Litigating the War on Terror: An Exchange

In response to:

“Michael Ratner’s Tragedy, and Ours,” September 1, 2021

To the Editor:

Samuel Moyn’s main criticism of Michael Ratner is that, at least in his legal challenges to the US military detention center at Guantánamo Bay—the torture, the unfair trial proceedings, the indefinite detention without charge—he tried to ameliorate the way the “global war on terror” was fought rather than oppose the war altogether. There’s obviously nothing wrong with advocates trying to remedy one of several evils—indeed, a focused effort is often essential to success—but Moyn contends that by making this particular war less inhumane, Ratner contributed to a greater evil by making it easier for the US government to sustain a forever war.

Although he does not say so explicitly in this essay, Moyn, in essence, challenges the entire effort to reduce the harm to civilians and captured combatants epitomized by the Geneva Conventions and other international humanitarian law, or the laws of war. If Moyn’s prescription were to prevail—ignoring standards for how wars should be fought to focus exclusively on prohibiting war—the effect, when war did break out, would be to return to the old concept of “total war,” war with no constraint. Moyn seems to prefer that approach on the theory that unfettered wars, with their unmitigated atrocities, would be so terrible that we might have fewer wars. By this questionable logic, torture and massacres should be allowed to play out as necessary ills that will eventually expose the inherent evil of war, thus making war less likely.

It is impossible to prove or refute that counterfactual proposition, but given the terrible costs of total war, one should not leap to embrace it. Syrian President Bashar al-Assad’s decade-long war provides a sense of what total war looks like. Backed by their Russian, Iranian, and Hezbollah allies, Syrian forces have attacked people with chemical weapons; deliberately and indiscriminately bombed hospitals, schools, markets, and apartment buildings; starved civilians and deprived them of medical care to force the surrender of armed opposition members in their midst; and detained, tortured, and executed tens of thousands of people. Such barbarity has forcibly displaced more than half the country’s population of 21 million, and half of those displaced have fled the country as refugees. War without restraint played out before the whole world, live on television, yet the conflict wore on for year after year.

Because most armed forces do not flout the laws of war so brazenly, the humanitarian consequences of war tend to be less dire. War still causes enormous suffering, and the existence of laws of war is no guarantee of compliance. But most armed forces feel pressure to pay at least lip service to these standards, which in turn constrains their behavior.

Just as there was never much buy-in to the old Marxist maxim that we should eschew reform to accelerate the revolution, I would be reluctant to forsake the mitigating effects of international humanitarian law on the theory that doing so would hasten the day when war is abandoned and the lions will lay down with the lambs.

Even granting international humanitarian law’s value in reducing harm, was Ratner wrong to focus on trying to enforce it rather than devoting his considerable skills to opposing the war on terror altogether? Moyn suggests he was. I’m not so sure.

Ratner was foremost a skilled litigator. His brilliance was in the courtroom. Of course, he could have forsaken the courtroom for the streets or the op-ed pages, but he was hardly irrational to assess his odds for success in those forums as small. As Moyn notes, popular sentiment in the United States for a military response to the September 11, 2001 attacks was overwhelming.

Moreover, US courts are notoriously reluctant to limit the president’s power to go to war, which they tend to see as a political issue best left to voters and to Congress. The courts are also reluctant to limit how wars are fought, but Ratner understandably concluded that, at least for the treatment of people in US custody, his energies were best spent reducing the horrors and injustices of the war on terror. And his Supreme Court victories bore him out.

Moyn, however, gives only short shrift to an area in which the decision on whether to go to war overlaps with the issue of how force is used—that is, the question of whether policing rules or war rules apply to a particular security operation. The two sets of rules have very different standards governing such matters as detention and the use of lethal force.

For example, policing rules, governed by international human rights law, allow detention mainly for people facing criminal charges and a fair trial, and permit police officers to use lethal force only as a last resort to respond to an imminent threat to life. War rules, by contrast, permit detention of enemy combatants until the war ends and allow soldiers to shoot to kill combatants without regard to the imminence of threat they may pose.

When two militaries clash on a battlefield, war rules clearly apply, but the war on terror had no recognizable battlefield. Nor was it a rhetorical war like the war on drugs, for which traditional policing rules apply. Rather, the US government in its war on terror sought to apply war rules in a way that defined the battlefield as everywhere. This meant that anyone anywhere suspected of terrorist activities, often on the flimsiest evidence, could be designated an “enemy combatant” and locked up until the war ended, which given the elusiveness of the terrorist threat may mean forever. Or even when they were linked to no discernible battlefield, they could be fired upon, the way combatants are fired upon, rather than presumptively arrested.

