In his Law and War essay (part of his Year Zero series), Jonathan Wallace offers an elegant but flawed argument based on his assertion that "law without force is a sham." The converse is either avoided or overlooked, since nowhere does he suggest that force without law is equally illegitimate.
In terms of the attacks on September 11th, the essay is clearly an attempt to justify supra-legal acts that would engage the United States government and allies in a war to bring the criminals to justice, plus other very sketchily outlined objectives to "end terrorism." It is, argues Wallace, the absence of legal mechanisms that demand extraordinary means be adopted to capture, extradite, or kill Osama bin Laden and members of his terrorist organization, who he says are "responsible for the mass murders on Tuesday (September 11th) morning.”"
While good evidence may prove the case, no case has been brought. And in the absence of such a case and a legal verdict, the argument Wallace makes seems to grant George Bush extraordinary judicial powers. Never mind that Mr. Bush has since granted himself sweeping new powers to spy on conversations between prisoners and their lawyers, refuse to reveal to congress's judicial oversight committee the number, names and charges against those arrested, and convene secret tribunals with the power to charge, try, and execute those prisoners after having revoked habeas corpus.
One could argue that congress already possesses the legal power to declare war. But this is not the argument advanced in "Law and War."Instead, war as a bridge between social instability and the stabilizing return to successful jurisprudence is attempted. In either case, congress's recourse to war is a legal non-sequitur as the argument has been presented, since a declaration of war must be imposed on another nation, and may not be imposed on individuals. Again, never mind that Mr. Bush has engaged US troops and the CIA in the invasion of another nation with the intent to overthrow its government and install a different one. And so it is not "war" that the administration is using to breach the international order (such that it is), but an extralegal recourse to force that is recognized as legitimate by neither domestic nor international law.
The impulse to overlook such niceties as a means to expedite the exercise of justice is understandable but indefensible. At so late a date in history, the truth is that law and justice remain illusive for the majority of humanity. But it is absurd to suggest that Afghanistan's refusal to be subject to the World Court and other international bodies makes the criminal use of American force necessary. True, their refusal to join the community of nations in such a way makes it impossible for the US to pursue legal remedies against a resident of Afghanistan, but the US has also refused to join that community of nations, reserving a unilateralism of action that it defends as national sovereignty. Wherein lies the difference between these two nations’ stance? An argument maintaining that the nation with the physical resources to enforce its will on the other has an absolute right to do so does not suggest a temporary transcending of law, but a shunning of it.
If the US attempts to justify and "legitimize" this kind of extralegal international violence, we may have to accept the violence perpetrated by our attackers under the same terms. If, for example, an aggrieved populace can make a claim, unsupported judicially, that they have been wronged and on that basis conduct a war against those accused, we will in honesty have to admit the kindred logic of this argument to the one made by terrorists. With no access to courts that will bring the US government to enforceable terms of conduct internationally, people with unmediated grievances might formulate just such an argument for illegal, criminal violence. By extension, for the US to act similarly would be for it to adopt state terrorism as international policy. That is now a fait accompli.
Calls for the domestic narrowing of individual rights and legal sanction to assassinate foreign leaders (who can grant such power)? do nothing to contradict the turn to state terrorism by the US in the wake of the recent attacks. Rather than "a war for law," as Jonathan Wallace calls it, we hold our breaths waiting to hear law’s last gasp.
The legal route may be infuriatingly cumbersome to our sense of outrage. And as a nation we may have burned the very legal bridges we need now to work for us. But it will be greater instability that results from the world’s only superpower becoming a rogue nation. Jonathan Wallace opened his essay saying that: "law requires some prior stability. That stability is acquired in part by a judicious application of force, according to the ‘rules of law,’ and therefore with certain checks and balances applied." This is precisely the point that, in his analysis, Wallace fails to examine closely. If the US had applied force to its own will to power and checked its hubris this side of our shores, the legal means to solve this crisis would likely exist. Further, the recourse to violence against the US might have been greatly reduced had the American nation chosen to join as an equal partner in the community of nations. This is no time to keep moving in the wrong direction.