10. WAR

 

From Applied Ethics: A Sourcebook

 

James Fieser

 

10/3/2010

 

 

Contents

1. Classic Philosophers on War —Aquinas, Grotius, Kant

2. Supreme Court Cases on War and Civil LibertiesSchenck v. U.S., Abrams v. U.S., Korematsu v. U.S.

3. The Ethics of Pacifism — Paul Weiss

4. Torture and Secret Detention—Tom Malinowski

5. Just Wars and Steps towards Peace—Barak Obama

 

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#1

CLASSIC PHILOSOPHERS ON WAR

Thomas Aquinas, Hugo Grotius, Immanuel Kant

 

Medieval philosopher Thomas Aquinas (1225-1274) was one of the key developers of tradition of just war theory that was championed centuries earlier by Augustine. In the selection below from Summa Theologica, he articulates three necessary criteria for any war to be morally just. First, it must be declared by the proper authority; private individuals cannot declare war or summon people to fight. Second, there must be a just cause, such as to address some fault or make amends for some wrong done by a rival country. Third, it must proceed from rightful intention, particularly the advancement of good, or the avoidance of evil. The tradition of just war theory was later developed in greater detail by Dutch philosopher Hugo Grotius (1583-1645) in his book The Laws of War and Peace (1625). In the selections below from that work, Grotius discusses the just causes of war, and the conduct we can justly engage in once war begins. He argues that there are three possible just causes for declaring war. First and foremost is defense of life and property, which stems from our natural right of self-defense. Second is reparation for damages inflicted by a rival country. Third is the punishment of a rival country for harm it has inflicted. Regarding just conduct, he hold the principle of discrimination that wars should not be unnecessarily cruel, and the lives of innocent people could be protected. He also holds to the principle of proportionality, that destruction in war should not extend any further than is necessary to make the aggressor pay for his offence.

 

THOMAS AQUINAS: PROPER AUTHORITY, JUST CAUSE, RIGHTFUL INTENTION

In order for a war to be just, three things are necessary. First, the authority of the sovereign by whose command the war is to be waged. For it is not the business of a private individual to declare war, because he can seek for redress of his rights from the tribunal of his superior. Moreover it is not the business of a private individual to summon together the people, which has to be done in wartime. And as the care of the public good is committed to those who are in authority, it is their business to watch over the public good of the city, kingdom or province subject to them. And just as it is lawful for them to have recourse to the sword in defending that public good against internal disturbances, when they punish evil-doers, according to the words of the Apostle: “He bears not the sword in vain: for he is God’s minister, an avenger to execute wrath upon him that doth evil” (Romans 13:4). So too, it is their business to have recourse to the sword of war in defending the public good against external enemies. Hence it is said to those who are in authority: “Rescue the poor: and deliver the needy out of the hand of the sinner” (Psalms, 81:4); and for this reason Augustine says: “The natural order conducive to peace among mortals demands that the power to declare and counsel war should be in the hands of those who hold the supreme authority.”

            Secondly, a just cause is required, namely that those who are attacked, should be attacked because they deserve it on account of some fault. For this reason Augustine says “A just war is customarily to be described as one that avenges wrongs, when a nation or state has to be punished, for refusing to make amends for the wrongs inflicted by its subjects, or to restore what it has seized unjustly.”

            Thirdly, it is necessary that those making war should have a rightful intention, so that they intend the advancement of good, or the avoidance of evil. Hence Augustine says “True religion looks upon as peaceful those wars that are waged not for motives of aggrandizement, or cruelty, but with the object of securing peace, of punishing evil-doers, and of uplifting the good.” For it may happen that the war is declared by the legitimate authority, and for a just cause, and yet be rendered unlawful through a wicked intention. Hence Augustine says: “The passion for inflicting harm, the cruel thirst for vengeance, an unpacific and relentless spirit, the fever of revolt, the lust of power, and such like things, all these are rightly condemned in war.”

 

HUGO GROTIUS: JUST CAUSES AND CONDUCT IN WAR

The first and most necessary divisions of war are into one kind called private, another public, and another mixed. Now public war is carried on by the person holding the sovereign power. Private war is that which is carried on by private persons without authority from the state. A mixed war is that which is carried on, on one side by public authority, and on the other by private persons. But private war, from its greater antiquity, is the first subject for inquiry. . . .

 

Just Causes of War

The justifiable causes generally assigned for war are three: defense, reparation, and punishment. All of these are comprised in the declaration of Camillus against the Gauls, which lists all things for which it is right to defend, to recover, and the encroachment on which it is right to punish. ...

 

Defense of Life and Property

It has already been proved that when our lives are threatened with immediate danger, it is lawful to kill the aggressor, if the danger cannot otherwise be avoided: an instance, as it has been shown, on which the justice of private war rests. We must observe that this kind of defense derives its origin from the principle of self-preservation, which nature has given to every living creature, and not from the injustice or misconduct of the aggressor. Wherefore though he may be clear of guilt, as for instance a soldier in actual service, mistaking my person for that of another, or a madman in his frenzy, or a man walking in his sleep, none of these cases deprive me of the right of self-defense against those persons. For I am not bound to submit to the danger or mischief intended, any more than to expose myself to the attacks of a wild beast.

            It admits of some doubt whether those who unintentionally obstruct our defense or escape, which are necessary to our preservation, may be lawfully maimed or killed. There are some, even Theologians, who think they may. And, certainly if we look to the law of nature alone, according to its principles, our own preservation should have much more weight with us, than the welfare of society. But the law of charity, especially the evangelical law, which has put our neighbor upon a level with ourselves, does not permit it.

            Thomas Aquinas, if taken in a right sense has justly observed that in actual self-defense no man can be said to be purposely killed. Indeed, it may some times happen that there is no other way for a person to save himself, than by designedly doing an act, by which the death of an aggressor must inevitably ensue. Yet here the death of anyone was not the primary object intended, but employed as the only means of security, which the moment supplied. Still it is better for the party assaulted, if he can safely do it, to repel or disable the aggressor than to shed his blood.

            The danger must be immediate, which is one necessary point. Though it must be confessed, that when an assailant seizes any weapon with an apparent intention to kill me I have a right to anticipate and prevent the danger. For in the moral as well as the natural system of things, there is no point without some breadth. But they are themselves much mistaken, and mislead others, who maintain that any degree of fear ought to be a ground for killing another, to prevent his supposed intention. It is a very just observation made by Cicero in his first book of Offices, that many wrongs proceed from fear; as when the person, who intends to hurt another, apprehends some danger to himself unless he took that method. Clearchus, in Xenophon, says, I have known some men, who partly through misrepresentation, and partly through suspicion, dreading one another, in order to prevent the supposed intentions of their adversaries, have committed the most enormous cruelties against those who neither designed, nor wished them any harm....

            The next object to be considered, relates to injuries affecting our property. In strict justice, it cannot be denied that we have a right to kill a robber, if such a step is inevitably necessary to the preservation of our property. For the difference between the value of life and property is overbalanced by the horror which a robber excites, and by the favorable inclination felt by all men towards the injured and innocent. From this it follows, that regarding that right alone, a robber may be wounded or killed in his flight with the property, if it cannot otherwise be recovered. Demosthenes in his speech against Aristocrates, exclaims, "By all that is sacred, is it not a dreadful and open violation of law, not only of written law, but of that law which is the unwritten rule of all men, to be debarred from the right of using force against the robber as well as against the enemy; who is plundering your property?" Nor is it forbidden by the precepts of charity, apart from all consideration of divine and human law, unless where the property is of little value, and beneath notice; an exception, which some writers have very properly added. ...

            What has been already said of the right of defending our persons and property, though regarding chiefly private war, may nevertheless be applied to public hostilities, allowing for the difference of circumstances. For private war may be considered as an instantaneous exercise of natural right, which ceases the moment that legal redress can be obtained. Now as public war can never take place, but where judicial remedies cease to exist, it is often protracted, and the spirit of hostility inflamed by the continued accession of losses and injuries. Besides, private war extends only to self-defense, whereas sovereign powers have a right not only to avert, but to punish wrongs. From this they are authorized to prevent a remote as well as an immediate aggression. Though the suspicion of hostile intentions, on the part of another power, may not justify the start of actual war, yet it calls for measures of armed prevention, and will authorize indirect hostility. ...

 

Reparation for Damages

The next point to which we proceed is an inquiry into the rights resulting to us from injuries received. Here the name of crime or misdemeanor is applied to every act of commission or neglect repugnant to the duties required of all men, either from their common nature or particular calling. For such offences naturally create an obligation to repair the loss or injury that has been sustained. . . .

            The loss or diminution of anyone's possessions is not confined to injuries done to the substance alone of the property, but includes everything affecting the produce of it, whether it has been gathered or not. If the owner himself had reaped it, the necessary expense of reaping, or of improving the property to raise a produce, must also be taken into the account of his loss, and form part of the damages. For it is an established maxim that no one ought to derive benefit from the loss of another.

            Damages are to be computed too, not according to any actual gain, but according to the reasonable expectation of it. In the case of a growing crop, this may be judged by the general abundance or scarcity of that particular season. . . .

            But to connect the preceding cases and arguments with public and national concerns, it is necessary to observe, that it is a maxim introduced and established by the consent of all nations that the wars which are declared and conducted by the authority of the sovereign power on both sides are alone entitled to the denomination of just wars. The enemy has no right to demand restitution for what the prosecution of such wars has reduced him to abandon through fear. It is upon this principle we admit the distinction which Cicero has made between an enemy, towards whom the consent and law of nations oblige us to observe many common rights, and between robbers and pirates. For anything given up to pirates or robbers, through fear, is no lawful prize: but it may be recovered, unless a solemn oath of renunciation has been taken. This is not the case with the captures made in just war. . . .

            Sovereign Princes and States are answerable for their neglect, if they fail to use all the proper means within their power for suppressing piracy and robbery. And on this account the Scyrians were formerly condemned by the Amphictyonic council.

 

Punishment

It has been shown before, and it is a truth founded upon historical fact, that wars are undertaken as acts of punishment, and this motive, added to that of redress for injuries, is the source, from which the duties of nations, relating to war, take their rise. But it is not every injury, that can be construed into a just ground of war. For laws, whose vengeance is meant to protect the innocent, and to fall upon the guilty, do not regard every case, as a sufficient warrant for their exertion. Thus, that there is much truth in the opinion of Sopater, who says that there are trivial and common offences, which it is better to pass over unnoticed, than to punish.

