Due to the press of a deadline for something else, I am not able to comment as fully as this all deserves, but I wanted to flag this morning’s editorial in the Washington Post, essentially defending and, in some ways, extending the Obama administration’s position on targeted killing, whether using drones or human teams, including American citizens under certain circumstances.
[DOS Legal Adviser Harold] Koh correctly asserted that the 2001 Authorization for the Use of Military Force, international law and the country’s inherent right to defend itself put it on solid legal footing for such attacks, including those outside traditional battlefields … In his [March ASIL 2010] speech, Mr. Koh did not address whether U.S. citizens could be the targets of these strikes.
The American Civil Liberties Union took up Mr. [Anwar] Aulaqi’s cause last week, arguing that it would be unconstitutional for the government to carry out such a strike against an American, especially one located outside a recognized war zone.
U.S. citizens who take up arms against the country are enemy combatants and are indistinguishable on the battlefield from other belligerents. The political, legal and moral calculus of addressing the threat posed by an American enemy combatant such as Mr. Aulaqi changes when he is located outside a recognized war zone. The discussion should be — and we trust would be — dramatically different if he were residing in an allied country willing to use lawful means to capture and turn him over.
But when a target is hiding in a lawless state or in one which refuses to cooperate in his apprehension, other alternatives must be considered, including targeted strikes. The decision to target an American must be a last resort, used only when other lawful means of apprehending the person are unavailable or too dangerous to pursue. Such decisions should be approved by the president, and the bipartisan leadership of congressional intelligence committees should be notified in advance. Mr. Koh said in his speech that this practice is already followed, even in cases involving non-citizens.
I agree with the fundamentals of the editorial; so does Ben Wittes, commenting at the new – and I suspect soon to be indispensable – national security blog, Lawfare. Not everyone does, to be sure; over at Opinio Juris, my co-blogger Kevin Jon Heller argues that, at least outside of a recognized war zone, an American is entitled to adversarial judicial process, and adds:
We would never allow a state to execute an American citizen simply because the Governor has decided that he was guilty of capital murder (or, worse, that he intended to commit capital murder at some unspecified point in the future); such an execution would be a paradigmatic violation of due process. So how can anyone argue in good faith that due process permits the targeted killing regime adopted by the Obama administration?
There is, of course, an easy and fair solution to this problem: require the government to obtain judicial authorization for a targeted killing by proving, in an adversarial hearing, that the American citizen has committed a capital crime. If the government has reason to believe that notifying the target of his status will cause him to disappear, it can appoint counsel — perhaps the ACLU or the CCR? — to represent him in a secret proceeding.
It’s an interesting scenario – CCR Michael Ratner representing a gone-missing-in-Yemen Aulaqi, getting a chance to review the government’s secret evidence, being able to review the secret methods of secret evidence collection in a secret proceeding, not only the contents of which presumably need to be kept secret but the very fact of the proceeding as well? I wonder what the internal reaction to this scenario would be inside Koh’s shop at the State Department, let alone at DOJ, DOD, NSC, DNI, or CIA. But now a couple of final comments which go to issues that haven’t been so much discussed.
First, if one reads the ACLU-CCR filing as well as the Washington Post opinion piece by the two advocacy groups which has also been discussed at Lawfare and Opinio Juris, it is hard not to notice that the underlying argument is only secondarily about an American citizen being targeted – and primarily about the idea that an armed conflict in a legal sense is necessarily geographically bounded, limited to particular battlefields and acknowledged “theatres of conflict.”
On the citizenship point, one understands the problem – the progressive left of which these groups are a part tend to put no weight on citizenship much of the time, treating it as a morally accidental and therefore morally suspect category – except when it comes time when it can be invoked to offer protection. (One might regard this as a theory of citizenship premised on the view that it promises only goodies, and is merely a mechanism for internalizing benefits and externalizing costs. As with most situations of continuous moral hazard, such a conception can’t really last.) At the end of the day, the advocacy groups see the citizenship issue merely as a strategic argument for protecting a group (Americans) that has no actual special moral claim. And so, whatever the argument over targeted killing are at any given moment to advance the cause of prohibiting them, the advocacy work won’t be done until it also addresses the presumptive human rights of non-Americans equally. Citizenship is merely strategic.
Second, going to the geographic definition of war as a legal concept. This idea that armed conflict as a matter of its legal conception is geographically limited in this way has gained currency primarily from the writings of the International Committee of the Red Cross’s Nils Melzer, who so argued in an important book, Targeted Killing in International Law. And also Notre Dame law professor Mary Ellen O’Connell, who has argued this proposition (as well as an associated claim that all participation by CIA personnel in the use of force is an international crime). I cannot say that these claims – although heroically urged by the advocacy groups and their academic allies – have a basis in the law of war as the US (or really, leading war-fighting states) has traditionally understood it. Certainly the State Department, under Harold Koh, no less, does not even entertain it. And even military lawyers who are very far from defending the Bush administration’s war on terror do not endorse the “geographical” limitation. (I have a complicated legal view of all this, related to self-defense and armed conflict, but not one that really matters for this purpose.)
Rather, the customary view of the US – and the traditional view of war-fighting states – has always been that the fight can lawfully go wherever the participants go. It goes where they go. “Battlefield” and “theatre of conflict” are not legal terms in the treaty law of war, not as limitations on the armed conflict itself. The law of war accepts as a practical reality that the armed conflict is where hostilities happen to take place, which means, of course, that the armed conflict is a reflection of hostilities and hostilities can be undertaken as a matter of jus in bello where the participants are. The reason for this traditional rule is obvious – if the armed conflict is arbitrarily limited in this way, then it invites combatants to use territory outside of the “armed conflict” as a haven. Under some circumstances, for diplomatic or other political reasons, a state might choose not to attack even though participants are taking haven, but the reason is not a matter of the law of war jus in bello.
The ACLU-CCR view acknowledges (at this point in its advocacy campaign, anyway) that a US citizen might be lawfully targeted – not to put too fine a point on it, and a note, per Orin’s earlier post, to judicial clerks – without the permission of Proconsul Kennedy, provided that he be on an “actual” battlefield as the ACLU legally defines it in its own way. That being the ACLU’s view for the nonce, then the geographical distinction is crucial as a matter of law. Within it, the US citizen can be treated as a combatant like any other; outside of it, then in the ACLU and CCR’s view, constitutional rights follow the citizen.
It is important to understand, then, that the ACLU and CCR’s advocacy position is not limited at all to US citizens – it is to impede targeted killing by requiring, among other things, the permission of a Federal judge at a minimum, including for non-US citizens. Since it seems, as a matter of political advocacy at least today, a bit of a stretch even for the ACLU or CCR to try and argue that an American shooting at US soldiers in Afghanistan is owed a judicial hearing, the crucial premise is to separate out those “active” war zones as a matter of law from places where constitutional due process meted out by a federal judge obtains.
The citizenship issue is best understood, then, as a stalking horse for a larger advocacy strategy in which, in the case of US citizens, constitutional rights follow US citizens even beyond territorial borders – a questionable proposition, in my view, if that is supposed to mean “all” or even “all important” ones. (There are many reasons why territory matters in the existence of constitutional rights – the actual exercise of actual police powers over the national territory, versus Yemen or Somalia, for one thing; it is partly, but not just a formal concept about sovereign territory. The Post editorial dealt with that correctly, in my view.) And in the case of non-citizens, outside of what the ACLU defines as the legal armed conflict zone, full human rights law applies on the ACLU-CCR, to render the targeted killing an extrajudicial execution; likewise, in my view, a questionable proposition. But in the discussion of the current ACLU lawsuit, I think the fundamental premise, and the most dubious one as a matter of law – geographical limits on the legal state of armed conflict – has been somewhat passed over as people have argued instead about citizenship.
