The Laws of Forever War

The Laws of Forever War

In Humane, historian Samuel Moyn argues that efforts to make U.S. wartime conduct less brutal have helped pave the way for a policy of permanent armed counterterrorism.

U.S. military personnel operating a Predator drone in Afghanistan in 2006 (Veronique de Viguerie/Getty Images)

Booked is a series of interviews about new books. In this edition, Nick Serpe talks to Samuel Moyn, author of Humane: How the United States Abandoned Peace and Reinvented War (Farrar, Straus and Giroux).

In Humane, Moyn tracks how efforts since the nineteenth century to outlaw war have been superseded in recent decades by reform projects that have tried to make warfare less brutal and cruel. Where international legal advocates once focused on the crime of aggression, their attention has turned to preventing atrocities. Moyn’s central and controversial argument is that new rules for U.S. wartime conduct, including bans on torture and targeting civilians, have had the (mostly unintended) effect of making war more palatable to Americans, thereby reducing pressure to bring the War on Terror to an end.       


Nick Serpe: Your book is about how the U.S. government conducts war. It’s also about the basis of criticism for those wars. I thought it would be instructive to start by comparing the Vietnam War, and the opposition to that war, with the War on Terror, including the Iraq War, and its critics. What changed from the Vietnam era to the twenty-first century?

Samuel Moyn: I was surprised when I researched the Vietnam era. As a witness to the years after 9/11, with all the discourse about the Geneva Convention and war crimes, I was looking for how international law was invoked in earlier wars. But I found little. It’s not that in the early years of the Vietnam War there weren’t moral criticisms of atrocity; there were, especially when it came to the use of napalm. But inasmuch as the law was invoked, it was really a debate about whether the war was illegal as such under international law. There were also invocations of the Nuremberg trials after the Second World War. But it was a different Nuremberg than we’ve chosen to remember recently: one that focused on the crime of aggression in the international system—bringing war to the world, however humanely you fight it.

That differs in the extreme from what happened in the Iraq War, when the revelations of the Abu Ghraib atrocities and rumors of torture and other crimes against detainees were not connected most of the time to an attack on the war itself. In the period after My Lai was revealed, there was already a raging inferno around the war; it’s not that the concern with atrocity wasn’t crucial, but it added fuel to a fire antiwar movements had built. Our discourse on atrocity during the War on Terror, for better or worse, and sometimes out of good intentions, ended up removing the bug of inhumanity from our endless war.

Serpe: There are other historical accounts for why opposition to war diminished from the 1960s to today. One has to do with the end of the draft. Concurrent with that is the rise of high-tech warfare, especially the use of drones and special forces. Both of these developments make war less visible in the United States than in the past. Is your account of the humanization of war through international law compatible with that story?

Moyn: There’s a list of reasons we’ve ended up with endless war. I am just singling out the move toward relatively more humanity under law as a factor that we might miss, especially because, like everyone else, I think in the abstract it’s a good thing to reduce suffering where possible.

The rise of tech is a really interesting argument. But I’m not as sure about that factor, especially compared to the military-industrial complex in general, which you didn’t mention. I also think we find the tech we’re looking for. Our ancestors looked for napalm, because they wanted to cause grievous harm to civilians. They wanted to maximize suffering as part of a strategy of attacking the morale of whole peoples. And we don’t—at least we don’t always. We’ve looked for more humane technology.

The draft is also an interesting hypothesis. I have some pages on the debate about whether eliminating the draft would make it harder for policymakers to order war, because it’s the natural thought that young people would never volunteer to fight unjustifiable wars. But even a half-century ago, people pointed to the converse risk: when you’ve got an all-volunteer force, you won’t face as much opposition, and you’ll still be able to fight wars if you make the deal sweet enough, with a welfare state for those who sign up but not for others. But the rise of humane war, with drones and special forces, points us in a different direction than those arguments, because it’s not as reliant on soldiers in large numbers, whether they’re conscripted or volunteer.

Serpe: Near the beginning of the book, you write this about the new humane regime of war: “the most elemental face of war is not death; instead, it is control by domination and surveillance, with mortality and even violence increasingly edited out.”

I can imagine two different responses to that. One is to ask, what’s the extent to which violence has actually been edited out—aren’t people still dying? What is just PR, and what is an actual change in military practice? The other response might be, isn’t it a good thing to reduce death and physical suffering? How do you address both of those questions?

