In Time of War the Laws are Silent

tiimes of war

The following is an excerpt from the essay We need the rule of law, not the rule of war, published on Sept. 15, 2001, by James Carroll, just a few days after the 9/11 attacks. It was one of the best essays I read at the time, and almost 15 years later was clearly prophetic. Carroll could sense immediately where the War on Terrorism was going to take us….

“Do the rhetoric of war and the actions it sets in motion really serve the urgent purpose of stopping terrorism? And is the launching of war really the only way to demonstrate our love for America?

First, let me state the obvious. The nearly worldwide consensus that the terrorist attacks on New York and Washington must be met with force is entirely correct. The network of suicidal mass murderers, however large and wherever hidden, must be eliminated. But force can be exercised decisively and overwhelmingly in another context than that of ”war.”

One of the great advances in civilization occurred when human beings found a way to channel unavoidable violence away from ”war” and toward a new, counterbalancing context embodied in the idea of ”law.” The distinction may seem too fine to be relevant in the aftermath of this catastrophe, but it is after catastrophe that the distinction matters most.

The difference between ”war” and ”law” is not the use of force. The United States of America, with its world allies, should be embarked not on a war but on an unprecedented, swift, sure, and massive campaign of law enforcement. As the term ”law enforcement” implies, the proper use of force would be of the essence in this campaign.

Why does this distinction matter? Four reasons:

War, by definition, is an activity undertaken against a political or social entity, while the terrorist network responsible for this catastrophe, from all reports, is a coalition of individuals, perhaps a large one. Law enforcement, by definition, is an activity undertaken against just such individuals or networks.

By clothing our response to the terrorist acts in the rhetoric of war, we make it far more likely that members of groups associated by extrinsic factors with the perpetrators (Arabs, Muslims, Afghans, Pakistanis, etc.) will suffer terrible consequences, from being bombed in Kabul to being discriminated against in Boston. Furthermore, the rhetoric of war, as it falls on the ears of such people (a billion Muslims), makes it all the more likely that they will see America only as their enemy.

War, by definition, is relatively imprecise. Steps can be taken to limit ”collateral damage,” but the method of war, in fact, is to bring pressure to bear against a hostile power structure by inflicting suffering on the society of which it is part. History shows that once wars begin, violence becomes general. As President Bush threatened, no distinctions are made. In law enforcement, distinctions remain of the essence. Law enforcement submits to disciplines that are jettisoned in war. Do we really have the right to jettison such disciplines now?

War, similarly, is less concerned with procedure than with result. More plainly, in war the ends justify the means. In law enforcement, the end remains embodied in the means, which is why procedures are so scrupulously observed in criminal justice activity. To respond to a terrorist’s violation of the social order with further violations of that order means the terrorist has won.

War inevitably generates its own momentum, which has a way of inhumanely overwhelming the humane purposes for which the war is begun in the first place. In the death-ground of combat violence, self-criticism can seem like fatal self-doubt, so the savage momentum of war is rarely recognized until too late. The rule of unintended consequences universally applies in war.

Law enforcement, on the other hand, with its system of checks and balances between police and courts, is inevitably self-critical. The moral link between act and consequence is far more likely to be protected.

What does winning a war against terrorism mean? How has hatred of America become a source of meaning for vast numbers whose poverty already amounts to a state of war? Must a massive campaign of unleashed violence become America’s new source of meaning, too?

The World Trade Center was a symbol of the social, economic, and political hope Americans treasure, a hope embodied above all in law. To win the struggle against terrorism means inspiring that same hope in the hearts of all who do not have it. How we respond to this catastrophe will define our patriotism, shape the century, and memorialize our beloved dead.”

About Christopher Chase

Co-creator and Admin of the Facebook pages "Tao & Zen" "Art of Learning" & "Creative Systems Thinking." Majored in Studio Art at SUNY, Oneonta. Graduated in 1993 from the Child & Adolescent Development program at Stanford University's School of Education. Since 1994, have been teaching at Seinan Gakuin University, in Fukuoka, Japan.
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