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UFPPC (www.ufppc.org) Digging Deeper LI: June 30 & July 7, 2008, 7:00 p.m.

Philip Bobbitt, Terror and Consent: The Wars for the Twenty-First Century (New
York: Alfred A. Knopf, 2008).
Introduction: Plagues in the Time of
Feast. The wars against terror
comprise efforts against 1) global,
networked terrorists; the proliferation
of weapons of mass destruction; and
against catastrophes natural and
nonnatural (3; cf. At stake in these
wars is the capacity of market states to
maintain systems of consent and to avoid
becoming states of terror [120]). The
three dangers are interrelated and affect
the legitimacy of the State (4). Most
contemporary ideas about 21st-century
terrorism are wrong (5-9). Terrorism
needs to be understood as an aspect of
the transition from nation states to
market states (9). This transition has
produced circumstances making WMD
proliferation to terrorist networks
inevitable (9-12). The principle of
legitimacy of the market state is
maximization of opportunities for . . .
civil society and citizens (11-12).
Protection of citizens is thus the
strategic raison dtre of the market
state (12-13). The West (states of
consent) is broadly defined to include
democratic states like Australia, Japan,
Indonesia, Singapore, South Korea,
South Africa, and India (13). Despite
successes, the West is not winning the
Wars against Terror (13-16). Strategy
and law can no longer be analyzed
separately; they must be rethought (1620).
PART I: THE IDEA OF A WAR
AGAINST TERROR
Ch. 1: The New Masque of Terror.
Unlike war and the constitutional order,
which are mutually interdependent,
terrorism is merely a symptom . . . of
this phenomenon (23), an
epiphenomenon of the constitutional
order (25). [T]errorism derives its

ideology in reaction to the raison dtre


of the dominant constitutional order, at
the same time negating and rejecting
that forms unique ideology but
mimicking the forms structural
characteristics (26). Princely state
terrorism: the sack of Rome in 1527, the
Spanish Fury (Antwerp, 1576), the Sea
Beggars of the late 16th c. (27-30).
Kingly state terrorism: the buccaneers
(30-34). Territorial state terrorism:
Indians engaged by the French, Barbary
pirates (34-38). State nation
terrorism: anarchism (38-42). Nation
state terrorism: national liberation
movements (42-44). Al Qaeda is the first
version of market state terrorism (44).
Characteristics of market state
terrorism: more lethal, better financed,
often outsourced, decentralized, mediaand cyber-savvy, more likely to seek
WMD, more theatrical, anti-American
and anti-European, and now an end in
itself (44-63). Al Qaeda can be
considered either a market state
terrorist group or a virtual market
state (64; cf. 93, where it is
unqualifiedly a virtual state, or 192,
the virtual caliphate of al Qaeda). It is
a conceptual error to object that alQaeda is less an organization than an
ideology because that is the kind of
organization it is: one that is less
vertically controlled and managed than
nation state terror groups but is
nevertheless a coherent operational
entity unlike a mere ideology or idea
(66). As refutation of The Power of
Nightmares, the story of Richard Reid
(the shoe bomber) (66-70) and the
collaboration of Aymar al Zawahiri and
Osama bin Laden (70-82). Al-Qaeda is a
manifestation and exploitation of
globalization (83). It is a precursor of
more terrorism with a less national
focus and a less nationalist agenda (84).

