TERROR AND CONSENT

Philip Bobbitt

 

Subtitle: The Wars for the Twenty-first Century - Alfred Knopf, N. Y., 2008, 672, pgs., index, notes


 
 

This is a continuation of the themes and methods Dr. Bobbitt presented in his Shield of Achilles. His thesis continued is that the welfare based nation states are transitioning into 'market states'. What is new in this volume is his categorization of the coming 'market states' into states of 'consent' and states of 'terror'. That is states of 'consent' that derive their claim for legitimacy on the promise that they will provide ample protection of their citizenry from all sorts of major terroristic occurrences (including natural ones). And states of 'terror' that seek to maintain their rule by terrorism over their own citizens. Plus, he notes there are major non-state groups and individuals who seek to gain their objectives via use of terror. He repeatedly asserts that we are not 'at war' with either terrorists or terrorism - but rather with 'terror'. In his discussion this is not simply a semantic difference.
Professor Bobbitt has a wide background in government and academic positions. He is a constitutional law professor and author of many books on this and related subjects. He has been involved in issues of nuclear proliferation, which shows in his emphasis on WMD throughout this book. He writes that the claim to legitimacy of the 'states of consent' rests on their upholding the rule of law. He claims that each new form of the modern state has had its related form of terrorism. As the leading state moving to the new market state and as the most powerful state in the expanded globalism of today it is the U.S. that has done more than others to create the current forms of terrorism. But that the USG has violated its own laws in its conduct of the 'war on terrorism', resulting in serious loss of perceived legitimacy. To the extent that the conduct of this war requires use of various techniques, then it is essential that the relevant laws be changed to reflect this. In other words, currently the government is attempting to defend against terror by use of the wrong means, because it does not understand either the nature of terror in the new world system nor the inappropriate nature of the constitution and laws designed for a era and State that no longer exists. Toward the end of the book he offers a series of specific recommendations focused on such necessary changes in the law and even the Constitution. In the following sections I will summarize and quote extensively from the book. But I can only hope to provide an outline and some of the most significant points.


 
 

Introduction - Plagues in the Time of Feast

"The Wars against Terror have begun, but it will take some time before the nature and composition of these wars are widely understood. The objective of these wars is not the conquest of territory or the silencing of any particular ideology but rather to secure the environment necessary for states of consent and to make it impossible for our enemies to impose or induce states of terror,"
The source of these wars lies in a change in the fundamental nature of the State. The wars include three different but related efforts at prevention and mitigation - preemption of attacks by global terrorists - struggle to prevent proliferation of WMD - and effort to protect civilians from natural catastrophes and assaults that result in reduction of humane conditions including human rights.
That Professor Bobbitt's notion of the responsibility of the 'state of consent' includes protection of civilians from natural disasters such as hurricanes and earthquakes may strike the reader as strange. The most important feature of these terrorist attacks is that we will not know who the perpetrators are.
The threats are 'caused' by the same globalizing forces that are changing the constitutional order of the developed states.
Bobbitt states forcefully, "I believe that almost every widely held idea we currently entertain about twenty-first terrorism and its relationship to the Wars against Terror is wrong and must be thoroughly rethought" He then lists in detail 22 specific concepts that he believes are not only wrong but also have lead to major policy mistakes.
He notes with examples some 'reason's many people do not realize we are even at war with terror. However, he believes that change is coming. "the transition from nation states to market states will change the nature of terrorism because terrorism, as we shall see,... is an incident of the underlying constitutional order. Different constitutional orders spawn different terrorisms."
"Terrorism will become a far more important security issue because market state terrorists, unlike their twentieth century predecessors, would actually use WMD against civilians."
"The very success of the parliamentary democracies in the Long War of the twentieth century has created the conditions for a new kind of conflict."
What is new is that market states base their claim to legitimacy on the promise to protect civilians from all sources of harm. This has itself generated the new vulnerability.
Professor Bobbitt claims that so far the 'states of consent' are not winning. He lists 12 specific major terrorist attacks between 2002 and 2007. But these are only the very significant ones. He notes that the CIA in 2006 listed 11,111 terrorist incidents in 2005 alone, in which 14,600 civilians were killed.
"'Strategy' concerns the role of the State in defending itself from violence from other states, while 'law' has to do with the role of the State in monopolizing legitimate violence within its own borders."
"We have to think in terms of the confluence of strategy and law."
States are not thinking clearly about the three essential theaters of the Wars against Terror - global, networked terrorism; the proliferation of WMD; and the increasing vulnerability of civilians to humanitarian crises.
"Having detached strategy from law military successes by the U.S. and its allies bring a loss of legitimacy in their wake...."
Dr. Bobbitt is very critical of the U.S. 'penal colony' at Guantanamo and the entire process of dealing with captured terrorists.


