12

WAR

CONTENTS

1. Criteria of Just War—Thomas Aquinas and Hugo Grotius

From Summa Theologica (1265-1274) and The Laws of War and Peace (1625)

2. The Ethics of Pacifism—Paul Weiss

From “The Ethics of Pacifism” (1942)

3. Can Terrorism be Justified?—Alexander Moseley

Newly Commissioned

4. Torture and Secret Detention—Tom Malinowski

From U.S. Senate Committee on Foreign Relations (2007)

5. War and Civil Liberties: Korematsu v. U.S.—Hugo Black, Frank Murphy, Robert H. Jackson

From: U.S. Supreme Court, Korematsu vs. United States (1944)

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#1.

Criteria Of Just War

Thomas Aquinas and Hugo Grotius

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. [3.12.1]

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, 13

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.

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 Pacificism: 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; selections.

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.

____________________

#3.

Can Terrorism Be Justified?

Alexander Moseley

In this essay British political philosopher Alexander Moseley examines the notion of terrorism and whether there are circumstances in which terrorist actions are morally justifiable. He first considers common grounds that people have offered for rejecting terrorism as a practice. For example, some have dismissed it simply because people happen to be “terrified” by such acts. Moseley disagrees and contends that there are times when terrifying another is a proper practice, such as with surgery. Next, he considers the common political conception that terrorism deals with power and therefore with governments, either fighting for them or against them. He rejects this as well since much of human history has involved non-state wars. Further, the common political conception of terrorism is that it is a group activity. He objects to this since it wrongly assumes that assumes that the individuals concerned are of one mind. The definition of “terrorist” Mosely arrives at is that it is someone who has decided to employ a policy of terrifying another; that he typically seeks to change others’ beliefs or actions; that he may or may not group with other terrorists; that he may or may not be motivated by political power. Turning to terrorists’ motivations, he examines two possible ones: the overthrow of an oppressive state through any means, and the conviction that suffering is part of our divinely ordained destiny because of our sinful nature. Both of these he rejects since they rest on morally debatable assumptions. Finally, he considers whether acts of terrorism can ever be morally justified. Drawing from just war theory, he argues that in very specific circumstances terrorism indeed can be justified, but only for self-defense and only against those who initiate aggression. Specifically, terrorism against an invading armed force is not only tactically but morally acceptable as a means of slowing down their momentum.

INTRODUCTION

In the wake of a terrorist attack people often react wildly, dismissing the action as incomprehensible and evil. The attack rips normal life apart, disrupts life’s flow, and imposes upon its victims a terrible aftermath of injury, loss, destruction, and bewilderment. The terrorist is rejected as inhumane, to whom reason and life do not mean anything. Terrorism it would seem should not play any role in our lives.

            But terrorism should not be quickly dismissed as beyond our understanding. We should not reject turning our thoughts to any matter, regardless how repugnant or emotional the topic initially is to us. Like a scientist, the philosopher must unravel the problems and definitions of the issue to get to the bottom of it, however we feel about an issue.

            Firstly, we shall explore the nature of terror so it may be brought within our mental compass. Secondly, we shall see that familiar political descriptions do not provide a good grasp of terrorism. Thirdly, we shall consider the morality of different kinds of terrorism, and fourthly, I will argue that by using the traditional just war conventions, terrorism can indeed be acceptable under very strict conditions of self-defense and only against those who initiate aggression. Otherwise aggressive terrorism in war or terrorism against civilians in peace, whether enacted by individuals, guerrillas, or by states is not morally permissible or justifiable.

BEING TERRIFIED

At the heart of terrorist ethics is a particular way of looking at life and death. We are usually concerned with living life, but what about dying? Death is inescapable, and rarely foreseen, so does it matter how a person dies, when death is unpredictable and the end result is oblivion? Obviously, those who believe in an afterlife will not see death as final but as a release from the world’s bodily woes before the soul is permitted its flight into a divine realm. Yet for both religious and non-religious people, a good death is usually held to be morally valuable. And this is what the terrorist apparently seeks to destroy.

            Consider the following deaths: a slow agonizing death from cancer; a sudden knock at the door and a gunman’s blast; being shot by a sniper while on patrol; being blown up while shopping; bleeding to death alone after a farming accident; falling through frozen ice; a screeching bomb falling inexorably onto one’s house; the advancement of the enemy’s front guard; being caught in a burning building. The list of terrifying deaths is long and apparently all-encompassing. Each kind of death can be considered to be terrifying to at least someone. And nor do all such deaths require a perpetuator. If death is inescapable, does it matter if we die terrified or calmly, at our own hands or those of another? After all, we’re not going to be around afterwards to think about how we reacted!

            The great religions have provided effective and comforting words for millions throughout history against life’s sufferings and the unexpected losses we face, and the secular philosophies also seek to give meaning to those final conscious moments. Dignity in death is a primary value that most of our moral systems seek to encourage. Now, dignity assumes a preparedness – a mental readiness to face the end, even though its timing remains uncertain. To assume a dignified mind prior to death is to embrace death’s finality courageously and with pride – a pride in either accepting the achievements of life or the expectation of the glories of the afterlife. In contrast, terrorism seeks to deny any scrap of dignity for its victims; it is designed to spread confusion and fear by violating normality and imposing terrifying conditions upon the lives of victims, disarming their ability to come to terms with any impending death through unpredictable and usually indiscriminate tactics.

            Many people would agree with that assessment of terrorism. But what if we reject the need to possess a dignity in death? Just because so many religions and philosophies teach us that we should aim for a dignified ending does not mean that they are right. If we reject dignity in death, then does it really matter how we die? Death is the end, and the dying agent is not going to be around afterwards to assess his or her own performance – so why worry about being dignified? This would mean that death from a terrorist act can line up as just one amongst many possible deaths – perhaps no better nor worse than the rest: starvation, cancer, heart-failure, being bombed or shot, overdose, abortion, burning, freezing, car crash, strangulation, asphyxiation, drowning, etc.

            The list of possibly undignified deaths forces us to reconsider terrorism: perhaps defending or attacking it requires a special explanation. Certainly, terrorism cannot be morally rejected because people happen to be “terrified’; starvation or freezing can be just as terrifying. Being terrified is an emotional state, and emotional states are rarely good for clear thinking. We must thusly begin from first principles – examine the nature of the terrorist act and remove any emotional reactions that may have us judging it according to preconceived notions – ideas and emotive images that we’ve picked up from the media and its selectively chosen pictures, or even from our own witness to terror. We must avoid condemning it without thinking.

THE NATURE OF THE TERRORIST ACT

The word “terrorism” stems from the Latin terrere – to frighten or to terrify. Thus “terrorism’, broadly speaking, describes a form of action intended to terrify a target for an implied purpose.

            Note that what constitutes a target is left unidentified. At this point our concern is to establish the nature of terrorizing, and that means removing any preconceptions about whether some targets are morally acceptable or not. Stated simply as “to terrify a target for some implied purpose” leaves work to do both on the nature of targets and purposes.