Third observation – why the assumption that in everything, including crucial issues of national security abroad, there is always a role for the Federal judiciary? The Washington Post editorial emphasized, correctly, in my view that indeed a US citizen was deserving of greater scrutiny in deciding whether or not to target; I deliberately use “scrutiny” as a non-legal term rather than “due process.” The Post was seemingly careful not to suggest that this scrutiny should be that of a judicial process or Federal judge. Rather, the Post quite correctly, to my mind, emphasized that this consideration should be built into the intelligence oversight process – some kind of mechanism to ensure that the fact of citizenship has been acknowledged and a heightened evaluation made.
The WP says that the bi-partisan intelligence committees should be informed – a matter with which I could not agree more, on this as well as other matters involving Congressional oversight of the intelligence community. But there is a special salience here. Because in these targeted killings and other intelligence actions, officials tasked to carry out these missions need to have assurance that they will not be scapegoated afterwards. They do not have it now. A crucial political mechanism is to ensure that the intelligence committees have been fully and completely informed – so that there can be no later deniability as to what Congressional leaders were informed in secret.
I would write that as an amendment – perhaps; I could also be persuaded putting anything in writing is merely an invitation to judicial intervention – into USC 50. This would be partly to make clear both that the process is vested in the political branches as a matter of national security, but that in the case of Americans abroad and possibility the subject of forcible actions by the actors in the “intelligence community,” the President shall, in the lawful exercise of his discretion, take into account that the person is American. But it would also be to say explicitly that nothing in the exercise of that discretion confers any substantive rights on any individual and that the judiciary has no power to review such exercise of Presidential discretion.
As various people have pointed out, the current ACLU lawsuit is not likely to go anywhere. From the advocacy point of view, that is not really the point. It is instead to keep create as much legal uncertainty as possible by raising the possibility that at some point down the road, perhaps some Federal judge will decide to entertain these possibilities, and hold some CIA official liable for something done years before – does any, these days, think that we are in a period of settled institutional views on liability? If anyone thinks that even a small amount of legal uncertainty for individual officers involved does not have consequences, they should think again. Leveraged legal uncertainty affects behavior.
Moreover, the US government, under any administration, is perennially unable to see the larger advocacy campaign – this as well as other ones. They are textbook examples, whether one agrees with the cause or not, of The Logic of Collective Action; they look to the ten year framework, and they understand something that seems to elude too many law and economics scholars, viz., the framing power of legitimacy. Hence the current formulation of the ACLU lawsuit – execution without trial of an American citizen abroad by his government. One might think that “execution without trial” tendentiously presumes the conclusion, but it has been faithfully picked up and repeated by numerous journalists and commenters as though it were the obvious starting point rather than a tendentious conclusion.
When I talk with government lawyers about this public advocacy issue, however, their response tends to be … but Harold Koh already addressed this in his speech! It’s been settled, already! But if you are engaged in an advocacy campaign for the long run, Koh merely gave momentarily the wrong answer, and the task is to endlessly reframe until everyone has forgotten what he said and what’s left is, “execution without trial.”
Finally, the long march of advocacy groups through the institutions puts a greater importance on that least-impressive branch of government, the US Congress. It needs to get involved – to take up its responsibilities as one of the political branches to set the most basic terms of national security.
But for a sharply contrary view to all of this – a view that, when contrasted with this or with Harold Koh’s views, shows just how much these basic conceptions of national security are today ships passing in the night – read Kevin’s (several) posts at OJ as well as Ben’s comments at Lawfare to which Kevin is partly offering a reply.
Benjamin Davis says:
I would suggest that the domestic imminence standard that Ben Wittes referred to in his Silver Spring situation and the standard for an American overseas should be the same. You do not have that imminence US government – you do not get to kill him/her Us government.
No doubt others feel that we should slip down the slope a bit from the American taking up arms. Of course I will stipulate that an American killed around clear targets, even if the American is completely innocent, can very well be collateral damage under the “wrong place, wrong time” realities.
There are options available:
1) kidnapping the person a la Alvarez-Machain to bring him back to stand trial in a domestic court. The question is whether the evidence is sufficient to get a conviction (“more likely than not” standard evidence vs. “beyond a reasonable doubt” standard evidence).
2. Encourage the foreign government to arrest him under their law based on the evidence supplied. Maybe put the guy in a position so that he commits a crime in that country (like some of the cases we have seen developed in this country against terrorists). See this Mr. Mobley case http://www.washingtonpost.com/wp-dyn/content/article/2010/09/04/AR2010090403334.html?referrer=emailarticle
where it sure looks like the guy is up a creek without a paddle. I would be curious to know whether the US is asserting diplomatic protection to make sure the guy gets a fair trial. I mean it sure looks like he has more at risk than a Singapore caning.
3. Encourage the foreign country to turn the American guy over to the United States. If we can not charge the guy, at least we can revoke his passport I would think (though there are others who can verify this).
4. FISA style watching of the guy/gal for as long as we think he is a problem.
5. Twisted stuff the CIA is good at like making the guy appear to be a CIA asset so that the people he associates with that we think are bad persons will kill him. Don Cheadle’s movie Traitor is really very interesting. I tell my Muslim friends, by the way, that if they are around someone who is espousing violence against the United States, assume they are a US government agent. We went through this in the civil rights movement in the mid-60′s. Nothing new under the sun.
Best,
September 6, 2010, 3:11 pmBen
Chris Travers says:
The idea that this sort of thing shouldn’t be geographically limited strikes me as extremely dangerous, essentially stating that the executive could direct, for example, the CIA to assassinate political enemies while on vacation in the UK or Canada and claim they were terrorist agents if it ever came out. This sort of policy, if it is not strictly limited through active judicial proceedings is a perfect recipe for tyranny. Some people think that tyrants aren’t as bad as non-state terrorists. I disagree with them.
I could see the argument that lawless parts of Yemen are geographically part of the battlefield. However, I reject the basic notion that there is an inherent executive power to kill Americans which are deemed a danger to the state without a trial.
September 6, 2010, 3:15 pmExternality says:
I am wondering where this concept ends. Al-Aulaqi’s crime seems to be political: urging others to take up arms against the United States and supporting, through speech, those who are currently doing so.
During the Vietnam War, for example, many prominent leftists went to North Vietnam and did the same thing. Jane Fonda infamously went to North Vietnam, and tried to aim a working Soviet-made 37mm antiaircraft gun that had been used against American aircraft while surrounded by piles of ammunition. http://www.1stcavmedic.com/jane_fonda.htm She then went on to make radio broadcasts denouncing American officials and military personnel as “war criminals” and urging soldiers to disobey and mutiny against their officers. Later, she ridiculed American POWs who (accurately) complained of being tortured at the Hanoi Hilton.
My question is: would LBJ or Richard Nixon have been justified in declaring Jane Fonda an enemy combatant and having the CIA or Special Forces execute her, without trial, during her trips outside of the United States?
This question is not hypothetical: Fonda’s conduct was at least as egregious as Al-Aulaqui. Under current US law, for example, the definition of “weapon of mass destruction” has been expanded from NBC-type weapons to homemade bombs capable of inflicting less damage than the 37 mm high explosive, armor-piercing, or incendiary shells Fonda had control of. http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000921—-000-.html The Viet Cong, like the Taliban and Al-Qaeda, were illegal combatants being supported by a country bordering on the war zone. (North Vietnam for the VC, Pakistan for the Taliban/Al-Qaeda)
September 6, 2010, 3:39 pmAguirre says:
My sense is that the ACLU focuses so much on the American citizen angle because it highlights how few (no?) limits the government puts on this power. As you point out in this post, citizen/non-citizen is probably not the right distinction.
