WAR
From Moral Issues that Divide Us
James Fieser
home: www.utm.edu/staff/jfieser/160
Copyright 2008
Updated: 11/23/2008
Contents
1. Overview
2. War and Civil Liberties: Korematsu v. U.S.—Hugo Black, Frank Murphy, Robert H. Jackson
3. Torture and Secret Detention—Tom Malinowski
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#1. OVERVIEW
A young U.S. Marine named Mike was sent to fight in the Iraq War, where he and his squad had orders to go through houses of a particular city and kill insurgents. As Mike entered a house and moved room to room commando style, he’d first toss a concussion grenade into the doorway before him, which would only knock out, but not kill, anyone who happened to be hiding there. He’d then peek into the room to see if the knocked out people were insurgents or just non-combatant women and children. If the former, he’d then toss in a regular grenade to kill them; if the latter, he’d escort them out of the house. Mike did this for about a week, but dozens of Marines on the same mission were shot and killed by insurgents who weren’t quite knocked out from the first grenade. Mike then received orders to skip the concussion grenades, and just use the regular ones, which would immediately kill everyone in each room. If it turned out to be filled with women and children, he’d place weapons next to their bodies. When the bodies were officially removed they’d burn the houses down to prevent other insurgents from hiding there again. They conducted these house to house searches non-stop for about three months until the entire city was free of insurgents.
Mike was just one cog in the larger U.S. war machine. He had his own private opinions about the justness of the war and the military tactics he carried out, but all of that was irrelevant. He was trained to follow orders from his commanders, which in turn reflected an agenda set by politicians with the support of the citizens. Going to war is one of the most serious decisions that a society can make, and at every stage we must make critical moral choices. Our politicians who declare war have a responsibility to do their homework and determine whether military action is the only viable option. Once war begins the military have the responsibility of conducting warfare in a civilized manner. These are the issues we will look at in this chapter.
BACKGROUND
In many ways human history is a record of its innumerable wars, and regardless of when and where they’ve occurred, the results have been the same: widespread death and destruction. During the 20th century alone, the number of people killed in wars worldwide was around 200 million. A general definition of war is that it is an armed conflict between nations or between groups within a nation. The specific causes of war are as diverse as the numbers of wars themselves. For example, we might defend ourselves against an enemy invasion, or help an ally that’s been invaded. We ourselves might invade a foreign country to overthrow its government, or free hostages, or stop genocide, or gain access to its natural resources. We might wage a civil or revolutionary war against our own government. We might try to conquer the world. While the causes of war may be numerous, what they have in common is that, to achieve their respective goals, each side attempts to force the other into submission. Austrian military theorist Carl von Clausewitz (1780-1831) famously describes the goal of war as similar to that of sporting competitions:
War is nothing but a duel on an extensive scale. If we would conceive as a unit the countless number of duels which make up a War, we shall do so best by supposing to ourselves two wrestlers. Each strives by physical force to compel the other to submit to his will: each endeavors to throw his adversary, and thus render him incapable of further resistance. War therefore is an act of violence intended to compel our opponent to fulfill our will. [On War (1832), 1.1.2]
Fully understanding war requires knowledge of countless types of political strategies, military tactics, and weaponry. We will look at a few basic distinctions in military theory that illuminate the moral issues surrounding war.
Types of War
An important distinction in military theory is that between conventional and nonconventional warfare. Conventional warfare consists of large military forces that aim to quickly reduce an opponent's military capability. Nonconventional warfare is the opposite strategy: smaller bands of militia achieve their goals through small scale operations over a longer period of time. This is also called guerrilla warfare, from the Spanish meaning “little war”. These often involve subversive activities such as sabotage, hit and run raids, and ambushes, all of which have a cumulative effect of wearing down the enemy over time.
There is a related distinction between conventional and nonconventional weapons. Conventional weapons in general refer to the basic type of weaponry that existed before the 20th century – guns, swords, cannons, bombs, mines. Contemporary versions of these weapons may be aided by technology, such as laser-guided missiles, but what’s relevant is that the destructive force of conventional weapons is contained within a relatively small area. By contrast there are nonconventional weapons, also called weapons of mass destruction (WMDs), which have a much wider range of destruction and include chemical, biological, and nuclear weapons. What is controversial about weapons of mass destruction is that their wide range of impact makes no distinction between combatants and noncombatants.
Another issue in war involves the amount of resources that a country devotes to its military campaign. Most are limited wars in the sense that only a small segment of the country’s citizens and financial resources are directed towards the war effort, such as the Vietnam and Iraq wars. But occasionally a country devotes everything to achieving victory, thus making it a total war. The most dramatic examples of this in recent history are World War I and World War II, and perhaps also the U.S. Civil War. Total war is defined both by the sweeping scope of the country’s committed resources, and also by the fact that one’s entire country becomes a legitimate military target for the enemy. Once all citizens and resources are committed to the war effort, they are in essence an extension of the military and could possibly be targeted as such.
The military conflicts of recent decades have introduced a new set of distinctions in warfare, one of which is preemptive war, where a country goes to war against a potential aggressor based on evidence that an enemy attack is forthcoming. The U.S. government, for example, used this rationale when launching the Iraq War, based on its suspicions that Iraq was developing weapons of mass destruction. Two main problems with preemptive war strategies are, first, it is difficult to obtain indisputable evidence of a forthcoming attack. The evidence may be faulty or subject to different interpretations, and even an overt statement of threat by an enemy may just be a tactical bluff in the larger game of international politics. Second, those who launch the preemptive attack thereby become the aggressor, and responsibility for starting a war shifts to them.
The notion of terrorism is linked with many recent war efforts. The underlying idea of terrorism is that it is the unlawful use of violence with the intention of intimidating or coercing societies, typically for political reasons. However, the term itself is an uncomplimentary one which one side accuses its enemy of committing, and few groups would voluntarily claim the designation “terrorist” for themselves. Various labels are applied to terrorist groups, such as domestic terrorists, international terrorists, religious terrorists, eco-terrorists, each of which have their own agendas and targets. In matters of war, the notion of international terrorism is the most pertinent one, which the U.S. government defines here:
The term “international terrorism” means activities that (a) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; (b) appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum; [U.S. Code, 18.1.133b (2006)]
Many of the international terrorist attacks today are associated with jihad, that is, Islamic holy war, which in Muslim theology aims to expand the boundaries and influence of Islam. Muslim tradition distinguishes between two principal regions within the world. First, there is the “region of submission,” that is, Muslim countries that are governed by Muslim law. Second, there is the “region of struggle,” which includes non-Muslim countries. The principal aim of jihad is to bring Islam into the region of struggle, and thereby transform it into a region of submission. While this can be accomplished through gentle missionary efforts, historically, a more radical element of Muslim tradition has used military force. The Muslim terrorist organization al-Qaida sees its efforts as a military jihad.
What People Think
The surveys below reflect the attitudes of U.S. citizens on several war-related issues (from www.pollingreports.com).