            The maxim laid down by Cato, in his speech in defense of the Rhodians, that it is not right anyone should be punished upon the bare suspicion of his having intended to commit aggression or injury, was well applied in that place; because no positive decree of the people of Rhodes could be alleged against them, nor was there any other proof beyond the conjecture of their wavering in their policy. But this maxim is not universally true.

            For where intention has proceeded to any outward and visible signs of insatiable ambition and injustice, it is deemed a proper object of jealousy, and even of punishment. Upon this principle, the Romans, as may be seen from Livy's account . . . thought themselves justified in declaring war against Perseus, King of Macedon, unless he gave satisfactory proof, that he had no hostile intentions against them, in the naval and military armaments, which he was preparing. And we are informed by the same historians, that the Rhodians urged it as a rule established by the laws and customs of all civilized states; that if anyone wished the destruction of an enemy, he could not punish him with death, unless he had actually done something to deserve it.

 

Unjust Wars

There are some who have neither apparent reasons, nor just causes to plead for their hostilities, in which, as Tacitus says, they engage from the pure love of enterprise and danger. Aristotle gives this disposition the name of ferocity, and in the last book of his Nicomachaean Ethics, he calls it a bloody cruelty to convert friends into enemies, whom you may slaughter.

            Though most powers, when engaging in war, are desirous to color over their real motives with justifiable pretexts, yet some, totally disregarding such methods of vindication, seem able to give no better reason for their conduct, than what is told by the Roman Lawyers of a robber, who being asked, what right he had to a thing, which he had seized, replied, it was his own, because he had taken it into his possession? Aristotle in the third book of his Rhetoric, speaking of the promoters of war, asks, if it is not unjust for a neighboring people to be enslaved, and if those promoters have no regard to the rights of unoffending nations? Cicero, in the first book of his Offices, speaks in the same strain, and calls "the courage, which is conspicuous in danger and enterprise, if devoid of justice, absolutely undeserving of the name of valor. It should rather be considered as a brutal fierceness outraging every principle of humanity."

            Others make use of pretexts, which though plausible at first sight, will not bear the examination and test of moral rectitude, and, when stripped of their disguise, such pretexts will be found fraught with injustice. In such hostilities, says Livy it is not a trial of right, but some object of secret and unruly ambition, which acts as the chief spring. Most powers, it is said by Plutarch, employ the relative situations of peace and war, as a current specie, for the purchase of whatever they deem expedient.

            By having before examined and established the principles of just and necessary war, we may form a better idea of what goes to constitute the injustice of the same. As the nature of things is best seen by contrast, and we judge of what is crooked by comparing it with what is straight. But for the sake of perspicuity, it will be necessary to treat upon the leading points.

            It was shown above that fear from a neighboring power are not a sufficient ground for war. For to authorize hostilities as a defensive measure, they must arise from the necessity, which just fear creates; fear not only of the power, but of the intentions of a formidable state, and such fear as amount to a moral certainty. For which reason the opinion of those is by no means to be approved of, who lay down as a just ground of war, the construction of fortifications in a neighboring country, with whom there is no existing treaty to prohibit such constructions, or the securing of a strong hold, which may at some future period prove a means of annoyance.

 

Just conduct in War

Having, in the preceding books, considered by what persons, and for what causes, war may be justly declared and undertaken, the subject necessarily leads to an inquiry into the circumstances under which war may be undertaken, into the extent, to which it may be carried, and into the manner, in which its rights may be enforced. Now all these matters may be viewed in the light of privileges resulting simply from the law of nature and of nations, or as the effects of some prior treaty or promise. But the actions, which are authorized by the law of nature, are those that are first entitled to attention.

            In the first place, as it has occasionally been observed, the means employed in the pursuit of any object must, in a great degree, derive the complexion of their moral character from the nature of the end to which they lead. It is evident therefore that we may justly avail ourselves of those means, provided they be lawful, which are necessary to the attainment of any right. Right in this place means what is strictly so called, signifying the moral power of action, which any one as a member of society possesses. On which account, a person, if he has no other means of saving his life, is justified in using any forcible means of repelling an attack, though he who makes it, as for instance, a soldier in battle, in doing so, is guilty of no crime. For this is a right resulting not properly from the crime of another, but from the privilege of self-defense, which nature grants to every one. Besides, if any one has sure and undoubted grounds to apprehend imminent danger from any thing belonging to another, he may seize it without any regard to the guilt or innocence of that owner. Yet he does not by that seizure become the proprietor of it. For that is not necessary to the end he has in view. He may detain it as a precautionary measure, till he can obtain satisfactory assurance of security. [3.1.1-2]

 

Discrimination

Cicero, in the first book of his offices, has finely observed, that “some duties are to be observed even towards those, from whom you have received an injury. For even vengeance and punishment have their due bounds.” And at the same time he praises those ancient periods in the Roman government, when the events of war were mild, and marked with no unnecessary cruelty. . . .

            Though there may be circumstances, in which absolute justice will not condemn the sacrifice of lives in war, yet humanity will require that the greatest precaution should be used against involving the innocent in danger, except in cases of extreme urgency and utility.

            After establishing these general principles, it will not be difficult to decide upon particular cases. Seneca says, that “in the calamities of war children are exempted and spared, on the score of their age, and women from respect to their sex.” In the wars of the Hebrews, even after the offers of peace have been rejected, God commands the women and children to be spared. . . . 

            The same rule may be laid down too with respect to males, whose modes of life are entirely remote from the use of arms. And in the first class of this description may be placed the ministers of religion, who, among all nations, from times of the most remote antiquity have been exempted from bearing arms. . . . . 

            Diodorus bestows an encomium upon the Indians, who, in all their wars with each other, forbore destroying or even hurting those employed in agriculture, as being the common benefactors of all. Plutarch relates the same of the ancient Corinthians and Megarensians, and Cyrus sent a message to the king of Assyria to inform him that he was willing to avoid molesting all who were employed in tilling the ground.

            To the above catalogue of those exempted from sharing in the calamities of war, may be added merchants, not only those residing for a time in the enemy's country, but even his natural-born, and regular subjects: artisans too, and all others are included; whose subsistence depends upon cultivating the arts of peace.

            More civilized manners having abolished the barbarous practice of putting prisoners to death, for the same reason, the surrender of those, who stipulate for the preservation of their lives either in battle, or in a siege, is not to be rejected. 

 

Proportionality

One of the three following cases is requisite to justify anyone in destroying what belongs to another. (1) There must be either such a necessity, as at the original institution of property might be supposed to form an exception, as if for instance any one should throw the sword of another into a river, to prevent a madman from using it to his destruction. Still according to the true principles maintained in a former part of this work he will be bound to repair the loss. (2) Or there must be some debt, arising from the non-performance of an engagement, where the waste committed is considered as a satisfaction for that debt. (3) Or there must have been some aggressions, for which such destruction is only an adequate punishment.

            Now, driving off some of our cattle, or burning a few of our houses, can never be pleaded as a sufficient and justifiable motive for laying waste the whole of an enemy's kingdom. Polybius saw this in its proper light, observing, that vengeance in war should not be carried to its extreme, nor extend any further than was necessary to make an aggressor atone justly for his offence. And it is upon these motives, and within these limits alone, that punishment can be inflicted. But except where prompted to it by motives of great utility, it is folly, and worse than folly, to needlessly hurt another.

            But upon duly and impartially weighing the matter, such acts are more often regarded in a detestable light, than considered as the dictates of careful and necessary guidance. For the most urgent and justifiable motives are seldom of long continuation, and are often succeeded by weightier motives of a more humane description.

 

KANT: WORLD GOVERNMENT AND PERPETUAL PEACE

 

Perpetual Peace and a Permanent Union of Nations.

The natural state of nations as well as of individual men is a state which it is a duty to pass out of, in order to enter into a legal state. Hence, before this transition occurs, all the right of nations and all the external property of states acquirable or maintainable by war, are merely provisory; and they can only become peremptory in a universal union of states analogous to that by which a nation becomes a state. It is thus only that a real state of peace could be established. But with the too great extension of such a union of states over vast regions any government of it, and consequently the protection of its individual members, must at last become impossible; and thus a multitude of such corporations would again bring round a state of war. Hence the perpetual peace, which is the ultimate end of all the right of nations, becomes in fact an impracticable idea. The political principles, however, which aim at such an end, and which command the formation of such unions among the states as may promote a continuous approximation to a perpetual peace, are not impracticable; they are as practicable as this approximation itself, which is a practical problem involving a duty, and founded upon the Right of individual men and states.

            Such a union of states, in order to maintain peace, may be called a permanent union of nations; and it is free to every neighboring state to join in it. A union of this kind, so far at least as regards the formalities of the right of nations in respect of the preservation of peace, was presented in the first half of this century, in the assembly of the states-general at the Hague. In this assembly most of the European courts, and even the smallest republics, brought forward their complaints about the hostilities which were carried on by the one against the other. Thus the whole of Europe appeared like a single federated state, accepted as umpire by the several nations in their public differences. But in place of this agreement, the right of nations afterwards survived only in books; it disappeared from the cabinets, or, after force had been already used, it was relegated in the form of theoretical deductions to the obscurity of archives.

            By such a union is here meant only a voluntary combination of different states that would be dissoluble at any time, and not such a union as is embodied in the United States of America, founded upon a political constitution, and therefore indissoluble. It is only by a union of this kind that the idea of a Public right of nations can be established, and that the settlement of their differences by the mode of a civil process, and not by the barbarous means of war, can be realized.

 

Nature and Conditions of Cosmopolitical Right.

The rational idea of a universal, peaceful, if not yet friendly, union of all the nations upon the earth that may come into active relations with each other, is a juridical principle, as distinguished from philanthropic or ethical principles. Nature has enclosed them altogether within definite boundaries, in virtue of the spherical form of their abode as a globus terraqucus; and the possession of the soil upon which an inhabitant of the earth may live, can only be regarded as possession of a part of a limited whole, and consequently as a part to which everyone has originally a right. Hence all nations originally hold a community of the soil, but not a juridical community of possession, nor consequently of the use or proprietorship of the soil, but only of a possible physical interaction by means of it. In other words, they are placed in such thoroughgoing relations of each to all the rest, that they may claim to enter into interaction with one another, and they have a right to make an attempt in this direction, while a foreign nation would not be entitled to treat them on this account as enemies. This right, in so far as it relates to a possible union of all nations, in respect of certain laws universally regulating their intercourse with each other, may be called cosmo-political right.

