Responses to the September 11 attacks have split the libertarian movement like no other issue I have seen since I discovered libertarianism almost 25 years ago.
Limited-government libertarians have always maintained that one of the essential functions of government is to protect the nation from invasion or attack. The corollary to that duty is the government’s power to wage war against those who invade or attack us.
So what is the problem? On September 11, terrorists attacked the World Trade Center and the Pentagon with hijacked airplanes carrying civilian passengers. What better example of an attack against the United States? The U.S. government has the duty to go after those who are responsible for the attacks. And if a foreign regime supported the attacks or participated in them, then our government has the duty to wage war against that nation.
Case closed.
That’s why some libertarians are endorsing military strikes in Afghanistan to get at Osama bin Laden and his al-Qaeda organization (who are suspected of conspiring to commit the September 11 attacks) and the military attack against Afghanistan, a nation-state that is suspected of harboring or supporting the terrorists.
But is the situation so straightforward?
Evidence and trust
Everyone agrees that the people who actually committed the hijackings and the September 11 attacks are dead. So, the remaining issue is whether Osama bin Laden, the members of al-Qaeda, and the Afghan government (the Taliban) conspired to commit the attacks.
So far, the U.S. government has refused to publicly disclose the evidence supporting the existence of such a conspiracy, instead asking the American people to “trust us” because releasing the evidence would supposedly jeopardize “national security.”
Yet U.S. officials supposedly permitted the head of the Pakistani government to see the evidence of the conspiracy. He’s an army general who took over Pakistan in a coup and who had previously helped the Taliban take control of Afghanistan. If a former, close personal friend of the enemy nation can be trusted with the evidence, why can’t the American people be trusted, especially since we have a much larger stake in the matter than the Pakistani general does? After all, if the evidence really threatened to jeopardize the security of our nation, would our public officials really have shared it with a Pakistani general who took over in a coup and until just recently was a very close friend of the enemy?
Libertarians have always maintained that a commitment to freedom dictates a severe distrust of government. Why the switch now, especially when the stakes are so much higher? After decades of telling people that freedom lies in a healthy distrust of government, isn’t it incumbent on those libertarians who are now telling us that freedom lies in trusting government (at least this time) to explain to us why.
Thus, libertarians who favor the bombing of Afghanistan and the military strikes against bin Laden are confronted with two discomforting questions: (1) Should people presume that U.S. officials have sufficient evidence in their possession to establish that bin Laden did in fact conspire to commit the attacks or should people instead presume the innocence of the accused? and (2) If it is revealed that although U.S. officials are totally convinced that bin Laden did in fact conspire to commit the September 11 attacks but have insufficient evidence to support their conviction, would libertarians who support the bombing and the attacks nonetheless continue to do so?
What would be sufficient evidence to justify going after bin Laden? That would depend on whether the September 11 attacks are considered criminal acts or acts of war.
A criminal offense or an act of war?
Within one or two days of the attacks, some libertarians immediately jumped to the conclusion that the attacks constituted acts of war rather than criminal acts. But it is difficult to understand how they arrived at that conclusion, especially without even knowing who committed the acts and why they committed them.
It would seem difficult to distinguish the September 11 attacks from Timothy McVeigh’s attack on the federal building in Oklahoma City. And keep in mind that McVeigh asked to be treated as a prisoner of war rather than a common criminal suspect. Do libertarians who take the position that the September 11 attacks constitute acts of war, rather than private acts of murder, also believe that McVeigh’s terrorism was an act of war and that he should have been granted his request to be treated as a prisoner of war?
It’s true that McVeigh’s attack was on a government building while the September 11 attacks were on both a government installation and civilian buildings (and involved planes with civilian passengers), but does that difference determine whether an act is a criminal act of murder or an act of war?
Another possible distinction is that a much larger number of people were killed on September 11 than in McVeigh’s attacks. But should the number of the victims in a crime really determine whether the act is criminal or an act of war? If so, which number would provide the dividing line? What about the fact that McVeigh’s victims included several children? Should that factor in the determination?
Of course, bin Laden is a foreigner while McVeigh was a U.S. citizen. But foreigners are indicted for common crimes all the time — the fact that they are not U.S. citizens does not preclude them from being accused and convicted of criminal offenses.
If bin Laden were to be captured alive, U.S. officials would have to choose between indicting him as a common criminal and treating him as a prisoner of war. If they indict him, they might not have enough evidence to convict him. If they treat him as a prisoner of war, bin Laden (or his lawyers) would undoubtedly take the position that soldiers in war cannot be held responsible for killing the enemy. In this regard, it should be noted that a few years ago, bin Laden published an open declaration of war against the United States.
