“American Pre-emption, Trinitarian and Nontrinitarian War, and Justice”

Lieutenant Colonel T. S. Westhusing[1]

Academy Professor, USMA

“American Pre-emption, Trinitarian and Nontrinitarian War, and Justice”

I. American War: “Bald Fornicators” in the Dance of Death.[2]

In his highly influential, celebrated work, Just and Unjust Wars, Walzer uses the central dilemma of war, that of winning or fighting well, as a fulcrum for analyzing the most important issue for war and justice. That issue is the moral justification for disregarding the war convention in the name of victory. The historical example he cites in this all-important dilemma is an obscure Chinese figure from 2600 years ago, the Duke of Sung. The Duke of Sung was willing to pay absolute homage to his sense of aristocratic honor, even if by so doing he, his army, and his cause were destroyed. Mao Tse-tung, as Walzer emphasizes, derided such a solution to this dilemma as “‘asinine ethics’”; “‘we are not the Duke of Sung’” (Mao Tse-tung as quoted by Walzer, 1977: 226). Conceiving this disjunct exclusively, Mao in contrast to the Duke of Sung sides with winning, thereby setting aside the war convention if it conflicts with that ultimate goal.

But, of course, the disjunct between winning (the Jus Ad Bellum issue) or fighting well (the Jus In Bello issue) might be conceived inclusively, too. A third option may exist in addition to the two of winning (Mao), and fighting well and losing (the Duke of Sung)--namely, fighting well and winning. Much of Walzer’s vast influence on American warfighting might indeed be best understood as justifying the very real possibility--if not necessity--of this third option. But Walzer also recognizes the need to address the hard cases where Jus Ad Bellum and Jus In Bello do necessarily conflict, where adherence to the war convention prevents the just side from winning. Such is the limiting case where the exclusive sense of the disjunct may in fact be the only true characterization of a particular case or type of war.

He considers four different solutions to this conflict of justice. Controversially, Walzer defends his fourth option: “Supreme Emergency.” “The convention is overridden, but only in the face of an imminent catastrophe” (Walzer 1977: 231-232). He argues forthrightly against Mao: “with reference to our own conventions, and until the very last minute, we are all the Duke of Sung” (Walzer 1977: 232).

It is now time to re-think Walzer’s solution and scheme of war’s justice. Doing so will shed light concerning the direction in which the most important principle of war, justice, must evolve. Because justice must drive and inform all subsidiary warfighting principles, analysis of its evolutionary change must be the foremost theoretical concern. Walzer’s solution is now simplistic and out of date, today applicable only to trinitarian war and its justice. Given evolutionary turns to new forms of war, his solution fails to deliver for the most likely nontrinitarian forms of war in the near future.

Consequently a fifth solution requires defense, a defense that then provides the architectonic characterization of American warfighting today and its normative and epistemic principles of war.[3] Given the American democratic tradition of “decisive victory”; the rise of nontrinitarian war (defined as war fought not by an army on behalf of a people nor directed by some form of government for one or both sides in the war); the probable spread of Weapons of Mass Destruction (WMD) beyond the control of nation-states into the hands of non-state actors or rogue states[4]; and our role as the sole remaining superpower, this paper defends a uniquely American answer to the central dilemma between Ad Bellum and In Bello. The answer is this: “with reference to our own conventions, and at any time, some Americans (political or military authorities) cannot be Dukes of Sung.” Such an answer is the most dramatic change to the principles of war in 228 years of American martial history.

Walzer’s solution fails to acknowledge properly the American warfighting tradition’s goal of “decisive victory,” not just victory, or “success,”as the Ad Bellum criterion of “likelihood of success” blandly puts it. Walzer’s solution to the central dilemma of war also inadequately accounts for the effects of nontrinitarian war blurring the distinct Clausewitzean lines between a nation-state’s government, its people, and the army. This will be the most vexing form of warfare fought by the American people and friends in the Twenty-First Century. Thirdly, Walzer does not account for WMD in the hands of non-state actors or rogue nation-states, a possibility which must be acknowledged and properly accounted for in any realistic normative account of American warfighting. This requirement is especially true since the most likely next use of WMD will occur within the U. S. from the hands of a non-state adversary or rogue nation-state.

Today’s answer to Walzer’s dilemma is both the most realistic and the best solution because it serves as the true formal cause, thus justifying all subsidiary principles of war. It is most realistic in that it reflects the facts of “decisive victory” as American warfighting policy and the rise of nontrinitarian war associated with the possibility of a WMD threat. And it is the best solution, for it also most reasonably reflects the American hierarchical structure of the three accepted warfighting final causes for the sake of which “decisive victory” is sought. These more general final ends ultimately justify the prescriptive structure of that same American warfighting activity captured by this fifth solution to Walzer’s dilemma of war. The three final ends informing the norms in American warfighting are in order of abstraction: 1) the country and people of the United States, 2) the U. S. Constitution and the values embodied within it, and 3) international peace.

