Samizdata

Interesting legal development – a group of Gulf War veterans are suing the banks and chemical companies that facilitated Hussein’s procurement or manufacture of chemical weapons to which the troops were exposed during the first phase of the Gulf War.

“Sixteen veterans from the Persian Gulf War filed suit Tuesday in U.S. District Court in Brooklyn, N.Y., against 11 chemical companies and 33 banks from throughout the world that allegedly helped Iraq construct and support its extensive chemical warfare program.

The banks named in the suit include Deutsche Bank AG of Germany, Lloyds Bank of the United Kingdom, Credit Lyonnais of France, State Bank of India, Banca Roma of Italy, National Bank of Pakistan, Arab Bank of Jordan, Bank of Tokyo and Kuwait Commercial bank. The companies that the suit claims have sold chemicals or materials to Iraq are headquartered in France, Switzerland, Germany, Great Britain and the United States – ABB Lummus Global Inc. in Delaware.”

The companies all do business in New York, where the suit was filed, so there is no issue of extraterritorial jurisdiction (the fatal flaw to date of that pet tranzi project, international courts).

The lawsuit will have to clear some very difficult legal hurdles before any recovery can be had. If these hurdles are cleared and the veterans receive damages, then the end result could be extreme reluctance on the part of any private business to sell anything, or provide any services, with a military application to any government. After all, liability for the damages, or even collateral or unintended damages, caused by weapons sold to a government, would probably shut down or impede the sale of weapons by the private sector to governments. Attempts to force governments to indemnify their suppliers would be, interesting, to say the least. Depending on exactly how the case goes off, it could clear the way for lawsuits against gun manufacturers for shootings and other crimes. Second order effects could will include the nationalization of defense industries and weapons manufacturers to bring them under the umbrella of sovereign immunity, or other special treatment for these firms.

If the firms were violating the law when they made the sales, then I can see holding them liable for the foreseeable effects of their illegal activity. If the sales were legal when made, then I begin to have a problem with this lawsuit, on both jurisprudential and policy grounds. The jurisprudence of imposing liability for actions that were legal when done is very troubling, of course. The policy implications, a few of which are noted above, are also troubling, although the notion of governments being pariahs in the marketplace for things that hurt people has a certain very definite attraction.

One doesn’t have to look far to find all manner of carping about the current occupation of Iraq. Much of the carping lacks any broader perspective, and this lack of perspective leaves one at a loss as to how seriously to take, for example, anonymous reports of Iraqi citizens being abused by US soldiers. Setting aside the morally obtuse, who think we should have just left the Iraqis to the continued ministrations of Saddam and the Baathists, those critiques worth listening to at all generally boil down to a complaint about the competence of the occupying forces.

I think that we are seeing is an entirely predictable result of the fact that the American, and to a somewhat lesser degree the British, military forces are designed and operated as war-fighting forces. This is in sharp contrast to most other military forces in the world, which serve as a combination of welfare jobs programs and, in effect, domestic occupation forces. The US army, at least, does not prepare much for occupation work, perhaps because they find their time fully occupied preparing for their primary function of kicking the living crap out of the opposition force. Personally, I wouldn’t have it any other way.

War-fighting and occupation are famously incompatible with each other – one demands the rapid application of lethal force, the other the modulated escalation of minimum necessary force, etc. A war-fighting army cannot transition, on the fly, from war-fighting to occupation, at least not with the speed and efficacy now demanded of the US and British forces in Iraq.

See what conclusion you derive from the following assumptions:

1. The West, as a matter of self-defense, will need to occasionally go in and change the regime of a foreign nation. Unless you retreat into pacifist fantasizing, I think that 9/11, not to mention WWII, demonstrates that, from time to time, militarily expedited regime change of hostile nations will occasionally be a necessity for the continued survival of even the most libertarian country.