Nevertheless, I find it hard to believe that the president has the power to legally order the assassination of anyone as long as the assassination can be carried out outside the U.S. and the president claims that they are a terrorist. The president’s determination of course is unquestionable as it will surely be based on secret evidence.
If we are going to have targeted killings we need a better limiting principle than “trust the president”.
September 6, 2010, 4:02 pmGuy says:
Is this really the ACLU’s view? I haven’t read their statements, but I would think their opinion is similar to mine: the theatre of war is geographically limited to an area of urgent necessity, and extra-judicial killings outside of it are unlawful and Constitutionally prohibited. The citizenship argument just makes it easier to pick up allies in this position, it’s not really relevant to the correct analysis (I don’t see any reference to citizenship in the Due Process Clause).
September 6, 2010, 4:12 pmJohnF says:
I think the critical point is that other branches of government are as capable as our courts of making tough decisions, even those affected by the Constitution. We must ask whether it makes more sense in wartime to invoke the lengthy process of the civilian courts or the faster response of the military/executive. To me, it is very clear that I do not want the civilian courts involved in this, much less as one commenter above suggested, with a full evidentiary hearing to conclude before battlefield action can be taken.
Needless to say the situation would be different if we were not at war, but we are.
September 6, 2010, 4:27 pmfrank lee says:
Re the Fonda question” above:
Should a distinction be made as to the fact the Viet Cong didn’t target American non-combatant citizens, or at least Stateside civilians, as do Islamist terrorists who also serve as, and/or certainly with the support of, non-uniformed fighters intent on killing US soldiers in theater? Both the Cong and Taliban-Qaeda-etc. cells do kill indigenous civilians, however– contractors and humanitarian workers, too.
I’m not convinced such a quibble would matter morally. Fonda’s pro-enemy propagandist conduct was reprehensible and materially damaging, at least morale-wise. Yet, in the court of public opinion (not that of most military), Fonda shouldn’t even have been formally indicted much less assassinated, on the (war protest) grounds that one man’s treason is another’s free speech, a “principle” espoused by most Democrats during the Bush years.
Now, key Democrats are scrambling to defend an aggressive posture wrt defining and dispatching with enemy combatants. That WaPo op-ed is sorta a wow.
September 6, 2010, 4:29 pmJC says:
I haven’t read any of the comments. Just thought I’d put in my two cents worth. I started my military career in Peshawar Pakistan in 1960. http://6937th.50megs.com/
I believed then, and I do now, that any person that advocates violence against, or the overthrow by other than peacful means, our government has effectively denounced their citizenship and therefore should be treated as any other non-citizen enemy of the US. If they can be dealt with by a hired assassin, precluding the risk of American lives, sign me up.
JC
September 6, 2010, 4:30 pmChris Travers says:
The point is that there have to be reasonable limits. If we allow the Executive to kill anyone they claim is a terrorist without trial, then we allow the army to be turned into a force for offing political enemies. If it is kept to lawless zones, I can live with that. Any other rule strikes me as dangerously incompatible with the idea that the government is suppose to respect due process of law before killing those with Constitutional rights.
The political process is inherently incapable of acting as a check against the powers of the military were they to be directed at dissenters.
September 6, 2010, 4:31 pmPraetorius says:
Obtain judicial authorization in an adversarial hearing?
And then what, the murdering terrorist turns himself in?
Lunacy…..and quite frightening that a legal professional would even offer such a stupid idea.
September 6, 2010, 4:37 pmPraetorius says:
If Fonda had been killed in an airstrike, would it have been murder? I think not.. She took herself to a war zone, and assumed the risk. Her operating an enemy weapon clearly was treasonous, and she acted as an enemy combatant, her intentions notwithstanding.
It’s a damned shame that an ArcLight mission wasn’t in the neighborhood….
September 6, 2010, 4:40 pmPat H. says:
I think Mr. Anderson proves that not only has the US government become the enemy of all Americans, it also has plenty of advocates of that position.
Proof that the US government must die so America and Americans may live.
September 6, 2010, 4:41 pmChris Travers says:
Is there a difference if the airstrike was targeting Fonda vs whether she was merely collateral damage?
Moreover how do you define a war zone in the current conflict?
September 6, 2010, 4:42 pmChris Travers says:
Or at least that the Republic is dead and we should start deifying emperors.
September 6, 2010, 4:43 pmbartman says:
So, JC, you think that anybody who “advocates”, i.e., speaks in favor of, violence against any facet of government should be summarily declared a non-citizen and then assassinated without any sort of judicial review?
Where exactly is the threshold? Is telling a cop you want to kill him sufficient to trigger this result? That’s certainly advocating violence against our government. In your world the Waco siege was a miracle of restraint by government, they should have simply dropped a daisy cutter on the Branch Davidian compound, all nice and legal because Koresh et al had effectively renounced their citizenship and were thus perfectly fair game for summary annihilation. Does this mean that Obama could dispatch a wet team to take care of Sharron Angle, who has talked about “Second Amendment remedies” to parts of government she doesn’t like. How about G. Gordon Liddy, who told his listeners to shoot anybody from the government approaching their domiciles. That certainly sounds like advocating violence against our government.
At least in your model world we can get rid of those silly, quaint and rather redundant treason laws.
September 6, 2010, 4:45 pmArthur Kirkland says:
. . . and forever, apparently, in some minds.
September 6, 2010, 4:46 pmMark Field says:
This is offensively stupid.
Flat out false, unless you mean that the “participants” are continuing to participate. The big issue in the case of Alaqui is whether he’s “participating” other than by exercising First Amendment rights.
False again. This is NOT the position, at least as I understand it. Everyone agrees that a “battlefield” can be extended if there is “participation” there. The argument is not over the “battlefield” per se, but over the attempt to define as a “battlefield” anywhere on earth someone might happen to be without reference to their actual conduct.
So much for Reid v. Covert.
For the simple reason — and I know this will come as a shock to you — the Bill of Rights limits the ability of the executive and Congress in their conduct.
Why do you hate freedom?
September 6, 2010, 4:47 pmChris Travers says:
Go back and re-read Yates v. United States.
September 6, 2010, 4:48 pmcelticdragonchick says:
So…it would permissible to have Reaper drones, SEAL teams and Delta operators killing ‘suspects’ here in the United States without writ or judicial over-view, since we are now considering all places at all times throughout the world as being part of the battlefield??
Did I understand that correctly?
September 6, 2010, 4:49 pmMark Field says:
Well said. Much pithier than mine.
September 6, 2010, 4:50 pmArthur Kirkland says:
Would any of the “unfettered administrationists” object if Obama, in a moment of
Muslim rageclearheadedness concerning national interest, targeted some of the leading warmongers and obstructionists in Congress while they were visiting Afghanistan?“National interest” and “danger to national security” are elastic concepts, are they not? Obama’s holding those cards now, and any definition that fits Jane Fonda also covers those who weaken national security by sending soldiers to die on a fool’s errand.
On a saner plane, after the experience in Iraq, the continued disregard of blowback is astounding.
September 6, 2010, 4:52 pmcelticdragonchick says:
Only losers and surrender monkey libruls worry about learning lessons from history. ‘Real Americans’(according to the American Enterprise Institute) are only concerned with victory.
///
September 6, 2010, 4:57 pmArthur Kirkland says:
As this thread grows, how about a shout-out for the overwhelming number of right-leaning VCers who are fierce advocates of limited government?
Especially all of the libertarians.
September 6, 2010, 5:01 pmGuy says:
I agree with the key stipulation that the “battlefield” is not an entirely peaceful area where a suspected terrorist happens to be standing.
September 6, 2010, 5:07 pmgeokstr says:
Targeted killing of anything, anywhere, must be permitted under the commerce clause, somehow. It seems every thing else is, at least everything that the left wants, anyway.