These three ends are related in this way. The American warfighting architectonic end is “decisive victory” against all enemies, foreign and domestic. “Decisive victory” is sought both for its deterrent value and to eliminate those foreign, external threats to the safety of the American people and friends. At a deeper level, it is also sought because American military strategy recognizes the twin dangers inherent within the paradoxical logic of war[5]: culmination and reversal. “Decisive victory” must be for the sake of the flourishing of those same people within the values, institutions, individual rights, and collective rights framed within the U. S. Constitution. Security is therefore only an instrumental good for the sake of the distinctly unique communal flourishing found in the U. S. Finally, such flourishing of the American people within this constitutional, normative framework is itself, one might reasonably argue, ultimately justified only for the sake of the peace and prosperity of all nation-states and peoples in the world.

There are domestic, internal threats to the American democratic way of life from war, too, justifying “decisive victory” in American warfighting. Alexis de Tocqueville was not alone in emphasizing eloquently the domestic threat that war poses to democratic nations.[6] Power has a natural tendency to centralize unless checked by independent social authorities. In war, that centrifugal tendency is magnified because of the threats and fears war engenders, both real and apparent. De Tocqueville also perceptively recognizes the subtle effects of war on democratic peoples’ habits in the direction of despotism. By quickly concluding war with finality, a doctrine of “decisive victory” seeks to minimize these twin domestic threats to democracy inherent in the nature of war.

The third, and equally dangerous, domestic threat to democracies at war is the distinct possibility of war driving a wedge between the people and army. Clausewitz emphasizes the “paradoxical trinity” existing between government, army, and people. If a government directs its army in policies unreflective of the wishes of the people, disaster often ensues within that Clausewitzean trinity. Mao Tse-Tung wrote that the surest way to win war (a hard lesson the U. S. learned in Vietnam) is to separate the enemy army from its people. The most effective way to strengthen the bond between an army and its people is for the army to provide its people with a decisive, indubitable victory.[7]

II. Characterizing American “Decisive Victory.”

“Providing an intellectual framework for how we [the U. S. military] operate” (Department of the Army 2001: 2), the capstone

U. S. military document begins in this way: “Army forces are the decisive component of land warfare in joint and multinational operations” (Department of the Army 2001: 1-2, emphasis mine). In his preamble to this document, then-Army Chief of Staff Shinseki emphasizes that “we want to win--decisively” (Department of the Army 2001: 1-2, emphasis mine). As the primary land component element to the joint warfighting team, the U. S. Army puts its warriors in the mud decisively.[8] It thereby synchronizes its primary decisive asset, infantrymen, with sister services, each similarly stressing “decisive victory” for U. S. military operations. How precisely then must such ‘decisive victory’ be achieved?

Successfully applying the operational art of war means successively

posing various dilemmas for adversaries, forcing them to choose the relatively best of two bad courses of action. Once the adversary is put astride a dilemma, the commander must continue to pin his adversary rapidly astride a further series of dilemmas, while preventing his own choices from being similarly constrained.[9] That is what General Shinseki meant by gaining and retaining the initiative (Department of the Army 2001: Forward). The conditions for decisive victory are set when a commander succeeds in fixing his adversaries upon horns of dilemma so sharp and with such rapidity that his enemies are unable to extricate themselves.[10]

At all three levels of war, the strategic, operational, and tactical, commanders must find, fix, and destroy their enemies by nailing them astride these horns of dilemma. The decisive destruction, however, normally takes place only at the tactical level. It is worth a brief look at how U. S. doctrine sees that best done.

The most basic doctrinal battle drill, “react to contact,” is emblematic of the decisive effects to be sought at the tactical level, ultimate effects which are furthermore sought at every level of war. Reacting to contact inevitably succeeds if the element first in contact immediately gains and maintains fire superiority. The leader must then continually maintain control of the situation by mastering its battle space information and by communicating it through his chain of command. He must finally take advantage of the paradoxical logic of war by maneuvering an element of his force from an unexpected direction to close with and destroy the enemy. Such is the essence of tactical success in trinitarian war.

But in nontrinitarian war (where the distinction between combatant and noncombatant is often blurred) this reliance on drill for creating decisive fire and maneuver, or the use of even the most precise weaponry, cannot succeed for achieving “decisive victory.” Drill cannot succeed primarily because the unreflective, immediate and overwhelming fires sought and honed through it cannot readily distinguish between combatant and noncombatant. Nor, for that matter, can Precision-Guided Munitions (PGM) succeed, even when skillfully employed, because battlefield chance is ineliminable. There must then exist both different tactics for trinitarian and nontrinitarian wars as well as differing prescriptive guidelines for the employment of fires, prescriptions most often captured in the form of Rules of Engagement (ROE).

III. Moral Prescriptions Within American Trinitarian and Nontrinitarian War.[11]

Today there are four acceptable moral justifications for the American engagement in war: as a form of law,[12] as a means for ensuring communal existence, as a form of justice, and as politics by other means. All four can be understood to be with American moral prescriptions about war in the following way.

These four broad moral justifications for war inform in more specific ways four moral factors influencing American warfighting. These more precise and relevant factors governing the formulation and application of military force throughout the spectrum of U. S. military operations are: the Just War Tradition; the exigencies or functional requirements of the American profession of military service understood as “decisive victory”; the fundamental values of the society engaged in its particular form of war at some point in the use-of-force spectrum; and the international Laws of War (Hartle 1989: 35).

