So Ignatieff deserves a hearing even from readers who might be averse to moral instruction from Amnesty International. One of the main arguments of this book is, in its way, another rebuff to the most common exhortations of contemporary human rights advocates. Sometimes, Ignatieff argues, even liberal democracies must perpetrate "evil"he is insistent about that wordin order to combat or forestall worse evils.
Yet in spite of its good intentions, in spite of some eloquent and insightful passages, this remains a quite unsatisfying book. The heart of the difficulty is that Ignatieff wants to correct human rights moralism in order to leave room for the reasonable political calculations that a statesman must make when confronting terrorism. Yet he still wants to preserve the overall moral outlook of contemporary human rights advocacy, without acknowledging how fundamentally unpolitical or even anti-political it really is.
One of the better things in the book is the initial discussion in the chapter on "The Ethics of Emergency." Ignatieff rejects the "perfectionist" counsel that any suspension of normal legal protections is a betrayal of constitutional ethics. He endorses Justice Robert Jackson's famous admonition that "the Constitution is not a suicide pact." At the same time, Ignatieff also rejects the argument that constitutional protections can therefore be ignored entirely during periods of war or emergency. The choice of which constitutional protections to hold and which to suspend cannot, he insists, simply be determined by "pragmatic considerations" of the moment. Even constitutional departures that enhance security may "diminish respect for laws and rights in the future," a "cost" that mere "utilitarian calculation" is apt to ignore. At the least, therefore, Ignatieff urges that legislatures and courts must take an active role in trying to assure that rights are not restricted more than is necessary or longer than is necessary.
Even here, however, Ignatieff skates over a number of serious complications. The same Justice Jackson who warned against overly restrictive constitutional interpretations also warned against forcing judges to review emergency actions in circumstances where they lacked the detailed information, the overall perspective, or the political support to do anything but acquiesce to executive judgments in the heat of the moment. Emergency actions that should rather be seen as questionable exceptions would then come to be seen as fully lawful precedents. That is a good reason to be cautious about relying on courts to constrain executive conduct in the course of a war. Still, there is good sense in Ignatieff's general point that if we are too quick to sanction broad suspensions of such guarantees as habeas corpus, "everyone then understands that an important guarantee of freedom is pliable and susceptible to political pressures."
The problem is that Ignatieff wants to move the argument from the actual Constitution to what he takes to be the moral doctrine behind it"a constitutional commitment to respect the particular and equal moral status of human beings." One might question whether this tells us very much about how any particular constitutional disputeregarding such vexed issues as abortion, gay marriage, or "affirmative" racial preferencesshould actually be decided. Ignatieff is so taken with this vision of equality, however, that he suggests at one point that no government may "assume that the lives of [its] own citizens matter more than the lives of people in other countries."
What seems to follow is that citizens have no more rights than non-citizens. And Ignatieff often seems to embrace this logic. Following the September 11 attacks, he protests, "[h]undreds of illegal aliens, mostly of Islamic or Arabic origin, have been targeted for detention and deportation." These actions, he says, were "as unjust as they were unnecessary." He does not explain why it is "unjust" to detain or deport someone who has already committed an offense by entering the country illegally. He does not explain why, given scarce resources for enforcement of immigration controls, it is "unjust" to focus special efforts on apprehending illegal aliens from those countries known to be terrorist breeding grounds.
Nor does Ignatieff offer any serious argument as to why this response to terror threats is "unnecessary." The fact that most people detained were entirely innocent does not mean that it was unnecessary to detain all suspects. Airport screening does not become unnecessary just because most such screenings don't detect dangerous weapons or spot actual terrorists.
Ignatieff's unexplained conclusion here seems to reflect his wider position. Whether or not it is unconstitutional, a focus on aliens strikes him as, on its face, a challenge to the moral norm of equal respect for all persons. He can countenance exceptions and departures from this norm, when they are shown to be the "lesser evil." But he demands a strong presumption against such exceptions. Ignatieff insists that "to respect the moral status of human beings means treating individuals equally and treating all with at least a minimum of respect.... [H]uman rights are independent of conduct, circumstances, citizenship, desert or moral worth."
What this means, in turn, is that citizens should take their bearings, ultimately, by universal principlessuch as "equal concern and respect" for every human beingrather than actual provisions of the actual constitution of the country. For the United States, which has lived for two centuries under the same Constitution, that means forfeiting the advantages that come from respect for national tradition, appeals to patriotism, the confidence that what has worked reasonably well for us before will likely prove reliable in the futureand subordinating all those solid benefits for
the satisfaction of living up to Prof. Ignatieff's or Prof. Dworkin's or perhaps Prof. Kant's highly abstract philosophy of universal moral duties. There are many reasons to doubt that this would be a very good exchange, at least for Americans.
