Preemptive martial law

World peace in the past two decades was chiefly an architecture of Pax Americana. But US global imperiousness earned it two monumental conflicts that changed its attitude toward war.

In the 1990s the United States fought the Gulf War, routing out Saddam Hussein’s Iraqi forces which invaded—in blitzkrieg fashion—neighboring country Kuwait. At the dawn of the 21st century, the United States experienced, for the first time, war in its own backyard—the infamous bombing of the Twin Towers on Sept. 11, 2001, with passenger airplanes used as missiles. The United States has a rich history of fratricidal wars, but never with an imported one until the tragic 9/11 bombings in the city that never sleeps. It has since been fighting terrorism on its shores, and elsewhere that US interest exists.

The Gulf War saw the birth of the Powell Doctrine, mainly derived from the war doctrine of then US Defense Secretary Caspar Weinberger, a former superior of Gen. Colin Powell. It basically states that whenever the United States needs to go to war, it must have an objective consistent with its national interest. Once involved in war, it must accomplish such an objective in the shortest time possible, and get out of war the soonest possible.

The implementation of the Powell doctrine calls for the deployment of war resources more than is necessary in order to overwhelm the enemy, accomplish the objective, and get out of war immediately. The Kuwait War is touted as a 100-hour war.

The post-9/11 belligerent engagements of the United States saw the emergence of the Bush Doctrine—an improvisation on the Powell doctrine. The Bush doctrine is basically characterized by unilateralism and preemptive strikes. It is hinged on the “harm them before they harm us” principle. Since the term of the 43rd US president, preemptive war has been part of US foreign policy—an approach involving a small carrot and a big stick.

The success of the 9/11 guerrilla-style operations emboldened global terrorism. And it has reached Philippine shores. What happened in Marawi City in the recent past is a semblance of war fought with a scorched-earth strategy by both sides of the conflict. There were no neutral observers, only casualties and collateral damage.

Domestic terrorism with a foreign element besieges the country—a threat that poses a clear and present danger—and keeps the administration’s hands full. The 1987 Constitution did not foresee this kind of challenge to the country’s survival. While terrorism may be conveniently classified as lawless violence, there is more than meets the eye to such a classification. Terrorism is far worse, and more dangerous, than invasion or rebellion—the traditional triggers for martial law.

If the Constitution prescribes martial rule as a cure for invasion or rebellion, why cannot the same formula serve as antidote to a greater, and more serious, threat to society? Terrorism is a continuing challenge to authority, and the absence of a shooting war does not mean terrorism is nonexistent.

The value of any constitution is not in being stuck in the past, but in the ability to address future conditions, including those not envisioned by its framers. In the reading of a living constitution, something might be found in its spirit to justify nipping terrorism in the bud with preemptive martial law—a contemporary strategy in combating such threat.

The preemptive fear of military abuse in a regime of martial rule is admittedly valid and backed by empirical evidence of some four decades ago. Nonetheless, the actual basis for such fear does not exist in present times, and it is even belied by the Marawi experience. Human rights abuse can be avoided, or at least minimized, by an alert citizenry, vigilant media, an independent and robust justice system, and sensitive and responsive congressional oversight.

Frank E. Lobrigo practiced law for 20 years. He is a law lecturer and JSD student at San Beda College Graduate School of Law in Manila.