{"id":51991,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/guiding-principles-for-the-loyal-opposition.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"guiding-principles-for-the-loyal-opposition","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/guiding-principles-for-the-loyal-opposition.html","title":{"rendered":"Guiding Principles for the Loyal Opposition"},"content":{"rendered":"\n
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Guiding Principles for the Loyal Opposition:
Anti-War But Not Anti-U.S.<\/span><\/h1><\/td>\n <\/tr>\n

By MICHAEL C. DORF<\/h2><\/a><\/td>\n <\/tr>\n

Wednesday, Apr. 02, 2003<\/td>\n\n <\/tr>\n <\/table>\n \n\n\n

What should the “loyal opposition” in the U.S., U.K., and elsewhere do now that the war is on? <\/p>\n \n

By the “loyal opposition,” I mean those who, like myself, support the causes invoked by President Bush and Prime Minister Blair as reasons for going to war in Iraq –democracy, human rights, security against terrorists and tyrants, and the rule of law – but believe that the war is more likely to impede than to further these causes.<\/p>\n \n

It should hardly require saying that members of the American loyal opposition do not make common cause with those anti-war protesters in other parts of the world chanting “Death to America.” On the contrary, we support America, but believe that a democracy distinguishes itself from a military dictatorship in debating such vital questions as how to spend the blood of our sons and daughters.<\/p>\n \n

Now that the war is underway, the loyal opposition’s members face a dilemma. Should we simply rally ’round the flag and the President? Or should we call for the war’s immediate cessation?<\/p>\n \n

The fact of hostilities makes a difference. Even if we believe President Bush acted rashly in making this a war about American credibility, he undeniably has done so. As a result, we must count the strategic cost of unilateral withdrawal as a factor in whether we continue to seek an end to hostilities or endorse the war effort. For to back off now risks sending a message to Iraq and other potential enemies that the United States is a mere paper tiger.<\/p>\n \n

Yet each day the war persists brings further loss of life, creates more anger, and thus increases the likelihood that even if we win the war, we will lose the peace. <\/p>\n \n

I have no easy answer to this dilemma. But here, I want to set forth four principles that are relevant to how a member of the loyal opposition should think about the war.<\/p>\n \n

An Unlawful Course of Conduct Can Be Morally Justified, But Rarely<\/b><\/p>\n \n

In my last column<\/a>, which appeared just hours before the commencement of military action, I argued that the war against the Iraqi regime was unlawful. Even now, official spokespersons for the Bush and Blair Administrations continue to claim authority for the war in inapposite U.N. Security Council Resolutions and a sweeping conception of national self-defense. But their arguments have become no more convincing.<\/p>\n \n \n\n

Accordingly, some of the Administration’s most thoughtful sympathizers–such as my fellow Writ columnist Julie Hilden<\/a> and Anne-Marie Slaughter, Dean of Princeton’s Woodrow Wilson School of Public and International Affairs–have moved to a different argument. The war is technically illegal, they acknowledge, but it is nonetheless morally legitimate.<\/p>\n \n

They are, of course, correct that an illegal course of conduct can sometimes<\/u> be morally justified. For example, American laws, including the Constitution, once protected the institution of slavery. Unless one believes that there is an absolute obligation to obey every law, moral duty and legal duty will sometimes come into conflict.<\/p>\n \n

Nevertheless, the fact that a course of action is unlawful must count for something.<\/u> Because law is a collective undertaking, it will never perfectly correspond to any one person’s views about what it should be. For instance, millions of Americans believe that our laws governing abortion, drugs, firearms, and\/or physician-assisted suicide are misguided or immoral. But that hardly means that everybody is entitled to disobey whichever laws he or she finds objectionable. That way lies anarchy.<\/p>\n \n

The same is true at the level of international law. If every country can decide which international obligations it will obey, based on whether compliance in a particular case serves its self-defined national interest, the system of international law will quickly break down.<\/p>\n \n

To be sure, one might think that some forms of international law have less legitimacy than domestic law, because the system of international law does not depend on elected representatives. But that objection is irrelevant in the present context. <\/p>\n \n

The U.S.’s obligation not to go to war without either Security Council approval, or an imminent threat justifying self-defense, is found in a treaty–the United Nations charter. The United States consented to that treaty in accordance with our own representative processes. And since then, we have never chosen to repeal or repudiate it.<\/p>\n \n

From a lawyer’s perspective, then, the disturbing feature of the Administration’s decision to go to war is not the fact that it was illegal. Sometimes illegal acts are necessary. What is most disturbing is that the illegality of the current war appears to have counted for nothing in the Administration’s calculations. <\/p>\n \n

The Laws of War Apply to All Armed Conflicts<\/b><\/p>\n \n

A second important principle to keep in mind is this: The rules of an illegal war, are the same as those of a legal war. <\/p>\n \n

That is, the laws of war apply to all armed conflicts – declared and undeclared, legal and illegal. Accordingly, even if the war on Iraq is illegal under international law, that still does not make it a free-for-all in which law can be ignored with impunity. <\/p>\n \n

The extreme tactics of the Iraqi regime – such as deploying troops out of uniform, using suicide bombers, and using human shields – clearly violate the international law of war. The central principle of the law of war is protection, insofar as possible, of the civilian population. Saddam Hussein’s forces flout the letter and spirit of that principle. They deliberately aim to make it difficult for U.S. and British troops to score military victories without causing substantial numbers of civilian casualties.<\/p>\n \n

The illegality of the war in the first place provides the Iraqi regime with no justification or excuse for its own unlawful efforts to imperil civilians.<\/p>\n \n