            It may be argued that the very act of terrifying is in itself reprehensible and cannot be morally condoned under any conditions. But that is too simplistic: Romantic poets and artists of the 1780s actually sought terror in the “sublime” by facing the overarching immensity of nature’s mountains and storms to frighten themselves. We can say that such chosen acts, or terrifying situations brought upon oneself, should be distinguished from those acts imposed on a person by another. Similarly, we can discriminate between a person embracing a terrifying life of facing controlled dangers (e.g., many sports) and a person embracing a terrifying life of uncontrolled dangers, who chooses to enter a realm of danger without rules and in some cases no easy exit (e.g., hiking in the mountains). Yet in all voluntarily chosen terrors, the fact of volitional choice implies that the agent is (or should be) mentally equipped to deal with terror.

            Moving from circumstances in which an agent chooses terrifying, even life-threatening, situations, we can shift to examples of imposing terrifying conditions on others, who do not wish to partake, and who therefore have terrifying conditions imposed upon them.  Perhaps this is what makes terrorism evil?

            No, we have to think deeper. The very act of terrorising another cannot be summarily dismissed as being evil in itself: there are times when terrifying another is a proper policy. For example, in surgery, one could argue that to slice another person’s skin is morally proper; and if such a terrifying act can be accepted, perhaps there are others. Consider the argument that any human action implies acting towards an end. It follows that any goal we strive for is intimately connected to the means we use to achieve our goal. The means may then be judged not in their own right (slicing skin) but in connection to the ends sought. Just as such methods cannot be judged without considering what are the ends (removing a limb to save a life), nor can ends be judged without consideration of the means.

            Terrorism employs terrifying means to terrify people, but whether either the means or the ends can be morally rejected depends on a broader analysis. We can ask: is it right that these people are to be terrified? Or is terrifying them conducive to securing an intended goal that they may even appreciate? Leaving these questions hanging for the present, we must turn to the widely held political descriptions of terrorism, which seeks to understand the nature of the terrorism in one particular way, and which must be rejected if we are to better understand terrorism and its use.

POLITICAL MODELS OF TERRORISM

Terrorism is often defined as being political. That is, terrorism deals with power and therefore with governments, either fighting for them or against them. In narrowing acts of terrorism to those involving political bodies such as governments, terrorism is not defined any better. It would be like discussing horses, but only as they are used in show jumping.

            The modern advance of the state into all affairs does not alter the definition of an ethical problem. We can certainly note that the growth of government and state sponsored wars in the past two centuries has politicized much in their wake. This has meant that many commentators on terrorism define it as necessarily involving, in some manner or form, the state. Or at least they do not consider alternative readings of terrorism. This lends itself to a peculiar view of war that sees war as involving aggregates of men and women drilled by government departments into fighting each other according to various strategies and tactics designed and legitimized by reference to political institutions. War is political, they claim, so terrorist actions are also described as being integral, or in opposition, to the state. So for many, terrorism is part of the wider political process of securing power or relating to power structures.

            Why is this view wrong-headed? Because much of human history has involved non-state wars, existing between groups that do not possess recognizable political institutions such as governments and judiciaries. Or, as is more often the case, wars have soon stretched beyond the state’s abilities and presumptions to control or manage it: war is an open-ended activity involving the interactions of thousands, that the conscious will of political representatives or leaders cannot always control. Once unleashed, it can make a mockery of politicians.

            In contrast to the narrowly contrived limits to political war and terrorism, the possible ends of terror are much wider than many modern writers permit. To terrify a target is to seek some change in its behavior, and that may include altering political allegiances or policies: but not exclusively so. It may, for example, seek to reform a religious or cultural outlook, to encourage migration or a reduction in taxation, or to draw attention to persecution, lack of democracy, or ethnic cleansing. Therefore, to place terrorism into a political strait jacket is to dull analysis.

            Nor, we can add, need terrorism be a group activity. Some thinkers are quick to pass blame or responsibility onto groups, and certainly war typically involves groups of people who decide to take up arms and fight one another. But the decision to bear arms is always an individual one, just as any decision stems from the individual. Wars therefore can be initiated by a single person. This (individualist) philosophical tradition reaching back through Locke to Aquinas, Augustine, and Aristotle saw little distinction between the aggression of a criminal and that of an emperor at the head of immense armies. It is an important point to make: the insistence that war is inherently enacted by individuals has been lost in the noise of recent political thought which has thrown individuals into the pot of “collective responsibility” and thereby removed them from responsibility for their actions. Not surprisingly, this has led to indiscriminate terrorism: if America is guilty of interfering in the Middle East, then all Americans should be held collectively responsible – and hence be legitimate targets for terrorists.

            This methodology – indeed, this view of human action and hence of history, morality, and politics – is known as “collectivism’. Collectivism has been the driving ideology behind most bloodshed in the past century. When individuality is cast aside in favor of group identity (John is young, American, black, heterosexual, Protestant, …) his life is effectively renounced in favor of whichever group calls upon his allegiance. And war, in all of its forms, takes on the spurious mantle of two giants fighting each other as abstracts personified (race, religion, nationality). So, if our group allegiance matters more than our individuality, it follows that terrorizing “parts” of the whole becomes morally acceptable: it doesn’t really matter whether the policy is to bomb soldiers, assassinate leaders, or blow up shoppers or party-goers.

            Collectivism also sees human action in terms of groups acting as if the individuals concerned were of one mind. This logical fallacy is highly destructive of the proper understanding of any human activity. Unsurprising, it has been deployed to mask the responsibility of those committing terrorist acts as well as to diminish the moral standing of their targets: the “Irish” planted the bombs, the “English” will suffer.

            If we throw everybody into groups, then those who seek to keep terrorism in the fold of political action – i.e., being derived from, or referring to, states and hence to collective entities – are thus prone to make arbitrary distinctions between criminals and terrorists. The lone terrorist who fires into a crowd is thus designated a “criminal” but a group of terrorists acting together are somehow “politicized” by virtue of their number and given some credibility – even if they are called “extremists.” Terrorist groups are then to be applauded or derided for their activism for or against the state. Yet a terrorist need not belong to a brigade of agitators. And this is a crucial point for exploring the ethical dimensions of terrorism. So let’s recap.

            A terrorist is someone who has decided to employ a policy of terrifying another. He  instills in his victims such fear and horror that they must be forever vigilant and never relax. Typically the terrorist seeks to change others’ beliefs or actions. He may or may not group with other terrorists and form a coordinated policy of promoting terror against an individual or a group. But if we claim that such a person can only be motivated by power (politics), then we do ourselves a disservice in refusing to treat other terrorizing acts as somehow different.

            This means that the man who walks into a school to gun down defenseless children is a terrorist. So too is an officer who orders his artillery to fire shells upon a school. That the officer works for a political organization does not provide a greater justification, legitimacy, or excuse for his action. The goal and the method are identical: to sow terror amongst unprepared victims. The distinction between the individual and the “political” terrorist has been blurred by collectivist thinking over the past century, and this has led to a relative acceptability of terrorist methods employed on the part of states as well as their detractors.

            The politicization of terror has thus led to its moralization, even to its general acceptance as a form of warfare – either as a fully fledged moral justification or as a gritty acceptance of terrorist tactics as excusable although lamentable. Thus the political definition of terrorism implies a particular moral perspective of applauding or condemning terrorism within a political framework. But this distorts our proper understanding of terrorism as a simple measure of employing terrifying tactics for some end.

THE TERRORIST’S ENDS

When we act, we act for a purpose – to secure a goal. To effect that goal, we must use what methods we believe will help us secure our goal. In all that we do, we have some goal in mind. Now what becomes interesting is the morality of those goals. If we think about the terrorist using terrifying means, we must think about “to what end’.

