Samuel Moyn's assumptions about the purpose of law schools undermine both the profession and the rule of law.
Rosa Brooks is a Georgetown law professor, a former senior staffer in the Pentagon, and is married to an Army Special Forces officer. She has seen war through first-hand experience in Uganda as a field worker for Human Rights Watch, as the child of peace activists growing up during the Vietnam War, and from military bases in Afghanistan as part of a Pentagon rule of law team. She is uniquely qualified to speak knowledgeably and even-handedly about the curious state of contemporary American war.
War and Peace: Separate Spheres no Longer
Brooks’ 2017 book, How Everything Became War and the Military Became Everything, is an accessible, yet incisively wise look at the systematic struggles facing America’s military, and consequently, America’s democracy in the 21st century. Two fundamental concerns run throughout. The most basic considers the relationship between war and peace. Why have humans long sought to create distinctly different spheres for each? Why have those traditional boundaries eroded in today’s world? And, most importantly, do we need to reimagine the way we think of the relationship between war and peace? The second major theme that the book excels in discussing has to do with the rule of law. Brooks’ training in law is evident throughout the manuscript and she puts this background to especially good use when she suggests the questions we must ask ourselves about the relationship between domestic law, international law, and the often murky conditions of the 21st century battlefield.
What Set of Laws Apply?
For Brooks, the most important question for understanding the ethics of any potential warlike situation is to be able to determine whether the rules of war or the rules of peace apply. In Socratic fashion she notes that in peacetime killing is presumed to be unjustified, while in wartime it is usually considered lawful, provided it is against one’s enemy. If, though, war and peace are not distinct states any longer, but instead both exist simultaneously then how can we determine if a particular killing is justified. Take, for instance, Ron Paul’s 2013 filibuster about the drone program. After a known American citizen (albeit one who had joined an Al Qaeda affiliate) was killed in a drone strike Paul demanded that the Obama administration clearly spell out the legal justification for this killing. When the administration responded that the killing was a wartime act, Paul filibustered, demanding to know where the geographical boundaries of the administration’s definition stopped. In other words, Paul wanted to know if the government could kill a U.S. citizen on American soil, without a trial, if the citizen had joined an Al-Qaeda sleeper cell. The administration finally relented and admitted that it would have no legal justification for such an act. Rather than actually preventing a drone strike on a target in Ohio, what Paul’s political artistry did was gain a tacit admission from the administration that, in fact, it was not at all clear if the rules of war or the rules of peace applied to American citizens who had joined an enemy force, yet who were not engaged in active combat against American forces. This is but one of countless possible examples where this confusion is present.
More fundamentally, though, Brooks argues that we need to know when the rules of war apply if we are to have any hope of walking the tightrope of keeping needed secrecy, while also ensuring accountability in acts of war. One of Brooks’ critiques of the drone program, for instance, is that “wars are quintessential public acts,” yet the details of this program, including its scope, cost, and the way in which specific strikes are authorized are all hidden from most Americans. The drone program is representative of the type of confusion the country faces today when trying to regulate military matters: Brooks notes that the program is not secret, yet at the same time, the public does not really have much of the important information about it available to them. It’s neither a clearly covert operation, nor an overt wartime policy, but it is enacted on behalf of the people’s will without explicit consent from the people through their representatives.
Another challenge for separating war from peace in today’s world comes from the emerging ways in which wars are fought. Brooks cites the recent creation of the military’s newest major joint services organization, the U.S. Cyber Command. CYBERCOM, Brooks notes, consists largely of Americans in office buildings creating and cracking computer codes. Its most important members are not specialists in how to use firearms, many have no traditional military experience, and the nature of their work often resembles a mundane desk job. And yet, their work is on the frontier of real and potential conflicts with China, Russia, Iran, terrorist groups, and small bands of hackers. Is this war or is this peace? What set of rules apply to the employees of CYBERCOM as they do their jobs? For Brooks, the answer is unclear and that murkiness is an unavoidable problem.
Waging War in Murky Terrain
In addition to the legal and ethical problems with this murky state of affairs, Brooks also believes that the general blending of war and peace comes with strategic liabilities for the United States. In a chapter relating America’s drone program to the targeted killings on foreign soil of both the Putin and Pinochet regimes, Brooks writes:
I’m convinced that my former colleagues in the military, the Department of Defense, and the intelligence community are good people, acting in good faith. Despite my rule of law concerns, I trust them to act carefully and responsibly, doing their best to avoid mistakes and not abuse their power. But there are a lot of other people in the world I don’t trust at all — and when the United States asserts a unilateral right to use force in secret and with little accountability outside the executive branch, we are essentially handing every repressive and unscrupulous regime in the world a playbook for how to violate sovereignty and literally get away with murder… Let’s not kid ourselves: the legal arguments that the United States is now making will now come back and bite us in the future.
For Brooks the legal currency the United States uses carries weight internationally. Put simply, if the United States is willing to argue that its assertion of national interest makes it legitimate to violate traditional norms of sovereignty others will follow suit. Even if we trust the U.S. government, Brooks argues, we ought not to trust the autocrats around the world who would find this new legal definition convenient to their purposes. This matters, in Brooks’ estimation, because when the United States sets a precedent it directly impacts what the international community considers acceptable for other states going forward.
There are domestic costs, too, that Brooks sees as flowing from the merged state of war and peace. The two most prominent are a fundamental disconnect between civilian and military experiences and an astronomical price tag to taxpayers. While the latter can be quantified with jaw dropping numbers (such as estimates that the Iraq and Afghanistan wars will end up costing $4 trillion or that the government spends almost $1 trillion annually on defense related activities), the former includes things that we cannot count: The pain and suffering of the endless deployments, psychological damage, and deaths that have come to military families over the past twenty years, a democratic society where the average civilian does not think much of the wars fought by its government and the average soldier feels alien to civilian life, and a situation where endless wars go on with unclear objectives, little progress, and literally countless civilian deaths in some places where America has intervened.
Furthermore, there is the ongoing moral problem of ongoing war for the soldiers we ask to fight it. The current American system of perpetual war places an unrelenting burden on the consciences of those special forces who are endlessly deployed to new battlefields, of those bureaucrats who are asked to constantly plan a new drone strike, and of those senior officers who have to strategically plan a war, with no clear objectives which are directed toward peace in mind.
While the current picture Brooks paints sometimes feels bleak, she does offer some provocative suggestions for how we might begin to make things better. One suggestion is a program of universal service, where all young Americans would spend a mandatory one or two years working on projects that serve “national and global security.” Brooks imagines a broad range of possibilities, ranging from computer programming, to public health initiatives, to programs like the Peace Corps, both in the uniformed services and in civilian life. The goal with this program would be twofold. First, it would advance the United States’ security interests in a broad and systematic way. Second, it would help to bridge the divide of understanding and the disparity of cost bearing between America’s military and civilian populations. Brooks’ idea of universal service would purportedly provide bonding opportunities for citizens from different backgrounds working toward a common goal.
The more difficult, but more fundamentally important suggestion Brooks makes is that we “develop new rules and institutions to manage the paradoxes of perpetual war.” She does not think it is possible to go back to the days where war and peace can be divided into clearly separate categories. Rather than bemoaning this or accepting the current confusing state of things, Brooks suggests we go about collectively constructing new ways to think about war that will allow us to manage it better from ethical, legal, and practical standpoints. While this part of her argument is the vaguest it is the most provocative. I am not as sure as she is that we cannot revert to separating war and peace. If she is right that that is an impossible task, however, then she is right that the only way forward is to reimagine how we think about war and peace in fundamental ways.