Killing in War

Mises Daily by David Gordon

Jeff McMahan has written a genuinely revolutionary book. He has uncovered a flaw in standard just-war theory. The standard view sharply separates the morality of going to war, jus ad bellum, from the morality of warfare, jus in bello. Whether or not a war is just does not affect the morality of how war is to be conducted. Soldiers are forbidden to violate the laws of war; but no greater restrictions are imposed on those who fight in an unjust cause than on those whose cause meets the requirements of jus ad bellum. This is exactly what McMahan rejects. Soldiers in an unjust cause have, for the most part, no right at all to engage in violent action against soldiers in a just cause. Not only do they lack moral standing to engage in aggressive warfare; they cannot legitimately even engage in defensive war, in most circumstances.

McMahan states his basic thesis in this way:

The contention of this book is that common sense beliefs about the morality of killing in war are deeply mistaken. The prevailing view is that in a state of war, the practice of killing is governed by different moral principles from those that govern acts of killing in other contexts. This presupposes that it can make a difference to the moral permissibility of killing another person whether one's political leaders have declared a state of war with that person's country. According to the prevailing view, therefore, political leaders can sometimes cause other people's moral rights to disappear simply by commanding their armies to attack them. When stated in this way, the received view seems obviously absurd. (p. vii)

Once advanced, McMahan's thesis seems obvious, and it is his considerable philosophical merit to make us realize how obvious it is. Those who fight in an unjust war are, by hypothesis, directing force against people whom they have no right to attack. If, e.g., the United States had no right to invade Iraq in 2003, then American soldiers wrongly used force against Iraqi soldiers. If so, how can one contend that they are morally permitted to do so? Further, do not defenders against such aggression have the right to resist? If they do have this right, then the aggressors may not fight back, even in self-defense. If a policeman legitimately shoots at a suspect, the suspect cannot claim the right to shoot back in self-defense. McMahan holds that matters in this respect do not change in warfare.

McMahan contends further that his view is of more than merely theoretical importance. Because people accept the incorrect view that soldiers who fight in an unjust war do no wrong, so long as they obey the laws of war, they are more likely to participate in such wars. This makes wars more likely.

[Although] the idea that no one does wrong, or acts impermissibly, merely by fighting in a war that turns out to be unjust … is intended to have a restraining effect on the conduct of war, the widespread acceptance of this idea also makes it easier … to fight in war without qualms about whether the war is unjust. (p. 3)

As mentioned, it seems obvious, once stated, that those engaged in an unjust war have no right to attack others. But is it too severe a doctrine to claim that they have no right to defend themselves, if attacked by just combatants? Quite the contrary, McMahan notes that his view applies a standard position in interpersonal morality to the ethics of war:

For many centuries there has been general agreement that, as a matter of both morality and law, "where attack is justified there can be no lawful defence." These words were written by Pierino Belli in 1563 and were echoed a little over a century later by John Locke, who claimed that "Force is to be opposed to nothing, but to unjust and unlawful force." (p. 14)

McMahan is a very careful philosopher; as soon as he states a thesis, he thinks of qualifications, objections, and rebuttals. He notes an instance where unjust combatants can permissibly use force:

The exception to the claim that just combatants are illegitimate targets in war is when they pursue their just cause by impermissible means. If, for example, just combatants attempt to achieve their just cause by using terrorist tactics — that is, by intentionally killing and attacking innocent people, as the Allies did when they bombed German and Japanese cities in World War II — they make themselves morally liable to defensive attack and become legitimate targets even for unjust combatants. (p. 16)

If McMahan contends that unjust combatants are not morally permitted, in most cases, to use force, has he not placed unreasonable demands on them? They are in many cases conscripted into the armed forces and serve against their will: in fighting, they simply obey the orders of their government. If they refuse to serve, they may face severe criminal penalties. And once enemy troops fire on them, is it not unrealistic to demand that they not fire back?

But these considerations at best give unjust combatants an excuse for their conduct: they do not serve to show that what they do is morally right. Further, not all unjust combatants are conscripts; and, as to those who are, one sometimes has a moral duty to disobey unjust commands, even if doing so leads to harsh penalties.

