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Herb Ely writes that, because of the rise of terrorism and the ability of terrorists to commit acts of mass destruction, the just war doctrine may be out of date. 

The end of the cold war and the lethality of large scale mechanized warfare make big wars unlikely. Capitalist democracies avoid war with one another. They are unwilling to put their people and economies at risk. Other countries and groups lack to conventional military power to challenge the Western Democracies. Fueled by zeal, they mount unconventional threats to conventional power. In military terms this is known as an asymmetric threat….

Due to the changing nature of conflict, traditional just war criteria are not easy to apply. Terrorists do not recognize the just war principle of non-combatant immunity. The specter of a terrorist attack with Weapons of Mass destruction has led the Bush administration to a posture of pre-emptive attack, calling into question the just war criteria of last resort.  Of their very nature, preemptive attacks must be launched in secret, calling into question both the just war criteria of legitimate authority and constitutional questions of separation of powers.

The significant new development isn’t that terrorists don’t recognize or respect some or all of just-war doctrine.  (After all, no wars or very few would break out if every nation respected just-war doctrine throughout history.)  Nor is it the seriousness of the threat of mass destruction:  we have had that since World War II.  No, the significant new development is the nebulousness of the identity of the "aggressor."

There’s a pretty good primer on just war doctrine here at Catholic Answers.  It’s a good philosophy, dating back to Augustine, and has served mankind well for many centuries in the moral analysis of war.  The analogy to the right of a person to commit proportionate violence in the direct defense of self or of an innocent other has always been obvious to me.  Just-war doctrine is concisely described in the Catechism (par. 2309) as follows:

The strict conditions for legitimate defense by military force require rigorous consideration. The gravity of such a decision makes it subject to rigorous conditions of moral legitimacy. At one and the same time:

• the damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain;
• all other means of putting an end to it must have been shown to be impractical or ineffective;
• there must be serious prospects of success;
• the use of arms must not produce evils and disorders graver than the evil to be eliminated. The power of modern means of destruction weighs very heavily in evaluating this condition.

These are the traditional elements enumerated in what is called the "just war" doctrine. The evaluation of these conditions for moral legitimacy belongs to the prudential judgment of those who have responsibility for the common good.

Here’s the problem.  The common understanding of just-war doctrine, to my knowledge, has always envisioned the issue in terms of a "community of nations," with well-defined identities and territories.  The idea goes like this:  if the army of Alphaland invades or attacks the territory of Betaland, then Betaland may legitimately defend itself against Alphaland by the proportionate use of force.  Or, if Gammaland sympathizes with Betaland, Gammaland may lend its own armed forces in the proportionate use of force in the defense of Betaland.  (There is some room for debate as to what "proportionate" means, of course.)  Just-war doctrine says that Alphaland is not supposed to attack Betaland in the first place, and that Betaland cannot continue fighting once Alphaland’s offense has been neutralized, and that Betaland cannot use Alphaland’s attack as an excuse for attacking Deltaland. 

Up till now, it’s generally meant that Betaland cannot "pre-emptively" attack Alphaland.  War is a war of defense.

What’s changed?  What about the rise of terrorism makes just-war doctrine trickier to apply?

Well, for one thing, the "aggressors" are no longer, strictly, sovereign nations that have definite territory.    It’s true that sometimes they operate with the explicit or implicit assistance of sovereign nations, but it’s hard to prove, hard to be sure. Historically, some terrorist groups have behaved more like armies — the ones that have identifiable, if underground, militia organization and strike repeatedly, such as the IRA — and so just-war doctrine was a little bit more applicable.  Other "domestic terrorists" have been essentially local, so the proper response has been to treat the perps as the common criminals they are and were — think the Klan.  But that’s not true about the threats on the table today.  So when a terrorist cell strikes us — whom do we strike at, to "defend" ourselves against further attack?   Terrorist organizations can be tiny, or they can be trans-national.  Can we attack with military force a nation that has not, exactly, attacked the U. S. (or an ally), but has merely provided indirect assistance to groups that might have supported terrorists?  Would that be "proportionate" or not?  I can see arguments for both sides, and one thing is clear:  just-war doctrine does not extend very well to a world community that includes trans-national aggressors without easily identifiable leaders and armies. 

Another assumption inherent in just-war doctrine’s details is that it is fairly straightforward to distinguish between members of the aggressor’s armed forces — "enemy combatants"— and civilians.   The reason this is important is that legitimate defense is generally taken to include any reasonable act that takes a combatant out of combat:  killing him if necessary, wounding him, or taking him prisoner.  The distinction is widely recognized as important:  that’s why it’s "against the rules," so to speak, to attack hospitals (the people in them are wounded and thus already out of combat) or to mistreat prisoners of war (they are already out of combat), even though it’s perfectly okay to use deadly force up to the point of capture.  And in a just war you are supposed to avoid killing civilians when possible, and you are never supposed to attack civilians on purpose.  That’s why soldiers are supposed to wear uniforms — to protect their own civilians against being mistaken for combatants.  And that’s why it’s dirty pool to cache weapons in hospitals or to arrange for civilians to chain themselves to armaments factories.