            For example, if a terrorist argues that his aim is the overthrow of an oppressive state and that any means may be used to achieve that end, he is claiming a moral objective, although apparently rejecting any judgment upon his method. Thus the terrorist may call for targeting noncombatants or terrifying combatants as “necessary” for the triumph of the revolution: the destruction of lives and property are implicatively “acceptable sacrifices” to achieve the higher moral claim.

            His reasoning suggests that his goal should possess a priority. But that can be subjected to moral questioning: will the overthrow of the government (or its present incumbents) secure a better state of affairs, and what is meant by “better” in this instance? What gives that terrorist’s aims greater moral weighting than someone else’s? Do the terrorists have popular backing, or are they in possession of a larger or more capable army? And if numerical supremacy is claimed to be the arbiter of political affairs, morality, it is thus implied, must lie with the numerous or the mighty, and only military victory can crown the righteous. But that is easily refuted: physical strength has to be used for certain ends, and those ends can be judged morally, regardless of the power or force of numbers of those seeking them. (Think of a mob).

            The ends sought by a terrorist may involve a substantial change of affairs such as a reorganization of government, the removal of an illegitimate incumbent, a redistribution of power from the government to the provinces (or vice versa), or the taking of resources and wealth from one group to give to another. Such ends are understandable and communicable, and therefore they are all amenable to moral analysis – they are not beyond ethics. If a better result is desired, we can ask why it is sought after over other ends, and we can demand upon what criteria it is to be so judged.

            What if the end happens to be a state of terror? Can the terrorist reject all morality by proposing that we all should live in terror? In the modern world in which we generally believe all people to be morally equal, the notion of keeping a subject people in a state of terror (and thus a fearful slavery) seems difficult to stomach. But don’t forget that most of history has involved the subjugation and oppression – of implied or actual terror – of one people by another.

            Nonetheless, we can’t dismiss morality that easily. Firstly, past persecution and terror does not justify present acts. Secondly, our terrorist would be saying that a terrifying world is better than a peaceful world, and since his goal can be compared to living in peace and hence be debated, we can remind him that where there is choice, there is morality. Thirdly, it has to be asked how his vision is to be defined: does the terrorist actually include himself in this condition? If he replies, “No, others ought to be kept in a state of terror’, then we can ask what criteria provide him, and not others, with moral supremacy and the alleged right to terrorize his neighbors.

            Let’s give the terrorist another reply, one logically tighter. “We all should be kept in a state of terror,” he claims, implying that terror is the manifest destiny for the human race. Then we can ask, after demanding on what grounds that condition is to be preferred, who will ensure that situation is sustained, and whether the agents of terror are also terrified of what they will do or how they will be kept in a mutual state of terror. Logically, it is possible that they can be: they may fear reprisals in the afterlife, or that the terror machine be turned on them at any minute.

            If a condition of permanent terror is to be preferred to all other possible conditions, there must be deeper reasons to support this moral claim. The terrorist may say that people were born to suffer, that suffering defines human moral standing, or that is a necessary condition for moral development. This is not a far-fetched moral claim: many religions uphold suffering as a condition of grace or spiritual development. Yet there is something deeply disconcerting about embracing suffering-in-terror as morally superior to peace and security.

            Some philosophers, called hedonists, may claim that it goes against nature to avoid pleasure and to seek pain or terror, so the terrorist demands an unnatural existence. The terrorist responds that most of our ethical codes involve the foregoing or avoiding of pleasures; sometimes people have to suffer to produce a better world. Other thinkers may retreat to an intuitive feeling that a life of terror would be wrong – but feelings, like power, provide no guarantee of moral correctness, and the terrorist may justly claim that a life of terror is intuitively appealing to him. Some may argue that humans were not born to suffer, but the terrorist replies that people are born to die, and the inescapable path to death begins at birth, and life and death are one and the same – life being a mere stepping stone in a great spiritual journey or an accident befitting sinful souls.

            Indeed, human imagination has provided a range of explanations of humanity’s supposed abnormal existence and why we ought to live in pain until death releases him. And so many may embrace a life of terror as being justifiable. After all, gods throughout the ages and across cultures have been said to terrorize humanity for its pride, its achievements, or very existence. So we would have to withdraw from any blanket condemnation of terrorism, if we accepted suffering as our lot, or at least for a “sinful” part of us. Such melancholic reflections leave the terror-as-a-way-of-life advocate sanctioned by those ethics that emphasize suffering.

            Only when we consider an alternative philosophy of human nature that establishes that we ought to live in peace and autonomously pursue our own happiness do we shake the terrorist’s argument that life ought to be terrifying. In other words, we must reject humanity’s assumed sinful nature, and our alleged need to live in terror. By asserting humanity’s right to live and pursue our own interests as we see fit, we thereby acknowledge our neighbor’s right to do so too, and so we set off along a different moral path in which life and living are seen as humanity’s by right.

            The assertion of a life-embracing ethic stops any justification of infringements by others. The individual ought to be free to seek his own development in free and voluntary interaction, and that implies most strictly renouncing violence against others.

            Such a morality is inherently individualistic. It therefore opposes collectivism and the political model of terrorism. It condemns all forms of aggression. Only the individual is in a position to choose and to reason, which implies that neither his culture, race, religion, government, nor family are to be held somehow responsible for his choices. And the mutual recognition of freedom and the right to secure happiness exhausts any justification of violence – except in self-defense. For if a man possesses a right to live his own life, he must possess a right to defend that life against aggressors, otherwise his right is a mere word.

            Whenever aggressors choose to deny their fellow’s peace, war ensues – even if it is just one person seeking to destroy his neighbor’s peace. And when unleashed, war has a tendency to escalate. It is restrained only by mutual needs to curtail its effects. Total war, in which no restraints on violent action are permitted, remains possible, but throughout history conventions and codes of conduct have arisen to constrain the acts of people in war on both sides of combat, regardless of moral culpability.

            These codes are generalized under the “just war conventions” and, in the final part, I shall endeavor to explain where terrorism can fit into the conventions to give it a thorough foundation upon which we can criticize terrorism in practice.

“JUST” TERRORISM

War is certainly beyond everyday morality, but it is not beyond ethical justification as some would believe. Rules in war are ancient, and around the world there have been similar conventions that have developed between warring peoples. This means that the so-called “just war tradition” provides a most fruitful ground for our inquiry into terrorism.

            War certainly changes the moral face of humanity, and those who take up arms go through various rites that emphasize the different moral realm that they’ll inhabit. But morality does not disappear, and since we’ve argued that terrorism can be brought into the realm of moral choice, it is reasonable that we should think about its proper moral use, namely justifiable terror used in self-defense.

            Just war divides into the codes governing the justification of war (jus ad bellum) and the codes governing the practice of warfare (jus in bello). In deciding to go to war, we must possess a just cause and have exhausted all other options; we must hold a right intention, and always retain a sense of proportionality (e.g., fighting against a border invasion and not an insult); and we should also ensure that there is a proper declaration that we all understand. On the battlefield, warfare’s moral guidelines seek to ensure that we discriminate between legitimate and illegitimate targets (e.g., targeting combatants and not noncombatants), that we maintain a sense of proportionality in method (e.g., avoiding the annihilation of an enemy position if lesser means could secure a victory), and that we keep a sense of responsibility or accountability in war.