Moyn: In the book, I’m trying to take a left-progressive view, but acknowledge some facts that are more commonly celebrated, or at least noted, by the center and the right. It is completely correct to decry the inhumanity of war and the centrality of killing in it now. And I don’t mean at all to undermine that strategy. Because if there’s an immoral war, even if it is fought in conformity with applicable legal standards, people will die and suffer. That’s a horrendous wrong. And there are a lot of bad apples and honest mistakes, which make for tragedy.

But I’m also looking ahead. I’m wondering if we’re in the middle of a transformation. We are editing death and injury out, relative to all the American wars I talk about in Humane—from the clearing of the continent of native peoples, to the Philippines at the turn of the twentieth century, to Japan and Korea and Vietnam. Both absolutely and relatively, the violence is much less now. And the death toll is much less. So I’m wondering if it’s also the right move for the left and progressives to identify the harm as not just injury and death, but something emergent, like eternal policing, with surveillance at the center. It’s the same move that Michel Foucault made at the beginning of Discipline and Punish: you thought the dismemberment of bodies was the definition of tyranny, but modern humanity is chilling, too.

You’re also right that a certain number of people, including people I talk about in the book, would say these changes do make war moral. I want to indict them, because not only is war not justified, even if it’s humane; it’s about domination, which is anything but moral. They’re complicit with a very disturbing project.

Serpe: Let’s get into how this project emerges in the twenty-first century. You write that “there was a huge outcry about the early war on terror, in part because Bush’s lawyers attempted to legally justify it.” How do we get to a point where the Bush administration felt like it did need to justify the legality of the conduct of the war?

Moyn: What I try to do in the book is tell a before-and-after story. The first half of the book illustrates that for three overlapping but separate reasons, the laws of war did not significantly constrain violence in previous wars. The first reason was that they weren’t established to make war more humane; states wrote the laws of war with militaries in the room. Second, they excluded certain kinds of enemies and certain kinds of peoples: there was an exception around colonial and counterinsurgent warfare. The laws of war were for conventional war, not for irregular forces or racialized wars in colonies, either in principle or because it was easy to cast the enemies as irregular and undeserving of protection under the rules. Third, even among whites in the North Atlantic, the First World War showed that the laws of war were ignored when push came to shove. After that war, and even after the Second World War, there was practically no interest in improving the laws of war, because it was beyond belief that if war broke out, you could make it humane.

Everything changed after Vietnam. It’s a decolonized world, and the kind of outright racism that the world had tolerated was under challenge. Indeed, the War on Terror was led by a Black president during a crucial moment in the evolution of humane war. I try to show that the military itself, goaded by the need to protect its image and also out of a new interpretation of warriors’ honor, accepted the law in ways it just hadn’t before. Meanwhile, humanitarians were moving to finally make war more humane, by insisting, for example, that you can’t shoot at civilians (or bomb them without limitation, a familiar practice before). All of these things came together in the era since the 1970s, which made it a challenge for John Yoo—the lawyer who wrote the “torture memos” early in the Bush administration—to take the gloves off. No one had needed Yoo before; the gloves were already off. In retrospect, Yoo is a testament to the power of an emergent expectation around humane war. I indict him for taking the gloves off, but it’s revealing that he had to do so—while at the same time the Bush administration faced no obstruction in going to war and staying in war for a very long time. 

Serpe: A lot changes under the Obama administration. One of the great scandals of Bush’s War on Terror was Guantánamo, and the exceptional legal status of the people being held there. The problem becomes less visible under the Obama administration, in part because the United States is no longer capturing people on the battlefield. Instead, we saw the rise of “targeted killings.” Is this indicative of what changes from the Bush era to the Obama era?

Moyn: Obama understood that what we might call a vestigial form of war had tanked his predecessor’s popularity. That didn’t just involve the liberal and left critique of Abu Ghraib and Guantánamo and so forth, but also the broader critique of how the Iraq War went south, with so many body bags coming home for no good reason. Although Obama did surge troops in Afghanistan early in his presidency, out of hopes of using counterinsurgency doctrine to pacify the country, his main move in those early months was to pivot to beyond the vestigial form of war. It was in Afghanistan that the first U.S. drone struck, under Bush; his administration undertook about fifty strikes. Obama moved not just to increase that number tenfold, but to massively increase the use of special forces, turning to both in many new countries. It’s a kind of stealth war. To the extent it became known and seemed noxious to people, he came out and said, “Don’t worry, I’m fighting it humanely.” Practically no Americans are dying, because of the humanity and precision. The contrast with the way the war was contested under Bush became a source of legitimation of this new form under Obama. That’s what inspired me to write the book, because it seemed so troubling.

