Preventive War - Becker

Combating crime mainly relies on deterrence through punishment of criminals who recognize that there is a chance of being apprehended and convicted-the chances are greater for more serious crimes. If convicted, they can expect imprisonment or other punishments- again, punishments are generally more severe for more serious crimes. Apprehension and punishment reduce the gain from crimes; in this way, it deters others from criminal activities. Individuals can also be punished simply for planning or intending to commit crimes. The evidence required to punish intent has to be convincing, but the standard is weaker for violent crimes, like plotting murder, since punishment after the crime does not do anything for those murdered. In addition, individuals who cannot be deterred are sometimes punished simply because it is considered likely that will commit crimes in the future. This is a major justification for forced hospitalization and psychological treatment of potentially violent and mentally unstable persons. These arguments about intent apply much more strongly to preventive actions against terrorist organizations and rogue nations. The conventional approach to war in democratic states favors retaliation after attacks. This was the rationale for the Mutually Assured Destruction (MAD) doctrine during the height of the Cold War: the US was prepared to unleash devastating nuclear destruction against the Soviet Union if attacked with nuclear weapons, and visa versa for the Soviets. That worked, although there were several close calls, as during the Cuban crisis. But this approach is no longer adequate to fight terrorist organizations, states that sponsor terrorism, and dictatorial states that want to destroy their enemies. For it is becoming increasingly possible for terrorist organizations and governments to unleash biological, chemical, or nuclear weapons that will cause massive destruction. Retaliation may be slow and difficult if terrorists are widely dispersed so that it is hard to generate sufficiently severe reprisals to discourage their attacks. Rogue governments also are more capable of using these weapons surreptitiously, so that it might be many obstacles to determining who was responsible if they chose not to admit their responsibility. It is already difficult to know which groups are responsible for terrorist acts except when they brag about them. In addition, many state-sponsors of terrorism often prey on the zeal of individuals who are willing to kill themselves in promoting what they consider a higher cause. These suicide bombers clearly cannot be punished after they commit their acts (although their families could be) because they forfeit their lives while attempting to kill and injury others. One can try to raise the probability that they will fail-through barriers, walls, and other protective activities- but free societies are so vulnerable that these can never be strong enough deterrents. The only really effective approach is to stop them before they engage in their attacks. This is accomplished by tracking them down and imprisoning or killing them based on evidence that they intend to engage in suicidal attacks. Those planning such acts can also be punished on the basis of intent. The same argument applies to dictators who are willing to use weapons of mass destruction to attack their enemies when they do not care if many of their populations are killed and maimed by retaliation from other countries. Dictators, like Saddam Hussein, may also greatly underestimate the likelihood of massive responses because sycophants feed them bad information, or they believe that democratic victimized states will be reluctant to make swift and decisive responses. Admittedly, the evidence is usually more imperfect when trying to prevent attacks than when responding to attacks. Mistakes will be made, and the evidence of intent must be analyzed carefully. But criminals are convicted too on less than 100% certain evidence. As Posner says in his commentary, it is necessary to consider probabilities, not certainties. Moreover, the degree of certainty required before preventive actions are justified has been considerably reduced below what it was in the past because the destructive power of weaponry has enormously increased. Perhaps most worrisome, the power of weapons continues to grow, and to become more easily accessible. Critics of preventive wars and other preventive actions against rogue states and terrorist groups ignore these major changes in weaponry and their availability. Democratic governments have to recognize that they no longer have the luxury of waiting to respond until they are attacked.

Comments

[Beehimawth]

You assert that the only effective method of stopping these characters is to kill or imprison them prior to the fact. Is it at all plausible, in your eyes, to bring about some sort of systemic change whereby over time they don't exist, or are so isolated from a supporting society as to be ineffecitve agents of destruction? It seems that one of the chief dangers inherent in your prescriptions is the manufacture of yet more individuals willing to die for the sort of ideologies we are now battling. It becomes a feed-back loop, where the two forces are locked in a never-ending struggle. It may be that open-societies must accept a certain short-term increase in violent losses in order bring about a long-term solution. The real trick seems to be finding a long term strategy. But your post speaks more of a short-term tactic which fails to enable any strategic victory.

