Christopher Morris, Sec. 12, 2001
Was the attack on the World Trade Center and the Pentagon a crime or an act of war? Commentators have disagreed. Presumably, if it is a crime then the appropriate response is to apprehend the guilty and to try them in a court of law, constrained by the standards of evidence and the rules of procedural justice of the criminal law. By contrast, if it is an act of war, then we may retaliate against the enemy with military means and need not be burdened with the criminal law's demanding standards of proof.
Some have argued that the attack cannot be an act of war as only states can fight war. But this argument is specious: wars took place long before states existed, and civil wars are genuine wars. Others have seen dangers to democracy in talk of war. In The London Review of Books, Jeremy Waldron concludes a short note with a worry:
War tends to unite a people and to dispose them to dispense with the irritations of democracy. But with the temptations we face, we cannot do without things like checks and balances, public hesitations, open and - if necessary - partisan debate, criticism without accusations of disloyalty, caution without attribution of cowardise. Calling 11 September an act of war, and responding to it accordingly, is calculated to deprive us of these necessities.(London Review of Books, vol. 23, no 19, 4 October 2001, emphasis added.)In a calmer moment Waldron might not claim that everyone, or even most people, who labeled the conflict a war intended to assault democracy. He may be right, however, to see a connection between the category we use to describe the attack and the constraints we face in our response.
The question about the description of the attack is not an empty quarrel about labels. To see what the dispute over terms might be about, we should think more carefully about what it is that we might want to accomplish by retaliating against our aggressors.
After the attack many people immediately, and very reasonably, called for justice. We should apprehend the perpetrators and bring them to justice. This should indeed be one of our aims, and the President still maintains this to be a principal aim of our efforts in Afghanistan. Justice does call for retribution (though not revenge). A few people might disagree and counsel turning the other cheek. But retributive justice is a widely accepted goal and one which I find entirely reasonable.
A second and distinct aim might also be to deter future attacks. Deterrence has long been thought to be part of the purpose of punishment, and philosophers, legal theorists, and criminologists have long distinguished retribution and deterrence. These thinkers often disagree here, some arguing that deterrence is less important than retribution, others defending the reverse. But deterring future terrorist attacks seems to be something we ought to try to do if at all possible. The administration's policy to assign some liability to political regimes that support our assailants and specifically the attack on the Taliban are clearly aimed at deterring future attacks.
There is also a third aim which we should have, and it is one that has not been distinguished clearly enough from retribution and deterrence. To exact retributive justice from someone is to pay him/her back for some wrong he/she has committed. To deter someone is to induce him/her to change his/her behavior by attaching consequences to his/her actions (for instance, sanctions or penalties). Both of these aims differ from prevention or incapacitation. If a person is handcuffed or locked in a cell or executed, that person is not deterred from committing a crime; he/she is prevented from doing so. Sometimes in debates about the capital punishment people say that the death penalty is "the ultimate deterrent" for the condemned, but that is an error. To kill someone may effectively deter others, but it cannot deter the person executed. Execution does not induce the person to change his/her behavior by attaching consequences such as sanctions to his/her actions; rather it makes it impossible for him/her to act.
The distinction between prevention and deterrence, important in the theory of punishment, is crucial in the debate about retaliation. One of our aims should be to prevent future attacks, that is, to incapacitate our adversary. We should also try to deter future attacks, but it is unclear that individuals like the hijackers will be deterred by anything that we can do. The fact that we may not be able to deter these individuals from striking again does not, however, mean that we should not aim to prevent them from doing so. Attempting to incapacitate terrorists by capturing or killing them before they strike should be one of our aims. It is distinct from retributive justice and deterrence. And - here is the important consequence - it is a task appropriate to the military and intelligence services of the state and not necessarily a task best carried out by US or international courts of law. Our assailants are members of an organization of some kind and they intend to attack us again, possibly using means of greater destructive power. We now know that al Qaeda sought to obtain nuclear and bio-chemical weapons of mass destruction, and we are in no doubt that the attackers would have used them on 11 September had this been possible. I should think it obvious that such people should be stopped, that is, prevented from attacking again. It would be good to bring them to justice and to deter them (and others). We should also try our best to prevent them from acting again.
Was the attack on the World Trade Center a crime or an act of war? It can, of course, reasonably be considered both. But this question is not the important one to settle. Rather, we should ask what it is that we aim to achieve by our response to this act? We should seek retributive justice and, if possible, to deter future attacks. But our most important, and urgent, aim should be to incapacitate all who threaten to attack our cities and people in the ways that the 11 September killers have. This means we should strive to find both the perpetrators and others who are contemplating similar acts and that we should make sure they are not able to act. Even if we are not able to deter terrorists or to bring them to justice, we should aim to prevent them and others from striking again. Easier said than done, of course - nevertheless, a goal at least as important as any other.
We should of course worry that the war effort may threaten some of our civil and democratic liberties, though now (mid-December 2001) many of the expressions of concern seem unwarranted. And it should be remembered that the development and the growth of the state's power since early modern times is associated with war. But given the aims of our adversaries, I should think these are risks we must be willing to run.
Christopher Morris is a Professor of Philosophy and a member of the Commitee on Politics, Philosophy and Public Policy.