The target, regardless of where he is, must have thought about buying lettuce at least once, which is also grown and sold in the US, often across state lines, therefore it could affect interstate commerce. See how easy that is?
September 6, 2010, 5:24 pmLe Messurier says:
Answer: Wherever there are enemy combatants. On 9/11 the war zone was New York City and Wash. DC. and the cabin on flight 93. It has been in the London Subway, and it is wherever the actors are. Clear enough?
September 6, 2010, 5:28 pmPraetorius says:
No. And if you’re around the impact area of any munitions, you’re in it. After all, the muslim terrorists didn’t declare any ‘war zone’ when they attacked the WTC, the Pentagon, the US Embassies, or the USS Cole (among others)
To quote the Bible and Churchill, they sowed the wind, they will reap the whirlwind.
September 6, 2010, 5:35 pmnick056 says:
Well, since this isn’t the full comment Anderson could have provided were he not on deadline, I feel bereft. I was looking forward to more about how the ACLU doesn’t really believe in citinzenship as a special status, in particular — but just as a stalking horse to test how comfortable people feel about assassination.
September 6, 2010, 5:36 pmJordan J Paust says:
For an extensive inquiry into the permissibility of self-defense targeted killings, see http://ssrn.com/abstract=1520717
Jordan
September 6, 2010, 5:36 pmPraetorius says:
I was a Libertarian (big L, had the card and everything) right up until around 6AM PDT, Sept 11, 2001. Since then, I’m just a libertarian, because it became obvious to me that the Libertarians were suicidal fantasy-livers…..
September 6, 2010, 5:37 pmPraetorius says:
I was a Libertarian (big L, had the card and everything) right up until around 6AM PDT, Sept 11, 2001. Since then, I’m just a libertarian, because it became obvious to me that the Libertarians were suicidal fantasy-livers…..
Since they advocate attacking Americans, Jews, Israelis, Christians, animists, and anyone else that doesn’t agree to live their 7th-century lifestyle and moral code, that leaves quite a big area.
After all, it was the muslim terrorists that declared NYC a warzone. Washington DC. Bali. Etc…. All were more or less peaceful prior to their own actions.
September 6, 2010, 5:40 pmPraetorius says:
How many American Red Cross personnel were injured or killed in VN? How many journalists? How many medical personnel? How many aid workers? Teachers? Missionaries?
September 6, 2010, 5:43 pmPraetorius says:
As long as a muslim is trying to kill me for being a Jew? Damned right.
September 6, 2010, 5:45 pmPraetorius says:
The USSC is often wrong. For example, go re-read Dred Scott, Plessy v. Ferguson, Slaughterhouse, Wickard v. Ferguson, Marbury v. Madison, (where, exactly, does the Constitution of the US say that the USSC gets to decide ANYTHING about any other branch), among many.
September 6, 2010, 5:49 pmGuy says:
Sure, that’s fine, but what about a person living in Germany, or Bosnia, who does not appear to be up to anything at the moment, but we get a tip from an informant (who may or may not be reliable) that he’s associated with Al Qaeda, is his house the battlefield?
And who are “enemy combatants”? Is a paramilitary organization working against the Chinese government a group of enemy combatants? Obviously anyone who shoots at American soldiers, or is engaging in a terrorist act, is an enemy combatant, but what about someone who has financial links to a front for a terrorist organization? Is it at least necessary to determine that they know it’s a front?
September 6, 2010, 5:54 pmGuy says:
“The judicial power shall extend to all cases, in law and equity, arising under this Constitution”
-U.S. Constitution, Art. III §2 Cl. 1
What do you think this means?
September 6, 2010, 5:55 pmGuy says:
I have no problem with the use of lethal force in emergent situations, I’m just worried about the lack of limiting principles.
September 6, 2010, 5:59 pmPraetorius says:
So? Why does that apply to administrative functions of the federal government? Further, Article III Section II says
September 6, 2010, 6:00 pmChris Travers says:
That means we can have Predator strikes in LA and New York? Why not just go after the GOP headquarters and get rid of the opposition so that the President can do what needs to be done. We all know the GOP is a Islamist and Jihadi front anyway or at least the that the President can say so.
September 6, 2010, 6:05 pmChris Travers says:
The problem is defining “they” on more than the say-so of whoever is in power at the moment.
September 6, 2010, 6:06 pmGuy says:
Maybe I don’t understand what your problem with Marbury is, if it’s with the lack of jurisdiction, I see no objection to be had. If you’re complaining about the dicta of what it would do if it had jurisdiction, well, mandamus is a suit in law or equity, and the case clearly arose under the laws of the United States. I’m not aware of any exceptions or regulations made by Congress that would have been relevant to the decision. The only problem was that it wasn’t in the Court’s original jurisdiction.
September 6, 2010, 6:11 pmLiam says:
Did you even read the editorial that Mr. Anderson is discussing (or, at the very least, the portions he highlighted here as being in agreement with his own views)?
I suppose of the political enemies of the administration regularly decided to vacation in a country with a barely-functioning government, and then regularly refused to surrender to U.S. authorities when informed they were the target of investigation, there might be the opportunity for political abuse. But if we’re limiting this use of drone strikes, as suggested by the article (and by implicit extension, this blog post) to quasi-anarchic regions, where the alternatives of apprehension and trial are comically ludicrous (such as Yemen and Somalia), then I don’t see where this concern about malicious use against political dissent comes from (other than the usual anachronistic fear “true” libertarians have of any power that could even theoretically be abused).
(Also, I don’t mean to single out Mr. Travers, since quite a few people expressed similar concerns; his was merely the first post I saw to quote).
September 6, 2010, 6:13 pmLongCat says:
What would be the point of limiting principles? If the fear is that one day a President will start using drones to kill off political opposition, does anyone think that the threat of an injunction would deter him? If the president simply chooses to become a murderous dictator, the limiting principles of the judiciary won’t prevent it. The courts can’t save us from everything.
September 6, 2010, 6:22 pmArthur Kirkland says:
That relationship with libertarianism appears to have lost more than one letter’s switch from upper to lower case.
September 6, 2010, 6:24 pmGuy says:
The point of limiting principles would be to keep him from killing civilian friendly aliens and U.S. Citizens just because he thinks they might be terrorists. Many of those detained have since been discovered to be cases of mistaken identity or based on flimsy evidence. If he’s only allowed to kill without judicial oversight in the cases of emergencies or in response to warlike acts, those very realistic possibilities become less likely.
September 6, 2010, 6:28 pmChris Travers says:
Interesting article. It looks to me most like it is a look at the international law angles. I didn’t see much applicability to the concerns raised here. Certainly there is no problem in terms of international law if the US uses air strikes on suspected terrorist cells in Brooklyn and there aren’t if it is in Yemen either.
But what of the Constitutional angle? We are at a situation which is not a traditional one of armed conflict because there is no defined victory point. Do we abandon the safeguards of the Constitution regarding due process knowing that if we do they will forever be gone?
September 6, 2010, 6:30 pmChris Travers says:
Or worse yet, just because he wants to do so under the cover of SAYING they are terrorists.
September 6, 2010, 6:31 pmChris Travers says:
What is there to stop it? I will tell you what is there to stop it. The brave men and women of our armed forces, respecting the rule of law would be what would stop it. If we erode that rule of law, that protection erodes as well. The courts have the power of the pen, but in the end that is more important than the sword.
September 6, 2010, 6:35 pmChris Travers says:
Yes. I agree with the Wapo article generally. Mr Anderson however has however never endorsed a principle of geographic limits.
September 6, 2010, 6:37 pmArthur Kirkland says:
Jeopardy category: Discredited relics
The clue, for $200: These discredited relics made a rare public appearance in a 2010 VC thread, complete with sputtering about Jane Fonda . . .
