----

HOW DOES THE LAW OF WAR APPLY WHEN TERRORISM IS PREVALENT?
A Review of George Fletcher's Romantics at War


By MATT HERRINGTON


----
Friday, Dec. 6, 2002

George P. Fletcher, a distinguished Columbia University law professor and noted scholar, cannot be chided for a lack of ambition. His latest book, Romantics at War, sets out to "bring some clarity" to concepts such as war, justice, terrorism, and self-defense. The meanings of these concepts, of course, were hardly settled even prior to September 11, and things have only gotten cloudier since then.

A large chunk of Romantics at War is devoted to the interesting question of how the law of war fits with our contemporary world of undeclared wars, terrorism, and rogue states. This issue also gives Professor Fletcher a convenient launching point into the current debate over military tribunals, and the much-discussed category of "unlawful combatant".

This book falls short of the lofty goals the author sets for himself, but it is consistently both erudite and thought-provoking.

As Fletcher notes, the law of war, as it has developed, can only consistently and sensibly be applied to large wars between well-organized, centrally controlled uniformed forces. What Fletcher does not sufficiently stress is that such wars have constituted only a terribly small fraction of the conflicts of the past century, much less the past millennium.

In any event, Professor Fletcher is at his best in tracing the uncertain, unhappy and haphazard development of the law of war as applied to irregular forces and actions. It all begins, as with so many things in international law, at Nuremberg. There, as Fletcher explains, the "Romantic" (read: nationalistic) ideas of collective action and responsibility were swamped in the rising tide of what he terms "liberal" or Enlightenment conceptions of free will and individual responsibility.

The conflict between two opposed world-views led to difficulties of definition: What constituted a military "act of state," and what constituted a crime by an individual or group? And, what acts were in between - such as terrorism and crimes against humanity - and what should be done about them?

Since procedures and laws are essentially invented to fit the offense in this third category (think of Nuremberg or a contemporary military tribunal), the definitional questions were crucial. And, as early as Nuremberg, the Enlightenment began to win out. Of course, the "act of state" doctrine did not truly die off until Pinochet was extradited - and for some, not even then; the extradition still faces some criticism.

Criminals, War Criminals, Or Soldiers? The German "Invasion"

One good illustration of the problems of sorting among the three categories of actions arises from the incident when, in June 1942 two teams of German saboteurs landed in the United States. They were more than spies, since they intended to wreak havoc; no doubt we would call them terrorists today. Their capture and trial led to the Supreme Court case Ex Parte Quirin - a precedent relied on by the Justice Department to support post-9/11 measures.

The invaders of 1942 were apparently not the steeliest volk the Third Reich had to offer, as within days of landing one of them had confessed all and given up his compatriots to the F.B.I. Franklin D. Roosevelt directed his attorney general to court-martial the captured Germans - rather than trying them criminally in a federal district court. He did so even despite the fact that, at the time, the Geneva Conventions placed limits on the treatment of captured combatants, as they continue to do today. The Germans were court-martialled; their appeals were denied; and they were duly executed.

Even at the time, Roosevelt's decision was on shaky legal ground. During the Civil War era, the case of Ex Parte Milligan famously expounded that the courts of the United States were the exclusive organs of justice within our borders.

Yet in considering what to do with the German saboteurs, Roosevelt seized on a different case entirely: a Revolutionary War precedent in which a Brit in cahoots with Benedict Arnold was captured, tried by a military court, and executed in three days time. Of course, there was then no Constitution - and certainly no Geneva Conventions - with which to contend.

In any event, the Roosevelt Administration should not have worried. Ultimately, the Supreme Court - speaking through no less than Chief Justice Harlan Fiske Stone - retroactively approved the executions, in Ex Parte Quirin, even though they had occurred outside the normal justice processes of the courts of the United States, and outside the strictures of the Geneva Conventions as well.

How was this possible? The Court had a simple answer: haberdashery. Writing an unseemly eight months after the saboteurs had been executed, the Court held that the Germans, having shed the uniform of their nation, had likewise shed the protections of the laws of war. Thus they were, in the phrase Chief Justice Stone coined, "unlawful combatants."

Was the Court Justified In Ignoring Ex Parte Milligan?

But what about Ex Parte Milligan - the Civil War case that had said the federal courts' jurisdiction was exclusive, and thus seemingly render court-martials of non-military-personnel illegal? Milligan himself, after all, was not a soldier, but a civilian. And according to the Court, the Germans who'd taken off their uniforms weren't soldiers, either.