Ch. 2: The Market State: Arming


Terror. The market state is a new
constitutional order based on the
principle of maximizing individual
opportunity and is characterized by
methods of warfare and defense
unavailable to the nation states;
adherents of the old order feel
betrayed (87, 91; 85-93). The market
state (the U.S. and the E.U. being its
leading exemplars) surpasses all its
predecessors as an engine of wealth
creation but is associated with a
tremendous growth in inequality (9395). These developments are
accompanied by an equally dramatic
rise in vulnerability (95; 93-98).
Technology, communications, and
markets enable the commodification of
weapons of mass destruction and their
strategic implications have led to
preemption strategies (98; 98-105). The
story of the Khan network refutes a 2005
paper by Robin M. Frost arguing that
terrorists are not likely to acquire WMD
(105-22). The importance of the threat
of WMD in the hands of terrorists lies in
the theatrical, mass-scale attack that
has the potential to disrupt the political
culture of the target society, in which
there is increasing emphasis on the
citizen as spectator, as a consumer of
entertainment however shocking,
[which] is characteristic of market state
societies (123, 122-24).
Ch. 3: Warfare Against Civilians. A
case can be made that al-Qaeda is a
state (or a virtual state) and that the
U.S. is at war with it (125-28). Michael
Howards Whats In a Name?: How to
Fight Terrorism (Foreign Affairs 81.1
[January/February 2002]) arguing
against calling the struggle against alQaeda war refuted (128-34). The
prospect of the mass killing of citizens
by groups and states has collapsed
the distinction between preemption and
prevention, giving rise to anticipatory
war (137; 134-38). Insistence on

keeping judicial and military action


separate is an artifact of [the nation
state] eras separation of law and
strategy (140; 138-43). Al-Qaeda and
Hezbollah show that in the era of the
market state, [t]errorism has become
war (146; 143-46). Rupert Smiths The
Utility of Force: The Art of War in the
Modern World (2005) is first among a
number of descriptions of the changing
nature of war in the 21st century:
protecting civilians, volunteer forces,
outsourcing, media-savvy, longer
campaigns, force protection, high-tech,
the importance of legal transparency
(146-53). Military and peacekeeping (or
constabulary) functions can no longer
be separated (153-58). Iraq war,
analyzed, shows failure to appreciate
that the revolution in military affairs
(RMA) that Donald Rumsfeld recognized
also affected constitutional matters in a
way that erased earlier distinctions
between strategy and law (158-69).
Similarly, Israels conflict with Hezbollah
in southern Lebanon in July 2006
showed misapprehension of the kind of
war it was in (170-73). We are at war,
despite resistance to this notion that is
based on nation state concepts (177;
173-79).
Ch. 4: Victory Without Parades. New
concepts are needed (180-81). States of
terror and states of consent have long
existed oppositionally; al-Qaeda pursues
what can be considered a market state
of terror (181-86). The nature of
victory and war aims depends on the
prevailing constitutional order (186-89).
Historical review of war aims under the
six forms of the modern state has taken
since the Renaissance (189-98). The war
aims of the market state are preclusive,
i.e. to preclude a certain state of affairs
from coming into being (198; 198-200).
A preclusive victory is marked not by
parades but by the prevailing sense of
psychological well-being of their
citizens (201; 200-02). Because
protection of citizens is part of the

states principle of legitimacy, collateral


damage is unacceptable and there is a
premium on non-lethal weapons (NLW)
(202-05). [I]n this sort of war, not
losing constitutes a kind of victory if it
can be maintained at an acceptable cost
(206; 205-08). To avoid Parmenides
Fallacy, the point of comparison must be
not pre-invasion Iraq but Iraq today if
there had not been an invasion (208-12).
We do not yet have indicia of winning,
but they must be developed (213; 21214). In a similar way, relief and
mitigation of the effects of natural
disaster must likewise be mastered by
the market state (214-20). Not
democracy, but the operation of the rule
of law, should be the mission of the
armed forces (220-22). Examples from
Katrina, the December 2006 tsunami,
and the possibility of a viral epidemic
(222-33). Leaders have failed to develop
concepts that enable them to fulfill their
responsibilities (233-36). Summary of
Part I (236-38).
PART II: LAW AND STRATEGY IN
THE DOMESTIC THEATER OF
TERROR
Ch. 5: The Constitutional
Relationship Between Rights and
Powers. The common tendency to
consider the relation of rights and
powers as a spectrum is inadequate
(241-42). To the contrary, as is implicit
in the Declaration of Independence and
the Federalist Papers, a strong state is
the precondition for individual liberty
(245, quoting Michael Lind; 242-46).
Four hypotheticals (246-48). Examples
of fiascoes in U.S. courts (248-50).
Governmental antiterrorism measures
are justified and exaggerated, knee-jerk
constitutional criticism fails to recognize
the collapse of law and strategy in the
era of the market state; however, due
process of law must be preserved to the
greatest degree possible in order to
maintain the states legitimacy (250-84).
The White Houses attempts to make

