After September 11: How Ethics Can Help

Tuesday, Sept. 11, may have changed everything. The unprecedented violence perpetrated against the United States now demands, many claim, an unprecedented response. In light of this horrific attack and understandable citizen outrage, it is not surprising that the composition of that response is being weighted heavily toward massive military action. But what will the character of that responsemilitary and otherwiseactually be?

In an article on the op-ed page of the New York Times on Sept. 13 entitled World War III, Thomas L. Friedman may have presaged the coming standard: We have to fight the terrorists as if there were no rules, and preserve our open society as if there were no terrorists. Leaving aside for the moment whether the second part of Friedman’s assertion can be accomplished if we follow strictly the first, do we want to engage in foreign policy and military action as if there were no rules?

U.S. leaderssmart and caring peopleare hard at work constructing a response to the terrorist attacks of Sept. 11 that will be sustainable politically and effective militarily. All Americans want them to succeed. But who is constructing the ethical criteria needed to help guide this unprecedented response? History reminds us that without such criteria and their advocacy, the fog of war will lead U.S. actions to emanate from the legal and moral carte blanche suggested by Friedman. In the process, the United States will be tempted to claim that its actions are justified in light of the atrocity they are meant to redress and/or by the support for the use of military force voiced by over 70 percent of the American people.

Such logic will withstand neither the scrutiny of ethical analysis nor the critique of later history. But all too frequently in U.S. foreign policy, the former occurs only as part of the latter. Hence the need now for our leaders to debate and to employ in their policy formulation a set of ethical standards that are as useful and important as any other criteria of political or military effectiveness available in the foreign affairs tool kit.

The Ethical Dimensions of a Policy Response

As happened in our national debate before the Persian Gulf war, the just war tradition will be cited as providing the appropriate criteria that should guide an ethical analysis of the use of military force. But at a time when neither the lexicon of war nor that of terrorism seems to reflect accurately the current state of affairs, even the vibrancy of the just war tradition falls far short of our needs. The moral compass to guide our best scrutiny of options may come in three simple categories for governing the use of force in world affairs: that it adhere fully to the rule of law, that there be a logical relationship between means and ends and that concern for protecting civilians and limiting collateral damage be paramount.

Will our policies and actions adhere to and uphold the rule of law, especially international law?

This query may seem strange indeed. Nearly everyone believes that we are already on firm ground as a victimized nation that surely has a prima facie legal and moral case for reprisals. That the United States is a nation victimized by a horrendous act of violence resulting in thousands of deaths and billions of dollars in damage is an established fact. But all the other factsthat is, the intelligence information and the forensic data that will matter most regarding targets of our response to this atrocityshould be under investigation for a considerable time.

The highest evidentiary standards must guide our policy at the international level, as they would a grand jury indictment in the domestic sector. To hold actions, especially those of a military variety, to a lesser legal standard will not benefit our policy goals. Upholding such legal standards is also likely to guarantee that the response will be later rather than sooner. This prospect ought to move current declarations that we are at war, or that we are about to go to war, to a more balanced ground.

Beyond facts, of course, lie interpretations. Is what happened on Sept. 11 an act of war, to be governed by the laws and rules of war, or is it a terrorist attack, a crime against humanity, undertaken by transnational mass murderers and criminals? This distinction and the dialogue regarding it are critically important for setting the proper ethical parameters for action by the United States.

The doctrine of reprisals in the law of war demands that a nation seeking redress through military action against another nation make clearly stated demands of the potential target that it holds accountable for the attacks on itself. This would require that the United States, having accumulated the indisputable evidence and shared it with the relevant members of the international community, show how another state guided, funded or otherwise made possible these attacks. Then the United States would need to demand specific redress and compensation before taking military enforcement action.

What if the facts reveal a network of terrorists active within the boundaries of a number of states that vary in their degree of toleration of such perpetrators? In this case the United States must demand extradition and other forms of cooperation from these nations that harbor, train, aid or abet those responsible for this massacre. If such demands are rejected, all force used to apprehend these suspects and culprits will need to be proportionate to the objective. Thus, destroying the leadership and infrastructure of an entire nationthereby rendering it a chaotic, failed stateas punishment for lack of cooperation in capturing terrorists would not be consistent with international law. Nor would massive destruction of that nation’s economic or social infrastructure while in the process of destroying the headquarters and training camps of 100 terrorists.

However inconvenient, these strictures are both real and serious. Here popular opinion and advantageous military or political outcomes on the one side collide head-on with ethics and the rule of law. The debate over howor whetherthe realities of international law shape appropriate foreign policy behavior has never been a pleasant one within the United States. But this debate must take place before, not after, U.S. responsive actions. We cannot have the world agree with us that Sept. 11 was an unconscionable attack on the rule of law and then fail to uphold every aspect of that same law in our response to the attack.

