Since this is an era of human rights the invasion was described by NATO as humanitarian, thus indicating how easily attacking a country can be imagined as an act of saving humanity.
I don't mean to imply that what we have here is a simple case of cynicism; political motives for violence and humanitarianism are often deeply entangled, making it difficult to separate them.
But what intrigued me from the beginning were the sentiments that shaped the violence, how the will to extirpate evil ("terrorism is evil") was combined with a desire to reach out, reform and uplift a part of the world in which "evil" (the aggressive rejection of "our way of life") still thrives.
In his address to the nation on the evening of 11 September President Bush spoke of "justice" and "war": "Today, our nation saw evil - the very worst of human nature," he declared and then went on to reassure his listeners that although the immediate perpetrators were dead the search was underway for those who were behind their acts:
"I have directed the full resources of our intelligence and law enforcement communities to find those responsible and to bring them to justice. We will make no distinction between the terrorists who committed these acts and those who harbor them ... America and our friends and allies join with all those who want peace and security in the world, and we stand together to win the war against terrorism ... Be confident; our country is strong. And our cause is even larger than our country. Ours is the cause of human dignity, freedom guided by conscience and guarded by peace. This ideal of America is the hope of all mankind. That hope drew millions to this harbor. That hope still lights our way. And the light shines in the darkness, and the darkness will not overcome it."
Bush clearly preferred the language of war - of a moral assault on evil - to the language of justice as legal process.
Several commentators noted the deliberate parallels in style between Bush's address to the nation and Franklin Roosevelt's famous speech after the Japanese attack on Pearl Harbor. Bush didn't use Roosevelt's phrase "day of infamy," but it appeared widely in newspapers and on television in the days that followed.
It was only in retrospect that the irony of that phrase became apparent: the Pearl Harbor event was thought to be infamous not because it was a surprise attack by terrorists but because it was a pre-emptive attack by the Japanese air force (that was expecting a American attack against Japan). And a pre-emptive attack was precisely what the United States claimed it undertook against Iraq in 2003, by embracing it within the military assault on terror.
On 12 September, William Cohen, onetime Secretary of Defence under President Clinton, echoed Bush's sentiment:
"In a very real sense, America itself must embark on its own holy war - not one driven by hatred or fuelled by blood but grounded in our commitment to freedom, tolerance and the rule of law and buttressed by our willingness to use all means available to defend these values."
Because the human propensity to do evil continually threatens America's values of humaneness and humanity, the war to defend them must be fought again and again in one place after another.
Democracy and the culture of punishment
I recall seeing a placard in a van in Spanish Harlem on September 18 that gave a small indication of powerful popular feelings: "We don't want justice, Mr. President," it read, "we want war." Clearly, for the placard-writer war and justice were mutually exclusive: the one having to do with violent revenge, the other with the process of the law.
But of course, justice does sometimes extend passionately beyond the law; and law is supposed to govern war between sovereign states. The conflicting demands of law/justice on the one hand and the popular desire to see bold criminals punished harshly on the other help to explain the general response to the 11 September atrocity.
The legal historian James Whitman has written persuasively about the strong connection between democratic politics and the culture of harsh punishment in the United States, and pointed out that in the United States, where populist politics often translates directly into legislation, politicians seeking election want to be heard endorsing popular attitudes about the punishment of criminals.
The idea proposed by Norbert Elias and others that the monopolization of legitimate violence by the modern state leads to the internalization and control of emotions among citizens seems to me oversimplified. It certainly doesn't explain the American political elite's embrace of the popular clamour for retribution against "terrorists" who, in the moral imagination of patriotic Americans, are assimilated to the very worst of human nature, and why there was no general political outrage at the treatment of prisoners in Guantanamo and Bagram, among others.
The indifference in this matter comes out of a passionate desire to restore the invulnerability of America that is assumed to be a national birthright.
One result of the sudden death and destruction on that day was a great upsurge of collective fear and anxiety reflected in (and encouraged by) the media in New York. Television networks stopped showing commercials, shows and games were cancelled, shops closed, the only planes in the sky for several days were military jets.
The image of the collapsing Twin Towers was continually repeated on television. Reassurance was sought in nationalist fervour. The Stars and Stripes fluttered from each apartment building in Manhattan and was printed on every bus and subway car. The slogan "War on Terror" appeared daily on almost every page of every newspaper; a terrorist threat alert bearing a range of colours from green to red was flashed on television every day. Commentators spoke of "America at war."
Academics and journalists rushed to explain the atrocity by reference to Islamic tradition and Arab culture; the popular hostility against American Muslims this fear generated has continued until today. The "war against terror" was widely accepted as just retribution, as the restoration of national honour, and as an attempt to eliminate a great evil.
