The Morality of Counterterrorism. A Just War Theory Analysis of U.S Counterterrorism after 9/11

Term Paper, 2015

34 Pages, Grade: 65% (Scottish Marking Scale)












Michael Walzer’s Just and Unjust Wars caused a revival of just war theory and has given a useful framework for analyzing morality in war. This dissertation will use just war theory as a moral framework for evaluating U.S counterterrorism after 9/11. First by giving an overview of just war theory and a literature review. Then there will be an analysis of the moral pitfalls and benefits inherent in the individual methods of counterterrorism. After that I will show how these methods have been applied practically by analyzing U.S domestic counterterrorism and U.S counterterrorism in the Middle East. The findings of this paper will show that U.S counterterrorism since 9/11 has consistently violated just war moral principles, but is ultimately morally unjustifiable because it has not provided a good chance of success for preventing terrorism.


In 1977 Michael Walzer’s Just and Unjust Wars revitalized the field of just war theory by applying a combination of ethics and practical examples to determine when it can be justified go to war, what actions are justified within war, and how justice can be served after war. Since then Walzer’s theories have been debated, criticized, and added to while still remaining the basis for modern just war theory. In between the extremes of realism and pacifism, realists believing that, “war lies beyond (or beneath) moral judgment” and pacifism being the, “moral renunciation of war”, just war theory posits that though war is terrible, it can be morally necessary.[1] [2] While just war theory is intended to provide a moral framework for conventional war, it also works as a framework for actions which fall just outside of this area. So although parts of counterterrorism may fall out of the purview of traditional war, the various methods and implementations of counterterrorism can still be evaluated in terms of just war theory.

It is important to specify what is meant by counterterrorism, but in order to do that terrorism must be made clear first. Though there is no universally agreed upon definition of terrorism, here it will be defined as, “the deliberate use of force against noncombatants by state or non-state actors for ideological ends in order to cause fear among a wider population”.[3] So then counterterrorism would be any action, method, or strategy used to stop terrorism. This allows for a wide variety of practices to be considered counterterrorism, a necessity as counterterrorism often takes forms outside of what it is conventionally though to be.

The 9/11 terrorist attacks on the U.S caused the immediate deaths of 2,996 people, spurred the Bush administration to begin its “War on Terror”, and necessitated the improvement of counterterrorist policies. With the current U.S intelligence budget being $71.8 billion, an astronomical number which is still the smallest intelligence budget in the last eight years, it is clear that counterterrorism has remained a key component of foreign and domestic policies since the attacks on 9/11.[4] However has the money and resources used to carry out these programs been well spent? On the one hand, perhaps terrorism represents a significant enough threat to justify moral breaches in exchange for security, on the other it is possible that terrorism has been exaggerated and is used to justify both immoral and ineffective policies, or maybe U.S counterterrorism falls somewhere in between the two. Using a just war theory framework it is possible to evaluate whether morality has been a detriment or benefit to these policies, and whether or not U.S counterterrorism since 9/11 can be considered morally justifiable.

Though this topic could be taken in to much more depth than is possible here, I will hope to cover the key points in order to justify my conclusion. First there will be a literature review which engages authors who have written on similar topics under the banner of counterterrorism and just war theory. This will be split up in to the relevant themes of the PATRIOT Act and domestic surveillance, the preventive nature of the Iraq War, torture, and automated warfare. Then I will give an overview of what just war theory is, splitting up the chapter in to jus ad bellum and jus in bello criteria while acknowledging the feminist dissent of just war theory. Next will be an analysis of individual counterterrorism methods and how, in theoretical terms, each may potentially be considered morally justified. This will cover the pertinent methods of detention, interrogation, surveillance, targeted killing, and intrusion/invasion. Finally I will look at two case studies, U.S domestic counterterrorism and U.S counterterrorism in the Middle East, both after 9/11. U.S domestic counterterrorism will show how counterterrorism methods have been practically applied in domestic politics, and how moral various programs have been. U.S counterterrorism in the Middle East will provide the same evaluation, except for foreign efforts instead. Through these analyses I will show that many U.S counterterrorism programs have consistently violated moral principles, but are primarily morally unjustifiable because they have not provided a good chance of success for preventing terrorism.


