Belmont Club

The Future of Collective Punishment

An acquaintance related a conversation he had with a friend from South Asia.  “Americans are bad people,” the South Asian said. “Why do you say that?” my friend asked. “Because president Obama is a bad man and Americans share in the guilt for electing him.” Welcome to the world of guilt by association, a theory with a long and bloody history which is making a comeback on the world stage.  In ancient China the most severe punishment for a crime was the so-called “nine familial exterminations“. This is the epitome of collective punishment. The nine familial exterminations were:

typically associated with offenses such as treason, the punishment involved the execution of all relatives of an individual, which were categorized into nine groups. The occurrence of this punishment was somewhat rare, with relatively few sentences recorded throughout history. There were also variants of the punishment found in ancient Korea and Vietnam.

The practice has not completely died out as Vladimir Putin has recently demonstrated. He made news in Russia by incarcerating “the apparently apolitical younger brother of opposition leader Alexei Navalny, in what seems like an effort to ensure his good behavior.” It’s not quite as severe as the “nine familial exterminations” of ancient China, but it is an idea in the same vein.

taking hostages from the family of political rivals was a common practice in Europe during the Middle Ages and indeed in feudal societies around the world. A political leader would demand high-ranking captives, often the sons of lesser nobles, as evidence of their good faith in pledging him their allegiance, or take hostages to ensure safe passage or a truce during wartime. Hostages served as guarantees for international treaties.

Modern terrorism is in many ways just a revival of customary tribal retaliation or the application of ‘guilt by association’. The September 11 hijackers had no particular beef with the individuals in the World Trade Center. They were out to slaughter anyone in New York. None of the people in New York had to be individually guilty of anything. They were simply the most handy targets available to expiate the collective Western guilt for its real or imagined offenses against Islam.

The participants of the Jihad see it as a matter of “them” against “us”. Even though Western politicians are at pains to deny there is any “them”, “they” know who “they” are, despite the fact that “we” do not acknowledge who “we” are.  ‘Us’ versus ‘them’ pervades everything. When the Taliban could not strike at the Pakistan military directly it struck at the Pakistani Army Public School in Peshawar.  The hand-wringing articles asking why innocent children were attacked miss the point completely.  To the Taliban there are no “innocent children”.  In a world of collective guilt there is naturally only collective punishment.

The clash between the culture of collective punishment and the Western idea of individual guilt was on display when the FBI decided to investigate reports that private companies were privately retaliating against hackers who had attacked their companies. Michael Riley and Jordan Robertson write in Bloomberg that the FBI is jealously reserving the administration’s right to act against hackers — or not to act against them.

U.S. officials have shown little appetite to intervene as banks, retailers, casinos, power companies and manufacturers have been targeted by foreign-based hackers. Private-sector companies doing business in the U.S. have few clear options for striking back on their own.

That has led a growing number of companies to push the limits of existing law to consider ways to break into hackers’ networks to retrieve stolen data or even knock computers offline to stop attacks, the cybersecurity professionals said in interviews. Some companies are enlisting cybersecurity firms, many with military or government security ties, to walk them through options for disrupting hacker operations or peering into foreign networks to find out what intellectual property hackers may have stolen.

In one case, the Federal Bureau of Investigation is looking into whether hackers working on behalf of any U.S. financial institutions disabled servers that were being used by Iran to attack the websites of major banks last year, said two people familiar with the investigation. JPMorgan Chase & Co. (JPM) advocated such a move in a closed meeting in February 2013, these people said. A bank spokeswoman said no action was ever taken. Federal investigators are still trying to determine who was responsible, the people said.

As far as the authorities are concerned, only the collective state may legitimately mete out justice —  then only upon the guilty individual. This is the exact reverse of an individual or individual company engaged in retaliation against a collective target.  Unfortunately hacking by its very nature is designed to obfuscate the precise source of the attack. You can sometimes identify only the Usual Suspects.  And you cannot retaliate against the Usual Suspects.  You can only punish convicted individuals.

In the Western legal model it  is illegitimate to impose “collective punishment” and being unable to do so, nothing is done.  There is a strict  injunction against profiling Muslims and other groups precisely because group guilt is forbidden.  And that is as it should be, if the taboo is to be maintained. Collective punishment is a very destructive and blunt model which arises from a lack of information and a conviction that discrimination is a hopeless task.

But the prohibition does not run the other way.  There is no strong taboo among ISIS or al-Qaeda, for example, against punishing individual Jews for the collective guilt of Israeli existence. It is enough to kill a Jew, any Jew. It doesn’t matter who.  Their model of punishment doesn’t require detailed information.

The key distinction between lawfare and warfare is that the former recognizes only individual guilt, while the latter consists of nothing but collective punishment. Warfare is an information-poor form of conflict. In World War 2 style conflicts all the necessary information was encapsulated in the uniform. The people in American uniforms shot the people wearing German uniforms. The moral state of individual wearer of the uniform mattered not a whit. Anyone wearing an German uniform was liable to be shot, burned, blown up, stabbed or run over by a tank operated by an individual with an American uniform and vice versa. It was collective punishment all the way.

A whole system had to be brought down.  An entire state and perhaps even an entire way of life had to be terminated.  Under these conditions, the only information required was ‘whose side are you on?’

Provided  the soldiers obeyed the conventions of war, they might kill hundreds or thousand and acquire no individual guilt at all. Paul Tibbets may have been proximately responsible for piloting the Enola Gay to Hiroshima, but the act was America’s. The foremost hero of the underground resistance, Wing Commander Forest Frederick Edward “Tommy” Yeo-Thomas GC, MC & Bar, also known as the White Rabbit was “a surprise defence witness in the war crimes trial of Otto Skorzeny, particularly on the charge of Skorzeny’s use of American uniforms in infiltrating American lines. Yeo-Thomas testified that he and his operatives wore German uniforms behind enemy lines while working for the SOE.” As far as the White Rabbit was concerned, Skorzeny had no individual guilt even if Skorzeny had caused the death of hundreds in the course of his illustrious military career.

When hackers bring down companies or terrorists commit outrages and then obfuscate their identity, the Western moral code goes “tilt” because it cannot resolve the contradiction between having to punish somebody and not knowing the name of that someone to punish.  Although we might guess the identities of the guilty parties — more or less — that’s not good enough to mete out only individual punishment. Without the names of individuals to punish the whole Western defense and legal mechanism grinds to a halt.  Without information and the ability to punish individuals lawfare is nothing but a pitiful, helpless giant.

Terrorism uses obfuscation to defuse lawfare knowing that the West will not turn to the alternative form of warfare.

The danger of course is that a “pitiful, helpless giant” sooner or later loses the the legitimacy to govern.  A sufficiently enraged public will demand something more than impotence. Collective punishment is what happens when individual justice is seen to fail.  When lawfare collapses then warfare eventually ensues, a point which I made in the Three Conjectures.  Maybe not immediately, but inevitably, with all the tragedy that implies.

It is therefore in the public interest to create effective methods of retaliation between the extremes of Mirandizing terrorists and implementing the “nine familial exterminations” of ancient China. A form of conflict which requires more information than warfare but less than lawfare. In order to avoid the horrors of war The King’s Justice cannot afford to be seen as totally impotent. The best way to forestall private revenge is for the King to act against those who would disturb his realm, if not strictly according to the law then at least in the spirit of justice.

If the Obama administration simply stands impotently to one side as American firms are hacked, sooner or later someone will revenge himself on the usual suspects. That is human nature. Every king worth his throne must defend his subjects or they will defend themselves.

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