book cover imageTerror and Consent: The Wars for the Twenty-First Century
by Philip Bobbitt
(New York: A. A. Knopf, 2008) x + 672 pp, $35.00 (cloth).

Phillip Bobbitt thinks big. In the 552 pages of the text of Terror and Consent, he displays a mastery of terrorism, intelligence, strategy, history, legal reform, jurisprudence, and political theory, an array of disciplines that rivals Faust’s. He even throws in quotations of poetry for good measure. As a law professor who holds appointments at both the University of Texas Law School and the Columbia Law School, and who has advanced degrees in law and history, along with extensive experience in government, Bobbitt brings an enormous breadth of insight to the problem of how to address the current war on terror.

The present volume builds upon Bobbitt’s 2001 The Shield of Achilles: War, Peace, and the Course of History; in that work, Bobbitt set out a theory of history that several different constitutional orders have existed since the Renaissance and that the world is now experiencing a period of dramatic change from the nation-state to what Bobbitt calls the “Market State.” Bobbitt describes the contrast as follows:

“Market state: the emerging constitutional order that promises to maximize the opportunity of its people, tending to privatize many state activities and making representative government more responsible to consumers. It is contrasted with the current nation state . . . that based its legitimacy on a promise to improve the material welfare of its people.”

He divides market states into two types: states of terror and states of consent. If one accepts the premise that the rise of the Market State is at hand, then much of the argument follows. This is a book that offers a very broad, well-defined vision of the world, and it manages to comment upon the War on Terror and the Iraq War without falling into the usual facile trap of simply blaming the Bush administration.

The greatest strengths of Terror and Consent are conceptual: Bobbitt argues that the war on terror is both a war against al Qaeda and, in a larger sense, against the kind of terror that would destroy the consensual basis for the market state. Bobbitt views the concept of terror in very broad terms, for he includes not just acts of terrorism, but disease, genocide, and natural disasters. In a more literal sense, Bobbitt argues that the United States should view al Qaeda as a kind of terrorist market state and that the United States is, in fact, at war with al Qaeda. He argues that al Qaeda acts like a state: “It makes alliances. It promulgates a recognizable system of laws, the sharia. It declares wars.” Furthermore, al Qaeda seeks to force political change by staging terrorist attacks, acting as a state would act, using war as another way to achieve political ends. Bobbitt also seeks to change the way citizens of a market state view victory, claiming that for them, victory will be preclusive. Rather than a surrender ceremony or a parade, victory against terrorism will come with the non-occurrence of an event, with the preclusion of terrorist attacks and with the preclusion of the kind of terror that follows natural disasters.

Another of Bobbitt’s main points is that the United States needs to undertake significant legal changes in order to combat terror, in all forms, while still safeguarding civil liberties, and he includes a list of suggested changes. Some of his proposals, such as providing for a means to replace as quickly as possible members of the House of Representatives killed in a terror attack, and rewriting the rules of presidential succession to minimize the chance that the government would change parties with the death of the president and vice president, seem quite sound. Others, such as the development of Federal laws allowing the quarantine of cities, the repeal of the Posse Comitatus Act, which prevents the use of the military for domestic security and reforming FISA to permit data mining will not please devotees of limited government, or anyone who believes that problems are best solved locally, rather than by a Federal government with vastly expanded powers. Also, Bobbitt argues that the United States should “stockpile” laws, that is, to have sets of ready made laws that will only go into effect at the occurrence of some terror-related event. His idea is that, if Congress were to act deliberatively and enact laws that would only go into effect upon the occurrence of some terrorist act, then the resulting legislation would be more carefully crafted, less prone to the excesses that might follow such an attack. This shows a faith in the legislative branch that is, perhaps, misplaced. Indeed, one of the main points of another book about law and terrorism, Benjamin Wittes’s Law and the Long War, is how often Congress has refused to act to sort out some of the legal problems arising out of the war on terror.

Readers may be confused, in light of the aforementioned changes that Bobbitt desires to make in American law, by Bobbitt’s insistence that the power of the state will diminish with the rise of the market state. If one sees the market state as inevitable and expects government deregulation in every aspect of national life, then Bobbitt’s reforms seem a quite mild way to enable the government to retain a vigorous power to act in times of dire crisis. That’s a big if, though. Should the U.S. government not wither away to a libertarian dream, the threat of a large, powerful federal government able to deploy troops to act within the United States, then power to quarantine American cities may seem less reassuring.

Although many of his more specific proposals will offend people on either side of the political aisle, Bobbitt does include a fine discussion of the “ticking time bomb” scenario as it relates to torture, concluding that it is best to maintain an absolute ban on torture and to trust that a jury would not be likely to convict a leader who sanctioned torture to protect civilians. A deep commitment to the rule of law permeates this book, and readers will not be surprised at this conclusion. Considering the rabid criticism any leader would receive at the hands of the global human rights community, the press, and from any political opponents, leaders sanctioning torture would be taking their political lives in their hands if they sanctioned torture. Also, Bobbitt shows a particular faith in juries, an approach that might allow citizens to vindicate leaders who acted in their defense, or to act irrationally. Also, the prospect of a leader being tried in such circumstances raises the question of how a leader would be able to mount an adequate defense at trial, without exposing the intelligence that led to the decision to torture a suspect in the first place, the revelation of which would likely lead to the exposure to sources and methods best kept quiet.

Only two illustrations appear in the text, but both are particularly clever choices. The first appears opposite the table of contents and shows a scene in Baghdad, during an election on December 19, 2004, where gunmen execute Iraqi civilians at point blank, in the middle of a city street, in daylight. This is a visual representation of the direct conflict between terror and consent. The other shows three signatures of Guy Fawkes: one from before his torture, one during his ordeal, and one from afterwards. The dramatic decay of the signature from a bold hand to an illegible scrawl illustrates the devastating effects of torture, without resorting to a more graphic illustration.

Civil libertarians and foes of big government need not worry too much about Bobbitt’s ideas being put into practice in toto. This book is too complex to be readily turned into a policy proposal, although parts of the argument could be teased out and shaped into policy, such as Bobbitt’s idea to stockpile laws. Bobbitt’s insights are interesting, and often shed light on new ways to conceptualize the war on terror, yet his proposals for waging the war, which combine an intrusive government at home with a foreign policy aimed at increasing interventions overseas, will repel many conservative readers. Despite some flaws, though, this is the most creative interdisciplinary work yet written on the war on terror. Bobbitt’s intellectual range makes Terror and Consent a stimulating read, of great interest to anyone interested in the state of the world, and of warfare.  

Mitchell McNaylor, an independent scholar, writes from Harvest, Alabama.