            Some have argued that the possession of a just cause trumps any need to restrain combatants’ actions. That is, the righteousness of the cause gives the combatant the right to use terror, or any means needed to win, for the war is just. Such adherents of what is called “total war” thusly accept the need to justify going to war but reject the conventions and restraints on warfare. They claim that the principles of proportion, discrimination, and accountability are useless once war has begun. So if targeting non-combatants accelerates the end of the war, or using massive forces secures a position or defense of a territory, then there should be no qualms about ignoring the conventions.

            Total warfare is simply another way of claiming that “the end should justify the means,” and many have pointed out that the lack of just cause does not imply that an army should fight unjustly, or vice versa. That means that in upholding the war codes, a country should avoid disproportional or indiscriminate attacks, and hence, it would appear, any form of terrorism, for such policies remain immoral regardless of the morality of the cause. However, while a prohibition on using terror against noncombatants would readily follow, the use of terror against combatants should not necessarily be absolutely forbidden by the just war conventions. Let’s look at discrimination and proportionality more closely.

            The principle of discrimination proposes that combatants – those who bear arms, whether officially recognized or not by governments – should avoid attacking certain categories of targets. For example: those who do not bear arms; those who have surrendered their arms; those incapable of bearing arms; or those assumedly not guilty of their nation’s aggression, etc. This distinction demands our adherence, but we can note that the distinction between combatant and noncombatant has often been blurred on purpose by collectivists seeking justify violating of the just war conventions – soldiers and civilians are lumped into one category called “the enemy’. And here the common terrorist agrees with the total war conception that the ethics of warfare are to be ignored and all enemy targets are legitimized.

            The terrorist is often portrayed as one who attacks indiscriminately. Yet so do many military offences, despite the advancement of “smart bomb” technology. Just war theorists sometimes examine and excuse noncombatant or incidental deaths with the principle of double-effect. The principle of double effect stipulates that so long as the intended target was legitimate any accidental deaths are thereby morally excusable. It’s an interesting argument, however, from the point of view of the unintended victims, death, injury or terror is no less horrific than if they were directly targeted. Consider an aerial bombing campaign against a city: this is terrifying precisely because it is indiscriminate – or potentially indiscriminate from the view of the civilians on the ground, regardless of the intention on the part of the bombers to hit legitimate targets.

            Arguably, all forms of indiscriminate warfare produce terror precisely because the victims are not prepared to suffer. Attacks on combatants can certainly become terrifying, but we must assume that in putting on a uniform that the soldiers are trained – obviously to a point – to be prepared for violence. Civilians are not. Disproportionality from overwhelming odds, or technological superiority in combat may be terrifying – but assumedly not for the soldiers who are trained to fight. This is an important aspect to the justified use of terrorism against combatants – things are only terrifying, we noted at the beginning, to the unprepared mind. It must be presumed that all noncombatants are unprepared for any kind of attack and that is why they must not be targeted. Although we cannot infer the mental preparedness of a soldier, the fact that he or she is in uniform legitimizes their target status as one being prepared by virtue of their uniform to deal with war. The soldier who lays down his arms or who leaves the army also leaves the realm of preparedness that characterizes the military mentality and its world and returns to civilian status. Terrorism against civilians (i.e., any attack against noncombatants) is unjustifiable as violating their moral and political autonomy precisely because they do not bear arms, and regardless of their support for the war they are not trained or prepared for it: civilians are not part of war.

            Now, whereas any form of attack on civilians cannot be morally undertaken, disproportional attacks on legitimate targets – i.e., soldiers – can certainly be considered. Let’s put it this way: on what grounds should a defending army adhere to the principle of proportionality? Perhaps “to play fair” and to give the opposing side a “sporting chance”. Yet war is not sport – it involves killing and maiming, and when the opposing side is seeking to impose its will and violence upon the defending people, there is every justification that the defenders should not withhold any means to defend their lives and independence. The Russian novelist, Leo Tolstoy expressed it so:

Let us imagine two men who have come out to fight a duel with rapiers according to all the rules of the art of fencing. The fencing has gone on for some time: suddenly one of the combatants, feeling himself wounded and understanding that the matter is no joke but concerns his life, throws down his rapier, and seizing the first cudgel that comes to hand begins to brandish it. ... The cudgel of the [Russian] people’s war [against the invading French in 1812/13] was lifted with all its menacing and majestic strength, and without consulting anyone’s tastes or rules, and regardless of anything else, it rose and fell with stupid simplicity, but consistently, and belabored the French till the whole invasion had perished. [War and Peace, 3.2]

            Is this unreasonable? No, it must be remembered that the initiation of aggression is itself an unreasonable act, and to respond reasonably and “fairly” or “decently” according to chivalrous codes is morally absurd. An objective distinction exists between the initiation of aggression and that of defense, despite the confusions created by political theories over the past century. To fight “fairly” by restricting the methods deployed against an aggressor implies avoiding putting any fear into the enemy’s troops (as if fear could be completely withdrawn from war!). And from what philosophical position could such a policy be proposed? Only one that accepted the sacrifice of the defending soldiers’ lives – and possibly their entire nation or culture which they are defending.

            If “decency” implies avoiding the shedding of unnecessary blood and losing the values defended, the policy of proportionality should be rejected.

            But to what extent? Here we must refer back to the justice of war’s cause. If a nation or people has a morally robust cause to fight, then it may use any means at its disposal to thrust off enemy soldiers. And just cause can only come from self-defense.

            Consider: a terrorist attack on combatants is designed to disorient and sow the seeds of chaos. This need not be disproportional, nor is it indiscriminate as it only targets soldiers. Even so, take an overwhelming and swift attack on enemy combatants, an invading division for instance: the enemy soldiers may die swiftly and possibly without any incurring any terror; and if that attack turns a war or halts a larger invasion then its justification is surely acceptable to the just war convention, as well as making military sense. But what if the attack was sporadic, unpredictable, of varying magnitudes, all designed to reduce the fighting morale of the invading troops by terrifying them senseless? Arguably, such attacks are acts of terrorism. They may not result in as many deaths as a frontal assault; but assuredly, if it turns the enemy back, it is justifiable. Otherwise, what is the point of defense?

            Terrifying, we can see, does not mean shedding unnecessary blood – on the contrary, it may entail the shedding of less blood by selective targeting to propagate fear, confusion and retreat. An army retreats quickly when it is routed – its momentum, found in the heart of every soldier, is to seek the safest quarter: that is, each individual’s motive of self-preservation breaks down the cohesion that an army seeks to foster; co-operation disintegrates; the army becomes useless. In many respects, that should be the aim of any defense against a criminal attack: to encourage flight, to gain a swift victory, and to deter a repeat attack. Terrorism against an invading armed force is thus not only tactically but morally acceptable.

            We do need to consider further how broad is the category of legitimate targets: does it just include soldiers? From the just war codes, legitimate targets may also include those who are directly part of the war machine – from leaders and representatives who voted for the war (and thereby channeled tax resources into aggression), as well as noncombatants involved in the army such as seconded transport drivers or mechanics. That excludes enthusiastic civilian supporters, farmers who produce crops to feed the army, taxpayers, and so on. A defending nation has no right to target the attacking nation’s civilians, for that is to reject the principle of discrimination in war and thereby to anoint the innocent and/or unarmed with a collective guilt – and while it may be admitted that the domestic enemy population cheers on and economically supports an immoral and unlawful invasion, they do not bear arms nor do they raise taxes, and therefore, once again, they should not come into war’s realm.

