Al Qaeda’s Foot Soldiers and the Problem of Moral Equality

Al Qaeda’s Foot Soldiers and the Problem of Moral Equality

“This guy Padilla is a bad guy, and he is where he needs to be—detained.”[1]

--President G. W. Bush, in defending his decision to classify Jose Padilla,

U.S. citizen and alleged Al Qaeda operative, as an ‘enemy combatant.”

In the aftermath of September 11th, America has fashioned itself as the spearhead for a global campaign to rid the world of terrorism and the forces that perpetuate it. This campaign, officially called the War on Terrorism, presents new challenges to the way the U.S. military conducts combat operations, and especially its means and motives in dealing with those it captures on the battlefield when those operations are successful. As a nation that draws upon the moral precept of universal human rights to found not only its national identity but also its military’s professional ethic, America is bound by the prescription to offer the captured soldiers of its enemies a certain type of benevolent quarantine. Philosopher Michael Walzer in part echoes this type of sentiment when he makes the case for the moral equality of soldiers in his classic work Just and Unjust Wars.

In this paper I will argue that terrorism and its particular brand of “soldiers” pose a unique moral challenge for America’s political and military leadership. President Bush has stated that America is waging war today to keep the world safe from terror, and that this war is a “war against terrorists of global reach.”[2] While 19 members of the notorious Al Qaeda terrorist group were directly responsible for the events that triggered the War on Terrorism on September 11th, subsequent clashes between the U.S. and Al Qaeda have not always involved men like those who hijacked the airliners. It is clear that those who opposed American soldiers in the mountains of Afghanistan, though they bore some allegiance to both Al Qaeda and the Taliban (in some or no combination), were a different ilk than Muhammed Atta and his minions. These particular individuals, the foot soldiers of Al Qaeda, weren’t suicide bombers fueled with extremist zeal. Instead of directly attacking innocents, they fought against U.S. and coalition forces in traditional close combat fashion, with rifles, machine guns, and mortars. These were not “shadowy networks of individuals,” but rather a more common-and far less shadowy-contingent of 3rd world infantrymen. If Walzer is right, these particular enemy foot soldiers qualify as combatants in every moral sense of the term, and, loathsome as their “state’s” cause appears to be, are in fact the moral equals of the U.S. and coalition soldiers that oppose them, and thus deserve to be treated with a captured soldier’s full set of rights when they surrender.

The solution the American government has arrived upon thus far from encapsulating the moral equality that Walzer prescribes. In fact, U.S. policy for the treatment of captured terrorist soldiers is morally problematic with its reliance on terms like “unlawful combatant” and “enemy combatant” to categorize them for processing and evacuation to holding facilities in Guantanamo Bay, Cuba and elsewhere. Though these terms are precise-sounding in their legalistic tone, they are far from effective in describing and ensuring the rights of benevolent quarantine for these soldiers. Instead of receiving the full suite of rights accorded to prisoners of war in accordance with the Geneva Convention, many of these soldiers have been placed into confinement indefinitely under the cover of near-absolute secrecy, all contact with the outside world removed and no chance for trial offered.

Characteristically, media sources have variously attacked this policy, calling it among other things a malicious “diluting” of the Geneva Convention [3] and a case of “legal limbo.”[4] Legal scholars like David Luban of Georgetown University characterize it as “limbo of righteousness,” and something akin to “a kind of heads-I-win-tails-you-lose international morality in which whatever it takes to reduce American risk, no matter what the cost to others, turns out to be justified.”[5] Defense Secretary Rumsfeld and others counter with the premise that “unlawful combatant” is a legally valid pretext for confining these persons for an undisclosed amount of time without contact with legal counsel and without any specific stated charge or reason. This paper aims beyond the legal argument toward the deeper problem of whether there can be a sound moral argument to justify current U.S. policy toward these enemy prisoners, and if so, assessing that argument against Walzer’s classic human-rights based position for the moral equality of soldiers.

Walzer’s Argument for the Moral Equality of Soldiers (in brief).

Michael Walzer argues in Just and Unjust Wars that much of the moral evil of war lies in its “tyranny,” or the moral wrong entailed by making soldiers fight and die against their will. Soldiers most often end up fighting because their parent states have coerced them to do so, often either through legal guidelines or a deliberate campaign of patriotism—fighting usually for circumstances that under normal conditions would not obviously compel them to do so. Dire conditions of self-defense aside, states employ military force in many types of conflicts, and need soldiers to do so. To fill the ranks, states through the use of various agencies often employ methods that seize upon their citizens’ ideologies, legal obligations, financial desires, and patriotism in order to obtain their services. When states employ these methods, Walzer argues that the conditions for decision that ensue for citizens virtually eliminate any possible free choice for “essentially private reasons” for them.