Afghanistan: a war of necessity?
Since becoming president Obama has insisted again and again that the invasion of Afghanistan was "a war of necessity." Respectable opinion in the United States agrees with him. The invasion was certainly an understandable response to the terrorist attack on 11 September 2001 - an attack that all international lawyers said was a crime against humanity.
There was disagreement, however, over whether the subsequent armed hostilities were legal. But legal or not, what made itnecessary?
One of the points that I want to argue is that although the launching of the armed conflict in Afghanistan was indeed not necessary, the way that supporters conceptualized the necessity of the "war" helped to produce a particular kind of violence: an attack against evil.
The accepted story was that Bin Laden's organization had attacked the United States without provocation on 11 September 2001 that the Taliban regime in Afghanistan harboured al-Qaeda and refused to yield up its leaders, and that this made the American invasion a necessary act of self-defence.
The Taliban itself had become a serious threat to the peace and safety of "the American people," and even - so it was said - of the world. It was only after the invasion had begun that reasons other than the pursuit of Bin Laden made their appearance: re-building a failed state, liberating women, establishing human rights.
Helping Afghans to develop a humane society would create an environment unfriendly to terrorists. It would also be an occasion for spreading American values - a national task first articulated by Woodrow Wilson on the eve of the First World War:
"The world must be made safe for democracy. Its peace must be planted upon the tested foundations of political liberty. We have no selfish ends to serve. We desire no conquest, no dominion. We seek no indemnities for ourselves, no material compensation for the sacrifices we shall freely make. We are but one of the champions of the rights of mankind."
Critics of the "Afghanistan war" pointed out that terrorists can and do operate from locations closer to the United States, that most of the 9/11 hijackers came from Saudi Arabia, that the attacks were planned in Germany, and that consequently American security would not be secured by occupying Afghanistan.
Ironically, the inference drawn by the ruling elite from the claim that terrorists might emerge from any country was that in one way or another the United States must be prepared to intervene in every country.
In other words, to defend the United States, the United States must try to control the world; and to control the world America must not only maintain global order but also export its values.
The United States is not committed to conquering the world militarily as the old European powers did, but only to maintaining its (military) "presence" globally and to promoting liberal democracy and the free market everywhere.
Obama reproduced this line of reasoning in several speeches in which he separated gratuitous killing (terror) that threatened the world from necessary military intervention that defended it. Looked at closely, this distinction hangs on a particular argument about sovereignty.
Liberals do not approve of killing or the infliction of pain - unless it is absolutely necessary. But "necessity" in itself is an empty notion that derives its sense from the aim in question. It can be used not only to justify killing in what is called war but also to defend torture or years of solitary confinement or indefinite detention without trial.
Sacred terror
In his recent book, Sacred Terror, Paul Kahn links the necessity of unrestrained violence to the concept of sovereignty. Thus he reminds his readers:
"The Israeli Supreme Court opinion on torture ... while refusing to provide a legal rule under which torture may be used, nevertheless notes that a torturer may have available a 'necessity defense' were a criminal charge to be brought against him."
But I think that the argument from necessity, whether used by torturers or initiators of war, renders it difficult to understand why the space beyond legality begins where it does. Kahn proposes that "terror invokes torture because terror moves us beyond law to sovereignty ... We take the first step toward torture when we take up arms in defense of the state. This is the step from law to sovereignty."
However, I have a small question: If the category "terror" is reserved solely for non-state actors (as it is by Kahn), and "torture," like "war," for a sovereign response to "terror," do we grasp the complexity of state violence?
It is not terror that moves us beyond law to sovereignty, terror is always and already a power of sovereignty, an institution social anthropologists, following Henry Maine, used to call patria potestas when that term applied to the absolute authority of the head of the ancient family who had the power of life and death over its members.
Sovereignty has always been constitutive of the Law and vice versa. In the United States it was "We the people" who constituted themselves as a sovereign body, becoming thereby the ultimate law-making authority, a body at once terrible (it possesses the prerogative of war) and rights based (it is rooted in law).
Torture belongs to the terror of law - that is why a legal plea of necessity can be made by and accepted from the torturer and the initiator of war, why various violent acts of the state (in war and in peace) are claimed to be necessary.
In short, sovereignty lies at the heart of the notion of war (the sovereign's principle prerogative) as it does of "enhanced interrogation," and the concept of law circumscribes both. When one moves from law to sovereignty one does not leave the law, one moves to its foundation. And the space beyond legality is itself a product of the law and essential not only to the integrity of the state (the formal embodiment of sovereignty) but also to its many definitions of "violence."
