IN THE NEWS
The United States is attacked in a way that's surprising to most Americans. Suddenly, a threat that once seemed peripheral suddenly becomes the first priority. If you're the American media, do you (1) recruit people who know something about this kind of warfare to be regular columnists, or (2) hand the difficult job of making sense of this new reality to your general purpose, "I know a little about everything" professional blowhards already on contract? Unfortunately, the choice has been, nearly always, option #2.
Case in point: Alan Dershowitz's recent column in The Los Angeles Times. Apparently, no one has ever noticed the inherent moral difficulties of counterinsurgency and counterterrorism pre-Dershowitz, in the world according to Dershowitz. Since he's managed to ignore everyone who has written about this subject since the Napoleonic Wars, I can only conclude that he is either too intellectually lazy to read up on a subject on which he wants to be an "expert," or he is so ignorant of the world beyond the legal profession that he should never be allowed to write on any other topic. Either way, his article is an insult, not only to the people who study and practice counterinsurgency and counterterrorism, but more importantly, to the people trapped in guerrilla and terrorist conflicts.
First, let's establish exactly how ignorant Dershowitz really is:
- He can't distinguish between guerrillas and terrorists. "But just who is a 'civilian' in the age of terrorism," Dershowitz wonders, "when militants
don't wear uniforms, don't belong to regular armies and easily blend
into civilian populations?" Well, gosh, Mr. Dershowitz, I guess we have to first break it to you that not all "militants" are terrorists. You were alive during the Vietnam War, weren't you? Was there something you missed?
- He can't distinguish among the reasons why people collaborate with guerrillas or terrorists. Dershowitz says, "There is a vast difference—both moral and legal—between a
2-year-old who is killed by an enemy rocket and a 30-year-old civilian
who has allowed his house to be used to store Katyusha rockets." Yes, but why is that civilian "allowing" his house to be a munitions dump? Is it because he actively supports the insurgents? He thinks they're bad, but the government is worse? Because he fears what might happen to his family if he doesn't cooperate? Because the insurgents happen to be the current force majeure in his town, but he'd be just as glad to cooperate with the government when they occupy it?
- He can't distinguish among guerrilla fighters, their political "infrastructure," and willing or unwilling supporters. Here's a revealing sentence from the op-ed piece: "These differences and others are conflated within the increasingly
meaningless word 'civilian'—a word that carried great significance
when uniformed armies fought other uniformed armies on battlefields far
from civilian population centers." Again, Mr. Dershowitz, we're sorry to have to point out when your intellectual fly is open, but there's a world of difference between an un-uniformed guerrilla fighter and someone who, fearing for his life, doesn't tell a government patrol about the guerrilla unit operating in the area.
Ultimately, he seems to have no idea what it takes to win a counterinsurgency or counterterrorist campaign. Here's another quote from his article:
The domestic law of crime, in virtually every nation, reflects this
continuum of culpability. For example, in the infamous Fall River rape
case (fictionalized in the film "The Accused"), there were several
categories of morally and legally complicit individuals: those who
actually raped the woman; those who held her down; those who blocked
her escape route; those who cheered and encouraged the rapists; and
those who could have called the police but did not.
Of course, the point of criminal law in the United States--where there is no internal war being fought today--is to assign culpability, under the assumption of a placid society where people are generally safe, and therefore responsible for their actions. Even so, the law takes into account when people are coerced into participating or ignoring crimes. If someone in the Mafia threatens your family, chances are the judge and prosecutor in an organized crime case will give you some latitude, if your role as a witness in that case is more than a little compromised. Multiply that kind of fear by several orders of magnitude, and you have some idea what life is like in the thick of an internal war.
In most revolutionary conflicts, as Dershowitz should know, the revolutionaries and their willing supporters normally amount to a small fraction of the population. A broader segment of the populace might acquiesce to the revolutionaries, in large part because of the obnoxiousness or ineffectiveness of the government. In other words, the average civilian caught in the midst of internal wars resembles the woman being raped a lot more than one of the rapists themselves.
The more obvious point of comparison isn't a recent rape case, but the US government's handling of the South after the Civil War. Rather than prosecute everyone who supported the CSA as a traitor, the federal government more or less forgave everyone, including the Confederate generals who led an organized effort to kill as many Union soldiers as possible. Reconstruction was less about "war guilt," and more about changing the legal and economic structures of the South. Though "waving the bloody shirt" inflamed passions, post-Civil War leaders worked to protect the rights of the newly-freed blacks (until, of course, the end of Reconstruction in 1876) and prevent another secessionist war.
Since we're already talking about the moral and legal issues surrounding an American insurgency, let's jump ahead in time from the Civil War to the Oklahoma City bombing. Let's say, for sake of argument, that a Christian Reconstructionist, white supremacist group had a compound in northern Idaho. Everyone knows the political beliefs of the people living behind the barbed wire fence, but no one has a clear picture of what they're actually willing to do. Is there talk of armed uprising just talk, or are they serious? The militants have threatened local residents with dire consequences, if they tell the local police or the FBI anything concerning their activities. If the local hardware store owner fails to tell law enforcement officials about an unusually large purchase of fertilizer and kerosene oil, is he on the same moral and legal plane as someone holding down a woman while another man rapes her? Should the law treat him as roughly as the domestic terrorists who use the fertilizer and oil to build a bomb?
While you might have to struggle a bit to apply normal jurisprudence to the continuum of internal wars, from tiny white supremacist groups to large-scale guerrilla armies, the moral arguments have already been covered in depth. Opinions range across a broad continuum. On one extreme, Franz Fanon was willing to excuse revolutionary groups like Algeria's FLN for excesses of violence and terror. On the other extreme is Arnaud-Amaury, the Abbot of Citeaux and papal legate to the crusade against the "Albigensians" (a.k.a. Cathars), who made famous the quote, "Kill them all; God will know His own." There are also plenty of living experts on terrorism and guerrilla warfare, from the essayist Paul Berman to counterterrorist practitioners like Brian Jenkins, whom Dershowitz might have read, or even just called for a quick chat.
Instead, Dershowitz plunges into a realm he does not know, proclaims himself enough of an expert to write books and articles on the subject, and reaches a conclusion that resembles Arnaud-Amaury's. If there's any culpability to be assigned for this tiny moral atrocity, the momentary trivialization of pain and suffering in a national newspaper, The Los Angeles Times certainly shares that blame.
[Thanks to Lawyers, Guns, and Money for pointing me in the direction of Dershowitz's article.]