 
 

Part I - The Idea of a War Against Terror - Chapter One - The New Masque of Terrorism

"Warfare and the constitutional order exist in a mutually affecting relationship." "Terrorism has been, by contrast, merely a symptom, not a driver of this phenomenon. Dr. Bobbitt continues by citing various examples of terrorism in practice at different times and in different cultures from Roman times, through the Thuggee's in British India, to the Assassins in medieval Middle East.
"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 by law." "In each era, terrorism derives its ideology in reaction to the raison d'etre of the dominant constitutional order, at the same time negating and rejecting that form's unique ideology but mimicking the form's structural characteristics."
Dr. Bobbitt goes on to demonstrate the relationship between the form of terrorism and the form of the state in each of the latter's changing form.
"The princely states of the Renaissance, the first modern states created a distinctive form of terrorism." Example - the sack of Rome in 1527. Example - Calvinist pirates who mixed fervent religious ideology with a taste for atrocities - the Sea Beggars. - Example - The "Spanish Fury" Example - letters of marque and reprisal.
"The kingly state took the Italian constitutional innovations - fundamentally, the objectification of the State - and united this with dynastic legitimacy". "The result was a formidable creation that dominated Europe for the next century. The princely state had severed the person of the prince from his bureaucratic and military structure, thereby creating a state with attributes hitherto reserved to a human being. The Kingly state - the constitutional order that by 1648 had superseded the princely state - reunited these two elements, monarch and state, creating an absolute sovereign and making of the king himself the State."
The kingly state also bred its own terrorists. Example - 17th century buccaneers, for instance "the Brethren of the Coast".
When the territorial sates of the eighteenth century began to achieve dominance, the partnership between terrorists and states collapsed. (after Treaty of Utrecht in 1713). Territorial states had certain preoccupations that contrasted with those of the kingly state. For the territorial state its frontiers defined its legitimacy, its defense perimeter, its tax base. "The eighteenth century terrorism of the colonial territorial states was in distinct contract to that of the previous period. Examples - use of Native Americans against Europeans .Example - Barbary pirates using economic extortion.
"The constitutional order of the territorial state was replaced by the new one - the imperial state nation - in France shortly after it had been first created in America. In both societies, governments came to power that were based on the idea that legitimacy was a matter of fitness to rule, and that this fitness was properly judged by the national people." "The word' terrorism' seems first to have appeared during the French Revolution. Revolutionary leaders called for 'terror' to defend their new liberties against an invading alliance of territorial states..." Example - Robespierre's theories and practices. "The imperial state nation evoked a terrorist structure unique to that constitutional order." "The use of the word 'terrorist' to refer to an antigovernment fighter dates from this period." - Example - Ireland in 1866. Russia in 1883. "Terror was to be purpose-built'. Example - anarchist doctrine.
"A state nation is a state that mobilizes a nation - a national, ethnocultural, linguistic group - to act on behalf of the State." "It was not responsible to the nation; rather it was responsible for the nation. And "this union also created the anarchists who attacked this union."
"Anarchism was not defeated. Rather it simply faded away with the imperial state nations that were its targets when this constitutional order, shattered by the First World War, was progressively replaced by nation states. The nation state terrorists groups that succeeded the anarchists did not proclaim themselves to be terrorists; indeed, quite the opposite. They saw themselves as 'freedom fighters' - examples - Menachem Begin in Israel - Lori Berenson with Tupac Amaru in Peru. Irish republican IRA - Basque ETA - Armenian Secret Army ASALA - and more.
"The industrial nation state sought the improvement of the material well-being of its people to confirm its legitimacy". "The terrorist of the nation state including those national liberation movements that sought nation states for their peoples, used different tactics from their anarchist predecessors...."
The change from the nation state has brought forth new forms of terrorism. "Just as earlier forms of terrorism reacted against the values while mimicking the techniques of the prevailing constitutional order, this new mode of terrorism reflects the new constitutional order coming into being, the informational market state." "The process has hardly begun."
Professor Bobbitt presents a brief description of the characteristics of the market state - with more to follow in the next chapter. And he notes the conceptual difficulty in grasping that the mode of terrorism also is changing.
"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."
"Market state terrorism is more lethal."
"Market state terrorists are much better financed than their predecessors."
"Market state terrorist operations are often outsourced to local groups."
"Market state terrorist structures more greatly resemble VISA and Master Card organization charts than they do the centralized, hierarchial structures of nation state governmental organizations, including nation state terrorist groups."
"Market state terrorists evade attempts to suppress them and enhance their power through the adroit use of modern communications technology, especially the Internet."
"Market state terrorists are more likely to seek weapons of mass destruction, and should they manage to get them, these groups are far more likely to actually use them than nation state predecessors would have been."
"Market state terrorism is principally directed against the leading market states, the U.S., and E.U. "
"Finally, market state terrorism is no longer simply a technique but is also an end in itself."
Professor Bobbitt presents a detailed narrative and description of al Qaeda as a 'market innovator' amongst terrorists.