            To conclude, the defending army has every right to tackle an invading force with whatever means required, not only to thrust the invaders back but also to deter them from trying again. This means that a selective terrorist campaign (unpredictable, sporadic, fear-inducing attacks) against enemy soldiers and their leaders or politicians who directly support an aggressive war is justifiable. In defending peace (the right of autonomous individuals to live life as they see fit), the only rule should be to halt and deter attackers by employing the most effective method to return society onto a peaceful footing.

            Terrorism – under these strict moral guidelines that it may only be used in self-defense and only against those who initiate force – is hence justifiable.

Source: this essay was commissioned for this collection.

Questions for Review

1. Why does Moseley suggest that we reject the idea of dignity in death?

2. Why does Moseley hold that terrorism need not be a group activity?

3. One possible motivation for terrorism is the overthrowing of an oppressive state through any means. Why does he reject this motivation?

4. Another possible motivation for terrorism is the conviction that suffering is part of our divinely ordained destiny because of our sinful nature. Why does he reject this justification?

5. How does the notion of double effect apply to the principle of discrimination in warfare, and why does he reject this?

6. Why does Moseley reject the principle of proportionality in warfare?

Questions for Analysis

1. Is Moseley correct that we should reject the idea of dignity in death? Explain.

2. In the section titled “Political Models of Terrorism,” Moseley rejects the view of collectivism in favor of individualism. Explain his argument and discuss whether you agree.

3. Moseley rejects the terrorist motivation to overthrow an oppressive state through any means. Discuss is reasoning and whether you agree.

4. Discuss Moseley’s reasons for rejecting the principle of proportionality in warfare and say whether you agree.

5. Moseley concludes that terrorism is justified only for self-defense and only against those who initiate aggression. In essence this means that it can only be used against the attacking military to demoralize them and slow them down. Are there other justified uses of terrorism that Moseley has overlooked? Explain.

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#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 internationally 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 The whole world is a battlefield in an open-ended war on terror, and that suspects can be seized anywhere, at any time, without judicial authorization. He argues these practices set bad examples for the international community insofar as other countries mimic the U.S. policies and the arguments it uses to justify them. For better or for worse, he explains, the U.S. is a standard setter in everything it does, and when the U.S. bends the rules of human rights, the entire framework falls apart. Further, he argues, these policies actually hinder national security and counter-terrorist efforts, not help them. Such policies make it easier for terrorists to recruit new members and hurt efforts to collect accurate intelligence about the enemy.

            Mr. Chairman, thank you for holding this hearing and for inviting me to testify.

            When I joined the staff of Human Rights Watch 6 years ago, I assumed I would be spending most of my time dealing with outrages committed by governments in countries like Sudan and China and Burma, and urging the United States to be a force for good in such places. I never imagined that I would see my own government engaging in the kinds of activities it has long condemned around the world: Disappearing prisoners in secret facilities for years without any legal process, sending them to be interrogated in countries where torture is standard practice, and subjecting them to interrogation methods that I first learned about while reading accounts by Soviet dissidents of what they endured in KGB prisons.

            These policies have undermined standards that defenders of human rights everywhere rely upon to fight for their cause. They have diminished America's moral standing and influence in the world. They have hindered, not aided, the fight against terrorism, handing America's enemies a victory they could never have achieved on their own.

            For the last 6 years, a growing number of voices have been pushing back: Members of Congress, the Supreme Court, active and retired members of the U.S. military and intelligence community, not to mention organizations dedicated to promoting civil liberties and human rights. We have made considerable progress in righting the wrongs of the last few years and encouraging a counterterrorism strategy that will be more effective as well as lawful. But much more needs to be done. And I am very glad, Mr. Chairman, to see you taking the lead in addressing some of the most complex and important aspects of the problem, including extraordinary rendition and secret detention.

            What I'd like to do is discuss what we know about the CIA's detention, interrogation, and rendition program, as well as its consequences and the importance of fundamentally changing it. I will then offer a few comments on the legislation you have introduced.

[THE US PROGRAM OF DETENTION AND TORTURE]

The administration has acknowledged that around 100 prisoners have been held in the CIA program, in facilities operated by the Agency in undisclosed locations around the world. The International Committee of the Red Cross has repeatedly asked for access to these facilities and been denied. These prisoners were effectively disappeared. In international law, an enforced disappearance is considered to be “the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State . . . followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” That is precisely what happened to prisoners held by the CIA.

            Some of the prisoners were subjected to what the administration has euphemistically termed “enhanced interrogation.” These methods reportedly included “waterboarding”--in which interrogators strap the prisoner to a board with his feet above his head, cover his mouth and nose with cellophane, and pour water over his face to create the sensation of drowning. They also apparently included a technique known as “long-time standing,” in which a prisoner is forced to stand motionless for up to 48 straight hours, and extreme sleep deprivation for days on end--methods that survivors of some of the world's most brutal regimes have said cause as much suffering as the worst physical torture.

            Last September, the President announced that the last (at that point) 14 prisoners held in CIA facilities were being transferred to military detention at Guantanamo Bay. But of course many more prisoners had been in CIA custody at some point before that. Human Rights Watch has identified 21 people who were almost certainly held in CIA facilities, and another 18 who may have been held, whose whereabouts remain unknown. Most, presumably, were rendered to other countries, most likely in the Middle East.

            The administration says that it does not render people to torture. But the only safeguard it appears to have obtained in these cases was a promise from the receiving state that it would not mistreat the rendered prisoners. Such promises, coming from countries like Egypt and Syria and Uzbekistan where torture is routine, are unverifiable and utterly untrustworthy. I seriously doubt that anyone in the administration actually believed them.

            We also know that the CIA detention and rendition program remains in operation today. This spring, four more prisoners were delivered to Guantanamo, some reportedly from secret CIA custody. At least one had actually been arrested months earlier. There is also strong evidence that the Agency may have participated in or condoned the rendition to Somalia and Ethiopia of a number of people who had escaped the conflict in Somalia earlier this year.  consequences for global human rights and America’s moral authority

            Here, in a nutshell, are the arguments the administration has made to the world through these detention policies: First, the whole world is a battlefield in an open-ended war on terror. Anyone the Chief Executive of a country believes to be supporting or associated with terrorism is a combatant in that war, and can therefore be attacked on sight or held without charge. Second, such people can be seized anywhere, at any time, without judicial authorization, and if the leader of a country considers them especially dangerous, he can hold them in secret for as long as he likes. So long as these people are in the custody of an intelligence agency, governments can also subject them to interrogation procedures that would normally be prohibited in wartime, even though such practices have been prosecuted as torture by the United States for over a hundred years.

            I have deliberately stated these propositions in their generic form--not as statements of what the United States can lawfully do, but as statements of what any government can lawfully do. This is how this debate should have been framed from the beginning--because America's policies inevitably set an example for others. But it was not framed that way. The administration failed to consider, before it embarked on its interrogation and detention policies, how the United States might react if others mimicked those policies and the arguments it was using to justify them.