2. The occupation forces need to be operating at near pitch-perfect levels within a few days of the Dear Leader statues coming down. It is apparently now the case that, once the old regime is out the door, the victorious forces must have the place running at least as good as before, in jig time.

3. The war-fighting forces cannot operate as an occupation force at satisfactory levels. The current conventional wisdom seems to be that successful post-war occupation requires administrators and enforcers that speak the language and are conversant with local customs spread throughout the country within a manner of weeks, if not days, and no heavy-handed policing or otherwise excessive uses of force allowed.

The only conclusion that I can draw is that the US, and possibly other Western nations, need to diversify their armed forces to include specialist occupation and civil administration units. Since many of the complaints about the occupation have to do with the lack of intimate familiarity with the Iraqi situation, we will need to have units training up to take over and run specific foreign nations years before hostilities actually break out.

Imagine the diplomatic possibilities! Will the French be offended because we don’t deem them enough of a threat to spin up a French occupation army group? Or will they be offended because we are planning to run France, for a bit, anyway?

The logic of sky-high expectations seems inescapable to me – self-defense requires regime change, which requires expert military occupiers and nation builders, which in turn requires detailed advance training in the language and customs of the nation to be uplifted.

The strategic and diplomatic consequences of going this route are, of course, disastrous. Even worse are the potential domestic effects – having a prefab military junta sitting around with nothing but time on its hands does not bode well for the domestic tranquility, does it?

Of course, in my view, this is all unnecessary if realistic expectations are maintained. Occupation is a tough business, one that will satisfy virtually no one no matter how well it is done. The Iraqis have complained, for example, that we don’t shoot looters on sight, and undoubtedly many of the ongoing problems with electricity and the oil industry have to do with the coalition trying to rule with a relatively light hand. But for every step we take toward greater enforcement and protection (more troops, more aggressive patrolling, shoot on sight policies, etc.), howls of protest will go up from both within and without Iraq.

The key, I think, is to keep your eye on progress towards the long-term goal and to maintain some minimal perspective on events. Sadly, in today’s partisan world of 24 hour news cycles, long-term thinking and perspective always run a poor second to political cheap shots and sensationalist video clips.

The always interesting Victor Davis Hanson chimes in this morning with a warning about the ongoing conflict with Islamist barbarians. His message: it is highly unlikely that the barbarians can win this war, unless we hand them a victory:

Western societies from ancient Athens to imperial Rome to the French republic rarely collapsed because of a shortage of resources or because foreign enemies proved too numerous or formidable in arms — even when those enemies were grim Macedonians or Germans. Rather, in times of peace and prosperity there arose an unreal view of the world beyond their borders, one that was the product of insularity brought about by success, and an intellectual arrogance that for some can be the unfortunate byproduct of an enlightened society.

Such smug dispensation — as profoundly amoral as it is — provides us, on the cheap and at a safe distance, with a sense of moral worth. Or perhaps censuring from the bleachers enables us to feel superior to those less fortunate who are still captive to their primordial appetites. We prefer to cringe at the thought that others like to see proof of their killers’ deaths, prefer to shoot rather than die capturing a mass murderer, and welcome a generic profile of those who wish to kill them en masse.

We should take stock of this dangerous and growing mindset — and remember that wealthy, sophisticated societies like our own are rarely overrun. They simply implode — whining and debating still to the end, even as they pass away.

Like Mr. Hanson, I believe that it is a conceit, a fatal mistake, to treat a war as a court proceeding, and to try to apply peacetime norms in a wartime environment. The danger with the new era of ‘asymmetrical warfare’ is that the threat is much more nebulous, making it that much more difficult to confine the wartime dispensation. We have already seen plenty of ‘slop’ in the US, as the Justice Department is already using its ‘anti-terrorism’ powers to go after pornographers, drug dealers, and so forth.

The dilemma is quite real, and I don’t see any easy answers other than eternal vigilance combined with bloody-minded realism. In other words, pretty much what has preserved the spirit of liberty through past crises.