So when Moyn notes that “Ratner later came to the conclusion that his most agonizing failure had been his failure to destroy ‘the war paradigm,’” Moyn is addressing an effort that is closely related to the goal of stopping war, but one focused more on the boundaries of what properly should be treated as war. Here, the larger human rights movement, of which Ratner was a central part, did have some success.

For example, the US government used the war paradigm to justify lethal drone and other air strikes in places like Yemen where there was no recognizable war between the United States and the targets on the ground other than the vague “war on terror.” The US government used that metaphor to justify summarily killing alleged terrorists rather than seeking to arrest them, without any credible showing that they posed an imminent threat to life of the sort that would justify lethal force for a policing action. The human rights movement’s repeated challenges to the war rationale for these attacks contributed to the Obama administration’s revision of the targeting rules. Although President Barack Obama never repudiated the war paradigm for these attacks, he did adopt stricter and more transparent rules for the use of lethal force.

Similarly, the vast majority of the thirty-nine aging detainees in Guantánamo today have not been charged with a crime. The justification for holding them is the claim that they are enemy combatants in the war on terror—a contention that, twenty years on from the September 11, 2001 attacks, is hard to sustain. That President Joe Biden faces pressure to close Guantánamo and end this travesty of justice is due in significant part to the efforts of Michael Ratner and his allies to challenge the strained “wartime” justifications for the US government’s treatment of detainees there.

Ratner did attack the rationale of war, just not in the way that Moyn prefers. Reducing Ratner’s lifework to an effort to sanitize war and therefore unwittingly enable its continuation is not only a betrayal of his memory; it is also a misplaced attack on the decades of efforts of the human rights movement to curb the barbarity of war and protect civilians caught in its midst.

Kenneth Roth
Executive director of Human Rights Watch

Samuel Moyn replies:

Kenneth Roth’s response is a frustrating example of the debater’s ploy of attributing to an opponent arguments he didn’t make, the better to sidestep the ones he did. And it troublingly takes my essay as an “attack” and “criticism,” when, from the title on, it is a portrait of potentially unavoidable tragedy, not just for one man but for all Americans and the world beyond. But it is one from which we can learn for the present and future.

It is hard to disagree with Roth’s indictment of the error that would be involved in abandoning efforts to lessen brutality and suffering in war; however, I never proposed doing so. What I did suggest is that the cause of humane war comes with certain risks, and the twentieth anniversary of the war on terror seems an opportune moment to meditate on this fact. Even justified actions can have unforeseen negative outcomes, and acknowledging as much is the first step toward making better judgments now.

Insofar as advocates like Roth treat international humanitarian law as a standalone project, I do mean to question it, but not for the sake of simply ignoring the value of challenging excesses in the conduct of hostilities. Roth, unlike Ratner, is well known for heading an organization, Human Rights Watch, that has generally refused on principle to condemn wars in themselves in order to focus exclusively on that conduct—out of a calculated strategy to achieve influence and maintain respectability. In the book from which my essay was adapted, I explain how this noble but neutral form of humanitarian advocacy arose in the first instance, precisely as antiwar movements in the United States waned. And I observe that it was part of the making of the geopolitical equation of our time, which has seen more great power interventions, though sometimes less brutal ones.

It is for that very reason that Ratner seemed such an appealing figure to study after September 11, 2001. Given his life story, I suspect Ratner would have been more open than Roth to admit the potential risks of his activism to his own stated goals. After all, Ratner openly championed constraints on force, even at the risk of marginality that an openly leftist politics routinely involved, both during the cold war and after. The concern that humanizing the war would only enable it to continue on different terms—a risk we collectively incurred over the past two decades—highlights a tension within Ratner’s deepest ideals. Facing that tension forthrightly is of more reflective value than a victory lap for keeping the war on terror in bounds as it goes on and on.

As I suggested in my essay, this is true even if, in the critical years after September 11, 2001, Ratner had no choice but to embrace the danger of entrenching war—that was, indeed, his tragedy. Illuminating Ratner’s melancholy choice, in the interest of knowing if, and when, we can transcend it, is the best way to honor him. Roth points out that advocates must pick their causes. That is true, but they are not excused from considering the costs of those choices, any more than anyone else is, or incapable of changing course on the basis of experience.

Roth takes credit for a cosmetic formalization of Barack Obama’s extension and expansion of the war on terror through armed drones and through special forces. As I see it, the real lesson to be drawn from a generation of failure to contain American war is that there is now an emerging opportunity to rethink the uses of American power abroad, and to make a renewed priority the prevention and suspension of unnecessary wars. Roth’s own career, for which he also deserves credit, has been defined by abstention from basic issues of war and peace in favor of monitoring how war is fought. But for the rest of us, that important agenda can coexist with a broader one, now that the emergency Ratner lived through seems to be passing.