So here we are again. Another heinous crime against humanity. Another reason for hundreds of families torn apart in a misguided fit of rage to struggle to pick up the pieces. Another thousand reasons to wonder what the hell is wrong with the world. Another reason for anyone with an internet connection to spin a tragedy to his or her own political agenda. And, most importantly, another chance to decide the proper response.
There were those too quick to jump to conclusions about a Saudi foreign national and foreign involvement, and there were those who took a too measured approach and painstakingly called the act anything but terrorism. The problem with both has its roots in the way we last reacted when U.S. citizens were attacked on our own soil. Then we were quick to label it an act of war. We were quick to declare an ill-advised war on the tactic, a turn which would have seemed like folly in 1941 were we to declare war against Blitzkrieg and Carrier Warfare (Note: This was not an official declaration of war. The last time the Congress has acted under its Constitutional duty to do that was over seventy years ago.). And we were, given the very broad nature of the “declaration,” far too narrow in our collective thoughts about the confines of terrorism. One unfortunate result of the longest war in American history is that we instantly think of Islamist terrorism anytime we apply the label.
Merriam Webster’s Learner’s Dictionary defines terrorism as “the use of violent acts to frighten the people in an area as a way of trying to achieve a political goal.” It turns out those who waited to call it terrorism got it more right. Political motive is a key aspect, and in the early going it was not sufficiently clear. Now as we learn more about the possible radicalization of at least the elder suspect, do we have a clearer picture of how we ought to approach the events of the coming weeks and months? Unfortunately we are off to a disappointing start.
Reports say Dzhokhar Tsarnaev may not have been read his Miranda rights before questioning; U.S. officials may have invoked a rare public safety exception (though he now has a lawyer). The ACLU objects. Prominent Democrats say it’s a bad idea. Prominent Republicans say he should be treated as an enemy combatant. What’s imminently clear is that the “war on terror” has completely occluded our sense of the morality of war and the language we use to discuss it.
According to Public Law 107-40 passed on September 18th, 2001 under the umbrella of the War Powers Resolution of 1973, the Congress resolved “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” It was the beginning of a precipitous slide away from the morality of the Just War ethic.
Citing this Congressionally-mandated power, the Executive Branch took extraordinary steps to limit the rights of the enemies of the United States—assuming in fact we were at war—granted under the long history of the Just War construct and under the codified laws of war, now called International Humanitarian Law. The Attorney General of the United States even wrote a memo questioning whether the Geneva Conventions might be obsolete. It was a very long way to go for a nation who only thirty years before used the North Vietnamese government’s complete disregard for the Geneva Accords and the systematic torture of U.S. prisoners of war to indict the regime and Communism in general as morally decrepit and wholly illegitimate. We knew not what we were doing. Yet we pressed on and, in doing so, used the language of emergency and exceptionalism. Instead of making the case for justification prior to action, we sought to be excused after the fact. It will likely be remembered as a dark time in the history of our nation.
The Just War construct grants certain rights to those who willfully take up the mantle and legal status of “combatant.” These rights are generally summed up as the right not to suffer superfluous injury, the right not to be subjected to unnecessary suffering, and the right to immunity (narrowly defined here as the right not to be killed or summarily executed) should you become unable or unwilling to continue in hostilities. These rights are granted to members of state militaries in the combat arms by virtue of the fact they wear uniforms and carry arms openly. Article 1, Paragraph 4 of Protocol 1, Geneva Conventions of 1977 gives rights to people fighting “in the exercise of their right of self-determination.” This article is meant for individuals, not part of official state militaries, fighting in wars of liberation inside their own borders. It might apply in cases like the Boston bombers, but Just War philosopher Michael Gross says those fighters must first establish another important criterion of the ethic before they can be granted combatant status; they must establish a just cause. Surely we would have to carefully consider whether the end state of Islamist ideologies such as those we preliminarily believe these two suspects might have been involved in would qualify. More importantly the nature of the attack provides its own clarity.
