The Moral Case Against the Iraq War

by Paul Savoy

The Nation magazine, May 31, 2004

As the Iraq war continues into its second year, the Bush Administration's reasons for being there are more indefensible than ever; Prewar claims regarding Iraq's weapons of mass destruction have all proved to be wrong; the number of terrorists in Iraq has increased rather than decreased; more American troops were killed in April than were lost during the entire invasion phase of the war; the systemic and barbarous abuse of Iraqi detainees contradicts the most basic values the Administration claimed it would bring to Iraq; and the uprisings in Falluja and at least half a dozen other cities portend a nationwide insurgency by both Sunnis and Shiites against the US presence. Yet the latest polls-including one conducted after the revelations about the torture of Iraqi prisoners-show that about half of Americans remain convinced that the war was morally justified. President Bush, in a speech on March 19 marking the first anniversary of the conflict, articulated a moral defense of the war that has been repeated many times: "No one can argue that the Iraqi people would be better off" with Saddam Hussein's regime "back in the palaces." Even those who opposed the war have, up to now, found the President's moral argument difficult to answer. The Indian novelist Arundhati Roy, in a speech to this year's session of the World Social Forum in Bombay, lamented how "plenty of antiwar activists have retreated in confusion since the capture of Saddam Hussein. Isn't the world better off without Saddam Hussein? they ask timidly"

The problem opponents of the war have had in responding to President Bush's claim of moral legitimacy, as University of California linguistics professor George Lakoff suggests, is that they have addressed the moral issue in the terms the President has framed it rather than reframing the issue in their own moral terms. Talking about the world, or at least Iraq, being "better off" avoids confronting the civilian carnage caused by the war. As the late Robert Nozick cautioned in his classic work on the moral basis of freedom, Anarchy, State, and Utopia, we should be wary of talking about the overall good of society or of a particular country. There is no social entity called Iraq that benefited from some self-sacrifice it suffered for its own greater good, like a patient who voluntarily endures some pain to be better off than before. There were only individual human beings living in Iraq before the war, with their individual lives. Sacrificing the lives of some of them for the benefit of others killed them and benefited the others. Nothing more. Each of those Iraqis killed in the war was a separate person, and the unfinished life each of them lost was the only life he or she had, or would ever have. They clearly are not better off now that Saddam is gone from power.

There is only one truly serious question about the morality of the war, and that is the question posed more than fifty years ago by French Nobel laureate Albert Camus, looking back on two world wars that had slaughtered more than 70 million people: When do we have the right to kill our fellow human beings or let them be killed? What is needed is a national debate in the presidential election campaign that addresses the most important moral issue of our time. It is an issue we are required to face not only as a matter of moral obligation to all those Iraqis killed in the war, but to the 772 American servicemen and -women who, as of May 10, had lost their lives and the more than 4,000 US soldiers injured in Iraq. The debate should begin by moving beyond the narrow factual focus on WMD intelligence to an examination of the broad moral principles and values governing the use of deadly force against other human beings. Those principles are to be found in the basic precepts of our more than 200-year-old constitutional tradition and criminal jurisprudence, and in widely accepted standards of international humanitarian law.

Reliable estimates by independent organizations indicate that more civilians died in the first month of the war than were killed in the September 11 attack on the World Trade Center. A five-week investigation by the Associated Press reported at _ least 3,240 civilian deaths between March 20 and April 20, 2003, including 1,896 in Baghdad alone. The AP survey notes that "hundreds, possibly thousands, of victims" are not reflected in the totals because the count excluded victims not taken to hospitals as well as records of hospitals in areas too remote or dangerous to visit. Between April 20, 2003, and the beginning of the wider insurgency almost a year later, at least 500 Iraqi civilians were reported by Iraq's Interior Ministry to have been killed by American-led forces in checkpoint shootings, misdirected arms fire and delayed explosions of cluster bombs. Hundreds more have been killed in the siege of Falluja, according to the director of the city's general hospital.