 
 

Chapter Two - The Market State: Arming Terror

"The emergence of the twenty-first century market state is the principal driver of the Wars against Terror. The same forces that are empowering the individual and compelling the creation of a state devoted to maximizing the individual's opportunity are also empowering the forces of terror, rendering societies more vulnerable and threatening to destroy the consent of the individual as the essential source of state legitimacy".
"The constitutional order of the State is determined by the unique grounds on which the Sate claims legitimate power.'
"The nation state bases its legitimacy on having undertaken the task of maintaining, nuturing, and improving the material condition of its citizens whose equal rights to well-being derive solely from their membership in the nation itself."
"Yet the very tactics, technologies, and strategies that brought us success in war between nation states have now brought us new challenges that cannot be met by the currently prevailing constitutional order of the nation state." Thus this state is unable to fulfill its legitimating premise. The new constitutional order reflects these developments and will eventually replace the nation state.
"Market state says: Give us power and we will give you new opportunities."
"The market state is classless and indifferent to race, ethnicity, and gender, but it is also heedless of the values of reverence, self-sacrifice, loyalty and family."
"The threatening nature of the transition from the nation state to the market state invites violence..."
"The emergence of market states will bring greater wealth to mankind than it has ever known..."
"Market states not only supply the model for global, networked, and outsourcing terrorism, they also enable the commodification of weapons of mass destruction."
Professor Babbitt devotes many pages to details about the expanded 'mail - order' nature of availability of WMD. He seeks to counter various establishment theories that terrorists are not able to or interested in acquiring WMD. He believes the nature of warfare is changing and its aims are being transformed.


 
 

