimes American intervention does not disturb the rights of those people to rule themselves because such an event has not taken place yet. Assad has no more real legitimacy than the previous French colonial administration or an Ottoman Sultan.

Without the consent of the governed we are only discussing regimes of force that differ only by degree, not kind. US intervention may have good or bad results but it is not obviating anyone's liberty in these cases.

Bill Heuisler - 5/19/2004

Dr. Khawaja,
Congratulations on a wonderful article and very effective defense. Again, we agree on nearly everything. Troubling?

Legal positivism asserts law as manufactured according to certain socially acceptable (PC?) conventions. Positivism apparently arose in opposition to classical natural law's moral constraints on the content of law. Positivism draws attention to the idea that law is "positive" as opposed to "natural" or derived from natural law or morality.

Procedures enforcing Iraq's obligation to disarm after a Cease-Fire are based on accepted Laws of centuries that allow an army to spare enemy combatants after defeating them. The alternative? Slaughtering Republican Guards to a man, destroying Baghdad and executing Saddam. So, Saddam's taking advantage of merciful restraint was not only immoral, but eventually suicidal; our restraint on the road to Baghdad was based on life-saving morality.

Taking CP's (and the UN's) misappropriated thesis to conclusion would result in more functional murder, not more human rights for the weak and defeated.
Bill Heuisler

Matt Duss - 5/19/2004

re: "non-combatant immunity." It seems that you're trying to avoid the broader implication of your argument, which is that terrorism (defined as the use of force against non-combatant populations in order to achive a political goal) is sometimes justifiable. Thus, if, for example, there were a Palestinian group which did have "liberty" for Palestinians as its sincere goal, then it would, according to your reasoning, be acceptable for them to target Israeli civilians as a means of throwing off the occupation and securing their liberty.

But if we're to accept that the murder of civilians is an acceptable tactic for the securing liberty, once it's been established that liberty is indeed the sincere goal of the murderers, then how much murder should be countenanced? 5 deaths? 20? 3000? 6 million?

What I'm getting at is that you seem to be arguing that morality lies with intentions rather than actions, which I find troubling. Please correct me if I've misinterpreted.

p.s. thanks, by the way, for your good response to Ephraim Simon's chilling attempt at justifying Zionist terror.

chris l pettit - 5/19/2004

As Mr. Daniels states, international law was set up to deal with exactly what Professor Khawaja tackles in his article. Indeed, it is our insistence on clinging to outmoded and dangerous "sovereignty" nation state principles that continue to hinder any progress on this problem. We cannot continue to think that US self interests can be declared to be what is good for the international community...and the internaitonal community is what we are speaking of when one talks of the "war on terrorism."

The "liberty" spoken of seems to be the liberty of US interests to impose what they see as the "best" policies throughout the rest of the world...not actual "liberty" of individuals to determine thier own belief structures and governmance within their own culture and religion. What part of liberty is personified by the massacre of innocent civilians, the arbitrary arrest of people who have nothing to do with "terror", support of "terror" to fight "terror." This is hypocrisy at its worst.

The position taken on the ends and means is the same mistaken and rather tired Machiavellian misinterpretation that has governed foreign policy from the Germans in WWI and II to US Cold War policy to almost whatever belligerent and aggressive militarism you care to give as an example. It surprises me that a reputable historian would cling to such a misguided policy. It naturally involves viewing history as a series of separated instances instead of a continuous stream of causes and effects. Ends are always means in and of themselves. Machiavellianism got us into this whole mess in the first place...you can look at Carter's decision to fund bin Laden and his terrorists in order to fight the Soviets. Or you go back further and say that was caused by the Soviets invading Afghanistan and the Cold War...which can be traced to WWII and the absurdity that occurred after the war's resolution. All Machiavellianism allows you to do is claim that all your mistakes and self interested atrocities are allowable for the sake of some greater goal that ends up being like blind faith in a murderous war god to eventually bring peace. I find it to be very intellectually immature and used as the rhetoric of the powerful to control most of the rest of us.