[SETTING A BAD PRECEDENT]

            Imagine if another government--let's say, for the sake of argument, the Government of Iran--set up a prison camp on some island to which it claimed its domestic laws did not apply, and that it held there, without charge or trial, several hundred men of multiple nationalities, captured outside of Iran, who it accused, based on classified evidence, of supporting groups it claimed were hostile to Iran.

            Imagine if some of these prisoners were Americans--not soldiers, but say a contractor the Iranians accused of housing or feeding U.S. troops, or a Treasury Department official they accused of financing the Pentagon. Imagine if Iran transferred those Americans to the custody of its intelligence agency, and on that basis claimed that it could hold them in secret without any legal process for as long as it wanted. Imagine if those Americans were ultimately given a makeshift military hearing, in which they tried to say that they had been tortured by their interrogators, but that the Iranian tribunal kept this testimony secret because it didn't want Iran's enemies to learn how it interrogates prisoners.

            Imagine if the intelligence service of the United Kingdom suspected a lawful U.S. resident of sending money to the IRA in Northern Ireland, or the secret police in China or Burma accused an American of supporting rebels in their country, and on that basis, kidnapped that American off the streets of Wilmington or Indianapolis, bundled him on a plane, and held him for years in a secret facility, hidden even from the International Committee of the Red Cross. How would the U.S. Government react? Would the President say “sure, no problem, I guess the leader of China or Burma decided that guy was an enemy combatant, so I can't really complain?” If it happened to one of your constituents, Mr. Chairman, would it matter to you if some official in the U.S. intelligence community had given Burma or China permission to whisk that American away?

            Or, just for the sake of argument, imagine if the President of Russia declared that his country was engaged in a global war on terror, and that anyone with any connection to any group that supported separatist elements in places like Chechnya was a combatant in that war who could be detained or shot or poisoned wherever he was found, whether in Moscow or Berlin or just for the sake of argument, London.

            Clearly, we live in a world in which such things are possible. But do we want to live in a world where they are considered legitimate? That is what is at stake here. Whether we will preserve the legal and moral rules we have struggled to develop over generations to limit what governments--and here I mean not just the United States but all governments--can and can't do to people in their power. And whether the United States will have the credibility to be the world's preeminent champion of those rules.

            Now, it is important to note that nothing the administration has done can compare in its scale to what happens every day to victims of cruel dictatorship around the world. The United States is not Sudan or Cuba or North Korea. The United States is an open, democratic country with strong institutions--its Congress, its courts, its professional military leadership--which are striving to undo these mistakes and uphold the rule of law.

            But the United States is also the most influential country on the face of the earth. The United States is a standard setter in everything it does, for better or for worse.

            When Saddam Hussein tortures a thousand people in a dark dungeon, when Kim Jong Il throws a hundred thousand people in a prison camp without any judicial process, no one says: “Hey, if those dictators can do that, it's legitimate, and therefore so can we.” But when the United States bends the rules to torture or to secretly and unlawfully detain even one person, when the country that is supposed to be the world's leading protector of human rights begins to do--and to justify--such things, then all bets are off. The entire framework upon which we depend to protect human rights--from the Geneva Conventions and treaties against torture--begins to fall apart.

            It is simply an undeniable, objective fact that when President Bush talks about his freedom agenda today, most people around the world do not conjure images of women voting in Afghanistan or of Ukrainians and Georgians marching for democracy or of American aid dollars helping activists in Egypt or Morocco fight for reform. Even America's closest friends now turn their minds to Guantanamo, to renditions, to secret prisons, and to the administration's tortured justifications for torture.

            These policies have not only discredited President Bush as a messenger of freedom, they also risk discrediting the message itself. Because the whole idea of promoting democracy and human rights is so associated with the United States, America's fall from grace has emboldened authoritarian governments to challenge the idea as never before. As the United States loses its moral leadership, the vacuum is filled by forces profoundly hostile to the cause of human rights.

            A couple of years ago, Human Rights Watch was meeting with the Prime Minister of Egypt, and we raised a case in which hundreds of prisoners rounded up after a terrorist bombing were tortured by Egyptian security forces. The Prime Minister didn't deny the charge. He answered, “We're just doing what the United States does.” We've had Guantanamo and the administration's interrogation policies thrown back in our face in meetings with officials from many other countries, including Saudi Arabia, Jordan, Pakistan, and Lebanon. U.S. diplomats have told us they face the same problem. A U.S. Ambassador to a major Middle Eastern country, for example, has told us that he can no longer raise the issue of torture in that country as a result.

            The master of the tactic is Russia's President, Vladimir Putin, who uses it preemptively to ward off criticism of Russia's slide back to authoritarianism. Just before the recent G-8 summit, a reporter asked Putin about his human rights record, and he immediately shifted the subject: “Let's see what's happening in North America,” he said. “Just horrible torture . . . Guantanamo. Detentions without normal court proceedings.”

            Now, don't get me wrong: Putin doesn't need American renditions and secret prisons as an excuse to persecute his critics in Russia. These policies are not the reason why Egypt or any other country tortures and detains prisoners without charge. Still, America's detention policies are a gift to dictators everywhere. They can use America's poor example to shield themselves from international criticism and pressure, to say, to their own people as well as to the world, “we are just the same as everybody else.”

            In the days of the cold war, the Communist leaders of Eastern Europe tried to do the same thing. But it didn't work. Dissidents and ordinary people behind the Iron Curtain knew that America wasn't perfect. But they believed that the United States was at least dedicated to the principle that governments were bound by law to respect human rights. It was profoundly important to them to know that the government of the world's other superpower limited its power in accordance with this principle. It gave them hope that a different way of life was possible, and the courage to fight for it.

            Leaders like Putin understand how powerful America's example has been in the past, and they use the administration's policies to tear that example to shreds. They use it to tell their people that all this American-inspired talk about human rights is hypocritical rubbish. “Even self-righteous America,” they say, “which preaches moral ideals to the world, tortures prisoners, and locks people up without a trial. Even America throws away the legal niceties and behaves ruthlessly when it feels threatened. The Americans use human rights talk to beat up their enemies, but they're really just the same as us. And if you think that things can ever be different here or anywhere else, you're just naive.”

HARM TO COUNTERTERRORISM

These are some of the costs of the administration's detention and interrogation policies. Do these policies have national security benefits that justify such costs? I believe the answer is “No.”

            I believe that the fight against terror is as much a moral and political struggle as it is a military one. That's not just my view.

            Listen to former Marine Corps Commandant Charles Krulak and former CENTCOM Commander Joseph Hoar, who have written: “This war will be won or lost not on the battlefield but in the minds of potential supporters who have not yet thrown in their lot with the enemy.” Listen to General David Petraeus, who recently told his troops in Iraq: “This fight depends on securing the population, which must understand that we--not our enemies--occupy the moral high ground.” Look at the most recent National Intelligence Estimate, which says that the United States needs to “divide [terrorists] from the audiences they seek to persuade” and make “the Muslim mainstream . . . the most powerful weapon in the war on terror.” Read the U.S. Army's Counterinsurgency Manual, which says that in a war like this, you can't kill or capture every enemy fighter; the challenge instead is to diminish the enemy's “recuperative power”--its ability to recruit new fighters--by diminishing its legitimacy while increasing your own.

            When America violates its own principles by secretly detaining, abusing, and rendering prisoners to torture, it cedes the moral high ground and loses the Muslim mainstream. These policies are one of the main sources of the terrorists' recuperative power.

