The Barnes & Noble Review

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, where he argues that we are in the midst of a fundamental transformation: from the nation-state of the 20th 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 401(k)s. 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 President 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 that had been given contracts with the U.S. 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 that "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. --Richard Pious

Richard Pious is Adolph and Effie Ochs Professor at Barnard College and the Graduate School of Arts and Sciences, Columbia University. He is the author of The President, Congress and the Constitution (1984) and The War on Terrorism and the Rule of Law (2006), among other works. He has recently published articles on military tribunals, interrogation of detainees, warrantless surveillance, and war powers.

From the Publisher

An urgent reconceptualization of the Wars on Terror from the author of The Shield of Achilles (“magisterial”— The New York Times, “a classic for future generations”—The New York Review of Books). In this book Philip Bobbitt brings together historical, legal, and strategic analyses to understand the idea of a “war on terror.” Does it make sense? What are its historical antecedents? How would such a war be “won”? What are the appropriate doctrines of constitutional and international law for democracies in such a struggle?

He provocatively declares that the United States is the chief cause of global networked terrorism because of overwhelming American strategic dominance. This is not a matter for blame, he insists, but grounds for reflection on basic issues. We have defined the problem of winning the fight against terror in a way that makes the situation virtually impossible to resolve. We need to change our ideas about terrorism, war, and even victory itself.

Bobbitt argues that the United States has ignored the role of law in devising its strategy, with fateful consequences, and has failed to reform law in light of the changed strategic context. Along the way he introduces new ideas and concepts—Parmenides’ Fallacy, the Connectivity Paradox, the market state, and the function of terror as a by-product of globalization—to help us prepare for what may be a decades-long conflict of which the battle against al Qaeda is only the first instance.

At stake is whether we can maintain states of consent in the twenty-first century or whether the dominant constitutional orderwill be that of states of terror. Challenging, provocative, and insightful, Terror and Consent addresses the deepest themes of governance, liberty, and violence. It will change the way we think about confronting terror—and it will change the way we evaluate public policies in that struggle.

The New York Times - Edward Rothstein

…powerful, dense and brilliant…there is so much to think about in this book that the disagreements it inspires are part of its value.

The New York Times Book Review - Niall Ferguson

This is quite simply the most profound book to have been written on the subject of American foreign policy since the attacks of 9/11—indeed, since the end of the cold war. I have no doubt it will be garlanded with prizes. It deserves to be. It is more important that it should be read, marked and inwardly digested by all three of the remaining candidates to succeed George W. Bush as president of the United States.

The Washington Post - Daniel Byman

My advice is that readers should approach Terror and Consent with a mixture of caution and open-mindedness. Not all of Bobbitt's pronouncements may be convincing. But his book constantly prods us to reexamine our preconceptions about terrorism, which is by itself some preparation for what may lie ahead.

Publishers Weekly

Bobbitt follows his magisterial Shield of Achilleswith an equally complex and provocative analysis of the West's ongoing struggle against terrorism. According to Bobbitt, the primary "driver" of terrorism is not Islam but the emergence of the market state. "Market states" (such as the U.S.) are characterized by their emphasis on deregulation, privatization (of prisons, pensions, armies), abdication of typical nation-state duties (providing welfare or health care) and adoption of corporate models of "operational effectiveness." While market states are too militarily formidable to be challenged conventionally, they have allowed for the sale of weapons on the international market, thereby losing their monopoly on mass destruction; furthermore they are disproportionately vulnerable to "destabilizing, delegitimating, demoralizing" terror. Bobbitt asserts that this situation requires a shift from a strategy of deterrence and containment to one of preclusion. States must recast concepts of sovereignty and legitimacy to define what levels of force they may deploy in seeking and suppressing terrorists. Domestically, the shift involves accepting that in order to protect citizens, the state must strengthen its powers in sensitive areas like surveillance. International alliances can be a major advantage in a war waged not against terrorists, but terror itself. Terror and Consent, the first work to interpret terrorism in the context of political theory, merits wide circulation and serious consideration. (Apr.)