U. S. officers execute their moral and epistemic obligations within the framework of two important contractual acts, 1) the oath of office, and 2) the officer’s commission, or warrant. Officers are therefore themselves obligated both to act consistent with those same Constitutional values and principles and to achieve “decisive victory” as determined by the ends sought by civilian authority. Rights talk and moral principle provide two convenient ways for understanding the constraining and informing values represented by the U. S. Constitution.

There is thus an important moral sense of contractualism at play in these twin obligations to support and defend the U. S. Constitution and to obey the orders of the chain of command, including the civilian authority. This contractualism is also present in the American warrior’s allegiance to the various international laws governing warfare as justified by Article VI, Clause 2 of the Constitution. This contractual mechanism is supported by the Just War Tradition’s regulative ideal that it is contradictory for the warrior to harm other innocents intentionally in order to protect innocents. Together, both issue forth in several uncontroversial moral principles. Within any American military operation, in any military conflict however characterized (whether trinitarian or nontrinitarian), the American warfighting ethos recognizes and enforces five moral principles. Each is consistent with all four factors (the Just War Tradition, the exigencies of the warfighting profession, the Law of War, and the U. S. Constitution) influencing American warfighting and the contracts embodied by the officer oaths. These Moral Principles (MP) are: MP1: “It is wrong to harm innocent human beings intentionally”; MP2: “One is sometimes obligated to protect innocent human beings from harm” (Christopher 1994: 173); MP3: “Human suffering ought to be minimized” (Hartle 1989: 71); MP4: “A combatant always maintains the right to self-defense”; and MP5: “Commanders are always obligated to protect subordinates under their care.” The interplay of these moral principles for the preeminent American warfighting task of winning decisively within trinitarian war is represented by the following schematic, Figure 1.[13]

Figure 1: The Two Levels of U.S. Trinitarian War and Justice

The Two Moral Principles (MP) operative in Jus Ad Bellum: MP1: We should never intentionally harm innocents; MP2: We should sometimes protect innocents.

Level 1 (Strategic Level of War): The Critical Level (Primarily a Political Responsibility for Decisive Strategic Outcomes).

Jus Ad Bellum (JAB): MP2 can override MP1.

Decisive War? MP2 overrides MP1. No decisive war? MP1 overrides MP2. Employ these decision-making criteria to justify decisive war:

1. Just Cause (understood in terms of moral ends justifying decisive war).

2. Proportionality (P1) Good achieved by political ends of decisive war > suffering from decisive war.

3. Legitimate Authority.

4. Publicly Declared.

5. Decisive Outcome to War Likely.

6. Right Intention.

7. Last Resort.

------------Moral Independence of JAB and JIB---------- –

Level 2 (Operational and Tactical Levels of War): Intuitive Level (Principally a Military Responsibility for Decisive Operational and Tactical Outcomes).

Jus In Bello (JIB): MP1 always overrides MP2.

JIB1: Discrimination[14] (Intentional Harm).

-JIB1 justified by MP1: We should never intentionally harm innocents.

-ROE: Whom to harm? Combatant.

or

Whom not? Innocent, Prisoner, or Detainee.

Unintentional Harm?

Principle of Double Effect applies. A Practical Rule. Double Effect is:

1) Bad effects are unintended.

2) Proportionality (P2): Good achieved by military objective > bad effects, e.g., suffering of innocents (to include collateral damage to cultural artifacts/buildings, etc.).

3) Bad effects cannot be direct means to good effect.

4) Due Care. Military must minimize bad effects even if doing so entails risk to combatants.

JIB2: Proportionality (P3): Good achieved by military objective > suffering of combatants.

-JIB2 justified by MP3: We should minimize human suffering.

-ROE: How to harm? Weapon limits, minimize friendly casualties and (where possible) enemy casualties.

Within trinitarian war, this model of justice agrees with Walzer’s solution to the central dilemma of war.[15] Those Americans who cannot be Dukes of Sung within war are only strategic policymakers--at the point of extreme necessity alone.[16] Under the force of utilitarian calculation, the U. S. civilian leadership must be prepared to override moral principle at only such points. All other American warriors, however, must always remain ‘Dukes of Sung’ unless required to be otherwise by political authority.

III.1. Moral Prescriptions Within American War (Con.): Nontrinitarian War.

The dominance of all elements of U. S. national power--economic, cultural, political, and military--coupled with our explicit reliance on “decisive victory” as the national warfighting strategy have not gone unnoticed by our adversaries.[17] American trinitarian military dominance is now uncontroversial and universally acknowledged. Such dominance results from a vast military budget, technological edge, and the moral forces arising from training advances and the All Volunteer Force.

Adversarial responses have been to seek asymmetrical ways of countering this dominant warfighting capability.[18] The most obvious weakness is the one value the U. S. treasures the most--American innocent life within a free and open society. Therefore it is not unsurprising that the greatest asymmetrical threat to the U. S. today is the intentional targeting of American innocent life, using American freedoms as attack leverages. The most likely forms of war in the future will involve non-state actors striking American civilians from the sanctuary of failed nation-states or from behind the veils of rogue nation-states surreptitiously condoning such activities. And the most dangerous threat to the U. S. in the future will be the use of WMD by such non-state actors or rogue nation-states against the civilian populace.