Consider, for example, the Japanese pilots who attacked Pearl Harbor. If any of them had been taken prisoner, they could not have been tried for murder. And they would have had to be released at the end of the war.
If the September 11 attacks are treated as acts of war and not criminal acts of murder, then does that mean that U.S. officials would have to indict bin Laden for war crimes arising out of his targeting noncombatants during war in order to avoid having to release him when the war is over?
Equally important, a disturbing question arises: By treating the September 11 attacks as acts of war and then proceeding to wage war against both Afghanistan and bin Laden and al-Qaeda, has the U.S. government effectively legalized acts of terrorism here on American soil. Let’s assume that a terrorist bombs a U.S. military installation here in the United States, which causes the deaths of hundreds of military personnel and civilians. When arrested, he raises his hands and says, “I am a member of the Taliban army. I surrender. I am your prisoner.” Under the rules of war, a soldier cannot be held legally responsible for murder. He becomes a prisoner of war, to be released at the end of the war. Of course, the U.S. government could argue that he is a spy since he’s not wearing a uniform (Taliban soldiers do not wear uniforms) and execute him on the spot. But would treating the bomber as a common criminal (subject to the death penalty) or a war criminal (also subject to execution) affect the way American POWs are treated by the enemy?
Extradition
If the September 11 attacks are treated as criminal acts of murder (rather than as acts of war), then another problem arises: How does the government bring the accused into the jurisdiction of a U.S. district court when he is physically located in a foreign country?
One option is to send federal agents or bounty hunters into the foreign jurisdiction to kidnap him and bring him back to the United States. This actually does happen from time to time, even without the permission of the government where the accused is residing. For example, several years ago, U.S. agents entered into Mexico and, without the authorization of the Mexican government, kidnapped Mexican citizens who were suspected of conspiring to kill DEA agent Enrique Camarena and brought them back to the United States. Under U.S. law, the accused is not legally permitted to challenge the manner in which he was brought into U.S. jurisdiction in the subsequent federal court criminal proceeding.
The other option is extradition, which is the legal method by which an accused is brought from one country to another country for trial. Extradition usually requires a treaty between the two countries. If there is an extradition treaty, then the host country is supposed to send the accused to the requesting country after all extradition procedures in the host country have been followed.
That is what happened in the case of Ira Einhorn, the accused murderer from Pennsylvania who jumped bail many years ago and left the country. Einhorn was discovered living in France, and extradition procedures were initiated, which Einhorn resisted. After extradition procedures (including appeals) were exhausted, the French authorities forcibly returned Einhorn to the United States for trial.
What would have happened if the French authorities had refused to return Einhorn? Presumably nothing, because the decision of the host country is final in extradition matters. That is, there is no international court of appeal. Recently the Chinese government has demanded that the United States return Falun Gong members to China, claiming that they have violated China law by committing common crimes. There is no extradition treaty between China and the United States, and the U.S. government has refused to return the Falun Gong members to China. There isn’t anything that the Chinese government can do about it.
Thus, when there is no extradition agreement between two countries, the decision to return the accused is at the discretion of the host country. Since there is no extradition treaty between Afghanistan and the United States, there is no legal requirement for the Afghan regime to extradite bin Laden. However, they could do so if they wished.
The burden of proof
If the September 11 attacks are treated as criminal acts, then bin Laden and his cohorts must be indicted for murder (or conspiracy to commit murder). The amount of proof required for a criminal indictment is “probable cause” that the accused committed the crime. The amount of proof required to convict him would have to satisfy the “beyond a reasonable doubt” burden that has been long-established in the American criminal-justice system The U.S. government’s refusal to publicly disclose its evidence linking bin Laden to the September 11 attacks is causing some people to wonder whether there actually exists sufficient evidence to convict him of conspiracy should he in fact be captured. This might cause some people to suggest that bin Laden should be killed at all costs, even if he attempts to surrender, since a trial might prove to be embarrassing in the absence of sufficient evidence to convict.
Yet despite the horrific nature of the crime and the large number of victims, isn’t it incumbent on libertarians to continue a steadfast allegiance to both the rules of warfare (if the attacks are treated as acts of war) and the principles of due process of law, including the presumption of innocence, that stretch all the way back to Magna Carta (if they’re treated as common crimes)? If a enemy soldier is surrendering, then under the rules of warfare, he must be taken captive and not executed. If a criminal suspect is surrendering, under the principles of our criminal-justice system, he must be taken captive and not executed. If we permit our government to abandon those principles, then don’t we in the process fall to the level of the barbarian and the criminal?