"Do you, yourself, feel that our national defense is stronger now than it needs to be, not strong enough, or about right at the present time?" (2/11-14/08)
Too Strong: 10%
Not Strong Enough: 47%
About Right: 41%
Unsure: 2%
"Do you think the United Nations is doing a good job or a poor job in trying to solve the problems it has had to face?" ( 2/11-14/08)
Good Job: 27%
Poor Job: 65%
Unsure: 8%
Which statement comes closest to your view? . . ." (3/21-23/05)
No countries should be allowed to have nuclear weapons: 66
Only the U.S. and its allies should be allowed to have nuclear weapons: 13
Only countries that already have nuclear weapons should be allowed to have them: 11
Any country that is able to develop nuclear weapons should be allowed to have them: 5
Only the U.S. should be allowed to have nuclear weapons: 1
Unsure: 4
"Do you agree or disagree that the U.S. and other Western powers have a moral obligation to use military force if necessary, to prevent one group of people from committing genocide against another?" (5/2-14/06)
Agree: 77%
Disagree: 13%
Unsure: 10%
PHILOSOPHICAL ISSUES
Philosophical debates about the morality of war began in the early Middle Ages, particularly when Christianity emerged as the dominant religion of the Roman Empire, and Christian rulers had to face the reality of war. Should Christians engage in war or should they be peacemakers? St. Augustine (354-430) laid the groundwork for a position called just war theory, which maintains that some wars are justifiable when they meet precise conditions. According to Augustine, when wars are conducted justly they can be an instrument of furthering God’s kingdom on earth: “God’s providence constantly uses war to correct and chasten the corrupt morals of mankind” (City of God, 1.1). Just war theory was further developed by Thomas Aquinas (1225-1274) and eventually secularized by Hugo Grotius (1583-1645). Just war theory is opposed by the rival position of pacifism: no wars are justifiable, and only non-violent alternatives should be pursued. We will look at both just war theory and pacifism.
Just War Theory
Again, just war theory is the view that some wars are justifiable when specific conditions are met. Just war theory has two main parts, the first being an account of the just conditions for initially waging war, which goes by the Latin phrase jus ad bellum, meaning “justice to war”. Second is an account of the conditions of proper conduct during warfare, designated by the Latin jus in bello, meaning “justice in war.” The first element of just war theory concerns whether there are just grounds to even go to war, and, traditionally, five key conditions must be met for an initial declaration of war to be just.
The first condition is just cause: the cause or purpose of the war must be a proper one, such as self-defense, resisting serious aggression, or redressing some wrong suffered. Aquinas writes of just cause that “those who are attacked should be attacked because they deserve it on account of some fault” (Summa Theologica, 2.2.40.1). When the Japanese attacked Pearl Harbor, for example, the U.S. had just cause in declaring war to resist Japanese aggression. While it might seem clear enough to say that the causes of a particular war might be just, there are problem cases, such as with religious wars where the causes are largely ideological. The Crusades, for example, aimed at freeing the Holy Land of Muslim rule and placing it under Christian authority, and by today’s standards this would not be a just cause. Contemporary just war theorists typically restrict the just cause of war to a response to actual aggression.
The second condition is right intention: there must be a proper underlying motive to declare war, such as the desire to return to the state of peace prior to an outside invasion. Even if there is rightful cause to declare war on an enemy, such as responding to an attack, the intention cannot be clouded by hidden motives. Wrong intentions would be nationalism, vengeance, acquiring land, plundering the resources of another country, and venting racial hatred. For Aquinas, right intention involves promoting good and avoiding evil, which would disqualify all of these intentions. A problem with the criterion of right intention is that wars often proceed from a variety of motives, and it may be difficult to identify the dominant one. Thus, while our announced intention for declaring a specific war may be to restore peace, other factors will invariably enter into the equation, such as whether a war will advance a country’s international standing or give it access to foreign resources. For example, in the Iraq War, the U.S. intention to remove a hostile government was coupled with a desire to access Iraq’s oil.
The third condition is proper authority: the war must be publicly announced by the legitimate authority and made known to the enemy. Even just causes cannot be militarily pursued by individuals or groups who are not the proper authorities of governments. If Canada invades the U.S., the National Rifle Association cannot respond by declaring war against Canada. Ideally, the condition of proper authority should involve a formal declaration to both the country’s own citizens and to the enemy; however, this is not feasible if doing so would compromise a military strategy. The key problem with the condition of proper authority is determining what in fact constitutes a legitimate authority, such as if a country’s leader assumed power through voter fraud or violence. Revolutions and civil wars present a special problem since, by definition, they involve rebellions against the ruling authority.
The fourth condition is last resort: all non-military options must be attempted before going to war, such as efforts at political diplomacy or economic sanctions. It makes no sense to engage in the most destructive human activity when more peaceful solutions are available. The problem with this condition is that it is difficult to determine when non-military options run out. Also, delays in military action can place one at a strategic disadvantage.
The fifth condition is reasonable success: if the outcome of a war is unlikely, it is wrong to sacrifice human lives and squander economic resources. France faced this problem in World War II when invaded by Germany. Even though France had just cause to respond militarily, they realized they were no match for German forces and thus they gave up. A problem with the condition of reasonable success is that it may not always be wrong to resist an aggressor even if there are no realistic prospects for success. This is particularly so if the aggressor has a reputation for genocide or brutalizing civilians: it’s better to die fighting than to die in an extermination camp.
So much, then, for the conditions of initially declaring a just war (jus ad bellum). Next is the issue of just warfare tactics (jus in bello): even if all five of the above conditions of declaring a war are met, a war can nevertheless become unjust if warfare tactics are too brutal. There are two main conditions that determine just warfare tactics, the first of which is discrimination: we must identify legitimate military targets and distinguish combatants from noncombatants. It is unjustifiable to intentionally bomb schools, hospitals, and residential neighborhoods. Civilian deaths are sometimes an unavoidable consequence of warfare, such as when bombs miss their target, or civilians are in the path of a critical military target. Though regrettable, this is an accepted side effect even in a just war; Grotius writes that during a military attack “humanity will require that the greatest precaution should be used against involving the innocent in danger, except in cases of extreme urgency and utility” (The Laws of War and Peace, 3.12). The requirement of discrimination is particularly problematic in cases of total war where an enemy country devotes its resources to its war campaign, and, thus, the distinction between military personnel and civilians becomes blurred. During World War II the U.S. and British launched a relentless bombing raid against the German city of Dresden which resulted in the deaths of 25,000 people, largely civilians. Though the decision was controversial, the U.S. claimed it was justified because the city as a whole was a critical component of German military strength.
The second condition of just warfare tactics is proportionality: the military should only use the amount of force that is required to achieve its goal. You don’t kill 1,000 enemy soldiers if killing only 100 will force their surrender. You don’t fire bomb a city if it serves no strategic purpose. For example, critics of the Dresden bombing argue that it was not necessary for the U.S. to accomplish its military objective since the city was not a critical military target and the Germans were on the verge of surrendering anyway. Weapons of mass destruction, particularly nuclear weapons, invariably fail the test of proportionality since the scope of their destruction vastly surpasses what is needed to obtain a military objective.