So three forms of nontrinitarian war appear most likely to require the employment of U. S. military power in the foreseeable future. They are stability operations in the form of 1) peacekeeping operations; 2) peace enforcement operations; and 3) counter-terrorism operations against non-state actors and rogue nation-states possessing WMD. These forms of nontrinitarian war require a different prescriptive model than that for American trinitarian war, a model perhaps until now unrecognized.

The differences between these two models are five, two within Ad Bellum and three within In Bello. This new nontrinitarian model is pertinent only to considerations involving deployment of U. S. Forces abroad in stability operations (peacekeeping or peace enforcement operations); counter-terrorism operations; or operations against rogue nation-states. The Two Levels of Trinitarian War and Justice model (Figure 1) still applies at the higher end of the use-of-military-force spectrum.

1) An additional criterion of “Due Risk” [Self-defense ROE must be at least consistent with the U. S. Department Of Justice (DOJ) self-defense ROE baseline] is added to the Ad Bellum deliberative strategy employed by political leaders. In determining policy involving deployment of military forces abroad--either in stability operations with intensive law enforcement responsibilities or in stability operations, which because of political sensitivity may require more restrictive ROE, “Due Risk” must be considered. The use of deadly force standards employed domestically by DOJ’s FBI must serve as the minimum baseline standards employed abroad by our military ROE–-when involved in similar law enforcement operations.[19] Any deviation from those standards must be a factor considered by political authorities, of equal weight to the traditional seven Ad Bellum criteria.

2) Because of the capacity and increasing probability of non-state actors or rogue nation-states employing WMD or threatening their use against the U. S., the moral permissibility of anticipatory strikes against such threats must be recognized. Such WMD use or threat of use against the U. S. would constitute a war of existence for the American nation-state. Therefore such a possibility demands modification of the Ad Bellum criterion of “last resort,” permitting anticipatory strikes to eliminate possible non-state actor or rogue nation-state WMD use or threat.[20]

Wars of existence carry weightier concerns than any other justification for war. These wars explode the trinitarian conception of war as some non-arbitrary cooperative activity between people, state, and army. Wars of existence also make the means-end distinction, implicit in understanding war as a continuation of politics, absurd. If a war of existence is lost, the community as the end presupposed by, and on whose behalf the war is fought, will no longer exist. Michael Walzer characterizes wars of existence as involving the threat of an “immeasurable evil” (Walzer 1977: 259), posing “disaster for a political community” (Walzer 1977: 268). His paradigmatic example is the Nazis, seemingly bent on the wholesale subjugation and slaughter of entire human communities throughout Europe.

Generally construed as indiscriminate nuclear, biological, or chemical weapons of horrendous effects, WMD as instruments of unimaginable slaughter pose further special problems for this kind of war.[21] The use of WMD invariably prompts incalculable fear within the targeted social group. WMD use, if not the capability and threat of its use, therefore inevitably creates the perception, if not reality, of a war of existence.

Imagine the following scenario and its impact on American communal existence and the interconnected global economic community today. Instead of one nuclear device, Al Qaeda manages to acquire two. Or Al Qaeda manages to get its hands on smallpox or a quantity of serin gas. Usama Bin Laden succeeds in a surprise detonation of one in a large metropolitan area within the U.S. Or perhaps he unleashes smallpox in a metropolitan area or manages to secret serin within a crowded building or elementary school. He then appears, live, on Al Jazeera television. He announces responsibility for the nuclear, biological, or chemical devastation. He follows that horrific announcement with the report that he also has a second nuclear device, biological toxin, or chemical weapon prepared for some other unnamed American city. Making a host of demands, he then holds the American government and its way of life hostage for an excruciatingly long period of time before unleashing a second WMD on an American city, school, or building.

Finally, he follows this second strike with more threats, throwing the entire country (and global economic systems) into chaos. While extreme, such a doomsday scenario is not outside the realm of possibility in the near term. IT is also certainly the most dangerous possibility we currently face. It would be a war of existence for the U.S., as even the most skeptical must agree. It would entail an immeasurable evil and disaster for the American political community, and, by extension, the global economic community. It must never happen. Through the continued political will to confront terror on its home turf, as only America can, we may be confident it will not.

3) Self-defense is an integral part of the force protection obligation of commanders. It is even more important in stability operations because domestic public support for such deployments depends in large measure on how well commanders protect the deployed force. The inviolable individual right to self-defense moral principle (MP4) must consequently be included and considered in any consistent moral judgment made by military leaders and subordinates within In Bello.

4) One of the more important responsibilities commanders exercise is to care for the citizens entrusted to them. They demonstrate such care by artfully managing the degree to which they put those citizens at risk in the performance of their combatant duties. This In Bello ‘due risk’ is represented by MP5, “commanders are always obligated to protect subordinates under their care” (Dubik 1982). It is a commander’s military responsibility to safeguard the lives entrusted to him. No combatant lives are to be wasted frivolously or wantonly.