Originating from Christian theorists, such as Saint Augustine and Thomas Aquinas, just war theory seeks to determine whether or not a war can be considered morally just. Criteria for a just war is broken in to three categories; jus ad bellum (the right to go to war), jus in bello (right conduct within war), and jus post bellum (justice after war).[5] I will focus primarily on jus ad bellum and jus in bello. Since jus post bellum pertains mainly to post-war punishment of war criminals and national reconciliation, it is not very useful in analyzing the morality of counterterrorist policies. But before going in to jus ad bellum and jus in bello it is important to note criticisms of just war, such as the feminist perspective. But despite the feminist critique of just war, the elements of jus ad bellum and jus in bello provide a useful framework for analyzing counterterrorism.

The feminist view of just war theory takes issue with the gendered nature of just war. Sjoberg, one of the most notable feminist critics, argues that, “just war is a discourse rather than a moral framework.”[6] This claim comes from the idea that just war theory is not stringent enough in its criteria to be a moral framework, and is either not clear or too lenient in considering force as a last resort.[7] As a result war becomes too easy under just war theory, and when considering the cost of war civilian losses tend to be minimized while military gains are given disproportionate weight. This also leads in to the feminist critique of the non-combatant immunity (NCI) principle. Since wars are fought to protect the “innocent”, typically depicted as women and children, it follows that a war can only be won by attacking another group’s women and children.[8] Instead of NCI, empathetic war fighting is proposed wherein “who the party might hit” is more important than “who the party intends to shoot at.”[9] Though the feminist critique does pose some interesting questions to just war theory, I will show that just war theory remains a useful framework for evaluating the morality of war, and in this case of counterterrorism.

Jus ad bellum focuses on the conditions prior to war, and what criteria must be met to deem violence permissible. First there needs to be a just cause for going to war. Though there is a gray area when determining what is just, it is commonly held that an act of aggression is unjust and fighting in self-defense is just.[10] Aggression cannot be justified as it is an attack without good reason, and self-defense is justified as an entity must be allowed to protect itself against an unwarranted attack. There is also the possibility of preemptive and preventive wars. Preemptive wars are a, “first strike against an enemy who has not yet attacked but whose attack is clearly imminent” and preventive wars are a, “first strike against a potential future aggressor who does not yet pose an imminent threat.”[11] Though similar, it is largely the time scale which differentiates the two. While preemptive wars are usually deemed justifiable for the same reason as self-defense, preventive wars are considered less so as the foreseen threat gets further and further away. Just cause is a key element of jus ad bellum, and without it, it is impossible to deem a war morally justified.

But this is not the only criteria of jus ad bellum; legitimate authority, right intentions, last resort, proportionality, and chance of success are all necessary criteria as well. A just war can only be carried out by sovereign nations, and are considered as such due to the, “protection it affords its citizens both from internal anarchy and from the threat of external enemies.”[12] As such no sub-state actors have the ability to engage in a just war. There must also be right intentions, similar to the necessity of just cause, states must, “seek to restore peace and the status quo ante” while avoiding motivations such as revenge.[13] Though it may be acceptable for a country to have less altruistic secondary goals, the primary motivation of peace is enough to consider the intentions right. War must be a last resort as well, if a peaceful option presents a better solution than that must be attempted first.[14] While it is difficult to determine when exactly all other options have been exhausted, as criticized in the feminine perspective, it remains a useful guideline which emphasizes peaceful approaches whenever possible. The aims of the war must also be in proportion to the violence that will be caused by its undertaking.[15] If more harm is done than good, then it would have been better to avoid war in the first place. Finally a just war must have a realistic chance of success; if the right intentions of a war cannot reasonably be achieved, then the violence caused will ultimately be without reason.[16] This is the key element of jus ad bellum, moral violations in other areas may be justified by an increased chance of success, but without success an action is futile and therefore unjustifiable. Should all of these conditions be met, including just cause, then it can be considered just to go to war.

