In assessing the consequences of the decade-plus “war on terror,” President Obama sought to place his continued — albeit more targeted — use of violence within the context of just-war principles, stressing self-defense and proportionality, a point that religious ethicist Daniel C. Maguire disputes.
By Daniel C. Maguire
In his address on terrorism and America’s counterterrorism policy, President Barack Obama invoked the “just war” theory to justify the continued use of assassination by drones as America’s increasingly favored war policy. The President and most Americans need schooling on just what the “just war theory” (JWT) is.
JWT lays out the tests that state-sponsored violence must pass to be deemed morally defensible. JWT has its roots in the first tentative moves in ancient Hebraic, Greek and Roman societies away from total obliteration of the enemy, its people and its land as the goal of war. It was and is an effort to put some limits on collective violence.
According to JWT, there are six tests a war must pass to claim some moral justification. If the war fails on any of the six, that war is immoral and the killing it involves is murder.
1. A Just Cause: As ethicist David Hollenbach writes: “The only just cause is defense against unjust attack.” Aggressive, imperial or preemptive wars fail this test and open the door to international barbarism.
Drone attacks that kill “suspected terrorists” based not on due process proceedings but on “intelligence” agencies, do not pass this initial test. Those are the same agencies that gave us the fictional weapons of mass destruction in Saddam’s Iraq resulting in a decade of unjustified slaughter and havoc.
2. Declaration by Competent Authority: For the United States, proper declaration is defined in Article One, Section 8 of the U.S. Constitution which says that it is the prerogative of Congress “to declare war” and to “provide for the common Defence.” James Madison said that “in no part of the Constitution is more wisdom to be found than in the clause which confides the question of war and peace to the legislature and not to the executive department.”
The United States has not obeyed this part of the Constitution since December 1941. The constitutional requirement was alluded to at the onset of the Korean War but bypassed ever since. Instead Congress surrenders its right to declare war by giving blank check authorization to the president (whether Lyndon Johnson or George W. Bush) to go to war if he, in his royal wisdom, chooses to do so.
When President Bush was given authorization to use “force” after the 9/11 attacks, the decision to use kill-power was seen as entirely his and the wisdom of the Constitution was trashed. President Obama’s drone policy sending unmanned aircraft around the world to kill people continues to rely on this congressional abdication of responsibility.
The United States further defined proper declaration of war when it helped to draft and signed on to the United Nations Charter. As Richard Falk writes, that historic document outlawed state vigilantism and entrusted “the Security Council with administering a prohibition of recourse to international force (Article 2, Section 4) by states except in circumstances of self-defense, which itself was restricted to response to a prior ‘armed attack’ (Article 51) and only then until the Security Council had the chance to review the claim.”
This is called “the policing paradigm” and it would put upon states the communitarian and legal restraints imposed on use of violence by police and would also serve as a deterrent since to attack one was to attack all.
Briefing Congress before, or more often, after using state-sponsored drone violence mocks the right and abandoned duty of Congress to declare war. So does ignoring the UN Security Council.
3. Right Intention: This requirement of JWT involves honesty about the real reason for the violence and avoidance of excessive secrecy. It does not hide the truth and suppress the vox populi. It also does not substitute force for due process.
4. Non-combatant immunity: Drone warfare involves long-distance killing by remote control. It is disingenuous to say that drone usage honors non-combatant immunity. The targeted individual will rarely be found alone. The loose definition of who is and who is not a “militant” further belies the claims of sensitivity to civilian casualties.
5. Last Resort: Totally missing from President Obama’s May 23 address was the question why? Why do these targeted people hate us but don’t hate Sweden or Japan or Brazil. Why is killing them the answer when there has been little or no consideration of the grievances that lead them to engage in suicide attacks to hurt us?
Are we not stupidly striking at the bitter fruit of the tree while still nourishing its roots and thus guaranteeing more bitter fruit? If war is to be the last resort, shouldn’t we first ask what legitimate grievances animate the animosity toward our nation?
American economic supremacy has played a big part in producing a world where 82 percent of the world’s income goes to the top 20 percent, leaving the rest to face hardship or starvation. Our paltry foreign aid does little to alleviate world poverty and the world knows that.
As to the trouble zones in the Middle East, there is a question that is not permitted in our halls of political power or even in the American press. It was asked by Jesuit scholar John Sheehan who studied in the Middle East. His question: “Whenever I hear that Israel is our best friend in the Middle East I ask why is it that before Israel, we had no enemies in the Middle East?”
Our financial, political and military support for Israeli expansionism and militarism make us no friends in the Middle East or elsewhere in the world. It is also not good for Israel or for us to be Israel’s ever deferential enabler. Friends do not let friends drive off a cliff and Israel is doing just that by having started the nuclear arms race in the Middle East and with its policy of occupation and expansionism. It’s not friendly of us to keep paying for that.
In the Suez crisis of 1956, when President Dwight Eisenhower threatened cutback of aid if Israel did not retreat from its expansionism, Israeli officials agreed to retreat. When George H. W. Bush did the same in 1989 regarding settlements in Palestinian territory, the Israeli government again stopped, only to restart at the end of his term.
Tony Judt has called us Israel’s “paymaster.” When the paymaster makes demands not feeble entreaties the recipients listen.
