Edited and written by David Gordon, senior fellow of the Mises Institute and author of four books and thousands of essays.

Vol. 9, No. 2, Summer 2003

Justice and the Taliban

Just War Against Terror: The Burden of American Power in a Violent World. By Jean Bethke Elshtain. Basic Books, 2003. Xi + 240 pgs.

Professor Elshtain is troubled. Many intellectuals do not realize the need for a  forceful American response to world Islamic terrorism. Blinded by a reflexive anti-Americanism, they condemn the alleged failings of our society, as though social reform would suffice to end the menace of Al Qaeda. As if this were not enough, many Christian thinkers are so benighted as to associate their religion with opposition to war.

Fortunately, Elshtain, a distinguished intellectual historian and thinker in her own right, stands ready to rescue us from the spurious doubts of the intellectuals and Christian pacifists. She will enlighten us as to the true doctrine of just war; after her course of instruction, we will see that reason and morality fully support America's destruction of the Taliban regime.

I cannot think that Elshtain's grasp of history is such as to inspire confidence in her ability to teach us its lessons. I shall of course ignore her confusion of Gregory the Great with Gregory VII (p.33); this is a trivial slip, though one wonders how she can think a pope who reigned from 590 to 604 was still alive in 1077. But what is one to think of her astonishing assertion that when Gregory deposed Henry IV, the pope "seems to have been singularly ambivalent about his authority; hence, his deposition of Henry IV was circumscribed to mean that Henry could no longer claim to be a Christian king. Ecclesiastical sanctions were removed from his exercise of power, but he was not removed from the temporal throne: Henry remained legitimate where the secular sword was concerned. Such distinctions do not exist in theocracies." (p.33) Perhaps not; but this does not alter the fact that Gregory, at the same time that he excommunicated Henry, started the process for the election of a new Emperor.

If Elshtain understates the scope of Gregory's action, she errs in the opposite direction with Boniface VIII. She states that the pope "issued a spate of bulls on papal supremacy over the secular realm in which he asserted that the two swords [of religious and secular power] were to be wielded by one person: the bishop of Rome."(p.33) Her assertion will not survive a glance at Unam Sanctam(1302), Boniface's principal statement on papal jurisdiction. He claimed that the secular sword was subject to papal supervision, not that the Church itself should wield power.

I fear that our author is no trustworthier where American history is concerned. She informs us that Abraham Lincoln "deployed the Declaration of Independence, with its commitment to moral equality, to argue against the Dred Scott case, which, in 1857, had upheld the notorious Fugitive Slave Act."(p.27)

As everyone but Professor Elshtain knows, the constitutionality of the return of fugitive slaves was not at issue in this case. Dred Scott was not a fugitive slave; he claimed that the fact that he had been brought into Illinois, a free state, liberated him from slavery. The Supreme Court held that Negroes could never, under the existing Constitution, be citizens: Dred Scott thus had no standing to sue in federal court. I wonder what will happen if she chances to discover that Lincoln affirmed the validity of the fugitive slave clause of the Constitution in his First Inaugural.

Perhaps, you may think, I have been unfair to the Laura Spelman Rockefeller Professor of Social and Political Ethics at the University of Chicago. Students cramming for a history final will be ill advised to use her works as a substitute for a diligent perusal of Cliffs Notes; but she may be a reliable guide to ethics nonetheless. Let us then turn to a direct consideration of her principal thesis.

She maintains that the destruction of the Taliban regime in Afghanistan fully met the classic criteria for just war elaborated by Aquinas and later thinkers. To Elshtain, the case is obvious: was the United States not acting in response to a vicious and unprovoked attack? "Surely there can little doubt that the attacks of September 11 constituted an act of aggression aimed specifically at killing civilians. Indeed, when a wound as grievous as that of September 11 has been inflicted on a body politic, it would be the height of irresponsibility and a dereliction of duty for public officials to fail to respond."(p.59) Clearly, then, "the U.S. military response in Afghanistan meets the just cause criterion of being a war fought with the right intention---to punish wrongdoers and prevent them from murdering civilians in the future."(p.61)

But is not our author overlooking an obvious fact? The attacks of September 11 were carried out by the Al Qaeda organization. (I here put to one side claims that the United States lacked evidence that this was true.) But the United States' campaign did not limit itself to a strike against this organization. Quite the contrary, America aimed to overthrow the government of Afghanistan.

In response, it will no doubt be urged that the Taliban regime harbored Al Qaeda. But this does not answer our question. Why is the United States justified in doing more than directly attacking the group that assaulted it? From the fact that Al Qaeda had bases in Afghanistan, it does not follow that the Taliban forces aimed to aggress against America. Were they not largely oriented inward, aiming to establish their peculiar vision of an Islamic polity? At most, the United States would seem to be justified in measures against Taliban forces that came to the military assistance of Al Qaeda.