statutory law irrelevant to executive


action were a staggering tactic in a
war that is, at bottom, about the
preservation of the rule of law. . . . it is
disheartening to record how studiedly
the U.S. administration has cultivated a
reputation for contempt for law (286).
In the last few years, there has been a
strategic turn in constitutional law,
analogous in some ways to the fabled
linguistic turn taken by Anglo-American
philosophy in the second half of the
twentieth century (287). [T]he only
effective strategy in the Wars on Terror
requires a scrupulous adherence to the
rule of law, and where the law is
inadequate, a vigorous and transparent
effort at law reform. Guantnamo was
an important battle in the Wars against
Terror, and we lost it (288).
Ch. 6: Intelligence, Information, and
Knowledge. The failure to find
appropriate rules and policies regarding
intelligence is a form of intelligence
failure (289-90). The continued
reliance on an outdated oppositions is
setting the West up for grave
intelligence failures in the future (29091). Twelve intelligence failures and
twelve intelligence successes, 19412002, show that success can be the
result of failure and vice versa (291-96).
The oppositions or antinomies upon
which the West relied in preserving
freedoms while winning the Long
War1) public/private; 2)
domestic/international; 3) different rules
for law enforcement & intelligence; 4)
classified/open source; 5) intelligence
collection/intelligence analysis; 6)
different roles for intelligence producer
& consumerall contributed to 9/11
(296-321). The Intelligence Reform and
Terrorism Prevention Act of 2004 was
inspired by the Goldwater-Nichols act of
1986, which set up regional chains of
command in order to mitigate
interagency rivalry (321-25). But it is
the intelligence process that needs
reform, because the present one is

derived from nation state rather than


market state premises (326; 325-29).
Examination of the Robb-Silberman
Commission on WMD intelligence in the
light of Bobbitts antinomies shows we
must radically change the structuring
ideas (344; 329-45). British intelligence
contrasted (345-48). In the twenty-first
century, the fundamental problem for
states of consent that must confront the
challenges of terror will be to achieve
public endorsement and official
accountability in the face of largely
hypothetical threats that require
anticipatory action based on secret
intelligence. . . . The key again will be
law, but not law that is interposed to
block the demands of strategy, but
rather law that is integrated with
strategy (349; 348-49).
Ch. 7: The Strategic Relationship
Between Ends and Means. The view
that ends do not justify means is an
insipid clich . . . symptomatic of a
larger intellectual failure (350; 350-51).
A definition of terrorism proposed:
Terrorism is the pursuit of political
goals through the use of violence against
noncombatants in order to dissuade
them from doing what they have a lawful
right to do (352; emphasis in the
original). [A] war crime . . . is an act of
terrorism that occurs in a theater of war.
Similarly, acts that in war would be
classified as war crimes are acts of
terrorism when they occur outside the
conventional theaters of war (353).
Attitudes toward terrorism in 2004 in
five Arab countries (353-56). A war
against terror is a war in support of law
356). Whether violence is legitimate
depends on whether there are
constitutional institutions in place that
provide for the consent of the governed,
and the protection of political and civil
rights, including nonviolent protest . . .
where such rights do not exist,
proportionate violence against persons
engaged in unlawful acts, including aid
to the unlawful regime, is not

