Philip Bobbitt's "New Rules of Engagement"

Philip Chase Bobbitt

(Image from Wikipedia)

Readers may recall that I posted several entries on Philip Bobbitt over a year ago when I was reading his book Terror and Consent: The Wars for the Twenty-first Century. One of the central points of that work was that the war on terror needs to be pursued on a new legal basis rather than the extrajudicial basis generally favored by the Bush administration.

Bobbitt makes the same point in a recent Newsweek article, "The New Rules of Engagement" (January 2, 2010), and expresses the point in a pithy manner: "what we are fighting for in the wars on terror is precisely the rule of law." This point comes as part of a more extensive argument, which I quote:

Bush and Cheney were not wrong to conclude after 9/11 that the existing statutory framework for dealing with terrorism was outmoded -- it was. But rather than changing the laws, they refused to ask Congress for authorization to intercept communications linked to suspected terrorists without seeking warrants. They refused to seek statutory authority for preventive detentions (that was the point of going offshore to Guantánamo, where they thought a habeas-corpus-free zone could be created). They stripped military commissions of the protections recommended by a panel they had convened. In all these decisions, they kicked away the essential support of laws from their efforts and ended up being condemned by allies, handing terrorists a propaganda victory and having their policies repudiated by the American people. They carelessly invited the prosecution of loyal and earnest U.S. personnel whom they directed and refused to pardon for crimes.

And yet, in Talleyrand's famous phrase, their actions were worse than crimes: they were mistakes. That is because what we are fighting for in the wars on terror is precisely the rule of law. Thus, as British Gen. Sir Rupert Smith observed, "to operate tactically outside the law is to attack one's own war aim."

It is often asked, "How can we win a war against terror? Who would surrender? How can we make war against an emotion (terror) or a guerrilla technique (terrorism), neither of which are enemy states?" These questions assume that victory in war is simply a matter of defeating the enemy. In fact, that may be the criterion for winning in football or chess, but not warfare. Victory in war is a matter of achieving the war aim. The war aim in a war against terror is not territory, or access to resources, or conversion to our political way of life. It is the protection of civilians within the rule of law. Not coincidentally, this is what General Petraeus realized was necessary in Iraq, and it is what General McChrystal has testified will be his goal in Afghanistan.

If the laws are inadequate, then they must be reformed to take account of the new strategic context rather than be ignored or twisted. Failing to do this traps us in the Cheney/ACLU world, in which we either act lawlessly to protect our people and thus turn every success into failure, or we await the next attack with the very practices and rules that invited the last one. When Obama promised in his speech at the National Archives to go to Congress for new statutory counterterror authorities, he made a decision as important strategically as it was constitutionally.

Bobbitt goes on to make a number of suggestions -- he calls them "nine imperatives" -- but interested readers can go to the website and read these for themselves, along with the entire article. I won't say much on this article itself since Bobbitt makes his points well, but I do have a query. He says that our war aim is "is the protection of civilians within the rule of law," and he adds that "this is what General Petraeus realized was necessary in Iraq, and it is what General McChrystal has testified will be his goal in Afghanistan."

But what is the "rule of law" in a sense that applies to the US, Iraq, and Afghanistan? The concept of the rule of law seems to be one developed in the West, so I wonder how well it fits Iraq and Afghanistan. Aren't we, rather, aiming to restore order to those two places and thereby enabling them to apply their own customary 'laws'? Is rule by Pashtunwali, for example, rule of law? Or would we be satisfied if the Taliban retook Afghanistan and applied its extreme form of shariah while forswearing terrorism?

In short, while I understand what Bobbitt means by "rule of law" as our war aim in domestic terms, I'm less sure what it means in Iraq and Afghanistan.