But even if as many as 5,000 civilians have been killed by US forces, isn't freedom for 25 million people in Iraq worth the cost of 5,000 lives? Michael Ignatieff, director of the Carr Center for Human Rights Policy at Harvard, argued this cost-benefit analysis in making the moral case for war in the New York Times Magazine before the invasion: "The choice [was] one between two evils, between containing and leaving a tyrant in place and the targeted use of force, which will kill people but free a nation from the tyrant's grip." Ignatieff concluded that killing people was the better choice if the United States was willing "to build freedom, not just for the Iraqis but also for the Palestinians, along with a greater sense of security for Israel."

This is the moral reasoning of Raskolnikov in Dostoyevsky's Crime and Punishment. Invoking the lesser-of-two-evils defense to justify his killing an old pawnbroker and stealing her money, Raskolnikov argues: "Kill her, take her money, dedicate it to serving mankind, to the general welfare. Well-what do you think- isn't this petty little crime effaced by thousands of good deeds? For one life, thousands of lives saved from ruin and collapse. One death and a hundred lives-there's arithmetic for you." A few thousand dead Iraqis and freedom for 25 million.

What is overlooked by those who believe the benefits of the war outweigh the costs is that killing even one innocent person to benefit others violates the most basic human right-the right to life. The right to life is one of those unalienable rights enshrined in the Declaration of Independence and the Bill of Rights. "Life is the immediate gift of God" a right inherent by nature in every individual," William Blackstone wrote in his eighteenth-century

Commentaries on the Laws of England, one of the leading sources of American civil liberties. What Blackstone meant when he characterized the right to life as a God-given right is that it is beyond the power of any mere government to abrogate or repeal. Innocent people may not be killed or injured by the state, even when a majority believes it serves the greater good.

In a prelude to the "Grand Inquisitor" scene in The Brothers Karamazov, Ivan asks his faith-based brother Alyosha a question we all need to ask ourselves about the children who were killed or injured in the Iraq war: "Let's assume that you were called upon to build the edifice of human destiny so that men would finally be happy and would find peace and tranquillity. If you knew that, in order to attain this, you would have to torture just one single creature, let's say the little girl who beat her chest so desperately in the outhouse, and that on her unavenged tears you could build that edifice, would you agree to do it?"

Even more horrifying than the torture of Iraqi prisoners by their American captors has been the unnecessary suffering and death inflicted on the Iraqi people by the war itself. One of those children on whose unavenged tears the edifice of freedom has been built in Iraq was 12-year-old Ali Ismael Abbas, who was so badly burned in a US missile attack on Baghdad that his entire torso was black, his arms so mutilated that, as New Yorker correspondent Jon Lee Anderson described the hospital scene, they "looked like something that might be found in a barbecue pit." His family, which included his pregnant mother, his father and his six brothers and sisters, were all killed by the blast. Some of their bodies were so unrecognizable that all Anderson could see in morgue photographs was a collection of charred body parts and some red flesh. The remains of other family members were mutilated grotesqueries. "[His mother's] face had been cut in half, as if by a giant cleaver, and her mouth was yawning open.... The body of his brother was all there, it seemed, but from the nose up his head was gone, simply sheared off, like the head of a rubber doll. His mouth, like that of his mother, was open, as if he were screaming." Judging from the poll numbers after the fall of the Iraqi regime, the seven or eight out of ten Americans who backed the war were prepared to build the edifice of freedom and democracy on the broken bodies not of one, but of hundreds, possibly thousands, of Iraqi children killed or maimed or burned in the conflict.

Viewed in the light of our own moral ideals, as embodied in our constitutional tradition, the right to life is so fundamental that killing the innocent to advance the cause of freedom of electoral choice or any other purpose, however worthy, must be regarded as wrong. We denounce terrorists because when the freedom of self-determination they seek is weighed in the balance against the right to life of innocent people, it is the right to life that our collective conscience has decided should prevail. Terrorism is simply a criminal technique for coercing a political agenda by killing innocent people. And it should make no difference whether the people who do the killing are freedom fighters like Palestinian suicide bombers, who purposefully kill civilians, or freedom fighters like the American liberators of the Iraqi people, who aim at military targets but who know with substantial certainty that they will incidentally kill civilians. In the eyes of the criminal law, a person is regarded as intending the death of another when he either has the purpose to cause the death of the victim or when he knows that death is substantially certain to result from his acts.