Just War theory is unambiguous about the status of noncombatants such as those spectators around the finish line of the Boston Marathon on April 15th, 2013. Noncombatants are immune from killing except in very specific cases. These cases give rise to what we now, somewhat antiseptically, call acceptable collateral damage. These exceptions stem from a “principle of moral reasoning that argues the pursuit of a good end tends to be less acceptable when a resulting harm is directly intended rather than merely foreseen.” In other words the acceptable killing of noncombatants in war is acceptable only if it is not the intended result, that there is no other way to achieve the just result desired, that the intended result is indeed just in the first place, and that the desired result is sufficiently good to justify the negative result of innocent deaths, i.e. that the just result is “proportional” to the loss of innocents.
In judging the Boston bombing, the act falls short on all counts. If done by an already recognized combatant, such an act would be a war crime. However the fact that it was allegedly perpetrated by two men who had not taken any steps to justify their important legal status as combatants fighting for self-determination, that they carried their “weapons” concealed, and that they intended to kill and main innocent noncombatants, creating unnecessary suffering and superfluous injury, simply makes them lowly criminals. We should not—in fact cannot under jus in bello criteria of the Just War ethic—grant combatant status after the fact to these individuals. Doing so would, in some twisted way, actually legitimize their singular violent act, the bombing of innocents, as an act of war. That is something no nation operating under the rule of law and the laws of war ought to do.
As a combatant, perhaps even a warrior, steeped in the law of war and with a deep moral foundation in the Just War ethic, it is an affront to me that we would offer such a high status to those who are incapable of fighting with the same high standard, with the same sense of justice, as the vast majority of those in the U.S. military and the militaries of our greatest allies. We have failed as citizens, a free press, and the counter-balanced branches of government to act as a constraining force on a legitimate authority’s resort to war. We are too quick to judge and too eager to rush to nationalist fervor. We have witnessed great tragedy and mass murder and mistakenly taken it as an act of war. War, for those who know it, is a higher calling engaged in by men and women who do so that others will be spared its violent torrent. They do so, in the words of U.S. Air Force Pararescue, “that others may live.” That innocents may live. It is an idea diametrically opposed to the actions of anyone who knowingly and intentionally attacks innocent civilians.
Author Christopher Coker says the first question a soldier asks is “why?” The second “question…was first posed by Socrates: ‘How should we live?’” In this case the answer is easier than at first it seemed in the sensationalism of a bombing’s aftermath and the massive manhunt that followed.
We should live under the law. We should grant no one combatant status save those who have truly earned it. It is not something to grant in order to seek greater, swifter punishment or infinite detention. We have forgotten or never fully understood that a combatant’s rights are based in morality and logically argued under an ethical construct, that they are far-reaching and superbly nuanced. We should take criminal acts at face value and call them “crime.” We should grant, by reading them with high volume and authority, Miranda rights to all those who come before our justice system. The right to silence is as inherent and inalienable as life and liberty, for we cannot morally compel anyone to talk. We should remain undeterred in our knowledge of the sanctity of the free and open society in which we live. We should hold tight to our civil liberties. But most importantly we should be reinvigorated by the inherent good found in our species and by the strength of our social interactions and community. We have witnessed the best of our character in recent days. We have seen people running into the mayhem to help those who could not help themselves. We have seen old rivals find a new respect in a common experience. We have seen proof of our continuing evolution and refusal to descend into chaos and anarchy. We have witnessed the very reason Homo sapiens survived for this long. We have come to see that Boston Strong is really just a measure of our deep being, an integral part of this long and interesting journey we call the human experience.
It may turn out, dear Socrates, that despite our musings about what the hell is going on in our world, we really do know how to live.
 http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/html/PLAW-107publ40.htm (accessed 21 Apr 13).
 Christopher Coker, Waging War without Warriors? The Changing Culture of Military Conflict (Boulder, CO: Lynne Rienner, 2003), 78. Note: Citation is a memo from Attorney General Gonzales to President Bush postulating the Geneva protocols are obsolete.
 Adam Roberts and Richard Guelff, eds., Documents on the Laws of War. 3rd ed. (New York: Oxford University Press, 2000), 423.
 Larry May, Eric Rovie and Steve Viner, eds., The Morality of War: Classical and Contemporary Readings, 1st ed. (Upper Saddle River, NJ: Pearson Education, 2006), 160.
 Coker, Ethics and War in the 21st Century, 150.