Indeed, there are many reasons to doubt that any country could survive for very long with this philosophy. Pressed to its logical conclusion, the idea that we should not prefer our own citizens to others would imply that foreignersin unlimited numbershave as much right to move into our country as do our own citizens who have taken a trip abroad. Pressed again to its logical conclusion, this principle of equality would seem to imply that a wartime commander should be as concerned about the lives of enemy troops as he is about his own. Should every war, then, out of respect for the equality of enemy troops, be fought with self-inhibiting standards to ensure an equality of losses?
It's hard to believe Ignatieff actually means to endorse such extreme or absurd policies. But it's telling that he does not stop to disclaim these apparent implications of his doctrine. An honest examination might raise too many awkward questions about Ignatieff's master principle regarding the "equal status of human beings." In this highly abstract form, the principle seems incompatible with the idea that a nation is entitled to defend itselfnot merely to make occasional departures for the sake of some immediate threats but in a general way, as a premise of national existence. If a national government can't prefer its own citizens, systematically, why is it a national government?
Having abstracted from the special situation of citizens who live under common laws, Ignatieff proceeds to treat other conflicts as if they were or could be governed by the same sort of mutual consideration that is possible in an actual political community. He acknowledges that individual terrorists are often in the grip of nihilist rage or exaltation which cannot be appeased. But he insists that, while this fact may justify particular military responses as a "lesser evil," it does not justify indifference to the claims that inspire broader support for terrorist organizations. "To declare a war on terrorism risks, in itself, compromising the political values that should guide relations even with a liberal state's enemies." We must also see that military responses are not effective: "unless the basic motivation for terrorismthe perception of injusticeis addressed, no strategy against terror can succeed by purely military means."
Perhaps because he can find rhetoric about "resistance to colonial occupation" and "self-determination" in U.N. pronouncements and international conventions, Ignatieff emphasizes examples which turn on such grievances. In the 1960s, "[t]he French withdrawal from Algeria ended terrorism [in France]." In Sri Lanka, the way to end separatist violence by Tamil Tigers is through "political dialogue, sponsored by outside governments, that results in a compromise: meeting the legitimate claims of Tamils to federal self-rule without sacrificing the unity of the Sri Lankan state." So, too, "granting the self-determination claims of Palestinians" is "obviously the right political strategy to reduce terror attacks on Israel."
If it were true that injustice always spawns irresistible terrorist challenges, the history of the world would be one long record of terrorismor of political settlements accepted by everyone as entirely just. But terrorist movements have often been defeated without accommodating any of their demands, as Turkey, for example, has repressed the Kurdish separatist movement over the past decade. Conversely, major concessions sometimes encourage insurgencies, as when the government of Israel returned most Palestinian territory to the administration of Yasser Arafat in the 1990s and wound up reaping one of the most extreme and relentless terror campaigns of modern history. It does not seem likely that "self-determination claims of Palestinians" can be safely granted until Israel demonstrates (as it is now doing) that its own military can subdue terrorists trying to impose their own interpretations of these claims.
There are, of course, well-known cases where terror campaigns have been ended by conceding the main goals of the terrorists. It was Winston Churchill who took the lead in negotiating a political solution to the terrorist insurgency in Ireland after the First World War, by granting most of what the Irish Republican Army had sought. In the following decade, Churchill was more farsighted than most in realizing that threats from Germany could not be appeased in the same way, even if the German government advanced plausible "grievances" about the "self-determination" claims of ethnic Germans in neighboring countries. When or whether to engage in compromise with violent challengers is not simply a question of "justice"which may be perceived quite differently on each side
Ignatieff is vaguely aware of this, so near the close of this short book he admonishes readers that in our efforts "toward relieving the global burden of injustice...we should be clear that we are doing so for reasons of justice, not in the hope of greater security. Having responded to injustice with justice, we have no right to expect peace and good feeling in return...." But if gestures toward "justice" do not enhance security, if they seem to signal weakness and encourage new terrorist efforts, then governments may prefer tolerating injustice to exacerbating insecurity. Ignatieff has little to say about when we should place greater emphasis on "security." He has little to say, for example, about the strategic significance of jihadist terror networks, which find supportive constituencies among Muslim communities in many Western countries and have reasonable hopes of seizing control of major oil-producing nations. Ignatieff's "political ethics" leave little room for strategic thinking.
