restrictions on the publication by private parties of information like the genomes of dangerous viruses (which has already been done on the Internet)

I should make it clear that what has been done is the publishing of viral genomes, not laws about restriction.

If you can classify and restrict publication of dangerous technology, what about dangerous discoveries from nature? Stockpiles of smallpox are well controlled, but polio still exists in nature and the Sabin vaccine is a live vaccine known to mutate. Hemorrhagic fevers exist widely in the wild; how effective would publication bans be?

With all I’ve written so far about Terror and Consent, I’m not sure where to pick things up.

Chapter 7, The Strategic Relationship Between Means and Ends
Chapter seven begins with the definition of terrorism as the pursuit of political goals through the use of violence against non-combatants in order to dissuade them from doing what they have a legal right to do. From this basis, Bobbitt explores moral, legal, and strategic dimensions, including the very nature of a war against terror (a war in support of law–note that chapter in TSoA: Colonel House and a World Made of Law), the difference between the moral imperatives binding on a government and those binding on a private person, how persons on different parts of the battlefield may view things and, finally, “the awful subject of torture,” which he treats at length. He closes by refuting the perception that the war on terror must be lawless; since it is a war for law, we must give our Law the strength to answer its own enemy; only then is our defense of it truly legitimate. (And without legitimacy, the State collapses from within.)

Chapter 8, Terrorism: Supply and Demand

The debate on terrorism since 9/11 has mainly focused on al Qaeda, and on terrorism refracted through that focus, not on human rights and the impact of terror on human rights.

The causes of terrorism Bobbitt calls the demand side; the effects of terrorism are the supply side. I find these terms confusing, perhaps because the final cause (desired effect) is called supply and the action seeking the cause is called supply.

Prosecuting war against decentralized terror paradoxically requires the kind of coordinated command and control that demands centralization. This is highly asymmetric, and creates better targets for terror. (Bobbitt does not explore the possibilities of recent study about self-organizing systems, hive behavior, and such.) Stores of such things as smallpox virus are also high-value centralized targets.

But our laws also create vulnerability. Our president, congress, and judiciary can be destroyed, with devestating results on the legitimacy of subsequent action. Bobbitt urges us to ‘stockpile’ laws, laws only needed in case of emergency. More robust procedures providing for replacements of legislators, SCOTUS, and yes, the President would provide depth. He does not analyze the new vulnerabilities these would create; with the replacement personnel named, it might be possible to assassinate specific persons to put others in power, or even to manipulate the replacements beforehand (since less care may be taken in their election/selection). Nor does he address the problem of Congress spending most of their time posturing instead of legislating.

Other suggestions include tamper-resistant national ID cards, rules for preventive detention of terrorist suspects, repeal of Posse Comitatus and amendment of the Stafford Act (which regulates presidential declaration of states of emergency), FISA data mining programs (requiring judicial authorization), and restrictions on the publication by private parties of information like the genomes of dangerous viruses (which has already been done on the Internet).

Something to offend everyone.

Chapter 9, The Illusion of an American Strategic Doctrine begins with the circumstances that led to the Monroe Doctrine and with the practical strategic effects of that doctrine. The Monroe Doctrine stands in contrasts with the more recently pronounced strategic doctrines, which prove unworthy of the name. Bobbitt analyzes the situation and proposes alternatives.

In Chapters 10 (Mise-en-Scene: The Properties of Sovereignty) and 11 (Danse Macabre: Global Governance and Legitimacy) Bobbitt examines the international system of state sovereignty. He identifies three basic characteristics of sovereignty: authority, territoriality, and supremecy, then declares

Now it happens that all of these principles are about to be abandoned. This should not be too disturbing to Americans, for the United States has, from its inception, flourished under an idea of sovereignty that is perhaps unique within the society of states and has never accepted the dogmas listed above. The American theory of limited government is founded on the notion that the People possess rights that can’t be alienated by delegating them to the government. … Sovereignty is not fully vested in the American state. This … stands in contrast to declarations of human rights like Magna Carta or the Universal Declaration of human Rights that purport to grant rights to the people.
…
Nor is sovereignty necessarily territorial, as shown by the relationship of the United States ot its aboriginal population. … It has been held by the U.S. Supreme Court that the Indian tribes exercise sovereignty that predates the Constitution, and that they are therefore not bound the the Constitution’s Bill of Rights …. An Indian tribe’s jurisdiction over tribal members is personal rather than territorial.
Finally, U.S. sovereignty is shared. … There are a number of constitutional subjects at which the state governments in the U.S. are exclusively competent, including aspects of real property, inheritance, and domestic relations ….