terrorismboth ends and means have


to be considered (359, 360; 357-60).
Officials have a duty of
consequentialism: anyone with the
responsibility for protecting others must
discharge that responsibility with an eye
firmly on the consequences
Machiavelli was the first to articulate
this key insight at the birth of the
modern state (363; 360-64). This dutys
origin lies in the constitutional makeup
of the state of consent (364).
Discussion of torture (366-91). There
must be an absolute ban on torture and
coercive interrogations of any kind for
political or evidentiary purposes. There
ought to be an absolute ban on torture
or coercive interrogations for the
purpose of collecting tactical
information, with the acceptance that
this ban will be violated in the ticking
bomb circumstances . . . There cannot
be a ban on the collection of strategic
informationinformation from terrorist
leaders and senior managersby
whatever means are absolutely
necessary short of inflicting severe pain
when that information is likely to
preclude attacks, when it is
disconfirmable by interrogators (and
thus the means used are actually no
more violent than necessary), and when
a nongovernmental jury has decided the
government has met its burden of proof
in establishing these matters (392; 39294). We ought not to pretend that the
goals for which we fight deny us the
means necessary to achieve them. Our
ends dont justify any means, but neither
are they irrelevant to the legitimacy of
what means we employ in their
pursuit. . . . Ends do matter (395). We
need legal reform so that law reflects
the new strategic context that we are
entering (396). We are fighting for the
rule of law (396).
Ch. 8: Terrorism: Supply and
Demand. Argues against limiting study
of terrorism to the demand side only:
It is because America is so vulnerable

and at the same time so ubiquitously and


overwhelmingly powerful that twentyfirst century global terrorism has arisen.
In this sense, the U.S. is its principal root
cause, and this would remain true even
if American policies vis--vis Israel or
Iraq or Iran changed (400; 397-402).
Biological warfare (402-04). Four
imagined catastrophic future narratives
(404-12). Advocates the adoption of ex
ante statutes, and in some cases
constitutional amendments that would
become operational only with the
declaration of emergency (413). A
dozen substantive proposals, including
national ID cards, repealing Posse
Comitatus, data mining, preventive
detention for up to 28 days,
constitutional amendments for
immediate replacement of dead
members of the House of
Representatives, amending the
Presidential Succession Act of 1947, a
statue providing for emergency
succession to the Supreme Court, and
creation of a special terrorism court
(417-24). The danger is not present, but
futureIt is imperative that we
anticipate these eventualities and act to
preclude them from happening; if we
are complacent, we will be propelled
into an indefinite period of martial law.
We will have brought into being a system
in which democracy has collapsed, and
the State has become the source of
terror itself (425).
PART III: STRATEGY AND LAW IN
THE INTERNATIONAL THEATER OF
TERROR
Ch. 9: The Illusion of an American
Strategic Doctrine. U.S. strategic
doctrines, from the Monroe Doctrine to
the Bush Doctrine (429-33; 450-51). The
Bush Doctrines prescription of
democracy is at odds with its
proscriptive elements; it is not a doctrine
at all (433-40). There is a desperate
need for a body of theory to understand
the Wars on Terror (442). [T]he press

and public debate (and many American


and British academics [444]) can
delegitimate the state of consent by
presenting terrorist attacks on us as a
reasonable reaction (443; 442-44).
Proposes, as a doctrine: An alliance of
democracies that includes the United
States and Great Britain will intervene in
three circumstances: when substantial
strategic interests and substantial
humanitarian concerns intersect; or
when, absent a vital strategic interest,
humanitarian concerns are extremely
high owing to an acute crisisfamine,
civil war, disease, genocideand risks
are apparently low; or when truly vital
strategic interests are in truly imminent
danger (445-46; 445-50).
Ch. 10: Mise-en-Scne: The
Properties of Sovereignty. Because
prevailing doctrines of international law
are radically insufficient to present
circumstances, the rule of law is
eroding (452; 452-57). At some point in
the 21st century, a new constitution for
the society of states will come into being
that reflects the emerging constitutional
order of the market state (458; 457-59).
Bobbitt mocks international lawyers
unwilling to undertake change,
embracing the pragmatism of William
Murray, first Earl of Mansfield [17051793], over the conservatism of Sir
William Blackstone [1723-1780] (45964). According to contemporary
dogmas, sovereignty must be fully
vested, necessarily territorial, and
cannot be shared, but all of these
principles are about to be abandoned
(466; 464-70). The challenges to the
doctrine derive from the circumstances
that are giving birth to the market state
(471-74). International law should be
reformed, abandoning the sovereignty of
nation states in favor of the legitimation
of the authority of democratic, human
rights-respecting statesstates of
consentand legal recognition of the
strategic importance of G8 members,
some of which are well on the way to

being market states (480-81; 474-82).


