We had this discussion on September 12. some folks still haven't sorted it out.
We Must Choose: Justice Or War?
By George P. Fletcher
Saturday, October 6, 2001; Page A29
Nearly a month after the events of Sept. 11 we are still confused about the right terms and analogies to describe what happened. Was it a crime calling for justice, or an attack calling for a declaration of war? Was it an aggravated case of the Oklahoma City bombing or a recurrence of Pearl Harbor? If the mass killings are the crimes of individuals -- Islamic fundamentalist versions of Timothy McVeigh -- then we can think about arresting them and bringing them to "justice." If this is an act of war, then justice is irrelevant. We should carry through on the much-discussed military campaign. And if we are at war, we should pursue our national policies without worrying about moral nuances of equally balanced scales.
Justice and war are incompatible ideas. The first is about restoring moral order in the universe. The latter is about securing the survival and achieving the partisan goals of a particular nation. Yet the Bush administration is ambivalent about whether it wants justice or war. The Pentagon initially labeled the military campaign Infinite Justice, and yet at the same time President Bush described the attack as an act of war.
The administration remains focused on Osama bin Laden as the "prime suspect," as though this were an episode of "Law and Order." And yet we are building a military alliance to respond to a devastating attack on the United States.
We should be clear about the differences between justice and war. If this is a matter of justice, then we should be focused on the individual culprits. If it's war, then the individuals are beside the point. No one cared about the individual Japanese pilots who returned safely from the attack on Pearl Harbor. They were not criminals but rather agents of an enemy power. They were not personally "guilty" of the attack, nor were their commanders, who acted in the name of the Japanese nation. The same is true of the organized terrorist movement, even though in this case the foreign power is as diffuse as the World Wide Web.
Whether this is "really" war does not depend on whether the terrorists have a fixed and well-defined territory. The network may be difficult to locate, but so are troop installations and armament factories that become targets in the case of conventional warfare. If the United States lands troops in a country for the exclusive purpose of locating and uprooting terrorist cells, there is no sound reason for indigenous armies to resist us, unless, of course, the local government wishes to support the right of terrorists to organize on its territory. The problem with calling this "war" is, therefore, grossly exaggerated.
Nonetheless the Bush administration and the media continue to obsess about one man in Afghanistan. The attorney general insists on CNN that bin Laden has been indicted and this supports the case for pursuing "justice." Some people may be afraid of the idiom of war. It sounds, well, too bellicose and dangerous. Justice sounds like a more humanitarian objective. But this is an illusion based on a misconception of the nature of war. In seeking justice, we focus on the importance of the victims and the need to vindicate their loss. But if the United States uses military force, the last thing it should think about is the interests of the victims. We should have our sights on particular policy objectives that can be achieved by employing the lamentable means of destruction and death. It is bad enough to think of war as politics by other means. But to think of war as justice by other means runs the risk of imitating the holy mission of the enemy.
Justice in punishment leads to the common understanding of the Biblical maxim of an eye for an eye. If we lost 6,000 people then they should, too! But suppose that the entire infra-structure of the terrorist movement suddenly surrendered. Or suppose its members credibly pledged never to attack again. Would we have any justification for harming a single soul? Yes, in the pursuit of justice. No, in waging war.
This shows that the aims of war can be more merciful than the imperatives of seeking moral order. Even if we desired justice, we are not in a position to pursue it. We are a party to the dispute, not a neutral judge above the fray. We cannot be both combatant and the jury of our own rectitude. We have essential national interests at stake. Our going to war is nothing more righteous than admitting the failure of politics. We have to fight if that is the only way of subduing and controlling the dangers of terrorism.
The writer is Cardozo professor of jurisprudence at Columbia University. He is the author, most recently, of "Our Secret Constitution: How Lincoln Redefined American Democracy."
© 2001 The Washington Post Company
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