In its modern form, the just-war theory is the work of several professions and institutions: philosophers, theologians, international lawyers, military officers and human rights activists. It has been influenced by military codes of conduct, military training exercises, international conventions and tribunals, academic exchanges and church councils. In his new book The Violence of Peace (Beast Books, 2011), Stephen L. Carter, a professor of law at Yale University, has entered the lists to weigh the application of just-war thinking to the war on terror not as a lawyer, but as a philosopher.
At the level of theory, at least, Carter’s heart is with the Christian just war tradition, in its Catholic form, rather than philosophical and juridical approaches to the justified use of armed force. Its stress on justice and peace, he suggests, is sounder than the secular theories that emerged after the 17th century. Noting the reluctance of classical Christian thinkers to allow war, he comments, “the tradition was more sensible–and more morally attractive–before the secularists got their hands on it.” The key innovation of the secularists, as he sees it, was the introduction of self-defense (instead of the restoration of a just peace) as a just cause for war-making. It is ironic, then, that the principle of self-defense serves as the ethical backbone of this book, involving, as it does in the War on Terror, a fast march away from the Christian principle of a just peace and the classical standard of a right intention. But it is national self-defense that lies at the heart of President Barack Obama’s military policies, and his military ethics is the subject matter of the book.
The president’s expansive standard of self-defense becomes Carter’s own as he examines the declarations (especially the Nobel Prize lecture) and decisions of the president in prosecuting the war on terror: assassinations, renditions, torture, indefinite detentions and drone attacks on foreign territory. In practice, Carter employs the tools provided by the permissive strains of philosophical just-war theory to breach the walls of restraint constructed by the multiple schools of the just-war tradition. Contemporary Christian thinking on the just war plays no part in his treatment of present-day conflicts. Like a court philosopher, his constant disposition seems to be to accept whatever measures of “defense” the commander-in-chief would like to employ and spin their rationalizations.
Furthermore, when philosophy is not enough, Carter’s arguments, especially his summary ones at the end of the treatment of particular topics, turn purely political. For example, he repeatedly falls back on the argument that no peace candidate can govern as a peace president. He even appeals to his students’ unwillingness to put Americans at risk for the sake of protecting innocent strangers as decisive in exempting the American military and American decision-makers from doing so. Carter’s bottom line is: Just war restraints are a good idea, but they don’t apply to today’s America. He even gives this conclusion a title: “the American Proviso.”
The War Convention
The pre-eminent just-war theorist of recent decades is Michael Walzer of the Institute for Advanced Studies at Princeton. With the possible exception of the U.S. bishops’ 1983 pastoral letter “The Challenge of Peace,” his Just and Unjust Wars (1977) is the most influential text on the morality of warfare in the last half-century. Though he repeatedly cites Walzer, Carter never makes mention of his foundational argument: the war convention. This is the tacit understanding that soldiers can bear arms only against other soldiers. In return for societal permission to take up arms (and take human life), Walzer argues, soldiers must themselves become legitimate targets. In return for bearing arms, they are also required to protect the innocent, that is, those who are not a threat because they do not bear arms. According to Walzer, the war convention is the basic set of conditions that make war a moral or rule-governed activity.
Carter takes no note of the war convention, probably because it sets many limits on what can be done in a just war, and when those limits are exceeded, war-fighting may be judged unjust. But in Carter’s slippery logic, American patriotism voids any putative limits on military action against the nation’s enemies. Here is Carter’s defense of stand-off bombing and drone attacks endangering civilians in the interest of saving American military lives:
In this sense, we are like every nation on earth. One might call this attitude narcissistic, or even chauvinistic, and in my weaker moments I have called it both. In truth, we are merely being patriotic. We love our country. Nothing could be simpler. We love our country, and we value the lives of Americans above the lives of non-Americans. As we have seen, President Obama’s theory of war certainly shares these characteristics. Politically, the priority is uncontroversial, as perhaps it should be.
