Why Counterterrorism Mocks the Laws of War

Stephen Holmes’s research centers on the history and recent evolution of liberalism and antiliberalism in Europe, the 1787 Constitution as a blueprint for continental expansion, the near-impossibility of imposing rules of democratic accountability on the deep state, the traumatic legacy of 1989, and the difficulty of combating jihadist terrorism within the bounds of the Constitution and the international laws of war. In 1988, he was awarded a Guggenheim Fellowship to complete a study of the theoretical foundations of liberal democracy. He was named a Carnegie Scholar in 2003-2005 for his work on Russian legal reform. Besides numerous articles on the history of political thought, democratic and constitutional theory, state building in post-Communist Russia, and the war on terror, Holmes has written several books, including The Cost of Rights: Why Liberty Depends on Taxes, co-authored with Cass Sunstein (1998), The Matador’s Cape: America’s Reckless Response to Terror (2007), The Beginning of Politics, co-authored with Moshe Halbertal (2017), and The Light that Failed. A Reckoning (2019). After receiving his PhD from Yale in 1976, Holmes taught briefly at Yale and Wesleyan universities before becoming a member of the Institute for Advanced Study at Princeton University in 1978. He later taught at Harvard University, the University of Chicago, and Princeton before joining the faculty at NYU School of Law in 2000.


He was invited at EHESS to present a paper on “Why Counterterrorism Mocks the Laws of War” at the CESPRA Séminaire de Philosophie Politique Normative.


The interview was conducted by Luc Foisneau at the EHESS Audiovisual Center, 96 boulevard Raspail, on 18th April 2017.

Edited by Serge Blerald

Luc Foisneau – You are a well-known expert on liberalism, with a special interest on French liberal thinkers such as Benjamin Constant1. What would you say to a student wishing to study political history?

Stephen Holmes – A working definition of social science is “history with the events left out.” The world is made up of events. What happens to France if Marine Le Pen is elected President? What happens to the world if Donald Trump is elected? Elections are events. Wars are events. Revolutions are events.  Pandemics are events. You cannot study society without attending to the known unpredictability of future events. This is as true for political theory as for any other discipline within the social sciences. 


And the particular advantage, I believe, of students studying the history of political thought for understanding the contemporary world is that historians of political theory necessarily read classics, such Thucydides, Machiavelli, Hobbes, Tocqueville, and so forth, thinkers who were very sensitive to the way in which political actors behave even in contexts where state institutions have collapsed. And because we are in a period of the dissolving or unraveling of the institutional structures the West has lived in since the Second World War, reading political history will help students have large vistas and large horizons of historical experience. Students of the history of political theory, unlike most students of political science, are unlikely to believe that monarchy, for example, is an anomalous political system. After all, monarchy is the most common political system in human history. Understanding why monarchies arise, evolve and decay can also help us make sense of today’s world where democratic regimes are everywhere in crisis and many citizens seem ready to embrace government by a strongman. Studying political history, as every student of political theory must do, can help our societies respond with less panic, and less disorientation, to this new age, an age of considerable political confusion.

Luc Foisneau – You have published a book called The Matador’s Cape: America’s Reckless Response to Terror2 in which you reflect on how the American response to 9/11 went wrong. Could you tell us more about the way you think of this misleading notion of a “war on terror”?

Stephen Holmes – The traditional laws of war – codified really for the first time in the 19th century – developed under conditions of symmetrical war. You had two armies fighting each other. And the soldiers on both sides were innocent. Indeed, they were politically obliged to fight for their side. In the war on terror, by contrast, the entire enemy army is made up of individuals who are considered war criminals. This is a very different kind of war than was contemplated by the traditional laws of war.


Second, such symmetrical wars, and the laws of war developed to reduce somewhat the horror of war and to make ending wars somewhat easier, developed with the expectation that, after war, there would be peace. Many of the inhibitions on soldiers, on the way soldiers behave in war, derived from the expectation that the war would end and that the nations that were at one point belligerent would live together in peace. This obviously also is irrelevant to the war on terror. There is no expectation that the Western countries are going to live in peace with the members of ISIS or al-Qaida.


