Body Count

Michael Pollak mpollak at
Sun Dec 8 13:08:06 PST 2002

On Sun, 8 Dec 2002, andie nachgeborenen wrote:

> Now, as to Michael's remarks about breaking the Mafia by demolishing
> civil liberties, I think they are exaggerated. First, the Mafia has not
> been broken, although its power has been diminished . . . As for Italy,
> I gather that the attack on civil liberties was a lot harsher, though
> again as far as I know the Mafia was not broken.

This a counter-argument? To the assertion that criminal law doesn't work against insurgency?

You are mixing two things here, Justin. I am entirely in agreement with you in the belief that terrorism, conceived of as random acts of violence, must be dealt with as a police and security measures matter, whose goal must be to minimize it, not eradicate it. (In fact I have a personal bet that fewer people will die of terrorism in the US in the 10 years 2004-2014 than will be struck by lightening. The stake? One $100 Patriot Bond.)

The question in Kashmir is whether criminal law has ever been sufficient to deal with insurgency. The answer is no. Nor has the common law tradition ever thought it was. The British charge to the army to "aid the civil power in times of disorder" and the declaring of "emergencies" and martial law in the colonies and Ireland (i.e., inside Britain itself) has always been what they've used instead. In British law there is no enumeration of civil rights. They have always been held, following Blackstone and AV Dicey, to rest on the rule of law. The Brits, following those two, have actually championed this fact for most of their history (until very recently) and said this was a much firmer foundation than explict enumeration. Exhibit No 1 for them was of course always those dastardly French, who declared the right of mans and promptly instituted the terror, showing that rights that had to be written down weren't worth the paper they were printed one. In general, this line of argument is just another aspect of the classical British common law defense of the superiority of the unwritten constitution over written ones, of the spirit of the law over the letter, the honest Island People over the tricky Continentals. But when it comes to civil rights in times of insurgency it has a fiendish legal flipside, because when there is no rule of law -- i.e., when there is an insurgency -- there are no rights by definition.

The link between the two very distinct situations -- between fighting random acts of violence with vigilence and policing; and fighting guerrilla insurgencies -- is that often with guerrilla insurgencies, whether or not supported by neighboring powers (which most successful ones are), there is an urban terror front as well (as in Kashmir, but also Vietnam, Algeria, etc.).

In that case, war takes precedence. But even then, counterinsurgent warfare it can't possibly succeed as a purely military venture. It has to be politico-military strategy, one that seeks to secure the safety of the inhabitants (and representatives of the government) while making sufficient concessions to gain legitimacy for a new political arrangement. A purely political solution to guerrilla war keeps it going forever; a cycle of retributive strikes serve as the perfect recruiting tools for the non-compromising wings on both sides while depleting the personnel and sentiment for compromise in the middle. So long as people say "We can't deal with terrorists" in such a situation they are pledging themselves to an eternal war that can't be won except through genocide (and even then, only delayed until the embers rekindle). Dealing with terrorism is what politico-military war is.

But while such a situation applies to India's relation to Kashmir, it doesn't apply to the US's relation to Al-Qaeda. Ours is purely a fear of random acts of terror. And I fully agree with you that the idea that such things can be throttled at their source is delusional, as delusional as the idea that the war on drugs can cut of the supply at its source. To the extent that it is true -- that there are states that disproportionately supply terrorists either because they are failed (as in Afghanistan) or because we are identified with galling injustices (as in the Middle East) the solution at the source is political, not military. So the total solution from the US perspective would be a policing/political solution, with politico-military war only necessary in a case like Afghanistan -- where again, it will only be a success if a legitimate state can be built.

So in sum I agree with you entirely that the US "war on terrorism" is a phony war which would better be met by a combination of improved political justice and policing. I disagree only in the idea that when one is faced with a war situation, as in Afghanistan or Kashmir -- when an enemy controls territory and population and you want to contest that control -- that policing governed by normally operative civil norms can do the trick. But I don't you think that either. I think our disagreement is an artifact of the shifting continuum of terms.


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