Serpe: There’s a curious dynamic in the Trump era. You write that, like 2008, the 2016 elections were shaped in a significant way by the War on Terror. Neither Obama nor Trump was a pure antiwar candidate, but discontent about the war was a major factor in the political process. At the same time that Trump expressed some opposition to “forever war,” however, he also expressed opposition to the idea of humane war. And people seemed to be attracted to both of these things about him: that he praised torture, and at the same time said, “What are we doing in Afghanistan?” What actually happened during the Trump administration? Was there any change in course, or did we see a continuation?

Moyn: I think a continuation, partly because of Trump and partly in spite of him. It was amazing to so many of us that he shattered the taboo in Republican circles around criticizing the Iraq War. It was initially thought that it would destroy his candidacy, but it helped propel him to the top of the Republican heap. It’s true that he had no particular interest in humane war—if anything, the reverse—but he couldn’t, or didn’t, act to return the United States to more brutal warfare. He got less far than the Bush project in doing so, because the Republicans in power, including many of Trump’s deputies, just saw that the road was blocked.

Trump did try to follow through on Obama’s project, in a sense: withdrawing more troops, and turning even more intensively to stealth war with drones and special forces, especially against ISIS in the first two years of his presidency. It is amazing now that while Trump wasn’t allowed to fully draw down troops in Afghanistan, Joe Biden has done so. Now we have a third president who’s come into office condemning American wars, at least selectively. But Biden looks like he, too, will be forced to engage in an aggressive counter-terrorist strategy, which won’t be about troops, but will be an endless and “humane” campaign.

Serpe: Just today [August 29], there was a U.S. drone strike in Kabul in response to the airport bombing, which could portend what’s coming. At the same time, there’s been a remarkable reaction from mainstream and elite media figures against the troop withdrawal—a much more vocal reaction than what we heard after the release of the Afghanistan Papers in 2019, which laid out the failure of the U.S. mission. There seem to be a lot of people who feel like the United States should still be the indispensable nation. What do you make of this?

Moyn: The weeks that have just passed seem mainly like an outburst of childish petulance. The truth is that the withdrawal from Afghanistan in the face of failure and the pivot to a new strategy of counterterrorism has been ongoing since the later Bush years. It was finalized under Biden, but it hardly began under his presidency. There were 100,000 troops during the surge under Obama; Biden inherited just 4,000 or 5,000.

There is real shock because of how quickly the friendly regime there fell, of course, which no one anticipated, especially not Biden and his people. That shock has led commentators into a week of imperial reverie, as if it were actually a choice to rule there, when the war was long ago lost. The disorder and the death involved in the pullout are going to further intensify the move from counterinsurgency to the counter-terror operations that have been dominant ever since this big transition began under Bush. I think historians will look back and find it hard to understand these last two weeks, except as a bout of imperial nostalgia in the metropole among those who’ve not been paying attention.

Serpe: In your 2010 book The Last Utopia, you chart the rise of the paradigm of human rights in the wake of the collapse of other left-wing and liberal projects after the 1960s. In the years since that book came out, there’s been a resurgent left-wing politics with a broad, egalitarian vision about a whole slate of things that might only come as secondary concerns in a human rights framework. But one critique that we often hear about the new U.S. left is that it’s had a lot less to say about U.S. foreign policy.

The history of human rights seems to track alongside the history of humane war. Do these parallel stories give you any hope for the development of a broader political base in opposition to forever war?

Moyn: It’s right to think of this new book as a belated sequel to what I had to say about human rights all those years ago. But the agenda of regulating war, if taken as an end in itself, isn’t just insufficient, as I argued about human rights, but can actually can drive endless war. I’m tougher on the laws of war than I ever was on human rights for that reason.

It’s made sense for progressives to lead with restraint in this era of growing insight into the costs of American power, in part because they’ve had to face down some overeager liberal internationalists who gave both liberalism and internationalism a bad name. But our next agenda has to be a constructive, progressive internationalism of our own. We may need to work with those Americans who just want to end wars and leave the world to itself, but as cosmopolitans, we have to have successor programs to human rights and the laws of war. I think we should retain both and embed them in bigger packages. The left has been correct that most wars are misbegotten and make the world worse, so restraint has to be a central part of a progressive internationalism. But we need to build out a bigger suite of messages and programs that make clear that we’re not trying to keep America at home, but to figure out how we can integrate and express solidarity in ways we’ve failed to do effectively in recent decades.

Samuel Moyn teaches at Yale.

Nick Serpe is Dissent’s senior editor.