Then why didn't they have the right to federal court trials too? Were they just enough soldiers to fall outside the rule of Milligan, which would otherwise have entitled them to federal court trials - but, at the same time, not quite enough soldiers to fall within the Geneva Conventions, entitling them to be treated as POWs rather than being executed? Did they deserve the worst of both worlds?

Sounds crazy, right? That is what Professor Fletcher thinks. But I think the "worst of both worlds" treatment actually makes perfect sense.

The Germans obviously were not civilians; they had conspired to sabotage American targets at Germany's behest. But when they took off their uniforms and set out to do skullduggerous harm in plainclothes, they forfeited their license to act as capital "S" soldiers within the meaning and protection of the Geneva Conventions. They were indeed "unlawful combatants," in my view - just as the Supreme Court held. And while it makes sense for opposing sides to exchange POWs at the end of the war, rather than executing them all, it is a powerful deterrent against sabotage (and its cousin, terrorism) to execute saboteurs (and by extension, terrorists.) In short, rules matter.

As Fletcher makes clear, which side you take in interpreting the Invasion case will pretty much determine where you come out on the current debates - or visa-versa. As a result, this part of the book is extremely pertinent and welcome: Whether or not one agrees with Fletcher, it sharpens and clarifies the issues that confront us now.

What Fate for the Guantanamo Detainees?

Discussing the justice to be dispensed in Guantanano, Fletcher asks, for instance: "What kind of justice would it be? The justice of a civilized nation or the quickly dispensed judgments of a bloodthirsty avenger?" But surely one can debate this issue without such schoolyard rhetoric. A court-martial is hardly equivalent to bloodthirsty revenge, and the justice of a civilized nation need not always be meted out exclusively through the federal courts.

This, and a few other lines in the book, may lead some readers to think that Professor Fletcher defines Romanticism as knuckledragging Republicanism, and liberalism as the best the left has to offer. The irony of the situation from this vantage, of course, is that the left currently finds itself in battle with a precedent set down by none other than President Roosevelt.

Collective Versus Individual Guilt: Lenience For Timothy McVeigh?

The last third or so of the book takes up a slightly different but also interesting question, again deriving from Nuremberg, and again highly relevant in the contemporary world: What is the relevance of the fact that a person is acting on behalf of a collective? Does it mitigate or aggravate his or her guilt? And, how should it affect the punishment due?

Relevant questions might include (but not be limited to) these: How outrageous was the conduct in question? Was it a violation of domestic law? Of international human rights law? Would the violation have been obvious to the individual? Did the individual have any discretion to refuse to perform the conduct, or would that have resulted in his own death (or another penalty)? How genuine was the collective force that the individual claims to have animated his actions?

Taking an example from the book, after the fall of the Berlin Wall, a former East German border guard was prosecuted for murdering his fellow citizens who had attempted to escape East Germany by scaling the Wall. He was convicted, but you could make a plausible case for acquittal. Obviously, the guard was carrying out state policy under orders, however reprehensible, and probably lacked discretion to refuse.

Fletcher argues that where an individual's crime has some legitimate collective wellspring, a principle of leniency should mitigate the punishment the individual suffers. I think that's an awfully dangerous idea, even considered in the abstract, but the examples he chooses make the point. Timothy McVeigh, and Yigil Amir, Yitzhak Rabin's assassin, deserve leniency, Fletcher argues, since both had a collective axe to grind. (What was McVeigh's collective: angry young white men who hate the government?) So too, Fletcher suggests, with the Unabomber (!) and Milosevic (!!) - after all, at least they had a cohesive intellectual program undergirding their actions.

Could Fletcher convince David Gelertner, one of the Unabomber's prominent victims, of the relevance of some asserted collective motivation to the guilt and punishment of his cowardly attacker? I sure doubt it. The arguments Professor Fletcher makes don't threaten a slippery slope, the very examples he points to are deep, deep in the morass.

On the whole, Romantics at War is a provocative and intelligent book. Unfortunately, it is also one that slips, at times, into overheated rhetoric, and in its last section, comes dangerously unhinged. Nevertheless, even one who disagrees with Fletcher's conclusions will appreciate his generally lucid explication of what is - and was - at issue in the evolution of the laws of war.


Matthew Herrington practices law in Washington, D.C. His email address is mherrington@wc.com.

FindLaw Career Center

    Select a Job Title


      Post a Job  |  Careers Home

    View More