Chapter Three - Warfare Against Civilians

"States were not 'at war' with terror groups like the IRA. There are many good reasons to think that the concept of war is inapplicable to an adversary that has no territory to defend, no capital to seize, no army to surround, no citizenry that can be menaced - whether that adversary is twenty-first or twentieth century, a market state or nation state terrorist group."
"From the time when the first modern states began to emerge, only states have made war"..."only states could sanction violence as war. War is a matter between states - constitutional entities created by and wielding law - and war carries with it the constitutional evolution of five centuries of interstate conflict."
But terrorist groups such as al Qaeda although not nation states can wage global war.
Dr. Bobbitt quotes extensively from an article by Sir Michael Howard to the effect that terming the fight against terrorism as a war is a mistake.
"Denominating a struggle as a war implies the terrorists are warriors, not murderers."
But Professor Bobbitt disagrees. He claims that it is the nature of war itself that is changing, so prior definitions do not apply.
"The twentieth century's emphasis on the distinction between war and crime is an artifact of that era's separation of law and strategy, which enforced rigorous isolation on both and reached its apogee in the era of the highly professionalized nation state that carefully segregated different disciplines."
"More importantly, however, this attitude has distorted our appreciation of what war has become."
"The solution for the twenty-first century is to integrate legal practices with action by the armed forces."
The 'debacle' that occurred in Iraq after the 'victory' is an example of the problem.
"The problem has been that increasingly military operations cannot be adequately framed as a linear development from high-intensity combat to progressively lower intensity law enforcement."
"Terrorism involves the use of what would otherwise be ordinary criminal acts - arson, kidnapping, extortion, murder - for political goals."
Dr. Bobbitt develops an extended discussion of the War in Iraq from March 2003 and of the War in Lebanon as examples of the failure to recognize the unique form of war that is upon us in this era..


 
 

Chapter Four - Victory Without Parades

"One missing concept is a description of the current evolution of the Sate because, as we saw in chapter 1. terrorism is a function of the prevailing constitutional order. Only if we understand the constitutional order that has evoked a particular form of terrorism can we also understand that unique terrorism."
The subject of this chapter is Bobbitt's effort to show that we are not involved in a war against either terrorists or terrorism, but in a war against terror itself. This is a conflict between 'states of consent' and 'states of terror'. And the danger is that the 'state of consent' may itself be transformed into a 'state of terror'.
"It will be crucial in such a struggle to develop legal indicia that allow one to determine when a state including one's own state, threatens to become a state of terror. We must be able to say when an act of violence represents a legitimate effort to preclude terror and when it is itself an act of terrorism."
At this point Dr. Bobbitt provides an extensive review of the nature of the various forms that the State has had since the Renaissance and includes the same graphic diagrams that are in Shield of Achilles. This is a very important section, but I will discuss in review of that book. However, here he does expand the discussion in keeping with the theme of this book to discuss the responses of the market state to terrorism.
"Market states will gain victories when they can maximize the freedom of each citizen to achieve his or her preferred world."
"At the beginning of the twenty-first century, we still live in nation states and their legitimating mission - to better our material well being -still defines the contemporary state. But this mission is becoming harder and harder to fulfill, and publics know this."
"The nation state's mission of material improvement led it to seek managerial inclusive victories that harnessed the conquered society to the mass production and consumption of the victorious coalition. Total warfare demanded total surrender."
"Market state warfare is directed toward civilians. "
"The rise of market states has prompted the emergence of twenty-first century networked terrorism, and the potential for arming these terrorist networks with WMD..."
"If market states are indeed emerging, such states' terms for victory in warfare can best be described as preclusive."
"The war aim of the market states of consent must be to prevent attacks on civilians."
"For states of terror, targeting civilians is the point; for states of consent, protecting them is the objective even when they may sympathize with our enemies."
Professor Bobbitt believes that authorities and decision makers resolutely refuse to recognize the sort of victory we must aim for.
"The war aim of the market state of terror is to bring about an environment of terror within which consensual choices - the selection of representatives and policies in a democracy, the operations of the market, the exercise of religious freedom and other human rights ..... cannot be maintained."
Dr. Bobbitt repeatedly references "Parmenides' Fallacy" as a fundamental shortcoming in current analysis.
"A redefinition of what winning means is not unprecedented in the history of states."


 
 

Summary of Part I

Terrorism follows the constitutional order and so is therefore in the midst of a transformation; the new constitutional order, the market state, will arm terrorists with more lethal weapons including nuclear and biological weapons, and more effective communications; a war against terror makes sense, as an idea, because terrorism has become more warlike, and war is becoming indistinguishable from counterinsurgency and counterterrorism operations; the war aim of the U.S. and U.K. is to preserve states of consent by protecting civilians.


