Were the 9/11 attacks that left almost 3,000 civilians dead an act of war or a criminal act?
If you said an act of war, you probably would compare 9/11 to the Pearl Harbor attack as an unprovoked, surprise attack on the United States that was appropriately met with a declaration of war by the Congress.
But let’s consider for a moment the differences between the Pearl Harbor attack and the attacks of 9/11. First of all, the 9/11 attacks were not on military assets as was the Pearl Harbor attack (principally on the naval yard in Hawaii and the ships anchored there). Second, the 9/11 casualties were almost all civilians (save for a relatively small number of military personnel killed by the jet that flew into the Pentagon). The Pearl Harbor casualties, many of whom literally went down with their ships, were almost all uniformed military personnel.
But the third major difference between the two events is perhaps the most significant, and it justifies more thoughtful consideration of the question. The Pearl Harbor attack was initiated by a foreign government in an effort to preemptively defeat the United States military. The 9/11 attacks were carried out by a band of Islamic fundamentalists who were working for a radical terrorist group that has no nationalistic allegiance.
And that difference marks the fourth major distinction in the two events. Pearl Harbor caused the United States to go to war against Japan. The 9/11 attacks caused it to declare war on terrorism, generally, and on al Qaeda, specifically. In the war against Japan, the United States was committed to defeating the Japanese government. In the war on terrorism, the United States is committed to defeating a stateless entity that, since the attacks, has morphed from one radical Islamic group into at least a half-dozen or more, all of them operating without any allegiance to a state government and without any regard for the land where they are headquartered, other than that it presumably gives them some sense of safe haven (in most cases notwithstanding the at least tacit opposition of the government of those countries).
All of which brings us to the fifth major difference. The war following Pearl Harbor ended with the surrender of the Japanese government. The current war, while the United States has declared it will disengage from Afghanistan next year, will not end with a surrender by any government or, even, by a formal acknowledgement of defeat by the agents of terrorism, be they the collective sects of al Qaeda or some other entities.
Now let’s return to the original question. Were the 9/11 attacks really an act of war? Based on the foregoing comparison with World War II, the answer must be a resounding no. And that same answer would follow from the comparison to any other war fought by the United States since its founding and by any other nation since the dawn of the human race.
Wars have always been defined as military engagements between countries that are represented by formal governments. Actions by individuals against other individuals or against a large group of individuals have always been considered to be crimes. But in choosing to regard the 9/11 attacks as an act of war and not a criminal act, then-president Bush created a new definition of war, and that definition, even though never formally stated, has been implicitly accepted by political, military, and foreign policy professionals and by the citizenry of the country they represent.
The result is a new kind of war, one that seeks not to defeat an enemy so much as it seeks to keep the homeland safe from the attacks that are epitomized by those of 9/11. And, since this kind of war will never actually be “won” (if by that word we mean the formal acknowledgement by the enemy of its defeat), then the tactics in waging it might well be different.
And, indeed, they are, as last week’s Senate committee testimony by John Brennan confirmed. Mr. Brennan, President Obama’s nominee to be the Director of the Central Intelligence Agency, was peppered with questions during his testimony about whether the CIA should be engaged in military actions. The questions related directly to the use of drones in lethal missile attacks on targeted terrorist leaders, even if they are United States citizens, as was Anwar Awlaki, the Muslim cleric and alleged confederate of al Qaeda. Awlaki was killed in 2011 by a Hellfire missile fired from a drone aircraft operated by the CIA in Yemen.
Brennan addressed the question of whether drones (which are pilotless robot aircraft) should be used to effectuate military attacks. His answer was revealing of the new tactics employed by the United States in the new kind of war that it is now engaged in.
“We face threats from terrorist organizations,” he said, alluding to al Qaeda specifically, but leaving open the possibility that the war on terrorism could be waged against other terrorist groups as well. “We confront those threats,” he went on, “using a variety of diplomatic, economic, homeland security, law enforcement, intelligence and military authorities and tools.” That last word clearly refers to drones.
