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LAWFUL CARNAGE BY ROZINA ALI
Lawful Carnage
Scholar Samuel Moyn and journalist Spencer Ackerman consider the inherent contradictions of the endless war on terrorism.
BY ROZINA ALI
B O O K S
Looking back, the war against terrorism was designed to be a forever war. Two months after George Bush launched the global “war on terror,” the United States–led coalition had wrested control of most of the country of Afghanistan from the Taliban government, and had killed a top al-Qaeda military commander in a bombing raid. Not long after, hundreds of Taliban soldiers across Afghanistan laid down their weapons, and their leader Mullah Omar agreed to surrender the group’s stronghold Kandahar to the local tribes. The Taliban had effectively handed the country to America. Yet none of this appeased Defense Secretary Donald Rumsfeld. He rejected the capitulation and called a “negotiated end” to the conflict “unacceptable to the United States.”
Over the next 20 years, the U.S. would go on to spend nearly a trillion dollars in Afghanistan, over 2,400 American forces would die, and some 20,600 others would come home injured. More than 66,000 Afghan military and police would be killed, and countless more civilians would be dead. The U.S. will leave Afghanistan this year, with no certainty that the Taliban, which has been advancing across the country, won’t seize Kabul once again.
Yet none of these tragedies— from the rejection of surrender in Afghanistan to around one million civilians killed in the war on terror—constitutes a crime, even if it violates our moral sensibilities. This is not because the United States acted with impunity after the 9/11 attacks; to the contrary, the Bush administration repeatedly pointed to the Constitution and international law to legitimate its wars. His successor, a constitutional lawyer, did the same; Barack Obama even used law to justify the assassination of a U.S. citizen, Anwar Al-Awlaki, and his 16-year-old son. Donald Trump called himself an “anti-war” president as he turned to existing laws to accelerate bombing in Afghanistan, which increased civilian casualties by 330 percent.
From the beginning, the carnage of the war on terror has proceeded lawfully. Every administration has
From the beginning, the carnage of the war on terror has proceeded lawfully.
argued that they have been accountable to the law—and by most interpretations, they have been right. But if there have been no war criminals, it’s because every administration has relied on the American public’s fundamentally misplaced assumptions about the nobility of law. Law may be meant to restrain warfare and protect civilians, but, it turns out, law could also be used to perpetuate oppression.
Two recent books, Humane by the legal scholar Samuel Moyn and Reign of Terror by the journalist Spencer Ackerman, consider how the cloak of legality has allowed the United States to continue one of the longest, and most immoral, wars in its history. Both are driven by an abiding concern: How did we arrive at a place where America continues to fight a failing war on terror that has damaged the world and itself and, perhaps, destroyed once and for all our claim to moral authority?
MOYN TRACES an “anti-war history of the laws of war” by looking at how law has transformed not only the idea of war, but also the idea of peace. He begins in the mid-1800s when prominent pacifists, including the novelist Leo Tolstoy, lobbied for an abolition of war over merely reforming warfare. But the debate was lost, as no state could be convinced that a world without war was possible.
With abolition a dead letter, Western countries intensified efforts to humanize war. What followed was a century and a half of legal debates and global treaties to adopt restraints on aggressive actions, and ensure the rights of wounded combatants and civilians. But even attempts to arbitrate conflict in the hopes of reducing harm and moving toward peace had exceptions: The “right to go to war” was allowed in the name of self-defense; states agreed to sign treaties only on loose conditions; insurgencies did not fall neatly under the rules of combat between nation-states and were considered the “internal matters” of empires, which effectively authorized states to kill and maim civilians in Africa and Asia. For decades, there were no widely agreed-upon rules about air weapons; thus, the apocalyptic bombing of cities across Europe and the atomic weapons dropped on Hiroshima and Nagasaki went unpunished by the international community.