            It may appear that seas put nations out of all communion with each other. But this is not so; for by means of commerce, seas form the happiest natural provision for their intercourse. And the more there are of neighboring coastlands, as in the case of the Mediterranean Sea, this intercourse becomes the more animated. And hence communications with such lands, especially where there are settlements upon them connected with the mother countries giving occasion for such communications, bring it about that evil and violence committed in one place of our globe are felt in all. Such possible abuse cannot, however, annul the right of man as a citizen of the world to attempt to enter into communion with all others, and for this purpose to visit all the regions of the earth, although this does not constitute a right of settlement upon the territory of another people, for which a special contract is required.

            But the question is raised as to whether, in the case of newly discovered countries, a people may claim the right to settle, and to occupy possessions in the neighborhood of another people that has already settled in that region; and to do this without their consent.

            Such a right is indubitable, if the new settlement takes place at such a distance from the seat of the former, that neither would restrict or injure the other in the use of their territory. But in the case of nomadic peoples, or tribes of shepherds and hunters (such as the Hottentots, the Tungusi, and most of the American Indians), whose support is derived from wide desert tracts, such occupation should never take place by force, but only by contract; and any such contract ought never to take advantage of the ignorance of the original dwellers in regard to the cession of their lands. Yet it is commonly alleged that such acts of violent appropriation may be justified as subserving the general good of the world. It appears as if sufficiently justifying grounds were furnished for them, partly by reference to the civilization of barbarous peoples (as by a pretext of this kind even Busching tries to excuse the bloody introduction of the Christian religion into Germany), and partly by founding upon the necessity of purging one s own country from depraved criminals, and the hope of their improvement or that of their posterity, in another continent like New Holland. But all these alleged good purposes cannot wash out the stain of injustice in the means employed to attain them. It may be objected that had such scrupulousness about making a beginning in founding a legal state with force been always maintained, the whole earth would still have been in a state of lawlessness. But such an objection would as little annul the conditions of right in question as the pretext of the political revolutionaries, that when a constitution has become degenerate, it belongs to the people to transform it by force. This would amount generally to being unjust once and for all, in order thereafter to found justice the more surely, and to make it flourish.

 

Conclusion

If one cannot prove that a thing is, he may try to prove that it is not. And if he succeeds in doing neither (as often occurs), he may still ask whether it is in his interest to accept one or other of the alternatives hypothetically, from the theoretical or the practical point of view. In other words, a hypothesis may be accepted either in order to explain a certain phenomenon (as in astronomy to account for the retrogression and stationariness of the planets), or in order to attain a certain end, which again may be either pragmatic as belonging merely to the sphere of art, or moral as involving a purpose which it is a duty to adopt as a maxim of action. Now it is evident that the assumption of the practicability of such an end, though presented merely as a theoretical and problematical judgment, may be regarded as constituting a duty; and hence it is so regarded in this case. For although there may be no positive obligation to believe in such an end, yet even if there were not the least theoretical probability of action being carried out in accordance with it, so long as its impossibility cannot be demonstrated, there still remains a duty incumbent upon us with regard to it.

            Now, as a matter of fact, the morally practical reason utters within us its irrevocable veto: there shall be no war. So there ought to be no war, neither between me and you in the condition of nature, nor between us as members of states which, although internally in a condition of law, are still externally in their relation to each other in a condition of lawlessness; for this is not the way by which any one should prosecute his right. Hence the question no longer is as to whether perpetual peace is a real thing or not a real thing, or as to whether we may not be deceiving ourselves when we adopt the former alternative, but we must act on the supposition of its being real. We must work for what may perhaps not be realized, and establish that constitution which yet seems best adapted to bring it about (perhaps republicanism in all states, together and separately). And thus we may put an end to the evil of wars, which have been the chief interest of the internal arrangements of all the states without exception. And although the realization of this purpose may always remain but a pious wish, yet we do certainly not deceive ourselves in adopting the maxim of action that will guide us in working incessantly for it; for it is a duty to do this. To suppose that the moral Law within us is itself deceptive, would be sufficient to excite the horrible wish rather to be deprived of all Reason than to live under such deception, and even to see oneself, according to such principles, degraded like the lower animals to the level of the mechanical play of nature.

            It may be said that the universal and lasting establishment of peace constitutes not merely a part, but the whole final purpose and end of the science of right as viewed within the limits of reason. The state of peace is the only condition of the mine and thine that is secured and guaranteed by laws in the relationship of men living in numbers contiguous to each other, and who are thus combined in a constitution whose rule is derived not from the mere experience of those who have found it the best as a normal guide for others, but which must be taken by the reason a priori from the ideal of a juridical union of men under public laws generally. For all particular examples or instances, being able only to furnish illustration but not proof, are deceptive, and at all events require a metaphysic to establish them by its necessary principles. And this is conceded indirectly even by those who turn metaphysics into ridicule, when they say, as they often do, the best constitution is that in which not men but laws exercise the power. For what can be more metaphysically sublime in its own way than this very idea of theirs, which according to their own assertion has, notwithstanding, the most objective reality? This may be easily shown by reference to actual instances. And it is this very idea which alone can be carried out practically, if it is not forced on in a revolutionary and sudden way by violent overthrow of the existing defective constitution; for this would produce for the time the momentary annihilation of the whole juridical state of society. But if the idea is carried forward by gradual reform, and in accordance with fixed principles, it may lead by a continuous approximation to the highest political good, and to perpetual peace.

 

 

Source: Thomas Aquinas, Summa Theologica, Second Part of the Second Part, Question: 40, Article: 1. Hugo Grotius, The Rights of War and Peace (1625), translated by A.C. Campbell, Book 1, Chapter 3; Book 2, Chapters 1, 17, 20, 22; Book 3, Chapters 1, 11, 12. Immanuel Kant, The Fundamental Principles of Jurisprudence (1796), tr. W. Hastie.

 

Questions for Review

1. Regarding the criterion of just cause, Aquinas quotes Augustine. What does Augustine say on this issue?

2. Why, according to Grotius, is killing in self defense not done on purpose?

3. Regarding defense of life and property, what does Grotius say about attacking a country out of fear?

4. Regarding unjust wars, what does Grotius say about pretexts that countries commonly offer for going to war?

5. According to Grotius, which types of people should be protected during wars?

6. What are the only three justifications for destroying property in war?

 

Questions for Analysis

1. According to Aquinas, right motive for declaring wars include doing good and avoiding evil. Is this a practical or impractical guideline? Explain.

2. Grotius grounds the justification of public war upon the natural rights that we have to declare private war. Do these two types of war sufficiently parallel each other as he implies, or are they instead distinct?

3. Grotius writes that “Though most powers, when engaging in war, are desirous to color over their real motives with justifiable pretexts.” Is it possible for someone to distinguish between the real motives and the justifiable pretexts?”

4. Regarding proportionality, Grotius writes “Now, driving off some of our cattle, or burning a few of our houses, can never be pleaded as a sufficient and justifiable motive for laying waste the whole of an enemy's kingdom.” What would be modern equivalents of this, and do you agree that it is unjustifiable.

 

 

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#2

 

SUPREME COURT CASES ON WAR AND CIVIL LIBERTIES

Schenck v. U.S., Abrams v. U.S., Korematsu v. U.S.

 

An ongoing problem with any country during times of war is striking the right balance between civil liberties and national security, and several U.S. Supreme Court decisions address this issue. Selections from three are below. The first is Schenck v. United States (1919), where the head of a socialist organization was convicted of espionage during World War I for mailing fliers to potential military draftees, encouraging them to dodge the draft. Upholding the conviction, the Supreme Court maintained that expressions that are tolerated in times of peace may be restricted in times of war because they hinder the war effort. The key issue is whether such expressions present a clear and present danger, and in this case it did by threatening military recruitment effort. In the same year the Supreme Court heard the case Abrams v. U.S., where a political activist was also convicted of espionage for circulating pamphlets that “intended to provoke and to encourage resistance to the United States in the war” and even revolution. The majority of the Justices ruled that the pamphlets did show such intent, but a dissenting Justice argued that it did not.

            The third case is Korematsu v. U.S (1944), which addresses the relocation and detainment of ethnic Japanese in the U.S. during World War II. At the outset of the war, President Roosevelt issued an executive order 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 upheld by the Supreme Court in the 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 leave their homes and move into detention camps. 120,000 were affected by this order, 62% of whom were American born. One man who was a U.S. citizen by birth, Fred Korematsu, defied the order, changed his name, and went into hiding. When caught, though, he challenged his detention in the Supreme Court. He was caught, though, and convicted for disobeying the relocation order. Appealing to the Supreme Court, the Court ruled against him.

            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, he argued, 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,” he argued, 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 lasts 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.

 

SPECIAL SITUATIONS OF WAR: SCHENCK V. UNITED STATES (1919)

 

Background

This is an indictment in three counts. The first [indictment] charges a conspiracy to violate the Espionage Act of June 15, 1917, by causing and attempting to cause insubordination, etc., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to-wit, that the defendants willfully conspired to have printed and circulated to men who had been called and accepted for military service under the Act of May 18, 1917, a document set forth and alleged to be calculated to cause such insubordination and obstruction. . . . In impassioned language, it intimated that conscription was despotism in its worst form, and a monstrous wrong against humanity in the interest of Wall Street's chosen few.

 

Majority Opinion: Clear and Present Danger (Oliver Wendell Holmes)

The defendants were found guilty on all the counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press, and bringing the case here on that ground have argued some other points also of which we must dispose. . . .

            We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of [the Espionage Act of] 1917 in section 4 punishes conspiracies to obstruct as well as actual obstruction. If the act, (speaking, or circulating a paper,) its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. Indeed that case might be said to dispose of the present contention if the precedent covers all media concludendi. But as the right to free speech was not referred to specially, we have thought fit to add a few words.

 

UNDERMINING WAR EFFORTS: ABRAMS V. UNITED STATES (1919)

 

Background

On a single indictment, containing four counts, the five plaintiffs in error, hereinafter designated the defendants, were convicted of conspiring to violate provisions of the Espionage Act of Congress.

