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Terror and Consent by Philip Bobbitt

All considerable thinkers start with a problem. In the case of Philip Bobbitt, the problem is adumbrated in the title of his formidable new book: along with all the other aspects of civilised existence that terrorism threatens, it undermines the basis of liberal democracy, which is the consent of the governed to submit to the laws made on their behalf by their governors. These polities, which Bobbitt calls “states of consent”, have already undergone a profound metamorphosis from nation states to “market states”, according to the theory first put forward in his earlier work The Shield of Achilles. Now the globalised market state has come under attack by equally global “states of terror”, of which al-Qa’eda is the paradigm. The coercive measures that the market state has been forced to take in order to survive now endanger the consent on which the rule of law depends. So democracy is damned if it defends itself and damned if it doesn’t. This is Bobbitt’s paradox – and our problem.

The most striking thing about Terror and Consent is the uncompromising bluntness of its message. The cover already proclaims the need to junk most of what we think we know on the subject: “Almost every widely held idea we currently entertain about 21st century terrorism and its relationship to the wars against terror is wrong and must be thoroughly rethought.” He does not mean that the danger is now receding, let alone over, or that it is limited to damage to life and limb – he means that it is much greater than others have so far acknowledged. He quotes Lord Hoffmann, who in a celebrated judgement rejected the Blair Government’s right to detain terrorist suspects indefinitely without trial: “Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.” That terrorism does indeed pose such a threat is Bobbitt’s contention. He adds: “The main thing wrong with this conclusion… is that it omits one word at the end of the paragraph. That word is ‘yet’.” To those – such as the British Government under Gordon Brown – who think the whole notion of a “war on terror” is at best an unhelpful misnomer and at worst a gross exaggeration, Bobbitt has this to say: “We should make no mistake: this is war.”

Readers familiar with Bobbitt’s reputation will know that he has been a harsh critic of the Bush administration, particularly of its record in Iraq and Afghanistan, of its use of detention and coercive interrogation at Guantanamo and elsewhere, as well as of its public diplomacy towards friend and foe alike. So the drastic prescriptions advocated in Terror and Consent may come as a shock to those who share Bobbitt’s critique of US policy since 9/11.

Let us take the uniquely sensitive issue of torture. Bobbitt believes that, while torture should always be outlawed, it is still necessary in extreme cases, provided that the interrogator accepts the consequences: “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: the prosecutions that must follow will allow juries to consider the mitigating question of whether a reasonable person, motivated by a sincere desire to protect others, would have violated the law.” Most people, faced with something like the “ticking bomb” scenario, would commit torture. But Bobbitt extends the exemption to include the torture of terrorist leaders with exclusive knowledge of long-term plans to commit attacks. And thus his justification of coercion goes further: “There cannot be a ban on the collection of strategic information – information from terrorist leaders and senior managers – by whatever means are absolutely necessary short of inflicting severe pain when that information is likely to preclude further attacks, when it is disconfirmable by interrogators (and thus the means used are actually no more violent than is necessary), and when a non-governmental jury has decided that the government has met its burden of proof in establishing these matters.”Despite his habit of resorting to jargon (such as “disconfirmable”), Bobbitt could not be much clearer: he is here defending the use of torture on a much more extensive scale than the Bush administration has hitherto advocated, let alone practised. From Bobbitt’s insistence that the state of consent is fighting a war for survival, much follows. He suggests, for example, that al-Qa’eda terrorists “have sworn allegiance to a virtual state” and thus, after due process (a process that must be “internationally recognized”), they “can be coercively interrogated should they refuse to surrender their most dangerous weapon, their deadly plans”. Or, to put it more succinctly: “Sheikh Khalid Mohammed is not Jean Moulin.”