Of equal importance to jus ad bellum, is jus in bello, which outlines what conduct is acceptable during a war. As in jus ad bellum, proportionality is an important feature. In this context it means that any civilian casualties incurred by a military operation should be proportionate to the gains of that operation.[17] This is exemplified by the doctrine of double effect which holds that if an act is a legitimate act of war, the direct effect is morally acceptable, the intention of the actor is good and he is willing to accept risk to himself in order to prevent further evil, and the good effect is sufficiently good to make up for the evil, then that act is considered justified.[18] Though there are criticisms of double effect, such as the fact that it does not account for recklessness and that intention may be given too much weight in this situation, it remains a useful measure for determining proportionality.[19] [20]

Along with proportionality, the issue of NCI and supreme emergency are also important considerations of jus in bello. NCI posits that a soldier “can only justify the killing of people we already have reason to think are liable to be killed.”[21] Meaning the only people that can morally be killed in war are those who contribute to combat, usually classed as combatants and those who do not do so as non-combatants. The idea that this results in the disproportionate targeting of women does not take in to account the fact that all military age men are often classed as military deaths instead of civilian casualties.[22] Also who should be considered a combatant is highly disputed. Some would say that even combatants are essentially innocent and should not be killed, or that non-combatants that work in military factors may be killed, and there are even issues concerning the innocence of army medics and soldiers at rest.[23] [24] [25] It is also possible, even for those that believe in a strict version of NCI, that this rule can be violated in a supreme emergency. In a situation where the danger is imminent, unusual, and horrifying it may be possible to violate NCI in order to prevent the danger.[26] Though supreme emergency typically refers to extermination or mass enslavement, the wording of unusual and horrifying allows for differing interpretations. Like most other elements of just war theory, the supreme emergency exemption is far from agreed upon. Allowing such an option could lead to its exploitation by those with questionable morals and it can be argued that no entity has the authority to make such a decision.[27] [28] With the aspects of both jus ad bellum and jus in bello laid out, a case can be made for why these concepts are applicable to counterterrorism.

As a framework for counterterrorism, just war theory raises several problems for the morality of counterterrorist policies while providing justification in other areas. In order to see how moral a counterterrorist action is to begin with, jus ad bellum criteria can be applied. Arguments of self-defense may be expanded to the ideals and interests of the U.S in order to justify any number of policies, or this could be seen as stretching the notion of self-defense too far.[29] The same jus ad bellum criteria needed to determine a just war can also be applied to domestic intelligence gathering to see if current U.S policies have overstepped their bounds.[30] Double effect can be used to measure the morality of targeted killings and the resulting collateral damage. It is even possible, though maybe not convincing, that a supreme emergency argument could be made to defend enhanced interrogation techniques used against prisoners at Guantanamo Bay. More in depth arguments for the morality of these actions will be made later, but it is clear to see that just war theory provides a useful shell for understanding the morality of counterterrorist policies.


Morality and counterterrorism is a relationship which has been explored before, and it is important to situate my findings within the relevant literature. As said before I will use an analysis of individual counterterrorism methods and case studies on both U.S domestic counterterrorism and foreign counterterrorism in order to evaluate the morality of these issues. These topics will bring up several key themes which have received attention. The PATRIOT Act and domestic surveillance, the preventive nature of the Iraq War, torture, and automated warfare have all been discussed in terms of just war theory before. In order to show where I will be adding to the established literature, it is first necessary to offer a critical view of the relevant authors.

Domestic surveillance in the U.S, as legalized by Section 215 of the PATRIOT Act, has been the subject of much moral analysis.[31] Some authors advocate for both its morality and necessity. Hadjimatheou argues that untargeted surveillance works as an effective deterrent to terrorism, and is morally preferable to targeted surveillance as it avoids racial profiling.[32] Deflem and McDonough also defend widespread surveillance because there have been few, if any, cases where the NSA has abused their power and that fear of surveillance is part of a flawed “civil liberties culture.”[33] Though interesting, these arguments have some significant faults in them. The possibility of untargeted surveillance being a deterrent to terrorism does not account for the fact that these programs were supposed to be a secret, and had been until the Edward Snowden leaks which revealed the extent of government surveillance. How could anyone be deterred from terrorism by a surveillance program they do not know exists? This type of program does not necessarily avoid profiling issues as well; suspicious phone calls from Muslim people may still be flagged more frequently than the general population as surveillance would collect both names and phone numbers of callers.[34] Also Deflem and McDonough’s argument that abuses of power have not happened does not that mean that future administrations will exercise the same restraint and their criticism of a “civil liberties culture” is ludicrous as civil liberties are a key component of U.S society and the Constitution. As such these authors do not make a convincing argument for the moral necessity of widespread domestic surveillance.

