Many readers do not think there is anything morally or politically significant at stake in the free will debate. Those who do tend to associate the concept of moral responsibility (which itself rests on the notion of free will) with the program of law and order conservatives, who want to harshly punish criminals because they deserve it or tell suffering people that they have no one but themselves to blame for their lot in life. In the last section of the article, I attempt to flip that script, arguing that we need belief in free will and moral responsibility to make sense of enlightened and progressive ideas about punishment, citing the debate about the justice of much of what the US government has done since 9/11. If you share the standard concerns of War on Terror critics, I argue, you shouldn’t be too breezy about giving up belief in free will.
While I share these concerns, I didn’t try to make a case against War on Terror practices in the essay, since my point was to persuade War on Terror critics that they should care about the abstract philosophical debate about moral responsibility. I say,
All of this was justified based on consequentialist calculations—that it was better to kill, maim, torture, dislocate or indefinitely detain innocents than to let a larger number of innocents die in the terrorist attacks that such measures might prevent. One way of pushing back is to argue that the calculation is flawed—that the cumulative effect of all this is to inspire more terrorism than it prevents.
I suggest that the underlying moral horror at these practices might be better expressed with a non-consequentialist theory—one that hinges on the concept of innocence, which in turn rests on the notion of moral responsibility.
Jonathan Church chose to respond with a detailed essay on the War on Terror.
Where Church Is Right
All but three sentences of the paragraph that I devote to summarizing War on Terror controversies concern drones:
America has also carried out drone strikes in Pakistan, Somalia, Libya and Yemen. Even though the United States is not at war with any of these countries, these strikes were used to kill people based on unproven suspicion. In the case of signature strikes, the people planning them didn’t even know the intended victims’ names. CIA analysts watching surveillance footage in Virginia would make a determination, based on a target’s pattern of life, that he was probably involved in terrorist activity, and then he would be extra-judicially executed. It’s impossible to know how many of these intended targets were guilty. The number of non-intended targets who have been killed is also hotly contested—as is the underlying question of whether drone strikes are more precise than strikes carried out by manned planes—but no one seriously denies that intended targets have been a minority of the victims.
Church seems to misinterpret my claim about signature strikes as a claim about drone strikes in general. He responds: “This is untrue. There are detailed lists of senior al Qaeda, Taliban and allied jihadist leaders killed in US airstrikes in Pakistan from 2004 to 2017.”
This response is doubly irrelevant. First, because his linked list makes no mention of the distinction between personality strikes (where the targets are chosen based on specific intelligence about named individuals) and signature strikes (based on the deduced pattern of life of subjects seen in video footage, whose names might not be known to the analysts making that judgment. The latter are the subject of the “joke about the lax standards” quoted by Amy Byrne in the Georgetown Law Review: “[W]hen the CIA sees ‘three guys doing jumping jacks,’ the agency assumes it’s a terrorist training camp.” Anyone the government is willing to posthumously allege to be a senior leader was presumably targeted based on specific intelligence about them. So this is a list of personality strike victims, not signature strike victims. Second, no one has ever claimed that every victim even of personality strikes was a senior leader of anything.
Finally, he takes issue with my claim about the proportion of drone strike fatalities made up of intended victims. He acknowledges that “the rate of civilian victims is extremely hard to determine,” but then cites a range of sources that estimate non-intended casualties as anywhere between 1% and 35% of victims. The 1% claim is obviously unserious—to see how the government and its most dedicated apologists manage to massage the numbers to get them that low, recall the Obama Administration’s practice, revealed by the New York Times, of starting from the default of calling every “military age male in a strike zone” a terrorist. It’s also worth noting that Church’s numbers are for air strikes in general, as opposed to drone strikes in particular, and, while Church talks about “pinpoint drone strikes,” as if the two adjectives went together naturally, at least one study from the Center for Naval Analyses shows that drone strikes are far less precise than strikes from manned platforms. I was, however, clearly mistaken about the range of estimates. On that point—and only on that point—I stand corrected.
What Church Reads Between My Lines
[Ben Burgis] glosses over profound intricacies in foreign policy decision making to assert that “two countries were first bombed and then invaded and occupied, resulting in vast numbers of deaths and mutilations and even larger numbers of refugees.” This makes it sound as if America inflicted its visceral rage at 9/11 on two helpless countries simply to make a point, and that all the casualties and refugees have been the result of ruthless American warmongering.
The problem is that the United States did bomb, invade and occupy Iraq and Afghanistan and this did result in the consequences I mention. No one—including Church—disputes either claim. I say nothing about why the United States did these things, except that the stated justification was to combat terrorism. Since my point is about whether successfully reducing the level of terrorism would be sufficient to justify such actions, anything beyond the anodyne statement of fact is irrelevant to my purposes.