But there have been drastic transformations. Moyn lays out three significant turns after World War II that profoundly shaped how we conceptualize wars today. The first was that, for the United States, the Cold War shifted the goal of war: The purpose of armed conflict was no longer to achieve only peace, but also to bring “freedom.” The second was the atrocities of the Vietnam War, which shocked public sentiment, and led the debate on the war to become fixated on America’s conduct in combat, not the propriety of the war itself. As a result, international humanitarian law, which was concerned with regulating armed conflict, not abolishing it, emerged as an important force in shaping the public’s thinking about war. Atrocities like the My Lai massacre so troubled America’s moral conscience that the U.S. military and government moved to codify their own rules to humanize war (it was, after all, better to work with the reformers than the abolitionists). By the first Gulf War in the 1990s, teams of lawyers were vetting airstrikes for approval and had become an essential part of conducting modern warfare.
The third significant shift happened around this time: The U.S. government convinced the public that it could serve as a “good policeman” around the world. A mix of factors led to this reorientation, including the success of the Gulf War, a greater focus on victims of conflict, and growing concern about violence in newly decolonized territories. As Moyn notes, “more than 80 percent of all U.S. military interventions abroad since 1946 came after 1989.” By September 2001, the government and public’s view of warfare was now wholly concerned with the legality of its conduct, not with the legality—or morality—of launching wars in the first place. The result is that American wars no longer shock or awe us; instead, by becoming “lawful wars,” they recede from our attention, and no longer demand our outrage.
While Moyn offers a sorely needed history of how war has become palatable, Ackerman looks, in chilling detail, at how the war on terror became endless. In this endless war, the aim was less to eradicate any specific enemy for the sake of peace, but rather to wage war against abstract ideas, like “extremism.” In one passage about the decision-making that led to the U.S. invasion of Iraq, he describes how in March 2003 the CIA had recommended an airstrike on a camp in Iraq to kill Abu Musab Zarqawi, the infamous al-Qaeda commander. The Bush administration rejected it. Killing him prior to the invasion would undermine their justification for war against Saddam Hussein.
Such details have been largely forgotten. For the public, the original sin of Bush’s war on terror was not the start of the war itself, but the atrocities that marked its initial years: hog-tying of Guantanamo detainees, including a 15-year-old boy, and torture of suspects at secret black sites, including, in one instance, a pregnant wife. The U.S. adopted its own standards of legality, declaring its actions to be legal or constitutional, even if they contradicted the United Nations’ standards of humane conduct in war. White House attorney John Yoo defined the legal threshold for torture in his now notorious memo that determined the U.S. could use “enhanced interrogation” against alQaeda and Taliban detainees.
The revelations of massacres of civilians at the hands of U.S. soldiers and contractors, and torture at the prison of Abu Ghraib, only entrenched the U.S. further in conflict. These atrocities were kinks, however unfortunate, in an otherwise good war. The political establishment and the military drew the conclusion not to end the war, but to salvage it.
REIGN OF TERROR: HOW THE 9/11 ERA DESTABILIZED AMERICA AND PRODUCED TRUMP
BY SPENCER ACKERMAN Penguin Random House HUMANE: HOW THE UNITED STATES ABANDONED PEACE AND REINVENTED WAR
BY SAMUEL MOYN Farrar, Straus and Giroux
REIGN OF TERROR is organized into chapters that analyze the relationship between the war on terror and conservatives, the right, and liberals—finding that each group, whatever its criticisms of the war, has found reason to sustain and even expand it. The fact that the enemy
(extremism) and the goal (freedom) were so abstract helped these various poles of the political spectrum define and redefine the enemy to suit their purpose. It’s part of the story of how the nativist current, which Trump encouraged, ultimately decided it was immigrants and Muslims who were the existential threat the U.S. faced.