That is why it was important for supporters of the invasion to cast doubt on whether Afghanistan under the Taliban was really a sovereign state because if the state was not sovereign it could not demand the rights of war and peace that belong to sovereignty; and the individual soldiers of a failed state could be denied the right to fight under the protection of humanitarian law.
It's worth noting that the concept of a "failed state" originated not in international law but in political science theory where its purpose was to help devise development strategies to modernize the Third World - for modernizers the idea of a society that isn't regulated and disciplined by a strong state is intolerable.
But in "the Afghan war," the term failed state became a quasi-legal concept that helped to justify invasion and to create a new category - that of "unlawful combatant," standing in opposition to "lawful combatant." Thus on 9 January 2002 the Justice Department of the Bush Administration published a memorandum stating: "Afghanistan's status as a failed state is ground alone to find that members of the Taliban militia are not entitled to enemy POW status under the Geneva Conventions."
They were to be classed as "unlawful combatants," equated with "terrorists" and subject (in a "war against terror") to American military authority: the camps in which they were held, and the tribunals by which they were tried thus became instruments of military command (not limited in these cases to internal military discipline) as opposed to conditions of civil justice.
However, when the Geneva conventions speak of "lawful combatant" it is to give soldiers protection against the law of homicide; its antithesis is not "unlawful combatant" (a category absent in international law) but "civilian," a status subject to normal legal prohibitions and protections.
The concept of "failed state" thus marks the absence of the sovereign right to prosecute a just war - in this case a necessary "war" against terrorism: because such a state is not sovereign, it does not have the sovereign's right to make war, and so it cannot defend itself but must be defended (if defence is called for) by a sovereign power mindful of its rights and responsibilities in "the international community."
Terror and the sovereign state
There is another question regarding the state's sovereign power and its relation to terror. In its reference to terrorism the United Kingdom Terrorism Act 2000 explicitly includes the threat of force and not merely to its actual use. From this there follows the question: Does the state's threat to annihilate its hostile opponent's civilian population by a nuclear strike constitute terrorism?
A common (and somewhat paradoxical) answer is not only to concede that terror is a prime purpose of nuclear armament but also to claim that a "balance of terror" is a necessary way of securing peace.
Of course, the emotional experience of witnessing a terrorist attack such as 11 September is not the same as the experience of living under the permanent threat of a nuclear holocaust that is, after all, pushed beyond everyday consciousness.
Yet it is precisely the implicit appeal to that difference in emotional experience that induces people to accept 11 September as a genuine case of terror ("radical evil") necessitating a punitive war, and nuclear confrontation as an international arrangement for preventing the evil of war.
In the one case there is a sense of moral certainty, in the other a hope based on probabilities.
In 1996 the International Court of Justice gave an Advisory Opinion in answer to a question from the World Health Organization about the legality of the threat or use of nuclear weapons in international law.
Its reply was that although it was unlawful if it failed to meet all the requirements of the United Nations Charter or all the principles and rules of humanitarian law, it was neither authorized nor prohibited.
The Court's final conclusion stated that "in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake."
Note that the phrase "extreme circumstance" in this Advisory Opinion refers not to an imminent threat to the lives of large numbers of human beings but to the sovereign power's claim to immortality. The International Court of Justice offers an Advisory Opinion on the legality of a state's resort to organized terror and concludes that it lies ambiguously within the space of necessity indicated by the Court.
The survival of the state as a sovereign entity is taken as the highest value. The curtailment of the civil rights of United States citizens after 9/11 as part of the Homeland Security system may thus be seen not as a response to a threat to American lives but as a perceived threat to the sacred power of the state to which even citizens must be sacrificed - in the battlefield, in prison, and as the object of targeted assassination. Kahn correctly observes that
"what is most important about our political culture is our willingness to kill and be killed ... We remain embedded in a culture of sacrificial violence ... At stake in the existence of the nation-state has been the presence of the sacred. The polity begins as a particular community with its own history only when the finite goings-on of individuals are touched by the sacred ... This social imaginary comes to the West in the Old Testament narrative of the origin of the Jewish nation: the sovereign God reveals himself to Abraham. For the individual, the presence of the sacred is expressed in the willingness to sacrifice ... This is the paradigm within which the Western state has developed. It has a sacred origin and a sacred space. Sovereign survival is not one value but an ultimate value without which there can be no meaningful life. The means of survival is sacrifice not because killing and being killed are effective tools ... but because absent sacrifice there is no sacred presence of the sovereign."
This sense of sovereignty's right to demand human sacrifice may explain the fear registered in the final sentence in Paul Kahn's book of terror wielded by militants that echoes numerous security experts today. "The terrorist with weapons of mass destruction may very well put an end to our dream of a global community of human rights," he writes.
