One of the tropes of the current Administration is that the Global War on Terror is a new kind of war and a new kind of war needs new rules. This has been the heart of arguments supporting “enhanced” interrogation techniques, detaining suspects without charge in Guantanamo and elsewhere, easing of restrictions on domestic wiretapping, and the use of military commissions to try suspected terrorists, among other policies.  But does this claim of a new war requiring new rules hold up under scrutiny?

 

            There is little doubt that the nature of armed conflict is changing in profound ways. Some call the period we are entering the “fourth generation of warfare,” a term that was defined in a seminal article in the Marine Corps Gazette in 1989 and has recently been reconsidered by John Robb in his book Brave New War.  By this nomenclature, the mass warfare exemplified by the Napoleonic Wars was the first generation.  The Industrial Revolution spurred the second generation, which was typified by the harnessing of entire economies to produce war materiel and which reached its peak in the deployment of new weapons systems in World War I.  The third generation was a reaction to the second and was based on new strategies of maneuver warfare. This generation was fully realized in World War II with the use of the blitzkrieg; during the Cold War it was typified by fears of Russian tanks storming through the Fulda Gap. The laws of armed conflict shifted and adapted in each of these instances to respond to the new ways that war was fought. But in each case, the change in law was an attempt to curb the worst proclivities, not enable them. The advent of cheap and powerful computers and global communication has heralded the fourth generation of warfare (or “4GW”), an era of “super-empowered” individuals who are able to act in a manner —for good or evil—that formerly had been the preserve of states.

 

The Information Revolution has revolutionized the organization and the use of force. By and large, terrorist organizations are no longer top-down hierarchies. They are decentralized networks, a web of relationships linking “nodes” (which may be individuals, cells, organizations, states, and other networks).  Each “node” can serve different functions (such as fund-raising, organizing, or executing a plan) for different operations. Moreover, decentralization means that nodes do not generally wait for orders but are more entrepreneurial in finding targets of opportunity and organizing the resources needed for a particular operation.

 

This leads to various implications for U.S. foreign policy. First of all, a simple military assault alone will not be enough to destroy a decentralized network.  In addition, one must use the network of laws to disrupt the network of terror.  Unfortunately, recent pronouncements have treated international law as hampering U.S. policy at best and as a weapon againstU.S. interests at worst.  For example, the 2005 National Defense Strategy warned that

 

[o]ur strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.

 

Some have started using the term “lawfare” to describe law being used as a weapon, often against America. Rather than viewing the rule of law as an asset, it has suddenly become characterized as a liability.

 

            And this is the key problem: while it is correct that 4GW is a different type of conflict, it is one in which the rule of law, both domestic and international, is one of our greatest strengths. Unlike the previous generations, guerilla conflicts are, in the words of John Robb, “primarily moral conflicts” where “[t]he key is maintaining moral cohesion.” Referring to the arguments of Israeli military strategist Martin van Creveld, Robb explains the dilemma of a democracy embroiled in a fourth generation conflict:

 

when the strong are seen beating the weak (knocking down doors, roughing up people of interest, and shooting ragtag guerillas), they are considered to be barbarians. This view, amplified by the media, will eventually eat away at the state’s ability to maintain moral cohesion and drastically damage its global image.

 

As the state’s soldiers continue to fight weak foes, they will eventually become as ill disciplined and vicious as the people they are fighting due to frustration and mirror imaging…Citizens lose their feeling of solidarity with the goals of their government when they perceive it to be acting immorally.

 

            There has been no evidence shown that the repudiation or reinterpretation of our international legal obligations and the weakening of Constitutional protections against torture, widespread domestic wiretapping, and lengthy detention without trial have enhanced our security in a meaningful way. (See also the excellent New York Times op-ed by former prosecutor Kelly Anne Moore on the strengths of federal courts in anti-terrorism cases.) While it is true that we have not suffered a major attack since 9/11, there is no evidence that a major attack was prevented because of one of these techniques of questionable legality. To the other extent, they have worn away at our Constitutional protections, have driven deep wedges into our political culture, and have undermined some of our most important diplomatic relationships.

 

Some would respond that such measures are only necessary for the duration of the conflict. But how shall we know that this war is at an end? We cannot expect the eradication of all terrorism.  The answer one hears most often is that the war will be over when the threat from al Qaeda is extinguished.  But this is a bit of linguistic sleight-of-hand.  Al Qaeda as we knew it is largely gone; much if not most of its original senior leadership has been killed and its original bases have been destroyed.  But al Qaeda 2.0 (as some analysts have called it) lives on and, when one understands the nature of terror networks, it is likely that some type of entity named al Qaeda may exist for quite a long time.  What we now call al Qaeda is often comprised of people who began their activities since 9/11, with little direct link to bin Laden.  It is a mushrooming of new cells with similar goals and symbols, each of which can act as a node in a broader network.  Al Qaeda is becoming more of the rallying cry of a movement than a single coherent organization.

 

            The problem is that the foe we are fighting—a transnational terror network—is not a state and so the normal signifiers of the end of a war—peace treaties, summit conferences, and the like—simply do not apply here. Fourth generation warfare may seem new, but some old verities apply. Despite the new technology, it is a conflict where the psychological aspect is central, where it is important that we not be seen to jettison who we are simply because of who we fight. Consequently, the rule of law is vital in this twilight struggle because it helps define who we are by what we fight for.  It helps maintain the moral cohesion that we need in order to prevail in a fourth generation conflict. And, notwithstanding claims that it is necessary to rewrite our constitutional order and reject our international obligations (based on evidence that we cannot be allowed to see), it is poor strategic thinking to sell short the network of law.

 

            International terrorism does not threaten the very survival of our country. The idea of America can die, however, from self-inflicted wounds, a sort of death by a thousand cuts in which we continually slice away at some basic part of who we are in reaction to various threats and stresses. This is one of the insights of the theories of fourth generation warfare and yet, somehow, it is the key lesson that this Administration has missed.