The answer: Who are the few remaining Vietnam dead-enders, Alex?
September 6, 2010, 6:38 pmJoe says:
I flagged the below before reading Mark Field’s post, which is / sounds about as angry as it is right.
On the citizenship point, one understands the problem — the progressive left of which these groups are a part tend to put no weight on citizenship much of the time, treating it as a morally accidental and therefore morally suspect category — except when it comes time when it can be invoked to offer protection.
Is trolling about what the “progressive left” does — as if only the “progressive left” is concerned about the matters at hand & believes in various ways non-citizens also warrant protections (e.g. Rasul v. Bush, prevention of torture, et. al.) — really a way to convince people?
Why the “progressive left” or anyone would not strategically use current understandings about protected classes, even if they think the classes as secured by current law are too limited, when useful is unclear. Or, how this is somehow — as implied — hypocritical or something. Finally, the U.S. Constitution in fact gives “no weight on citizenship much of the time” actually. One time it does is protection of U.S. citizens overseas. So, when this is at issue, it is reasonable to cite it.
I was a Libertarian (big L, had the card and everything) right up until around 6AM PDT, Sept 11, 2001. Since then, I’m just a libertarian,
This seems akin to someone who doubts the existence of God when a family member gets cancer. People have cancer all the time, but this time it’s personal. Given how 9/11 has been used to justify things since then, I don’t think one should be ashamed to be a “Libertarian” since then, if you are of that persuasion.
September 6, 2010, 6:43 pmJoe says:
or is engaging in a terrorist act, is an enemy combatant
If so, it’s a pretty broad term. Too broad. I don’t think Timothy McVeigh is “an enemy combatant,” or someone who bombs a Planned Parenthood clinic or animal testing lab. They very well might be “engaging in a terrorist act.”
Heck, even merely (“merely”) shooting a solider in itself doesn’t make you an enemy combatant. It would have to be for a terrorist type reason, connected to the conflict in question. If a resident of an area we are occupying kills a solider for a gambling debt or an honor type crime, s/he wouldn’t necessarily be an “enemy combatant.”
This is far from an obscure concern — evidence has been provided of various cases that people are picked up as war criminals for basically personal vendettas or for bounty money. “Enemy combatant” is a dangerous label and can easily be used to target those for other reasons, especially “in country.”
September 6, 2010, 6:57 pmjack osborne says:
when the bullets fly, or when bullets flying is imminent, an American Citizen should leave the area if possible, otherwise suffer the consequences of being in a dangerous area, and if you are associating with people in danger of being shot, you may expect to be shot at the same time.
Even within the USA!
Regardless of what the ACLU, or anyone else says.
American citizenship does not protect stupidity, or criminality.
September 6, 2010, 7:06 pmMark Field says:
According to Gen. Petraeus, burning the Koran could put the lives of American troops in danger and damage the war effort. Obviously we should assassinate Rev. Jones. Better yet, we should use a drone attack to take out the whole Dove Center; after all, the congregation should pay the consequence for their association with someone so dangerous.
September 6, 2010, 7:11 pmDavid Schwartz says:
The men around the President are expected to follow all lawful orders he issues. We expect, and have a right to expect, that they will not follow unlawful orders.
Those near the President are both personally loyal to him and loyal to the United States of America. These loyalties, however are in tension when the President issues unlawful orders. Those who find out would be more likely to release information when it is perfectly clear that they are revealing unlawful conduct, not just threatening national security. The threat of impeachment for issuing a clearly unlawful order is very real.
Thus, the President is significantly impeded in his attempt to issue unlawful orders. And thus it is very important to establish what is and is not a lawful order — and make sure the President knows the bounds are clear.
September 6, 2010, 7:11 pmMark Field says:
Good to find jack osborne with me on my last sentence.
September 6, 2010, 7:13 pmTaking Liberty Seriously says:
No doubt “the fight can lawfully go wherever the participants go.”
What I’m not sure of is what it means to say that these targeted killings would be “legal.”
I gather that there are sites in the U.S. from which our armed forces control drone aircraft in Central Asia. Are these sites also “battlefield”? After the Fort Hood shootings, it’s not far-fetched to think that American forces and support personnel might be targeted at home. And remember, the other side has people for whom suicide attacks are an option.
If we say it’s “legal” to target “participants” wherever they are operating, is there any sense in which that idea might operate both ways, to our ultimate disadvantage?
takinglibertyseriously.net
September 6, 2010, 7:13 pmArthur Kirkland says:
OK, you changed my mind about whether we are at war with radical religiosity and should devote limitless warfare to neutralizing those who threaten our national interest. Time to bomb these extremists back to the Stone Age, where their belief system belongs.
After that smoke clears, however, I may wish to revisit the issue.
September 6, 2010, 7:37 pmLiam says:
I’m pretty sure that “the other side” already considers domestically-based service personnel, not to mention civilians, to be fair game. The proposition that Al-Qaeda isn’t using targeted drone strikes (or even suicide bombers) to kill American leaders in Washington DC because of some moral aversion is farcical. They don’t because, and only because, they don’t have drones (or competent stateside suicide bombers, as the case may be).
September 6, 2010, 8:07 pmKieth says:
I think it’s reasonable to be concerned about how this doctrine could be turned against us. After the Bay of Pigs, for example, would it have been “legal” for Cuba to assassinate anti-Castro Cubans who were involved in that endeavor? the Islamic faith routinely issues fatwas that in their mind legitimate the execution of apostates, is that so radically different?
What if a government (Iran, Pakistan) issues a fatwa that purports to legitimize the murder of Ayan Hirsi? Hirsi, of course, is not accused of any violence but this country has, from time to time, offered shelter to people who were devoutly wished dead by one or more other countries (I believe some operatives of Sein Fein made their home in this country for several years). Koh’s argument seems to be an assertion of national reach that is not compatible with a rule of law that looks beyond immediate objectives.
September 6, 2010, 9:01 pmArthur Kirkland says:
. . . while somewhere, an American-sponsored arms merchant is selling the technology (if not the drone) that will eventually make it way into the hands of someone who, at least at some point, will wish to use it against the interest of the United States.
We never learn.
September 6, 2010, 9:03 pmSoronel Haetir says:
Mark Field and others,
Do you not believe that the POLITICAL PROCESS PROVIDES JUST AS MUCH CHECK AGAINST REAL (as compared to fanciful abuses of targeting the Dove center, or U.A.V attacks in downtown Hamburg) as court hearings?
If a president were really going to order the sort of politically motivated attacks you seem to fear I fail to see how the courts would prevent it.
I also have to say that defining battlefield to be only where our enemies (setting aside who is the enemy) are currently attacking is incredibly shortsighted. That essentially declares that while recuperating from the last attack but not yet preparing for the next that you are safe. I see that being an insane message to send.
Are abuses possible? Hell yes. Would court proceedings reduce real abuses while doing anything to address actual threats? I don’t think so. I see Koh’s position here as being the best of a lousy set of options. And Congress-critters are interested enough in self-preservation that I don’t think it would take many such killings without damn convincing proof before the president was out on the street looking for a new job (although I don’t know that criminal prosecution could follow, that’s a different question). And if the president refused to accept such a political judgment, we’re all dead in the end anyway.
September 6, 2010, 9:09 pmMark Field says:
I think the Constitution bans bills of attainder for a reason.
Nobody has done that.
September 6, 2010, 9:30 pmBob (from Ohio) says:
A secret court hearing secret evidence in secret, with a lawyer “representing” the defendant without his knowledge or consent. Then this court issues a “kill” warrant or imposes a death “sentence”.
Where is this procedure found in the Constitution or even at common law? It is a mockery of “due process”, some of the form but none of the substance.