So, the obvious inability of the laws of war to seriously regulate counterterrorism derives in part from the fact that these two conditions (that war was fought between legitimate combatants and that war would eventually be followed by peace) are missing in the case of the so-called war on terror.

Luc Foisneau – But, still, is there a sense to speak of a liberal counterterrorism?

Stephen Holmes – I think I want to frame this in the context of the question of whether liberalism – classical liberalism, from Locke to John Stuart Mill, Montesquieu, Benjamin Constant, and so forth – provides an adequate framework for dealing with terrorism as we understand it today, particularly radical Salafi terrorism. And it is possible, if you look at the origins of liberalism and religious civil war – as a historian of ideas would do – to conclude that, in fact, it is not just probable, but certain that liberalism was originally a response to religiously inspired violence, an attempt to reduce mimetic violence, in particular.


In general, my understanding of liberalism does not focus on unregulated markets and individual consumerism, but on the deepest and most enduring challenge to human society, which is mimetic violence. That is, when you or some member of your group hurts a member of my group, I am driven – it is hard-wired into human nature – to attack your group, and I do so in a way that I think is proportional, but which you see as excessive. From these clashes follows a spiral of violence. The flames of mimetic violence are cycles of revenge, which can easily overtake and destroy societies from within.


And political development, including state building in all its forms, relies upon different mechanisms for reducing mimetic violence, including using “blood money” to assuage the revenge impulse. But liberalism itself has, I think, in essence, been fundamentally designed to reduce spirals of violence by focusing on the individual culpable for injuring another. The guilty individual alone – not his kinship group, or his community, or his nation, or his race – should be held responsible and suffer the consequences.


And I think one of the great mistakes, I would say, or the great fallacies, behind the American response to 9/11 in particular, was to accept Ben Laden’s invitation to join a spiral of violence, and to attack not those who perpetrated the crime, those who organized the crime, or those who gave logistical support to the crime, but some kind of amorphous “Arab” community that was ostensibly responsible for injuring us in this way. And that decision to choose what I would call mimetic or expressive violence – violence that makes us feel strong again, and not just a victim – rather than to think through the obvious consequences of overkill – namely, excessive collateral damages following inaccurate targeting, mistaken identity killings, and especially the killings of civilians who were not really involved in the original act – produced ever more violence, as it was bound to do.


So, in a sense, the main lesson of liberalism, which is how to discipline violence so that it doesn’t produce more violence, has been lost in the war on terror. And it was lost, in part, in an attempt to apply the category of war to the category of counterterrorism. This is very misleading. I think it shows the failure to understand the contribution that liberalism can make to fighting terrorism.


For liberalism – and I think this is one of its central contributions to crime fighting – is committed to the presumption of innocence. Presumption of innocence means that I have to prove, to give evidence, to give arguments, in an adversarial setting, to show that you have done something wrong. Now, obviously, in war, there is a presumption of innocence. The soldiers are innocent, but you can kill them. Not only are you allowed to, but you are commanded to kill them. So, the presumption of innocence puts no limit on the use of violence in war, which is why the category of war is so destructive for dealing with a group of radical fanatics whose main desire is to have us indiscriminately attack their communities, and thereby produce more recruits to their crazy cause.

Luc Foisneau If the notion of a “war on terror” has produced such damaging effects, why do you think that a criminal law approach would be a more appropriate answer to a terrorist threat?

Stephen Holmes – Terrorism is obviously sui generis. It is neither crime nor war. It is not war because it is not an armed conflict between nation states, which is war. And it is not crime because, you know, ordinarily a bank robber doesn’t blow himself up in order to inspire other bank robbers. So, it is something particular.