And yet is it really terrorist-initiated mass destruction that threatens the dream of a global human community? Is that what is at stake here? So far only the United States has shown that it is capable of using nuclear bombs against another state, and only the United States has used vast quantities of depleted uranium shells in an urban area to win a battle against insurgents.
Is it wrong to see in Kahn's thought an implicit argument not about the survival of a human dream but about the survival of the sovereign state - and hence its right take any means necessary, wherever necessary, to maintain itself?
In spite of the insistence on necessity, however, doubts have emerged about the "war" against terror in Afghanistan. These arise from a mixture of ethical and pragmatic considerations: the continuing slaughter of civilians, the corruption of the Karzai government, the enormous cost of maintaining the army in Afghanistan, and the lack of significant military and political achievement by the occupying forces.
The original invasion was just, many critics now say, but the process of the hostilities over the last nine years has led to the erosion of its moral legitimacy and this has seriously undermined its practical chances of success. (Immorality here does duty as part of a pragmatic argument about military success/failure.)
So people ask why a "war" that many experts agree is unwinnable is nevertheless pursued. In fact there is no single answer to this question.
The assessments of the situation by the military and political establishments (with the latter deferring increasingly to the former) and the different interests (especially of the various corporations involved in the military effort) encourage continuity.
A serious factor, given the military's central position in American society, is the fear that withdrawal will be seen as yet another national defeat like Vietnam, leading to a weak President being politically destroyed - or at the least, the Pentagon budget cut by Congress.
At any rate there is the sheer complication of withdrawing from the country a vast machine like the United States army with which numerous private interests, at home and abroad, have become entangled.
How Americans are seduced into war
Popular support for/indifference to the counterinsurgency in Afghanistan depends on the way the armed conflict is presented in the mainstream media, and the mainstream media generally reflects the prevailing military consensus. Besides, there is no conscription.
The increasing rate of unemployment among young African-Americans and Latinos provides a steady source of army volunteers. There is also increasing reliance on mercenaries. And perhaps more significantly, there is the expanding use of drones.
The result is that middle-class anxieties about the casualty rate sustained by the United States isn't great. The Iraq and Afghanistan wars may not be popular but organized opposition to them is insignificant.
Another reason has been suggested for this indifference: there is a general despair at the failure of the massive anti-war demonstrations prior to the Iraq invasion, leading to a sense that the rulers will not listen. This may well be so, but I think there is something else as well: complicated emotional identifications and displacements within American public opinion.
Mahmood Mamdani has pointed out that the muted opposition to the wars in Iraq and Afghanistan contrasts with the large numbers of Americans (including public personalities) mobilized for action by the Save Darfur Campaign that opposes a non-American counterinsurgency.
The powerful desire to intervene compassionately - to identify with victims of violence and save them (that is, oneself) at the same time - is here exhibited in contrast to any sense of responsibility on the citizen's part for the highly destructive conflicts being fought in foreign lands by her government in her name.
There seem therefore to be two kinds of "necessity" at work here: One driven by a humanitarian sentiment, the other resulting from the passivity of a democratic citizenry. Both are socially constructed but whereas citizenship presupposes political rights and political duties, the former only needs living beings with which to empathize.
What is the relevance of this distinction for the strength of the opposition to the Afghanistan war? It suggests that since the Second World War social-historical conditions in the United States - and in particular the emotional identification of most Americans with their state as the world's freest, most virtuous, and most powerful nation - have developed so as to render the concept of responsible citizenship less and less viable.
For to demand that one's state managers be held accountable is at once to take a distance from the law state and to assert the sovereignty of responsible citizens of that state.
Andrew Bacevich (a retired United States army colonel, and now a professor of history and international relations) has attempted to explain what he sees as the decline of American citizenship by reference to the military.
In the American past, he says, citizenship and soldiering were seen as being closely connected (only full citizens were liable to be called up) but that now the link is severed.
The fact that United States citizens are no longer required to do military service has a serious impact on United States politics and culture generally, and with the performance of American sovereignty in particular.
As with religion, and so much else in secular market society, soldiering has become a matter of individual choice. The distancing of the military from civil society separates full citizenship from exposure to death and mutilation in defence of the political community, and passes on that responsibility - and the anxieties that come with it - to a small number of professionals, including mercenaries who are often not American nationals at all.
One consequence of the average citizen's non-involvement in a distant war is the lack of any consciousness that he has a responsibility for it. But, as I have indicated, this seems to go along with a curious eagerness to mobilize for active support of one side in a distant civil war for which the United States government has no responsibility.
I thus agree with Bacevich when he maintains that 11 September 2001 was not a new beginning but an impetus given to a trend since the Vietnam War that gave the military a central place in American society, in which the world's most powerful military became the most important object of national pride and the preferred answer to foreign policy problems.
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