The declaration-of-war requirement under the Constitution
Let’s assume that the September 11 attacks are treated as an act of war. The next hurdle that libertarians must face before endorsing the waging of war against bin Laden is a constitutional one: the requirement for a declaration of war, which libertarians have always held is a critically important part of our Constitution.
Did the Congress declare war against bin Laden (or against Afghanistan)? No. All it did was grant Caesar-like powers to President Bush to wage war against anyone the president believed committed the terrorist acts anywhere in the world. The vesting of such powers is not a declaration of war and the granting of such dictatorial-like powers is not even authorized by the Constitution. So, how can libertarians endorse the U.S. government’s waging of war against bin Laden (and Afghanistan) in the absence of constitutional authority? Doesn’t the rule of law dictate that the Constitution be followed, even when the consequences of doing so are unsatisfactory to people?
“But once the shooting starts, then we’ve got to forget that constitutional provision and support the president,” some libertarians might argue. But if that’s the case, then how does that constitutional provision ever get enforced, especially given that the Supreme Court has abrogated its responsibility by refusing to declare any acts dealing with foreign affairs unconstitutional? Is the solution a new constitutional amendment that requires the declaration of war and that includes a parenthesis saying, “This time we mean it”? What if the president then ignores both the restriction and the parenthesis? Isn’t the only way for the citizenry to restore compliance with the Constitution to oppose any and all wars waged by the president in the absence of a constitutional declaration of war? To support any presidential war that is being waged in the absence of a declaration of war effectively reinforces and supports a governmental decision to ignore the Constitution.
What is the required legal burden of proof for a declaration of war? There is none; the issue lies solely with Congress. The president might decide to provide some evidence or he might decide to withhold it and ask to be trusted. Either way, Congress could weigh the matter and then decide to declare war or not, evidence or no evidence. However, it would be ironic that the Congress would use a lesser burden to declare war than a federal grand jury would use to indict a person. Or it might even be asked why Congress should not apply the same burden of proof required to convict a person of a crime (“beyond a reasonable doubt”) to deciding whether to declare war against the person.
Let’s assume that a declaration of war against bin Laden (but not Afghanistan) is secured, possibly a problematic matter because of his status as a private person. Would such a declaration justify an attack within the borders of a sovereign nation where the person is located? It is hard to see how it would if the government is totally innocent of the conspiracy and if the accused is simply residing within the territorial jurisdiction of that nation. Again, we’re back to the problems associated with extradition. After all, how would the U.S. government respond if China conducted military attacks on the Falun Gong members who are now living in the United States?
But what if the nation where the terrorist is located is “harboring” him? Under the criminal law, a person can be held liable for “harboring” a criminal in his house or on his property. But it would seem that that’s a difficult standard to apply to a nation in which the a suspected criminal is residing. (The case of Falun Gong members that the Chinese government accuses of crimes and who are residing in the United States comes to mind.)
But it’s entirely possible that the Taliban (or some other nation-state) assisted or supported the September 11 attacks or even knowingly permitted the terrorists to use Afghan territory to plan the attacks. If so, then it would seem that that would constitute an act of war by the nation-state of Afghanistan. In that case, it would be understandable if libertarians endorsed military action against the regime. But they must face up to two important matters: first, that the U.S. Constitution requires that Congress declare war before the president can wage war, something that the Congress has not done; second, libertarians, who historically have counseled people to be wary of trusting government, would find themselves in the awkward position of renouncing that counsel in view of the president’s request to trust him that the evidence really is there.
Let’s assume though that the Congress did declare war against both Afghanistan and bin Laden. Would that mean that all libertarians would then unite behind the president and endorse military strikes against bin Laden and the bombing of Afghanistan?
Not necessarily. The debate would turn to how the war should be waged, i.e., would the bombing of Afghanistan be in the long-term interests of the American people? Obviously different answers to that question are possible, but what’s important is that the inquiry be made rather than that we simply blindly endorse whatever the president does under some misguided sense of “patriotism.”
It’s entirely possible that someone, after analyzing and reflecting, could come to the conclusion that the attacks would be in the best interest of the American people, in which case he would endorse them.
On the other hand, a person might conclude that the attacks would actually make the situation worse and recommend against them. As Sheldon Richman has pointed out, citing Randoph Bourne, war is like riding a wild elephant — you don’t really know where it’s going to end up but usually it’s a long way from where you intended to end up. That’s one important reason that war should always be a last resort, not a first one.
