It is easy to understand why so many mavens are trying desperately to conceptualize cyber warfare, drones and transnational terrorists in yesterday’s terms. However, the dissonance has grown to a point where we are forced to look for new concepts and principles rather than try in vain to fit a new reality into obsolete paradigms. We often act like someone who can’t squeeze a size-fourteen foot into a size-nine boot—and would rather cut off the toes than find a larger pair.
True, if we discard and adopt new principles as frequently as we replace footwear, principles will cease to carry much normative heft. However, currently we suffer from a severe case of the opposite problem: We forget that laws were not etched in stone and that all constitutions are living documents. After all, segregation was once legal in the United States, women could not vote until 1920 and the federal right to privacy did not exist until the mid-1960s.
Nowhere is the lag in legal and ethical frameworks more obvious than in the notion that lethal force can only be used against a declared enemy if an attack is imminent—that is, if there is evidence that it is about to occur in short order. However, in a world where a cyber attack launched from the other side of the world has the potential to instantly—and without any visible warning—bring down not only IT systems but also critical infrastructure such as power stations and water supplies, new criteria for what constitute legitimate preventive defensive measures are desperately needed.
The same holds for terrorism. Because terrorists pose as civilians up until the moment they strike, counterterrorist forces seeking to prevent attacks and save innocent lives must intervene before terrorists reveal their true colors. This means acting before attacks are considered "imminent" by the old rules.
Similarly, the constant lip service paid to the increasingly obsolete concept of sovereignty undermines U.S. efforts in places such as Afghanistan and Pakistan. By enshrining the myth of absolute sovereignty, we give Afghan President Hamid Karzai endless fodder for stoking nationalism and lashing out against NATO forces when they act without his clearance—for supposedly violating his country’s right to self-governance. The fact is, Karzai was installed by the United States and would not have survived long without our protection. Washington pays an estimated 91 percent of Afghan security expenditures. The Afghan economy is heavily subsidized by the United States and its international partners, with 90 percent of its public expenditures coming from donors. We need a new definition for nations and regimes that survive thanks to blood we shed and monies we expend. A tempered or conditional understanding of sovereignty is necessary for working with those who refuse to act as reliable junior partners.
Most elementarily, we need to ditch the notion that we can only fight terrorists within declared theaters of war. Terrorists operate easily across borders; so must those who pursue them. True, Congress should maintain the right to authorize the use of lethal force outside our borders. Given that many hold that the current authorization for the use of military force is too vague, the president should ask Congress to reauthorize the campaign against terrorists, wherever they are found. Hopefully, even a divided Congress can agree on that much. However, there is little merit in the notion that we cannot take out Al Qaeda’s leaders and their associates because they are not in a country on some preapproved list.