Such a slack submission to comfortable, unexamined patriotism, even if it were shared by President Obama as Carter believes, is not worthy of the just war tradition. One begins to hanker for old-time warriors like George S. Patton who at least appreciated the place of honor in warfare. Honor means there are standards that the warrior expects himself to uphold, and chief among these is that the right to wage war for one’s country carries with it duties to the innocent. After reading Carter, however, one supposes a sense of honor has become something we feel “in our weaker moments.”
Though honor is a chivalric, military virtue rather than a Christian one, the loss of a sense of honor reflects the distance not so much contemporary just-war theory has taken from its Christian origins, but the distance that has grown between the popular sentiments of today’s Americans Carter invokes and those of earlier Christian societies that expected the military to defend the innocent at the price of self-sacrifice. How utterly strange to earlier generations and to many soldiers even today is Carter’s view, writing on humanitarian intervention, that “it is unrealistic to expect [modern democracies] to sacrifice life and livelihood for the suffering people of another state.” For Augustine, of course, it was only the defense of the other that justified the use of force. Self-defense ran too great a risk of being infected with twisted self-love. Americans might equally say, with a nod to Reinhold Niebuhr, arguments for national self-defense are all too easily tainted by false patriotism. “Violence, as Pope John Paul II wrote, always needs to justify itself through deceit, and to appear, however falsely, to be defending a right or responding to a threat posed by others.”
Carter’s interpretation of political reality itself, however, is squinty-eyed. “Recent history teaches,” he writes, “that the world’s solemn commitment to prevent abuses of human rights, up to and including genocide, does not include a serious commitment to take any risk to ensure that the tyrants do not flourish.” True, the U.S. and the international community failed in Rwanda, and even more egregiously in Central Africa. But, as I write, the UN Security Council has voted to take military action to protect civilians in Libya. Nations may fail their own self-professed norms, even as protection of the innocent is now canonized in international law (and Catholic social teaching) as the responsibility to protect. But sometimes nations do rise about their inordinate self-interest and ask their military to make sacrifices to meet the norm. Those efforts are equally part of political reality, whether in Libya, Bosnia or East Timor, as are the failures of the international community. Self-sacrifice is still part of the American military ethic, and it is wrong to use the narrowness of our commercial culture to expunge the spirit of self-sacrifice from our wider American heritage.
Military Culture and Military Discipline
After the Vietnam War and atrocities like My Lai, the U.S. Army and Marine Corps worked mightily to restore a sense of morality and honor to their services. The Vietnam generation came to understand their obligations to noncombatants. But, in the early 1990s, a Pentagon admiral working on personnel issues confided to staffers at the United States Catholic Conference, including myself, that the sense of restraint in warfare and responsibility toward noncombatants had begun to weaken significantly in the post-Vietnam generation. Vietnam-era officers like herself were worried.
In the last decade, respect for civilians has again become a concern, but more for military rather than strictly moral reasons. The necessity of counter-insurgency warfare in Afghanistan has re-surfaced at least the pragmatic need for respect for civilian life. But some troops, in keeping with Carter’s populist American morality, have sometimes resisted the efforts of General Petraeus and other senior officers to tighten the rules of engagement and to train personnel to take risks for the sake of protecting civilian lives. These are moves that Walzer had advocated on moral grounds in Just and Unjust Wars and the U.S. bishops identified as a necessary tightening of the ius in bello in “The Harvest of Justice Is Sown in Peace,” their 1993 statement on peace in the post cold-war era. More recently, in the war on terror, military lawyers, intelligence officers and FBI agents have continued to argue for upholding norms of civilian immunity and the humane treatment of prisoners. Among the professionals, only the CIA, and particularly its contractors, have seemed determined to bend and break the rules. So, once again, carriers of a stringent just-war ethic are active in our legal, military and political system as well as in the churches helping sustain a stronger line on ethical norms in wartime.
Steam-rolling the immunities of foreigners, whether innocent or not, under the weight of uncritical patriotism, as Carter does, seems a specious sort of public ethics. Carter’s limply self-satisfied argument seems fully to justify the cautionary wisdom offered by the U.S. bishops in “The Harvest of Justice” concerning the inability of contemporary American culture to think honestly about just war. There they argued:
Moral reflection on the use of force calls for a spirit of moderation rare in contemporary political culture. The increasing violence of our society, its growing insensitivity to the sacredness of life, and the glorification of the technology of destruction in popular culture could inevitably impair our society’s ability to apply the just-war criteria honestly and effectively in time of war.