A new order should embrace
transparent sovereignty (which holds
that because a regimes sovereignty
arises from its compact with its people
as well as with the society of states,
sovereignty can be penetrated when a
state commits widespread acts of
violence against its own people, or
acquires weapons of mass destruction in
violation of international agreements, or
supports global terrorists who threaten
the civilians of other states [470]) (482;
cf. 496). [A] kind of G2the U.S. and
the E.U.could be an energizing force
in creating a global alliance of
democracies and in animating joint
action by the G8 (482-83).
Ch. 11: Danse Macabre: Global
Governance and Legitimacy. States
are increasingly interdependent;
Realism, it seems, is increasingly
unrealistic (487; 485-87). A defense of
the doctrine for the U.S. advocated in ch.
9 (445-46), with the catastrophes in
Cambodia, Rwanda, and Bosnia, as well
as the new terrorism, as evidence of the
need for it (487-98). A plea for the U.S.
to commit its power to the task of
building a new order of international law
Instead, the president of the United
States has become the person most
publicly identified with contempt for
international law (503; 498-504)
Market states uniting law and strategy
will in coming decades devise a new
constitutional order (504-09). NGOs
may play a role (509-10).
Ch. 12: The Triage of Terror. [A] new
kind of decision making that focuses
on the hypothetical state of affairs
sought to be prevented, but terrorism,
WMD proliferation, and human rights
violations cannot be pursued with equal
vigor because often the most successful
pursuit of any one of these objectives
operates negatively with respect to the
others (511; 511-14). Scenarios that
can be envisaged lead, alternatively, to

empire, or multipolarity, or regimes


of martial law (514). The best approach
is a constant shifting of priorities in
order to accommodate the aspects of
triage that characterize the Wars of
Terror and, in the short term, it is
reasonable to give the pursuit of
nonproliferation a priority, if only
temporarily so (514; 514-17). Our task
is to manage the transition from nation
state to market statethe latter may
take an entrepreneurial, mercantile, or
managerial form (518-20). This era will
not see the end of war; but it need not
fall victim to cataclysmic wars either.
The United States is a key driver in this
future. . . . In the end the Wars against
Terror may prove our best hope for a
relatively better future than we would
otherwise have. It is mournful work,
wrote St. Augustine, sustaining relative
good in the face of greater evil. what is
our innocence,/what is our guilt? All
are/naked, none is safe. And/whence is
courage: the unanswered question,/the
resolute doubt,/dumbly calling, deafly
listeningthat/in misfortune, even
death,/encourages others/and in its
defeat,stirs/the soul to be strong?
Marianne Moore, What Are Years?
(520).
Conclusion: A Plague Treatise for the
Twenty-First Century. The genre of
plague treatise in the 14th-16th
centuries tried to explain the causes of
plagues and how to cope with them (521;
calls Terror and Consent my Plague
Treatise [541]). Terrorism resembles
such epidemics; like their authors, we do
not fully understand what we are facing,
but even its novelty is not widely
appreciated (521-24). Changes in
warfare are both cause and effect of the
historic change in the constitutional
order that characterizes the
contemporary era (524-27). THE
TWENTIETH CENTURY TRIAD OF
DETERRENCE, CONTAINMENT, AND
ARMS CONTROL MUST NOW GIVE
WAY TO TWENTY-FIRST CENTURY