Finally 5), the threat of WMD in the hands of non-state actors or rogue nation-states requires an additional adjustment to the Principle of Double Effect within In Bello. Walzer argues persuasively that because of the preeminence of MP1, the obligation never to harm innocents intentionally, warriors must take additional steps, even at risk to themselves, to preclude unintentional innocent death. With the increased probability of WMD falling into the hands of non-state actors or rogue nation-states (White House September 17, 2002: 10-13), however, the risk to innocent lives from these weapons far outweighs the benefits to be gained by putting at greater risk combatants seeking to prevent such WMD use. Thus moral prescriptions within nontrinitarian war require deleting the “due care” criterion within Double Effect only for those warriors (joint special forces) who might be involved in decisive operations against the non-state actor or rogue nation-state WMD threat. These five revisions to the trinitarian prescriptive model result in The Two Levels of Nontrinitarian War and Justice Model (Figure 2).[22]

Figure 2: The Two Levels of Nontrinitarian War and Justice (For Stability and Counter-Terrorism Operations)

(On This and the Following Page)

Both Moral Principles (MP) MP1, “We should never intentionally harm innocents” and MP2, “We should sometimes protect innocents” remain operative.

Level 1: Critical Level (Primarily a Political Responsibility for Strategic Decisive Outcomes)

Jus Ad Bellum (JAB): MP2 can override MP1.

Deploy decisively? MP2 overrides MP1. Do not deploy decisively? MP1 overrides MP2. Policymakers employ these decision-making criteria to justify decisive deployment in support of stability or counter-terrorism operations:

1. Just Cause (understood in moral terms justifying decisive deployment).

2. Proportionality (P1): Good achieved by political ends of decisive deployment > suffering from decisive deployment.

3. Legitimate Authority.

4. Publicly Declared.

5. Decisive Outcome Likely.

6. Right Intention.

7. Last Resort (anticipatory strikes justified against non-state

actor or rogue nation-state WMD threat).

8. Due Risk (Self defense ROE must be at least consistent with the

DOJ baseline).

----------------Moral Independence of JAB and JIB-----------------

Level 2: Intuitive Level (Principally a Military Responsibility for Decisive Operational and Tactical Outcomes)

(Please See Figure 2a on Next Page)

Figure 2a: The Intuitive Level of Nontrinitarian War and Justice

Level 2: Intuitive Level (Principally a Military Responsibility for Decisive Operational and Tactical Outcomes)

Jus In Bello (JIB): MP1 always overrides MP2, MP3, MP4, and MP5.

JIB1. Discrimination (Intentional Harm)

-JIB1 justified by MP1: We should never intentionally

harm innocents.

-ROE: Whom to harm? Combatant.

or

Whom not? Innocent or Prisoner.

Unintentional Harm?

Principle of Double Effect applies. A Practical Rule. Double Effect is:

1) Bad effects unintended.

2) Proportionality (P2): Good achieved by military objective > bad effects, e.g., suffering of innocents (to include collateral damage to cultural artifacts/buildings, etc.).

3) Bad effects cannot be direct means to good effect.

4) Due Care. Military must minimize bad effects even if doing so entails risk to combatants. Due care dropped for elite forces involved in countering WMD threat from non- state actors.

JIB2: Proportionality (P3): Good achieved by military objective > suffering of combatants.

-JIB2 justified by MP3: We should minimize human suffering.

-ROE: How to harm? Weapon limits, minimize friendly casualties and (where possible) enemy casualties.

JIB3: Self-Defense: Soldiers involved in peace operations abroad should have the same standards for the use of deadly force in self-defense as those employed by law-enforcement officials within the state.

-JIB3 justified by MP4: A combatant always retains the right to self-defense.

-ROE: “Objective Reasonableness Standard.” R-A-M-P.

JIB4: due risk: Commanders are always responsible for force protection.

-JIB4 justified by MP5: Commanders are always obligated to protect subordinates under their care.

-ROE: Force protection. ROE training.

Within nontrinitarian war, there must be American warriors seeking “decisive victory” who cannot be Dukes of Sung. They are the elite joint forces falling under U. S. Special Forces Command (U. S. Army Special Forces, Rangers, and Task Force 160 Army aviators, Delta Force, SEALs, Air Force strike aircraft, and Air Force Special Tactics Teams) who are likely to be involved in defeating the non-state actor or rogue nation-state WMD threat. The urgency and stakes of their mission require a different principle of Double Effect. Likewise, the non-state actor or rogue nation-state WMD threat justifies anticipatory strikes authorized by U. S. political authorities--at any time. Our political authorities thus can never be Dukes of Sung since the slaughter of 9/11 because non-state actors have now demonstrated both the capability and intent to harm as never before.

IV. Prudence and Jus Ad Bellum and Jus In Bello.

Whitehead said, “Every method is a happy simplification. But only truths of a congenial type can be investigated by any one method, or stated in terms dictated by method. For every simplification is an over-simplification . . . . [a theory] is an unguarded statement of a partial truth” (Whitehead, Adventures of Ideas, as quoted in Verene 1997: 223-224). Just War Theory today often simplifies--and achieves only its partial truth--by not paying proper heed to historical fact. History thus becomes often relatively unimportant for the Just War theorist. Because she may often believe in the theoretical justificatory power of her employed scheme, a Just War theorist may naively think that moral certainty obtains without recourse to acknowledging the past in any serious way. If, on the other hand, the theorist does take history seriously, she may resort to something less than a compelling historical understanding. Instead of determining the truth of historical claims, for example, she may often resort to hypostatizing historical descriptions in order to make consistent her theoretical points. Walzer suggests as much in the following:

Since I am concerned with actual judgments and justifications, I shall turn regularly to historical cases. My argument moves through the cases, and I have often foregone a systematic presentation for the sake of the nuances and details of historical reality. At the same time, the cases are necessarily sketched in outline form. In order to make them exemplary, I have had to abridge their ambiguities. In doing that, I have tried to be accurate and fair, but the cases are often controversial and no doubt I have sometimes failed. Readers upset by my failures might usefully treat the cases as if they were hypothetical--invented rather than researched--though it is important to my own sense of my own enterprise that I am reporting on experiences that men and women have really had and on arguments that they have really made. (Walzer 2000: xxii)

History properly understood, however, must always pay heed to ambiguity, to the uncertainties, fears, subjective assessments--to all that makes history the devilish enterprise it is. A moral philosopher should no more invent history than he should posit philosophical “states of nature” to represent reality. It is therefore no surprise that respected historians have rightly taken Walzer to task for his account of the historical cases he presents (Vietnam and WW II’s Pacific Theater, among several notorious treatments). In sum, Walzer is not a historian, one who searches diligently for the proper facts, causal chains, and universal features that might best explain why an event occurred rather than not.

History is not the only moral feature often slighted my today’s Just War theorist. A similarly disappointing move is made with regard to prudence and how it is now construed.[23] It is the decisive and essential virtue for those deciding when to engage in war and when not, a decision which is always the most important one for any political leader. Without prudence, Just War theory is worthless. Yet its importance is hardly acknowledged in Just War theory today. It was Kant’s conception of practical reason that relegated prudence to its modern, imperfect state. Today’s prudence is thought of as an inferior way of human conduct. It is to be pursued only if the rationality of the categorical imperative (or Just War Theory or Walser’s Legalist Paradigm) cannot be achieved. Kant understood prudence to have two senses, one sense with reference to the things of the world and another private prudence. The former means the skill of a person to influence others and thus to use them for his own purpose. The latter is the individual’s skill in uniting all of these purposes for the individual’s advantage. Kant argues that the worth of the first is ultimately reduced to the latter, so that one who is prudent in the former sense but not in the latter is “clever and cunning” yet, on the whole, imprudent (Kant 1989: 32-33; Verene 1997: 130-131).

Kant’s understanding of prudence is not how it was traditionally conceived. At one time it was the preeminent virtue of all virtues, intellectual or moral, and therefore critical for the moral life. Aristotle, for example, conceived prudence as right deliberation for both the good of the individual and the common good. Clausewitz, too, acknowledged the importance of prudence for policy-makers. “He [Clausewitz] refers to policy-making, for example, as more than a mere act of intelligence or the product of pure reason: it is ‘an art in the broadest meaning of the term--the faculty of using judgment to detect the most important and decisive elements in the vast array of facts and situations’” (Clausewitz as quoted in Echevarria 1995-96: 2). To deliberate rightly in these ways requires both a knowledge of what is noble and base and wisdom and memory of the past. “To deliberate is to foretell through contemplation.” (Verene 1997: 232). It is to be capable of narrating what is really at issue in terms of time. Such narrations require a knowledge of the past, present, and the most likely possibilities of the future. Without knowledge of the past, one can only act imprudently (Verene 1997: 232).

The transformation of prudence as it was classically understood is also seen in the way the justice of war is now understood. The traditional seven justice of war (Jus ad Bellum) criteria (Figures 1 and 2) are now construed much differently than before. Today, most Just War theorists conceive these seven as moral criteria in the form of a conceptual theory: a war is just if and only if all seven criteria are met. Within the Just War Tradition, on the other hand, only the first four (just cause, proportionality, legitimate authority, and right intention) were ever first understood as moral criteria in the modern sense. The others (reasonable chance of success, public declaration of war, and last resort) were always thought to be prudential criteria in the traditional sense. These four were necessarily important for the political leader to acknowledge in his deliberative strategy. But in no way were they moral criteria in the modern sense of possessing the same status as the first four. Instead, their purpose was always understood to serve as a guide for wise or prudent action, the completely natural action. It is the same type of action that the Chinese classic Tao Te Ching (The Way and Its Power) describes as wu wei, “actionless action,” or the art of the sage (Lao Tzu 1958: Chapters II, III, X, XXXVII, and XXXVIII; Vrene 1997: 235). This task of prudence is to remain in accord with the nature of things. To do that, the sage ruler must wisely know the nature of things (past, present, and future) so that he can foretell. Colin Powell often speaks of this knowledge as “the ability to see around corners.” This unique capacity relies foremost on memory and its lucid grasp of history (Verene 1997: 235). While in morality we rightly praise the maxim “ought implies can” for moral justification, we have seemingly forgotten the equally compelling maxim that “prudence implies a knowledge of history” for wise, prudent action, or wu wei.

The Just War Tradition always placed great emphasis on prudence until its status of “tradition” became transformed into “theory.” With its emphasis on prudence, the Just War Tradition had been perhaps most influential in the West both as a justification for war and as an important constraint on religious war. Its influence was greater precisely because it achieved distance between itself and the religious wars from which it originated. he Just War Tradition sought to make explicit constraining virtues, values, and moral principles operative within war as a practice. These virtues, values, and moral principles could then be understandable by human reason alone without aid of divine dispensation.