The role of the moralist in public argument ought to be to test our prejudices and widen and deepen our attachments, not allow our shallowest sentiments to rule. Despite a learned interest in just-war thinking, Professor Carter fails in that role. Like other institutionally coopted just-war thinkers of past decades, he fails to apply just-war norms to limit the options of public officials. Instead, he makes his arguments to rationalize what they would do anyway.
A key concept Carter draws from Michael Walzer is that of the supreme emergency, that is, a turn of events in which a military defeat would entail the overthrow of civilization as we know it or result in the utter elimination of a particular national community, unless some drastic action violating the laws of war is undertaken. Walzer considers two cases, Churchill’s resort to area-bombing during the Battle of Britain and Israel’s pre-emptive strike in the Six-Day War. While arguments are made on both sides of the two cases, it is clear that in Walzer’s version of the just war these are limited situations, genuine “existential threats,” as the Israelis would say: The continued existence of a political community (Britain or Israel), even a civilization (Western or Jewish), is at stake.
The supreme emergency is far from a standard threat in wartime. It is an extreme case, and as such, it should be invoked very rarely. Any effort to apply it to lesser crises ought to be resisted. There is always a temptation, of course, to turn any conflict into a life-and-death struggle where our own side will fear it is threatened with annihilation. Carter reports Walzer’s anxiety that “‘supreme emergency’”may be invoked “where none actually exists.” He also notes the uneasiness of military ethicists over the very idea of suspending the rules in an emergency; and in that context, he reports the proposal of the Air Force Academy’s Martin Cook that if we allow for such grand exceptions we should reinforce our moral reservations with the possibility of punishing the perpetrators, that is, the politicians and senior officers who undertake a strategy in gross violation of the laws of war.
Carter, however, does not undertake to join the argument with his colleagues over the war on terror as supreme emergency at the level of ethical argument. Instead, he chooses to acquiesce, almost casually, to political reality. Contending that President George W. Bush explicitly defended the war on terror in the language of supreme emergency, and President Obama, while not as explicit, has done the same, he writes, “This remember is the President’s vision of a just war: fighting in defense of your country, you may take what measures you deem appropriate. And the only limit on propriety seems to be the President’s own sense of ethics.” Using a distorted version of the emergency ethic, Carter cedes just-war ethics without a fight to the most convenient form of political prudence. He concludes, “Now that we have had consecutive Presidents who reason along these lines, we should accept that things may be like this for a while.” Such ready acquiescence to people in power is enough to make the otherwise hawkish just-war thinkers of the permissive school who are serious about their trade tremble over the future of their profession.
Obama’s Wars against Evil
One of the inviting aspects of The Violence of Peace, as I have noted, is Carter’s fascination with and respect for the theological sources of the just war tradition. There are other religious threads running through his argument, but none is as important as his treatment of evil. While many recent renderings of the Augustinian theology of just war place emphasis on the end of peace and Carter notes those same texts, other Augustinian versions of the just war tradition emphasize the responsibility of rulers to repress evildoing, and some versions even included the punishment of evildoers as an element of the jus post bellum. At times Augustine was even apocalyptic regarding the evils suffered in war as the inscrutable will of God. Augustine, however, was a controversialist and occasional writer, so a variety of readings are valid. The particular kind of evil President Obama seeks to repress, Carter contends, is the evil done by those who are resistant to all persuasion, those with whom an adversary cannot negotiate. These enemies are obvious candidates against whom force may be applied.
What distinguishes President Obama from other presidents including his predecessor, George W. Bush, according to Carter, “is the breadth the president brings to the understanding of [national defense].” In its name, he asserts the right to wage preventive war, launch attack on terrorists in neutral countries, assassinate enemies before they can attack the U.S., imprison enemy captives indefinitely without appeal, and in search of intelligence turn over captives to other countries (rendition) for purposes of coercive interrogation. The question is, does the president leave any just-war limits standing in his war on evil? At a deeper philosophical/theological level, one may ask whether the blurring of standards doesn’t confuse the evildoer with the evil?