6. Proportionality: War must do more good than harm, a proviso that is increasingly infeasible given the advances in weaponry. When drones are causing constant fear and dread for Pakistani children and their parents, are those elusive demons in the sky doing more good than harm? What good do we envision when we export terror into other nations’ homes?
Is it not past time to realize that our kill-power is not making us safe but sowing fear and enmity? In regard to that recognition, Obama’s May 23 speech is not reassuring.
Is American genius not up to the challenge of sensitive diplomacy, the kind that does not love its enemies but strains to understand their grievances? Are our fingers grown too rough with bludgeoning to undertake the needlepoint of peace-making diplomacy? Much of the world seems to think so.
Daniel C. Maguire, a professor of religious ethics at Marquette University, is author of The Horrors We Bless: Rethinking the Just-War Legacy, Fortress Press.
A just war for the sake of war or just war for the sake of patriotism or hate, or bigotry? A just war in defense of religion, or power, or a ruling class?
Which just war satisfies the cultural values worth the genocide to ease the paranoia of the madness of the mob?
Great article, unfortunately, such ideas run into “Amerika uber-alles” or the “cops of the world” political philosophy. As a demented poly sci prof., I once had, stated …”a great power has the right to intervene in other countries’ affairs, because it is a great power; and a great power is a country that needs to intervene in other countries’ affairs.” One of the most spectacular examples of perverse circular reasoning I ever heard, but he blatantly enunciated the unstated core of US foreign policy.
Interventionism, neo-colonialism is not the policy of any individual president, it has been national policy all along with variations from administration to administration. It all could be plotted on a curve, but it would be a continuous wave like curve.
Any presidential candidate who ran on more peaceful and internationalist beliefs would be crucified by the chattering classes, and considered naive or a wuss. A good example is the large number of Americans who hate the UN. I have always believed that the reason Carter was so ill considered by said chattering classes was that he didn’t kill enough people, the latter is “Presidential”.
It will take a long time-and probably more home grown terrorist events- to wake Americans up to the fact they are their own nemesis, creating more enemies than can be killed.
Let me add that it took losing two world wars, the destruction of most of their cities and the division of the country to turn Germany from an uber-aggressive state to a peaceful, social democratic and very ecologically conscious nation. Some lessons come hard, hopefully the US will wake up before their economy totally tanks under the burden of perpetual wars and “defense” spending and some really big terrorist events. Right now with the insane political games and advancing political corporatism(which Mussolini described as the essence of Fascism); the US is an un-developing country
Brilliant analysis using JWT, Dan. Thank you for calling us back to Christian principles. My study of the JWT tells me it was faulted from the start. Augustine’s justification for killing barbarian invaders was that it was all right if you had love in your heart. What? I am watching a Great Courses DVD on Mythology in History. The professor summarized the covenant with Noah after the flood. God had given up on human perfection and vowed that, because we are fallible, God would no longer use floods to bring us back to center. God also allowed humans to eat the meat of animals. God hung his bow–rainbow–in the sky never to use it against us again. However, the prohibition against killing human was still part of the covenant.
I know of no instance in the history of the JWT where a leader actually applied it before deciding to go to war.
Patrick, Your comments in interpreting what St. Augustine of Hippo was saying in “The City of God” is totally off the mark. Either you have not seriously read his comments or you have no access to serious theologians and scholars. Augustine is the last of the “Patristics”, the 70 writers in the first few centuries after Christ. Arguably the first to advocate armed defense in light of what was happening in his jurisdiction. It was to defend and protect the defenseless women and children who were threatened. Modern belligerents are ignorant of Augustine’s nuanced position, Obama included.
Maguire’s critique of Obama is correct. Obama has continued many of George Bush’s illegal and immoral policies. Add to that Obama’s refusal to use power authorized by Congress to release most Guantanamo detainees. As for Israel, Obama continues the funding of Israel’s colonialist confiscation of Palestinian land and water resouces, while making an open air prison of besieged Gaza. When will we have a president who makes human rights a foreign policy principle?
One would think that just about everybody would sign on to JWT and its derivative, the UN Charter, especially those who have to fight and die in them. But we have long ignored in our public education, the minority which profits by such wars and don’t fight and die in them. It’s like a dirty secret in a family that doesn’t come out until it has done its damage and it’s too late to do anything about it. I have always admired the ancient Hebrews for their brutal honesty about how they conducted their wars. Obviously, any number of prophets, pacifists, and peaceniks have been unable to change the way wars are fought, so why not just be honest with ourselves and revel in a little bloodletting every so often?
We don’t need any “just war theory” — we have the UN Charter, that many people worked hard on in an effort to eliminate war. Unfortunately it’s like the Charter doesn’t exist.
To maintain international peace and security,
# All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
# All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
See my comment to Analysis by Paul Pillar in this issue of consortium.
PS: Totally agree.—Peter
The phrase to refrain from “use of force against the territorial integrity…of any state” struck me as one issue that the President didn’t address. I don’t believe that any State would give it’s consent to another entity to strike at will inside it’s own geographic boundaries. It would be a complete abdication of their sovereign powers. So that whole question is being ignored. I think if Mexico launched a drone stike in Arizona against a drug lord who had been murdering Mexican police, the US would be less than understanding even given the circumstances. Especially if Mexico had drones constantly patrolling over the Southwestern states. It raises the question why the cooperation of the State in which a possible drone target is residing is not sought by the US? If the State refused, it would least make it a little more justifiable to order the strike IF a case certain could be made.