Year Zero

Law and War

by Jonathan Wallace

September 24, 2001

Year Zero is an episodic series of essays on ethical and practical implications of the present crisis. Subscribe here.

Since Tuesday morning September 11, a certain number of people I respect have issued calls to treat the killing of 6,000 people in a few hours that morning as a crime justiciable under law, rather than an act addressable by war. I think this view is based on a very substantial misapprehension.

Our system of law is based, as is everyone's, on a couple of linked assumptions that we don't have occasion to examine very often. First, law for its full-fledged functioning--as a system, rather than merely an aspiration--requires some prior stability. Second, that stability is acquired in part by a judicious application of force, according to the "rules of law", and therefore with certain checks and balances applied.

In order to prosecute the people who bombed the World Trade Center in 1993, we had to lay hands on them first. That is the role of force in connection with the rule of law. We arrested and tried a handful of co-conspirators who had carried out the assault, but we were never able to try the people behind them, who were inaccessible to the F.B.I. and the New York City police.

Law without force is a sham. Like World Court decisions, which are not binding on any country that chooses to disregard them, court rulings against Osama bin Laden or others responsible for the mass murders on Tuesday morning will have no effect if we are not in physical possession of the perpetrators.

How do you propose to get hold of them, so that legal sanctions can be effective? Most of the advocates of law over war simply choose not to answer the question. Professor Francis Boyle, a human rights advocate, mapped out a legal campaign against Afghanistan which starts with the invocation of an international treaty against sabotage signed by both that country and the U.S. The next step involves petitioning Afghanistan to withdraw its reservation to World Court jurisdiction, and so on. Nowhere in Professor Boyle's roadmap is the simple necessary step: "Arrest the defendant."

At a time when two 767's have just slammed into two tall towers, killing 6,000 people as a geopolitical chess move of awful brilliance, Professor Boyle's recommendations seem impossibly naive. While we appeal to international tribunals and ask Afghanistan to comply voluntarily (an initiative which has already failed), the adversary will continue fighting back, with bombs, not briefs. Professor Boyle's idea involves the ultimate in asymmetrical warfare.

Here is what I regard as a simple, striking idea: the police force required to insure that the rule of law is meaningful in this case is the United States military. If, in the course of an action forestalling further harm like the terrible suffering and destruction caused on September 11, we happen to gain custody of bin Laden, putting him on trial in New York would be perfectly appropriate. In fact, it would be far more justifiable than Nuremberg was. Nuremberg was a post facto attempt to hold governmental actors responsible for acts they had committed within their own borders, under an international law of war crimes which did not yet exist. Bin Laden is not a governmental actor, and in any event, jurisdiction over him for acts committed within United States borders is clearly appropriate.

Even if Bin Laden somehow fell into our grasp tomorrow, without any attempt first being made to roll up the Al-Quaeda and related organizations, the application of legal procedure to him without military backing would not guarantee the security of the judges and juries we would be asking to act on our behalf. Crime raised to the level of war warps our system out of shape. The Sicilian mafia fought back by murdering prosecutors and judges, who became unwilling to proceed without military protection. In recent years, we have seen a similar phenomenon in Columbia, where it has been unsafe to be a judge acting against the narcoterrorists or against death squads. If we are not willing in such situations to apply the level of force necessary to guarantee the security of our legal system, then we are asking jurors and jurists to sacrifice themselves for nothing.

Law enforcement and war lie on a spectrum and it is hard to say exactly where one shades into the other. The real question is what is the appropriate level of force to apply in order to guarantee the stability and efficacy of the legal solution. Conducted carefully, the actions we now take against bin Laden, rather than being a revenge "crusade", will be a war for law.