September 6, 2010, 9:48 pmTaking Liberty Seriously says:
to Liam,
I didn’t mean that, by saying targeted killings are “legal,” we might risk inviting attacks from the other side. Obviously, they don’t need us for that. The possible disadvantage I had mind was in relation to third parties, such as neutral or “non-participating” countries.
Today, if a person commits a homicide in the US, we have the ability to pursue that person at law nearly everywhere in the world. On the other hand, if a person commits a “legal” act of war in the US, it’s not so clear that neutrals would respond, or be required to respond, under international law. As a result, we may lose a significant measure of influence and ability to control events that we now enjoy when people who would attack us try to utilize other countries’ territories, banks, airlines, shipping facilities and other such amenities. We enjoy that influence precisely because, as it is now, our enemies who would strike us at home are internationally regarded as “criminals” rather than lawfully-engaged combatants in “somebody else’s” war.
I don’t mean to exaggerate the risks, but I do think there are possible unintended consequences from “legitimizing” lethal measures that are taken outside of fairly well defined theaters of war.
takinglibertyseriously.net
September 6, 2010, 9:59 pmGuy says:
Not as long as he limits the killings to people with Arabic-sounding names in third-world countries.
Heh, I guess the authority is geographically limited after all, not counting black-ops.
September 6, 2010, 10:07 pmSoronel Haetir says:
I was referring to the president ordering the assassination of members of Congress while outside the US (or inside it, as long as we are being absurd).
Mark Field,
My response would be that this is the downside to using more discriminating weapons. We have to decide on an individual basis who we are going to target. Even with that con I think it’s an improvement over firebombing Dresden or nuking Hiroshima.
September 6, 2010, 10:16 pmMark Field says:
What Bob from Ohio said.
I don’t think anyone would propose nuking parts of Yemen to “get” Alaqui, so I don’t see quite how that’s relevant. Now, if we had a good reason to nuke someplace and an American citizen happened to be there, well tough luck. But that’s not really the issue in dispute here.
September 6, 2010, 10:33 pmChris Travers says:
No. The court rulings would provide important political checks (not just the political process but also the executive process).
What I would prefer the court to do is to issue a ruling that these are legal in lawless zones, that the court has subject matter jurisdiction due to the fact that it is a clear due process issue otherwise, however. That would provide a clear line to prevent the more serious possibilities (such as assassination of political opponents, etc) while preserving effectiveness of war-waging powers.
It would depend upon the court proceedings. If the courts were to rule that this is only a war in lawless areas or where Congress has given specific authorization to use military force against a specified foreign country, then that would answer my concerns.
I think the question is what role the judiciary should play, not whether they have a role.
September 6, 2010, 10:36 pmSoronel Haetir says:
And I would think most of the important questions
here are vested by the text of the constitution in the legislature and executive, making this a quintessential area application of the political question doctrine. The courts do not generally enquirer about the process that brought a prisoner before the bench and I don’t see them getting into deciding whether the costs and benefits of particular military action justify the operation. Dealing with folks who have been captured is another matter altogether and the courts are well equipped to make those calls, should prisoners choose to challenge their captivity.
Now, I can see a potential argument that Congress has not been specific enough, although I don’t think that argument is helpful to Aulaqi. Others though, possible. And if the president had in fact gone beyond what Congress envisioned there has been plenty of time for them to correct the oversight. I think that would be a tought argument to make, however, that the actions taken have not been roughly in line with what was expected. Certainly as far as drone strikes have been concerned.
September 6, 2010, 11:48 pmKirk Lazarus says:
The traditional position (v. Second Hague Convention, 1907) has been that combatants who take refuge in the territory of a neutral should be interned for the duration of hostilities, and certainly not handed over to their enemies.
The problem I have with the hawks’ position is that they want it to be a war whenever that means they can do what they want (e.g. kill people) but not be a war when that would mean they can’t do what they want (e.g. torture people).
September 7, 2010, 2:16 amChris Travers says:
In this specific case, I would expect the courts to rule that it is a political question, but I hope they would do so narrowly, ruling only on the basis of lawless zones.
To my mind, the questions are what limits are placed on the political question doctrine. Is it still a political question when it is an assassination that occurs in Toronto? Before you say that is fanciful, remember that foreigners HAVE been kidnapped by the CIA in friendly countries (like Italy) and sent to torture camps. If the protections of citizenship no longer apply it’s not hard to imagine this sort of thing happening to citizens too.
September 7, 2010, 3:45 amLitigator London says:
I absolutely agree.
What the discussion over on the Warfare [aka war-unfair] blog seems to ignore (as does the Administration) is that any exercise of sovereign power by a state outside its territorial jurisdiction is likely to be considered by the governments and courts of other states (i) in the light of international law and (ii) in the light of their domestic law.
For example, it is asserted that the US Courts will not enquire into the legality of the process by which an indicted criminal is brought before the Court. That may be true in the USA. It was once true as a matter of English law. But our domestic law has moved on. The present position is that our Courts can and do enquire into the process by which an accused apprehended outside the jurisdiction arrives before the Court and, if the UK executive has in any way taken custody of the prisoner contrary to the law of the place of apprehension, or colluded with the authorities of that state to violate his rights to due process in that state (for example by simply bundling him on a plane without an extradition hearing), then the English Court will stop the prosecution as an abuse of process.
Likewise in Canada, the extradition of a citizen from Canada to the USA on terrorism charges has been refused because of the circumstances in which that person was treated in Pakistan with US complicity. That decision is under appeal, but the decision is consistent with both UK and Canadian jurisprudence.
Under US domestic law it may be perfectly proper for the executive to sanction the killing overseas of a US or foreign national, or his kidnapping, or his torture. I express no view on the issue. All I can say is that if any person is killed, kidnapped or tortured in those circumstances within the UK, that act would be criminal and the UK authorities would be under a duty to investigate, and seek to apprehend or extradite all those responsible including accessories before and after the fact. The same would be true of the murder of a British citizen no matter where it occurred.
Nor do I think that our Courts, or indeed those of any EEA country could possibly countenance the concept of the so-called “global war on terror”. To use the expression “war” in this context is or ought to be read as political hyperbole. One can no more have a “war” or terror than one can have a “war” on drugs. Terrorists acts are criminal acts and have to be dealt with by the judicial process.
Therefore if the person whose conduct is in issue has committed an offence cognisable by the US Courts, he should be extradited to stand his trial. If he is amenable to the criminal jurisdiction of some other location, that is another possibility. But to sanction his killing, whether by an assassin operating on the authority of the US executive, or by an air strike using some drone, is an affront to the rule of law.
The concept of targeted killing has been implemented by the Israeli government in Gaza and elsewhere. It is internationally regarded as unlawful. There is no reason why the use of the same concept by the USA should be regarded any differently.
September 7, 2010, 5:15 amGuy says:
It’s the whole strategy, civilian law doesn’t apply, and the laws of war don’t apply, domestic law doesn’t apply, and international law doesn’t apply. Common Article 2 doesn’t apply, and Common Article 3 doesn’t apply. At Guantanamo, the argument was that the U.S. courts don’t have jurisdiction, but Cuban law sure wasn’t governing that base either. Every position the government has taken has not been to debate the content of the law which applies, or even to debate which law applies, but rather to try and argue that no law applies at all.
Boumediene v. Bush was right to view it as a separation of powers issue, the idea that the executive can do whatever it wants, with no rules set by Congress to define an enemy combatant or for making captures, with no laws to govern its conduct at all, is alien to our Constitution.
September 7, 2010, 5:30 amLitigator London says:
Indeed, there was a terrorist atrocity on the London Underground which we dealt as the crime it was.
During the troubles in Northern Ireland there were terrorist bombings throughout the UK. Did that mean we would have been entitled to to send special forces into Boston and New York to simply assassinate all those well meaning Irish American IRA supporters who funded the terrorists? Of course not.
