Inhumane

In the aftermath of bitter defeat in Afghanistan, President Biden is heralding the new American way of war. We can continue to counter terrorists in Afghanistan and elsewhere, he maintains; “we just don’t need to fight a ground war to do it. We have what’s called over-the-horizon capabilities, which means we can strike terrorists and targets without American boots on the ground, very few if needed.” In other words, we can protect ourselves with few or no casualties. War, in this new model, has been made humane, at least for us if not for those greeting the explosive tip of a Hellfire missile launched by a Predator drone.

Humane is the title of a new book by Samuel Moyn, a professor of history and law at Yale and a fellow at Washington D.C.’s Quincy Institute for Responsible Statecraft, which examines the history and implications of this new clean mode of warfare. America’s style of warfighting, he argues, “is more and more defined by a near complete immunity from harm for one side and unprecedented care when it comes to killing people on the other.” But making war more humane, he contends, has a dark and dangerous underside: It makes war more acceptable and more frequent. Hence his subtitle: How the United States Abandoned Peace and Reinvented War. In response to the “endless war” in which we have chosen to engage, Moyn has written “an antiwar history of the laws of armed conflict.” It is exceptionally timely, but also riddled with problems.

Moyn begins, uncontroversially, with intellectual roots, offering a tour of 19^th-century thinkers who took varying positions regarding the drive to make war more humane. A key figure is none other than the novelist—and pacifist—Lev Tolstoy, who, according to Moyn,

offered the most eloquent and thought-provoking reservations ever leveled against the attempt to ‘humanize’ war, highlighting the moral risk of failing to combine the desire for less brutal war with skepticism toward war itself—since war routinely makes the world worse, no matter how humanely fought, and almost never better.

If Tolstoy was at one end of the pole, at the other was Swiss humanitarian Henry Dunant, who accepted the necessity of war but sought to ameliorate its effects by calling “on states to write an international treaty guaranteeing that a humanitarian brigade could assist the medical services of European armies if and when they failed on their own.” In the 1860s Dunant was instrumental in founding the Red Cross to perform exactly that wartime mission; he received the first Nobel Peace Prize in 1901.

With an eye on his thesis, Moyn reprises America’s warfighting traditions, which in his telling, from the Indian wars of the 19^th century through Vietnam, featured unremitting brutality. In World War II in the Pacific, as elsewhere, it was “universal to ignore, or treat as unreal, whatever limitations in warfare may have existed.” In the early Cold War, he writes, “the whole world became ‘Indian country’ as the United States exported homegrown violence and adapted the no-holds-barred practices such as genocide and torture refined over centuries by European empires.” Up until the aftermath of Vietnam, humane war was never part of the equation.

Vietnam was a kind of turning point. As previously, American forces had “no interest in distinguishing soldiers from noncombatants.” But for the first time public attention focused on the atrocities, most notably the massacre at My Lai. This had an ironical effect; as a reaction to the terrible publicity, the U.S. military began to train attention on the laws of war. A trend was set in motion that was to accelerate.

By the time of the first Gulf War in 1991, 350 lawyers—judge advocates general (JAGs)—were embedded with American forces, advising on the legality of striking particular military targets with reference to acceptable levels of civilian casualties and related macabre metrics. After September 11, with new wars in Afghanistan and Iraq, the number of JAGs on the battlefield multiplied many times over.

At best, Moyn is ambivalent toward this development. The trouble is, in his Tolstoyan view, that “the new culture of military law focused not on keeping American force from deployment” in the first place, but only on “making its force more humane when unleashed.” In other words, the plethora of lawyers may well have had the effect of having “entrench[ed] violence more than they regulated it.”

This brings us to the book’s villains and heroes. The former are those who content themselves with the effort to make war more humane while doing nothing to stop war itself. The latter see the initiation of conflict as illicit in the first place and seek to bring wars to an end.

Prominent among the heroes is Richard Falk, the Princeton professor of international law and “peace activist” who, in Moyn’s glowing description, was the author of a “classic” law review article on the illegality of the Vietnam War. Falk traveled to Hanoi and affiliated “with Vietnamese desires for liberation as part of a global struggle against empire” and branded “the whole U.S. leadership class as ‘war criminals.’”

Among the villains one finds Jack Goldsmith, the Harvard law professor and assistant attorney general in the Office of Legal Counsel in the Justice Department under George W. Bush who, in Moyn’s telling, “helped bring about an endless new form of the ongoing” war on terror. For Goldsmith, according to Moyn, the question was not the more essential one of the war’s beginning and continuation, “but how to bring it within the pale of legality now that it was being fought.” Withdrawing John Yoo’s notorious torture memos, “Goldsmith had restored some modicum of the rule of law and was ultimately lionized by many liberals for doing so. But when it came to the country’s move to a war footing without limitation, he had acted in service of a neoconservative crusade.”

Moyn is to be commended for offering an engaging intellectual history of the idea of humanizing warfare. One is introduced to a fascinating array of thoughtful characters from the pages of the past. Some of them, like Tolstoy, are known to all; others are rescued from obscurity. That part of his book is a genuine achievement.