            What's more, secret detention, torture, and rendition hurt, rather than help, efforts to collect accurate intelligence about the enemy.

            One of the best sources of intelligence on terrorist plots are the communities in which terrorists hide. Public cooperation has been the key to preventing many potentially deadly attacks: For example, it was a tip from a member of the Muslim community in London that allowed British investigators to foil a plot to bomb several transatlantic flights last year. But people who live in those communities are much less likely to come forward with information about their neighbors, acquaintances, and relatives if they think the people they're turning in are liable to be abused, or held for years in a secret prison, or sent to a dungeon in a country where torture is rampant.

            Interrogation of prisoners is also an important source of intelligence. But torture is not a reliable method of interrogation. Sure, if you waterboard a prisoner or strip him naked in a freezing room or deny him sleep for days on end, sometimes he'll blurt out the truth. But more often than not, tortured prisoners will say whatever they think their interrogator wants to hear, whether true or not, to end their suffering. And keep in mind: When prisoners confirm what their interrogators already believe to be true, interrogators are often highly tempted to believe it. Torture tends to confirm whatever false assumptions the intelligence community brings into an interrogation.

            Perhaps the best example of this involves one of the first prisoners to be subjected to extraordinary rendition after September 11--a suspected al-Qaeda member named Ibn al-Sheikh al-Libi. At first, al-Libi was held by the FBI, which used traditional, tried and true, psychological interrogation methods. The FBI was apparently making progress. But the administration lost patience, turned him over to the CIA, which applied its enhanced procedures, and eventually sent him to be interrogated in Egypt. Reportedly, Libi's family was threatened; he was waterboarded; and he was forced to remain standing overnight in a cold cell while being repeatedly doused with icy water.

            Libi eventually told his interrogators exactly what the administration wanted to hear: That Saddam Hussein was helping al-Qaeda obtain chemical weapons. This false information became one of the most powerful arguments for the war in Iraq, and the closing argument in Colin Powell's presentation to the U.N. Security Council in February, 2003. One of the greatest intelligence failures in American history came about in part because the administration believed in the CIA program and the tortured confessions it produced.

            How much more good intelligence was lost because of the use of these methods? How many false leads have intelligence agencies wasted their time following as a result? How many innocent people have been detained, and how many guilty people have escaped capture? We will probably never know. But the damage has surely been great. And the United States did not have to endure it.

            Talk to the military interrogators who are using the professional, humane interrogation methods outlined in the U.S. Army Field Manual on Intelligence Interrogation. They will tell you that these methods are far more reliable in obtaining truthful, useful intelligence than the amateurish and cruel methods the CIA used in its facilities. As for detention of dangerous terrorists--talk to the career prosecutors at the Justice Department. They will tell you that they know how to bring terrorists to justice in ways that showcase America's commitment to the rule of law.

            Consider this: In the 6 years since September 11, the administration's system of holding terrorists in secret detention while creating an entirely new system of military justice to handle terrorism crimes has resulted in exactly zero prosecutions of anyone remotely connected to those attacks. Only one man has been convicted in this system--an Australian former kangaroo trapper who was at best a bit player in al-Qaeda, and who got just 9 months in prison, which he's serving in Australia.

            Meanwhile, U.S. Federal courts have successfully tried and convicted dozens of persons for international terrorist offenses, sentencing many to long prison sentences.

            What's more, no one is complaining that the men sentenced in the Federal courts were treated unjustly. No one is clamoring for their release. Al-Qaeda cannot exploit their fate to recruit more terrorists to its ranks. To use one of President Bush's favorite phrases, those terrorists who got justice with due process are no longer a problem for the United States of America. Every single person who's been held in Guantanamo, or in a secret prison, or subject to extraordinary rendition remains a profound problem for the United States. . . .

            Mr. Chairman, that we are even having this discussion in America is profoundly sad. How this country treats its enemies ought to be what distinguishes it from its enemies. The story of how it has actually done so in the last few years is not one of which we can be proud. But the full story has not yet been written. And when historians tell it many years from now, a more hopeful narrative may emerge. It will, I hope, go like this. That America was hit hard on September 11, 2001. It tried to react in ways that were honorable and smart, but also made some terrible mistakes out of fear. But in a relatively short period of time, its democratic institutions corrected those mistakes, just as they were designed to do. That is a story of which, on balance, I would be proud. I'm glad to see that this committee wants to play its part in writing it.

Source: U.S. Senate Committee on Foreign Relations hearing, Extraordinary Rendition, Extraterritorial Detention, and Treatment of Detainees: Restoring our Moral Credibility and Strengthening our Diplomatic Standing, July 26, 2007.

Questions 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?

____________________

#4

War and Civil Liberties: Korematsu v. U.S.

Hugo Black, Frank Murphy, Robert H. Jackson

Shortly after the bombing of Pearl Harbor at the outset WWII, a military order was issued requiring ethnic Japanese on the U.S. West Coast to leave their homes and move into detention camps. 120,000 were affected by this order, 62% of whom were American born. The legal basis for this policy was an executive order issued by President Roosevelt that authorized the U.S. military to designate portions of the country as military areas "from which any or all persons may be excluded." The first major application of this order was a curfew requiring people of Japanese ancestry within the West Coast region to remain in their residences from 8 p.m. to 6 a.m. The curfew order was unsuccessfully challenged in the Supreme Court case Hirabayashi v. United States (1942). In the same year, another military order was issued, this time mandating that ethnic Japanese in West Coast region should be relocated into detainment camps. One man who was a U.S. citizen by birth, Fred Korematsu, defied the order. He changed his name, went into hiding, and told people that he was really of Spanish-Hawaiian descent. Nevertheless, he was caught and convicted for disobeying the relocation order. Korematsu appealed his conviction, which eventually made its way to the U.S. Supreme Court. In a 6-3 decision, though, they voted against him.

            The Korematsu case is one of the most important Supreme Court rulings of recent decades insofar as it addresses the recurring problem of balancing national security interests against personal liberty interests. Below are selections from the majority and opposing opinions of the case. Writing for the majority, Justice Hugo Black argued that the military necessity of the time outweighed the liberty of the detainees. The curfew and detention orders were both based on the problem that some ethnic Japanese were disloyal to the US, but it was impossible to determine which ones. While this was a hardship for the detained ethnic Japanese, all citizens in times of war experience hardships. Opposing the majority view, Justice Frank Murphy argued that the public danger of the time was not great enough to deprive those ethnic Japanese of their Constitutional rights. There was plenty of opportunity to investigate and determine which of the ethnic Japanese were loyal, and which were disloyal. The decision to detain them was made by officials with racial and economic prejudices against Japanese Americans. Such “legalization of racism” is not justifiable in a democracy. Also dissenting, Justice Robert H. Jackson argued that the Supreme Court’s majority decision created a long-term harm to the constitution. If a military leader makes an unconstitutional decision, the effect is temporary and only last as long as the military emergency. However, the Court’s decisions effected a lasting harm by “validating the principle of racial discrimination”, thus making it a doctrine of the constitution.

HUGO BLACK: OPINION OF THE COURT

The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a "Military Area," contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner’s loyalty to the United States. . . .

            It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can. . . .

            Exclusion Order No. 34, which the petitioner knowingly and admittedly violated, was one of a number of military orders and proclamations, all of which were substantially based upon Executive Order No. 9066, 7 Fed. Reg. 1407. That order, issued after we were at war with Japan, declared that "the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities” . . . .

            Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.

            We uphold the exclusion order as of the time it was made and when the petitioner violated it. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger. . . .

            It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers--and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies-we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders-as inevitably it must-determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot--by availing ourselves of the calm perspective of hindsight--now say that at that time these actions were unjustified. . . .

FRANK MURPHY: DISSENTING OPINION

This exclusion of “all persons of Japanese ancestry, both alien and non-alien,” from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over “the very brink of constitutional power” and falls into the ugly abyss of racism.

            In dealing with matters relating to the prosecution and progress of a war, we must accord great respect and consideration to the judgments of the military authorities who are on the scene and who have full knowledge of the military facts. The scope of their discretion must, as a matter of necessity and common sense, be wide. And their judgments ought not to be overruled lightly by those whose training and duties ill-equip them to deal intelligently with matters so vital to the physical security of the nation.

            At the same time, however, it is essential that there be definite limits to military discretion, especially where martial law has not been declared. Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support. Thus, like other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled. “What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.”

            The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so “immediate, imminent, and impending” as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger. Civilian Exclusion Order No. 34, banishing from a prescribed area of the Pacific Coast “all persons of Japanese ancestry, both alien and non-alien,” clearly does not meet that test. Being an obvious racial discrimination, the order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an “immediate, imminent, and impending” public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law.

            It must be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in that area. The military command was therefore justified in adopting all reasonable means necessary to combat these dangers. In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But the exclusion, either temporarily or permanently, of all persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways. It is difficult to believe that reason, logic or experience could be marshalled in support of such an assumption.

            That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt rather than bona fide military necessity is evidenced by the Commanding General’s Final Report on the evacuation from the Pacific Coast area. In it he refers to all individuals of Japanese descent as “subversive,” as belonging to “an enemy race” whose “racial strains are undiluted,” and as constituting “over 112,000 potential enemies ... at large today” along the Pacific Coast. In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal, or had generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise by their behavior furnished reasonable ground for their exclusion as a group.

            Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence. Individuals of Japanese ancestry are condemned because they are said to be “a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion.” They are claimed to be given to “emperor worshipping ceremonies” and to “dual citizenship.” Japanese language schools and allegedly pro-Japanese organizations are cited as evidence of possible group disloyalty, together with facts as to certain persons being educated and residing at length in Japan. It is intimated that many of these individuals deliberately resided “adjacent to strategic points,” thus enabling them “to carry into execution a tremendous program of sabotage on a mass scale should any considerable number of them have been inclined to do so.”  The need for protective custody is also asserted. The report refers without identity to “numerous incidents of violence” as well as to other admittedly unverified or cumulative incidents. From this, plus certain other events not shown to have been connected with the Japanese Americans, it is concluded that the “situation was fraught with danger to the Japanese population itself” and that the general public “was ready to take matters into its own hands.” Finally, it is intimated, though not directly charged or proved, that persons of Japanese ancestry were responsible for three minor isolated shellings and bombings of the Pacific Coast area, as well as for unidentified radio transmissions and night signaling.

            The main reasons relied upon by those responsible for the forced evacuation, therefore, do not prove a reasonable relation between the group characteristics of Japanese Americans and the dangers of invasion, sabotage and espionage. The reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices-the same people who have been among the foremost advocates of the evacuation. A military judgment based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations. Especially is this so when every charge relative to race, religion, culture, geographical location, and legal and economic status has been substantially discredited by independent studies made by experts in these matters.

            The military necessity which is essential to the validity of the evacuation order thus resolves itself into a few intimations that certain individuals actively aided the enemy, from which it is inferred that the entire group of Japanese Americans could not be trusted to be or remain loyal to the United States. No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. To give constitutional sanction to that inference in this case, however well- intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow. No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. It is asserted merely that the loyalties of this group “were unknown and time was of the essence.” Yet nearly four months elapsed after Pearl Harbor before the first exclusion order was issued; nearly eight months went by until the last order was issued; and the last of these “subversive” persons was not actually removed until almost eleven months had elapsed. Leisure and deliberation seem to have been more of the essence than speed. And the fact that conditions were not such as to warrant a declaration of martial law adds strength to the belief that the factors of time and military necessity were not as urgent as they have been represented to be.

            Moreover, there was no adequate proof that the Federal Bureau of Investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this long period. Nor is there any denial of the fact that not one person of Japanese ancestry was accused or convicted of espionage or sabotage after Pearl Harbor while they were still free, a fact which is some evidence of the loyalty of the vast majority of these individuals and of the effectiveness of the established methods of combating these evils. It seems incredible that under these circumstances it would have been impossible to hold loyalty hearings for the mere 112,000 persons involved- or at least for the 70,000 American citizens-especially when a large part of this number represented children and elderly men and women. Any inconvenience that may have accompanied an attempt to conform to procedural due process cannot be said to justify violations of constitutional rights of individuals.

            I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.

ROBERT H. JACKSON: DISSENTING OPINION

Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law- abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.

            Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detainment camps.

            A citizen’s presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four-the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole--only Korematsu’s presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock. . . .

            Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand itself to the limit of its logic.” A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.

            It argues that we are bound to uphold the conviction of Korematsu because we upheld one in Kiyshi Hirabayashi v. United States when we sustained these orders in so far as they applied a curfew requirement to a citizen of Japanese ancestry. I think we should learn something from that experience.

            In that case we were urged to consider only that curfew feature, that being all that technically was involved, because it was the only count necessary to sustain Hirabayashi’s conviction and sentence. We yielded, and the Chief Justice guarded the opinion as carefully as language will do. He said: “Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew.” “We decide only the issue as we have defined it-we decide only that the curfew order as applied, and at the time it was applied, was within the boundaries of the war power.” And again: “It is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order.” However, in spite of our limiting words we did validate a discrimination of the basis of ancestry for mild and temporary deprivation of liberty. Now the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones. And the precedent which it is said requires us to do so is Hirabayashi. The Court is now saying that in Hirabayashi we did decide the very things we there said we were not deciding. Because we said that these citizens could be made to stay in their homes during the hours of dark, it is said we must require them to leave home entirely; and if that, we are told they may also be taken into custody for deportation; and if that, it is argued they may also be held for some undetermined time in detainment camps. How far the principle of this case would be extended before plausible reasons would play out, I do not know.

            I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy. Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.

            My duties as a justice as I see them do not require me to make a military judgment as to whether General DeWitt’s evacuation and detainment program was a reasonable military necessity. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution. I would reverse the judgment and discharge the prisoner.

Source: U.S. Supreme Court, Toyosaburo Korematsu v. United States, 323 U.S. 214 (1944).

Questions for Review

1. Black claims that the detainment of ethnic Japanese was not based on racial prejudice. What, instead, was its based upon?

2. According to Murphy, 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?

3. According to Murphy, 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?

4. According to Jackson, what is the constitutional harm done by the majority decision?

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

Questions for Analysis

1. 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.

2. According to Murphy, to remove the present danger, it was unreasonable to assume that “all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways.” Explain his point and say whether you agree.

3. Jackson argued that the Curfew order involved only a “mild and temporary deprivation of liberty,” but the detainment camps were much more severe and thus were not justifiable. Explain his reasoning and say whether you agree.

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