September 7, 2010, 6:28 amcecil kirksey says:
I didn’t agree when Bush decided he had the authority to lockup a US citizen without access to a lawyer or the courts by declaring that person an enemy combatant and I do not agree that Obama has the authority to have someone executed without court intervention just because Obama declares the person to be an enemy combant. Is this really the way we want our country to be governed? Food for thought.
September 7, 2010, 8:58 amSF Alpha Geek says:
Right, because, inspired by subtle reciprocity requirements emanating from a penumbra of international law, Al-Qaeda’s Judge Advocate General Corps is waiting to see how we jump before they decide whether suicide attacks can only be lawfully carried out in limited geographic regions.
September 7, 2010, 9:41 amJust Dropping By says:
As seen in the movie Eagle Eye!
September 7, 2010, 10:57 amLitigator London says:
With respect, the point the poster was trying to make that if terrorist acts are treated purely as criminal offences, then the USA is entitled to assistance from third counties to bring the criminals to justice. When the USA steps outside the limits of a law and order effort, then it forfeits the right to such assistance and its officials and agents may well find themselves in the dock.
I do not buy into the idea of Al Qaeda as a single top down organisation. But what I can say is that one has to be careful not to create martyrs out of criminals – that only encourages emulation.
September 7, 2010, 11:05 amfwb says:
Ignorance, ignorance, ignorance!
The US has no inherent powers of any kind. That idea is founded on simple ignorance of our system of government. If the US had any inherent rights, many of the grants of power, all those to “defend” the United States, would be wholly unnecessary to the Constitution. Those espousing these grants to be unnecessary demonstrates a belief of the ignorance of the Framers.
September 7, 2010, 11:23 amBob from Ohio says:
The Supreme Court in Curtiss Wright said otherwise as to foreign affairs.
September 7, 2010, 11:53 amSF Alpha Geek says:
Litigator London: Terrorists acts are criminal acts and have to be dealt with by the judicial process.
Which is, of course, the underlying element of disagreement – are we at war with radical Islam, or are we dealing with an outbreak of criminal violence?
It strikes me that we haven’t developed the proper frame of reference for dealing with violence perpretated by non-state actors. The criminal justice system provides a frame of reference suitable for dealing with criminal violence (the Mob, or the Bloods, or the Symbionese Liberation Army.) Traditional concepts of ius in bello (embodied in international law, the law of land warfare, and the Hague and Geneva conventions) provide a frame of reference suitable for war between Westphalian nation-states. However, with due respect to london litigator and many other commenters here, what we face now is neither criminal violence nor war as we had come to understand it in the modern west. Rather, I think that we’re going to have to develop a different framework for dealing with the rise of radical Islam.
For about 300 years, the west held to a system in which the legitimate international use of force was vested solely in the nation-state. In the west, we’ve lived with that situation for so long that it seems like an absolute. Use of force by a non-state actor is criminal. Which is why, I suppose, it seems natural to deal with it through the criminal justice system.
However, I think that’s an equivocation on what we mean by criminal. In the case of Al-Qaeda, et al, criminal means that, to our way of thinking, their use of force is unlawful and illegitimate. I would argue that is very different than saying that radical Islam is “criminal” in the sense that a street gang is criminal.
Neither is radical Islam identical to a nation-State – war with other nations is easy: they have boundaries, their soldiers wear uniforms and fly flags, and they have a single responsible government that can surrender. Pretty much all of the international law of warfare is implicitly predicated on both combatants haveing those qualities. However, those qualities are not universal; they are, instead, artifacts of the western culture of the last 3-500 years.
Probably because volokh is home to mostly lawyers and those interested in the law, the tilt is toward treating radical Islam as a problem for the criminal justice system, while a brave rearguard argues towards a more inter arma enim silent leges approach, stretching our traditional definition of war to include non-state actors. I think that both positions are wrong (although if I had to choose one, obviously, I would choose the latter.)
The lawyers are wrong because they conflate the two, entirely independent, legitimate justifications for the use of force by the state. The first is the power of the state to mete justice in response to wrongdoing. The entire edifice of the common and constitutional law has been built over time to ensure that when the state wields the power of justice, it does so at least somewhat justly.
The state also uses force in the defense of its sovereignity and its citizens. While, like any government action, that use is subject to some judicial constraints (although maybe not as much as people would like to think – while the decision in ex parte Merryman is often touted as one of the great victories for the supremacy of the law during wartime, as a practical matter, Lincoln and the army completely ignored Justice Taney’s decision), it is governed by the principals of what is just in war, not by the principals of what is just in law – and those principals are different. As an example, it would be abhorrent to execute people under the law because of what they might do, and yet we kill enemy soldiers solely because they might be part of an attack tomorrow.
The “lawyer” point of view seems to want to make the laws of war an exception, constrained narrowly by time and place. So, for example, a jihadist who attacks an American convoy in Afghanistan is a legitimate target under the war paradigm, while the man who plans and finances the attack from Yemen is a criminal who must be dealt with under the criminal justice paradigm. If our hypothetical jihadist leaves Afghanistan for Pakistan to help smuggle war material back to the Taliban, he magically changes from unlawful combatant to fugitive from justice at the border crossing. I find that argument to be unpersuasive.
But I also think that trying to apply the norms of Westphalian war to non-state actors is problematic, because of their implicit relationship to national sovereignity. Trying to apply the traditional rules of ius in bello to radical Islam, no matter how much we point out that under those rules, jihadists are unlawful combatants, weakens the important rule that only nation-states may legitimately use force. It also, paradoxically, gives the nation-state too much power: If anyone can be the enemy, I think that the lawyer faction has a point:
While I take issue with “emergent” as a necessary criterion, I do think that there’s a danger to giving any government the unchecked ability to target anyone, anytime, anywhere. But I’m more concerned about conflating the need to develop a reasonable paradigm for dealing with non-Westphalian war with the concept that outside of narrowly defined bounds of time and space, the criminal justice is an appropriate mechanism to deal with jihadists.
As an aside, I think that there are two camps that advocate using the criminal justice system as the mechanism for dealing with international jihad. The first sees the current situation as legitimately more akin to the criminal justice model than to the traditional war model, and (in what I believe to be a false choice) advocates for the “terrorist=criminal” as the better of only two alternatives. The second (and I suspect the ACLU to be in this camp)seeks to delegitimize any use of force by the state outside of the safeguards of criminal law, by applying criminal law constraints to war – I find the second camp to be both deceitful and destructive, but that doesn’t mean that the first camp doesn’t present some reasonable concerns.
So what is the appropriate model? I don’t know, but I do have a sense that the right answer is not going to emerge from a “thesis-antithesis-synthesis” compromise between the criminal justice advocates and the total war advocates. I’ve seen, first-hand, the problems with trying to apply the tenets of criminal law to the battlefield, and its an ugly thing that cheapens the concept of due process and impedes the effective prosecution of war.
Maybe the right answer is another thought from Cicero, the one about hostis humani generis. There are a lot of similarities between 19th century piracy and modern radical Islam – transnational violence, the use of effectively ungoverned areas as safe havens, support and passive participation (in the sense of providing goods and services that enabled pirate acts) by populations that were not directly involved in attacks, and a total disregard for international conventions. And yet, the British navy largely managed to stamp it out – attacking pirate ships without a warrant, and shelling safe havens without developing theories of “contingent sovereignity.” But, somehow, we never developed a legal theory that equated political opposition with piracy, I think largely because the British developed a model for dealing with pirates that borrowed a lot from the laws of naval warfare, a little from the common law, but didn’t pretend to be either one.