Instead, Ignatieff continually harps on the importance of demonstrating respect for international human rights standards, even in the midst of war. So he chides the United States for failing to abide by the Geneva Convention in its handling of prisoners from Afghanistan. But the Geneva Convention on prisoners of warlike all of the 1949 Geneva Conventions, indeed, like all treaties on the laws of war, starting with the original Hague Convention in 1899expressly stipulates that its terms apply only as between signatories or parties observing its terms. No one seriously argues that Taliban fighters in Afghanistan observed the laws of war in their own conduct. That is why the Pentagon has insisted that the prisoners at Guantanamo cannot be guaranteed all of the courtesies set out in the Geneva Convention (such as insuring that prisoners can meet freely together and have unrestricted claims on tobacco rations) when observing these rules might limit the effectiveness of U.S. interrogation efforts.
To see these standards as binding in all circumstances is to suppose that there is some special virtue in adhering to a treaty even when other parties have reneged on it. No one seriously argues this is a sensible approach to arms control treaties. It is not easy to see how it can be a sensible response to treaties concerning other sorts of mutual restraint in the conduct of war.
At some point, it is fair to worry that we take on a moral burden in subjecting prisoners to outright torture. That is why the Pentagon did not defend abuses at Abu Ghraib prison but promised to ensure that they were not repeated. More generally, it is reasonable to worry about the moral burden of sacrificing countless enemy civilians to add a margin of safety to our own troops. That is why, in Iraq, the United States has sent highly disciplined ground troops into centers of insurgency, rather than destroying whole cities and everyone in them from the air, as we are capable of doing. The conduct of war, particularly against "unlawful combatants" (who melt into civilian populations rather than standing forth in distinctive, disciplined formations), poses many quandaries
Ignatieff might have helped illuminate some of the difficulties by invoking the "just war theory" that has been nurtured for centuries by Catholic theologians and inspired thoughtful discussions, in recent decades, by scholars outside the Church. He says not a word about this tradition, however. Perhaps that is because it does not yield sufficiently precise answers to many of the questions Ignatieff wants to examineregarding, for example, the rights of unlawful combatants. Or perhaps it is that the Catholic tradition is more respectful of war as a form of "justice" and not merely a "lesser evil."
Instead, having identified the Constitution with an abstract principle of equal respect, he is eager to equate this abstraction, in its turn, with the jumble of prescriptions and pieties that happen to have found their way into international human rights conventions. In Ignatieff's telling, it is all part of the same "higher law" which is ours, because already universal. And from this standpoint he is eager to appropriate to his cause the older authorities in our constitutional tradition. So, in one earnest passage he affirms: "In the tradition of liberal constitutionalism that descends from Locke, law's ultimate protection lay in morality, in the ability of citizens to rise to the defense of law when morality revealed law's exercise to be unjust."
What Locke actually emphasizes is security, much more than morality. By the "law of nature," writes Locke, everyone is "bound...as much as he can, to preserve the rest of mankind" but only "when his own preservation comes not in competition" because each person is, in the first place, "bound to preserve himself." And Locke is not overly squeamish about what may be necessary for security: "by the fundamental law of Nature ...one may destroy a man who makes war upon him, or has discovered an enmity to his being [that is, shown a disposition to predatory violence, even if not having actually attacked] for the same reason, that he may kill a wolf or a lion; because such men are not under the ties of the common law of Reason, have no other rule but that of force and violence and so may be treated as beasts of prey, those dangerous and noxious creatures that will be sure to destroy him, whenever he falls into their power."
Locke's teaching is hardly a comprehensive guide to strategy. And certainly it does not exhaust every moral question that one might raise about the claims of the "innocent" outside our boundaries. But there is a difference between worrying about our own constitutional traditions within our own country and worrying about universal humanity. Within our own country, we have demonstrated success in getting most people, most of the time, to accept that what is constitutional is bindingand we would not want to put that at risk. Ignatieff pretends that we get almost the same benefit from international human rights standards. That is, to say the least, not very well demonstrated by the historical record.
The actual liberal tradition was not so optimistic. Outside our own legal system, Locke teaches, men are in a "state of nature" and in this condition, as Locke himself says, "there is no Authority to decide between contenders" so "every the least difference is apt to end" in a "State of War." The Declaration of Independence, which argues from very similar premises, culminates with an equally stark conclusion: Having asserted their national independence, Americans are entitled to "hold the rest of mankind, Enemies in War, in Peace Friends."
We have had peace with most nations, most of the time. That gives us reason to hope that most disputes, most of the time, can be settled peacefully. Nothing gives us cause to believe Ignatieff's premise that we already live in a world of established rules. Admonitions to choose the "lesser evil" don't get us very far. It is especially difficult to rely on Ignatieff's ethical instruction when he systematically obscures the truth that any compromise of our constitutional independence, in the world we actually inhabit, can itself be a serious "evil." Ignatieff tries to persuade us that embracing a haphazard collection of abstract norms and treaty fragments, premised on the notion that we already live in a quite different world, is somehow an inherent good. It's not an ethical vision that holds much attraction, especially in an "age of terror."