Religiously speaking, one must ask, are enemies so closely identified with evil that they lose their humanity, their dignity as God’s creatures? Certainly one way in which contemporary Christian just-war theology, as found in Catholic social teaching, for example, would differ from earlier models would be in the respect they demand be shown to the human dignity of adversaries, a recognition that would lead to questions and limits about many U.S. tactics in the war on terror. So, it is on the question of responding to evil that Carter might have learned more from contemporary Christian sources and on which he is misled by deference to less reflective popular sentiments.
While allowing that there may be some violations in current U.S. practice that deserve further scrutiny, Carter nonetheless argues, “If a war is a just one, the just side must be permitted to try to win.” To that rhetorical plea, I would respond that while admittedly the war on terror is an amorphous conflict with an elusive ending, within the bounds of the Just War Tradition one must still ask, are there any accepted just-war standards that still hold fast in the war on terror? Carter answers that although the means, like rendition and assassination, may “seem to violate the very theory of just war that the President espouses, the quickest way to end the abuses may be to win.” One may ask, as Thomas More asks his son-in-law in “A Man for All Seasons,” “Oh? And when the last law was down and the Devil turned ‘round you, where would you hide, Roper, all the laws being flat?”
Being “permitted to win” does not mean doing everything possible to win. A great deal may be done and found wanting before even considering turning the nation’s back on all limits. Just war differs from the Shermanesque “war is hell” justification of all-out war precisely because it sets limits within combat. The ad bellum principle of success is intended to preclude catastrophic losses either to the enemy or one’s own nation in proceeding to war. There are limits to the evil that can be done in trying to defeat evil. As Pope John Paul II wrote in Centesimus annus (1991), the peacemaker needs “to discern the often narrow path between the cowardice that gives into evil and the violence which, under the illusion of fighting evil, only makes it worse.”
As conditions of combat change, the norms may be re-formulated, but the difference between the barbarian and the adherent of the just war is that the just warriors feel honor-bound to uphold certain defined limits in the contest. Even though they war against an enemy, they do not believe everything is permitted them for the sake of victory. Sadly in Carter’s view, the only thing that stands between an American war being just and unjust is the president’s personal judgement. He writes of President Obama’s “vision of a just war: fighting in defense of your country, you may take what measures you deem appropriate.”
The Just-War System
Carter is mistaken for two reasons. First, he reduces the system of just-war regulations to a single principle, just cause, which in turn reduces to national defense. The other principles, ad bellum ones like right intention (which he avers is a real loss in secular just-war theories), and in bello ones like discrimination, are thrown aside because the claim of self-defense justifies all. Secondly, and this is quite remarkable for a professor of law, the system of regulations, practices and professions that in operation sustain the just war are forgotten: treaties, codes of military justice, rules of engagement, training exercises, international and military lawyers, courts-martial and international tribunals, official church teaching, pastoral counselors, philosophers and theologians, which make the just war a living reality in the conduct of war are set aside. As commander-in-chief, the president sets war policy, but, though he may espouse a version of just-war tradition, he does not define or implement the just-war system alone. As president, his declarations can help shape American understandings of just war, but more importantly his policies and practices in wartime are subject to judgment under the standards of a much wider community. Carter’s error is to pretend that the president’s policy and the just-war standards are one.
The just war is more than a mere academic theory–one way in which Carter sometimes seeks to dismiss its defenders in favor of purely political and nationalistic judgments. It is a social system for the regulation of armed conflict. Examining President Obama’s policies in light of his articulations of just-war theory in his Nobel Prize speech is a promising exercise. But when the examination excludes those others who contribute to formulating the theory, teaching, implementing and enforcing it, the game is rigged. A searching examination of Obama’s ideas policies and his ideas on morality in warfare is still needed. Even more we need a rigorous ethical examination of the war on terror. But they must be inquiries in which the multiple voices in the system are heard and weighed, and neither the idea nor the practice of just war is laid flat by the alleged necessities of presidential politics.