Bobbitt argues that Europe is trying shared sovereignty (though the fellow forbidden by law to sell or give away chinese gooseberries three sixty-fourths of an inch below Eurostandard might argue they have shared the wrong part.) Bit by bit, the parts about inalienable rights are also being treated seriously.

On this view, the support of terror arrogates to the State powers it cannot have … because the People cannot authorize their state to take away another people’s right of consent (the same way that voters in Texas cannot levy taxes against the citizens of California).

Such support, on Bobbitt’s view, can be taken to render a government illegitimate.

To the degree this is happening, it is a sea-change in the constitution of the community of nations. It is resisted by those whose acquiescence is most sorely needed. Its value or danger to the USA depends on the exact definition of terrorism (which I quoted in a previous article). Bobbitt examines how it is being applied, or misapplied, in our actions in Iraq and the criticisms thereof. He emphasizes the absurdity of the the claims that we may not undertake humanitarian interventions when they comport with our interests, but should undertake them when we have nothing at stake and can only lose by our actions. If we are justified by our legitimate interests, then the combination of interests is a stronger justification, not a weaker.

It is clear, Bobbitt writes, that international treaties and conventions need to be rewritten. In their current form, they work against us and force us to ignore them, which renders hollow our calls for other states to meet their obligations. On his view, we have both the moral authority and the practical leadership to convince our allies to agree to these changes for our mutual benefit.

The last full chapter, The Triage of Terror, should be put before the American people with every news report about the WoT.

… We cannot pursue an agenda in the Wars against Terror that will positively affect all three theaters of concern (global, networked terrorism; WMD proliferation; and the human catastrophe) at the same time. In fact, often the most successful pursuit of any one of these objectives operates negatively with respect to the others.

If we pursue market state terrorists ruthlessly to their harbors, we will frighten their hosts (who may then seek protection by acquiring WMD) and destroy many innocent lives in the process of twenty-first century warfare …. If, on the other hand, we give security guarantees and share technology … to prevent proliferation, we take on board partners whose commitment to human rights may be highly questionable …. If we focus principally on human rights, we sacrifice necessary allies in the war on terror–where would we be in Afghanistan without the collaboration of Pakistan?–and give incentives to states to arm themselves to avoid humanitarian intervention. Finally … we know that a secret military mission … to capture Zawahiri … was aborted at the last minute … owing to fears that thie operation might destabilize the Pakistani government … even to the extent of allowing an anti-Western regime … to come into the possession of nuclear weapons.

Bobbitt has no solution for these problems, only tools with which to understand and suggestions to give us more security and freedom of action. Bismark, Metternich, Richelieu and Machiavelli together could not steer a safe course through these shoals! Yet it is the task before us, and the sooner we face up to it, the better.

The book ends with Conclusion: A Plague Treatise for the Twenty-first Century. Doctors wrote treatises on the great Plagues full of guesses about what caused the plague and how it could be treated. What they had in common was good intentions and being totally wrong about the cause and nature of the disease. Thus Bobbitt warns us of his limits, but he nevertheless offers some prescriptions for how to think and what to do. They are positive, can probably be implemented (if the idealogues will see the mess we are in rather than the mess they would like us to be in) and would probably reduce our vulnerabilities and give us some possible lines of attack. The terrorists will skirt those lines at the cost of some freedom of action, which is to the good.

All in all, Terror and Consent is a landmark analysis of the choices before us. We may not agree on all the answers, but we ignore the analysis at our peril. That is not to say that we may not logically refute it if that is possible, but ignoring it is reckless, at least.

Being a veteran I can tell you that if you are innocent you want to be tried by the military. You’ll have a better chance for a fair trial. If you are guilty you are better off in front of a civilian jury. So a military handling of the judicial duties of determining what happens to the detainees does not offend my sense of fairness. The military has already proven lenient and released quite a few detainees – some, perhaps most, who continued their terrorist activities after release.