Pacifism
Just war theory is an attempt to bring some moral order to the destructive consequences of war, but pacifists argue that it does not go nearly far enough. Rather, according to pacifism, no wars are justifiable. Famous people associated with pacifism in recent history include Tolstoy, Gandhi, Einstein, Martin Luther King, and the Dalai Lama. Although pacifists oppose war, they do not believe that we should idly sit by when faced with military aggressors and the threat of attack. Rather, they advocate pursuing only non-violent options to block aggression. There are varying degrees of pacifist conviction, and a moderate form, called conditional pacifism, maintains that some wars are justifiable. Although they oppose war and violence in principle, they nevertheless hold that sometimes war is better than the alternatives. The most extreme form of pacifism, though, is called absolute pacifism, which is that all wars, with no exception, are wrong. For example, during World War II Gandhi recognized that Hitler’s treatment of the Jews was dreadful, but nevertheless felt that all wars are wrong, including one with Germany:
If there ever could be a justifiable war in the name of and for humanity, a war against Germany to prevent the want on persecution of a whole race, would be completely justified. But I do not believe in any war. A discussion of the pros and cons of such a war is, therefore, outside my horizon or province. (“The Jews in Palestine,” 1938)
Pacifists give a variety of reasons for their anti-war convictions, but the most prevalent one is on religious grounds: their religious tradition opposes war and is backed by their interpretation of scripture. The earliest Christian writers were largely pacifist, as reflected in the following statement from the early Church father Tertullian (160-220):
Shall it be held lawful to make an occupation of the sword, when the Lord proclaims that he who uses the sword shall perish by the sword? And shall the son of peace take part in the battle when it does not become him even to sue at law? And shall he apply the chain, and prison, and the torture, and the punishment, who is not the avenger even of his own wrongs? Touching this primary aspect of the question, as to the unlawfulness even of a military life itself, I shall not add more, (Treatise on the Crown, 11)
Tertullian’s point is that military life is contrary to the standard of peace that Jesus established. Christian pacifism virtually disappeared when Christianity assumed a position of political dominance in the ancient world, but in recent centuries pacifism has reemerged among some Protestant denominations, most notably Quakers, Brethren and Mennonites. In each case, their pacifist conviction is grounded in their particular tradition and interpretation of religious texts, and thus lacks a more universally accepted justification.
A second and more secular justification for pacifism is pragmatic: the best strategy for securing world peace is to oppose war, since this will force us to consider non-military options. Wars typically do not solve the underlying problems that spark them, or make the world a safer place, or bring about international unity. Non-military options will always be more successful in the long run.
A common objection to pacifism is the free rider criticism: pacifists themselves enjoy the benefits of a protected society without participating in its defense. It’s easy for the pacifist to sit back and oppose a war when others are doing the hard work fighting off the enemy. They in essence receive the benefits of the war effort without doing any of the fighting, and thus get a free ride at the expense of others. There are two responses to this objection. First, even if pacifists benefit from the outcome of a war, there’s no telling at that point whether the same benefit might have been achieved more peacefully. Pacifists have participated in the democratic process, but society has rejected the non-military solutions that they’ve offered. Pacifists should thus not be penalized it if society rejects their more peaceful strategies. Second, the life of a pacifist is not particularly easy in time of war. They are often publicly ridiculed and threatened, and are jailed when refusing to comply with a military draft. They pay their dues for their convictions, and there is nothing free about the benefits they might receive from war.
LEGAL ISSUES
Just war theory is a convenient tool for passing moral judgment on a government in times of military conflict. It allows us to quickly identify the government’s duty, and expose where it might have fallen short of fulfilling it. Still, just war theory is only a moral theory, and it carries no force of law. Each country has its own guidelines for declaring and conducting wars, and international treaties have helped further define the rules of warfare. We will look at two such legal issues, namely, international laws of war, and the relation between national security and civil liberties.
International Laws of War
In modern warfare, international laws of war are treaties between various countries that provide a humanitarian framework for regulating a range of wartime issues, such as blockades, truces, the treatment of prisoners and the wounded, and the autonomy of neutral countries. There never has been a “world government” with the authority and power to oversee the activities and conflicts among the world’s countries. Since ancient times, individual countries determined their own military conduct during wartime, which was often very brutal as captured combatants were tortured and executed, and noncombatants were raped, pillaged, and enslaved. Over the centuries, though, there emerged some unwritten standards of humane warfare known as customary laws of war, which specifically aimed to reduce the suffering of noncombatants and the damage to nonmilitary targets. During the 19th century, international treaties were devised between countries to codify these standards.
The first and most famous of these treaties was the Geneva Convention of 1864, spearheaded by the founder of the Red Cross. Officially titled the “Convention for the Amelioration of the Condition of the Wounded in Armies in the Field,” it set guidelines for assisting wounded soldiers, the role of organizations like the Red Cross, and the protection of hospitals and ambulances. By 1949 it was revised three times, particularly to make provisions for maritime warfare and the treatment of prisoners of war and civilians. The following is one of the more famous parts of the Convention, which establishes the humane treatment of noncombatants and war prisoners:
Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. [Geneva Convention 3, 1949, 3.1]
The rules of the Geneva Convention apply not only in situations of officially declared war, but also in “any other armed conflict” (ibid. 3.2). In recent decades, additional protocols were added to the Geneva Convention that extended its provisions to guerilla wars and wars of independence. Though the original Convention was negotiated by only 16 European countries, today virtually all of the world’s nearly 200 nations have officially agreed to the 1949 version of the Convention. Many countries, have not accepted the more recent provisions regarding guerrilla wars.
Another important series of international treaties is the Hague Conventions, which took place in 1899 and 1907. Two main aims of these conventions were to, first, reduce the amount of weaponry that countries could employ, and, second, ban especially brutal types of weaponry, such as asphyxiating gasses and expanding bullets. While they failed to reach an agreement on the first point, they succeeded with the second.
In the aftermath of World War I, in 1919 an international organization was established called the League of Nations to help avoid another massive war with such devastating consequences. It specifically aimed to provide a mechanism for diplomatically arbitrating disputes between countries and reducing armaments. It also established a collective security agreement, whereby an attack upon one member country would be considered an attack on them all. The League’s effectiveness was greatly weakened during World War II, and it was ultimately replaced with the United Nations in 1945, which today is the principal international body responsible for maintaining world peace. The goal of the U.N., as set out in their Charter, is this:
We the peoples of the united nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom. . . . [U.N. Charter, Preamble]
Like the League of Nations, the United Nations devised procedures for diplomatically resolving disputes and thereby avoiding military conflicts.
Another important component of international laws of war concerns war crimes, that is, especially egregious violations of warfare conventions that are punishable by some governing body. The most famous war crimes trials were those in Nuremberg in 1945-6 that prosecuted 24 Nazi leaders, twelve of whom were given the death penalty. The Nuremberg trials established a set of guidelines called the Nuremberg Principles, which include a three-part definition of war crimes. They are (1) crimes against peace, such as when a country initiates a war of aggression, (2) conventional war crimes, which include mistreatment and killing of prisoners and noncombatants, and (3) crimes against humanity, which include “murder, extermination, enslavement, deportation” and “persecutions on political, racial or religious grounds.”
National security and civil liberties
The ancient Greek playwright Aeschylus famously stated that “truth is the first casualty of war,” by which he meant that in times of war governments restrict and manipulate what its citizens can know about military operations. A more recent rewording of this is that “civil liberties are the first casualty of war.” Once a country is at war, the government immediately limits the freedom of its citizens in the name of national security. There are restrictions on free press, such as limiting the access of journalists and prohibiting the criticism of the government. There are more general restrictions on liberty and free expression, such as prohibiting war protests, arresting political dissenters, imposing curfews, monitoring phone and internet communication. The government might also have secret military tribunals in place of court trials, and they might intimidate the citizenry by increasing the police and military presence in one’s town. One common justification behind all of these civil liberty restrictions is that the enemy might be among us, and we need to prevent them from doing damage right here in our back yards. Another justification is that it’s easier for the government to focus on a war when its citizens are not challenging everything that happens.