 
 

Part II - Law and Strategy in the Domestic Theater of Terror

Chapter - Five - The Constitutional Relationship Between Rights and Powers

In this chapter Professor Bobbitt explains in great detail with many examples that there currently is a confusion and disconnect about the requirements to preserve civil rights and simultaneously prevent terror from destroying those same civil rights. Two unacceptable possible outcomes are the failure to defend against terror because of misguided defense of civil rights, which would result in the loss or civil rights from terror's victory, and the reverse, the ultimate loss of even more civil rights due to eventual steps taken in the name of defense against terror.
"There is virtually universal conviction that the constitutional rights of the People and the powers of the State exist along an axial spectrum."
"The tension between national security and civil liberties fluctuates from normal times to crises; a crisis often forces the reassessment of civil rights and liberties."
"A corollary to this conviction is that widely belief that intelligence and law enforcement agencies constitute a threat to civil liberties."
"Legitimacy in governance is a constitutional matter. The reverse is also true; constitutional governing is a matter of maintaining legitimacy."
"The threat (from terror) is by far the gravest we currently face to our civil rights."
"In addition to strengthened law enforcement, we will need armed forces that have been reconfigured to cope with asymmetric threats. For all the good work the do, the chief protector of American constitutional rights is not the Lawyers Committee for Civil Rights or the American Civil Liberties Union or even the Supreme Court; it is the 101st Airborne Division."
But Dr. Bobbitt is very critical of the policies and actions of the USG taken in the name of combating terrorism which actually have undermined its legitimacy through misguided infringement on civil rights. But at the same time the government has been prevented from accomplishing necessary actions in the same combat due to misguided stress on preserving civil rights. Clearly a new approach is required. For one thing, he writes.
"First we should distinguish between informing, warning, and alerting." He describes many examples of both government failure and over reach. In other words the government is simultaneously doing too much and not enough. The result is that so far, terror is winning.
"In the U.S. constitutional system, the People and not the State are sovereign, Thus the legitimacy of acts of the State must derive from acts of the people, notably elections."
"The legitimacy of a government's actions turns on its constitutional practices. The current U.S. administration's position that it can arrest anyone it believes to pose a terrorist threat and hold them without charge for an indefinite period cannot be correct because it dissolves the rule of law on which detention itself must rest."
"In each of the instances discussed above, real and difficult strategic problems confronted the U.S.. In each case, the While House relied on constitutional arguments that would, if accepted, remove the legitimating force of law from its efforts by making statutory law irrelevant to executive action."
"In these pages, I have repeatedly called for congressional action and other initiatives by government. FISA reform preventive detention statutes, rules governing coercive interrogations, the merger of national and international intelligence agencies ....and thorough renovation of the declassification of information...."


 
 

Chapter Six - Intelligence, Information, and Knowledge

Professor Bobbitt is very critical of the current Intelligence community. He notes that on the one hand it failed to give adequate warning about the 9/11 attacks and on the other reported that Iraq posses significant arsenal of WMD.
"What has failed, and if not addressed will continue to fail, is the intelligence process. Here are six misadventures of the intelligence process, including the political judgements based on the intelligence product, one can expect in the future."
We did have intelligence successes in the past while maintaining both national security and civil liberties, but will not in the future because the nature of both the State and terror are changing.
"We will have to do more than simply reject the legacies that are crippling us and replace them with methods more adapted to the problems we face. We will have to find new ways to protect civil society without sacrificing its values or delegitimating the methods by which our values are protected."
Professor Bobbitt dissects the failures related to the 9/11 attacks both before it happened and subsequently. He lists 12 other examples of intelligence agency failures to prevent surprise prior to very significant events - catastrophic intelligence failures. Then he lists 12 significant intelligence successes.
He remarks that some intelligence failures came when the U.S. had the appropriate information but its use was 'misframed' that is evaluated in the context of past situations. He describes a group of "antinomies" that were the foundation of the American state's use of intelligence while preserving the existing constitutional order. But these are now inappropriate and a hinderance in the war on terror. He names names and cites dates. For instance, he notes, that Americans are willing to let some criminals act due to the government's strict adherence to the 4th and 9th Amendments because the costs of criminal behavior thus enabled is not itself so great as to be a threat to society. He includes many other examples that stem from the division between public and private spheres. Another major fault has been the failure of intelligence and law enforcement agencies to share information. This too has a long and interesting history that Professor Bobbitt provides.