Kirkus Reviews

A distinguished scholar proposes an entirely new way of understanding and combating modern terrorism. With the startling statement that "almost every widely held idea we currently entertain about twenty-first century terrorism and its relationship to the Wars against Terror is wrong and must be thoroughly rethought," Bobbitt (Law/Columbia Univ.; The Shield of Achilles: War, Peace, and the Course of History, 2002, etc.) reframes the discussion, placing terrorism in a historical, strategic and legal context. Building on the premises of his previous work and drawing on a staggeringly wide array of authorities, he argues that with the emergence of the globalized market state, we can expect terror groups to become every bit as worldwide, networked and decentralized as the states themselves. In this sense, the market states have "caused" terrorism or, at least, forced it to assume its modern face. With access to lethal weapons and state-of-the-art communications, future terrorists will make al-Qaeda memorable only as a crude pioneer. To meet this security threat, writes the author, states that depend on the consent of the governed must radically recalibrate their strategies and laws. Bobbitt's prescriptions for preventing terrorism and the proliferation of WMDs, for intervening to prevent genocide or ethnic cleansing, and for mitigating the human-rights consequences of natural catastrophes will likely prove controversial. There are many who will disagree with his arguments, including those unconverted to his belief in the waning of the nation-state, those who insist that the target is confined to radical Islam, and those who resist the idea that we are in a proper war and recoil at the prospectof any diminution of our civil rights to fight it. But this is a serious book, and, notwithstanding his impressive theoretical reach and philosophical scope, Bobbitt keeps his feet on the ground, boldly offering detailed real-world proposals to combat the problems he outlines. To learn, for example, that our safety may require the repeal of statutes passed in the wake of the Civil War-specifically, the Posse Comitatus Act-is to glimpse the shaky state of our preparedness for this new conflict. A challenge for the general reader but a feast for students of law, foreign policy and international relations.

Product Details

• ISBN: 1400042437
  
• ISBN-13: 9781400042432
• Format: Hardcover, 672pp
• Publisher: Knopf Publishing Group
• Pub. Date: April 2008
• Sales Rank: 2,350

• Table of Contents
• Read an Excerpt
• Read a Sample Chapter

Table of Contents

Read an Excerpt

The New Masque of Terrorism

Morano: What are you, Friend?

Polly: A young Fellow, who hath been robb’d by the World; and I came on purpose to join you, to rob the World by way of Retaliation. An open War with the whole World is brave and honourable. I hate the clandestine pilfering War that is practis’d among Friends and Neighbors in civil Societies.

—John Gay, The Beggar’s Opera, 2.5.21–221

Warfare and the constitutional order exist in a mutually affecting relationship. Fundamental innovations in war bring about fundamental transformations in the constitutional order of states, while transformations in the constitutional order bring about fundamental changes in the conduct and aims of war. Terrorism has been, by contrast, merely a symptom, not a driver of this phenomenon. As we shall see, this accounts for the odd fact that terrorism surges after the end of the epochal wars by which the constitutional order is changed, after the peace congresses have convened to ratify that change. The difference in the current era is that now terrorists are about to acquire the weapons and strategies previously reserved to states at war, and they thus will acquire also the potential to affect the basic constitutional order.

It is a popular European retort to American policy since September 11 to say that the only thing new about the attacks on that day is that U.S. citizens were the victims. Societies that have endured assaults by the IRA, ETA, the PLO, and the FLN are skeptical about American perceptions of terrorism. It is natural, it is said, that the Americans, being unused to such incidents, shouldexaggerate their importance and their novelty. Older, wiser societies know how to handle such matters—and it is not with their defense departments. Panic and overreaction are characteristic of a failure to put events in perspective.

In pondering these sometimes phlegmatic, sometimes shrill rebukes, one should bear in mind that approximately one-third of all the international terrorist attacks between 1968 and September 10, 2001, involved American targets. American diplomats, military personnel, and businessmen were murdered on several continents. In this period more American officials died from terrorist attacks than British during the same period of IRA depredations. One should also note that the onslaughts on New York and Washington on September 11, 2001, killed more persons than all terrorist attacks on British, French, and German targets since 1988 combined, and indeed casualties were greater than all deaths from transnational terrorism during this period.4 Finally, to miss the distinctiveness, the novelty of 9/11, as it has come to be called, is to misapprehend what has happened to terrorism—its structure, its tactics and weapons, and its targets. When one fully appreciates this point, one sees al Qaeda in a way that reflects its singular deadliness and that redefines terrorism itself.

“Asymmetric warfare” is the use of unconventional means to attack a superior conventional force. It has existed at least since David and Goliath. Similarly the use of terror, associated with particular religious and ethnic groups, has a long history, and bands of holy warriors have killed civilians to achieve political objectives from ancient times. In first-century Judaea, Jewish terrorists struggled against the Roman occupation. One such group, known as the Sicarii (dagger wielders), often attacked Jewish collaborators. Another terrorist group, the Zealots, brazenly slit the throats of Roman officials. By striking in public places, like crowded markets, in daylight, they seemed to underscore the inability of the Empire to ensure security. These groups had several advantages over their Roman occupiers, including especially initiative. They chose when to attack and then melted back into the non-Roman population that was indifferent or hostile to the occupation, and terrified of retribution by terrorists against anyone found to be a Roman informant.