A U.S. response that has strong multilateral support clearly strengthens its ethical legitimacy. Secretary of State Colin Powell’s early overtures for all states to join in law-abiding action to locate and extradite terrorists was a solid approach. The prompt and unprecedented policy decision by NATO to invoke Article Five provides another important foundation stone for a strong moral policy rooted in the coordinated action of like-minded states.

Might not further steps include a serious engagement by the United States with states from the Islamic world and the Middle Eastmost likely in the form of direct, quiet diplomacywith an international conference not out of the question? The point would be to invite the national leadership of certain states to design and then adhere to a new international regime for controlling terrorism.

Finally, there is the rule of law as represented in the United Nations Security Council. Certainly council authorization for U.S. economic or military actions will be discussed at some point within Washington’s inner circles. But its primacy will constitute a sticking point. Some will dismiss the need for U.N. backing as superfluous, probably citing U.S. action in Kosovo, where the U.N. eventually caught up with a sound U.S. policy action. Others may resist the need for U.N. support on technical groundssustained U.N. debate compromises the advantage that accrues to economic or military surprise. Few, unfortunately, will debate U.N. action as powerful ethical or legal support for U.S. action.

But a complex dilemma exists in United States-United Nations relations as alternative response scenarios develop. Two of the states under discussion as related to, or responsible for, the Sept. 11 slaughter are the governments of Iraq and Afghanistan. The United States has been at the forefront of U.N. Security Council sanctions policy against each state. And in each case, working with Great Britain regarding Iraq and with Russia regarding Afghanistan, the United States has pushed the council to a new policy on sanctions within the past year. Future U.S. action that might involve Iraq or Afghanistan as diplomatic, economic or military targets cannot sit on solid legal or moral grounding unless it has continuity with current multilateral diplomacy being conducted by the United States through the council. At stake is not just the viability of our response policy, but possibly the viability of the council itself as an effective mechanism for peace and security in the future.

Is there a scrupulous link between morally good policy ends and the means of achieving them?

Foreign policy analysts often chide one another with the question, What is the endgame? That is, what is the state of affairs desired in the near future? Such a question is often followed by another, about whether current policies help the nation to get there. Applied to our current nightmare, what endgame would the United States prefer by, let us say, 2003?

The following conditions would be both a desirable endgame and a morally defensible set of policy goals:

those responsible for planning, implementing or abetting the Sept. 11 slaughter have been apprehended, tried, convicted and are in prisons serving life sentences;

the transnational criminal, financial and arms networks that sustain the movement and operations of these terrorists have been significantly damaged;

states that harbored and trained terrorists throughout the 1990’s no longer do so, in part to fulfill their duties as signatories, along with virtually every other nation, to the new antiterrorism treaty;

states that have refused to cooperate in the international antiterrorist efforts or in turning over indicted terrorists would face harsh but precisely targeted penalties of a diplomatic, economic or military sort, with the severity of the penalty tied directly to the nature of the offense;

U.S. citizens and institutions feel a greater sense of security from terrorism than they did in 2001, and such sensibilities are supported by the facts.

As a nation, we should debate whether this endgame achieves or falls short of the goals we desire. During this debate, U.S. pundits and policy makers alike must examine the practical and ethical adequacy of the means employed to achieve these goals. Such a diverse set of end-goals would appear to demand a wide array of means to achieve success. Among these might be included military means; but such action, as a stand-alone strategy, would certainly be hard pressed to achieve some of the goals. We would need substantial debate regarding each military action to assess whether it constituted the best practical and ethical means for achieving these ends.

Two Temptations

Focusing on such a desirable and ethically defensible endgame as primary, and using this ends-means analysis to achieve it, may save us from two current temptations. The first is the (understandable) vengeance-punishment model of response. In this temptation, satisfying the public outcry for striking back at our enemies carries great weight. But because such an approach is not as simple as striking back, a set of global-force projections and strategic issues begin overtakingand ultimately dominatingthe more narrow and clear issues of how to deal most effectively (and ethically) with this variety of terrorism.

The second temptation is to use war means and analogs as our dominant framework of response. Within this temptation, our response to Sept. 11 calls first for intelligence gathering to discover the perpetrators. Then, working from the assumption (probably valid) that the culprits will not surrender quietly and that they reside in territory friendly to them, we conclude that the terrorists, their resource bases and most of their support structure in the host nation need to be destroyed by military means.