Ackerman, though, is just as scathing of Obama, who convinced much of the liberal elite and the broader public that the Democrats were waging a better, more just war than the Bush administration. When the confusing and panicked years of the 9/11 era could no longer explain the nebulous legal justifications for secret renditions abroad or mass detentions at home, fresh policies and promises that America would adhere closely to the law characterized the new face of war. Targeted drone strikes became a “humane” alternative to the messy invasion of Iraq, even as airpower launched us into dozens more countries; nSA monitoring with new amendments to the Foreign Intelligence Surveillance Act offered a more “palatable” option to the hasty mass surveillance of the Bush years; continued prosecutions of terrorism suspects were touted as more “just” than detention of immigrants without charges, even if the arrests were based on use of informants and manufactured threats. The war on terror was merely reoriented, not stopped. The administration even found justifications to keep Guantanamo open. “The civil libertarians had hoped Obama would finally make the War on Terror respect the law,” Ackerman writes. “They watched in disbelief as Obama continued to make the law respect the War on Terror.”
The brilliance of Moyn’s and Ackerman’s books is in how they wrest control of the dominant narratives that have gripped the public imagination in the post-9/11 years, and in particular, the country after Trump.
Moyn shows that war, as natural as it may seem, was not always widely accepted as such. In 1944, a New York Times editorial noted: “Let us not deceive ourselves into thinking that war can be made more humane. It cannot. It can only be abolished.” World War II wasn’t the war for freedom, as Bush and Obama characterized it. The United States’ (and the Soviet Union’s) casus belli was that Hitler had committed a “crime of aggression”; that is, he started a war. Today, though, debates over the legal and moral justifications for launching wars have largely faded. Moyn astutely observes, “Much greater suffering was visited on more people through illegal war than illegal war crimes—in part because so much is legal once war starts.” What has resulted, Ackerman notes, is that those who had been responsible for the atrocities that once shocked us continue to enjoy a long political life: Gina Haspel, who oversaw torture at a black site in Thailand, became director of the CIA in 2018. The agencies that perpetuated waterboarding, detention, and surveillance sided with the #Resistance to Trump.
There has been little incentive to stop the war on terrorism—not the drain on the public purse, the civilian deaths, the destruction of entire cities, the scandals of torture, nor the underlying immorality. Instead, the Biden administration only appears to be winding down the “forever war” simply due to fatigue. Yet the same lasting assumptions, like that the U.S. is a “good policeman,” underlie the administration’s pivot to Asia and the rising tensions with China.
Taken together, the conclusions of Humane and Reign of Terror are discomfiting, because they point to our profound failure in articulating a vision for the type of world we want to live in. Despite thinkers like Michael Walzer who believed that restraining war through rules is “the beginning of peace,” Moyn posits an unsettling truth: Humanizing war doesn’t necessitate peace. What then, one might ask, is the point of making war lawful? And even if one takes Walzer’s position, his hope rests on a flawed assumption: Today, the U.S. isn’t in the business of peace. It is in the business of freedom, a goal so nebulous and immeasurable that we can never know when it might be achieved. This allows the U.S., armed with the law, to mete out “justice” in perpetuity.
The story of war, though, isn’t just a story about law. It’s also a story about the absence of peace. Moyn emphasizes that conflict has been normalized as the anti-war movement has dissipated. Though the Iraq War protests were the largest anti-war demonstrations in history, there were hardly any protests when the war on terror was launched in 2001. Today, we have far more organizations like Human Rights Watch and Amnesty doing the critical work of decrying conduct than we have thinkers and organizations doing the equally critical work of questioning the very use of war itself.
Historically, the reforms that have been adopted to make war more humane have not been born from the goodwill of states or the elite or the military. They were adopted due to fears of public relations fiascos, persistent pressure from anti-war movements, and whistleblowers who leaked images and details about atrocities in our name. It is no coincidence that these elements of civic life have also become criminalized over the past 20 years. Activists are surveilled, journalists’ records are subpoenaed, whistleblowers are tried, protestors are jailed. Lawfully.
The Afghanistan War may be ending, but the age of war drones on. We may not be barreling cities with bombs anymore, but inflicting law and order at home and around the world, it turns out, still results in physical and moral carnage. The U.S. has brought no peace, and no freedom, and thus we continue. n
Rozina Ali is a contributing writer at The New York Times Magazine and a fellow at Type Media Center.