 
 

Chapter Seven - The Strategic Relationship Between Ends and Means

Professor Bobbitt takes on the age-old issue of whether or not the ends justify the means. He comments that the whole discussion is based on fallacy.
"It is my view that this separation - the demand that terrorism be defined exclusively by attending to the means it employes - is symptomatic of a larger intellectual failure."
"There are a number of fundamental and mistaken assumptions about the ends and means of terrorist violence that tend to disable us from even accurately defining terrorism." He cites 4 specifically.
"Is terrorism always and only a means to an end" This is the common ground of each of these assumptions, namely, that terrorism is merely a technique of conflict."

By contrast, consider the following definition: Terrorism is the pursuit of political goals through the use of violence against noncombatants in order to dissuade them from doing what they have a lawful right to do. This definition puts the goals of terrorism back into the picture by linking strategic means (attacks on civilians) with legal ends (the deterrence of lawful action).
"It is crucial that we agree on a definition of terrorism, even if we may disagree on some particular applications of that definition, because this agreement is the necessary foundation for collaboration." He presents a table showing the wide results from a poll that asked respondents to label various acts as terrorist. One issue he considers is the possible use of 'terror' by lawful states. Then he takes up Machiavelli's discussion of the proper limits to the actions of a responsible political leader.
The preliminary claim I wish to make is simply that anyone with the responsibility for protecting other must discharge that responsibility with an eye firmly on the consequences - that is, the relationship between means and ends must govern the decision. .... A pacifist should not be asked (or allowed) to be a general. "
Machiavelli was among the first to appreciate this, and his argument that the moral imperatives for the official are different from those of the rest of us has earned him the condemnation of many successive generations. Yet it was a key insight at the birth of the modern state, and indeed one can account for the timing of this insight by correlating it with the emergence of the State."
Professor Bobbitt contrasts Machiavelli's insight with the opinion of Michael Walzer, whose conclusion "would have been most unwelcome to Machiavelli."
"The origin of the 'duty of consequentialism' lies in the constitutional makeup of the state of consent."
"Machiavelli's insight - that officials must disregard their personal moral codes in carrying out the duties of the State - is seldom assessed within the context of law." But professor Bobbitt insists that the elected official must adhere to the law - that is execute policy not in accordance with his own judgments or moral beliefs but in accordance with what the law specifies.
"He cannot substitute his personal moral imperatives as if he were acting as a non-governmental agent."
"Both Machiavelli and Walzer observe that there are two different moral codes, one for the civilian and one for the government official. As a rule, the way that states of consent integrate these two otherwise alienated roles is through law. " (The law)" embodies those moral principles that the society has deemed ends in themselves, ends against which the means chosen by the government official must be measured."
Dr. Bobbitt takes up the issue of torture in terms of ends and means in a very lengthy section. He reaches a complex conclusion after distinguishing three ends sought by the means of torture.
"There must be an absolute ban on torture and coercive interrogations of any kind for political or evidentiary purposes. There ought to be an absolute ban on torture or coercive interrogations for the purpose of collecting tactical information. There cannot be a ban on the collection of strategic information - information from terrorist leaders and senior managers - by whatever means are absolutely necessary short of infliction severe pain when that information is likely to preclude attacks...."
"We need legal reform so that law reflects the new strategic context that we are entering."


 
 

Chapter Eight - Terrorism: Supply and Demand

"Up to now most analytical work on terrorism has focused on the demand side - that is, on the social conditions that are said to be the 'root' causes of terror, on the political demands of terrorist groups, on the psychological and sociopathological aspects of terrorists themselves, and on their techniques and tactics..... The first task in warfare is to determine the nature of the enemy."
"The paramount reason why we must undertake a supply side analysis that focuses on our own exposure is that we are entering a world where it will be impossible to identify our attackers in a timely way."
In other words Professor Bobbitt asks for a deep analysis of the vulnerabilities of the 'state of consent' itself and then on ways to mitigate those vulnerabilities.


