A Crime or an Act of War?

Christopher W. Morris

Was the attack on the World Trade Center a crime or an act of war? Commentators disagree. If it is a crime then the appropriate response is to apprehend the guilty and to try them in a court of law, constrained by the standards of evidence of the criminal law. By contrast, if it is an act of war, then we may retaliate against the enemy with military means and need not be burdened with the criminal laws demanding standards of proof.

Some have argued that the attack cannot be an act of war as only states can fight war. But this argument is specious: wars took place long before states existed, and civil wars are genuine wars. The act, however, might be both a crime and an act of war.

The question is not merely an empty quarrel about labels. To see what the dispute over terms might be about, we should think more carefully about what it is that we might want to accomplish by retaliating against our aggressors.

After the attack many people immediately, and very reasonably, called for justice. We should apprehend the perpetrators and bring them to justice. This should indeed be one of our aims. Justice does call for retribution (though not revenge). A few people might disagree and counsel turning the other cheek. But retributive justice is a widely accepted and reasonable goal.

A second and distinct aim might also be to deter future attacks. Deterrence has long been thought to be part of the purpose of punishment. Philosophers, legal theorists, and criminologists often disagree here, some arguing that deterrence is less important than retribution, others defending the reverse. But deterring future terrorist attacks seems to be something we ought to try to do if at all possible.

There is also a third aim which we should have, and it is one that has not been distinguished clearly enough from retribution and deterrence. To exact retributive justice from someone is to pay him back for some wrong he has committed. To deter someone is to induce him to change his behavior by attaching consequences to his actions (for instance, sanctions or penalties). Both of these aims differ from prevention or incapacitation. If a person is handcuffed or locked in a cell or executed, that person is not deterred from committing a crime; he is prevented from doing so.

The distinction between prevention and deterrence, important in the theory of punishment, is crucial in the debate about retaliation. One of our aims should be to prevent future attacks, that is, to incapacitate our adversary. We should also try to deter future attacks, but it is unclear that individuals like the hijackers will be deterred by anything that we can do. The fact that we may not be able to deter these individuals from striking again does not, however, mean that we should not aim to prevent them from doing so. Attempting to incapacitate terrorists by capturing or to kill them before they strike should be one of our aims. It is distinct from retributive justice and deterrence. It is a task appropriate to the military and intelligence services of the state, and it is not necessarily a task best carried out by US or international courts of law.

Was the attack on the World Trade Center a crime or an act of war? It can reasonably be considered both. But this question is not the important one to settle. Rather, we should ask what it is that we aim to achieve by our response to this act? We should seek retributive justice and, if possible, to deter future attacks. But our most important, and urgent, aim should be to incapacitate all who threaten to attack our cities and people in the ways that the WTC killers have. This means we should strive to find both the perpetrators and others who are contemplating similar acts and that we should make sure they are not able to act. Even if we are not able to deter terrorists or to bring them to justice, we should aim to prevent them and others from striking again. Easier said than done, of course nevertheless, a goal at least as important as any other.

Christopher W. Morris

Professor of Philosophy, Bowling Green St. University (until 2002)
Professor of Philosophy,
University of Maryland, College Park (January 2002)