The subsequent distance the Just War Tradition thus achieved from its religious war ancestor was crucial. Its distance enabled this tradition to provide moral guidelines capable of being embraced universally by disparate cultures. This distance from religious forms of justification is most noticeably felt in this way. Unlike religious wars, “the principal intention of just war thought is to serve as a source of guidelines in making relative decisions” (Johnson 1981: xxxiii). Religious wars are fought within a background of divine, absolute shades of black and white. Just wars, on the other hand, acknowledge a background of shades of grey, thus reasonably permitting only the justification of relative moral decisions.

A just war is perhaps then best conceived as a “justifiable war” (Johnson 1981: xxxiv). This adjectival use of “justice” nicely captures the sense of relativism implicit in war understood as a continuation of justice. Both sides in war may in principle share shades of injustice concerning the justice of war. Likewise, either side or both might violate moral principles or act unjustly during the conduct of war. Paul Christopher fruitfully captures these two realms of war’s justice by the abstract interplay of two foundational moral principles. They are 1) the positive obligation that “one is sometimes obligated to protect innocent human beings from harm,” and 2) the negative proscription that “it is wrong to harm innocent human beings intentionally” (Christopher 1994: 173; See Figures 1, 2 and 2a of this paper). But without a highly refined sense of prudence, the successful and just judgment of this abstract interplay will never be achieved.

V. Conclusions.

This paper gives a much more robust account of the evolving, preeminent principle of war, justice while paying proper heed to prudence traditionally understood. Developing the way American warfighters seek to achieve “decisive victory” and the moral and epistemic prescriptions at play to that end are critical for this important reason. Such an account more adequately grounds American warfighting, its true warrior functional description, and its justice. American warfighting doctrine mandates a final cause of “decisive victory.” “Decisive victory” serves as the military means for maintaining security within our country, for the defense of the Constitutional values enabling the flourishing of the American people, and for international peace and prosperity. Properly understanding the role of “decisive victory” in American warfighting, fully grasping newer forms of warfare, and acknowledging the continuing importance of the traditional virtue of prudence give then a truer, and more nuanced, view of war and justice.

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NOTES

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[1] The views expressed in this paper are those of the author and do not reflect the official policy or position of the Department of the Army, Department of Defense, or the U.S. Government.

[2] “Bald Fornicator” was the moniker affectionately given to Caesar by his legions. Perhaps it could also be applied to Dwight Eisenhower, who beneath his seemingly simple-minded and frank persona possessed a certain “slyness, even guile.” A certain rakishness seems to be necessary for success in battle amidst the deceptions, surprises, and the paradoxical logic at play within it (Creveld 1991: 122).

[3] Epistemic principles are those features of warfighting rationality enabling successful practitioners of the warfighting art to excel and win.

[4] The current National Security Strategy (White House September 17, 2002: 10-11) describes the “emergence of a small number of rogue states” that share a set of “attributes”: 1)“brutalize their own people and squander their national resources,” 2) “display no regard for international law,” 3) “are determined to acquire weapons of mass destruction . . . to be used as threats or offensively . . . ,” 4) “sponsor terrorism around the globe,” and 5) “reject basic human values and hate the United States.”

[5] “It [the paradoxical logic of war] often violates ordinary linear logic by inducing the coming together and even reversal of opposites, and it therefore, incidently, tends to reward paradoxical conduct while confounding straightforwardly logical action, by yielding results ironical if not lethally self-damaging (Luttwak 1987: 5). Results can be ironical in that they may produce consequences that from a commonsensible point of view are the opposite of what is expected. Those same results might be lethally self-defeating as well. Self-defeat may arise when the paradoxical choice does not result in the requisite surprise sufficient to overcome the necessary decrease in combat power that most often accompanies such a choice.

[6] “War must invariably and immeasurably increase the powers of civil government; it must automatically concentrate the direction of all men and the control of all things in the hands of the government. If that does not lead to despotism by sudden violence, it leads men gently in that direction by their habits” (de Tocqueville 1969: 650).

[7] And its inability to produce “decisive victory” can have profound effects on the Armed Forces as an institution, too. “. . . but if the Army’s experience in Vietnam teaches any lesson it is that no armed service no matter how well trained, equipped, and led can continue indefinitely to fight a meaningless war for which it can perceive neither compelling necessity nor hope of success” (Spector 1986: 185).

[8] The opening historical vignette to FM 3.0 is this: “[Y]ou may fly over a land forever; you may bomb it, atomize it, pulverize it and wipe it clean of life--but if you desire to defend it, protect it, and keep it for civilization, you must do it on the ground, the way the Roman legions did, by putting your young men into the mud” (Fehrenbach 1963: 427).

[9] The warfighting slogan from OPERATION IRAQI FREEDOM is apt: “speed kills.”

[10] “Targeting Terror: Killing Al Qaeda the Right Way” provides one explanation for how General Franks may have demonstrated his intellectual capacity of initiative during Operation ENDURING FREEDOM, 2001-2003 (Westhusing 2002: 132-133).

[11] The following account of the moral prescriptions within American trinitarian and nontrinitarian wars is largely drawn from “Taking Terrorism and ROE Seriously” (Westhusing 2003).