            Each of the first three counts charged the defendants with conspiring, when the United States was at war with the Imperial Government of Germany, to unlawfully utter, print, write and publish: in the first count, "disloyal, scurrilous and abusive language about the form of Government of the United States;" in the second count, language "intended to bring the form of Government of the United States into contempt, scorn, contumely and disrepute;" and in the third count, language "intended to incite, provoke and encourage resistance to the United States in said war." . . . It was charged in each count of the indictment that it was a part of the conspiracy that the defendants would attempt to accomplish their unlawful purpose by printing, writing and distributing in the City of New York many copies of a leaflet or circular, printed in the English language, and of another printed in the Yiddish language, copies of which, properly identified, were attached to the indictment.

 

Majority Opinion: Undermining War Efforts (Justice John Hessin Clarke)

[The call for a general strike in the distributed leaflets] is not an attempt to bring about a change of administration by candid discussion, for, no matter what may have incited the outbreak on the part of the defendant anarchists, the manifest purpose of such a publication was to create an attempt to defeat the war plans of the Government of the United States by bringing upon the country the paralysis of a general strike, thereby arresting the production of all munitions and other things essential to the conduct of the war.

            That the interpretation we have put upon these articles, circulated in the greatest port of our land, from which great numbers of soldiers were at the time taking ship daily, and in which great quantities of war supplies of every kind were at the time being manufactured for transportation overseas, is not only the fair interpretation of them, but that it is the meaning which their authors consciously intended should be conveyed by them to others is further shown by the additional writings found in the meeting place of the defendant group and on the person of one of them. One of these circulars is headed: "Revolutionists! Unite for Action!" . . .

            These excerpts [from the distributed leaflets] sufficiently show that, while the immediate occasion for this particular outbreak of lawlessness on the part of the defendant alien anarchists may have been resentment caused by our Government's sending troops into Russia as a strategic operation against the Germans on the eastern battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing, and, if possible, defeating the military plans of the Government in Europe.

 

Dissenting Opinion: The Marketplace of Ideas (Justice Oliver Wendell Holmes)

No argument seems to me necessary to show that these pronunciamentos in no way attack the form of government of the United States, or that they do not support either of the first two counts. What little I have to say about the third count may be postponed until I have considered the fourth. With regard to that, it seems too plain to be denied that the suggestion to workers in the ammunition factories that they are producing bullets to murder their dearest, and the further advocacy of a general strike, both in the second leaflet, do urge curtailment of production of things necessary to the prosecution of the war within the meaning of the Act of May 16, 1918. But to make the conduct criminal, that statute requires that it should be "with intent by such curtailment to cripple or hinder the United States in the prosecution of the war." It seems to me that no such intent is proved. . . .

            I never have seen any reason to doubt that the questions of law [regarding free speech] that alone were before this Court in the cases of Schenck, Frohwerk and Debs were rightly decided. I do not doubt for a moment that, by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace, because war opens dangers that do not exist at other times.

            But, as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so. . . .

            In this case, sentences of twenty years' imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong, and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper, I will add, even if what I think the necessary intent were shown, the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges, but for the creed that they avow -- a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here, but which, although made the subject of examination at the trial, no one has a right even to consider in dealing with the charges before the Court.

            Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, ‘Congress shall make no law abridging the freedom of speech.’ Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.

 

JAPANESE INTERNMENT: KOREMATSU V. U.S. (1944)

 

Background

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. . . .

 

Majority Opinion: Military Urgency (Justice Hugo Black)

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. 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. . . .

 

Dissenting Opinion: Legalization of Racism (Justice Frank Murphy)

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.

 

Dissenting Opinion: A Dangerous Precedent (Justice Robert H. Jackson)

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: Justice Oliver Wendell Holmes, Schenck v. United States, (1919); Justices John Hessin Clarke and Oliver Wendell Holmes, Abrams v. United States (1919); Justices Hugo Black, Frank Murphy, Robert H. Jackson, Korematsu v. United States, (1944).

 

Questions for Review

1. In his dissenting opinion in Abrams v. U.S., what, according to Justice Holmes, is the best test for truth?

2. In Korematsu v. U.S., Justice Black claims that the detainment of ethnic Japanese was not based on racial prejudice. What, instead, was its based upon?

3. According to Justice 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?

4. According to Justice 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?

5. According to Justice Jackson in his dissenting opinion in Korematsu v. U.S., what is the constitutional harm done by the majority decision?

6. According to Jackson, how do the curfew and exclusion orders differ from each other?

 

Questions for Analysis

1. In Schenck v. U.S., Justice Holmes supported the government’s position that, in time of war, the defendants’ protests were not protected by free speech. However, in Abrams v. United States, Holmes argued that those defendants’ protests were indeed protected by free speech. What is different about these two cases which might explain Holmes’s differing opinion on them?

2. In Korematsu v. U.S., Justice 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.

3. According to Justice Murphy in Korematsu v. U.S., 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.

4. Justice Jackson argued in Korematsu v. U.S. 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.

5. Explain and discuss Justice Jackson’s point in the final paragraph of his statement (i.e., “My duties as a justice….”).

 

____________________

 

#3

The Ethics of Pacifism

Paul Weiss

 

American philosopher Paul Weiss (1901-2002) was professor of philosophy at Yale University during most of his lengthy career. His essay “The Ethics of Pacifism” (1942), composed and published during Word War II, analyzes the different justifications of pacifism along with common criticisms of it. He sees five justifications of pacifism. Religious pacifism is based on a believer’s inner conviction against war. Cynical pacifism is grounded in skepticism about the motives and gains of wars, based particularly on the evidence of past wars. Sentimental pacifism is the view that war is wrong since all people are of incalculable worth, to be helped and loved, not injured or destroyed. Political pacifism holds that political ends are more effectively attained through non-resistance than through war. While all four of these approaches fail, he argues that a fifth type of pacifism is more resilient to criticism, which he calls ethical pacifism. Ethical pacifism is a consistent commitment to the ideal of non-violence during both peace and war times. It is based on the view that there are two general approaches to life: a practical approach and a contemplative approach. The practical one aims to improve humanity by combating concrete evils. The Contemplative one, by contrast, aims to improve humanity by revealing the highest good and universal truth, particularly through a commitment to morality and beauty. While most of us are mixtures of the two, some people are consistently contemplative, and their commitment carries through both times of peace and war. He argues that it is an important counterbalance to the practical approach to life, even in times of war. Weiss next considers four common criticisms of pacifism, and how ethical pacifism can withstand them. The first argument is that, by default, we should follow the decisions of our governments, and thus support war when they declare it. Second, through our representatives, the decisions of our governments are the decisions of all, and thus we should support war when they declare it. Third, it is inhumane to standby while a renegade country poses a danger to those abroad. Fourth, we must fight when danger is at our doorsteps and civilization itself is at risk. According to Weiss, it is only the last of these criticisms that overturns ethical pacifism, since the contemplative ideal of ethical pacifism itself relies on the existence of civilization.

 

FIVE JUSTIFICATIONS FOR PACIFISM

Men are pacifists for many reasons. A feeling of pride, world-weariness, selfishness or obstinacy are enough, in some cases, to make some react against war. Such men, though pacifists in fact and sometimes in intent, are not pacifists in spirit. They take no position, but only assume one. They can explain their actions perhaps; they cannot justify them. Regrettable impulses determine their course, not reason. ...

            Pacifism can be and has been supported in at least five different ways. In our society, the most approved way of supporting it is by appealing to the dictates of one’s religion. Our government, and others as well, even in the midst of a trying war, affirms that the religious pacifist has a right to reject the demands made on all the rest.

 

1. Religious Pacifism

Religious pacifism has a classical and a modern form. The former affirms that there is a God, that he desires that no man engage in or support a war, and that what he desires we should do. The latter makes no claim that there is a God, that he has such desires, or that we should seek the very things he does. It contents itself with affirming that pacifism is the position which the great religious leaders defend or exemplify, and that it is to be embraced by all those who adhere to the tradition to which those leaders belong. Most pacifists who are members of the long-established religions are inclined to take the former tack; some Quakers and “liberal Christians”, who are pacifists, prefer the latter. It would be interesting and profitable to examine each of these in detail and compare their respective claims. But for the present purpose this is unnecessary, since the vital nerve of both is the same.

            Both look first to the Bible or some similar work for testimony regarding the intent of God or the beliefs and practices of great religious men. The pacifists have no difficulty in piling quotation on quotation in support of the view that God and saintly men abhor destruction, love all men, and do nothing but what is good. Unfortunately, the language of God is far from clear, and the practices and beliefs of different great religious men are not in accord. From the same sources it is possible to obtain an equal stack of quotations in support of the opposing view that God and religious men are angry and avenging beings, and that they demand that all should be unalterably and vigorously at war with evil in every form. The members of the militant religious orders are no less sincere or well read than the others are. The view of the majority of those who belong to some religious group or other is that there are just wars and that religious men ought to participate in them. The religious pacifists have no stronger warrant that a minority interpretation of an ambiguous text.

            To such criticism the religious pacifist replies, with justice, that truth is not to be confounded with what the majority maintains. But it also ought not to be confounded with what the minority affirms. The religious pacifist ought to justify his view and not merely assert it. He must either tear his chosen text in two, granting that it gives equal sanction to both his and the opposing position, or he must appeal to a principle which justifies his stand alone. If he takes the former course, he confessedly makes an arbitrary choice, failing to provide an objective reason for taking his half of the text rather than the other. If he takes the latter course, he acknowledges evidence which the majority does not or cannot accept.

            The religious pacifist, in the last resort, rests his case on the fact that he has a strong personal conviction that he has correctly interpreted his text, or the intent of his religion or his God. No matter which way or on what grounds the rest of us choose, we too must finally have recourse to a similar personal conviction, pledging ourselves to hold that that, of which we are most convinced, is right. A conviction that a given position is correct is the final and inescapable ground for its whole-hearted adoption.

            Unfortunately, the strength of one’s convictions is no guarantee of the correctness of one’s view. Wrongheaded and mischievous doctrines are sometimes enthusiastically embraced, endorsed by conscience and felt to be beyond all doubt. To be sure that we are holding to what is in fact right, we must make sure that the strength of our conviction is a consequence of the strength of the view itself. But to do this we must examine the view, subject it to thorough criticism and support it in unimpeachable ways. Ultimately, all must rest their cases on personal conviction that they are right. But one acts with judgment and responsibility only so far as one allows his conviction to be determined by the merits of the case. Yet this is exactly what the religious pacifist fails to do. His faith has a strength worthy of a correct view; but he offers no satisfactory evidence that his view has a strength worthy of his faith. An equally arbitrary twist of his conscience will force him to change his stand, though all the facts are unchanged.