Every major war has its own examples of civil liberty restrictions, and one of the more famous is that of the internment of U.S. citizens of Japanese descent during World War II. Following the bombing of Pearl Harbor, the government suspected that some ethnic Japanese in the U.S. were disloyal, but there was no clear way to determine which ones. Consequently, over 100,000 ethnic Japanese on the U.S. West Coast were ordered to leave their homes and stay in detention camps. One such person, Fred Korematsu, resisted and, when arrested, he appealed to the Supreme Court. While the Court acknowledged the hardship that the detention placed upon the affected ethnic Japanese, they nevertheless ruled against Korematsu on the grounds that military urgency outweighed the liberty of the detainees. In 1988 the U.S. government officially apologized for its actions and in 1992 agreed to pay $20,000 in financial compensation to each detainee who was still living.
ARGUMENTS PRO AND CONTRA
The Conservative Position
The conservative position on war is that many wars are justified, and extreme measures can be taken in warfare. The conservative view is often called “hawkish,” meaning that it advocates an aggressive approach to war. The main arguments for the conservative position are these.
1. Spreading democracy: Democratic countries have a moral responsibility to extend freedom throughout the world, and this often requires taking strong military stances against totalitarian dictators who oppress their citizens and threaten surrounding countries. A criticism of this argument is that, while democracies work well in economically developed countries, they are not particularly effected in poorer regions where populations less educated and dominated by centuries-old traditions of tribal and religious warfare. In these socially unstable regions, often only a totalitarian dictatorship can prevent the country from self-destruction, and our efforts to impose democracy on them through military force may do more harm than good.
2. Success at all costs: If we fight in a war, we should fight to win, and that means using as much force as needed to get the job done quickly. This may require massive bombing, unconventional weapons, harsh interrogation tactics, and civilian casualties. It makes no sense to fight a war with one hand tied behind our back, and, if we take a soft approach to military action, we risked prolonging the conflict and increasing the body count on both sides. A criticism of this argument is that even the toughest military tactics will not necessarily defeat an enemy that is resolved to win. This is particularly so when the enemy uses guerilla warfare tactics that are not easily countered with conventional military tactics.
3. Sacrificing freedom for the greater good: In times of war we all need to make personal sacrifices to assure military success, and this sometimes involves giving up some freedom. For the government to do its job properly, it needs support from its citizens, and it should not be hampered by public dissent that emboldens the enemy. Worse yet, we cannot allow enemy agents to secretly infiltrate us on our own soil; the government must know what’s going on, and this may require secret surveillance and interrogation. A criticism of this argument is that the freedom of citizens is particularly vulnerable during war time, and a test of a true democracy is whether liberty is preserved in critical situations like this. Freedom of expression and the press are needed in war time to prevent the government from unnecessarily expanding the scope of a war or from engaging in the use of unjust military tactics, such as torture and weapons of mass destruction.
The Liberal Position
The liberal position on war is that few wars are justifiable, and warfare should be conducted with restraint and civility. The liberal view is dubbed “dovish” insofar as it advocates a peaceful and conciliatory approach to international conflict. The main arguments for the liberal position are these.
1. Questionable motives: The true motives behind many wars are not as pure as our government would have us believe. We’ve heard many times that through our military actions we help thwart evil dictators, stabilize fledgling democracies, block terrorist activities, and, on the whole, make the world a safer place for everyone. Upon closer inspection, though, we see that many of these wars were motivated by the desire to access a foreign country’s natural resources, create a new economic market for our domestic exports, or forcefully make a country our political ally. If the government openly stated these true motives, the citizens would probably not approve of military action. A criticism of this argument is that it is naive to expect an issue as complex as war to be directed by a single, pure motive. While governments will always present the noblest motives for going to war, the job of the press is to expose additional underlying motives. The job of citizens, then, is to determine whether on balance the war is justifiable.
2. Better alternatives: Wars create enormous amounts of suffering, and their outcomes are unpredictable; there are almost always nonmilitary alternatives to international conflicts and these should be pursued first. With global economies as interdependent as they are today, economic sanctions can be especially effective tools to keep belligerent countries in line. A criticism of this argument is that often we are dragged into international conflicts that are already military in nature. When our allies are attacked and ask for our help, we are obliged to help defend them. Civil wars erupt around the world with regularity, and our military may be needed to stabilize those countries. When genocide sweeps through a region, we may have no choice but to intervene militarily.
3. Evolving standards of decency: All countries should strive to make wars a thing of the past. While wars have always been with us, it doesn’t have to be that way, and the sooner they disappear the better. But that day will never come until countries resist their warring impulses and seek peaceful solutions to their problems. As each new conflict arises, we should train ourselves to resist a military response as long as possible. And, if a military response is necessary, we should train ourselves to show restraint in our tactics to lessen the war’s brutality. A criticism of this argument is that the prospect of a peaceful and harmonious world rests upon each country having a sound economy, decent standard of living, and stable government. While European countries have achieved these goals, and consequently no longer fight with each other, the majority of the world’s countries are still economically underdeveloped and politically unstable. It thus may be centuries before most countries develop to the point that world peace is possible.
A Middle Ground
While conservatives tend to be military hawks and liberals doves, these ideologies often have little bearing on how conservative and liberal governments conduct themselves in times of war. Some of the bloodiest wars in U.S. history—the Civil War, World War II, and the Vietnam War—were all initiated by administrations with overtly liberal ideologies. Similarly, conservative governments are not necessarily quick to go to war. Dwight Eisenhower—a conservative U.S. president—warned against the potential abuses of U.S. military power. In a famous speech he described the dangers of the “military-industrial complex,” that is, the interrelation of the country’s military force and the industries that support it. On the one hand, Eisenhower argues, a strong military is a vital element in keeping the peace: “Our arms must be mighty, ready for instant action, so that no potential aggressor may be tempted to risk his own destruction.” On the other, however, the inertia of the military-industrial complex can easily undermine the normal democratic process and create a military conflict that would be better resolved through peaceful means:
In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist. We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals so that security and liberty may prosper together. [Farewell Address, January 17, 1961]
It is within Eisenhower’s recommendation that we might carve out a middle ground on the issue of war. We have not yet reached a stage in civilization where we can expect countries to abandon military aggression, and, to that extent, a strong military is important if for no other reason than to deter an outside attack. However, citizens should be immediately suspicious of a government’s claim that a war is necessary, or that the military needs to develop unconventional weapons, or that national security requires restricting freedom. In most cases the necessity will be exaggerated, and more peaceful and less intrusive alternatives may work better. This is particularly so with superpowers such as the U.S., whose military might dwarfs that of almost every other country. Through its superior power the U.S. can inflict a disproportionate amount of damage on the enemy. For example, during the Vietnam War, the Vietnamese suffered around 3 million deaths compared to around 50,000 U.S. deaths. In the Iraq War, as many as 1 million Iraqis may have been killed, as compared to about 4,000 U.S. military. With military power comes military responsibility, and that responsibility is best directed by “an alert and knowledgeable citizenry,” as Eisenhower words it.
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#2 WAR AND CIVIL LIBERTIES: KOREMATSU V. U.S.