"I was just following orders" is not always a convincing defense. And the situation for the soldiers who wish to act in accord with moral duty is not always so bleak. McMahan calls attention to the work of S.L.A. Marshall, who claimed that during World War II, "only about 15–20% of combatants had fired their weapons at all" (p. 133). Though not everyone accepts Marshall's figures, it is not in dispute that many soldiers in battle did not fight. But of course the majority of combatants were not jailed for resistance. Soldiers, then, who wish to disobey unjust orders may be able to escape penalties.

McMahan considers an objection to his thesis advanced by David Estlund. Do not soldiers in a democratic country act reasonably in relying on their government's claim that a war is just? After all, the government is likely to have much more relevant information than the soldiers and, Estlund contends, democratic decision-making has "epistemic value"; given the government's democratic bona fides, soldiers act reasonably in not attempting to assess for themselves the justice of a war.

Not so, McMahan responds.

Among democratic countries, the US stands out in two respects: it has carefully designed and robust democratic institutions and also goes to war more often than any other democratic country. What procedural guarantees are there that the wars it fights will be just? The answer is: none. The only constraint is a requirement of Congressional authorization — a requirement that can be fudged… (p. 69)[1]

McMahan is an appropriately severe critic of American foreign policy:

The Pentagon Papers revealed an assortment of lies told to rally support for the war in Vietnam; Reagan lied about the nature of the Contras and the sources of their funding in order to make war against Nicaragua; and members of the George W. Bush administration lied repeatedly about weapons of mass destruction in Iraq in order to justify the invasion and occupation of that country to the UN, the Congress, and the American public. (p. 152)[2]

Although he considers American participation in World War II justifiable, he nevertheless remarks:

It is revealing about our attitudes in general that we sometimes do take combatants who have committed war crimes to be fully excused, or even justified… Perhaps the most notorious case of this sort is that of General Paul Tibbets, who was the commander and pilot of the Enola Gay, the plane … from which the atomic bomb was dropped on the Japanese city of Hiroshima in August of 1945… This single act by Tibbets, with contributions by the other members of his small crew, had as an immediate physical effect the killing of more people, the vast majority of whom were civilians, than any other single act ever done … all plausible moral theories, including even the most radical forms of consequentialism, prohibit the killing of that many innocent people in virtually all practically possible circumstances. Tibbets's act is therefore the most egregious war crime, and the most destructive single terrorist act, ever committed, even though it was committed in the course of a just war. Yet he was congratulated for it by President Truman… (pp. 128–29)

McMahan's drastic revision of just-war theory, however cogent, appears to carry with it an unfortunate consequence. If unjust combatants use force illegitimately, are they not then subject to criminal penalties for their conduct? If we accept this consequence, the result will be large scale Nuremberg Trial proceedings: do we really want this? Further, as F.J.P. Veale long ago pointed out in Advance to Barbarism, the prospect of being tried for war crimes encourages leaders of governments to refuse to surrender.

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Fortunately, McMahan's view does not have this consequence. What he is concerned to argue is that unjust combatants do not have the moral right to use force. It does not follow from this that they ought to be subject to criminal penalties for doing so. That is a prudential matter, and, as McMahan notes, strong considerations tell against resorting to criminal law. For one thing,

there is no impartial international court that could conduct trials of combatants who have fought in an unjust war. Because no government could try its own soldiers for fighting in a war in which it has commanded them to fight, the idea that unjust combatants are liable to punishment could lead to trials by victorious powers of individual soldiers of their defeated adversary … the victorious power that would prosecute allegedly unjust combatants would be more likely to be a vengeful aggressor prosecuting just combatants who had opposed it. (p. 190)

Further, McMahan grasps Veale's point:

Unjust combatants who feared punishment at the end of the war might be more reluctant to surrender, preferring to continue to fight with a low probability of victory than to surrender with a high probability of being punished. (pp. 190–91)

Readers unaccustomed to analytic moral philosophy may find McMahan's book hard going. He does not operate from a general theory but proceeds from case to case, weaving an intricate web of subtle distinctions.[3] The effort required to read the book, though, is well worth it: Killing in War is a distinguished contribution to moral theory.

Forever in Blue Jeans

Forever in Blue Jeans

George Will

WASHINGTON -- On any American street, or in any airport or mall, you see the same sad tableau: A 10-year-old boy is walking with his father, whose development was evidently arrested when he was that age, judging by his clothes. Father and son are dressed identically -- running shoes, T-shirts. And jeans, always jeans. If mother is there, she, too, is draped in denim.

