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Everything Must Go: How to Fight Terrorism (And Shred the Constitution)

Posted By aaron On April 15, 2008 @ 4:39 pm In Featured Stories | Comments Disabled

‘Terror and Consent’: brilliant, contrarian

James E. McWilliams / Austin-American Statesman | March 30, 2008

During the course of a long, intellectually demanding narrative, "Terror and Consent" pivots on several paradigm-shifting claims. One of them, which appears in the introduction, stands out for its humanitarian implications: "During the era of twentieth century industrial nation states … 80 percent of the dead and wounded in warfare were civilians."

For Philip Bobbitt, a distinguished lecturer and senior fellow at the University of Texas and a law professor at Columbia University, this is more than a gee-whiz factoid. It’s the basis upon which he advances an ambitious argument for fighting the wars that are bound to plague the 21st century.

The prospect that the good old industrial nation state is a shrinking violet might rankle patriotic flag-wavers. But Bobbitt’s statistic thrusts home an unsettling question: What does it say about the nation state that it has so often failed to provide, in the words of British statesman Douglas Hurd, "the security, prosperity, and the decent environment which the citizens demand"? Might it be time for something new?

In Bobbitt’s view, the current wars against terror provide a shrill wake-up call to confront this question. The best way to protect citizens of modern democracies, he claims, is to fundamentally rethink the nation state as the guarantor of the freedoms that terrorists intend to obliterate.

Bobbitt’s previous book, "The Shield of Achilles," explored the grand themes of warfare and state development, marking his penchant for the magnum opus. At nearly 700 pages (including more than 100 pages of notes), "Terror and Consent" follows suit, taking on a similarly big picture. If "we want to defeat state-shattering terror in the twenty-first century," Bobbitt writes, we will have to "transform the emerging constitutional order of the twenty-first century State."

Specifically, we must stop thinking like a nation state and start thinking like the "market state" that we are inevitably becoming. The nation state — a constitutional order dedicated to protecting and improving the material welfare of its citizens — served the United States well from the mid-19th century to the end of the Cold War. But Bobbitt contends it’s vulnerable to a new battery of threats. The accessibility of weapons of mass destruction, the globalization of international capital and the "universalization of culture" have eroded the conventional borders that once legitimated national security.

What’s needed is a constitutional order that takes its structural cues from multinational corporations and nongovernmental organizations, relying "less on law and regulation and more on market incentives" to expand people’s options. Such a market state keeps its finger on the pulse of consumer demand, advocates trade liberalization, is prone to the privatization of public works and "will outsource many functions." In the seminar rooms of political science departments this change is referred to as "neoliberalism" (on the streets, it is known as "globalization") — and Bobbitt, who is a geopolitical realist, believes we have no choice but to embrace it.

The market state, Bobbitt contends, has great potential for the cause of individual freedom, but it also has a dark side. Global terrorism has already taken advantage of its ethos of openness in order to undermine it. For example, the wide-open arms market that neoliberalism endorses has allowed terrorists to gain access to weapons of destruction that they then use to destabilize legitimate market states. "Market state terrorism," Bobbitt explains, thus feeds on the "ardently sought innovations" of the 20th century to exploit "the increasing vulnerability of market states to catastrophic events."

"One cannot say," Bobbitt warns, "precisely how long we have."

What is to be done

This is not fear-mongering but rather a sophisticated geopolitical assessment. Therefore, a great deal rests on the solutions Bobbitt offers. Fortunately, his suggestions are, if not entirely novel, largely sensible. But they are ambitious to the point of being unachievable without extraordinary political leadership and unprecedented corporate discipline.

First, Bobbitt argues that the market state must allow the timeworn strategies of deterrence and containment to yield to the more aggressive tactics of preclusionary warfare. In an "epochal war," which we’re in, market states share the burden of employing power "preclusively rather than waiting for an acute crisis to set in that irrevocably puts us at a disadvantage." Venturing educated guesses about the behavior of future threats is no one’s idea of an ideal tactical strategy, but Bobbitt argues that if we strengthen our alliances with other states, networks of shared intelligence could do an impressive job of it.

Of course, this would require a more invasive process of information gathering within and across national borders. In order to reduce the threat to civil liberties this would entail, Bobbitt highlights "(o)ur commitment to globalize the systems of human rights and government by consent." He insists that emerging market states must collectively, out of "self respect," define and protect our inalienable rights. What this means in concrete terms is that governments "must rethink ideas like ‘Homeland Security,’ when the threats to security cannot be neatly cabined as in or out of the homeland," that an "alliance of democracies" must form to discourage isolationism and that the United States must "change its role as hegemon" in NATO. Only then can a consortium of neoliberal democracies draw "a bright-line rule against the intentional infliction of pain on any person detained by government," one of the many human rights threats that Bobbitt believes we must address.

These developments — the acceptance of preclusionary war, the universalization of human rights — hinge on a revamping of international law. Bobbitt believes that the UN Charter should be amended to allow the preemptive use of force without a Security Council authorization, that the Geneva Conventions should be changed to forbid the indefinite containment of terrorist prisoners without trial and that we must, in cases in which the use of non-lethal chemical weapons could be used to prevent terror, be able to redefine such methods as "counterforce measures."

The messy reality

These prescriptions provide a useful blueprint for fighting terror. As with any blueprint, however, there is the messy reality of filling in the details. Bobbitt presents his arguments persuasively; there is nothing dumbed down about "Terror and Consent." Nevertheless, one wonders if he concedes too much to the many virtues of neoliberalism without fully appreciating its negative impact. Two issues stand out.

First, Bobbitt admits that there will be no obvious answer to many of the human rights issues that are bound to arise. In many situations, he explains, our only option is to vest faith in properly formulated international and constitutional systems of law. This sort of vagueness is frustrating, perhaps dangerously so.

Take one case that Bobbitt offers: What should a market state do when an Islamic state holds free elections that bring a bin Laden to power? This situation, after all, presents allied market states with a human rights quandary — some sort of ethical corner will have to be cut. Bobbitt’s approach to these kinds of problems is often to dance a bit too delicately around them. He argues, "States must measure their tactical and strategic policies against the impact these policies are likely to have on their legitimacy," and "Whether (a) state is subject to intervention … ought to be measured by the relationship between the strategic interests of the states of consent and the severity of the deprivations of human rights." Both answers tell us we need to take measurements but offer no ruler with which to do so.

Further left unexplored in this response is the possibility that the market state offers a conception of inalienable rights that it has not yet developed the means to protect. One can’t help but wonder, as globalization renders millions of people vulnerable to human rights violations, if the nation state and its emphasis on human welfare should be so thoroughly dismissed.

Second, there is the matter that Bobbitt does not spend much time addressing: the war in Iraq — specifically, the subcontracting tactics that a CEO president and his corporate-modeled Cabinet have embraced. The inefficiencies of Halliburton, the corruption of Bechtel and the violence perpetuated by Blackwater call into question Bobbitt’s advocacy of privatizing public duties. How does a market state draw "bright-line" rules on human rights when the actors in charge of drawing those lines hold privately funded erasers?

These questions, like so many others that this book poses, lack easy answers. But the long century we face might demand that we answer them not by choosing good over bad, but — as is usually the case in war and politics — the lesser of evils. If this is so, then "Terror and Consent" offers the most we can expect from our blinkered vantage point: a dauntingly learned and occasionally infuriating manifesto.

Philip Bobbitt:

Phone: (512) 232-1376
Fax: (512) 471-6988
E-mail: PBOBBITT@LAW.UTEXAS.EDU


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