If Two Wrongs Don’t Make a Right, Neither do Three Wrongs<\/b><\/p>\n \n

By the same token, the immorality and illegality of Saddam’s tactics do not provide a warrant for U.S. and British forces to cut corners in seeking to minimize civilian casualties. That is the third principle to keep in mind.<\/p>\n \n

Even if Saddam Hussein bears ultimate responsibility for most of the civilian casualties, we bear some responsibility as well, as an analogy to domestic police practice illustrates. <\/p>\n \n

Suppose a kidnapper were holding a group of civilians hostage in a building. One option the police would have would be to simply destroy the building. But of course, that option would be illegal and immoral – even though it would eliminate the kidnapper. <\/p>\n \n

It’s the kidnapper’s fault the hostages were trapped in the building in the first place, just as it is Saddam’s fault that Iraqi civilians are placed at risk. But that fault, while it places moral responsibility on the kidnapper, does not give the police a license to kill. They still are bound by their ordinary duty: Avoid killing civilians if at all possible. <\/p>\n \n

In any event, this is a case in which legal, moral and strategic considerations point in the same direction. Saddam wants<\/u> U.S. and British troops to inflict civilian casualties because it helps him win the war for hearts and minds. <\/p>\n \n

For the same reason, as well as others, our troops should make every effort to avoid civilian casualties – no matter how strongly Saddam Hussein may invite them.<\/p>\n \n

Beware the Logic of Escalation<\/b><\/p>\n \n

My final principle is drawn as much from the esoteric mathematical world of game theory as from past military experience: Beware the logic of escalation. Actions that appear rational, when taken one at a time, can lead to disaster in the long run.<\/p>\n \n

In a 1971 paper, economist Martin Shubik described a parlor game he invented called the “dollar auction.” The rules of the auction are simple: The “house” auctions a dollar to the highest bidder, but unlike in a conventional auction, the second-highest bidder, who receives nothing, must also pay his bid to the house. Bids must be in increments of a penny.<\/p>\n \n

Suppose the high bid by A is twenty-five cents, and the next-high bid is twenty-four cents by B. Then A pays the house a quarter and gets back a dollar, while B pays twenty-four cents and gets back nothing. <\/p>\n \n

In that example, A is the big winner (up seventy-five cents), while the house (down fifty-one cents) and B (down twenty-four cents) lose. But the example is not realistic. The game is designed to bankrupt both A and B. Let’s see how.<\/p>\n \n

A bids first. By paying a mere penny, he can win a dollar, a profit of ninety-nine cents. Now it’s B’s turn. A two-cent bid nets him ninety-eight cents. Next, A faces the choice of forfeiting his penny or bidding three cents and netting ninety-seven cents. That looks like an easy call. The game continues this way, back and forth.<\/p>\n \n

One might think that when the bidding approaches a dollar, the game ends, but that’s not so. Suppose that A’s last bid was ninety-nine cents. It now makes sense for B to bid a dollar. If he doesn’t, he forfeits ninety-eight cents, his last bid, whereas if he bids the dollar, he breaks even. Now what does A do? If he calls it quits, he’s out his ninety-nine cents, but if he bids $1.01, he’s only down a penny. So he’s in.<\/p>\n \n

The game continues this way until A and B are bankrupt. That’s because at every point in the auction, it is rational for the party who has made the second-highest bid to submit a still-higher bid. The earlier bids are a sunk cost, and by raising the bid just two cents over his prior bid, a player can get back a dollar. Then the high bidder becomes the second-highest bidder, and the cycle repeats itself.<\/p>\n \n

The result? A rational person won’t enter the dollar auction in the first place, seeing where it eventually will go. <\/p>\n \n

This is the logic of escalation, and while it does not map perfectly onto the war in Iraq, there are dangerous parallels. <\/p>\n \n

Here’s how escalation has worked so far: The Bush Administration hoped to liberate Iraq from Saddam Hussein at relatively low military cost. But the Iraqi regime did not immediately cave. So the Administration began to adapt its military strategy to “bidding higher,” by preparing for heavier American and British casualties. <\/p>\n \n

It’s possible escalation may stop, if – for instance – the shock-and-awe campaign leads to regime implosion. But if not, a siege of Baghdad, with increasing casualties, may ensue. And after that, urban warfare, with still more casualties, may follow. <\/p>\n \n

At each stage, the prize on the table–the equivalent of the house’s dollar–is the same: a disarmed and democratic Iraq. And each additional level of escalation–the equivalent of each new penny bid–may be rational given the sunk costs (that is, the costs already expended in the past). <\/p>\n \n

Nevertheless, the “game” may not be worth the candle. The ultimate cost may be so high that, had it been contemplated from the beginning, there would have been considerably less support for entering the war. Like the rational person who would never have played the dollar auction in the first place, the rational nation would never have started the war.<\/p>\n \n

We don’t know how the war in Iraq will end, nor do we know what will follow war. But the time to think about the risks from the worst-case scenarios is now, when some of them can still be averted, rather than later, when it may appear rational to court disaster.<\/p>\n \n

In thinking about what lies ahead, let’s hope our leaders do not take too much comfort in game theory. As mathematical psychologist Barry O’Neill has demonstrated, it turns out that there is an optimum bidding strategy for each player in the dollar auction, one in which the house loses. But the strategy only works if two conditions hold: both A and B must fully understand game theory and both must act perfectly rationally. Would you bet a penny that a cornered Saddam Hussein will satisfy those conditions?<\/p>\n \n\n\n<\/span>\n\n\n\n

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\n\n\n<\/a>\nMichael C. Dorf is Professor of Law at Columbia University.\n

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