Writer Daniel Akst has noticed and has had a constructive conniption. He should be given the Presidential Medal of Freedom. He has earned it by identifying an obnoxious misuse of freedom. Writing in The Wall Street Journal, he has denounced denim, summoning Americans to soul-searching and repentance about the plague of that ubiquitous fabric, which is symptomatic of deep disorders in the national psyche.

It is, he says, a manifestation of "the modern trend toward undifferentiated dressing, in which we all strive to look equally shabby." Denim reflects "our most nostalgic and destructive agrarian longings -- the ones that prompted all those exurban McMansions now sliding off their manicured lawns and into foreclosure." Jeans come prewashed and acid-treated to make them look like what they are not -- authentic work clothes for horny-handed sons of toil and the soil. Denim on the bourgeoisie is, Akst says, the wardrobe equivalent of driving a Hummer to a Whole Foods store -- discordant.

Long ago, when James Dean and Marlon Brando wore it, denim was, Akst says, "a symbol of youthful defiance." Today, Silicon Valley billionaires are rebels without causes beyond poses, wearing jeans when introducing new products. Akst's summa contra denim is grand as far as it goes, but it only scratches the surface of this blight on Americans' surfaces. Denim is the infantile uniform of a nation in which entertainment frequently features childlike adults ("Seinfeld," "Two and a Half Men") and cartoons for adults ("King of the Hill"). Seventy-five percent of American "gamers" -- people who play video games -- are older than 18 and nevertheless are allowed to vote. In their undifferentiated dress, children and their childish parents become undifferentiated audiences for juvenilized movies (the six -- so far -- "Batman" adventures and "Indiana Jones and the Credit-Default Swaps," coming soon to a cineplex near you). Denim is the clerical vestment for the priesthood of all believers in democracy's catechism of leveling -- thou shalt not dress better than society's most slovenly. To do so would be to commit the sin of lookism -- of believing that appearance matters. That heresy leads to denying the universal appropriateness of everything, and then to the elitist assertion that there is good and bad taste.

Denim is the carefully calculated costume of people eager to communicate indifference to appearances. But the appearances that people choose to present in public are cues from which we make inferences about their maturity and respect for those to whom they are presenting themselves.

Do not blame Levi Strauss for the misuse of Levis. When the Gold Rush began, Strauss moved to San Francisco planning to sell strong fabric for the 49ers' tents and wagon covers. Eventually, however, he made tough pants, reinforced by copper rivets, for the tough men who knelt on the muddy, stony banks of Northern California creeks, panning for gold. Today it is silly for Americans whose closest approximation of physical labor consists of loading their bags of clubs into golf carts to go around in public dressed for driving steers up the Chisholm Trail to the railhead in Abilene.

This is not complicated. For men, sartorial good taste can be reduced to one rule: If Fred Astaire would not have worn it, don't wear it. For women, substitute Grace Kelly.

Edmund Burke -- what he would have thought of the denimization of America can be inferred from his lament that the French Revolution assaulted "the decent drapery of life"; it is a straight line from the fall of the Bastille to the rise of denim -- said: "To make us love our country, our country ought to be lovely." Ours would be much more so if supposed grown-ups would heed St. Paul's first letter to the Corinthians, and St. Barack's inaugural sermon to the Americans, by putting away childish things, starting with denim.

(A confession: The author owns one pair of jeans. Wore them once. Had to. Such was the dress code for former Sen. Jack Danforth's 70th birthday party, where Jerry Jeff Walker sang his classic "Up Against the Wall, Redneck Mother." Music for a jeans-wearing crowd.)

A LEFTIST IN LABOR

Faced with the greatest economic downturn in decades, Barack Obama opted to put a far-Left ideologue in charge of labor-employer relations by nominating Hilda Solis as his choice for Labor Secretary. Leftists swooned at the nomination. Solis has received significant support from such far-leftists as The Nation magazine, Mother Jones, AlterNet, and the openly Socialist publication In These Times (which called her a “great choice for Labor”).