This fails to take into account the role of embedded terror networks in Afghanistan, led by a Taliban regime that terrorized the Afghan population and sheltered al Qaeda (which orchestrated the assassination of Ahmad Shah Massoud, the leader of the resistance to the Taliban, two days before 9/11); of Sunni-Shi’ite divisions in Iraq, which were exploited by both Iran and by Abu al Zarqawi’s al Qaeda in Iraq; and of the foreign fighter networks in several Middle East countries (see this analysis of the Sinjar records).
How did my statement of uncontroversial fact “fail to take this into account”?
Church describes my position as follows:
Burgis suggests that “the cumulative effect of all this is to inspire more terrorism than it prevents,” an assumption that ignores the long history of radical Islamic jihad, which inspired al Qaeda and its network of affiliated groups.
His argument rests on a conflation of the idea that unintended War on Terror consequences could generate more terrorism than the War on Terror prevented with the very different claim that the general phenomenon of al Qaeda-style terrorism doesn’t have any roots deeper than unintended War on Terror consequences. He also makes a logical leap from the premise that Guantanamo was not the terrorists’ “number one recruiting tool” to the conclusion that it was not an important recruiting tool for them. Finally, his presentation of terrorists’ stated motives is highly selective—see, for example, Bin Laden’s Letter to America, or the many cases in which terrorists standing trial have said that they were motivated by a desire to avenge the mass deaths caused by America’s wars in Iraq and Afghanistan.
None of this, however, has anything to do with what I actually said. Here’s my original sentence: “One way of pushing back is to argue that the calculation is flawed—that the cumulative effect of all this is to inspire more terrorism than it prevents.”
This is a popular way of pushing back against the usual justification for these policies. (It was, for example, one of Senator John McCain’s favorite arguments against the Bush-era use of enhanced interrogation.) The problem with Church’s analysis is that not only do I make no claims about whether this is true, but I immediately pivot to the suggestion that it might be false and that my fellow War on Terror critics might be well advised not to lean too hard on this argument:
If this is our only reason for opposing these practices, however, our opposition to them hangs on a thread. What if the maths of the war on terror doves is wrong, and more lives are spared than are taken or ruined? Does that really make all of this morally acceptable?
Arguing with Substitutes
I didn’t actually make any particularly controversial claims about the details of the material Church contests. In fact, one of the longest sections of a very long essay, the 1497 words on Guantanamo Bay, never mentions my article.
There are things in this section, though, that call for a response.
Mitchell may dismiss such instances of violence as manifestations of detainee frustration at unjust detention. But this may be naïve. Detainees have successfully organized resistance efforts that have been both disruptive and indicative of deliberate planning.
The problem with this argument is that there’s no conflict whatsoever between the claim that protests against the terrible conditions at Guantanamo were deliberately planned and the claim that the detainees were driven to deliberately plan them by those conditions. Slave revolts throughout history have been “deliberately planned.” So were the attempts at mass escapes by Jews in Nazi camps. It clearly doesn’t follow that the victims in these cases weren’t inspired in their deliberate planning by genuine feelings about the conditions in which they were being held.
Bush told us the detainees at Guantanamo were the “worst of the worst.” In most cases, the US government itself eventually had to quietly admit—often after keeping people locked up for as many as five or ten years—that it lacked enough evidence for even a detention camp show trial (never mind a real trial at a real American court). Of course, various government bureaucrats continue to assure us that it’s pretty sure that even those cleared for release aren’t innocent, but, without being tested in court, such manifestly self-serving claims are less than worthless.
Church puts great credence in the fact that a small minority of the vast number of people originally picked up in Afghanistan were sent to Guantanamo after initial screening. This, of course, establishes nothing but the fact that the initial procedure was even more indiscriminate than the one used in the final stage. Church approvingly quotes this bizarre non sequitur from US Army Major Montgomery Granger:
[T]he 70,000 were whittled down via field methods to determine the status of someone whose status was uncertain. Just like the rules for a US Grand Jury indictment, US military tribunals hold a standard of determination to be a preponderance of the evidence, that is, the 51 percent rule.
Let’s assume that the field methods rose to the level of the official US military tribunal standard, despite the shockingly high volume of suspects being processed. (Given that staggering number—70,000—even calling them suspects gives the process vastly more credit than it deserves.) That should make Church 51% confident that any particular detainee was guilty. It’s also far from clear why the Grand Jury comparison is supposed to be reassuring since, as Tom Wolfe puts it in Bonfire of the Vanities, any halfway decent prosecutor could get a Grand Jury to indict a ham sandwich.