Gen. Richard Myers, chairman of the Joint Chiefs of Staff, warned before the war that, despite the military's best efforts to prevent civilian casualties, 'people are going to die." Given this knowledge aforethought, the Administration cannot continue to pretend that the civilian deaths in Iraq were accidental. The mother killed in a Baghdad bomb blast holding her baby so tightly they could not be pried apart, and the thousands of other innocent Iraqis killed in the war, were the victims of intentional homicide, however accidental or acceptable their deaths may have appeared on Fox News or CNN.

There is one exception to the prohibition against taking innocent human life, recognized by both our own principles of criminal jurisprudence and international rules of warfare. Deadly force may be used in self-defense even when innocent people will be killed in the combat required to defeat the aggressor. Although international rules of warfare prohibit the purposeful targeting of civilians, even in a defensive war, the law makes an exception for the incidental or "collateral" killing of the innocent because civilian casualties are frequently unavoidable in mounting an effective military operation against the enemy.

However, when a nation acts in self-defense before it is actually attacked international law requires an imminent threat. As statements by CIA director George Tenet have made clear, the White House did not even have probable cause to believe its own prewar claims, both express and implied that the danger was imminent. Intelligence analysts "never said there was an 'imminent threat," Tenet insisted in a February 5 speech at Georgetown University defending his agency. But according to the President, the United States had the right to go to war on a lesser standard than imminence. The Administration's position, first announced in its 2002 National Security Strategy, is that military force can be used pre-emptively whenever a threat, however remote or improbable, involves the use of chemical, biological or nuclear weapons. As President Bush argued in a February 8 interview with NBC's Tim Russert, "It is essential that when we see a threat, we deal with those threats before they become imminent. It's too late if they become imminent."

The elimination of the longstanding requirement of imminence by the Bush doctrine of pre-emption has been roundly condemned by UN Secretary General Kofi Annan, who called it a "fundamental challenge to the principles on which, however imperfectly, world peace and stability have rested for the last fifty-eight years." But for many Americans living in the shadow of September 11, common sense and simple prudence seemed to dictate a policy that says, in effect, we should kill them before they can kill us. What critics of the Bush doctrine failed to make clear is that the concept of imminence is essential because it actualizes the most basic moral principle upon which not only the United Nations Charter but our own constitutional system of government, is based: the sanctity of innocent human life.

The self-defense exception to the general principle protecting innocent life is not based on any cost-benefit calculation. Rather, the killing of innocent people is excused as a concession to human weakness. Self-defense in the face of an imminent threat of being killed is what Justice Oliver Wendell Holmes called one of those "can't helps" of life. No community of human beings facing an immediate threat of attack can reasonably be expected to allow themselves to be killed in order to avoid killing innocent people in the aggressor nation. Such extraordinary self-sacrifice is not demanded of ordinary mortals.

But when a threat is not imminent in the sense that there is sufficient time to protect ourselves without killing innocent people- by using more rigorous weapons inspections, for example-we lack that "can't help" that Justice Holmes suggested was a condition for sacrificing human life in a civilized society. To say, as the President continues to insist, that he had "no choice" is to make the absurd and horrific claim that he had no choice but to kill thousands of innocent people. We reply that the moral principles contained in our criminal and constitutional jurisprudence forbid the use of war to check tyrants and terrorists who threaten us with death unless there is such a clear and present danger to the nation that taking the lives of innocent men, women and children is the only way we can save our own lives.

The final argument advanced by the Administration, as well as some human rights advocates, is that the war was morally justifiable as a humanitarian intervention to defend the Iraqi people from mass slaughter by Saddam's brutal regime. However, the doctrine of humanitarian intervention cannot be applied retroactively to morally justify war as a means of punishing a political leader for past atrocities, such as Saddam's killing of more than 100,000 Kurds in the Anfal campaign, which occurred almost fifteen years before the invasion. Because it is essentially a principle that permits the defense of others, the doctrine of humanitarian intervention, like the concept of self-defense, requires actually occurring or imminent large-scale killing to justify the use of military force. Criteria proposed in 2001 by an international commission of legal scholars and practitioners would permit humanitarian intervention to defend a vulnerable population from "large scale loss of life" or "large scale 'ethnic cleansing"' that is either actually "occurring" or "imminently likely to occur.' Human Rights Watch, applying these criteria to the Iraq war in its 2004 World Report, concludes, "That was not the case in Saddam Hussein's Iraq in March 2003.... despite the horrors of Saddam Hussein's rule, the invasion cannot be justified as a humanitarian intervention."