 
 

Part III - Strategy and Law in the international theater of terror

- Chapter Nine - The Illusion of an American Strategic Doctrine

The chapter begins with Professor Bobbitt's recounting of the several American 'doctrines' beginning with the Monroe Doctrine. He briefly mentions The Roosevelt Corollary, the Stimson Doctrine, The Truman Doctrine, The Eisenhower Doctrine, a Johnson doctrine, the Nixon Doctrine, a Carter Doctrine, and a Reagan Doctrine. Now we have a Bush Doctrine (even though President Bush never claimed it as doctrine), which he believes has two incompatible elements.
"The difficulties with the Bush Doctrine arise when one tries to reconcile its two elements."
"The U.S. needs a strategic doctrine because it must confront a period of such uncertainty, a period not only of unpredictability but also of importance and, as we shall see, of opportunity."
"We are entering an era of turbulent and even dangerous change, such as has occurred less than half a dozen times in the last five centuries."

 
 

Chapter Ten - Mise-en-scene: The Properties of Sovereignty

"At present the rule of law is eroding because the prevailing doctrines of international law are radically insufficient to regulate the efforts of states that must cope with global, networked terrorism, and with the related threats of weapons of mass destruction, genocide, and overwhelming civilian catastrophes."
"The original understanding of the U. N Charter was structured by the legal concepts of a society of nation states with opaque sovereignty."
He means each state is equally sovereign and not responsible to any other for its internal actions. Opaque sovereignty gives each state supreme authority to govern internally as it pleases. Thus preventative attack and intervention to support humanitarian rights are violations of the notions of opaque sovereignty and hence of the U.N. Charter. Nevertheless there have been cases in which the Security Council has agreed to humanitarian interventions. This is a result of a new concept called 'translucent sovereignty.'
"For the law of nations has not been static in the past - it has evolved along with the constitutional order of states..."
Professor Bobbitt describes the changes that took place with the evolution of the imperial state nation into the nation state.
He continues, "At some point in the twenty-first century a new constitution for the society of states will come into being that reflects the emerging constitutional order of the market state."
"At present, three dogmas of sovereignty dominate our thinking. Sovereignty, it is said, must be fully vested.".. "Sovereignty, it is also thought, is necessarily territorial." And "Sovereignty cannot be shared." These, he notes are European views. He then describes various notions that stem from these concepts. And he continues that all these notions are about to be abandoned. Moreover, the American view of the nature of sovereignty never accepted the European view nor was accepted by Europeans. Now, he writes, there are emerging three different views of sovereignty - opaque, translucent and transparent. These three correspond with concepts about when, how, and why a state's sovereignty may be legitimately violated by the society of states.
"States of consent face threats that are coalescing in the Wars against Terror and that have a number of things in common. First, these threats were spawned by the parliamentary nation states that won the Long War.... Second, these threats are all linked to the emergence of the market state....Third, all these threats challenge the prevailing doctrines of current international law."
"A reformed international law could comprise these legal initiatives:" Professor Bobbitt suggests 12 specific rules. He also discusses the concept of prevention and 'the right to prevent'. "Bearing these attitudes in mind, I offer this provocative proposed rule: a state of terror can never be sovereign."


 
 

Chapter Eleven - Danse Macabre: Global Governance and Legitimacy

This chapter is about the strong need for changes in international law so that the actions required by the new nature of the state and of war may become legitimate - that is accordance with the rule of law.
"How could global legitimacy be achieved for the doctrine of transparent sovereignty in international law? How indeed is legitimacy achieved for any doctrine in a society of states?" Professor Bobbitt presents two alternative concepts others have offered and indicates the problems with each. One of these is traslucent sovereignty. But there is a dilemma because the legitimacy of international nation state institutions depend on the legitimacy conferred on them by treaty arrangements consented to by the sovereign states. Again, Professor Bobbitt's point is that when law no longer supports the nature of actions required to maintain the rule of law itself, then the law must be changed.
"The nation state depended upon its complete freedom in its internal affairs, and its complete legal equality externally."
"Now, however, these two foundations of the state, inner and outer, have undergone a dramatic transition. Internally, the state must compete with global, private actors for authority and influence .... Externally, the power and presence of the U.S. effectively removes the option of alliance as a practical matter -as we have seen in the repeated but fruitless attempts to organize the 'balancing' groups of states...."
"Treating states as equals prevents treating individuals as equals."
"The equality of states presumed by international law as that law is currently written and understood - the institutionalized rejection of 'double standards' as it were - does not reflect this singular strategic role." Professor Bobbitt cites examples of the dilemma facing those who would want to intervene within a state to protect individuals because to do so obviously violates the current concept of state sovereignty.