However the other half of the literature which finds fault with domestic widespread surveillance presents a more convincing case, though improvements to this area can still be made. Wellman and Richards both point out that a surveillance system can be justified as long as the amount of surveillance used is proportional to the possible threat, and both note that the threat to the U.S is not great enough to justify the widespread violation of privacy.[35] [36] Mueller makes a similar argument in that the threat of terrorism is greatly overblown and the surveillance measures taken to stop terrorism are often unnecessary.[37] The only issue with some of these arguments is that there is no set weight for moral values and sometimes it is not clear when the scales tip in favor of security or privacy. However the fact that mass surveillance programs have only prevented a single terrorist plot, which consisted of a donation to Al Qaeda, suggests that there is not enough of a threat to justify such widespread privacy violations.[38] Though it is not quite emphasized in Wellman, Richards, and Mueller, the necessity of success needs to be given the highest priority for justifying surveillance. As Harman points out, widespread surveillance programs are actually hurting counterterrorism efforts as they have started an encryption war with private companies such as Google and Facebook.[39] It is the importance of success that should be focused on. An immoral action may be justified if the good, or success, which is achieved, balances out the harm that it does. This side of the literature which criticizes widespread domestic surveillance as morally wrong presents a stronger case than its counterpart, though the chance of success needs to be emphasized.

Since the Iraq War was partially justified by the necessity to prevent terrorism, the preventive justifications of this war have been seen as an issue of counterterrorism and morality. Cole and Kaufman both contend that the preventive reasons used to justify the Iraq War were unjust, Cole doing so because the Iraq War has created a breeding and training ground for terrorists and Kaufman believing that only the U.N Security Council has the legitimate authority to fight a preventive war.[40] [41] Cole’s suggestion that the Iraq War has only increased the number of terrorists seems reasonable as the number of terrorist incidents in the Middle East increased by 300% from 2003-04.[42] However this does ignore whether or not the reasons for war were actually just and instead focuses on the results. Kaufman’s belief that only the Security Council can wage a preventive war does not make it clear where along the line from preemptive to preventive that a state is still allowed to wage war. A more convincing argument comes from Luban, who argues that a more strict preventive doctrine for states prevents unnecessary wars but would still allow states to protect themselves from future threats.[43] The possibility for preventive wars to go wrong seems more likely as the threat is further away; as such Luban’s stricter doctrine provides a useful guideline. However Cole’s emphasis on the success of the Iraq War is a key requirement when considering the moral justifications of a war. It is the combination of Cole and Luban’s view which presents the most reasonable set of guidelines for evaluating the morality of the preventive measures which caused the Iraq War.

Just war theory has also been applied to torture as a method of counterterrorism, a method referred to as “enhanced interrogation techniques” by the U.S. Some have argued that torture is a regrettable but necessary tool of counterterrorism. Both Lauritzen and Bellamy believe in the necessity of torture, Lauritzen maintains that it is necessary to embrace the “dirty hands” tradition of just war when fighting terrorists as they represent an extreme threat and Bellamy believes that sometimes there may be a supreme emergency exemption for torture.[44] [45] The problem with both of these is that they do not accept the ineffectiveness of torture, Bellamy brushes it aside by saying that “torture always works” and “torture does not work” are equally ridiculous statements.[46] However accounts of FBI torturers, such as Gunaratna, show that torture has not provided the U.S with any information that had not already been gained through traditional interrogation.[47] Cole takes up this argument in the terms of proportionality, believing that torture is basically an assault on the defenseless.[48]


[1] Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), 3

[2] A.J Coates, Ethics of War (Manchester: Manchester University Press, 1997), 77

[3] James Kaminski, The Permissibility of Terrorism (Essay, University of Edinburgh, 2015), 2

[4] “U.S Intelligence Budget Data”, accessed April 18, 2015

[5] Neta Crawford, “Just War Theory and U.S Counterterror War” Perspective on Politics (2003): 7

[6] Laura Sjoberg, "Gendered Realities Of The Immunity Principle"International Studies Quarterly (2006): 28