Freedom and democracy for Iraq are "worth fighting for, dying for and standing for."' President Bush declared in a November 2003 speech, but no one asked the Iraqis who were killed in the war whether they were willing to sacrifice their lives as part of a demonstration project to create a democratic revolution in the Middle East. The very minimum that people have a right to expect from any effort to graft democracy onto their nation is that the donor nation honor the principle of no extermination without representation.

Denouncing the war a week after the invasion, Kofi Annan, in an unusually candid interview with New York Times reporter Felicity Barringer, said the UN Security Council authorized "disarmament, not mass murder." American criminal law defines murder as the purposeful or knowing killing of a human being without justification or excuse. If, as the relevant law and facts prove, the President's decision to invade Iraq cannot be justified or excused as a war of liberation or an act of self-defense or humanitarian intervention, then the killing of thousands of innocent people in Iraq fits the legal definition of murder and conspiracy to commit murder. While there are various legal and political obstacles to actually prosecuting the President-either in an international tribunal or an American court-we should not shrink from saying that taking the country to war was the wrong thing to do, not merely in the sense that the Administration's prewar claims about WMD were "wrong," but in the same sense in which mass murder is wrong.

"Each age and place has its own style of evil," Time essayist Lance Morrow observes in his book Evil: An Investigation. The history of radical evil up to now has been primarily a story of world-class criminals, each with his own method of mass killing, internment, expulsion and terror. What is unique about the kind of evil the Bush Administration has brought into the world is that a global law-enforcement campaign to bring a world-class criminal to justice has itself become a vast criminal enterprise. It is one of the bedrock principles of the rule of law that a law-enforcement officer cannot break the law as a means of enforcing the law. "For my part, I think it is a less evil that some criminals should escape than that the government should play an ignoble part," Holmes wrote in a famous dissent that announced a constitutional principle of "lesser evils" that would eventually become prevailing law. The principle was most eloquently articulated by Justice Louis Brandeis: "Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."

The capture of Saddam Hussein, who may have killed as many as 300,000 people, ends a twenty-four-year reign of terror and might finally bring a measure of justice to the Iraqi people. But what would we think of a police chief whose war against crime resulted in killing thousands of innocent bystanders in the course of apprehending a criminal suspect, even a criminal as despicable as Saddam? The officer who breaks the law, who becomes a law unto himself, like the out-of-control cop played by Michael Chiklis in the Fox cable drama The Shield-"Al Capone with a badge," to borrow a line from the script-is more dangerous than the criminal and, like the American guards who committed the horrific abuses at Abu Ghraib prison, becomes a criminal himself. The false charge that Saddam was reaching for his weapons of mass destruction when US troops attacked bears an uncanny resemblance to the pretexts for the use of deadly force that document a long and shameful history of incidents of police misconduct in cities across America. The evil of this President, once acclaimed for his "moral clarity," is the evil of police violence on a global scale-the evil of the law-enforcement officer who regards himself as above the law and thereby undermines the very foundation of law and morality.

If, in the 2004 presidential election campaign, voters were to compel the candidates to confront the profound moral and legal questions raised by the use of military power that needlessly extinguished the lives of children, of entire families, of great numbers of ordinary Iraqis who had as much of a right to live as we do, there might ultimately emerge a nonpartisan basis for a national consensus about the war, in much the same way that a universal accord has developed in the United States about the immorality and illegality of police conduct in violation of an individual's civil liberties. While there will always be disagreement about the way we should wage the war on terrorism, as there will be about the way we should fight the war on crime, a global form of law enforcement that unnecessarily kills thousands of innocent people to punish or prevent crimes for which they bear no responsibility is plainly and simply wrong.

Paul Savoy, a former assistant district attorney for New York County and past dean of the John Kennedy University School of Law in Pleasant Hill, California, is working on a book about the Iraq war and what it can teach us about the nature of evil.

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