In seventh-century India, the Thuggee cult ritually strangled travelers as sacrifices to the Hindu deity Kali. The terrorist’s intent was to frighten his victim—an important element in the Thuggee ritual—rather than to motivate political action* by third parties. The cult endured over more than six hundred years and may have killed as many as 500,000 persons.8

In the eleventh century a Shia sect known as the Ismaili fedayeen attacked Christian occupiers and those Sunni officials who refused to adopt an especially ascetic version of Islam. These victims were often kidnapped and held captive and frequently killed. On occasion they might even be murdered at close quarters, surrounded by their bodyguards. These tactics revealed “a willingness to die in pursuit of their mission echoed by today’s suicide bombers. While they are particularly remembered for attacking the Crusaders, most of their targets were other Muslims . . . ” Apologists of the ruling dynasty called these attackers “hashshashin” because, it was alleged,10 they would eat hashish before murdering their victims and, in this state, were promised heavenly rewards—including the abundant companionship of virgins. Our word “assassin” is derived from “hashshashin.”

These words from mankind’s past—“assassins,” “thugs,” “zealots”— have passed into modern English. It is not hard to see parallels between these historical groups and those of the present; indeed, the references to empire, religious fanaticism, the targeting of collaborators, ritual killings, suicide missions, and the rest will be familiar to anyone who has lived in the first decade of the twenty-first century. That does not mean, however, that terrorism has existed essentially unchanged.

As we shall see, terrorism exists as an epiphenomenon of the constitutional order. This was true even in the medieval period, when the constitutional order had yet to metamorphose into the first modern states. The terrorism of the Crusaders is a case in point. In his sacerdotal role, mingling military and ecclesiastical values, the Crusader was unlike earlier and subsequent terrorists owing to his having arisen in the context of a feudal constitutional order. Yet a terrorist he was, though his “chivalric theatre masked . . . many awful atrocities” including

ferocious pogroms against Jews that were features of the preliminaries of many crusades, [and] gross examples of ethnic cleansing in which non-Christians were driven from towns of religious or strategic significance by deliberate campaigns of terror . . .

The failure to understand the unique motivations of the early Crusaders has led generations of historians to make anachronistic assessments of the Crusaders’ motives. Each historian has tended to portray the Crusaders in light of his [that is, the historian’s] preoccupations—a not unusual phenomenon, but one that, ironically, is as period bound as the Crusaders’ own preoccupations. Nineteenth century interpreters thus described the Crusades as early examples of European economic expansion; subsequent writers characterized the Crusades as driven by imperialist motives. A French historian of this period took the conquests of the Crusaders to be “the first French empire.” Twentieth century Arab nationalists turned this idea around and saw the Crusades as a species of ethnic exploitation. Twentieth century Marxists proffered the theory that rising European populations forced the landed aristocracy to take new measures to prevent the division of their estates, including primogeniture, which brought about a surplus of young males who had to be distracted by foreign adventures.

There is no evidence to support any of these claims, Jonathan Riley-Smith, professor of ecclesiastical history at Cambridge, has concluded.

One should not criticise crusaders for being what they were not. They were not imperialists [of the nineteenth century state nation] or colonialists [of the eighteenth century territorial states]. They were not simply after land or booty [like the terrorists of the kingly states of the seventeenth century] . . . They were pursuing an ideal that, however alien it seemed to later generations of historians, was enthusiastically supported at the time by . . . St Bernard of Clairvaux and St Thomas Aquinas.

That ideal—of sacred violence sanctioned by the pope, and penitential service in warfare—is a consequence of the feudal order, with its intermixture of knightly duties in war and religious obedience to the Church.

Modern terrorism thus arises with the birth of the modern state because terrorism is not simply tied to the use of violence to achieve political goals—that is, strategy—but is also linked to law. It is a necessary element in terrorism that it be directed against lawful activities. Modern terrorism is a secondary effect of the State’s monopoly on legitimate violence, a monopoly ratified in law.

In each era, terrorism derives its ideology in reaction to the raison d’être of the dominant constitutional order, at the same time negating and rejecting that form’s unique ideology but mimicking the form’s structural characteristics. For example, if the State exists to forge the identity of the nation, its terrorists will deny all nationality and justify their works as necessary to forge an international identity, but they will be careful to adopt the meritocratic promotions and self-sacrificing ethos of the imperial state nation they attack. If the State exists to aggrandize the wealth of its territorial aristocracy, its terrorists will reject territorial definitions of citizenship and live in foreign climes while copying the State’s mercantile methods and massacring natives with the professionalized forces that replaced mercenaries and were a watermark of territorial states. A state devoted to enhancing the sectarian perquisites of one particular prince will find it has evoked a permanent terrorist mercenary force—available to anyone—but one that, like this sort of state, reflects the most severe sectarian prejudices. A state whose constitutional order validates its actions by measuring them against the ruthless aggrandizement of dynastic glory by war will spawn a terrorism that is egalitarian but equally prone to aggrandizement by means of warfare based on claims of absolute sovereignty.