[7] Lucinda Peach, “An Alternative to Pacifism? Feminism and Just War Theory” Hypatia (1994): 155

[8] Laura Sjoberg & Jessica Peet, "A(nother) Dark Side of the Protection Racket."International Feminist Journal of Politics (2011): 171

[9] Sjoberg, Gendered Realities, 905

[10] Crawford, Just War, 7

[11] Henry Shue & David Rodin, Preemption: Military Action and Moral Justification (Oxford: Oxford University Press, 2007): 144

[12] David Rodin, War and Self-defense (Oxford: Clarendon Press, 2002) 138

[13] Crawford, Just War, 7

[14] ibid

[15] Rodin, War, 124

[16] Crawford, Just War, 7

[17] Nagel, Thomas "War And Massacre." Philosophy And Public Affairs (1972): 131

[18] Walzer, Unjust Wars, 129

[19] David Rodin, "Terrorism Without Intention"Ethics (2004): 763

[20] W.S. Quinn, “The Doctrine of Double Effect” Philosophy and Public Affairs (1989): 337

[21] Walzer, Unjust Wars, 144

[22] "Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will”, last modified May 28, 2012

[23] Asa Kasher & Yadlin Amos, “Military Ethics of Fighting Terror: An Israeli Perspective,” Journal of Military Ethics (2005): 18

[24] Walzer, Unjust Wars, 146

[25] M.W Brough, ”Combatant, Noncombatant, Criminal: The Importance Of Distinctions."Ethical Perspectives (2004): 186

[26] Walzer, Unjust Wars, 253

[27] C.A.J Coady, "Terrorism, Morality, And Supreme Emergency."Ethics (2004): 787

[28] Christopher Toner, "Just War And The Supreme Emergency Exemption."The Philosophical Quarterly (2005): 586

[29] Crawford, Just War, 15

[30] Carl Wellman, Terrorism and Counterterrorism a Moral Assessment (Dordrecht: Springer, 2013), 81

[31] “USA PATRIOT Act”, accessed April 18, 2015

[32] Katerina Hadjimatheou, "The Relative Moral Risks of Untargeted and Targeted Surveillance."Ethical Theory and Moral Practice (2013): 190

[33] Michael Deflem, “International Police Cooperation and Counterterrorism."The Annals of the American Academy of Political and Social Science (2006): 243

[34] Jane Harman, “Disrupting the Intelligence Community” Foreign Affairs (2015)

[35] Wellman, Counterterrorism, 81

[36] Julian Richards, "Intelligence Dilemma? Contemporary Counter-terrorism in a Liberal Democracy"Intelligence and National Security (2012): 764

[37] John Mueller, “Is There Still A Terrorist Threat?” Foreign Affairs (2006): 6

[38] “Do NSA’s Bulk Surveillance Programs Stop Terrorists?”, last modified January 13, 2014

[39] Harman, Intelligence Community

[40] David Cole, “Respecting Civil Liberties and Preventing Executive Overreach” in Debating Terrorism and Counterterrorism ed. Stuart Gottlieb (Washington, D.C: C.Q Press, 2010), 355

[41] Whitley Kaufman, "What's Wrong with Preventive War?"Ethics International Affairs (2005): 33

[42] “Global Terrorism Database”, accessed April 18, 2015

[43] David Luban, "Preventive War"Philosophy Public Affairs (2004): 209

[44] Paul Lauritzen, "Torture Warrants and Democratic States"Journal of Religious Ethics (2010): 96

[45] Alex Bellamy, "No Pain, No Gain? Torture And Ethics In The War On Terror"International Affairs (2006): 124

[46] Bellamy, Torture, 126

[47] Rohan Gunaratna, "The Post‐Madrid Face Of Al Qaeda"The Washington Quarterly (2004): 64

[48] Darrell Cole "Torture and Just War"Journal of Religious Ethics (2012): 47

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The Morality of Counterterrorism. A Just War Theory Analysis of U.S Counterterrorism after 9/11
University of Edinburgh
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morality, counterterrorism, just, theory, analysis
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James Kaminski (Author), 2015, The Morality of Counterterrorism. A Just War Theory Analysis of U.S Counterterrorism after 9/11, Munich, GRIN Verlag,


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