The same reasoning is fallaciously used to try and justify the war crimes committed at Dresden, Tokyo Hiroshima, and Nagasaki. it is an attempt to cleanse the almighty virtuous deity state of the US of any responsibility for atrocities caused or aggression waged by its government.

Pre-emption is illegal under international law...PERIOD. THis is a universally recognized principle that has been articulated in many treaties and agreements. The only allowable strike on a nation is one of self defense as norrowly defined by the bounds of Article 51 of the UN Charter.

Your analysis of Resolutions 678 and 1441 are fundamentally flawed. There was no legal basis for the war of aggression in Iraq. The argument regarding the continuation of the first war is unsustainable under the language used in 678...and 1441 was broad...but was interreted at the time and continues to be interpreted as requiring another resolution for any sort of military action. What happened was the US broke international law and the UN Charter when it realised that the international community would not sanction such action as the US wanted to take. If you disagree with that opinion of the international community, fine, but don't give me this BS about a legal justification...there was none. By the way...if you are interested in the intracacies of the legal arguments and exactly why they are so incorrect, let me know and I can send you one of several articles I have written on the subject analysing both the US and UK legal positions. if anything, the UK may have more of a leg to stand on than the US...but not much.

I encourage everyone to step outside of their liberal or conservative boxes...as both rigid consitutencies are blatantly mistaken about the need for a
"war on terrorism", the nation state system, and the importance and relevance of international law as an authority in the world. Right now, the positions taken above and most articulated throughout the political establishment lead us to a world where the US uses its military might to impose what it thinks are the right ways of doing things while completely disregarding everything that other cultures and systems have to offer. This equates us with the worst despotic systems of the world that sought to dominate militarily and ideologically. One may not like to hear such comparisons, but they are impossible to deny. The blessed Chosen Nation of the US who extolls all virtues and can do no wrong does not exist and never has. Our nation is much worse than many if not most others in the world and we need to realise it. Our government has broken and torn apart most of the major principles of the "rule of law" and international framework that took 400 years and two world wars to reach legitimacy. One can make the argument that the previous four administrations of the US have presided over the nation that has had the largest negative effect on international peace ever. Can this change? yes...but only in one of three ways. We shed our blinders and become a nation part of an international system based on boosting humanity instead of our prejudicial and idiotic greed and self interests based on invisible lines drawn on a map or bigoted religious or ethnic views of others, the US is supplanted and toppled from the top of the world stage by a nation of combination of nations, or a catastrophic event such as nuclear war or massive catastrophe finally forces nations and peoples to work together as international law is designed to allow them to.

I am sorry Prof. Khawaja but I find your article highly elitist and prejudicial to nationalistic US interests. It supports ahighly despotic position where might makes right and law has no weight whatsoever. It reeks of legal positivism and the might of the sovereign with all the weapons to make and enforce law as it sees fit. Your "rule of law" and human rights positions end up being contradictory and baseless since your positionb necessarly means the abandonment of any true rule of law and ethical structure and instead replaces it with a unilateral law based on coercion and oppression of others. If you want to make the argument that the US should rule and lead and control the world and its politics and norms, please say so...I can accept that position. it may put you in the same class of all militarists, despots and imperialists in history...but it is at least honest and respectable. In your current position you can claim neither moral, ethical nor true legal support. The philosophical positions you have taken are bankrupt and have everything to do with power and nothing to do with rights. I would appreciate it if you refrain from trying to couche your arguments in human rights, liberty, or any such noble concerns that at their core have nothing to do with your argument.