The more soldiers respond to a desire to serve a common cause, Walzer charges, “the more likely we are to regard it as a crime to force him to fight. We assume that his commitment is to the safety of his country, that he fights only when it is threatened, and that then he has to fight (he has been ‘put to it’): it is his duty and not a free choice.”[6] Since states and not soldiers bear the responsibility for decisions to wage war (and to obtain soldiers to fight those wars), we ought not judge soldiers based on the wars they fight, as those wars are not theirs. Rather, our judgment of them must be limited to how they fight. Soldiers and soldiers who oppose them (the entire suite of combatants in a conflict) are therefore moral equals, and fully entitled on all sides to warriors’ rights as prescribed by the rules of war.[7] In simplified form, the argument runs like this:

Soldiers (combatants) rarely freely choose to fight; rather, they are most often coerced to do so by their parent states.
Coercion occurs when soldiers are hampered, often consciously, in their ability to decide to fight for “essentially private reasons,” or reasons that result from a personal choosing process that is unencumbered to a great degree by externally generated concerns.
Soldiers that choose to fight out of deference to legal obligation, patriotism, or some other sense of “common cause”[8] do not choose for private reasons; rather, these concerns are products of the state and its environment, and are thus tools of coercion.
If soldiers are coerced to fight, we may not include in our judgment of them any larger judgment about the justness of their state’s cause. The governing authorities of states decide to enter into armed conflict with other states; thus, the responsibility for the hostilities that ensue resides with them and not their soldiers. The war they fight is not theirs.
Our judgment of soldiers is limited to how they fight; if they abide by the rules of war, they have the right to kill their opponents, and their opponents to kill them. Such actions are inherent in the moral rights of soldiers in their roles as legitimate combatants.[9]

________________

.: If soldiers follow the rules of war, then they face each other on the battlefield as moral equals.

The Problem with “Unlawful Combatants.”

Clearly, Walzer’s argument eliminates immediately the type of terrorist who attacks innocents. Premise 5 evokes the rules of war as an initial sorting device, and it seems fair to say that soldiers of Al Qaeda who hijack planes, blow themselves up in crowded marketplaces, and perpetrate other similar acts of violence against innocents obviously break the rules of war, and thus forfeit their status and rights as legitimate combatants. There is no moral obligation to offer benevolent quarantine to suicide terrorists, as they obviate their moral equality as combatants by targeting the very people that legitimate combatants are morally charged to protect.

The tougher question, though, is how Al Qaeda foot soldiers figure in to this moral calculus. The U.S. has taken an approach in Afghanistan whereby these types are categorized by some kind of ideology measurement; if sympathetic to Al Qaeda, classify as unlawful combatant and afford no rights. If aligned with Taliban, classify as combatant and afford rights. Luban describes this fragmented approach as a hybrid war-law technique, where U.S. authorities combine elements of wartime justice with those of peacetime law enforcement. Simply put, it means that the technique is to first consider these individuals “soldiers” in some sense in order to be able to hunt, attack, and kill them through standard combat operations and the full use of military forces. Additionally and importantly, adopting the warfighting paradigm means a wartime attitude toward “collateral damage” on the battlefield can apply, whereby circumstances that result in the death of noncombatants and the destruction of civilian infrastructure, for example, is acceptable though regrettable when it is unavoidable and unintended. Once captured, the law enforcement model is then adopted to provide a legal justification for denying them any rights they might have as soldiers. By calling them “unlawful combatants” based on, among other things, their lack of both a legitimate harboring state and clearly defined uniforms and insignias, the subsequent ability to both interrogate and confine them without impediment is greatly enhanced. “By selectively combining elements of the war model and elements of the law model,” Luban asserts, “Washington is able to maximize its own ability to mobilize lethal force against terrorists while eliminating most traditional rights of a military adversary, as well as the rights of innocent bystanders caught in the crossfire.”[10]

Though not clearly articulated by U.S. authorities, one might argue that the moral basis for the legal minuet described above might be roughly stated this way: these soldiers, though they fought conventionally and in accordance with the rules of war, are ultimately aligned with an illegitimate and inherently evil cause that seeks the intentional murder of innocents to further its goals. This means that when they resist apprehension by force, they are murderers when they kill our soldiers. This very obviously makes them the wholesale “enemies of civilization,”[11] and the worst sort of criminals. In short, they are “bad guys” who need to be locked up and the keys thrown away. Granting them rights runs the risk of granting them some degree of ability to continue to wreak havoc against the peaceful world.