But there’s another important reason that libertarians might view the military strikes as a last resort: we know (as our Founding Fathers knew) that a free society is impossible during war — government gets bigger and stronger and ever-growing infringements of liberty are the natural outcome despite the best efforts of people to stem their tide. And once the war is over, the government never returns to its size before the war.
Does this mean that those of us who have misgivings about the war against Afghanistan are pacifists? Of course not. Sometimes war is absolutely necessary but within that context it is sometimes best to plan one’s strategy with the long term in mind. We simply believe that the bombing of Afghanistan will be likely to have long-term adverse consequences, including the production of an even greater number of terrorists who are motivated to attack Americans. And it should be noted that according to an article in the October 20 issue of the Washington Post, several Pentagon officers are also expressing reservations about whether the attack on Afghanistan is in the long-term interest of the United States. Thus, whether the military strikes will prove to be in the best interest of the American people is not a cut-and-dried matter.
Does this mean that libertarians who have serious misgivings about the bombing of Afghanistan would do nothing to bring bin Laden and his al-Qaeda associates to justice? Of course not. We simply advocate a different strategy — one that we believe is in the best interests of the American people and that is based on the Constitution: specifically the provision dealing with letters of marque, which our Founders specifically designed for going after foreign criminals. This provision authorizes the president to commission people to go abroad in search of bin Laden and his associates with the intent of bringing them to justice.
Foreign policy and terrorism
Finally, for decades libertarians have been arguing that the roots of terrorism lie in the U.S. government’s interventionist and imperial foreign policy, including foreign aid to brutal dictatorial regimes and taking sides in foreign conflicts, all of which tends to anger people who are on the “wrong side.” In other words, those interventions, as libertarians have long pointed out, will ultimately produce terrorist retaliatory measures.
Therefore, almost all libertarians have argued that in order to end terrorism in the long term, it’s necessary to pull the weed out by the root by putting a stop to the U.S. government’s interventionist policy. Yet, since the September 11 attacks, some libertarians have become totally silent about the relationship between U.S. interventionist foreign policy and terrorism. Why? What better time to argue the validity of a principle that libertarians have maintained for decades?
Moreover, even if a libertarian assumes that the September 11 attacks were motivated by blind hatred of Western values and culture (as some libertarians are maintaining), that is no reason to abandon the position that libertarians have long held that the U.S. government’s interventionist foreign policy breeds terrorism. For it is entirely possible for libertarians to support the attacks on bin Laden and Afghanistan and still call calling for an end to U.S. interventionism overseas.
In other words, the two positions are not mutually exclusive — it’s theoretically possible, for example, that the September 11 terrorists were motivated by blind hatred of Western values and culture and that another group is motivated by hatred arising out of U.S. foreign policy. Wouldn’t Americans be better off by at least being rid of the second group and if so, shouldn’t libertarians continue calling for an end to U.S. foreign intervention, even during the current crisis?
There’s a final question of a pragmatic nature that arises for those libertarians who are now embracing and endorsing the president’s military action against Afghanistan and bin Laden. Why didn’t they call for it sooner? That is, why didn’t they call for military action (including attacks on Afghanistan or any other country that was hosting bin Laden) after the 1993 attack on the World Trade Center, after Osama bin Laden’s open declaration of war against the United States, after the attacks on the two U.S. embassies in Kenya and Tanzania, and after the attack on the USS Cole? Why weren’t those acts of war against the United States? Why the change in position now?
Let me conclude by addressing the “war on terrorism,” which is a separate issue from military action against bin Laden, al-Qaeda, and Afghanistan. First, it is possible to endorse military action against Afghanistan and bin Laden without endorsing an indefinite and nebulous “war on terrorism.” Second, everyone needs to recognize a fundamentally important fact: It will be impossible to achieve a truly free society within the context of “a war on terrorism,” which will entail an ever-growing array of infringements on individual liberty, despite the best efforts of libertarians to stem the tide.
Therefore, any libertarian who endorses the “war on terrorism” is resigning himself to living in an unfree society, very likely for the rest of his life. As a libertarian, he will spend the rest of his days trying to limit the tide of infringements on liberty and advocating minor reforms. He will have given up on achieving a free society in our lifetime. I repeat: There is no possibility of achieving a free society in the context of a “war on terrorism,” which is perhaps the most important reason for advocates of a free society to ardently and fervently oppose such a nebulous and indefinite “war.”