Readers inclined to guess Elshtain's response are in for a surprise. One might expect her to contend that harboring an aggressive force suffices to constitute adequate grounds for American intervention. She does not make this claim, nor does she deny it. She instead regales us with horror stories about the Taliban regime, particularly its brutal treatment of women.

Has she not shifted the question, in an unacceptable way? If she wants to argue that Taliban excesses justify American intervention, she is free to do so; I shall observe against her only that she offers a recipe for continual war. Rights violations among the nations of the world unfortunately are no rare occurrence. But the Taliban's treatment of women does not show at all that this regime has aggressed against the United States. Yet this is her purported justification for an American attack on the Afghani government.

Our author contends, with even less show of reason, that the American onslaught met the requirements of the "last resort" principle. "Properly understood, last resort is a resort to armed force taken after deliberation rather than as an immediate reaction. The criterion of last resort does not compel a government to try everything else in actual fact but rather to explore other options before concluding that none seems appropriate or viable in light of the nature of the threat."(p.61)

In this connection she notes the elusive nature of Al Qaeda. How is the United States supposed to "explore other options" when faced with so amorphous an opponent? Once more she turns a blind eye to the real issue. The attack by the United States was by no means limited to Al Qaeda members. Surely negotiations with the Taliban government could have been pursued much longer; war with the Taliban was much closer to a first resort than a final one.

As Elshtain rightly acknowledges, just war theory restricts the conduct of war. Even if a nation goes to war in a just cause, it cannot do whatever it wishes. For one thing, civilians cannot be subjected to direct attack. If they suffer casualties as the result of an attack on a legitimate target, these must be proportionate to the importance of the target. You cannot wipe out a city in order to rid it of a few tanks.

Elshtain utterly fails to show that the United States has met the proportionality requirement. She says that American forces have made every effort to avoid civilian casualties and offers an estimate that less than two thousand such deaths have occurred. These, she gives us to understand, are much less serious than the attack on the World Trade Center. American forces did not aim to kill civilians.

Yet again our author has shifted the issue. What happened to proportionality? That requirement does not vanish, if the deaths were not directly intended. Just the opposite: the issue arises only in these circumstances. Directly intending the death of civilians is always forbidden, regardless of the number of people involved.

Is two thousand deaths a reasonable price to pay, considering the seriousness of the military target aimed at? Elshtain does not tell us, nor does she set forward criteria by which we might answer the question for ourselves.

I suspect she realizes that a response to our inquiry would not support American policy. As usual, she passes by  the Taliban forces and concentrates on Al Qaeda: "Terrorists aim to kill as many civilians as possible. . . How do we develop a proportionate response to a disproportionate intended threat?"(p.69)

If her answer to her own rhetorical question is, "we can't", then she has abandoned just war theory altogether. If disproportionate attacks on civilians are immoral, they do not alter their moral status when we face an elusive foe that strikes at civilians.

Small wonder that Elshtain, after professing herself an adherent of the traditional theory, later reveals herself a follower of Reinhold Niebuhr, a theologian with altogether different views. According to that eminent figure, elevated by Henry Luce of Time as America's foremost theologian, we must not let the fear of falling into evil deter us from needed military actions. To think otherwise is to fall victim to perfectionist heresy: we let evil triumph because we fear to engage the world.

Elshtain neglects to inform her readers that Niebuhr also rejected the natural law tradition that she professes to favor. For him, the notion that fixed rules bind the state's conduct of war manifested another heresy---legalism. Niebuhr sharply criticized defenders of natural law such as Jacques Maritain. These thinkers, Niebuhr held, compromised the severe demands of the Gospel. We are required to turn the other cheek: we are not given guidelines that permit the use of force.

Readers will at this point be inclined to object. Has not Niebuhr just condemned pacifists who attempt to put the Gospel teachings in practice as utopians and perfectionists? To raise this objection is to underestimate Niebuhr's ingenuity. The Gospel demands are not to be put into practice: they are "impossible possibilities" that must be kept in mind as we realize that we cannot fulfill them. Meanwhile, the state can do whatever it deems prudent, unbound by "legalistic" restrictions.

How can Elshtain defend both natural law and also advise us to follow Niebuhr, an opponent of that doctrine? She asks, in true Niebuhrian fashion,  "Are Christians not obliged to respond [to attacks], even at the risk of dirtying their hands?"(p.111) Someone who properly observes natural law does not "dirty his hands" or put himself at serious risk of doing so. Niebuhr, she says, "was the greatest public theologian of his time".(p.106) One suspects that, in a conflict with Niebuhr's realism, natural law would in her view give way. Nevertheless, she finds it convenient to support both positions. Evidently she needs a remedial course in logic as well as several in history.



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