The allegation about the legitimacy of Terrorism as a sponsoring entity for soldiers is an important point, though one for which a thorough discussion appeals more directly to the jus ad bellum dimension of Just War Theory, and is beyond the scope of this paper. A comment worth mentioning, however, is that any questions leveled at the notion of Terrorism being a “state-like” entity must also call into question the ability of “real” states to declare and wage war (in the fullest sense of the term) on such more closely resemble criminal conglomerations, and are more appropriately addressed from within the boundaries of traditional law enforcement. Or, to borrow a Hollywood analogy, you ought not use the Marines to take out the Sopranos.

The argument I want to advance here rather centers on the problem that the U.S.’s “soldier-then-criminal” approach creates on the jus in bello level. Specifically, what is troubling about this line of reasoning is that it very obviously incorporates a judgment about the criminality of the “cause” of terrorism into a rights-assessment of these soldiers, and hence violates the Walzerian imperative about moral equality. It fails to distinguish the rule-adhering type of Al Qaeda soldier from the innocent-murdering type. Worse yet, it includes in its judgment some type of potentiality assessment, where guesses are made about what these soldiers could someday become if left unattended. In some ways, the expediency that this policy accedes to is reminiscent of Walzer’s example of “sliding scale” justice, where the greater the perceived need is for victory, the more bendable the rules can become. In other words, it’s not just that these Al Qaeda are bad men; they are bad men that are part of a terribly bad cause, and one that it is vitally urgent to defeat. Thus, quashing their rights as soldiers by fiat rather than moral or legal principle is appropriate—and justified. [12]

Judging these soldiers inside a larger judgment about the justness of their cause clearly violates Just War Theory’s prescription against the requirement for jus ad bellum/jus in bello distinction. Soldiers enjoy a moral equality provided they, as Walzer puts it, “fight well.” His assertion is that we judge soldier apart from the justice of the cause they fight for because

…the moral status of individual soldiers on both sides is

very much the same: they are led to fight by their loyalty

to their own states and by their lawful obedience. They

are most likely to believe that their wars are just, and while

the basis of that belief in not necessarily rational inquiry

but, more often, a kind of unquestioning acceptance of

official propaganda, nevertheless they are not criminals;

they face each other as moral equals. [13]

Opposing soldiers have every right to want to kill their opponents, and cannot be called murderers provided that in doing so they, as Walzer terms it, “fight well,” or abide by the rules of war. It is after all a common task of all soldiers—to defeat, and if necessary as part of that process, kill the soldiers from the force that opposes them. To deny this based on a subjective assessment of the cause of those soldiers’ war—a cause that they do not choose—is to deny them the very role that they are called—and in most cases coerced—to fill.

The notion of coercion is important in formulating a Walzerian objection to current U.S. judgments about Al Qaeda foot soldiers. After all, one aspect about their character that has become fairly clear is that they are often motivated by strong religious convictions—that this war somehow involves a defense of their particular brand of Islamic ideals and way of life against the morally bankrupt culture of America and its western allies. These soldiers might very well believe—as all nations do—that their homeland and their particular brand of freedom--must be defended at all costs, and might connect with that aspect of Al Qaeda’s mission only broadly. This sentiment is illustrated by the recent comments of one cleric suspected of harboring Al Qaeda sympathies, who said “I don’t have any link whatsoever with al-Qaeda [sic], but if al-Qaeda’s struggle is for the best interest of Islam, I support it.” Substitute any number of other religious, political, or economic entities for Islam in that statement, and a generalized statement of support emerges that one can hear expressed among nearly any grouping of people who subscribe to a common cause.

Other, more troubling reasons could include the fact that these soldiers could be assembling on the battlefield to escape a bullet to their heads if they resist—or to enable their families to escape a similar fate. Finally, the promise of payment in hard currency is compelling to many as a means to escape the desperate living conditions of places like Afghanistan. Some who are emboldened by the promise of money are mercenaries outright, arriving from other war-torn regions like Chechnya as experienced guns for hire for an organization willing to pay good money for experienced soldiers. Even these ought to be considered carefully, as arguably their ranks are filled “from among desperate and impoverished men,” whose reasons for fighting are perhaps not as stark, but most probably still stem from the coercive conditions of despair, poverty, and hopelessness that undeniably spawn in places like Chechnya. What is clear about all of these factors—religious idealism, despair, patriotic duty, poverty, and others—constitute coercive forces on Walzer’s account. Collectively, these particular Al Qaeda foot soldiers don’t in fact choose for “essentially private reasons” to take up arms against the western forces arriving in their lands; rather, they do so because they feel they must do so. Provided they follow the rules of war, the war they fight is not their war, and judgment about them must incorporate this to be right.