Just how left-wing is her record? Consider this: In June 1996 Solis dispatched an individual named Antonio Aguilar to represent her and to serve as a presenter at a major Communist Party USA event. Likewise in June 2008, she sent a caseworker from her East Los Angeles office, Elana Henry, to represent her at a workers’ rights forum organized by the Socialist International, which bills itself as “the worldwide organization of social democratic, socialist, and labor parties.”

Unfortunately, these are not two isolated incidents. Rep. Solis has spent her career advocating on behalf on radical causes. A Congresswoman since 2001, Solis is a member of the Progressive Caucus, the socialist wing of the Democrat Party in the House of Representatives. The Caucus was founded by the self-identified Socialist and Vermont Senator Bernie Sanders—himself a member of the Democratic Socialists of America, which describes itself as “the principal U.S. affiliate of the Socialist International.” The Progressive Caucus laments that “the concentration of wealth is a problem because it distorts our democracy, destabilizes the economy and erodes our social and cultural fabric,” a crisis for which it advocates “a package of legislative initiatives that will close America’s economic divide and address both income and wealth disparities.”

In other words, Hilda Solis wants to spread the wealth around. And her lifelong record bears it out.

Solis’ introduction to the world of politics took place in 1980, when she was an intern in Jimmy Carter’s White House Office of Hispanic Affairs. The following year she worked briefly as an analyst for the Office of Management and Budget, but she soon left that post because of her distaste for the policies of the newly elected President, Ronald Reagan. After spending the next decade working at various jobs in California, in 1992 Solis was elected to the California state legislature. Two years later she won a seat in the state senate, which she would hold until 2000, when she ran successfully for a spot in the U.S. House of Representatives. Her congressional campaign was buoyed by strong support from such leftist stalwarts as EMILY's List, the Sierra Club, and the League of Conservation Voters. She has been re-elected every two years since.

Solis’ voting record in Congress reads like a veritable ode to the redistribution of wealth, the dismantling American national security, and the granting of blanket amnesty to cheap labor provided by illegal immigrants. Through 2007, Solis had compiled a lifetime two-percent rating from the American Conservative Union and a 100-percent “liberal quotient” rating from Americans for Democratic Action. The prospective Labor secretary has a trifecta of anti-business views, opposing policies that promote job creation on economic, labor, and environmental grounds.

As noted, Solis is an economic redistributionist. Since a Republican (George W. Bush) controlled the White House during her entire tenure in the House of Representatives, she worked out her principles by opposing stimulative tax cuts. It is not surprising that a “progressive” like Solis voted against President Bush’s 2001 and 2003 tax cuts, against repealing the Death Tax in 2005, and against $69.96 billion in tax cuts and credits in 2006. As Labor Secretary, she can continue to push an anti-business agenda in the midst of a deep recession.

Solis is also a promoter of the Green agenda, opposing measures that would allow businesses (or consumers) access to affordable natural resources, like gasoline. She has consistently voted against drilling for oil in the Arctic National Wildlife Refuge and offshore drilling. Not content to limit exploration of new oil reserves, she has opted to slow down the rate at which we process the fossil fuels we uncover. In the House, she voted against the construction of new oil refineries in the United States, although no new refineries have been built since 1976 and, as Hurricane Katrina proved, many are located in an area vulnerable to natural disasters. For these and similar votes, the League of Conservation Voters dubbed Solis an “outstanding advocate for the enforcement of environmental laws, preservation of open space, and environmental justice.” The Sierra Club has even created the “Hilda L. Solis Environmental Youth Leadership Award,” calling her “an inspiration and…a national champion for environmental justice and environmental health.”

Solis has managed to reconcile an environmentalist agenda with an unbridled advocacy for labor unions. She is a fierce advocate of unionization in the private sector, where membership has dwindled from 38 percent of America’s total workforce in 1948 to just 7.5 percent today. Notwithstanding that decline, Solis understands that private-sector unions represent potentially fertile gardens wherein the deep roots of government meddling may take hold. Toward that end, she supports the Employee Free Choice Act (EFCA), which would authorize a federal arbitrator to render a final and binding resolution for any union negotiations that are not settled quickly, meaning that, as journalist Claire Berlinski puts it, “the federal government will gain the power to dictate the terms of a contract and to set wages, benefits, hours, and work rules.” In other words, a seemingly benign measure will vastly increase the government’s dominion over the private sector, the ever-present goal of Progressives.