[Rob]

Does the basis for preventive war change just because deadlier weapons are more easily accessible?

[DB]

Isn't the crime analogy inapt? If an act of terrorism is being compared to murder, and the sponsor to the murderer, then, no matter how horrific the act of terrorism planned, and no matter how certain you could be of its occurrence, you could never punish its threat to the extent you'd punish its performance; conspiracy to commit murder may carry a heavier maximum sentence than, say, conspiracy to defraud, but not one that would match homicide. Since the punishment for sponsoring a terrorist act is military action, the criminal analogy would specifically rule out such action, not support it, even if it applied "much more strongly."

[Jim Leitzel]

The choice between ex ante and ex post controls (or, as J. S. Mill termed them, preventive and punitive controls) emerges in all sorts of regulatory settings, of course. Many murders take place as part of murder-suicides, so the perpetrator is beyond the reach of deterrence. (And other murderers might be beyong deterrence for other reasons.) In recent decades, the probability that a murderer in the US will be caught and convicted has declined significantly. All else equal, does the weakening of ex post controls make gun control, for instance, a more desirable policy than it was 40 years ago?

[Toadmonster]

I don�t think the crime model maps onto international relations well. There is no social contract, no pre-set roles. The U.S., in starting a preventative war, is protecting its own interests. What if no one trusted the policeman and suspected him of pursuing raw self-interest, rather than fulfilling a role in the community? The policeman, not working within a mutually understood framework, would just be the most powerful individual in an anarchic society, enforcing his will. This would not be looked upon kindly by others. Likewise, looking at preventative war outside of the global environment ignores unintended consequences beyond the two nations at war.

The problem with the model is that formally, the United States and Iraq are coequals, not policeman and citizen. I don�t think this perspective has much practical value since U.S. power in fact underpins the international order and world interests are tied up with U.S. interests. I am not dogmatically opposed to preventative war either. But, if we�re going to stay practical what really matters are individual cases. You had better have a really strong case and the case had better be well articulated, and your actions ought to show deference to the notion that this is something exceptional, because as far as everyone else is concerned you�re not the police.

That all applies to states. Terrorists are a different situation where there are no adverse consequences to preventative/preemptive action, since they�re not legitimate actors on a world stage. In fact, here the policeman/criminal model applies very well; terrorists as criminals, states as doing the job of stopping them (note: this has nothing to do with �the War on Terrorism should be law enforcement!� etc, it�s an analogy). But, I think objections to pursuing terrorists preventatively are pretty rare.

[Cincinnatus]

"Critics of preventive wars and other preventive actions against rogue states and terrorist groups ignore these major changes in weaponry and their availability."

Who are you referring to with this statement? I don't think there are many critics of preventive wars as such. Indeed, as the Judge explains above, the line between "preventive war" and a purely self-defensive war is hard to draw. The paradigm preventive war -- Israel's six-day war with Egypt, Syria and Jordan -- is viewed by most serious scholars as a war of self-defense.

If you mean to criticize those who opposed the invasion of Iraq then I think the criticism is not only unfair, but dishonest. Those who opposed the Iraq war (at least those who had serious views on the subject) did not oppose the idea of preventive war as such. Rather, they did not support THIS so-called preventive war -- they believed that the President had not demonstrated that the threat was grave enough to commit to such a costly endeavor. I think it is hard to argue, in hindsight at least, that the opponents of Iraq were 100 percent right. (I unfortunately did support the Iraq war, because I believed, mistakenly, that the President had actually planned for the aftermath, and that the intelligence was as good as he said.)

If you mean to offer support for the Iraq war by arguing that mistakes will be made, and the costs of getting something wrong justify making mistakes then so be it. But I think it is quite dishonest to create a straw man -- people who oppose ALL preventive war -- and then destroy the straw man as a way of justifying the invasion of Iraq. If I misunderstood your point then I think you may want to expand on just which group you are referring to as always opposed to "preventive war."

