Although law enforcement has forward-looking justifications like the deterrence of future crime and the rehabilitation of convicted criminals, its day-to-day conduct is essentially backward-looking. We insist that punishment administered by the state fit the crime because it’s essentially a matter of retribution. Punishing criminals whose guilt has been fairly assessed is our way of collectively repairing the moral order by seeing to it that criminals receive their just deserts.
The prosecution of war, however, is essentially forward-looking. At bottom, it's a matter of doing whatever it takes to spare the nation the future consequences of defeat. That’s why foreseeable collateral damage is tolerable in war as long as it's proportionate to a legitimate military objective but not in law enforcement.
The different ways liberals and conservatives look at Gitmo underscores the difference. To the former, the fact that there are undoubtedly people languishing in that prison who are utterly innocent of terrorist acts is a moral stain on our whole counter-terrorism enterprise and our constitutional order. To conservatives it's just regrettable collateral damage, the unavoidable byproduct of pursuing a legitimate national security objective.
The moral difference between prosecuting war and exacting retribution, then, is pretty straightforward. It’s worth noting, however, that neither President Obama nor President Bush could resist commenting on the death of Osama bin Laden in a hybrid vocabulary that blurs the difference.
Here’s President Obama (my emphasis):
“Tonight, we give thanks to the countless intelligence and counterterrorism professionals who’ve worked tirelessly to achieve this outcome. The American people do not see their work, nor know their names. But tonight, they feel the satisfaction of their work and the result of their pursuit of justice.”And here’s President Bush (my emphasis):
“This momentous achievement marks a victory for America, for people who seek peace around the world, and for all those who lost loved ones on September 11, 2001. The fight against terror goes on, but tonight America has sent an unmistakable message: No matter how long it takes, justice will be done.”Think about how odd those remarks would have sounded in the context of the Second World War. When it comes to crimes against humanity or causing the deaths of innocent Americans, bin Laden was a rank amateur compared to Hitler. Yet it never would have occurred to anyone to say that the United States fought Germany to bring Hitler and his minions to justice.
Yes, the winners of WWII prosecuted high-ranking Nazis in Nuremberg after the war for crimes against humanity. But that was an essentially retrospective act of retribution. Imagine the quizzical looks that FDR would have received had he said, as part of his declaration of war against Germany, that Hitler was “wanted, dead or alive.”
So, by all means, speak of the “War on Terror.” Everybody knows what you’re referring to when you do and the alternative formulations I’ve heard so far don’t convey the gravity of the situation. But you’re kidding yourself if you think that reciting those words, however emphatically, brings any moral clarity to the situation.