            Why is it then that our government is more partial to religious pacifism than to any other form? Partly because the religious pacifist speaks in consonance with the spirit of the highest ideals of our civilization, partly because his view is the direct outcome of the exercise of a freedom of conscience, which this nation is pledged to respect, and partly because its advocates are so sincere and unmovable.

            The last reason is, perhaps, the most important. Like many of those who make an appeal to a private inner light, religious pacifists brook no denial. They define themselves as beyond the reach of any influence which the force of steel or argument could provide. There is no possible way of dealing with them but to kill them or to ignore them. For the time being, our government pre­fers to do the latter. Its apparent approval of religious pacifism is but an official way of ignoring them as beyond the reach of rational or irrational persuasion. The government’s policy in this connection must be ours as well.

 

2. Cynical Pacifism

There is a more trenchant, worldly, and defensible form of pacifism. It provides evidence, great quantities of evidence, in support of its case. It builds on the facts of history, the experiences of fighting men, and the reports which governments belatedly provide telling the official story of how they became belligerents. These data are combined with what is known as the functioning of institutions, military, political, and economic, and the nature of man, so as to make a damning indictment of war and all it means. I shall term this type of pacifism cynical, since it suspects all the aims and denies all the gains others think that war involves.

            The cynical pacifist makes a long list of charges, of which the main items are perhaps the following. War, he says, encourages the worst tendencies in man, the urge to hate, to injure, kill, and destroy. It is fought for narrow nationalistic and imperialistic ends. It demands the abrogation of the rights men most cherish and which are hard to recover once abandoned. It leaves in its wake poverty, disease, and a spirit of vindictiveness — the seeds of another war. It involves the sacrifice of the lives of the most promising men, while others continue to make their profits and enjoy a luxurious peace even during the most harrowing times. It is hemmed in by multiple secret commitments with the enemy, with agreements that officials, diplomats, and generals are to be protected while the rest are led to slaughter. The list can be extended; the material is there for anyone to gamer. It provides the backbone of the satires of a Swift, of novels of disillusionment, of peacetime debates, and of congressional exposes.

            The simplest way to reply to this indictment is to grant it but deny that it applies today. What the cynical pacifist maintains, it can be argued, was once true, but is true no longer. This is a war unlike all others, grounded on different principles, run in a different way, devoted to new and noble ends. But such a reply expresses more the character of a hope than the color of facts. Men are brutalized, the ends are narrow, rights are curtailed, the costs are terrific, the ordinary man pays the highest price and extracts the least profit, there may well be secret commitments and agreements of all kinds. We saw how right the cynical pacifist was ten years after “the war to save democracy”; we will see how right he is ten years from now, and many of those who now turn from the view with distaste will embrace it then with enthusiasm. Such men we call liberals, perhaps because they are so free with the law of contradiction.

            The cynical pacifist must be met as all cynics are, not by denying his account, but by showing that there is another side to the story, having at least equal weight. In contrast with the cynical pacifist, one can with justice affirm that war promotes the highest tendencies in man, e.g., the spirit of cooperation and self-sacrifice, as well as the virtues of persistence, courage, loyalty, and devotion to non-personal ends. It is fought for the sake of a peace which all can enjoy. It leads to the abrogation of rights only for the purpose of making them more secure, and of achieving others not available before. It has made possible the growth of international law, the establishment of a world court and a world bank, the first steps in the achievement of a permanently peaceful world. It benefits the common man most of all, for at the end of almost every war his position is stronger than it had been before. Secret commitments and agreements are becoming less frequent, and whatever ones there are serve as means by which the war is pursued with more efficiency than otherwise would be the case.

            This array of truths does not suffice to show that the cynical pacifist is wrong. He surely is right in maintaining that war — and particularly a war for narrow and selfish ends — is, and always will be, an evil. No defense of war should be allowed to blur this point. The mistake of the cynical pacifist lies not in stressing it, but in forgetting that there is another point to be made as well, which would justify one in going to war. There can be a war fought properly, and for good ends. The cynical pacifist makes the tragic blunder of putting all belligerents on a level, overlooking the truth that one of them may be fighting to avoid the perpetuation of the very evils which the pacifist abhors.

            Most cynical pacifists are really ardent militarists in disguise, as their passion betrays. They are ready to abandon their position with a hint that their nation is in the right. Cynical pacifism is a peacetime view, the creature of weariness and disillusionment, and usually proves too weak to stand up against the contagion of common enthusiasm and communal devotion to a great ideal. To men battling for the right it has nothing to say, except — what is already well known — that the price they pay is high.

 

3. Sentimental Pacifism

A more stable form of pacifism, making a direct appeal to the best in man, is sentimental pacifism. It is the view that all men are precious, of incalculable worth, to be helped and loved, not injured or destroyed. The sentimentalist probes deeper than the cynic, for he cuts beneath the objectionable actual practices of men to the core from which good can flow. He does not look down at them, but into them. He sees beyond their race, their color, their creeds, their nationalities, their acts and limited reasons, to that good and fundamental source which alone makes them worthy of being called human.

            It is good and meet not to hate men, even one’s enemies. This is a truth not unknown to those whom the sentimentalist opposes. Experienced militarists rarely fight with the passions which move those behind the lines. Grant did not hate Lee. Foch did not hate Von Hindenburg. It was not Lincoln, in the midst of conflict, but the New Englanders, far away, who hated and despised the South. To be carried away by hate is to be unfit for the grueling task of handling one’s weapons with dispassionate dispatch; to be devoid of all trace of what the sentimentalist feels is to be in no position to make a human and lasting peace.

            But the sentimentalist makes a counter error. His is a false love since it does not allow men to make use of drastic means when these alone enable them to attain desired ends. Love is not incompatible with, and sometimes necessitates, acts of discipline, prevention, correction, and even destruction.

            It is a rare sentimentalist who follows through the implications of his position. If he opposes war as without possible justification, he ought to object to surgery, to prisons and the control of madmen. These too are evil, but they may be the only effective means for retaining or attaining goods we need. There may be times when a war alone makes it possible for the native goodness of man to flourish.

            To be sure, it is one thing to cut off a limb and another to cut off a head, one thing to imprison and another to execute, one thing to control and another to destroy. Yet the reasons which justify the one will, at times, justify the other. There are occasions when nothing but the death of some will make it possible for others to live as men and in peace. Those who are put to death can be put to death regretfully and with full consideration for the dignity which is theirs. The sentimentalist cannot rightly object to killing men, but to killing them as if they were beasts and we were bestial too. He surely does not love men enough if he is unwilling to sanction the dignified death of a few for the sake of all.

            Sentimental pacifism embodies a basic truth. All men deserve to be treated as humans. But that very truth demands that those who treat others inhumanly ought to be stopped. So far as one respects the humanity which the brutalizer still retains, and extracts some good from his death, everything for which the sentimentalist stands is preserved.

            The sentimentalist is too arrogant. He tries to do God’s work, not man’s. It is God’s task to love all men; it is enough for man to love only some and be human toward the others. The sentimental pacifist is too unworldly. He overlooks what men actually and empirically are, and stresses only their metaphysical nature. He gives full weight to the good which is man, and not enough to the drastic means which make that good possible or manifest. He equates the good of each with the good of all, refusing to sanction the removal of even one, no matter how corrupt, for the lasting benefit of the remainder. He would like to say that human life is so precious that it ought never to be sacrificed. Since his life is no less precious than the lives of others, he ought then, confronted with a threat of death, to engage in any act which does not compel him to kill another. Instead of opposing, he ought then to support every war, at least in a non-combatant capacity, so long as he is threatened with death should he refuse.

            Sentimental pacifism bespeaks a good heart but not a very good head. It should yield before the pressure of personal threat and the promise that a given war is an act of political surgery.

 

4. Political Pacifism

Political pacifism is a more worldly view. More men support it than any other, and it has signal successes to its name. It is the view of Gandhi and his followers, the view that political ends are more effectively attained through non-resistance than through war.

            There is deep wisdom in their doctrine. Opposition usually intensifies the fury of an attack. The stronger the opposition the more the conqueror is forced to destroy. Since it is to the benefit of the conqueror to preserve the land, the resources and the people he conquers, one is fairly sure, by not resisting, to save more than otherwise. Non-resistance keeps destruction at a minimum, and may even turn the temper of the conqueror by the beauty of its spirit.

            The position is strong, however, only to the degree that the conqueror is wise and can be moved at the sight of nobility. It makes certain that one will not be troubled by the best of men; but by the same token it makes certain that one will be swept away by the worst.

            It is a view possible to those who do not care to distinguish between the states of slavery and freedom, or who think that nothing is worth defending. It is the expression of a subject men­tality, as the term “non-resistance” indicates. It presupposes that war is initiated by another. It tells us nothing about the attitude which ought to be assumed by those nations which are dominant and are obligated to keep the peace by preventing minor evils from growing until they absorb all that is good. One can be nonresistant only when one has nothing, or when one has no responsibilities. But to be non-resistant in other cases is to define as worthless the goods one has attained, and to be indifferent to the welfare of those weaker than oneself.

            Political pacifism provides but a temptation for those who are bent on enslaving, corrupting, and exploiting. It is an idle gesture towards those who are of good will. Only in the case where one has been conquered by a power too strong to be overthrown, yet willing to be swayed, can it be a significant force for good. Until we are firmly under the heel of another, political pacifism is not a position we can or ought to assume. ...

 

5. Ethical Pacifism: Contemplative Commitment to the Highest Good

Each of these four forms of pacifism – religious, cynical, sentimental, and political – makes an important point which ought not to be forgotten. No one of them, however, provides a case strong enough to stand up against criticism. Each holds out against only some types of war, or only at certain times, and cannot rightly claim to define the true pacifist stand.

            Nor can these four views be combined into a single one, for they approach the problem in conflicting ways. …

            Most men are militarists in sympathy or in fact. A pacifism which is grounded on a denial of all the springs which make war possible, necessary, defensible, and sometimes desirable, is a pacifism which is compelled to deny some of the truth in order to hold on to the rest. An adequate pacifistic account cannot do this; it must prove itself to be the correlate and not the negation of an ethically responsible militaristic view. It must recognize that it and the other express diverse, but worthy and supplementary, ways of bringing out the best in man and of attaining what all men seek and ought to have.

