moral equivalency

Tim Sellers msellers at UBMAIL.UBALT.EDU
Wed Nov 6 11:42:35 PST 2002

    My point was simply to explain, in response to a question,  how the
U.S. and al-Qaeda differ under international law.  This matters, because
the United States has always taken pride in respecting the rule of law,
including international law, and most American citizens (including those on
this list) would wish the United States to respect international law.

   You are right in observing that supporters of al-Qaeda have tried to
construct arguments to the contrary, and that some people of good will are
susceptible to arguments from moral equivalency.  That is why we should
take the trouble to explain the difference between al-Qaeda's position
under international law, and that of the U.S.

   I do not think that Eugene or others on this list have suggested that
the U.S. should pick and choose when to respect international law.  I think
that what they have done is to challenge the tendentious claims some people
have made on this list and elsewhere about the content of international
law, and about what institutions have the authority to determine its content.

   This matters, because if international law were to be successfully
redefined to support an equivalence between the United States and al-Qaeda,
then many people would give up on the concept of international law.  You
cannot separate law too much from justice, without discrediting the law.

At 10:05 AM 11/5/02 -0500, you wrote:
>Here's the problem with that assertion.  The 9/11 attacks WERE atrocious
>crimes against humanity.  However, a great many people around the world --
>specifically including the people from whom al qaeda gets sympathy and
>support -- think the U.S. engages in as much or more terrorism and crimes
>against humanity as does al qaeda.  Noam Chomsky is famous/notorious for
>this view, and he gets a lot of readers around the world.  Tariq Ali's
>recent book comes pretty close to making the same assertions.  And so on.
>So the moral inequivalence argument does not get us very far.  Except, of
>course, that we are confident that we are correct (and I hope that does not
>sound tongue in cheek).
>What if, in fact, the US has violated international law in its various
>military activities?  (I'm sure that question alone could generate extensive
>debate.)  Do we get to pick and choose when to follow it?  Certainly our
>government has the constitutional power to pick and choose (I agree
>completely with Eugene on this point).  But if we pick and choose, why can't
>others do the same?
>So, what's my point?  I'm not saying the US is some kind of rogue state or
>international law criminal.  I think, instead, that we act towards
>international law the way great powers consistently have acted -- by picking
>and choosing (whereas weaker states have a greater incentive to be
>consistent about adherence to international law).  But there are many voices
>that do make the US-as-international-law-criminal argument, and at least
>sometimes we should take it seriously.  Moreover, we should expect that what
>can be characterized as a legitimate military exercise (as I recall, we did
>something similar in WWII) also gets characterized as an assassination.  And
>more generally, we should not expect people automatically to agree when we
>say that we are simply enforcing international law.  They might conclude we
>are simply exercising power (perhaps for good reasons, perhaps not).
>Finally, I'd expect that some would argue that international law does not
>allow (or only in exceptional circumstances would allow) an ambush killing
>as a means of enforcing international law.
>Professor John T. Parry
>University of Pittsburgh School of Law
>3900 Forbes Avenue
>Pittsburgh, PA  15206
>-----Original Message-----
>From: msellers [mailto:msellers at UBMAIL.UBALT.EDU]
>Sent: Tuesday, November 05, 2002 8:47 AM
>Subject: Re: War
>The difference is this: al-Qaeda violated the laws of war and of humanity by
>its attacks on U.S. Embassies, the World Trade Center, the Pentagon,
>commercial airliners and many other acts of terror and attempted acts of
>terror around the world.  Under international law these are erga omnes
>violations of international law such that every state has the right to
>the perpetrators.  The United States, as the particular target of these
>attacks, also has a special obligation of security to its citizens that
>requires the government to take action to punish these violations of
>international law and to prevent further attacks.  By waging war against
>al-Qaeda and killing al-Qaeda combatants, the United States is enforcing
>international law.
>Al-Qaeda, however, has no legitimacy of any kind under international law.
>has no right to wage war, and has not in any case ever respected the laws of
>war, or expressed any desire to do so.  On both counts any use of armed
>of any kind by al-Qaeda operatives is illegal under international law.
> >===== Original Message From Discussion list for con law professors
><CONLAWPROF at> =====
> >-For those who think we are at war with al-Qaeda, I assume it follows that
>is at war with us?  That is to say, if it is a legitimate act of combat for
>to kill an al-Qaeda leader driving across a desert in Yemen because we think
>he helped plan
> >the raid on the USS Cole, then on the same theory is it a legitimate act of
>combat for an al-Qaeda member to kill a US general walking across a street
>London because the organization believes that the general helped plan raids
>Osama bin
> >Laden's caves?
> >Is there some way as a legal matter that one of these could be combat and
>other murder? -E.
> >
> >
> >             ***********
> >      Prof. Eric M. Freedman
> >      Hofstra Law School
> >      Hempstead, NY  11550
> >      LAWEMF at
> >      Tel. 516-463-5167
> >      Fax 516-463-5129
> >  Home Office:
> >   Tel. 212-665-2713
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