E. Simon - 5/18/2004

Israel's supreme court is currently led by Aharon Barak, whose stance on civil liberties is more positively disposed to enlightenment era notions of freedom than that of any other justice of note to date. The most recent significant change in the Knesset was the coalition-breaking win of Shinui, the party most ideologically similar in the Middle East to what in America would be called Libertarians. (If you don't believe me, check out their website http://www.shinui.org.il/elections/eng/principles.html). The debate on how to better integrate Arab citizens into a body politic that they perceive as equally protective of their own rights is becoming louder and more pervasive throughout Israeli society.

It seems as if what the Zionists fought for did become an important vehicle for advancing liberty, Dr. Khawaja - and significantly so at that considering the state of the other governments in the region. So, as one who would condone terrorism - circumstances permitting, I'm not sure how you could so quickly dismiss the Zionists as not being any more justified in their actions than are the Palestinian factions.

However, I think it's philosophically cleaner and much less problematic politically and morally to refine distinctions between collateral damage - which many more would understandably condone - and terrorism. Terrorism seems increasingly more like an act of desperation and (misdirected) pride than the best strategic option in a bad situation, and I accordingly see no need to condone it either way. Groups currently practicing terrorism would be wise to realize this as well and adjust to that reality.

E. Simon - 5/18/2004

Don't you think you're stretching the bounds of the hypothetical by arguing that "liberty" might be a clear goal of Palestinian terrorism?

Matt Duss - 5/18/2004

Regarding Iraq as an act of enforcement, I generally agree, though it's worth pointing out that the U.S. went to war more or less unilaterally to enforce the resolutions of an organization which was, rightly or wrongly, against that war. Also, the idea of the Bush administration going to war to "uphold international law" contains quite a bit of irony, wouldn't you say?

Even so, your argument about "an attack on your country" clearly doesn't apply in the case of Iraq. They had not attacked us, nor were they evidently planning to.

Regarding Palestinian terrorism, I'll resubmit the question: If Palestinian militants have evidence which supports the conclusion that violence against civilians will help them secure liberty for Palestinian people, how can you argue against them using it? They certainly have such evidence, most obviously in that it was partially through the use of terrorism that Israel itself achieved statehood

Matt Duss - 5/18/2004

First off, the Iraq invasion was not preemptive, it was preventive, the necessary distinction being the lack of imminent threat, which is a claim Bush insists he never made. Jeffrey Record's essay http://carlisle-http://www.army.mil/usawc/Parameters/03spring/record.pdf">"The Bush Doctrine and War with Iraq" explains this at length.

I agree with you that liberty is (should be) the goal for which governments are created, but liberty for whom? Just for Americans? Is it morally defensible for our government to deprive others of their liberty, their lives, in its attempts to secure our liberty? If so, how many lives?

Consider: you've written an excellent theoretical defense of the right and duty of Palestinian militants to kill Israeli civilians if they feel that this will, in some way, enhance Palestinian liberty.

Michael Joseph Daniels - 5/17/2004

By saying that the ends justify the means, Ifran Khawaja not only creates the same quandry that international law was meant to prevent, allowing unlimited warfare that benefits no one in the long run (imagine if the US had used the atomic bomb on a country that could use them back), but he also creates a domestic question that is equally troubling. In a vacuum where states do not concern themselves with anything but victory or the security of the state, serious abuses of power become not only possible, but inevitable. Consider the example of the Soviet Union; in order to preserve the state, which Khawaja argues justifies any means, the USSR had to repress every aspect of its citizens lives and even purge its population. To say that these actions are justifiable is to say that the state exists merely to perpetuate itself and can ignore the well being of its citizens, ignoring any notion of a social contract. Remember that our founding fathers were deeply troubled by the notion of a strong, centralized state because they feared such a state would forget the rights of its own citizens in the name of national strength.
In order to avoid such moral quandries, we must instead assume that the perfect state is a utopia, and like the name utopia implies that it does not exist. Any action the state takes will have its costs and its benefits in terms of the well being of its people, and if perpetuating the state in its current form hurts the people more than it helps them, sacrificing the security of the state for the well being of the people is the only position which can be defended.