[12] The legal justification is the most constraining, permitting war in only three instances--self-defense in accordance with Article 51, via Security Council Resolution in accordance with Article 39, and for humanitarian intervention, also in accordance with Article 39.

[13] There are three additional interpretive points worth acknowledging in this trinitarian war model. First, three differing forms of proportionality are operative herein--one (P1) within Ad Bellum and two (P2 and P3) within In Bello. Within In Bello, one (P2) concerns Double Effect, which weighs the good of the military objective sought versus the suffering of innocents, while (P3) balances the good sought from the military objective with the suffering of combatants. Because P1 operates on a different and higher prescriptive level than P2 and P3, P1 subsumes both P2 and P3 and thus does not conflict with them. And since P2 and P3 range over different classes of individuals (innocents versus combatants) and since P2 always takes precedence over P3 within In Bello, these senses of proportionality are not inconsistent.

Second, in extreme cases, MP2 might override MP1 within in Bello. A ‘just’ war might therefore not be decisively won by precisely following the prescribed Laws of War and the moral principles justifying them. One can imagine a case of extreme necessity wherein American policymakers might direct the intentional harm of innocents as the only means to victory. Another case of extreme necessity may concern whether and when torture may ever be employed to extract information from detainees. Policymakers in such cases of extremity must return to the critical, strategic level and employ the same Ad Bellum criteria to justify overriding these In Bello laws or moral principles. In such cases, In Bello might therefore become a function of Ad Bellum. Finally, if in extremity, American forces cannot distinguish between combatant and innocent, then decisive war in such a limiting case may be unjust. One might imagine situations (most likely within nontrinitarian wars) where American warriors would be unable to distinguish between combatant and noncombatant--where the dominant, overriding perception might just be that everyone is a threat and therefore a combatant. Jus Ad Bellum might therefore become in such cases a function of Jus In Bello.

[15] The traditional just war theorists, St. Ambrose, St. Augustine, and St. Thomas Aquinas, have informed this model’s general outlines of Jus Ad Bellum (JAB) and Jus In Bello (JIB). Later theorists like Grotius, Vitoria, and Suarez were instrumental in formulating the philosophical and legal grounds for accepting the laws of war as laws. From R. M. Hare (Hare 1981), I borrow the distinction between the two levels of war–-the critical and intuitive. But I differ significantly from Hare. Robust critical thinking (with minimal or even, in extreme cases, no intuitive constraint) occurs only at the political, Ad Bellum, level. What critical (virtuous) moral thinking that does take place at the military, In Bello, level must always be constrained and informed by the intuitive moral principles to which American warriors are beholden--unless directed by political authorities to do otherwise.

From Michael Walzer (Walzer 1977), I have gleaned the general outlines of this model, his version of the Principle of Double Effect, the moral independence of JAB and JIB, the claim that JAB is primarily a political responsibility while JIB becomes principally a military responsibility, and his two instances where JAB may become a function of JIB and vice versa (Walzer 1977: 195-196, and Chapter 16 respectively).

Paul Christopher (Christopher 1994: 186), provides MP1 and MP2, the understanding of how those moral principles interact within each level of war, and his thoughtful justification for how to adjust JIB rules by way of the political process of JAB.

[16] Again, the paradigm would be Walzer’s “Supreme Emergency,” a ‘war of existence,’where the nation’s civilian authorities “are face-to-face not merely with defeat but with a defeat likely to bring disaster to a political community” (Walzer 1977: 268).

[17] The U. S. economic and military power are particularly dominant in terms of output and spending. Economically, “the U. S. economy today is nearly as large as the economies of all 15 nations of the European Union combined.” Militarily, “the U. S. spends as much on defense as Russia, China, and all the nations of Europe and central and south Asia combined” (Seib 2002).

[18] Asymmetry concerns “dissimilarities in organization, equipment, doctrine, capabilities, and values between armed forces (formally organized or not) and U. S. forces” (Department of the Army 2001: 4-30).

[19] “Taking Terrorism and ROE Seriously” (Westhusing 2003) gives the extended argument for why DOJ ROE might serve as the proper baseline for self-defense ROE and what that baseline is.

[20] The current National Security Strategy (White House September 17, 2002: 1-2) states “the gravest danger our Nation faces lies at the crossroads of radicalism and technology” from enemies who “have openly declared that they are seeking weapons of mass destruction . . . and America will act against such emerging threats before they are fully formed.”

[21] U. S. military doctrine defines WMD this way: “Weapons that are capable of a high order of destruction and/or of being used in such a manner as to destroy large numbers of people. Weapons of mass destruction can be high explosives or nuclear, biological, chemical, and radiological weapons, but exclude the means of transporting or propelling the weapon where such means is a separable and divisible part of the weapon” (Department of Defense 2002: ‘W’s).

[22] The two cases of extremity still apply. Those cases are 1) where Jus In Bello becomes a function of Jus Ad Bellum, in which cases policymakers might override or adjust In Bello laws, ROE, or moral considerations. And 2) those cases where Jus Ad Bellum might become a function of Jus In Bello and deployments in support of a military operations may therefore be unjust.

[23] I take this account of prudence and its relative unimportance within modern thought from Verene, 1997, 228-242.