Bobbitt’s strategy for winning the wars – he emphasizes their plurality – on terror depends on a three-pronged offensive: fighting terrorism, preventing the proliferation of WMD and dealing with the consequences of humanitarian catastrophes. He argues that the impressive US diversion of military resources to aid the victims of the 2004 south-east Asian tsunami was a victory in the battle for hearts and minds, no less than the overthrow of Saddam or the Taliban. But he is worried that the West is complacent; it does not feel sufficiently threatened by the concatenation of global terrorism, WMD proliferation and humanitarian disaster which he thinks could together bring about a collapse of democracy and “an indefinite period of martial law”. It is Bobbitt’s background as a professor of jurisprudence that makes him attach supreme importance to the rule of law and to the notion of consent. His primary concern throughout is to preserve the legitimacy of that fragile construct, the modern liberal democratic polity that the terrorist organisations and their despotic allies (“states of terror”) wish to destroy. To this end, he advocates a reform of international law designed to make trading in WMD a crime against humanity, to create a standing international Terror Court which could try terrorists in absentia, and much else besides. Unfortunately, he still believes in the ability of the United Nations Security Council to bring these things about. The UN is no more likely to follow his advice than Israel is likely to trust its neighbours sufficiently to renounce nuclear weapons, as he also proposes.

If on occasion Bobbitt’s ideas sound naïve, he is equally capable of startling insights. His distinction between states of terror and states of consent is illuminating when applied to the question of sovereignty. He suggests that other states may lawfully intervene against such a “state of terror” to halt proliferation of WMD, genocide, international terrorism or to forestall a humanitarian catastrophe ignored by the regime. Bobbitt’s doctrine of sovereignty – as the exclusive attribute of a state of consent, but denied to states of terror – would justify pre-emptive intervention not only in Bosnia, Kosovo, Afghanistan and Iraq, but in Iran, Syria, North Korea, Gaza, Sudan, Zimbabwe and many other “states of terror”. He wants international law reformed to recognise the circumstances in which states are entitled to sovereignty – otherwise, as he admits, rogue states might exploit his doctrine to seek pretexts for aggression. Though he does not make the comparison, Bobbitt’s theory of sovereignty is not so very different from neoconservatism, which argues that democracies never launch wars of aggression against each other, and that it is therefore in America’s national interest to promote democracy and fight tyranny.

Bobbitt concludes this alarming but never alarmist book with A Plague Treatise for the Twenty-First Century. In such plague treatises, medieval physicians tried to explain to their contemporaries epidemics that they could not possibly diagnose correctly, let alone cure. Bobbitt concedes that he is groping for the answers. His analysis of the wars against terror includes the eloquent admission that “we can only know an epochal war for certain when it is past, and that past is, for the present, deep in our future”. Not even Professor Bobbitt can predict future plagues, but he is sure that if and when al-Qa’eda is eradicated, it will be succeeded by new terrorist threats. He sees “the Islamist flu” as an opportunity to build up our immune systems: our alliances and laws, always seeking consent for each step. The failure to seek consent is his most severe indictment of the Bush administration – though not altogether a fair one. (Does Bobbitt really think that putting terrorists in “an offshore penal colony” was done without consent in the aftermath of 9/11? It was only much later, after the Iraq war, that public opinion turned against the use of Guantanamo.)

Terror and Consent is not an easy book to read, though it includes useful summaries along the way. It is strongest on the legal issues raised by war, less surefooted on the politics, and not at all interested in the gruesome detail of what terrorists actually do. For that, you need to read Michael Burleigh’s Blood and Rage. But Bobbitt’s more abstract approach is also useful, providing a conceptual framework within which to make sense of the West’s predicament. Terror and Consent is a major contribution to what one might call the theory of terrorism. Expertise in this field is vital, though not easy to come by. As Bobbitt observes, we have had a good many big ideas on international security in the last 20 years: “What is wrong with all these big ideas is that they were not in fact big enough.” Bobbitt’s ambition is to provide a grand, overarching theory of terrorism that embraces politics, strategy and law. It is a noble ambition and this is an important book that I recommend to anybody who is thinking about the long term. I am not sure that Bobbitt has all the right answers, but he has certainly asked many of the right questions. Whether the West will win the wars against terror that he foresees will indeed depend on preserving democratic consent for the measures we may be forced to take. But we shall only gain and keep that consent if people know what kind of civilisation it is that we are trying to preserve. That is the task of a magazine such as Standpoint.

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