Cincinnatus

[Jacob Lyles]

Mr. Becker and others have attempted to justify preemptive war because the cost of a potential terrorist attack is much greater than in the past due to the increased destructiveness of the weapons available (chemical, biological, nuclear).

In light of this, I find it extremely curious that the largest terrorist attack ever commited on American soil was by a group of men with box-cutters. Although Mr. Becker may have a rhetorical bucket, it does not hold much empirical water.

Perhaps we should attack nations that house box-cutter factories? These have proven themselves much more dangerous than the million-and-one phantom fears that we attempt to protect ourselves against at a price tag of trillions of dollars.

[Branden Bell]

I think the models are getting a little mixed here. There are two types of entities we're discussing here: rogue states which are the general target of pre-emptive war and extremist terrorist cells which are the specific target of pre-emptive war.

1. Rogue States: The crime control model does generally work in this context, as long as the state believes there is a superior force that will compel it to comply. Above all, regiemes believe in self-preservation. This is why Hussein would typically only open his country back up to inspectors at the barrel of a gun. But he would do it.
Gulf War II is, of course, an exception. But it is one of our own making. Thinking back to the buildup for the war, there was nothing Hussein could have done to avoid it. If we found weapons in Iraq, then Hussein was going to use them against the U.S. and we had to go to war. If we did not find weapons in Iraq, then Hussein wasn't acting in compliance with his UN obligations and we had to go to war. Iraq was a case at the outer bounds of the crime/control model, something akin to a recidivist, but it responded to external threats nontheless.

2. Extremist Terrorists: How do you use coercion against someone who plans to give up their life? You can't. Something has convinced these people to give up an uncertain future for a certain martyrdom. Once this conviction takes hold, there is little that can be done to talk these people down.
Any discussion on how to fight extremist terrorists must incorporate both a short-term and a long-term strategy. Short-term in capturing and/or killing those who have already decided to give up their life in a suicide attack; long-term in creating less people who make such a decision. I saw a bumper sticker the other day that said "We are making more terrorists than we can kill." I don't know if that's true, but I don't that it isn't, either.

-B

[Glen Raphael]

"Major changes in weaponry and their availability" is a factor that cuts both ways. Sure, it raises the cost of not intervening when intervention is appropriate. But it equally raises the cost of intervening badly or at the wrong time. Thus it's not clear to me that this factor should make us more rather than less inclined to intervene. It simply raises the stakes.
Given that government does very few things well, has incentive problems, has information problems, and just generally tends to make a lot of mistakes, I don't trust that giving government more lattitude to intervene pre-emptively is likely in practice to eliminate old terrorists faster than it inspires new ones.

If intervention tends to create a net increase in terrorists and terrorism, the fact that the new terrorists can be more effective at a lower cost today than in times past should lead us to favor fewer and smaller interventions than before.

[dsquared]

I think that the most fundamental objection here is that if the "deterrence" model isn't working on us (ie; despite the threat of terror attacks, we aren't capitulating to the terrorists, withdrawing support for Israel, etc), then why do we think it's going to work on them?

[Anonymous]

You know, this is exactly the argument put forward by bin Laden et al for the 911 attack on the US.

[Andis Kaulins]

Are the 2nd and 3rd posts mistitled or is Becker writing on the legal aspects of preventive war and Posner on the economic aspects? I would have expected each to be commenting in the area of his expertise, not vice versa. - Andis Kaulins

[Andis Kaulins]

OK, I see my question is moot:
Update:
If one follows the Posner posting link to Optimal War and Jus Ad Bellum by Eric A. Posner and Alan O. Sykes (April 2004, U Chicago Law & Economics, Olin Working Paper No. 211, U of Chicago, Public Law Working Paper No. 63), then it would indeed appear that the economics-laden posting is Posner's writing and not Becker's and that Becker (who specifically refers to Posner's posting) is then the one writing about deterrence, but it still seems strange to this writer that Becker and not Posner is writing on deterrence and Posner is writing on the economics of preventive war.