STRATEGIES OF PRECLUSION (527,


emphasis in original; 527-29). THE
STATES OF CONSENT MUST
CONFORM THEIR STRATEGIC
BEHAVIOR TO THE RULE OF LAW
(529; 529-32). In the U.S., powers of
government must in many cases be
strengthened (532-34). International
alliances are essential (535-38). Another
appeal to Parmenidess Fallacy: We
may think it is the United States that
today disturbs that tranquillity because
we measure our anxiety against the most
peaceful recent past. We should instead
measure our states against the
alternative future of a world without the
global but benign ambitions of America
(538). Failure to understand the
connection of the Wars against Terror to
the historic change in the constitutional
order are impeding victory (539-45).
Mordant observations on the fact that
There is in my book, it seems,
something to offend everyone (540;
540-42). Criticism of the ideas of
Francis Fukuyama, Thomas Friedman,
and Samuel Huntington as not big
enough (543; 542-45). Bobbitts theory
is not unidirectional . . . but is mutually
affecting, as is characteristic of field
relations. . . . a circuit, not an arrow
(544).
Coda. Dated October 19, 2007; hopeful,
philosophically religious, reassuring:
We have time (547; 547-48).
Acknowledgments. An account of
intellectual debts (549-51). Originally
[this book] was to be called Plagues in
the Time of Feast; originally it had
excerpts from plays at the beginning of
each chapter; originally the
superstructure of the narrative was
drawn from drama. Above all, the book
was considerably longer. For all of these
changes, I surmise that readers will be
grateful (550). [T]his book is a work of
political philosophy and not simply of
law or strategy (551).

Zbigniew Herbert, About Troy


(552).
Notes. 103 pp.
Bibliography. 365 items.
Index. 10 pp.
Permissions Acknowledgments.
A Note about the Author. Herbert
Wechsler Professor of Federal
Jurisprudence and the Director of the
Center for National Security at Columbia
University, and senior fellow at the
Robert Strauss Center for International
Security and Law and distinguished
lecturer in law at the University of
Texas, member of the American
Academy of Arts and Sciences. Serves
on the Commission on the Continuity of
Government and on the Hoover
Institution Task Force on National
Security and Law.
[About the Author. Philip Bobbitt
was born in Temple, Texas, on Jul. 22,
1948, the son of Lyndon Baines
Johnsons eldest sister. His 1971 A.B.
from Princeton was in philosophy (his
thesis adviser was Richard Rorty) and
his 1975 J.D. was from Yale Law School,
where Charles L. Black became his
mentor. Bobbitt clerked for Judge Henry
Jacob Friendly on the U.S. Court of
Appeals for the 2nd Circuit. His first
book, Tragic Choices (1978), was coauthored with Guido Calabresi (Bobbitt
repeats the phrase tragic choices on p.
237 of Terror and Consent). He earned
an M.A. and Ph.D. in Modern History
from Oxford University in 1983. He was
on the faculty of the University of Texas
until 2007, though he often taught
elsewhere (Nuffield College, Oxford,
1983-1990; Kings College London,
1994-1997; Harvard, 2005). In 2007, he
took a permanent position at Columbia
Law School. In 2002 he published The
Shield of Achilles: War, Peace, and the

Course of History, an award-winning


919-page work proposing a theory of
history and of constitutional law
encompassing the past 500 years based
on the view that law and strategy are
not merely made in history . . . they are
made of history (p. 5), and arguing that
epochal conflicts over the form of the
state tend to generate means which
render their solutions obsolete,
engendering new conflicts.]
[CRITIQUE. Fundamentally, Bobbitt
believes that in the soundness of the
morality that underlay the strategy of
the bourgeois Western alliance and that
defeated fascism and communism in
what he considers the wars of the
nation state while preserving
fundamental freedoms of speech and
association, and aspires to lay the
groundwork for preserving core values
during what he considers the wars of
the market state. In both cases, he

believes that the key is the interposition


of law . . . but not law that is interposed
to block the demands of strategy, but
rather law that is integrated with
strategy (349). However, in writing
Terror and Consent Bobbitt neglected
evidence of the Bush administrations
bad faith in hijacking the intelligence to
accomplish neoconservative ends,
ignoring such evidence such as the
Downing Street Memo and such
elements as the Project for a New
American Century, the role of oil and oil
companies [Bobbitt rebuts this charge
on pp. 492-93], the role of Israel and the
Israel Lobby [briefly acknowledged on
pp. 525-26], the complicity of corporateowned media, and the facilitation of this
complicity through media concentration.
Perhaps this is because he does not wish
to contribute to delegitimizing the state.
Yet Bobbitts market state concept
implicitly legitimates a number of these
influencesmaking their omission all the
more striking. MKJ.]