Terror and Consent is the new book by Philip Bobbitt that suggests ways to make our legal system more resilient to the threats posed by both terrorists and natural disasters. Bobbitt offers some specific suggests for more updating laws of war, interrogation and information gathering for the wars of the Market-State.
Synopsis:
The Nation-State is on its way out, or so Dr. Bobbitt tells us. This thesis, which he began working in his 2002 The Shield of Achilles holds that over the last 500 years the predominate constitutional order of States in the world has gone through four distinct forms: The Princely State, The Kingly State, The State-Nation and The Nation-State. Each one of these orders was ushered in by an Epochal War and eventually codified in a peace treaty that ended the war. For instance, the age of the State-Nation was ushered in by Napoleon's defeat at the hands of the Grand Alliance and codified at the Congress of Vienna. The Nation-State began it's ascent with broad-based enfranchisement in Jacksonian America and accelerated during the American Civil War when Lincoln justified the war as a struggle to create a government of, by and for the people. The Epochal War of the Nation-State was the 20th Century War (1914-1990) and was codified in the Peace of Paris (1990).
Each constitutional order brought with it a unique approach to law and strategy. For example, with the Nation-State came Total War (see: WWII) and 4GW (fighting for the hearts and minds of the People only works if the opinion of the People is given some legitimacy).
Today we stand at the doorstep of a new constitutional order, the society of Market-States. If the Nation-State derived its legitimacy from improving the welfare of its citizens, then the Market-State derives its legitimacy from improving the opportunity and providing choice for its citizens. While liberal, parliamentary Nation-States were at one time opposed by competing versions of the Nation-State (such as communism) The Market-State is opposed primarily by States of Terror, which might be territorial (i.e. North Korea), virtual (Al Qadea) or natural (i.e. post-disaster). These States of Terror threaten liberty by threatening the security promised by the State and by threatening to limit the choices and opportunities offered by the Market-State.
If the State of Terror is the primary threat to the legitimacy of the Market-State, than the Market-State must adopt a strategy of preclusion to prevent the creation of States of Terror. This involves both intervening overseas to prevent states from collapsing (or to destroy an existing State of Terror such as Iraq or Afghanistan) and to strengthen our own laws so that neither a man made nor natural disaster can cause a State of Terror to be foisted upon a State of Consent.
What I liked:
In the Shield of Achilles, Bobbitt showed that he can ask thoughtful and interesting . In T&C, Bobbitt demonstrates an ability offer answer to difficult questions that have dogged the U.S. since 9/11. Bobbitt's solution to balancing the constitutional rights of the accused with the need to possibly detain a suspected terrorists are intriguing, especially his suggestion that the U.S. should come up with a non-jail means of detaining person is suspected of being involved in an active plot to commit an act of terrorism. Bobbitt recommends that this non-jail detention (which could include a "virtual detention" involving monitoring) would be subject to the oversight of a judge and grand jury and that those who are wrongfully accused must have the power to seek monetary compensation for their pain and suffering.
Bobbitt also believes that GITMO should be shut down and that Congress should use powers already outlined in Article III of the Constitution to create "National Security Courts" that would oversee accused terrorists whether captured at home or abroad. Also, the Geneva Convention should be amended or rewritten to reflect the fact that the simple definitions of the Nation-State era of warfare are incompatible with the wars against States of Terror.
Bobbitt also favors reexamining our laws about succession and ask "What happens if somebody wipes out Congress and the Supreme Court in one fell swoop?" He prudently argues that we need succession planning for the Supreme Court and laws that outline a "rump Congress" made up of the survivors of a massive attack on Congress would govern before their respective states were able to have new elections.
Bobbitt also favors the creation of sys-admin force for peacekeeping operations.
All of these suggestions are prudent. While Bobbitt is the first person to point out that his suggestions are not perfect, the questions he raises are very important and his ideas should be discussed and debated in Washington.
What I didn't like:
Bobbitt uses the term Market-State, State of Consent, Parliamentary State and Market-State of Consent interchangeably. This leads him down a path of calling for a "League of Democracies" to deal with the world's problem. Obviously, this leaves China, which has a million man army and rapidly growing expeditionary construction industry out of the equation and replaces them with the E.U. Europe is a nice place, nobody wants to leave. China is still young enough to have citizens to export, so any strategy of precluded the creation of States of Terror through nation building is going to have to include the Chinese.
Conclusion:
Terror and Consent is a great book for anyone looking for a vision that can reconcile the dual challenges of combating terrorism while maintaining a nation of laws.
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