Hugo Black, Frank Murphy, Robert H. Jackson
Shortly after the bombing of Pearl Harbor at the outset WWII, a military order was issued requiring ethnic Japanese on the U.S. West Coast to leave their homes and move into detention camps. 120,000 were affected by this order, 62% of whom were American born. The legal basis for this policy was an executive order issued by President Roosevelt that authorized the U.S. military to designate portions of the country as military areas "from which any or all persons may be excluded." The first major application of this order was a curfew requiring people of Japanese ancestry within the West Coast region to remain in their residences from 8 p.m. to 6 a.m. The curfew order was unsuccessfully challenged in the Supreme Court case Hirabayashi v. United States (1942). In the same year, another military order was issued, this time mandating that ethnic Japanese in West Coast region should be relocated into detainment camps. One man who was a U.S. citizen by birth, Fred Korematsu, defied the order. He changed his name, went into hiding, and told people that he was really of Spanish-Hawaiian descent. Nevertheless, he was caught and convicted for disobeying the relocation order. Korematsu appealed his conviction, which eventually made its way to the U.S. Supreme Court. In a 6-3 decision, though, they voted against him.
The Korematsu case is one of the more important Supreme Court rulings of recent decades insofar as it addresses the recurring problem of balancing national security interests against personal liberty interests. Below are selections from the majority and opposing opinions of the case. Writing for the majority, Justice Hugo Black argued that the military necessity of the time outweighed the liberty of the detainees. The curfew and detention orders were both based on the problem that some ethnic Japanese were disloyal to the US, but it was impossible to determine which ones. While this was a hardship for the detained ethnic Japanese, all citizens in times of war experience hardships. Opposing the majority view, Justice Frank Murphy argued that the public danger of the time was not great enough to deprive those ethnic Japanese of their Constitutional rights. There was plenty of opportunity to investigate and determine which of the ethnic Japanese were loyal, and which were disloyal. The decision to detain them was made by officials with racial and economic prejudices against Japanese Americans. Such “legalization of racism” is not justifiable in a democracy. Also dissenting, Justice Robert H. Jackson argued that the Supreme Court’s majority decision created a long-term harm to the constitution. If a military leader makes an unconstitutional decision, the effect is temporary and only last as long as the military emergency. However, the Court’s decisions effected a lasting harm by “validating the principle of racial discrimination”, thus making it a doctrine of the constitution.
HUGO BLACK: OPINION OF THE COURT
The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a "Military Area," contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner’s loyalty to the United States. . . .
It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can. . . .
Exclusion Order No. 34, which the petitioner knowingly and admittedly violated, was one of a number of military orders and proclamations, all of which were substantially based upon Executive Order No. 9066, 7 Fed. Reg. 1407. That order, issued after we were at war with Japan, declared that "the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities” . . . .
Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.
We uphold the exclusion order as of the time it was made and when the petitioner violated it. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger. . . .
It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers--and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies-we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders-as inevitably it must-determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot--by availing ourselves of the calm perspective of hindsight--now say that at that time these actions were unjustified. . . .
FRANK MURPHY: DISSENTING OPINION
This exclusion of “all persons of Japanese ancestry, both alien and non-alien,” from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over “the very brink of constitutional power” and falls into the ugly abyss of racism.
In dealing with matters relating to the prosecution and progress of a war, we must accord great respect and consideration to the judgments of the military authorities who are on the scene and who have full knowledge of the military facts. The scope of their discretion must, as a matter of necessity and common sense, be wide. And their judgments ought not to be overruled lightly by those whose training and duties ill-equip them to deal intelligently with matters so vital to the physical security of the nation.
At the same time, however, it is essential that there be definite limits to military discretion, especially where martial law has not been declared. Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support. Thus, like other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled. “What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.”
The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so “immediate, imminent, and impending” as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger. Civilian Exclusion Order No. 34, banishing from a prescribed area of the Pacific Coast “all persons of Japanese ancestry, both alien and non-alien,” clearly does not meet that test. Being an obvious racial discrimination, the order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an “immediate, imminent, and impending” public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law.
It must be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in that area. The military command was therefore justified in adopting all reasonable means necessary to combat these dangers. In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But the exclusion, either temporarily or permanently, of all persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways. It is difficult to believe that reason, logic or experience could be marshalled in support of such an assumption.
That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt rather than bona fide military necessity is evidenced by the Commanding General’s Final Report on the evacuation from the Pacific Coast area. In it he refers to all individuals of Japanese descent as “subversive,” as belonging to “an enemy race” whose “racial strains are undiluted,” and as constituting “over 112,000 potential enemies ... at large today” along the Pacific Coast. In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal, or had generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise by their behavior furnished reasonable ground for their exclusion as a group.
Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence. Individuals of Japanese ancestry are condemned because they are said to be “a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion.” They are claimed to be given to “emperor worshipping ceremonies” and to “dual citizenship.” Japanese language schools and allegedly pro-Japanese organizations are cited as evidence of possible group disloyalty, together with facts as to certain persons being educated and residing at length in Japan. It is intimated that many of these individuals deliberately resided “adjacent to strategic points,” thus enabling them “to carry into execution a tremendous program of sabotage on a mass scale should any considerable number of them have been inclined to do so.” The need for protective custody is also asserted. The report refers without identity to “numerous incidents of violence” as well as to other admittedly unverified or cumulative incidents. From this, plus certain other events not shown to have been connected with the Japanese Americans, it is concluded that the “situation was fraught with danger to the Japanese population itself” and that the general public “was ready to take matters into its own hands.” Finally, it is intimated, though not directly charged or proved, that persons of Japanese ancestry were responsible for three minor isolated shellings and bombings of the Pacific Coast area, as well as for unidentified radio transmissions and night signaling.
The main reasons relied upon by those responsible for the forced evacuation, therefore, do not prove a reasonable relation between the group characteristics of Japanese Americans and the dangers of invasion, sabotage and espionage. The reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices-the same people who have been among the foremost advocates of the evacuation. A military judgment based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations. Especially is this so when every charge relative to race, religion, culture, geographical location, and legal and economic status has been substantially discredited by independent studies made by experts in these matters.
The military necessity which is essential to the validity of the evacuation order thus resolves itself into a few intimations that certain individuals actively aided the enemy, from which it is inferred that the entire group of Japanese Americans could not be trusted to be or remain loyal to the United States. No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. To give constitutional sanction to that inference in this case, however well- intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow. No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. It is asserted merely that the loyalties of this group “were unknown and time was of the essence.” Yet nearly four months elapsed after Pearl Harbor before the first exclusion order was issued; nearly eight months went by until the last order was issued; and the last of these “subversive” persons was not actually removed until almost eleven months had elapsed. Leisure and deliberation seem to have been more of the essence than speed. And the fact that conditions were not such as to warrant a declaration of martial law adds strength to the belief that the factors of time and military necessity were not as urgent as they have been represented to be.
Moreover, there was no adequate proof that the Federal Bureau of Investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this long period. Nor is there any denial of the fact that not one person of Japanese ancestry was accused or convicted of espionage or sabotage after Pearl Harbor while they were still free, a fact which is some evidence of the loyalty of the vast majority of these individuals and of the effectiveness of the established methods of combating these evils. It seems incredible that under these circumstances it would have been impossible to hold loyalty hearings for the mere 112,000 persons involved- or at least for the 70,000 American citizens-especially when a large part of this number represented children and elderly men and women. Any inconvenience that may have accompanied an attempt to conform to procedural due process cannot be said to justify violations of constitutional rights of individuals.
I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.
ROBERT H. JACKSON: DISSENTING OPINION
Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law- abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.
Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detainment camps.
A citizen’s presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four-the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole--only Korematsu’s presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock. . . .
Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand itself to the limit of its logic.” A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.
It argues that we are bound to uphold the conviction of Korematsu because we upheld one in Kiyshi Hirabayashi v. United States when we sustained these orders in so far as they applied a curfew requirement to a citizen of Japanese ancestry. I think we should learn something from that experience.