            A pacifism of this order – I shall term it ethical pacifism, for reasons which will soon be evident – has never, to my knowledge, been definitively stated, though suggestions towards it occur here and there in the literature. Its neglect is due partly perhaps to the accidental dominance of the other forms of pacifism. …

            The practical man is concerned only with those ideals which can function as plans or programs, showing how to make the future better. He finds no joy in the study of ideals as such. Those that are not pertinent to what is going on here and now, or can function as instruments for the achievement of particular goods, he puts aside as fantasies which hover over moments of idleness and folly. The contemplative man, on the other hand, enjoys the ideals for themselves, and concentrates on those which have a more universal and constant meaning. He does not look at these ideals in terms of their pertinence to what is good here and now. The reverse rather is the case. He makes use of the real as a means for getting a better grip on the ideal. . . .

            In times of peace we are inclined to be contemplative; in times of war to be practical. We are all anxious to enjoy the fruits of peace and ready to rush in when a crisis looms. As a consequence we do first one and then the other, without rhythm, rationale, or respectable result. The reasons, however, which would justify our making one choice at one time are the very reasons which would justify our making it at another.

            There never was a period of pure, unbroken paradisal peace; there are always floods and famines, insurrections, and festering sources of radical evil. Those who take the practical course only in wartime are parochial, not fully ethical. If they are fighting for the goods which all men can and ought to have – and only then could they fight with justification – they are fighting for that which was worth fighting for before and ought to be fought for forever after. …

            The contemplative man also has a lifetime task. There never was a time when the goods he cherishes were of small account, unworthy of a man’s concentrated attention. If, during a period of peace, he can justify his devotion to the ideal, he has sufficient reason to justify it even in the most trying times. Those who take the contemplative course during a period of peace only are half-hearted, not entirely ethical. The goods they sought to attain then are always worth while and ought always to be pursued. Scientific and philosophic knowledge, works of art and the products of devotion, are no less valuable today than they were years ago. If it is our duty to neglect them now, why was it not our duty to have neglected them yesterday, when all around was injustice and misery? . . .

            Before one can conscientiously decide whether to be a militarist or a pacifist, one should ask oneself: What did I do before our nation began to fight? What will I do when we reach that lull we optimistically call peace? Did I and will I devote myself to the cause of making all men free and whole by fighting concrete evils in every form, all the time, with the energy and the self-sacrifice men expend in war? Or did I and will I devote myself to the cause of making all men free and whole by searching for and making manifest the highest and most universal goods, with the devotion and self sacrifice men expend for religious ends? Only those who can answer “yes” to the former question can pride themselves on having thrown their lot today with warring men; only those who can answer “yes” to the latter can justify the fact that they today turn the other way. . . .

 

FOUR ARGUMENTS AGAINST ETHICAL PACIFISM

There are a number of arguments which might be offered in refutation of the foregoing defense of ethical pacifism. Many of them, perhaps all, are elaborations of four key arguments — the kow-tow, the pow-wow, the bow-wow, and the ow-ow.

 

Kow-Tow: Submitting to Government

1. All men ought, it might be claimed, to kow-tow, to submit to the dictates of their governments. When the government decides that the time has come to go to war, all ought to be ready and willing to go; when it decides that the time has come to enjoy the pleasures of peace, all ought to be ready and willing to put aside a concern for other things.

            But this argument goes much too far. It requires all men to support the decisions of their governments, even when those decisions are immoral or perverse. It denies the right of revolution, of opposition to oppression and enslavement. It insists that every German, and even every Pole and Dutchman, should fight against democracy just because Hitler demands that he should. No better defense of their position could be wanted by those who are engaged in promoting wars of conquest, suppression, and destruction.

            Might does not make right. The ethical man must hold back, even unto death, against commands which are designed to make him do what he knows is radically wrong.

            It is possible to avoid the unsatisfactory consequences of the kow-tow argument by limiting it so that it demands that men submit only so far as their nation is in the right. But such qualification deprives the argument of its force as an argument against ethical pacifism. It leaves it to each to decide when his government is concerned with what is ultimately right, and allows him to stand apart from it when he judges it to be wrong. It commands the practical and ethical man to submit to governmental decisions when his nation is fighting for justice and eventual universal peace. This end is not, however, the end with which the contemplative man is directly concerned. The right which a nation can defend or promote is never ultimate or universal enough to compel a lover of ideals to abandon his pursuits.

            The contemplative man pays his taxes, obeys traffic signals, votes. He is not an individualist nor an anarchist. He does not oppose government as such. He knows that there ought to be local, organized societies, making their own laws and following their own bent. But he submits to the decisions of his own community only so far as it functions as one among, not one against the others, only so far as it does not stand in the way of a conscientious and wholehearted pursuit of universal truth and beauty. He refuses to kow-tow to decisions which deny the ultimate value of ideals and the love of them for their own sake, which is what a participa­tion in war would require.

 

Pow-Wow: Submitting to Representatives

2. A stronger case against ethical pacifism is provided by the pow-wow argument, the argument that, in our country at least, the decisions of our government are the decisions of all. The ethical pacifist, it contends, has, through the agency of his own representatives, decided to go to war; it is inconsistent for him now to attempt to go the other way.

            This argument also goes too far. Not everything one’s appointed representatives decide is right, wise or judicious; they are not to be blindly obeyed. Many unjust laws of minor scope ought to be obeyed for the sake of preserving the good habit of obeying laws. But it is possible for one’s representatives to frame unjust laws of great import which it would be wrong to obey.

            The pow-wow argument has ethical significance only so far as it appeals from the actual, and perhaps baleful, decisions of appointed representatives to the implicit intent of the people themselves, evaluating the former in the light of their conformity to the latter. It should urge one, in short, to conform to the decisions of an implicit pow-wow, of which an explicit provides but a partial and sometimes distorted account.

            The ethical pacifist does not deny the force of such an appeal. But he insists that the participants of such a pow-wow be under: stood to embrace all mankind, and not only those who happen to be citizens of his own country. The recognition of the fact that all men have a common human nature prevents him from participating in a war, since that requires him to view men as constituting opposing factions.

            The ethical pacifist refuses to engage in a war against tyranny or even in cooperative peacetime practical pursuits which work for the benefit of mankind, despite the fact that these conform to the intent of a universal pow-wow. He does not yield even here, not because he refuses to listen any longer to the command of mankind, but precisely because he continues to listen to it. He finds that it demands that his pursuits ought also to be pursued. The same grounds which compel a practical man to become a permanent member of an army always in the field, working for the lasting benefit of mankind, compel the contemplative to keep industriously and unswervingly at his appointed task. Mankind not only asks for the improvement of its material conditions, but wishes to have available the truths and beauties which can be only so far as some men make them the objects of an absorbing and undeviating concern. The pow-wow argument, then, instead of refuting the pacifist’s, provides him with an additional ground.

 

Bow-Wow:  Distant Danger

3. The bow-wow is a much stronger argument against pacifism. It claims that contemplation might be tolerated and perhaps encouraged when no danger threatens. But it goes on to observe that no one but an inhuman and selfish man would continue to engage in it when the rest are about to lose their most valuable goods. A mad dog, in the form of the enemy, it says, is running wild through that community which embraces all good and civilized men. What right has anyone to stand aside and allow it to do as it would?

            This argument, in contrast with the other two, does not, unfortunately, go far enough. Madness is a matter of degree and has causes as well as effects. Not only those are negligent who do not stop animals which are mad and running wild; those who made them mad or let them loose are also at fault. The mad-dog argument, if it holds at all, would justify a denial of a right to contemplation at any time, for danger always threatens.

            To use the mad-dog argument with effect it is necessary to distinguish between immediate and distant danger, and to insist that the former is different in kind from the latter, requiring a new decision to be made. Though it be true that we all have been negligent before and perhaps will be negligent again in making it possible for mad dogs to exist and to run wild, still the fact is that we now are face to face with them and ought to do our share of catching and destroying.

            Men, however, are a little too ready to describe their nation’s enemies as brutes and beasts, demons in human form, and themselves as rational and noble, humans marked with divinity. There seems to be too much reason in the’ activities of our nation’s enemies to permit us to call them mad. But it is not necessary to argue this point. If the occasion imagined ever did occur, and if that would require a change in attitude on the part of the pacifist, we should have enough reason to deny the ultimate tenability of ethical pacifism. If one cannot maintain the pacifist view against this objection, one cannot maintain it in general, but only at those times when the threat against civilization is minor or remote.

            Let us suppose then that our nation’s enemies are barbarians and beasts, deserving to be shot down at sight, exterminated without a trace, and that they are now running rampant. The supposition leaves the pacifist’s position untouched. When mad dogs run wild, not everyone ought to take up the chase; some ought to remain behind to look after the children, to see that the food does not spoil and the library does not burn. When the enemy is vile and violent and on our doorstep, not all ought to engage him. Some ought to stay behind and cherish the goods which permit us to be civilized and they not. The bow-wow argument tells us that there are times when practical men must act quickly; it does not show us that contemplative men must become practical when danger looms.

 

Ow-Ow: Immediate Danger

4. The strongest argument of all is the ow-ow. The mad dog, it says, is not running wild; it is already at our throats. Civilization is now becoming a thing of the past. If we would but listen we would hear the cry of mankind urging us to come to its aid. There is no longer a question of catching the mad dog; the task is now to help its victims. To continue to contemplate, even to want to contemplate, when men are crying out in distress, when civilization is passing, is to be so indifferent to true values as to define oneself as inhuman as those who have brought about this dismal pass.

            It is questionable whether, in modern times, the victory of one-side could spell the death of civilization. The end of a war is rarely an all-or-none affair, and the victor makes his compromises as surely as does the victim. It is to the victor’s gain that the victim preserve some health and strength, and that the goods of civiliza­tion be spread and conserved.

            We will be answered that these are different times and that the case, though hard to believe, is as disparate as it could possibly be. It would be futile to reply, particularly now when emotions run high and our friends and relatives are about to die. Let us grant that the fate of civilization has almost been settled, and that unless all men now do their part, we shall all perish in spirit if not in body.

            Against that argument, pacifism cannot make a stand. Pacifism is a civilized virtue; it presupposes the existence of some society or other, and the achievement of a fair degree of civilization. When men have reached that desperate state where civilization is passing away, ethical pacifism has no longer anything to say.

            The same turn of the screw, however, squeezes the militaristic life out of existence. That life is possible only so far as men have energy and power, organization and civilization. If all these are passing, one can engage only in disorganized and random action.

