Fundamental Questions on Fundamental Issues

Fundamental Questions

Wayback setting, 2006


Originally Published: 2006-10-16 2:27 PM  Modified 2015-11-15



As midterm Presidential elections approach, the national debate has shifted away from back to the fundamental issues which will shape the future of our nation and Western culture in consequence of the Friday the Thirteenth massacre by Islamic Terrorists in Paris to a scandal which has, for all intents and purposes, already been resolved.  The ongoing news reporting and finger pointing arising from this third rate scandal are, at this point, no longer about the (certainly) reprehensible (and possibly criminal) behavior of an elected official, but rather about trying to change the subject from those fundamental questions to anything else.

Any This effort to change the subject at this point is a very telling indicator.

So let us spurn the distractions and return to the questions and issues which really matter.  In my estimation these questions are the following:

Are we at war?

With whom?

What is the price of failure?

How do we win?

Are we at war?

The first of these questions, “Are we at war?: would seem self obvious.  Yet there remain those who don’t seem to believe so (or act as if they don’t), which makes this our starting point.  The question further breaks down into two primary, and three secondary questions.

De facto

The first of the primary sub questions to “Are we at war?” is “de facto”;  are we in fact fighting a war?

While the atrocities of 9/11 are now 14 years in our past, they remain sufficient cause in and of themselves, they remain part of a larger pattern of attacks dating back more than 35 years.  Most of those attacks were sufficient justification for war in and of themselves.  When taken as a whole, these provocations rise to the level of a demand for war as opposed to justifications for war.

In the here and now, does anyone question the reality of ongoing combat in Afghanistan?  Does anyone question the warlike nature of the insurgency being fought in Syria and Iraq?  In all three cases we see ongoing military operations against an armed enemy.  While none of the three could accurately be called major or heavy combat in terms of the optempo, a small war is no less a war.

De Jure

The second of the primary sub questions to “Are we at war?” is “De jure”; in the eyes of the law, are we at war?

In light of the War Powers Resolution and the current body of judicial decisions regarding it, the two AUMF (Authorization to Use Military Force, one each for Afghanistan and Iraq resolutions legally place the United States in a state of war.

Thus the answer to the question, “are we at war” is answered affirmatively in both the de facto and de jure senses.

War and the non-state actor

The tertiary question concerns the nature of the combatants.  Simply put, is terrorism a form or warfare or a matter for law enforcement?

The methods of the terrorists are certainly hostile actions and present ample justification for war.  The methods of the terrorists are also war crimes under the Customary Laws of Warfare, as well as crimes under the domestic laws of most nation states.  The source of the issue is that terrorists are non governmental actors; that is they are not acting officially on behalf of, and under the authority of, a Government.

My position (and one which is fully consonant with the Customary Laws of Warfare) is that in arrogating unto themselves the prerogative of making war (a prerogative usually reserved to nation states, or those acting on behalf of a nation state) against the United States, the terrorists have opened themselves to having war waged against them.

The two quartiary questions regard the methods of countering of terrorism and their efficacy.  Which approach is most likely to effectively suppress terrorism?


The term “Lawfare” has been coined to describe responding to terrorist acts via the domestic legal system of the nation affected.  If the term sounds dismissive, it should.

A terrorist willing to risk his life in the accomplishment of his crime will not be deterred by the threat of a long comfortable life in prison, nor of a slightly less long comfortable life in prison awaiting execution.

Nor does prosecution in domestic courts serve the interests of the affected nation state.  By trying such in open court, the terrorist is afforded a publicity platform of the first order, and the opportunity to inform his compatriots of the means by which he was caught in his defense and cross examination of the evidence and witnesses against him.  This threat forces the state to choose between protecting sources and methods which are likely to preempt future terrorists attacks and forfeiting effective prosecution, or of prosecuting effectively at the expense of fully informing the enemy of the means used against them.

In addition, the legal systems of the West in general, and of the United States in particular, do not support prior restraint.  Planning and preparing for a terrorist action is only prosecutable as conspiracy, or on the basis of some other overtly illegal act.  When such planning and preparation are conducted outside the jurisdiction of the United States, it may not even be prosecutable.

Thus we find that in order for lawfare to work at all, we would have to change our system of criminal courts in ways which would be damaging to our civil liberties, and that even then it would likely not be a serious deterrent.


It is perhaps ironic that Warfare, in which lives are at risk in job lots, is less stringent in terms of proof.  This disparity probably finds its roots in the Western sense of justice, which finds it unfair that the unfettered power of the state should be arrayed against an individual, whereas another nation state is presumed to be better able to defend itself and its citizens.  Rational aside, in warfare the standard of proof need only rise to what “lawfare” would deem probable cause for deadly force to be applied.

War is an imprecise thing.  Anyone on the field of battle bearing arms who is not identifiable as one of yours or one allied to yours is a legitimate target.  In addition, the enemy’s means of production and transportation of war material are legitimate targets.  These details of who and what may be targeted and under what circumstances are set out in the aforementioned customary laws of warfare.

In addition to describing how war is to be conducted, the customary laws of warfare provide authority for the trial and punishment of violations of the customary laws.  As a bonus feature the customary laws of warfare are enforceable globally; wherever war is being waged, the customary laws and their sanctions pertain.

The rules for neutral powers also offer advantages to the nation state engaging in warfare against terrorists.  In order to be considered a Neutral Power a nation state must prevent any and all parties to the conflict from operating militarily from their soil.  Should they fail to do so, a warring party has the option of extending the war to include the putatively neutral power.  The only bar to waging war on individuals or groups which operate from the territory of a putatively neutral power in violation of that neutrality is the threat of that neutral state entering the war on the side of the forces making war from within their territory.  Such a threat, in the current state of world military capability, is empty.

The customary laws of warfare also make specific provision for determination of status for individuals who fall into the power (are captured by) a hostile power.  Any such which are, with due process, found to be illegal combatants are then subject to trial by military tribunal under the customary laws of warfare for any violations against those laws they may have committed.

An individual or group planning and preparing for a war crime can be prosecuted for such, no matter where the plotting and planning take place, under the customary laws of warfare.  In addition, the legal basis for prosecution of crimes under the customary laws of warfare allow methods and procedures which Western criminal law (in its presumptions and bias in favor of the defendant) rightly find abhorent.

The remaining questions for a latter day are:

With whom?

What is the price of failure?

How do we win?

Is there room?
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