[Jason Ligon]

"The problem with the model is that formally, the United States and Iraq are coequals, not policeman and citizen."

I can't fathom any dimension in which this is true. The US expresses foreign policy through a mechanism that approximates the will of the governed. The opposing entity is not Iraq, but a single man. Saddam's wants and needs are not remotely tied to those of under his heel. There is the power disparity. The existence of the despot at all is a violation of fundamental principles, and his claims on soveregnity are empty.

"I think that the most fundamental objection here is that if the "deterrence" model isn't working on us (ie; despite the threat of terror attacks, we aren't capitulating to the terrorists, withdrawing support for Israel, etc), then why do we think it's going to work on them?"

The terrorist doesn't believe the US is undeterrable, or he wouldn't bother engaging in the terrorist act in the first place. What the terrorist seeks is to erode the will to fight, knowing that he can not significantly impact the ability to fight. If the cost of dictating US policy were to be set at 4000 civilian lives, we would be in very bad shape.

On the other side, the martyr may himself be undeterrable, but that is not to say that his suppliers aren't deterred. Certainly, OBL is spending a lot of effort not to martyr himself, which seems to indicate that the terrorist leadership has a healthy sense of self preservation.

The short answer to why there is an expectation of asymmetry in deterrence is that terrorists are assumed to be doing everything they can do to cause damage while it is obvious to everyone even given current engagements that the US has not tapped a fraction of it's capability to harm fundamental Islam. There is asymmetry in capability to harm.

[scott cunningham]

You shouldn't find it strange that Becker is writing about deterence given his seminal work on the economics of crime and deterence.

[Paul]

"Preventive" wars such as this one (which turn out not to have anything to prevent) can, it should be too obvious to have to say, also *increase* the likelihood of the very type of event they were supposed to *decrease* the likelihood of. The greater power of weapons thus can cut both ways when it comes to setting a threshold for "preventive" attacks.

[Paul]

Sorry, Glen Raphael, repeated your point there.

[Nicholas Weininger]

One difference between preventive war and arrests based on intent is that in the latter case, the impact of the action falls almost entirely on the arrestee. When one nation invades another preventively, the cost falls largely on the innocent civilian population of the invaded nation. This is true even if the invader does not actively desire civilian casualties and takes some steps to minimize them. And it ought to set the moral bar higher for preventive war than preventive arrest.

Another difference is that the power of preventive warmaking is very much more dangerous than the power of preventive arrest, as shown by the commonness of the abuse of that power. Virtually every major act of *aggressive* war in the modern era has been justified in preventive or preemptive terms. Even Hitler, upon invading Poland, made sure to gin up a story about Polish plans for aggression against Germany.

The reason for this is not hard to see. When arrests are made preventively by law enforcement personnel, they operate according to rules they did not make and they are accountable to an independent judiciary. Thus the temptation to abuse is somewhat checked. When nations arrogate to themselves the power to invade other nations on the basis of paranoid speculation about the indefinite future, there is no such accountability and no such check.

[ibmcginty]

The US is better equipped to calculate the likelihood that other states/groups possess and are willing to use WMDs than maybe anyone else, but we still don't get it right every time. A danger (not one that should carry the argument every time, but a danger) in increasing the likelihood of preventive war is that others with less interest or ability in getting it right will avail themselves of a watered-down standard to wage war-- think Iran, or maybe even Russia.

[Ellen]

This is a static analysis--it assumes that there is a limited number of terrorists out there, who exist and want to do harm to us independently of what we do. If too many "mistakes will be made," the ensuing resentment ensures that many more terrorists will be made.

[Buckland]

I think a more interesting question, and one more likely to come into play in the next 20 years, is the response to attack. Most regimes in the Middle East are quite hard to understand. Many are no more than a collection of nepotistic ties. What happens if a large, spectacular attack, killing say 5,000 people, is tracked to an element in a regime but not necessarily to the top?