In that case we were urged to consider only that curfew feature, that being all that technically was involved, because it was the only count necessary to sustain Hirabayashi’s conviction and sentence. We yielded, and the Chief Justice guarded the opinion as carefully as language will do. He said: “Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew.” “We decide only the issue as we have defined it-we decide only that the curfew order as applied, and at the time it was applied, was within the boundaries of the war power.” And again: “It is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order.” However, in spite of our limiting words we did validate a discrimination of the basis of ancestry for mild and temporary deprivation of liberty. Now the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones. And the precedent which it is said requires us to do so is Hirabayashi. The Court is now saying that in Hirabayashi we did decide the very things we there said we were not deciding. Because we said that these citizens could be made to stay in their homes during the hours of dark, it is said we must require them to leave home entirely; and if that, we are told they may also be taken into custody for deportation; and if that, it is argued they may also be held for some undetermined time in detainment camps. How far the principle of this case would be extended before plausible reasons would play out, I do not know.
I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy. Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.
My duties as a justice as I see them do not require me to make a military judgment as to whether General DeWitt’s evacuation and detainment program was a reasonable military necessity. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution. I would reverse the judgment and discharge the prisoner.
Source: U.S. Supreme Court, Toyosaburo Korematsu v. United States, 323 U.S. 214 (1944).
#2. TORTURE AND SECRET DETENTION
Tom Malinowski
Tom Malinowski, is a director of Human Rights Watch, an organization that monitors and opposes violations of basic human right around the world. In the essay below, presented in 2007 to the U.S. Senate Committee on Foreign Relations, he describes how the U.S.’s moral credibility and international standing have been weakened because of its post-9-11 interrogation practices. Two particular practices stand out. First is secret detention, which involves holding a suspected terrorist for interrogation in a secret location without legal representation for an indefinite amount of time. Second is the use of torture to obtain confessions and terrorist-related information. According to Malinowski, the government’s justification is that the whole world is a battlefield in an open-ended war on terror, and that suspects can be seized anywhere, at any time, without judicial authorization. He argues these practices set bad examples for the international community insofar as other countries mimic the U.S. policies and the arguments it uses to justify them. For better or for worse, he explains, the U.S. is a standard setter in everything it does, and when the U.S. bends the rules of human rights, the entire framework falls apart. Further, he argues, these policies actually hinder national security and counter-terrorist efforts, not help them. Such policies make it easier for terrorists to recruit new members and hurt efforts to collect accurate intelligence about the enemy.
Mr. Chairman, thank you for holding this hearing and for inviting me to testify.
When I joined the staff of Human Rights Watch 6 years ago, I assumed I would be spending most of my time dealing with outrages committed by governments in countries like Sudan and China and Burma, and urging the United States to be a force for good in such places. I never imagined that I would see my own government engaging in the kinds of activities it has long condemned around the world: Disappearing prisoners in secret facilities for years without any legal process, sending them to be interrogated in countries where torture is standard practice, and subjecting them to interrogation methods that I first learned about while reading accounts by Soviet dissidents of what they endured in KGB prisons.
These policies have undermined standards that defenders of human rights everywhere rely upon to fight for their cause. They have diminished America's moral standing and influence in the world. They have hindered, not aided, the fight against terrorism, handing America's enemies a victory they could never have achieved on their own.
For the last 6 years, a growing number of voices have been pushing back: Members of Congress, the Supreme Court, active and retired members of the U.S. military and intelligence community, not to mention organizations dedicated to promoting civil liberties and human rights. We have made considerable progress in righting the wrongs of the last few years and encouraging a counterterrorism strategy that will be more effective as well as lawful. But much more needs to be done. And I am very glad, Mr. Chairman, to see you taking the lead in addressing some of the most complex and important aspects of the problem, including extraordinary rendition and secret detention.
What I'd like to do is discuss what we know about the CIA's detention, interrogation, and rendition program, as well as its consequences and the importance of fundamentally changing it. I will then offer a few comments on the legislation you have introduced.
[THE US PROGRAM OF DETENTION AND TORTURE]
The administration has acknowledged that around 100 prisoners have been held in the CIA program, in facilities operated by the Agency in undisclosed locations around the world. The International Committee of the Red Cross has repeatedly asked for access to these facilities and been denied. These prisoners were effectively disappeared. In international law, an enforced disappearance is considered to be “the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State . . . followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” That is precisely what happened to prisoners held by the CIA.
Some of the prisoners were subjected to what the administration has euphemistically termed “enhanced interrogation.” These methods reportedly included “waterboarding”--in which interrogators strap the prisoner to a board with his feet above his head, cover his mouth and nose with cellophane, and pour water over his face to create the sensation of drowning. They also apparently included a technique known as “long-time standing,” in which a prisoner is forced to stand motionless for up to 48 straight hours, and extreme sleep deprivation for days on end--methods that survivors of some of the world's most brutal regimes have said cause as much suffering as the worst physical torture.
Last September, the President announced that the last (at that point) 14 prisoners held in CIA facilities were being transferred to military detention at Guantanamo Bay. But of course many more prisoners had been in CIA custody at some point before that. Human Rights Watch has identified 21 people who were almost certainly held in CIA facilities, and another 18 who may have been held, whose whereabouts remain unknown. Most, presumably, were rendered to other countries, most likely in the Middle East.
The administration says that it does not render people to torture. But the only safeguard it appears to have obtained in these cases was a promise from the receiving state that it would not mistreat the rendered prisoners. Such promises, coming from countries like Egypt and Syria and Uzbekistan where torture is routine, are unverifiable and utterly untrustworthy. I seriously doubt that anyone in the administration actually believed them.
We also know that the CIA detention and rendition program remains in operation today. This spring, four more prisoners were delivered to Guantanamo, some reportedly from secret CIA custody. At least one had actually been arrested months earlier. There is also strong evidence that the Agency may have participated in or condoned the rendition to Somalia and Ethiopia of a number of people who had escaped the conflict in Somalia earlier this year. consequences for global human rights and America’s moral authority
Here, in a nutshell, are the arguments the administration has made to the world through these detention policies: First, the whole world is a battlefield in an open-ended war on terror. Anyone the Chief Executive of a country believes to be supporting or associated with terrorism is a combatant in that war, and can therefore be attacked on sight or held without charge. Second, such people can be seized anywhere, at any time, without judicial authorization, and if the leader of a country considers them especially dangerous, he can hold them in secret for as long as he likes. So long as these people are in the custody of an intelligence agency, governments can also subject them to interrogation procedures that would normally be prohibited in wartime, even though such practices have been prosecuted as torture by the United States for over a hundred years.
I have deliberately stated these propositions in their generic form--not as statements of what the United States can lawfully do, but as statements of what any government can lawfully do. This is how this debate should have been framed from the beginning--because America's policies inevitably set an example for others. But it was not framed that way. The administration failed to consider, before it embarked on its interrogation and detention policies, how the United States might react if others mimicked those policies and the arguments it was using to justify them.
[SETTING A BAD PRECEDENT]
Imagine if another government--let's say, for the sake of argument, the Government of Iran--set up a prison camp on some island to which it claimed its domestic laws did not apply, and that it held there, without charge or trial, several hundred men of multiple nationalities, captured outside of Iran, who it accused, based on classified evidence, of supporting groups it claimed were hostile to Iran.