But one problem with Humane is Moyn’s political judgment. He often aligns himself with the crackpot Left. For example, he paints a sympathetic portrait of Medea Benjamin, co-founder of the advocacy group Code Pink. He notes that Benjamin emigrated to Cuba in 1979 to write for a communist newspaper in which she celebrated the Castro regime, but after several years was deported back to the United States when she questioned restrictions on political dissent. In 2013 this “peace activist” disrupted a speech by Barack Obama, leading to a crystallizing moment in which Obama had what Moyn calls the “greatest moral clarity about war” of his entire presidency. Focusing attention on drone warfare, Benjamin “was convinced that attacking the aerial means of Obama’s continuation of the war on terror was tantamount to an attack on American belligerency itself. The goal was ‘to push the arc of Obama’s second term in the direction of peace and justice.’” Comments Moyn, “It was a reasonable hope.”

Lionizing Richard Falk for his antiwar activities, Moyn recounts how Falk campaigned for amnesty at the 1973 trial of Karleton Armstrong, who had set off a bomb in an army research center at the University of Wisconsin, killing a thirty-three-year-old postdoc and father of three. Moyn registers not the slightest demurral at this amnesty proposal. He only notes that in Falk’s view, all war resisters deserved amnesty “on the grounds that even violent tactics were permissible in the face of an ‘illegal, immoral, and criminal’ war.”

Neither does Moyn blink at the fact that during the Vietnam War Falk openly aligned himself with America’s enemies. Falk went on to embrace Iran’s Ayatollah Ruhollah Khomeini, lauding him on the op-ed page of the New York Times for forming a government with “a notable concern for human rights” and praising him elsewhere for his “moral and political clarity.” About these interesting—and pertinent—biographical details, Moyn says not a word. Instead, we learn from Moyn that Falk had “philosophical leanings and wrote poetry on the side.”

Moyn’s assault on Goldsmith—who courageously defended the rule of law while in government—is also worthy of comment. At one juncture, he opines that Goldsmith’s “paramount” accomplishment was his reworking of U.S. surveillance law. But Goldsmith actually accomplished little, writes Moyn: His efforts “left the United States as the most omnipotent snooping power in world history—when it came to foreigners, there were no limitations, and even with the country’s own citizens, only minor ones.”

The United States possesses the “most omnipotent snooping power in world history”? Perhaps that is true of our foreign intelligence collection, but it is not difficult to draw up a list of states, Communist China and North Korea among them, that engage in far more surveillance of their citizens than does the United States. And is it really true that, despite the robust protection offered by the Fourth Amendment proscription of unreasonable searches and seizures, the United States only has “minor” limitations on surveillance of its own citizens? For a professor of law, Moyn holds a decidedly idiosyncratic view.

Sweeping—and false—generalizations are a major part of the problem with Moyn’s book. In World War II in the Pacific, was it really “universal to ignore, or treat as unreal, whatever limitations in warfare may have existed” (emphasis added)? The real picture is far more complex than this. Atrocities there were aplenty on both sides, but Moyn’s blanket indictment is a calumny against the numberless American servicemen who fought against the Japanese while retaining their human decency. His depiction of the postwar United States employing practices of “genocide and torture of the kind refined over centuries by European empires” bears not the faintest resemblance to the historical record of the early or late Cold War. This is another calumny, even more grotesque.

More centrally, Moyn says almost nothing about how the march of technology, the silicon revolution in particular, bears on his subject. If carpet bombing was the norm in such conflicts as World War II, Korea, and Vietnam, this had less to do with legal lassitude than with the fact that accuracy was unattainable. Cruise missiles and smart bombs that could hit discrete targets and minimize civilian casualties only came into their own in the first Persian Gulf War. In the years since 9/11, armed drones that can track and kill individual terrorists have been added to the American arsenal. Contrary to the main line of Moyn’s argument, the development of such precision weapons explains the shift toward more humane warfare far more than any change in our legal culture. Law followed technology, not the other way around. Remarkably, he entertains this thesis-refuting proposition only in a single sentence, dismissing it out of hand.

Such intellectual slovenliness is jolting, but the book’s most disturbing flaw is of a political-moral character: Moyn never puts forward an alternative to the clean mode of warfare he laments. Is it a return to boots on the ground? Massive aerial bombardment? Or doing nothing at all? Judging from bits and pieces in the book, doing nothing at all seems to be Moyn’s preferred option no matter the provocation or the national security danger.

Consider Afghanistan. Moyn says the United States undermined international law when it “stretched the rules of self-defense” by invading, thereby allowing “the first domino to fall toward permanent war.” Perhaps we should not have stayed in Afghanistan for twenty years, but we would never have gone there in the first place had the Taliban not provided safe haven for terrorists who killed three thousand Americans. What exactly, according to Moyn, were we supposed to do in response to 9/11? And what exactly, according to Moyn, are we supposed to do now if it turns out that Afghanistan (or some other place) once again becomes a launching pad for terror? Politely ask the host country and/or the terrorists to stop? Assuming that we are going to have to use force in some situations, what is the moral case for not doing it in ways that have a chance of minimizing our own casualties, and also loss of life among innocent civilians?

Moyn calls himself “antiwar.” But if he is a pacifist, for all the alarms he raises about our “forever war” he never comes out and makes the case for turning the other cheek. And if he is not a pacifist—there are hints in the text that he is not—he never sets forth criteria for which kinds of armed intervention are justifiable and which are not. For someone supposedly putting forward the courageous truths of an antiwar history, for someone intrepidly blasting the United States for having “abandoned peace and reinvented war,” this glaring lacuna is not a brave position. Smugly preserving a veneer of moral purity, Moyn leaves others to dirty their hands with the hard choices about war and peace in a perilous world.

Gabriel Schoenfeld, a contributing editor of American Purpose, is a senior fellow at the Niskanen Center.