The detainees could all be let go. The recent SCOTUS decision seems to point in that direction. So be it. Their numbers are not large enough to have much importance in the overall scheme of things. I would rather the Bush administration, or hopefully, a McCain administration release them than to have to reveal intelligence in a civilian court for the enemy to study and analyze. And any public trial would become a media circus.

What the above has to do with my comments is unclear.

On the subject of Guantanamo: Several of the detainees who have already been released have gone on to murder more people. No doubt those released that have been discovered to have continued their mayhem represent only the tip of the iceberg.

Nonetheless, Gitmo and the detainees are not large in my concerns. At present the fate of the detainees is being worked out by Congress, the Administration and SCOTUS. Whatever is finally decided in regards to their status, treatment and imprisonment will have been determined in a legal manner.

grackle: Prisoners of war got the benefit of the Geneva Conventions, and the term “unlawful combatant” had a highly restrictive definition: only spies and saboteurs out of uniform and actually operating behind enemy lines counted. By the criteria used in the World War II, the US would have had to let a substantial number of the detainees at Guantanamo Bay go, and turn a good part of it into a prisoner of war camp subject to the requirements of the Geneva Conventions.

In any case, governments did walk over various constitutional guarantees with big tackety boots during the Second World War, but they did so both for limited purposes and for what everyone understood as a limited time. The catch-phrase of the Second World War, “for the duration” differs profoundly from the one propounded by Bush et. al.; “the new normal”. To the extent that FDR or Churchill asked people to give up their rights (not that I condone everything the allies did in the war, particularly the internment of Americans of Japanese origin), they asked for a temporary suspension. Any rights you give up under the current circumstances, you may well not get back in your lifetimes, if ever. Under those circumstances, accepting the arguments of neo-conservative radicals such as David Addington does constitute giving up a large number of the rights that make up a precious part of the heritage of post-enlightenment democratic culture.

And not one of the prisoners of war or unlawful combatants that resulted were given the right of Habeas Corpus.

I now feel comfortable saying a bit more about Philip Bobbitt’s new book. I’m almost through with Chapter 6, and looking forward a bit into Chapter 7, The Strategic Relationship Between Means and Ends.

This extensive quote is from the third and fourth pages of the chapter; ellipses are mine:

… there has been some general agreement that [terrorism] is performed by non-state actors, that it involves the use of violence for politcal ends, and that it targets civilian populations. But this has proved insufficient … states too use terror; and that the acts of terrorists– … even suicide bombing –are often indistinguishable from conventional warfare, which also uses violence in pursuit of political objectives; that civilians are often the targets of ordinary criminals … and that terrorists do target military and official persons. There has been no consensus on whether the defining parameters should be then nature of the attack, the identity of the perpetrators, or the characteristics of their targets.

Take again the case of Zacarias Moussaoui …. If we assume that the attacks on September 11 were acts of war … then isn’t Moussaoui a prisoner of war … who can be tried for conspiring to commit war crimes? Terrorism, in the current context, is the very paradigm of a war crime.

By changing–one might say, correcting–the definition of terrorism, Bobbitt has made formerly murky cases clear. He has found a strong link between the terrorism that we and our legal system don’t understand and war crimes, which we do understand (even if our systems are not experienced in punishing them).

This process, equivalent perhaps to a change of variable in solving a differential equation, is what von Clausewitz called critical analysis, and “untangling things that were … formerly tangled” is the defining characteristic of the process.

It is critical analysis that makes Bobbitt’s work so powerful and important, and for that I am willing to overlook a lot of disagreement over particular cases. It is, I believe, critical analysis such as this that will allow us to “think anew, and act anew, [and] save our country.”

So, although I am only a little past the halfway point, I declare soberly and enthusiastically that Terror and Consent is one of the most important works on terrorism to date, maybe the most important work.

A triffling quibble: On the second page of Chapter 7, Bobbitt attributes a version of question “If the ends don’t justify the means, what does?” to the late Washington Lawyer Paul Porter. The question goes back at least to G.K.Chesteron, and might be original with him.

Why not read Terror and Consent for yourself. I’m far enough in to say that the first 2/5 or so are the first 2/5 of a very important book. If the rest is as good, the book will be much more than that.