            When practical men are in extremis, the contemplative must do their work; when practice is no longer possible, there is nothing left to do but to take up contemplation as a kind of anodyne. In neither case will practice or contemplation be what they ought to be. In the former, practice is haphazard, undirected and almost inhuman, unsustained by anything but the need to be. In the latter case, contemplation is spasmodic, fainthearted, hardly more than a dream, unsustained by anything but the need to forget what one has suffered.

            No man can remain an ethical pacifist or a militarist when civilization is in the process of being finally extinguished; no man can be really contemplative or practical when it has already been extinguished. The ow-ow argument, as a cry accompanying the passing of civilization, is telling against both ethical pacifism and militarism, and then only if, as a cry marking the fact that civilization has been lost, it is telling against both the contemplative and the practical life as well.

            Ethical pacifism and ethical militarism come to be and pass away together. The justification of the one is the justification of the other. Their paths are forever parallel, meeting only in that infinity where there is only one nation, wholly prosperous and healthy, and all its members are both philosophers and kings, workmen and artists, scientists and engineers, theists and materialists, two men in one.

 

Source: Paul Weiss, “The Ethics of Pacifism,” Philosophical Review (1942) Vol. 51.

 

Questions for Review

1. Give one of Weiss’s criticisms of religious pacifism.

2. Give one of Weiss’s criticisms of cynical pacifism.

3. Give one of Weiss’s criticisms of sentimental pacifism.

4. Give one of Weiss’s criticisms of political pacifism.

5. How do the practical and contemplative visions of life differ?

6. What is Weiss’s argument against the “submitting to government”?

 

Questions for Analysis

1. Weiss states that, of all the justifications of pacifism, governments accept religious pacifism the most. Assume that you are the secretary of war; how could you defend the policy of acknowledging religious pacifism, but not one of the others, such as cynical pacifism?

2. In response to the “distant danger” argument, Weiss states that this tells us only that there are times when practical people must act quickly; it does not show us that contemplative people must become practical when danger looms. Is he correct? Explain.

3. What difference, if any, is there between sentimental pacifism and ethical pacifism?

4. Explain the last paragraph of Weiss’s essay.

 

____________________

 

#4

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 U.S. 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: Tom Malinowski, 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 for Review

1. Describe the facts, as Malinowski presents them, regarding the post-9-11 CIA program of secret detention and torture.

2. What was the Bush administration’s justification for these practices?

3. How, according to Malinowski, do these practices discredit the U.S. and undermine human rights world wide?

4. Why, according to Malinowski, is torture not a reliable method of interrogation?

5. Why, according to Malinowski, are secret detention and military trials less effective than open Federal trials?

 

Questions for Analysis

1. 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.

2. 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?

3. 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?

 

 

____________________

 

#5

 

JUST WARS AND STEPS TOWARDS PEACE

Barak Obama

 

Your Majesties, Your Royal Highnesses, Distinguished Members of the Norwegian Nobel Committee, citizens of America, and citizens of the world:

            I receive this honor with deep gratitude and great humility. It is an award that speaks to our highest aspirations — that for all the cruelty and hardship of our world, we are not mere prisoners of fate. Our actions matter, and can bend history in the direction of justice.

            And yet I would be remiss if I did not acknowledge the considerable controversy that your generous decision has generated. In part, this is because I am at the beginning, and not the end, of my labors on the world stage. Compared to some of the giants of history who have received this prize — Schweitzer and King; Marshall and Mandela — my accomplishments are slight. And then there are the men and women around the world who have been jailed and beaten in the pursuit of justice; those who toil in humanitarian organizations to relieve suffering; the unrecognized millions whose quiet acts of courage and compassion inspire even the most hardened of cynics. I cannot argue with those who find these men and women — some known, some obscure to all but those they help — to be far more deserving of this honor than I.

            But perhaps the most profound issue surrounding my receipt of this prize is the fact that I am the Commander-in-Chief of a nation in the midst of two wars. One of these wars is winding down. The other is a conflict that America did not seek; one in which we are joined by 43 other countries — including Norway — in an effort to defend ourselves and all nations from further attacks.

            Still, we are at war, and I am responsible for the deployment of thousands of young Americans to battle in a distant land. Some will kill. Some will be killed. And so I come here with an acute sense of the cost of armed conflict — filled with difficult questions about the relationship between war and peace, and our effort to replace one with the other.

 

THE EMERGENCE OF MODERN WARFARE

These questions are not new. War, in one form or another, appeared with the first man. At the dawn of history, its morality was not questioned; it was simply a fact, like drought or disease — the manner in which tribes and then civilizations sought power and settled their differences.

            Over time, as codes of law sought to control violence within groups, so did philosophers, clerics and statesmen seek to regulate the destructive power of war. The concept of a "just war" emerged, suggesting that war is justified only when it meets certain preconditions: if it is waged as a last resort or in self-defense; if the forced used is proportional; and if, whenever possible, civilians are spared from violence.

            For most of history, this concept of just war was rarely observed. The capacity of human beings to think up new ways to kill one another proved inexhaustible, as did our capacity to exempt from mercy those who look different or pray to a different God. Wars between armies gave way to wars between nations — total wars in which the distinction between combatant and civilian became blurred. In the span of 30 years, such carnage would twice engulf this continent. And while it is hard to conceive of a cause more just than the defeat of the Third Reich and the Axis powers, World War II was a conflict in which the total number of civilians who died exceeded the number of soldiers who perished.

            In the wake of such destruction, and with the advent of the nuclear age, it became clear to victor and vanquished alike that the world needed institutions to prevent another World War. And so, a quarter century after the United States Senate rejected the League of Nations — an idea for which Woodrow Wilson received this Prize — America led the world in constructing an architecture to keep the peace: a Marshall Plan and a United Nations, mechanisms to govern the waging of war, treaties to protect human rights, prevent genocide and restrict the most dangerous weapons.

            In many ways, these efforts succeeded. Yes, terrible wars have been fought, and atrocities committed. But there has been no Third World War. The Cold War ended with jubilant crowds dismantling a wall. Commerce has stitched much of the world together. Billions have been lifted from poverty. The ideals of liberty, self-determination, equality and the rule of law have haltingly advanced. We are the heirs of the fortitude and foresight of generations past, and it is a legacy for which my own country is rightfully proud.

            A decade into a new century, this old architecture is buckling under the weight of new threats. The world may no longer shudder at the prospect of war between two nuclear superpowers, but proliferation may increase the risk of catastrophe. Terrorism has long been a tactic, but modern technology allows a few small men with outsized rage to murder innocents on a horrific scale.

            Moreover, wars between nations have increasingly given way to wars within nations. The resurgence of ethnic or sectarian conflicts, the growth of secessionist movements, insurgencies and failed states have increasingly trapped civilians in unending chaos. In today's wars, many more civilians are killed than soldiers; the seeds of future conflict are sown, economies are wrecked, civil societies torn asunder, refugees amassed and children scarred.

 

NON-VIOLENCE AND THE REALITY OF WAR

I do not bring with me today a definitive solution to the problems of war. What I do know is that meeting these challenges will require the same vision, hard work and persistence of those men and women who acted so boldly decades ago. And it will require us to think in new ways about the notions of just war and the imperatives of a just peace.

            We must begin by acknowledging the hard truth that we will not eradicate violent conflict in our lifetimes. There will be times when nations — acting individually or in concert — will find the use of force not only necessary but morally justified.

            I make this statement mindful of what Martin Luther King said in this same ceremony years ago: "Violence never brings permanent peace. It solves no social problem: It merely creates new and more complicated ones." As someone who stands here as a direct consequence of Dr. King's life's work, I am living testimony to the moral force of non-violence. I know there is nothing weak, nothing passive, nothing naive in the creed and lives of Gandhi and King.

            But as a head of state sworn to protect and defend my nation, I cannot be guided by their examples alone. I face the world as it is, and cannot stand idle in the face of threats to the American people. For make no mistake: Evil does exist in the world. A nonviolent movement could not have halted Hitler's armies. Negotiations cannot convince al-Qaidas leaders to lay down their arms. To say that force is sometimes necessary is not a call to cynicism — it is a recognition of history, the imperfections of man and the limits of reason.

            I raise this point because in many countries there is a deep ambivalence about military action today, no matter the cause. At times, this is joined by a reflexive suspicion of America, the worlds sole military superpower.

            Yet the world must remember that it was not simply international institutions — not just treaties and declarations — that brought stability to a post-World War II world. Whatever mistakes we have made, the plain fact is this: The United States of America has helped underwrite global security for more than six decades with the blood of our citizens and the strength of our arms. The service and sacrifice of our men and women in uniform has promoted peace and prosperity from Germany to Korea, and enabled democracy to take hold in places like the Balkans. We have borne this burden not because we seek to impose our will. We have done so out of enlightened self-interest — because we seek a better future for our children and grandchildren, and we believe that their lives will be better if other people's children and grandchildren can live in freedom and prosperity.

            So yes, the instruments of war do have a role to play in preserving the peace. And yet this truth must coexist with another — that no matter how justified, war promises human tragedy. The soldiers courage and sacrifice is full of glory, expressing devotion to country, to cause and to comrades in arms. But war itself is never glorious, and we must never trumpet it as such.

 

EVOLUTION OF STEPS TOWARDS PEACE

So part of our challenge is reconciling these two seemingly irreconcilable truths — that war is sometimes necessary, and war is at some level an expression of human folly. Concretely, we must direct our effort to the task that President Kennedy called for long ago. "Let us focus," he said, "on a more practical, more attainable peace, based not on a sudden revolution in human nature but on a gradual evolution in human institutions."

            What might this evolution look like? What might these practical steps be?

            To begin with, I believe that all nations — strong and weak alike — must adhere to standards that govern the use of force. I — like any head of state — reserve the right to act unilaterally if necessary to defend my nation. Nevertheless, I am convinced that adhering to standards strengthens those who do, and isolates — and weakens — those who dont.

            The world rallied around America after the 9/11 attacks, and continues to support our efforts in Afghanistan, because of the horror of those senseless attacks and the recognized principle of self-defense. Likewise, the world recognized the need to confront Saddam Hussein when he invaded Kuwait — a consensus that sent a clear message to all about the cost of aggression.

            Furthermore, America cannot insist that others follow the rules of the road if we refuse to follow them ourselves. For when we don't, our action can appear arbitrary, and undercut the legitimacy of future intervention — no matter how justified.