Mangling the Core Thesis
Church attempts to describe the larger thesis of my article:
Burgis’s main goal is to defend a “two-level rights forfeiture” view, according to which “innocent people have a categorical right not to be punished” and even if “guilty people forfeit this right by committing sufficiently bad acts for which they are morally responsible,” there is no “reason to punish them.” This contrasts with the “retributivist theory” that “criminals should be punished for having done bad things for which they’re morally responsible” and the “consequentialist theory” that “criminals should be punished … because it’s necessary to keep everyone else safe.” The two-level rights forfeiture and consequentialist views “suggest that we move toward a much more humane and minimalistic prison system, focused on rehabilitation” rather than punishment. The “two-level rights forfeiture” view rules out punishment altogether.
This is simply wrong. The two-level view does not rule out punishment. It’s a third competing theory as to why punishment is sometimes justified. Here’s how I describe it in the original piece:
These are not, however, the only options. A third theory, popular among some contemporary philosophers, is a two-level rights forfeiture view. According to this view, innocent people have a categorical right not to be punished. Guilty people forfeit this right by committing sufficiently bad acts for which they are morally responsible. However, this by itself doesn’t give us a reason to punish them. Punishment itself can only be justified by consequentialist reasons.
According to the two-level view, consequentialist reasons give us a sufficient reason to punish guilty people (i.e. people who have forfeited their right not to be punished). Why does the difference between that position and the consequentialist theory matter? Because if you think that sufficiently good consequences justify imprisoning or killing people (and the moral significance of guilt as opposed to innocence doesn’t enter the equation at all) you lack the conceptual resources to explain why it would be wrong to imprison or kill innocent people, even in those instances in which punishing them would have good consequences.
This is an important misunderstanding because it shows that Church has no idea why I’m bringing up the War on Terror in the first place. He repeatedly accuses me of saying the War on Terror was motivated by punishment in a way that suggests that for me punishment means retributive punishment. For example:
I shall argue that Burgis is wrong to claim that the war on terror was motivated by a belief that deterrence required punishment of the adversary. While policy was consequentialist in aiming for deterrence, the policies developed in pursuit of the war on terror were not guided by the idea that sadistic punishment would convince terrorists to give up terrorism, or potential terrorists not to become terrorists.
Here’s my actual point:
Many skeptics about moral responsibility think that their position doesn’t have any implausible consequences with regard to punishment because we don’t need moral responsibility to make sense of a purely consequentialist theory of punishment, and a consequentialist theory of punishment is more enlightened and humane than a retributivist one anyway. In the article, I pushed back against this by arguing that (while I agree that retributivism is wrong) a consequentialist theory of punishment doesn’t make sense of some of our most prized liberal ideas about punishment (where “liberal” means “as opposed to authoritarian premodern ideas” rather than referring to a particular political position). Think for example about Blackstone’s maxim that it’s better for 10 guilty persons to go free than one innocent person to go to prison—the moral calculation baked into the “innocent until proven guilty” standard. I don’t see how that can be justified in purely consequentialist terms. Thus, I suggested, people who care about liberal ideas about punishment have a reason to care about what might otherwise seem to be an esoteric academic debate about free will.
Finally, I suggest that War on Terror critics might best formulate their objection to Guantanamo, drones and the rest by reference to the rights forfeiture view. The idea here is very simple: the point of those policies was to prevent terrorism (by making sure otherwise dangerous terrorists were captured and killed). In order to accomplish this goal, the standards of evidence for killing suspected terrorists far from any battlefield, or for locking them up for substantial portions of their young lives at Guantanamo Bay were far lower than anything that could be justified in Blackstone’s terms. That, I suggest, is the real moral objection that War on Terror critics have with such practices.
Church could be right about all his granular claims, and it could still be true that the moral responsibility-dependent rights forfeiture view best explains the grounds on which people like me disagree with him about the larger question.
Church concludes his essay as follows:
Academic debates about consequentialism can be constructive, and real-world debates about the relative efficacy of various counterterrorism policies are vital, but one should not be led astray by Chomskyite arguments that adapt the facts to pre-packaged narratives.
I’d like to conclude by taking what in Robert’s Rules of Order would be called a “point of personal privilege.”
Noam Chomsky is a moral and intellectual giant. After revolutionizing his field of linguistics and laying the foundations for contemporary cognitive science, no one would have blamed him for keeping his mouth shut about everything else. Instead, he’s bravely spoken out against his own government in contexts ranging from the quasi-genocidal war in Vietnam to the Bush-era horrors that I’ve been discussing with Church. He does this in an unflinchingly calm and rational manner that contrasts favorably with the dialectical style of some other public intellectuals. Frankly, he’s the closest thing my country has to a Voltaire or a Socrates. Let’s not use his name in such a dismissive manner.