Terror and Consent: The Wars for the Twenty-first Century

Do you believe that the “war” on terrorism is a misnomer, since terrorists commit criminal acts? Alternatively, do you think that the government should step up military actions against terrorists and the nations that serve as their enablers, such as Iran? Either way, Philip Bobbitt, professor of law at Columbia University and Distinguished Lecturer and Senior Fellow at the University of Texas, has an argument with you. Based on his experiences as associate counsel to the president, legal counsel to the Senate Select Committee on the Iran-Contra affair, and counsel in the State Department and to the National Security Counsel, Bobbitt has authored a comprehensive study of terrorism and its impact on sovereign states.

The first section of the book provides a mini-history of terrorists and terrorism. Bobbitt argues that the way states are organized also determines how terrorists organize. Accordingly, princely states of the Renaissance spawned uncontrollable mercenary armies, while mercantile trading states gave rise to privateers who then became buccaneers, but later territorial states turned them into pirates. Nation states in turn gave rise to revolutionists and anarchists, and imperialist powers gave rise to anti-colonial freedom fighters. Bobbitt is at his best in a concluding section when he argues that we are in the midst of a fundamental transformation: from the nation-state of the twentieth century, offering its citizens and subjects a better material life through redistributions of resources, into the era of the “market state,” offering its citizens programs that increase their opportunities to participate in markets — as with the efforts to transform welfare into workfare, unemployment insurance into trade adjustment retraining grants, and corporate pensions into 401ks. Bobbitt?s argument is that this transformation of the state is mirrored in a transformation of terrorism: “Market state terrorism will be just as global, networked, decentralized, and devolved and rely just as much on outsourcing and incentivizing as the market state.” And so we get the stateless al Qaeda transferring around the world both its funds and its methods of conducting operations against American interests. Similarly, we?re confronted with the network created by the Pakistani bomb builder A.Q. Khan, assisting not only Khan?s own country, but also North Korea and Libya to build nuclear weapons.

The second part of the book builds on this insight to develop a full-scale critique of both the “law enforcement” and the “militarization” approach to the war on terror. Bobbitt believes that both approaches suffer from a lack of clarity about the ends to be achieved, which in turn leads to confusion about the means. Although he is a law professor, Bobbitt is also a national security manager, and that means he thinks about means and ends simultaneously rather than sequentially; moreover, he thinks about strategy and law as being two sides of a single coin. For Bobbitt, the goal is the preservation of “states of consent” against the hostilities conducted by both networks of stateless terrorists and the “states of terror.” Each “state of consent” has the right and duty to preserve the well-being of citizens; in the emerging “market states” of the 21st century, this means the right of citizens to participate in the free markets of the world. The actions of terrorists and the states of terror are designed to create a psychological condition that inhibits such participation. Once these axiomatic points have been developed, Bobbitt then goes through exhaustive treatments of each of the major issues involved in the war on terrorism: the treatment of prisoners (torture can be justified but only under stringent circumstances, and not because of “ticking bomb” scenarios); trial venue (national security courts over federal district courts); the conduct of surveillance (the “wall” between intelligence activities and prosecutorial activities makes no sense); and many other topics. Each treatment begins with incisive summaries of the existing presuppositions of the law or the strategy, followed by the author?s analysis of where existing doctrine falls short: e.g. democratization doesn?t make sense as a strategy when democratic movements in the Middle East are the most virulently anti-American.

There is more, much more, for the reader to agree with or argue vehemently against. But there is also one curious omission. Bobbitt discusses at length the dangers of WMD falling into terrorist hands. This, as we all know, was the main rationale Bush offered at the United Nations and to the Congress and the American people when he made the decision to invade Iraq. In a book in which just about everything else is treated at great length, all Bobbitt tells us is that there were some systemic failures in intelligence gathering and analysis (he refers to them as “antimonies”). He misses a great opportunity to reinforce his thesis about “market states”: much of the raw information about Iraqi WMD (the Yellowcake sale, the purchase of aluminum tubes, the bio and chemo mobile labs, the unmanned drones to delivery weaponized agents) came from the Iraqi National Congress or from private individuals selling to the media. Some of this information, including the initial testimony given to American intelligence agents, was mediated by private organizations which had been given contracts with the US government: they fed the testimony to the CIA and Defense Intelligence Agency, and also to an ad hoc group established in the Pentagon. When the intelligence professionals discounted the information and the informants, it was this Pentagon group that organized the dossiers “proving” that Iraq had WMD. In turn, the White House Information Group then disseminated this “proof” to media sympathetic to the administration: the top public relations and political strategists of the Bush administration.

This book is not a day at the beach (descriptions of torture are sometimes graphic), and it presupposes a considerable amount of knowledge about law, lawyers, and legal doctrines, not to mention European diplomatic history. (Did I mention there is also a full discussion of natural disasters as a form of terrorism?) Its complex argument covers a great deal of ground, but Bobbitt provides helpful summaries of his argument as he goes along, and the book eventually builds to extraordinary conclusions about future developments of the sovereignty of the new “market states of consent” that by themselves are sufficient reward for the reader. This is a work that is destined to have a huge impact on the strategy and tactics in the war on terrorism. At one point Bobbitt reminds us “there are law commissions that are dedicated to such efforts, just as there are chaperoned dances but these usually aren?t where the action is.” The action (whether you agree with Bobbitt or not) turns out to be right here in this book.