The concept of “forever war” has moved from the margins to the mainstream in recent years. The term first emerged in literature and film, and was popularized in Dexter Filkins's 2008 award-winning book The Forever War. The dimensions of the concept have remained slippery, however. Some identify the starting point as the post–9/11 “War on Terror,” while others invoke the longer history of ongoing U.S. warfare. Writers also differ on the conditions driving continuous armed conflict, pointing to evolving threats to the United States, changes in war technologies, the absence of a military draft, and the culture and politics of U.S. war.
In his important new book Humane: How the United States Abandoned Peace and Reinvented War, Samuel Moyn puts the law of armed conflict at the center of the forever war. During the post–9/11 era, he argues, the United States created a way of waging war that is “righteously pursued as superior precisely for being more humane” (p. 6) and tolerated by Americans because of its humanity. Although the idea of “humanity” in the book is sometimes used more broadly, Moyn's central humanization narrative involves the rise of international humanitarian law and its goal of easing unnecessary human suffering in armed conflict. This effort to make war more humane, Moyn argues, has dampened efforts to end war, making law a crucial factor in sustaining ongoing armed conflict.
Moyn is right to emphasize that law is of great importance. It has become so central to American war fighting in the past two decades that the use of law on the battlefield has been called “lawfare.” But is humanitarian law the engine of forever war, or is it contributing to forces that have broader and deeper origins?
Moyn begins his exploration of humanity with Leo Tolstoy. The Russian novelist's main character in War and Peace, Prince Andrei, questions the utility of humanitarian efforts. “If there was none of this magnanimity in war,” he opines, “we should go to war only when it was worthwhile going to certain death” (p. 31, quoting Tolstoy). Moyn finds Tolstoy's later writings most helpful, however. For example, some of slavery's contemporaneous critics thought that efforts to ameliorate the harsh treatment of slaves enabled enslavement to continue, and Tolstoy in his later work wondered whether the same would be true with efforts to humanize war.
To examine the effects of amelioration, Moyn turns to two historical trajectories: the rise in international humanitarian law and the decline of efforts in the United States to end war. He traces debates about humanitarianism and its limitations from the late nineteenth century to the present day. In an especially compelling chapter, he describes the path President Barack Obama took from being a critic of George W. Bush's belligerency to playing a crucial role in expanding and legitimizing U.S. reliance on drones and special forces. Obama could have taken a different path. Instead, Moyn argues, he made the forever war sustainable, partly because “he understood the political uses of transforming American warfare in a humane direction” (p. 268). Obama used armed drones more often during the first year of his presidency than did George W. Bush during his eight years in office. Moyn shows the way law became a technology of drone warfare, with decision-making narrowed and even personalized as President Obama made choices about whether to kill particular individuals. Presidential power has long been understood to allow presidents to unilaterally take action to thwart an imminent attack on the United States. President Bush's legal team had broadened the concept of “imminence,” expanding unilateral executive power to use force preemptively. Rather than rejecting that approach, Obama's lawyers embraced the idea of “elongated imminence” (p. 287)—which is a contradiction in terms. Obama also expanded the concept of self-defense as a justification for targeted killings, which might otherwise be thought of as assassinations. He repurposed the 2001 Authorization for Use of Military Force to apply to groups like ISIS that did not exist at the time the authorization was passed. Stretching the rules to allow the use of force against groups that lacked meaningful ties to al-Qaeda resulted in a “scheme . . . unknown to modern international law” (p. 288), Moyn writes. Obama's lawyers argued that they were making war more humane, but Moyn sees their work as “cosmetic prettification” (p. 294), which enabled a regime of endless war.
Others have attended to the way law enables warfare, such as John Fabian Witt in Lincoln's Code: The Laws of War in American History, which examines the origins and impact of the Lieber Code. Moyn contributes to this literature by focusing on law as an engine of war's perpetuation. Scholars often tie ongoing war to the rise of the “imperial presidency” and congressional acquiescence. For Moyn, in contrast, humanitarian law is a central causal force because it eases the nation's conscience by miniaturizing (at least for American civilians) the perceived impacts of the use of deadly force.
Moyn is at his best when illuminating the work of the elite legal thinkers in this history, such as Telford Taylor's indictment of American atrocities in Vietnam and Michael Ratner's critique of humanitarian intervention during Bill Clinton's presidency. He is less successful in explaining just how the purported increased humanity of war is driving the forever war. “Optics” matter (p. 5), he suggests, making it clear that the polity's view of war is a crucial issue. However, because his core focus is on the history of ideas, the narrative does little to illuminate the way popular perceptions of U.S. war have changed over time. Here, the insights from other theorists and historians would be helpful. As Susan Sontag has demonstrated, the sight of inhumanity is not determinative of popular meaning. Reactions to what is seen are filtered by culture and ideology. Historian Marilyn Young emphasized the way the memory of war tends to valorize past conflict, dampening even soldiers’ accounts of the carnage they have experienced. John Dower, in his monumental Cultures of War, shows the way misunderstandings of the enemy, when fueled by racism, can result in colossal failures to understand actual threats. Deeper engagement with the American culture of war, and the way war has been perceived by the polity, would enable Moyn to paint a clearer picture of how humanitarian law may have exacerbated the absence of public interest in restraining war.
Attention to culture would also help unpack just what amelioration might accomplish. Tolstoy is again illuminating on this point. Moyn discusses the author's argument that softening the cruelty in animal slaughter perpetuated the practice. The history of butchering shows, however, that efforts to improve the terrible treatment of animals corresponded with the movement of slaughtering from small neighborhood butcher shops to centralized locations. Over time, the geographic isolation of slaughterhouses from consumers of animal products made the meat production process abstract and unclear. Consumers came to encounter packaged pieces of meat rather than the sounds and smells of animal slaughter. This was not accomplished by a single change in the rules about the treatment of animals but rather involved the entire cultural experience of isolating meat eaters from what the killing looks, sounds, and smells like. Similarly, American civilians’ sight and sense of war is affected more by the geography and memory of U.S. wars than by the law of armed conflict. Similar to meat eaters, they tend not to think about the carnage accomplished on their behalf. If humanitarian law has helped the public to believe that remote killings are acceptable, it is part of a broader cultural understanding of U.S. conflict during an era when ongoing war elsewhere in the world has been a backdrop of American life in times of war and presumed “peace.”
“Swords have not been beaten into plowshares. They have been melted down for drones,” Moyn writes (p. 4). He is right that law has become a troublesome technology of forever war. Regrettably, however, the absence of robust limits on U.S. war is more deeply embedded, and more difficult to change, than legal rules.