And although the criminal law is not well designed to meet the threat of terrorism, certain principles that are essential and encoded in the liberal criminal justice systems of Western countries are quite relevant, I think. And the two most important of these principles are, on the one hand, the just-mentioned individualization of culpability: going after individuals, making sure that you don’t radicalize members of the community by conveying the message that those who have done nothing are going to be killed anyway, which is something we have been doing with indiscriminate drone attacks, and so forth.


And the second – this is equally important, and essential to my understanding of liberalism as a political doctrine that cannot be reduced to individual consumerism and unregulated markets – is the necessity of sanity checks on government decision making: a liberal government is one that is designed so that a justification for using force has to be given to an independent tribunal that has the power to say ‘No’, that has the power to criticize, and to ask for evidence. If the government is excused from giving reasons for its use of violence, it will soon have very few reasons for its actions, it will soon be doing things that are in fact productive of more violence, that actually accelerate the spiral of violence that I was just talking about.


So, liberalism, by its institutional structures, such as the criminal trial, the legislative oversight of executive action, as well as other institutional forms that enforce obligatory reason-giving on the part of the government – although we have to be realistic here, this isn’t a perfect solution – does push in the direction of sanity checks on governmental use of force, and tends to reduce the amount of indiscriminate force being used – which is something that the armed-wing of the state bureaucracy, left to marinate in its own adrenaline, is not likely to do.


In this sense, you can see the difference between crime fighting and war fighting. It is very tempting for a military unit, if there is a very important terrorist in a building, to simply blow up the building regardless of who is in the building. A police department, by contrast, is not going to blow up a building killing civilians just because there is a drug lord ensconced there. They won’t do it. Why? Because the police have, through time, understood that the most important source of police power is open communication with the community. It cannot behave in a way that arbitrarily abuses the community if it wants information from the community about malefactors and criminals.


Now, you would think that this has obvious relevance to the war on terror because terrorists are often hidden within communities. And you obviously need to make sure that information is coming from the community – people who are snitches or giving you information about terrorists. And, therefore, you should use this principle of, not chemotherapy (which is killing healthy cells in order to get the one diseased cell), but very strong prejudice against overkill and collateral damage on the grounds that you need cooperative relations with the community.


War doesn’t tend to do that. Maybe it should. But the basic idea in war is that the enemies are all wearing uniforms and you can kill all of them. You are not dealing with the civilians. In the laws of war, you have the principle of distinction, which instructs soldiers not to kill civilians, or not to target civilians purposely. But you have to understand the origin of that principle to see why it is not relevant and doesn’t apply in the war on terror.


The origin of the principle of distinction cannot be found in the great lobbying power of innocent civilians who were cleverly able to incorporate their interests into the laws of war. The laws of war were written by military authorities. Why would they make a distinction between civilians and soldiers? The answer is that, if their soldiers have a choice between, on the one hand, running into the guns and bayonets of an armed enemy who wants to kill them and, on the other hand, going into a city where they can rape the women and steal, they are going to do the thing that is safest for them, and most attractive. But their officers cannot let soldiers do that. So, they make it a very strong criminal violation, including leading to execution, to waste ammo on civilians, as opposed to facing the enemy.


Now, that rationale – which is the rationale of order and discipline, not a rationale of the human rights of the sufferers – does not apply in air combat because the guys in the airplanes cannot steal and rape. So they are not tempted to do that. And it doesn’t apply in terrorism cases because these guys are injected into a context, such as what we just saw in the mountains of Afghanistan, where the enemy is a group of criminals who apparently deserve no quarter.

Luc Foisneau – In The Light that Failed you write that for “many disillusioned citizens, openness to the world now suggests more grounds for anxiety than for hope.” What is your analysis of the present anxiety in liberal societies and the international order?