            This becomes particularly important when the purpose of military action extends beyond self-defense or the defense of one nation against an aggressor. More and more, we all confront difficult questions about how to prevent the slaughter of civilians by their own government, or to stop a civil war whose violence and suffering can engulf an entire region.

            I believe that force can be justified on humanitarian grounds, as it was in the Balkans, or in other places that have been scarred by war. Inaction tears at our conscience and can lead to more costly intervention later. That is why all responsible nations must embrace the role that militaries with a clear mandate can play to keep the peace.

            America's commitment to global security will never waver. But in a world in which threats are more diffuse, and missions more complex, America cannot act alone. This is true in Afghanistan. This is true in failed states like Somalia, where terrorism and piracy is joined by famine and human suffering. And sadly, it will continue to be true in unstable regions for years to come.

            The leaders and soldiers of NATO countries — and other friends and allies — demonstrate this truth through the capacity and courage they have shown in Afghanistan. But in many countries, there is a disconnect between the efforts of those who serve and the ambivalence of the broader public. I understand why war is not popular. But I also know this: The belief that peace is desirable is rarely enough to achieve it. Peace requires responsibility. Peace entails sacrifice. That is why NATO continues to be indispensable. That is why we must strengthen U.N. and regional peacekeeping, and not leave the task to a few countries. That is why we honor those who return home from peacekeeping and training abroad to Oslo and Rome; to Ottawa and Sydney; to Dhaka and Kigali — we honor them not as makers of war, but as wagers of peace.

            Let me make one final point about the use of force. Even as we make difficult decisions about going to war, we must also think clearly about how we fight it. The Nobel Committee recognized this truth in awarding its first prize for peace to Henry Dunant — the founder of the Red Cross, and a driving force behind the Geneva Conventions.

            Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct. And even as we confront a vicious adversary that abides by no rules, I believe that the United States of America must remain a standard bearer in the conduct of war. That is what makes us different from those whom we fight. That is a source of our strength. That is why I prohibited torture. That is why I ordered the prison at Guantanamo Bay closed. And that is why I have reaffirmed America's commitment to abide by the Geneva Conventions. We lose ourselves when we compromise the very ideals that we fight to defend. And we honor those ideals by upholding them not just when it is easy, but when it is hard.

 

THREE STEPS TOWARDS PEACE

I have spoken to the questions that must weigh on our minds and our hearts as we choose to wage war. But let me turn now to our effort to avoid such tragic choices, and speak of three ways that we can build a just and lasting peace.

            First, in dealing with those nations that break rules and laws, I believe that we must develop alternatives to violence that are tough enough to change behavior — for if we want a lasting peace, then the words of the international community must mean something. Those regimes that break the rules must be held accountable. Sanctions must exact a real price. Intransigence must be met with increased pressure — and such pressure exists only when the world stands together as one.

            One urgent example is the effort to prevent the spread of nuclear weapons, and to seek a world without them. In the middle of the last century, nations agreed to be bound by a treaty whose bargain is clear: All will have access to peaceful nuclear power; those without nuclear weapons will forsake them; and those with nuclear weapons will work toward disarmament. I am committed to upholding this treaty. It is a centerpiece of my foreign policy. And I am working with President Medvedev to reduce America and Russia's nuclear stockpiles.

            But it is also incumbent upon all of us to insist that nations like Iran and North Korea do not game the system. Those who claim to respect international law cannot avert their eyes when those laws are flouted. Those who care for their own security cannot ignore the danger of an arms race in the Middle East or East Asia. Those who seek peace cannot stand idly by as nations arm themselves for nuclear war.

            The same principle applies to those who violate international law by brutalizing their own people. When there is genocide in Darfur, systematic rape in Congo or repression in Burma — there must be consequences. And the closer we stand together, the less likely we will be faced with the choice between armed intervention and complicity in oppression.

            This brings me to a second point — the nature of the peace that we seek. For peace is not merely the absence of visible conflict. Only a just peace based upon the inherent rights and dignity of every individual can truly be lasting.

            It was this insight that drove drafters of the Universal Declaration of Human Rights after the Second World War. In the wake of devastation, they recognized that if human rights are not protected, peace is a hollow promise.

            And yet all too often, these words are ignored. In some countries, the failure to uphold human rights is excused by the false suggestion that these are Western principles, foreign to local cultures or stages of a nation's development. And within America, there has long been a tension between those who describe themselves as realists or idealists — a tension that suggests a stark choice between the narrow pursuit of interests or an endless campaign to impose our values.

            I reject this choice. I believe that peace is unstable where citizens are denied the right to speak freely or worship as they please, choose their own leaders or assemble without fear. Pent up grievances fester, and the suppression of tribal and religious identity can lead to violence. We also know that the opposite is true. Only when Europe became free did it finally find peace. America has never fought a war against a democracy, and our closest friends are governments that protect the rights of their citizens. No matter how callously defined, neither America's interests — nor the worlds — are served by the denial of human aspirations.

            So even as we respect the unique culture and traditions of different countries, America will always be a voice for those aspirations that are universal. We will bear witness to the quiet dignity of reformers like Aung Sang Suu Kyi; to the bravery of Zimbabweans who cast their ballots in the face of beatings; to the hundreds of thousands who have marched silently through the streets of Iran. It is telling that the leaders of these governments fear the aspirations of their own people more than the power of any other nation. And it is the responsibility of all free people and free nations to make clear to these movements that hope and history are on their side.

            Let me also say this: The promotion of human rights cannot be about exhortation alone. At times, it must be coupled with painstaking diplomacy. I know that engagement with repressive regimes lacks the satisfying purity of indignation. But I also know that sanctions without outreach — and condemnation without discussion — can carry forward a crippling status quo. No repressive regime can move down a new path unless it has the choice of an open door.

            In light of the Cultural Revolution's horrors, Nixon's meeting with Mao appeared inexcusable — and yet it surely helped set China on a path where millions of its citizens have been lifted from poverty, and connected to open societies. Pope John Paul's engagement with Poland created space not just for the Catholic Church, but for labor leaders like Lech Walesa. Ronald Reagan's efforts on arms control and embrace of perestroika not only improved relations with the Soviet Union, but empowered dissidents throughout Eastern Europe. There is no simple formula here. But we must try as best we can to balance isolation and engagement, pressure and incentives, so that human rights and dignity are advanced over time.

            Third, a just peace includes not only civil and political rights — it must encompass economic security and opportunity. For true peace is not just freedom from fear, but freedom from want.

            It is undoubtedly true that development rarely takes root without security; it is also true that security does not exist where human beings do not have access to enough food, or clean water, or the medicine they need to survive. It does not exist where children cannot aspire to a decent education or a job that supports a family. The absence of hope can rot a society from within.

            And that is why helping farmers feed their own people — or nations educate their children and care for the sick — is not mere charity. It is also why the world must come together to confront climate change. There is little scientific dispute that if we do nothing, we will face more drought, famine and mass displacement that will fuel more conflict for decades. For this reason, it is not merely scientists and activists who call for swift and forceful action — it is military leaders in my country and others who understand that our common security hangs in the balance.

 

HUMAN FRAILTY AND MORAL IDEALS

Agreements among nations. Strong institutions. Support for human rights. Investments in development. All of these are vital ingredients in bringing about the evolution that President Kennedy spoke about. And yet, I do not believe that we will have the will, or the staying power, to complete this work without something more — and that is the continued expansion of our moral imagination, an insistence that there is something irreducible that we all share.

            As the world grows smaller, you might think it would be easier for human beings to recognize how similar we are, to understand that we all basically want the same things, that we all hope for the chance to live out our lives with some measure of happiness and fulfillment for ourselves and our families.

            And yet, given the dizzying pace of globalization, and the cultural leveling of modernity, it should come as no surprise that people fear the loss of what they cherish about their particular identities — their race, their tribe and, perhaps most powerfully, their religion. In some places, this fear has led to conflict. At times, it even feels like we are moving backwards. We see it in the Middle East, as the conflict between Arabs and Jews seems to harden. We see it in nations that are torn asunder by tribal lines.

            Most dangerously, we see it in the way that religion is used to justify the murder of innocents by those who have distorted and defiled the great religion of Islam, and who attacked my country from Afghanistan. These extremists are not the first to kill in the name of God; the cruelties of the Crusades are amply recorded. But they remind us that no Holy War can ever be a just war. For if you truly believe that you are carrying out divine will, then there is no need for restraint — no need to spare the pregnant mother, or the medic, or even a person of one's own faith. Such a warped view of religion is not just incompatible with the concept of peace, but the purpose of faith — for the one rule that lies at the heart of every major religion is that we do unto others as we would have them do unto us.

            Adhering to this law of love has always been the core struggle of human nature. We are fallible. We make mistakes, and fall victim to the temptations of pride, and power, and sometimes evil. Even those of us with the best intentions will at times fail to right the wrongs before us.

            But we do not have to think that human nature is perfect for us to still believe that the human condition can be perfected. We do not have to live in an idealized world to still reach for those ideals that will make it a better place. The nonviolence practiced by men like Gandhi and King may not have been practical or possible in every circumstance, but the love that they preached — their faith in human progress — must always be the North Star that guides us on our journey.

            For if we lose that faith — if we dismiss it as silly or naive, if we divorce it from the decisions that we make on issues of war and peace — then we lose what is best about humanity. We lose our sense of possibility. We lose our moral compass.

            Like generations have before us, we must reject that future. As Dr. King said at this occasion so many years ago: "I refuse to accept despair as the final response to the ambiguities of history. I refuse to accept the idea that the 'isness' of man's present nature makes him morally incapable of reaching up for the eternal 'oughtness' that forever confronts him."

            So let us reach for the world that ought to be — that spark of the divine that still stirs within each of our souls. Somewhere today, in the here and now, a soldier sees he's outgunned but stands firm to keep the peace. Somewhere today, in this world, a young protestor awaits the brutality of her government, but has the courage to march on. Somewhere today, a mother facing punishing poverty still takes the time to teach her child, who believes that a cruel world still has a place for his dreams.

            Let us live by their example. We can acknowledge that oppression will always be with us, and still strive for justice. We can admit the intractability of deprivation, and still strive for dignity. We can understand that there will be war, and still strive for peace. We can do that — for that is the story of human progress; that is the hope of all the world; and at this moment of challenge, that must be our work here on Earth.

 

Source: Barak Obama, Nobel Peace Prize Acceptance Speech, 2009.