Many of the goals noted above for 2003 may, in fact, presently be under discussion by U.S. policy elites. These two temptations will pressure policy makers so that the vengeance and war frameworks will increasingly dominate their perception of the options. The danger exists that the prevailing means availableresort to military force, rather than the clarity of the policy goalswill drive that response. Nothing could be more disastrous for the American position as a global moral leader.

Are we accepting the anticipated death of large numbers of civilians all too rationally? If so, why?

There is no doubt, as was the case before and during the Persian Gulf war, that U.S. military planners and U.S. policy makers alike will attempt to limit the number of civilian casualties caused by whatever economic and military actions unfold in the near future. It might therefore seem inflammatory to suggest that the yet-to-be-defined U.S. response policies will likely produce large numbers of civilian casualties. While that is not my intention here, it is imperative that this third ethical query be considered daily in the formulation and implementation of the coming response policy. Why?

We must recognize that some very special conditions combine to limit our ability to exercise disciplined and informed moral restraint on our response policies. First, each and every American has sufferedin varying degreespsychological trauma as a result of the events of Sept. 11. Numerous frequent fliers are already expressing survivor guilt. And if the experience of Oklahoma City has relevance, thousands of average citizens, especially in New York and Washington, will soon experience some level of delayed-stress syndrome. Our policy makers are not immune to these psychological experiences, but must add to them the stress of round-the-clock meetings and activities. These are not ideal conditions for exercising our best moral judgments.

The second condition emerges from our justifiable outrage at the terror we have witnessed. We have been violated at a number of fundamental levels, and we see again and again on television how our daily vulnerabilities as an open society were used against us. As we aim to seek out the perpetrators, even our best instincts react as Thomas Friedman did: we declare that now there are no rules. Certainly whoever planned or enabled this horror, we tell ourselves, operates free of moral rules. And our collective psyche believes that is unfair that we, victims of such atrocity, must play by rules that our unknown foe disdains. We want to follow the path of the character we have tacitly accepted as cultural hero in countless movies since The French Connection. We want to lay down our law enforcement badge, step outside the system of due process restrictions and fight the best fight we can against faceless enemies who do not play by the rules.

A third condition hampering the exercise of our best ethical judgments regarding civilian casualties lies in our blindness to our own nation’s record on this issue in recent history. Many military planners and analysts will note that the Persian Gulf war was a just war in bello because there were so few Iraqi civilian deaths. While it is true that American bombing from January 15 through Feb. 24, 1991, did not lead to the number of direct Iraqi civilian deaths predicted, an entirely new meaning to the term civilian collateral damage may have developed since that time.

Concerned about civilian collateral death, American air war planners used precision-guided munitions and selected targets carefully at the outset of the war. But in light of the early success in crippling Iraqi air defenses while generating very limited civilian casualties, the U.S. command permitted a dramatic expansion of the number and types of targets that could be bombed. This led to the destruction of water treatment facilities and electronic power grids.

As a result (unintended), civilian deaths after the armistice rose dramatically as internal Iraqi society lost its carrying capacity in the health, sanitation and food sectors. This was a direct result from the bombing during the war. By 1993 this extensive damagecombined with the tightly maintained U.N. embargo on reconstruction and medical materialsproduced a humanitarian disaster. There was especially heavy loss of life among those under the age of 5 and over the age of 55. That this realityand more than a decade of anti-population sanctionsstill plagues the Iraqi people does not escape the minds of people of conscience in the Arab world. But it often slips away from the U.S. collective mind and conscience.

The heart of the U.S. case for taking action against those who perpetrated the Sept. 11 atrocity rests in the terrible truth that the victims were thousands of noncombatant, innocent civilians. U.S. actions taken in response to this would be morally bankrupt if they result in high causalities among similarly innocent civilians in other locales. If military and economic measures are to be directed against actors in Middle Eastern and Islamic countries, recent history does not predict a policy of discrimination and restraint on civilians.

Ethical Commitments as Our Best Memorial

Tuesday Sept. 11 may have changed everything. We live in a changed nation, with a forever-changed New York skyline, a changed Pentagon and a changed Washington policy establishment. Amid these sea changes, long-tested ethical concerns can be welcome anchors for our best national principles. But we must have the courage and vision to inject such ethical inquiry consciously into the policy debate about response options. It will not occur automatically. We must choose this ethical strategy because it is what people who believe in democracy, decency and the rule of law must do.

Our nation and our communities have lost countless individual citizens who, among other life goals, surely were trying to lead ethically meaningful lives. Our memorial to them ought to be that the policies we will soon develop and implement in response to their senseless slaughter be ones that are morally defensible and have passed the most rigorous ethical scrutiny.