Stephen Holmes – I want to talk about both the anti-liberal Zeitgeist today and the collapse of the international order. The evolution of counterterrorism toward policies which are classically illiberal, or anti-liberal, such as, firstly, reduced procedural guarantees for those who are accused of committing heinous crimes – which is a very illiberal idea, because you have to establish that they committed the crime before you can reduce their procedural guarantees – and, secondly, punishing people for crimes they may commit in the future, are using the criminal law to prevent people who are innocent of crimes thus far from committing crimes that you suspect they may commit. Those are two very anti-liberal policies which we see everywhere, including in France. The most notorious is surely preventive detention.


This evolution fits into what I would say is a general loss of credibility of post-war liberalism, deriving from the fact that the open economy, which is a very important liberal value, is associated inextricably with open demography. And today, I think the source of cultural anxieties, from which illiberal politics springs, reflects a fusion of two threats. One is terrorism (infiltrator terrorists underground who may attack our societies). And the other is a threat to identity from immigrants.


Somehow, mysteriously, the terrorist threat and the immigration threat have become irrationally fused in the public mind, producing a general sense that our order cannot hold. Liberalism, unfortunately, has traditionally been associated with principles such as toleration, which today seems more like an advantage for employers who want low-skilled workers and middle-class women who want low-wage house cleaners. So, toleration becomes associated with a class bias, and with the idea of open borders. Liberalism is pretty comfortable with restricting the flow of goods. Tariffs are a completely liberal principle. But the free flow of peoples is something that liberalism has a hard time finding a reasonable objection to.


Nationalists, chauvinists, communitarians, and identity politicians have a much stronger argument there, which is to say: “They are not us.” You know, the basic illiberal line that you hear everywhere: “It’s not our country anymore, because others are sneaking in.” In the US, it is the idea that we “genuine Americans” are a white lump of sugar being dissolved in a black cup of coffee, and that we are going to lose our nature, our contours, ourselves, in some way.


Why this is related to terrorism is not, I think, unclear. But I believe that there is a sense of threat that is making it hard for liberals to defend open borders. The world is, in effect, made dangerous by the amazing technological achievements of our society: cheap airline tickets, GPS, ATMs, all things which terrorists can use to hurt us. The open society is permeable and vulnerable. And we cannot close borders off. Therefore, we have to learn how to manage. And this is another reason why we should deal with terrorism as a form of crime. Criminal law has centuries, millennia of practice of dealing with a threat of violence that will not go away. That is another reason why the law enforcement paradigm (which assumes that there will always be crimes) is better suited to the threat of terrorism than the war paradigm (which assumes that conflict will at some point cease).


The international order, I agree, is very much in question today. NATO, the European Union… You have three candidates in France running for the presidency3 and three of them are anti-European and vaguely pro-Putin, which is extremely bizarre. However, it does mirror very exactly the policy of Donald Trump4, as far as we know. So that shows you that there is, again, an anti-liberal Zeitgeist abroad in the world.


From the point of view of Trump, there is nothing more disturbing than the European Union, because a trading bloc, or an internationally organized trading system, makes it much harder to bully and domineer. In order to bully and domineer, in international trade, you need bilateral relations. So, he is devoted to turning the clock back, to bringing us back to a time where trading relations were bilateral, because that is a place where you can bully and dominate.


And, as we know from the history of the 20th century, bullying and domination in foreign bilateral trade is a source of world conflagration. So, I am very worried that the liberal commitment to international, or multilateral, economic cooperation is being weakened, along with the commitment to liberal principles in fields such as counterterrorism.


Unfold notes and references
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See Stephen Holmes, Benjamin Constant and the Making of Modern Liberalism, New Haven, Yale University Press, 1984. See also Passions and Constraint: On the Theory of Liberal Democracy, Chicago, University of Chicago Press, 1995.

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Stephen Holmes, The Matador’s Cape: America’s Reckless Response to Terror, Cambridge, Cambridge University Press, 2007.

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When the interview was conducted, on 18th April 2017, Emmanuel Macron had not yet been elected president of the Republic (7th May 2017).

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Donald Trump was elected president of the United States on 8th November 2016.