But it’s not so obvious with terrorism.  Who’s a combatant?  It can’t just be "whoever the current administration says."  Conversely, it’s obviously not limited in real life to people who wear uniforms and draw paychecks from a national government’s military. 

(This  isn’t the first time, by the way, that the perception of a gray area between civilians and soldiers has muddied the waters.  At least some people still claim that the atomic bombing of Hiroshima and Nagasaki was justified (doesn’t work, btw.  See: ends, means)  because the Japanese supposedly trained civilians to resist physical invasion.  If you want to read some of those claims, Google "japanese civilians sharp sticks" or something along those lines.)

The third disconnect between just war and modern-war reality has to do with a big difference between traditional concepts of warfare and modern terrorism:  escalation.    Just-war theory imagines that Alphaland invades or attacks Betaland, and that said attack is a process — it starts when the first Alphaland soldier steps across the border, or when the first Alphaland plane enters Betaland airspace.   Some destruction or threat ensues, which increases and threatens to increase further;  according to the doctrine, Betaland is permitted to use force to "[put] an end to it."   The point is to physically defend the Betaland civilians, their sovereignty, and their land and other assets.    But a terrorist attack, by its very nature, relies on surprise:  the sudden strike, as fearsome as possible, on the civilians themselves and/or on the physical infrastructure — buildings, bridges, roads — of the country.   Before the armies stir and waken, the attack is complete.  No military defense can "put an end to it" because it is already over.  The only effective defense is civil defense, security measures, police work, that kind of thing.  And civil defense is not the provenance of just-war theory. 

We — I don’t mean just the U.S. here, any nation is at risk, the whole "community of nations" mentioned in the doctrine is at risk — live under an existing implicit threat of lasting, grave damage by an unknown aggressor — specifically an attack without warning from some group that has managed to get its hands on a great deal of nerve gas, or a suitcase nuke.   The damage is not certain, it is only feared.  Ordinary application of just-war doctrine therefore forbids the use of military force.    But we’re talking about an extremely serious threat, one there comes from a worldview that doesn’t follow "the rules" at all.  The temptation to jump ahead to pre-emption is therefore very strong.  And maybe it is justified.  I don’t know.  The point I am making is that traditional just-war theory doesn’t seem to cover the current situation.

The only logical way to justify military force in this situation, short of revising just-war theory somehow — which is probably called for, since at the very least the doctrine requires clarification — is to redefine aggressor.  (And even if logical, it still may not be morally right.  This is why we need a clarification.)  Instead of being a single sovereign group, containing individuals who may be enumerated according to a simple rule, "aggressor" becomes the community of aggressors, perhaps by analogy to the community of nations. 

To use force, the damage must be lasting, grave, and certain.  Under this scheme, this part is drawn from a particular attack or series of attacks that was completed in the past.  9/11 is sufficient:  the effects have lasted, the damage was grave, the damage has already happened and thus is certain.  But also, there must be serious prospects of success.  Obviously, there is no prospect of success at preventing an attack in the past.  But there are prospects of success at preventing future attacks via pre-emptive strikes against other terrorist groups, or against nations that may help them or harbor them, even if they were not involved in any previous terrorist attacks against us.

The novelty here is that the different requirements for military force, according to just-war theory, are said to be fulfilled in total if all aggressors or potential aggressors are lumped together as a single threat.   It is nearly as if Betaland had claimed, "Alphaland has invaded me in the past; therefore we will invade Gammaland and destroy their armaments before they can invade us."

This is how we get a bizarre concept like a "war against" an -ism, in this case terrorism.  We can’t get away with naming any specific group, because the group that surprises us with an attack tomorrow may be one whose name we never knew.  The whole thing is a stretch, a rationalization, relying on emotional appeal instead of careful moral analysis.  It is an understandable one, because all our theories — on which the moral analysis is based — are out of date.  It is a sort of stop-gap measure, made by people whose intentions are, I believe, good. 

But it would be better to re-engage our minds and consider how to apply moral principles to the existing situation.  It would not entail throwing out just-war doctrine, just backing up to the underlying principles, considering the new conditions under which it plays out, and then re-deriving "just war" under the new circumstances.  The whole thing sounds like a fertile ground for many Ph.D. theses at Catholic think-tanks.  I would be willing to bet I’m not the first person to have posed this question.  Does anyone know of any attempts to answer it?