Imagine if some of these prisoners were Americans--not soldiers, but say a contractor the Iranians accused of housing or feeding U.S. troops, or a Treasury Department official they accused of financing the Pentagon. Imagine if Iran transferred those Americans to the custody of its intelligence agency, and on that basis claimed that it could hold them in secret without any legal process for as long as it wanted. Imagine if those Americans were ultimately given a makeshift military hearing, in which they tried to say that they had been tortured by their interrogators, but that the Iranian tribunal kept this testimony secret because it didn't want Iran's enemies to learn how it interrogates prisoners.
Imagine if the intelligence service of the United Kingdom suspected a lawful U.S. resident of sending money to the IRA in Northern Ireland, or the secret police in China or Burma accused an American of supporting rebels in their country, and on that basis, kidnapped that American off the streets of Wilmington or Indianapolis, bundled him on a plane, and held him for years in a secret facility, hidden even from the International Committee of the Red Cross. How would the U.S. Government react? Would the President say “sure, no problem, I guess the leader of China or Burma decided that guy was an enemy combatant, so I can't really complain?” If it happened to one of your constituents, Mr. Chairman, would it matter to you if some official in the U.S. intelligence community had given Burma or China permission to whisk that American away?
Or, just for the sake of argument, imagine if the President of Russia declared that his country was engaged in a global war on terror, and that anyone with any connection to any group that supported separatist elements in places like Chechnya was a combatant in that war who could be detained or shot or poisoned wherever he was found, whether in Moscow or Berlin or just for the sake of argument, London.
Clearly, we live in a world in which such things are possible. But do we want to live in a world where they are considered legitimate? That is what is at stake here. Whether we will preserve the legal and moral rules we have struggled to develop over generations to limit what governments--and here I mean not just the United States but all governments--can and can't do to people in their power. And whether the United States will have the credibility to be the world's preeminent champion of those rules.
Now, it is important to note that nothing the administration has done can compare in its scale to what happens every day to victims of cruel dictatorship around the world. The United States is not Sudan or Cuba or North Korea. The United States is an open, democratic country with strong institutions--its Congress, its courts, its professional military leadership--which are striving to undo these mistakes and uphold the rule of law.
But the United States is also the most influential country on the face of the earth. The United States is a standard setter in everything it does, for better or for worse.
When Saddam Hussein tortures a thousand people in a dark dungeon, when Kim Jong Il throws a hundred thousand people in a prison camp without any judicial process, no one says: “Hey, if those dictators can do that, it's legitimate, and therefore so can we.” But when the United States bends the rules to torture or to secretly and unlawfully detain even one person, when the country that is supposed to be the world's leading protector of human rights begins to do--and to justify--such things, then all bets are off. The entire framework upon which we depend to protect human rights--from the Geneva Conventions and treaties against torture--begins to fall apart.
It is simply an undeniable, objective fact that when President Bush talks about his freedom agenda today, most people around the world do not conjure images of women voting in Afghanistan or of Ukrainians and Georgians marching for democracy or of American aid dollars helping activists in Egypt or Morocco fight for reform. Even America's closest friends now turn their minds to Guantanamo, to renditions, to secret prisons, and to the administration's tortured justifications for torture.
These policies have not only discredited President Bush as a messenger of freedom, they also risk discrediting the message itself. Because the whole idea of promoting democracy and human rights is so associated with the United States, America's fall from grace has emboldened authoritarian governments to challenge the idea as never before. As the United States loses its moral leadership, the vacuum is filled by forces profoundly hostile to the cause of human rights.
A couple of years ago, Human Rights Watch was meeting with the Prime Minister of Egypt, and we raised a case in which hundreds of prisoners rounded up after a terrorist bombing were tortured by Egyptian security forces. The Prime Minister didn't deny the charge. He answered, “We're just doing what the United States does.” We've had Guantanamo and the administration's interrogation policies thrown back in our face in meetings with officials from many other countries, including Saudi Arabia, Jordan, Pakistan, and Lebanon. U.S. diplomats have told us they face the same problem. A U.S. Ambassador to a major Middle Eastern country, for example, has told us that he can no longer raise the issue of torture in that country as a result.
The master of the tactic is Russia's President, Vladimir Putin, who uses it preemptively to ward off criticism of Russia's slide back to authoritarianism. Just before the recent G-8 summit, a reporter asked Putin about his human rights record, and he immediately shifted the subject: “Let's see what's happening in North America,” he said. “Just horrible torture . . . Guantanamo. Detentions without normal court proceedings.”
Now, don't get me wrong: Putin doesn't need American renditions and secret prisons as an excuse to persecute his critics in Russia. These policies are not the reason why Egypt or any other country tortures and detains prisoners without charge. Still, America's detention policies are a gift to dictators everywhere. They can use America's poor example to shield themselves from international criticism and pressure, to say, to their own people as well as to the world, “we are just the same as everybody else.”
In the days of the cold war, the Communist leaders of Eastern Europe tried to do the same thing. But it didn't work. Dissidents and ordinary people behind the Iron Curtain knew that America wasn't perfect. But they believed that the United States was at least dedicated to the principle that governments were bound by law to respect human rights. It was profoundly important to them to know that the government of the world's other superpower limited its power in accordance with this principle. It gave them hope that a different way of life was possible, and the courage to fight for it.
Leaders like Putin understand how powerful America's example has been in the past, and they use the administration's policies to tear that example to shreds. They use it to tell their people that all this American-inspired talk about human rights is hypocritical rubbish. “Even self-righteous America,” they say, “which preaches moral ideals to the world, tortures prisoners, and locks people up without a trial. Even America throws away the legal niceties and behaves ruthlessly when it feels threatened. The Americans use human rights talk to beat up their enemies, but they're really just the same as us. And if you think that things can ever be different here or anywhere else, you're just naive.”
[HARM TO COUNTERTERRORISM]
These are some of the costs of the administration's detention and interrogation policies. Do these policies have national security benefits that justify such costs? I believe the answer is “No.”
I believe that the fight against terror is as much a moral and political struggle as it is a military one. That's not just my view.
Listen to former Marine Corps Commandant Charles Krulak and former CENTCOM Commander Joseph Hoar, who have written: “This war will be won or lost not on the battlefield but in the minds of potential supporters who have not yet thrown in their lot with the enemy.” Listen to General David Petraeus, who recently told his troops in Iraq: “This fight depends on securing the population, which must understand that we--not our enemies--occupy the moral high ground.” Look at the most recent National Intelligence Estimate, which says that the United States needs to “divide [terrorists] from the audiences they seek to persuade” and make “the Muslim mainstream . . . the most powerful weapon in the war on terror.” Read the U.S. Army's Counterinsurgency Manual, which says that in a war like this, you can't kill or capture every enemy fighter; the challenge instead is to diminish the enemy's “recuperative power”--its ability to recruit new fighters--by diminishing its legitimacy while increasing your own.
When America violates its own principles by secretly detaining, abusing, and rendering prisoners to torture, it cedes the moral high ground and loses the Muslim mainstream. These policies are one of the main sources of the terrorists' recuperative power.
What's more, secret detention, torture, and rendition hurt, rather than help, efforts to collect accurate intelligence about the enemy.
One of the best sources of intelligence on terrorist plots are the communities in which terrorists hide. Public cooperation has been the key to preventing many potentially deadly attacks: For example, it was a tip from a member of the Muslim community in London that allowed British investigators to foil a plot to bomb several transatlantic flights last year. But people who live in those communities are much less likely to come forward with information about their neighbors, acquaintances, and relatives if they think the people they're turning in are liable to be abused, or held for years in a secret prison, or sent to a dungeon in a country where torture is rampant.
