The False Choice of Opposing Torture or Endless War: A Response to Samuel Moyn

In a thoughtful guest post Samuel Moyn has continued and deepened a debate we began in the pages of the current issue of Dissent on the relative merits of opposing war itself and opposing immoral and illegal forms of warfare. Moyn wonders whether human rights and civil liberties lawyers have contributed to “endless war” by “cleansing” the war on terror of its excesses — in particular, the torture, disappearances, extraordinary renditions, and indefinite secret detention without hearings deployed by the George W. Bush administration. He warns, echoing Leo Tolstoy, that objecting to the excesses of war may only perpetuate the practice of war. Hearkening back to the days of the Vietnam War protests, he contrasts today’s response to the “war on terror,” which has focused, in his view, not on opposing the war as unjust, but on condemning its violations of human rights and humanitarian law.

My own view, as set forth in more detail in my article in Dissent, is that this is not a zero-sum game. One can and should oppose both unjust wars and the deployment of unjust means to fight wars, whether the wars as a whole are just or not. Progressives have in fact opposed what Moyn calls “endless war” at the same time that they have opposed torture and other atrocities. And some of the rights-based criticisms themselves turn on the problematic character of the war as endless. For example, detention of enemy forces during wartime is not, by any standard, per se illegal. But if the war has no foreseeable end, so that the detention is effectively a term of life imprisonment, the detention’s legality is far less clear.

It is of course possible that one who seeks to end violations of human rights in a given war may, by succeeding, render the war itself less vulnerable to challenge in a fundamental way. An unjust war that is characterized by torture and disappearances may be easier to oppose than an unjust war that avoids such atrocities. But surely that does not mean that if one confronts a war that is both unjust and full of atrocities, one should ignore or downplay the atrocities on the speculation that their continuation may help bring about an end to the war. On that view, opponents of Hitler should have disregarded his extermination of the Jews because doing so would have strengthened the case that the war itself was an illegal act of aggression. In my view, one need not, and cannot morally, sacrifice the victims of ongoing atrocities in the hope that allowing them to be tortured or exterminated may advance a greater cause. If the war is unjust and violates human rights, one should oppose both the war and the human rights violations. But on no account ought one ignore or diminish one’s efforts to protect victims of human rights as a tactical matter.

In the particular instance of the US response to al-Qaeda, Moyn’s argument appears to assume that the war is unjust. He never bothers to make that case, however. This is a rather significant omission, for Moyn’s critique collapses if responding to the 9/11 attacks with military force was just. In that case, what made the “war on terror” problematic was not the fact that we responded to an armed attack with force of our own, but that we pursued the end of countering the threat al-Qaeda posed through particular illegal and immoral means — torture, disappearances, extraordinary renditions, and the like.

Moyn’s evocation of the halcyon days of Vietnam War protests is telling. The argument then was that the war itself was unjust. Vietnam posed no threat to us, and we should not have been engaged in the conflict at all. Moreover, because of the draft, many more Americans had a direct stake in ending the war altogether, because it threatened them and their friends and loved ones in a personal and direct way. (But protesting the war did not mean overlooking war crimes — see, for example, Lt. William Calley and the My Lai massacre). By contrast, while some have argued that, as a tactical matter, we would have been better off responding to al-Qaeda with traditional law enforcement measures rather than with military force, few contend that the choice to defend ourselves with military force and law enforcement measures was legally proscribed. The UN and NATO both viewed the 9/11 attacks as giving rise to the right of self-defense. And when the Taliban refused to turn over the perpetrators or hinder their continued training and planning for future attacks, a military response was certainly within the lawful options available to the president. The war itself was not unjust; it was the way we went about it that caused alarm at home and abroad.

The Iraq war was another matter, of course. That war was unjust from the outset. Saddam Hussein had not attacked us, nor did he pose any imminent threat. But I see no evidence that progressives ignored that fact and instead chose to focus on human rights violations. Many on the left opposed the war from its inception. Americans (and citizens of many other countries) took to the streets in protest. But when, months later, the photos of prisoner abuse at Abu Ghraib were disclosed, was it not incumbent on all of us to raise our voices in protest to that conduct as well? Even if, by doing so, we might “cleanse” the war?

Unless one is pacifist, wars are sometimes unjust and sometimes just. But torture and genocide are never permissible. It is conceivable that if we eliminated torture and genocide from warmaking, the wars that were thereby “cleansed” would be more difficult to oppose politically. But that’s because they would actually be less objectionable. If the act of going to war in a particular circumstance is unjust, then by all means we should say so. But Moyn has offered no evidence that by advocating for the victims of human rights violations in both just and unjust wars, progressives have legitimated unjust wars. And if they have legitimated otherwise just wars by reducing the atrocities therein, the only ground for complaint would be that there is no such thing as a just war. I don’t take Moyn to be making that argument. But if not, then his argument is premised on a false choice. I choose to follow not Moyn but Martin Luther King, Jr.: “Injustice anywhere is a threat to justice everywhere.” 

About the Author(s)

David Cole

National Legal Director of the ACLU and Professor at Georgetown University Law Center Follow him on Twitter (@DavidColeACLU).