Still Searching for Engagement: A Comment on Professor Jean Bethke Elshtain's Response to "Un-just War Against Terrorism and the Struggle to Appropriate Human Rights"

I was slightly amused by Professor Elshtain's "sense" that Farer "really cannot abide the fact that . . . people . . . disagree with part or all of his argument."¹ One might suppose that if I were in fact averse to a spirited exchange of views, I would not have urged the editors of Human Rights Quarterly to invite Professor Elshtain to reply. I urged them partially out of sheer intellectual curiosity about Elshtain's willingness to engage with the various issues I had raised in my piece and about the form such engagement might take, particularly in light of all that we know now about such matters as the extent to which detainees have been subjected to torture and lesser but still cruel and inhuman treatment and the direct involvement of the president, the vice-president, and the current secretary of state in selecting the means by which pain and degradation could be inflicted. In addition, I hoped that despite disconfirming evidence in her book, Elshtain might emerge as a serious interlocutor and an interesting one since her visceral interpretation of events and people differs a good bit from mine.

Alas, that hope has come to nothing. The trouble is that Elshtain has an ear for unpleasant or unfamiliar ideas and for nuance that is much like a tone deaf person's ear for music. As a description that may seem a little harsh, but I think I can demonstrate that it is nevertheless accurate and in that sense fair.

Take, for instance, her response to my suggestion that the Bush administration's invasion of Iraq arguably did not satisfy the first Just War criterion, namely that the war be authorized by a "legitimate authority." In her book she states summarily that the US being sovereign, has the authority. In my article I tried to show that the matter was more complex than she seemed to recognize. The complexity arises from the fact that the US, like virtually every other state in the world, is a signatory of the UN Charter, one of the main purposes of which is to narrow sharply national discretion concerning the use of force. By virtue of that treaty, I suggested, one could argue that the United States had ceded to the UN Security Council a considerable measure of the discretion it has previously enjoyed insofar as the use of force is concerned. Elshtain plainly misconstrues my suggestion and twists it into the claim that the United States "ceded sovereignty to join the United Nations."²

As any first year law student learns from the first week of her class in the law of property, property owners do not have absolute authority to do what they will within the confines of their lots. They cannot shoot someone who strolls across their lawn or even who allows his dog to defecate on their front walk. Nor if they live in a residential area can they turn their back garden into a pig farm. Ownership is a changing bundle of rights and responsibilities. Elements of the bundle can be exchanged for consideration; one might, for example, concede a right of way to a neighbor in return for permission to build a tennis court that extends over the neighbor's property line. A state's sovereignty also is a bundle of rights and responsibilities, the contents of which can be altered principally by mutual agreements called "treaties." In magisterially declaring that "The United States is a sovereign entity [and it therefore] follows that it is the final judge of its security needs," Elshtain just does not seem to hear my argument, which I conceded is not conclusive but which cannot be brushed off either with the simple invocation of "sovereignty." What a person more inclined to engage with disagreeable or unfamiliar views could have said is that while sovereign states might agree to exchange restraints of various kinds, otherwise there could be no treaties, decisions about how to advance the nation's security are so central to the...