"For it is the change in the nature of the threats we are facing that must prompt a change in the international law governing the use of force."


 
 

Chapter Twelve - The Triage of Terror

"The remaining task is to infer a new kind of decision making from the historical, comprehensive coup d'oeil that comprehended the Wars against Terror as composed of its three elements. We must take anticipatory action in each arena - through military preemption, diplomatic preclusion, or taking preparations to mitigate - because once a truly horrific catastrophe occurs the strategic result follows ineluctably. That is because the result is terror itself."
Professor Bobbitt again refers to Parmenides' Fallacy and urges its avoidance through scenario planning. He again discusses De. A. Q. Khan's nuclear network as an example of what must be avoided. Then he discusses the potential of biological weapons. He notes that the same research required to protect against these also expands the knowledge of them available to terror.
However, he comments, "A world free of nuclear weapons would be, I fear, only a temporary one."
"We are required to merge counterinsurgency and counterterrorism, which hitherto we separated as war and crime. This will mean a very much larger defense establishment at a time when the armed forces are becoming more expensive to recruit and retain."
"In the United States we may well face a constitutional crisis within the next three decades."
"We need a thorough and methodical reformation of our habits of thinking about the world, roughly like the one that occurred during the First World War when the U.S. emerged from isolation to become a great power."
"We sometimes forget that the Wars against Terror are by no means the worse eventuality in a world moving from nation states to market states. That status would have to be reserved for high-intensity wars among the most highly developed states."
Here he returns to the theme of the last section of Shield of Achilles - the coming conflict between the three alternative forms of market state. He reminds readers of these three versions - entrepreneurial market state, mercantile market state and managerial market state. His summary I provide in the essay evolution of state.
"It is by no means impossible that these different constitutional forms might find themselves in conflict - perhaps provoked by the internal collapse of the formerly Second World War states of Russia or China....."
"This era will not see the end of war; but it need not fall victim to cataclysmic wars either."
Now we have it - In my opinion the 'conflict' between these three forms of the market state has already begun in the political/economic arena which Machiavelli noted is war conducted by other means. Currently the political administration in the U.S. is striving to shift the U.S. onto the European form of managerial state, while the Chinese (and some Asian) state is expanding its use of mercantile methods.


 
 

Conclusion - A Plague Treatise for the Twenty-first Century

"Plague treatises were books written in the fourteenth, fifteenth and sixteenth centuries by physicians and clerics trying to explain to their contemporaries what had caused the plagues that attacked Europe and how to cope with them."
"Today, at the beginning of the twenty-first century, global, networked market state terrorism is not much better understood than the plague was then."
In this concluding chapter Professor Bobbitt provides some ideas about what is required.
"We must reform our ideas about terrorism, war, and the war aim if we are to win the wars of the twenty-first century in order to preserve states of consent and prevent the triumph of states of terror."
"The changes in warfare and terrorism are both a consequence and a driver of the change in the constitutional order."
"The wars against terror are similar to earlier epochal wars, like the long war of the Twentieth century, but are also radically different, and the twentieth century triad of deterrence, containment, and arms control regimes must now give way to twenty-first century strategies of preclusion."
"The states of consent must conform their strategic behavior to the rule of law; and the law to which they confirm must be reformed to take into account changes in the strategic context."
"With respect to domestic law, the U.S. must so construe its constitutional law that it protects human rights, and this will often mean strengthening the powers of government."
"The wars against terror cannot be won by the states of consent without alliances; indeed, alliances can be one of our chief advantages over states of terror."
"We are not winning the wars against terror because we don't understand their deep connections to historic changes in the nature of the state."
"The plague treatise concluded"