Interrogation of prisoners is also an important source of intelligence. But torture is not a reliable method of interrogation. Sure, if you waterboard a prisoner or strip him naked in a freezing room or deny him sleep for days on end, sometimes he'll blurt out the truth. But more often than not, tortured prisoners will say whatever they think their interrogator wants to hear, whether true or not, to end their suffering. And keep in mind: When prisoners confirm what their interrogators already believe to be true, interrogators are often highly tempted to believe it. Torture tends to confirm whatever false assumptions the intelligence community brings into an interrogation.
Perhaps the best example of this involves one of the first prisoners to be subjected to extraordinary rendition after September 11--a suspected al-Qaeda member named Ibn al-Sheikh al-Libi. At first, al-Libi was held by the FBI, which used traditional, tried and true, psychological interrogation methods. The FBI was apparently making progress. But the administration lost patience, turned him over to the CIA, which applied its enhanced procedures, and eventually sent him to be interrogated in Egypt. Reportedly, Libi's family was threatened; he was waterboarded; and he was forced to remain standing overnight in a cold cell while being repeatedly doused with icy water.
Libi eventually told his interrogators exactly what the administration wanted to hear: That Saddam Hussein was helping al-Qaeda obtain chemical weapons. This false information became one of the most powerful arguments for the war in Iraq, and the closing argument in Colin Powell's presentation to the U.N. Security Council in February, 2003. One of the greatest intelligence failures in American history came about in part because the administration believed in the CIA program and the tortured confessions it produced.
How much more good intelligence was lost because of the use of these methods? How many false leads have intelligence agencies wasted their time following as a result? How many innocent people have been detained, and how many guilty people have escaped capture? We will probably never know. But the damage has surely been great. And the United States did not have to endure it.
Talk to the military interrogators who are using the professional, humane interrogation methods outlined in the U.S. Army Field Manual on Intelligence Interrogation. They will tell you that these methods are far more reliable in obtaining truthful, useful intelligence than the amateurish and cruel methods the CIA used in its facilities. As for detention of dangerous terrorists--talk to the career prosecutors at the Justice Department. They will tell you that they know how to bring terrorists to justice in ways that showcase America's commitment to the rule of law.
Consider this: In the 6 years since September 11, the administration's system of holding terrorists in secret detention while creating an entirely new system of military justice to handle terrorism crimes has resulted in exactly zero prosecutions of anyone remotely connected to those attacks. Only one man has been convicted in this system--an Australian former kangaroo trapper who was at best a bit player in al-Qaeda, and who got just 9 months in prison, which he's serving in Australia.
Meanwhile, U.S. Federal courts have successfully tried and convicted dozens of persons for international terrorist offenses, sentencing many to long prison sentences.
What's more, no one is complaining that the men sentenced in the Federal courts were treated unjustly. No one is clamoring for their release. Al-Qaeda cannot exploit their fate to recruit more terrorists to its ranks. To use one of President Bush's favorite phrases, those terrorists who got justice with due process are no longer a problem for the United States of America. Every single person who's been held in Guantanamo, or in a secret prison, or subject to extraordinary rendition remains a profound problem for the United States. . . .
Mr. Chairman, that we are even having this discussion in America is profoundly sad. How this country treats its enemies ought to be what distinguishes it from its enemies. The story of how it has actually done so in the last few years is not one of which we can be proud. But the full story has not yet been written. And when historians tell it many years from now, a more hopeful narrative may emerge. It will, I hope, go like this. That America was hit hard on September 11, 2001. It tried to react in ways that were honorable and smart, but also made some terrible mistakes out of fear. But in a relatively short period of time, its democratic institutions corrected those mistakes, just as they were designed to do. That is a story of which, on balance, I would be proud. I'm glad to see that this committee wants to play its part in writing it.
Source: U.S. Senate Committee on Foreign Relations hearing, Extraordinary Rendition, Extraterritorial Detention, and Treatment of Detainees: Restoring our Moral Credibility and Strengthening our Diplomatic Standing, July 26, 2007.
____________________
QUESTIONS
QUESTIONS FOR REVIEW
Please answer all of the following questions for review.
[Overview]
1. Define the following: conventional warfare, nonconventional warfare, conventional weapons, nonconventional weapons, limited war, total war.
2. In just war theory, what are the five conditions of initially waging war (jus ad bellum)?
3. In just war theory what are the two conditions of conduct during war (jus in bello)?
4. What are the religious and pragmatic arguments for pacifism?
5. What are the main aims of the Geneva Convention?
6. What is the main conflict between national security and civil liberties?
7. What are the criticisms of the three conservative arguments regarding war?
8. What are the criticisms of the three liberal arguments regarding war?
[Kurematsu]
9. Black claims that the detainment of ethnic Japanese was not based on racial prejudice. What, instead, was its based upon?
10. According to Black, a presumed sociological justification for the detainment of ethnic Japanese was evidence of strong ties of race, culture, custom and religion. What is Murphy’s response to this?
11. According to Black, the detainment of ethnic Japanese was also presumably justified because there was no time to separate the loyal from the disloyal. What is Murphy’s response to this?
12. According to Jackson, what is the constitutional harm done by the majority decision?
13. According to Jackson, how do the curfew and exclusion orders differ from each other?
[Malinowski]
14. Describe the facts, as Malinowski presents them, regarding the post-9-11 CIA program of secret detention and torture.
15. What was the Bush administration’s justification for these practices?
16. How, according to Malinowski, do these practices discredit the U.S. and undermine human rights world wide?
17. Why, according to Malinowski, is torture not a reliable method of interrogation?
18. Why, according to Malinowski, are secret detention and military trials less effective than open Federal trials?
QUESTIONS FOR ANALYSIS
Please select only one question for analysis from those below and answer it.
[Overview]
1. Of the five conditions of initially waging war (jus ad bellum), are there any that don’t belong on the list (that is, could a war still be just even if one of those five conditions weren’t fulfilled)? Explain.
2. Explain then criticize the pragmatic argument for pacifism.
3. Defend or refute the view that in times of military crisis, civil liberties need to be restricted in the interest of national security.
4. Defend one of the conservative arguments regarding war against the weakness indicated in the reading.
5. Defend one of the liberal arguments regarding war against the weakness indicated in the reading.
[Kurematsu]
6. Black stated that “the power to protect must be commensurate with the threatened danger.” Explain how this applies to the justification of the detainment camps.
7. According to Murphy, to remove the present danger, it was unreasonable to assume that “all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways.” Explain his point and say whether you agree.
8. Jackson argued that the Curfew order involved only a “mild and temporary deprivation of liberty,” but the detainment camps were much more severe and thus were not justifiable. Explain his reasoning and say whether you agree.
9. Explain then discuss Jackson’s point in the final paragraph of his statement (i.e., “My duties as a justice….”).
[Malinowski]
10. According to the Bush administration, the whole world is a battlefield in an open-ended war on terror, which justifies extraordinary measures such as secret detention and harsh interrogation. Do you agree? Explain.
11. Malinowski argues that U.S.’s harsh interrogation practices discredits the US and undermines the standard of human rights everywhere. Assuming that this is true, might the threat of terrorism justify playing dirty with the enemy?
12. Analyze the practices of torture and secret detention (as Malinowski describes them) from the standpoint of the criteria of just war. Which specific criteria are relevant here, and can a case be made that they are justified?