While the truth about the evil of Terrorism is an obvious one, judgments that attempt to paste it onto the actions of rule-following enemy soldiers wrongly blur the jus ad bellum/jus in bello distinction that Just War Theory mandates, and perhaps just as bad, do much to fuel the allegations of U.S. adversaries about the reality of American-style victors’ justice. If Walzer notions about the moral equality of soldiers are right, soldiers—even those rallying under the dubious guidon of “terrorism”—who fight justly deserve just treatment, even if such treatment dampens intelligence-gathering efforts and seems politically precarious. Clearly, upholding a reverence for the innate value of human rights in the most trying of times is a moral mandate for nations like America who weave such imperatives into the very fabric of their national being.

Works Cited

Arena, Kelli. “Lawyer: Dirty Bomb Suspect’s Rights Violated.” CNN.com [newsonline];

Available from http://www.cnn.com/2002/US/06/11/dirty.bomb.suspect.

Internet. Accessed 27 January 2003.

Bush, George W. The National Security Strategy of the United States. In “Full Text:

Bush’s National Security Strategy,” New York Times [news online]; Available

from http://www.nytimes.com/2002/09/20/politics/20STEXT_FULL.html.

Internet. Accessed 20 November 2002.

Cohen, Andrew. “ ’Enemy Combatant’ in Legal Limbo.” CBSNEWS.com Court Watch

[news online]; Available from http://www.cbsnews.com/stories/2002/06/21/news/opinion/courtwatch/main5130 87.shtml. Internet. Accessed 27 January 2003.

“Diluting the Geneva Convention,” New York Times, June 21 2002.

Luban, David. “The War on Terrorism and the End of Human Rights.” In Philosophy

and Public Policy Quarterly, Volume 22, No. 3, Summer 2002 .

Walzer, Michael. Just and Unjust Wars: A Moral Argument with Historical Illustrations,

3rd Ed. (New York: Basic Books, 1977).

NOTES

[1] Kelli Arena, “Lawyer: Dirty Bomb Suspect’s Rights Violated.” CNN.com [news online]; Available from http://www.cnn.com/2002/US/06/11/dirty.bomb.suspect. Internet. Accessed 27 January 2003. Padilla remains locked up indefinitely in a Navy brig in South Carolina with no trial date currently pending.

[2] George W. Bush, The National Security Strategy of the United States. In “Full Text: Bush’s National Security Strategy,” New York Times [news online]; Available from http://www.nytimes.com/2002/09/20/politics/20STEXT_FULL.html. Internet. Accessed 20 November 2002.

[3] “Diluting the Geneva Convention,” New York Times, June 21 200 2.

[4] Andrew Cohen, “ ’Enemy Combatant’ in Legal Limbo.” CBSNEWS.com Court Watch [news online]; Available from http://www.cbsnews.com/stories/2002/06/21/news/opinion/courtwatch/main513087.shtml. Internet. Accessed 27 January 2003.

[5] David Luban, “The War on Terrorism and the End of Human Rights.” In Philosophy and Public Policy Quarterly, Volume 22, No. 3, Summer 2002 , 10.

[6] Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3rd Ed. (New York: Basic Books, 1977), 27.

[7] “Rules of War” is Walzer’s general reference to the Laws of Armed Conflict, though he includes and often intends also reference to the moral precepts behind those laws in addition to the laws themselves. In this case, I specifically intend warriors’ rights to include provisions in place in the event of capture and/or imprisonment—what Walzer refers to as “benevolent quarantine.”

[8] Walzer, 27.

[9] Ibid, 127-8 and 138. This is the first tenet of Walzer’s “War Convention,” which prescribes the moral distinction between combatants and noncombatants.

[10] Luban, 10.

[11] The National Security Strategy of the United States. In “Full Text: Bush’s National Security Strategy,” New York Times [news online]; Available from http://www.nytimes.com/2002/09/20/politics/20STEXT_FULL.html. Internet. Accessed 20 November 2002.

[12] Ibid., 12. Luban remarks that calling the U.S. response to 9/11 a “war” on terrorism obscures further the moral point about captured Al Qaeda soldiers’ rights. Making it a war enables the sense of urgency and risk to elevate far beyond that of normal criminal threats, and allows the authorities at hand to abolish rights with near-impunity.

[13] Walzer, 127.