Moreover, the EFCA would make it easier for organizers to intimidate workers into forming new unions. As things now stand, employees may choose any of three methods for deciding whether or not to become unionized: (a) a secret ballot wherein they privately and anonymously indicate their preference; (b) a signature drive, where they publicly affirm their wishes; or (c) a “card check” system, which unionizes employees if a majority sign their names on union-authorization cards. Clearly, the latter two options are far likelier than the first to expose employees to coercion or intimidation by union leaders or organizers. Under the current system, an employer, if he suspects that union organizers may be pressuring his workers to unionize, can demand a government-supervised secret-ballot vote to settle the matter. The EFCA would eliminate this right.

In her quest to unionize ever-greater numbers of American workers, Solis serves as a board of directors member of American Rights at Work (ARW), an organization that encourages employees to form unions and bargain collectively. ARW’s Executive Director, Mary Beth Maxwell, was formerly the Deputy Field Director for NARAL, which supports a woman’s right to taxpayer-funded abortion-on-demand any time, for any reason. ARW’s Chairman is former Congressman David Bonior, who was, like Solis, a Progressive Caucus member with a passion for “social and economic justice”—code for “socialism” in the lexicon of the Left.

Like other leftist Democrats, Solis is also intent on expanding the size of public-sector, or government, unions. This is because those unions provide immense revenues for Democrat political campaigns. Political journalist Lowell Ponte explains that because “government workers get their money not from a free marketplace but from coerced taxes,” their unions are wholly sympathetic to the economic centralization and redistribution at the heart of the Democratic Party. For their continued growth, indeed for their very existence, government unions must depend on the help of legislators who are committed to swelling the size of the government and its labor force of dues-paying workers. Thus, we see the virtual unanimity with which government unions, whose members comprise fully 37 percent of public-sector employees, support Democrats.

One public-sector union to which Solis has forged particularly close ties is the Service Employees International Union (SEIU), currently headed by the former New Leftist Andrew Stern. Stern, in turn, has close political ties to billionaire financier George Soros. Solis’ political values and agendas square perfectly with those of Soros and Stern. When President Obama announced his selection of Solis for Labor Secretary, SEIU Executive Vice President Eliseo Medina lauded her as “a champion for the rights of immigrant workers” who is intent on “fixing our broken immigration system” and “guarantee[ing] civil rights and basic fairness for all workers—no matter where they come from.”

Solis has indeed shown blasé indifference to the integrity of America's borders—and the integrity of such things as state drivers licenses. The California congresswoman voted against granting state and local officials the authority to investigate, identify, and arrest illegal immigrants; against the Real ID Act, which proposed to set minimal security requirements for state driver licenses and identification cards; against requiring hospitals to report illegal aliens who receive emergency medical treatment; and against separate, and wildly popular, bills authorizing the construction of a 700-mile, double-layered security fence along the U.S.-Mexico border. The unrestrained flood of illegal immigrants threatens to put Americans—particularly the most marginal and most vulnerable workers, especially minorities—out of work, and the ever-increasing number of illegal immigrants promises to tax our already overburdened public services to the breaking point. Nonetheless, Obama's Labor Secretary-designate sides with foreigners and Open Borders advocates against the American people. Ironically, Open Borders is one policy upon which Big Business and Big Labor agree.

Allowing a wave of illegal immigrants, including thousands of OTMs (Other Than Mexicans), to cross our southern border every year has ramifications beyond throwing Americans out of work and creating a constituency for the big-government programs socialists love. In this age of sleeper cells and homegrown terrorists, the giant in our midst may conceal a national-security threat. Given her House voting record, it appears that Solis little cares. She voted against a bill permitting airline pilots to carry firearms for the purpose defending their cockpits and passengers; against a bill permitting the government to use electronic surveillance to investigate suspected terrorist operatives; against the establishment of military commissions to try enemy combatants captured in the War on Terror (preferring instead to adjudicate such cases in the civilian court system); against a bill permitting the government to monitor suspected terrorists’ foreign electronic communications which were routed through the United States; and in favor of a proposal to expedite the transfer of all prisoners currently being held at the Guantanamo Bay.

As Labor Secretary, the decisions Hilda Solis makes may have wider, deadlier, implications than many consider. But the economic consequences are frightening enough.