In the examples that follow, two dimensions should be borne in mind: what makes these various groups terrorists—their attacks on civilians and their adversarial relationship to states—and what makes them distinc- tive in each era—their relationship to the prevailing constitutional order of that era.

I.

The princely states of the Renaissance, the first modern states, created a distinctive form of terrorism. The consolidation of the state from its feudal and oligarchical origins drove Italian city groups like the fuorisciti to attack civilians as a political reaction to exclusion from power. The most important terrorists, however, were those drawn from the very forces the new states were compelled to employ to protect themselves. When the technology of warfare made feudal knights pathetically vulnerable, the mercenaries to which princely states turned were often liable to take their tactics of terror and turn them against innocent civilians in order to achieve the respectable war aim of enriching themselves and tormenting those religious sects they despised.

This was the case in the sack of Rome on May 6, 1527, by troops of the greatest of the princely states, that of Holy Roman emperor Charles V. Despite his historic triumph over the French army in Italy at Pavia in 1525, Charles’s ally, the Bourbon Duke of Milan, found himself unable to pay his troops. Some 20,000 men, drawn from the mercenary forces of the emperor, rejected his command and turned against Rome, which was the object of hatred for the mercenary Protestant Germans known as the landsknechts. Urged most pitilessly by these German mercenaries, this army attacked Rome—hitherto regarded as inviolable—in an orgy of rape, plunder, torture, and killing that lasted for more than seven months until they abandoned the city to plague.

All that happened cannot really be regarded with surprise because the imperial army and in particular Frundsberg’s lansquenets, were animated by a violent spirit of crusade against the Pope. In front of Castel Sant’Angelo where the Pope had retreated, a parody of a religious procession was set up, in which Clement was asked to cede the sails and oars of the “Navicella” (boat of Peter) to Luther, and the angry soldiery shouted “Vivat Lutherus pontifex!” (Long live Luther, Pontiff!) The name of Luther was incised with the tip of a sword across the painting of the “Dispute of the Most Holy Sacrament” in the Rooms of Raffaello, out of disdain . . .

Rome was reduced to less than 10,000 persons, and more than 50,000 were either driven from the city or perished. Cathedrals, churches, and shrines were pillaged. Of this mixture of amoral enrichment and intense sectarianism—so typical of the princely state itself—Luther wrote, “Christ reigns in such a way that the emperor who persecutes Luther for the pope is forced to destroy the pope for Luther.” It wasn’t the emperor who was in charge of these forces, however; after their mutiny, they became terrorists. This force separated itself from the state to which it owed only a contractual allegiance, and began attacking civilians and finally an undefended city for its own purposes.

Nothing was spared, sacred or profane. Clement VII’s escape to and confinement within the walls of Castel Sant’Angelo until December, listening to the taunting of German mercenaries calling for his death and replacement by “Pope Luther,” were the least of the indignities. Various cardinals and prelates, including one future Pope, Julius III, were humiliated and tortured, altars were ransacked, the Sistine Chapel used as a stable, riches confiscated, patients in hospitals and children in orphanages gratuitously butchered.

Erasmus wrote to Jacopo Sadoleto (October 1, 1528) that not the city, but the world had perished.

An almost equally infamous example of princely state terrorism occurred on November 4, 1576, when mercenaries from the Spanish tercios sacked Antwerp in three days of atrocities against the city’s Flemish population. This time the mercenary force was composed of Catholics who hated and despised the thriving, Protestant merchant community. Motivated partly by lack of pay, and partly by rage at the wealthy, free-thinking city, they attacked the unarmed Protestant population, demanding money.

People who could not pay the soldiers were often hanged and tortured and to this day it is impossible to assess the number of people killed, raped or held to ransom. For as far as we can ascertain, some 8,000 people were killed. For many weeks Antwerp resembled one vast den of vice with troops gambling away their ill gotten gains in the Boarse.

Known as the “Spanish Fury,” the ensuing period of horror and cruelty toward the innocent was an event from which the city of Antwerp, formerly the most important financial city in Europe, never recovered. Of the city’s 100,000 inhabitants in 1570, by 1590 no more than about 40,000 remained. Much as a mercenary force like the Protestant landsknechts sacked papal Rome, tercios largely formed from Spanish Catholic recruits sacked Protestant Antwerp. “The Spanish troops who returned to Italy in May 1577, nine months after the notorious sack of Antwerp, took with them 2,600 tones of booty (and also remitted large sums of money, some of it derived from ransoms, by letters of exchange).” The search for booty outside the laws of war, coupled with sectarian motives for violence entirely at odds with its putative client state, stains the Spanish Fury with the distinctive tincture of terrorism.

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The Wars for the Twenty-first Century

Copyright © 2008 Philip Bobbitt
All right reserved.
ISBN: 9781400042432

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