In Afghanistan the decision was easy. Bin Laden was tied very closely to the Taliban, and the Taliban didn�t present a very sympathetic defendant. More interesting will be if a spectacular anonymous attack is made in Tel Aviv, London, or New York. There is evidence linking the attackers to elements of the security apparatus of (Pakistan, Iran, Syria, North Korea, pick your favorite bogeyman). Will the country that was attacked be satisfied with El Presidente turning over his Brother-in-Law who runs the spy service? Or would the death of 5,000 people demand the destruction of the regime?

I�m not sure what would happen this case. Would a president/prime minister be able to survive accepting only a single person for trial in such a case? Could he survive invading a regime that is making at least some steps toward helping out after the fact?

My fear is this is the type of case that is most likely to be seen in the future. The closest parallel I can think of is the bombing of Pan Am flight 103. After tracing down lots of arrows pointing to Libya we were willing to accept a couple of intelligence agency goons for trial plus a monetary settlement for the victim�s families. That may be the precedent we have to live with.

[SocialJusticeNow]

It is quite remarkable that Bushs argument for war can be regarded as the predatory imperialist aims outlined by the crypto-fascist Project for a New American Century. On the other hand, a minority of warmongers and apologists can be seen in the light of the apparent fabrications which lead to the end of any possibility of social justice in a reactionary state. Let us never forget that the pro-Sharon neoconservative cabal provides a pretext for an oil war masquerading as an endless crusade against "terrorism." Clearly, the influence of Leo Strauss is solid evidence of the flagrant lies promulgated by the political donor class.

[Kirk Parker]

Glenn Raphael,
"Major changes in weaponry and their availability" is a factor that cuts both ways. ... But it equally raises the cost of intervening badly or at the wrong time.
You start off fine, but the conclusion is quite off, because you (apparently) ignore the fact that the "major changes" aren't restricted only to putting greater destructive power into smaller and cheaper packages. At the same time this is happening, we are also getting smaller and more precise weapons, too. We certainly made good use of them in both Afghanistan and Iraq! I think it can be fairly said that they lower the cost of intervention since they make the potential for collateral damage so much smaller. (The ultimate in this regard is surely the British precision-guided bomb that contains no explosives, but only cement to give it some weight.) Whether you think lowering the cost of intervention is a feature or a bug is up to you...

[Cato Renasci]

The closest parallel I can think of is the bombing of Pan Am flight 103. After tracing down lots of arrows pointing to Libya we were willing to accept a couple of intelligence agency goons for trial plus a monetary settlement for the victim�s families. That may be the precedent we have to live with.Why is that the precedent we have to live with? No Great Power can allow such an attack to go essentially unpunished in that manner, and remain great. Terrorists do not admit the existence of the rule of law in the way the West conceives it, they live in what is essentially a Hobbesian state of nature. The only use our own commitment to the rule of law as a weapon against us. A major attack traceable to any state (whether truly sanctioned or the part of a rogue element in the state) must be met with immediate and overwhelming force, even national strategic means. It's curious, and appropos given your reference to Lybia, the state that got off with a lick and a promise for an attack, was the first country to stare into the possibility that it was next and to renounce weapons of mass destruction. Sanctions don't work, and have never worked, from the Continental System to the Ethiopian Crisis to the many post-WWII sanction regimes. The credible threat of overwhelming force works. To remain credible, when the action the threat of force is intended to deter actually occurs, the force must be applied. You simply can't say, well, this time we'll only slap your wrist, but next time, we'll really go after you. Be sure if you try that, you will be tested, and as the amount of force threatened becomes greater, the threshold decision to use force becomes harder and harder. Indeed, the (legitimate) terror at the prospect of nuclear war has made the use of force decision unthinkable for millions of modern leftists.

[pedro]

It is interesting and telling how the probabilities of certain events are privileged in both analyses over those of others.