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Sometimes democracy is not the answer. Though the experience of the passengers on Flight 93 was remarkable, it offers us little from which to generalize. There was no opportunity for democratic deliberation when Timothy McVeigh blew up the federal office building in Oklahoma, nor when anthrax was put in the mail. Terrorists have no particular reason to expose themselves to the risk of a small group's fury. For that reason, planes are unlikely to figure in future attacks—shipping containers, trucks, tunnels, bridges, microbes, chemicals, and nuclear wastes, maybe, but not commercial airliners. Indeed, after September 11, there may have been a real danger of mob action on airplanes. If you were of Middle Eastern descent and acted suspiciously, you were likely to find yourself targeted by passengers and crew.
Is there, nevertheless, a broader lesson to be learned about the role of democracy in deciding when and how to use American military power? Scarry reminds us that the power to declare war is constitutionally given to Congress. In her view presidential war-making is not only ineffective but illegal, yet there is little evidence that we can cure the deficiencies of our elected national officials with yet another appeal to the people. George Bush's ascension to office may have been exceptional, but his immense popular support in pursuit of the war on terror is not. The sad truth is that nationalism is easily triggered in support of wars, and even a president with no skills as a public speaker or a statesman can carry the country into war. The public turns against the use of force only when it fails. That is the same moment at which they turn against politicians who have supported the use of force.What is true of the people is even truer of Congress. Congress almost always has the power to stop the president from using force, regardless of the war-declaring power. The political reality is that it has no interest in doing so until popular sentiment has turned.
Pleas for a reinvigoration of Congress's war-declaring power are usually disguised pleas for a new American politics, one of mature deliberation among public-minded citizens who are willing to take a sober second look at their aroused passions. There is, however, no easy fix for a political body that is generally ignorant of the rest of the world, of recent history, and of the actual distribution of wealth and interests in its own country, while it relies on fewer and fewer media sources that themselves devote fewer and fewer resources to news coverage. No court can command Congress to exercise its responsibilities; no court can make the people deliberate. Generally speaking, we get the political leadership we deserve, and given the state of our national political knowledge, debate, and interests, we don't deserve much.
Appealing to eighteenth-century models to deal with twenty-first century problems is unlikely to be successful. Scarry is right to point out that we have no adequate defense against many contemporary threats. Calling for popular armies and deliberation is not going to change this fact any more than spending a lot of money on high-tech weaponry. Vulnerability characterizes modern life. Doing away with nuclear weapons, even if it were possible, is not going to change that. One cannot do away with the knowledge that creation of weapons of mass destruction is possible. One cannot respond to the full range of motivations that individuals, groups, and nations have to create and deploy such weapons—at least if one wants to preserve a modicum of justice. The simple fact is that the very technology that makes modernity possible brings tremendous risks. Neither democracy nor justice can eliminate those risks.
To be concerned with democratic self-defense is an indulgence that may have tremendous costs to the rest of the world. The appropriateness of deploying American forces to secure others' well-being was a major policy issue before September 11, and it will remain regardless of whether or not we can defend ourselves from terrorist attacks. The character of a post-Cold War use of force showed itself in places like Bosnia, Rwanda, East Timor, and Kosovo. In each case, the question arose whether the West—and particularly the United States—would use force to stop massive human-rights abuses. In other words, would we risk our own forces for the defense of strangers?
When we are done hunting for Osama bin Laden, this question will remain. If one believes that prevention of such massive abuses is morally compelling, then appeals to democratic control in this country may not be helpful. Americans are isolationist in their policy preferences and lack the knowledge to have an informed opinion about the rest of the world. Before September 11, Americans would never have supported intervention in Afghanistan in order to save Afghan women from the abuses of the Taliban regime; but in the long run that may be our greatest contribution. That issue was just as morally pressing before September 11, but it surely was not on our agenda.
If we are concerned with deploying the immense military power of the United States for good in the world as we confront the twenty-first century, then we need to appreciate opportunities for presidential leadership. More than Congress and more than the public, the president is subject to the demands of international organizations and the pressures brought to bear by civic and political leaders from around the world. If we want the United States to stop genocide in places like Rwanda, we need to reject arguments that every risky deployment of U.S. forces requires a Congressional declaration of war and advance democratic approval. We should do all that we can to encourage international policing, military deterrence, and the threat of real intervention against those who would commit mass atrocities. We should encourage U.S. participation in such deployments of force. The Constitution was not designed for such a task, nor is Congress likely to assume it. Intervention is, however, demanded of the United States by much of the world. They are right to make this demand, and I do not believe that the structure of the Constitution undermines the morally compelling response.
For legal arguments on the interpretation of the War Powers clause see P. Kahn, "War Powers and the Millennium," Loyola Law Review 34 (November 2000).
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