So, what’s the issue? Drones kill civilians as well as the intended “military targets” (Awlaki’s family is suing the government for wrongful death, as his 16-year-old son was also killed in the 2011 drone attack), but so do bombs dropped from planes piloted by real humans. Drones can kill Americans who are engaged with the “enemy,” but so would missiles used against uniformed enemies who are American citizens in a traditional war if they fight against their country.
In fact, drones probably inflict less “collateral damage” than traditional bombing raids did in past wars. They are the new weapon for the new war that the United States has declared on the new enemy in the new conflict against terrorism.
We gave up the moral imperative when we rejected “criminal act” in answer to the question I posed at the outset. It’s hardly the first time in our history that we have done so.
Thought provoking, Professor T. There’s been much press and criticism regarding the Administration’s justification and protocols for targeting U.S. citizens believed to be terrorist leaders who may be plotting attack on the U.S. The tortured definition of “imminent threat” almost renders the phrase meaningless. Many have questioned whether there should be (if not due process) some independent oversight or judicial review before the decision is made to “neutralize” an American viewed as a threat. If the question was asked in WWII – Can the U.S. target American citizens oversees it believes to be collaborating with the Nazis? – I suspect few would have balked or demanded independent review. However, that war and its potential victory, was easier to understand than a never-ending war on terror. Will the war on terror be over once the U.S. troops leave Afghanistan? Will we forever be at war with a state-less entity or ideology?
Drones are also being used differently in the fact that they are flown over other sovereign countries’ air space without their permission.
In addition, they are purely assassination tools. So when it comes to assassinating U.S. citizens abroad, what is the justification for executing the death penalty with no due process?
Before I answer your constitutional question, I’ll just note that many of the complaints about the use of drones as “assassination tools” that are now being levied were not mentioned during the Bush administration. Many of those decrying the abuse of the Constitution now were oddly silent when the Bush administration was doing the same thing.
Now, as to your question, in normal circumstances there is absolutely no justification for assassinating U.S. citizens abroad or at home without due process of law. My point in the column was that by unilaterally declaring that we were at war (against terrorism), Bush, and by his implicit endorsement Obama, have allowed the argument that in war enemy combatants are fair game. Identifying those who qualify as “enemy combatants” in this “war on terrorism” then becomes a military, not a constitutional question. (By comparison, we don’t require field generals in conventional war to get court approval before initiating attacks on combatants in the field, and if American citizens are engaged against the U.S., they implicitly surrender their rights to due process.)
In effect, and this was my point, we lost the moral imperative (and the constitutional one) when we acquiesced as a country in the president’s decision to declare that we were at war with the agents of terrorism. Read my column again. Note that my premise is that the critical decision was to label the 9/11 attacks as acts of war and not criminal acts. If they were criminal acts, the Constitution would attach to those suspected of aiding and abetting the criminal actors, and American citizens so involved would most assuredly be guaranteed their constitutional rights. But if they were acts of war, to which the U.S. responded by declaring itself at war, then the enemy are those seeking the infliction of terrorist attacks on U.S. assets, and they become the equivalent of uniformed enemy combatants.
The result in the use of drones isn’t pretty, especially when wholly innocent individuals are maimed or killed, and I personally hate it, but I don’t think it is all that different from the massive attacks on civilians by the United States in World War II (read your history: e.g., Dresden, Hiroshima) and certainly far less lethal.
Your distinction is an excellent point, and certainly the Bush administration put a lot of thought into calling it a ‘war’ and designating ‘enemy combatants’ specifically to create legal cover for a variety of killing.
My heartburn is with the hypocrisy of the Obama administration and it’s supporters. The voices that called Bush a Constitution shredder, are now silent when Obama extends and expands the Patriot Act, and assassinates at will all over the world without due process.