Maybe the IHL is too “evolved” to allow this approach, and even if it did, several significant problems remain: At what point in the continuum that starts to the right of bank robber and ends at the left of declaration of war against Imperial Japan does the model switch from criminal justice or warfare model to terrorist model? Does the new paradigm apply to Somali pirates? Transnational criminal organizations like MS-13? Does it require an explicit acknowledgement that the civil authorities are incapable of dealing with the situation? How do we monitor who gets on the “enemy of all humanity” list? But I do think that it’s in our interests to discuss these concepts openly and explicitly a develop whatever model we use, instead of haphazardly arguing our way from current ideas of safeguards in criminal law.
September 7, 2010, 12:26 pmChris Travers says:
AQ is a nebulous concept and not a formal organization. I am willing to bet that there is nobody in the “organization” who can tell you if another person is or is not a member. At most there are individual cells and unofficial relationships between those. This is a unique danger to our country on two fronts: 1) It is extremely difficult to get rid of such an organization, and 2) It provides tremendous flexibility in definition that the executive can use to redefine how they see fit.
September 7, 2010, 12:53 pmChris Travers says:
Ok. Here there is a lot to agree with. (In most cases, I think criminal justice IS the appropriate mechanism for dealing with jihadists, btw.) The issue here is ungoverned areas, such as parts of Yemen, parts of Pakistan, all of Somalia, parts of Iraq, etc. These are areas where I think war powers are legitimate. There are many other parts of the world where there is a clear rule of law (Canada, the UK, etc) and war powers there are clearly inappropriate EVEN if we are dealing with an emergent situation and the criminal justice system is unable to cope with it. In other places, the distinction may be a little more nebulous. For example, what of Algeria? If the Northern Irish problem flares up again, what if we start seeing AQ training camps in Belfast (keep in mind that most of the more recent plots on the US have had substantial ties to the UK, and this would make the UK THE nexus of concern for national security)?
I guess what I am proposing is that unlike the innate powers of self-defence that Mr Anderson proposes, I would like to see a recognition that ungoverned areas are innately subject to war powers in this conflict. But war powers alone cannot get us out of that problem. The only way we are going to have any stability down the road is by pushing for governance and rule of law in the ungoverned areas. And we need to be fair about it (no more playing favorites). IMO this means treating the former AUC groups as the terrorist organizations they are, and on a par with the FARC in Colombia.
This also means working with governments like those of Colombia and Pakistan, giving them clear guidelines saying they shall NOT support armed resistance groups of any sort, and that we will treat all armed and violent, non-state groups as terrorist organizations regardless of their preferred public policy.
We should also drop the requirement that to be designated as a foreign terrorist organization the activities must be against our interests. Let’s have clear guidelines, and let’s start enforcing those rather than turning a blind eye to terrorist organizations we either like or think are just not that bad (that’s the behavior that got us into this mess).
September 7, 2010, 1:07 pmKen Arromdee says:
I could ask similar questions about the ordinary judicial system. “How can you say that locking people up for violating the law is okay? If it’s okay to lock someone up in jail just because he violated a law… what happens if Iran decides to lock someone up for violating a horrible Iranian law?”
Of course, the answer is “locking someone up for violating a law isn’t right or wrong all by itself. Whether it is right or wrong depends on the rightness or wrongness of the law that it is used to enforce.”
The answer is the same when talking about targeted killing: targeting killing is right or wrong depending on what it’s used for. When used to kill dissenters, it’s wrong; when used to kill terrorists, it’s not. This is no bigger a dilemma than saying that jailing dissenters is wrong and jailing terrorists isn’t. Targeted killing itself, just like jail, is morally neutral.
September 7, 2010, 1:25 pmChris Travers says:
Except that when used as an alternative to existing legal institutions, it damages them, so an assassination of a target in London would be as bad for our system if it was against a terrorist as a dissenter.
The question is whether the alternative is functional. That’s where I would like to see the line be drawn.
Rule of law should and indeed must not be supplanted by war powers. Where rule of law does not exist, there we can talk.
September 7, 2010, 2:28 pmguy in the veal calf office says:
I for one have no apprehension that this power, under our American system of government, in which all official authority is derived from the people, and exercised under direct responsibility to the people, is more likely to be abused than the power to regulate commerce, or the power to borrow money.
*I thank David Bernstein for the foregoing thought, although any errors are entirely my own.
September 7, 2010, 2:47 pmSF Alpha Geek says:
I think everybody would agree with that sentiment – the problem, of course, is in who gets to define functional.
Venezuela has a quasi-functioning judiciary – let’s say that, hypothetically, we notify them that there’s a suicide bomber on his way to the US via Mexico, but they refuse to arrest and extradite him? What does the US do to protect their citizens? What if it’s not the actual bomber, but someone who’s going to facilitate the movement of future bombers? What now?
Or, let’s say, again hypothetically, that there’s a member of a terrorist organization living in a European country – we go to the country’s prime minister, and he tell us “You have to understand the problems with the judicial system here. Just snatch the bastard and get him out of my country – I’ll even have my secret service help.” How should the US respond? How is that different than the hypothetical above? Let’s also say, hypothetically, that this government had, in the past, let a notorious Palestinean terrorist who was directly complicit in the murder of a US civilian walk free (before sentencing him “in absentia” to five life sentences.) Does that change how the US should regard the legitimacy of their political and judicial processes?
What if the only evidence is information from a demonstrably reliable source, but that source is also the only possible person that the information could have come from? What if making US knowledge of an individual’s involvement in terrorist acts will get our source killed? Should we expect that the information be revealed in open court?
I don’t think that anyone is seriously arguing for Hellfires over London, and I don’t disagree with the idea that, everything else being equal, the criminal justice system should be the preferred venue for dealing with meting punishment for past acts of terrorism. However, and it’s a big however, the state’s criminal justice system kills or imprisons as retribution for past acts, so it’s appropriate that the bar be set very high. In war, the state kills or imprisons in self-defence, to prevent future actions, and the standards are very different.
There will be times when it is necessary to kill or capture someone today to prevent acts in the future. We don’t give a soldier in uniform a trial before pulling the trigger, and, if we insist on applying concepts of jurisprudence to the terrorist in his capacity as a future combatant, we are giving him a higher level of protection than the uniformed soldier – and conversely, providing our citizens less protection against terrorists than we do against enemy soldiers. That strikes me as a fairly perverse outcome.
What I think is needed is a system that is not the criminal justice system (although it may derive precepts from that system) that recognizes that radical Islam is not a criminal enterprise, but that tries to minimize the “collateral damage” caused by killing people who don’t need killing, and provides a check on misuse of the state’s legitimate self-defence powers, without getting in the way of fighting the foe.
And yes, the system I’m proposing would, inevitably, end up killing people simply because they associated with the wrong people, or went to the wrong mosque, or did favors for the wrong reasons. We should try to minimize that, of course, but not at the expense of protecting our own. Morally, it’s regrettable, but no different than killing someone because they happen to be in a house where a terrorist has taken refuge.
There are places where the law doesn’t run (like Yemen and Somalia), and I have no problem with targeting bad guys there, without affording them the protections of due process. That, I think, is elementary, even if sometimes the wrong guy gets offed. What’s more problematic is what to do with people who are equally as dangerous, but who are protected by their proximity to due process of law?
September 7, 2010, 3:58 pmSoronel Haetir says:
This I have no problem with. It recognizes the essentially realpolitick nature of international law. If the U.K. can get custody of our personnel after they committed such an attack I’m all for prosecuting those involved. I wouldn’t expect assistance from the U.S. in that endeavor however.
Realpolitik would be (and has been when this has come up before) my answer to Chris Travers concerns as well. If you believe that the courts would (and even should) say that Aulaqi hiding out in Yemen is on the right side of the line but that a similar attack somewhere in Liverpool would not be it seems like you almost want a advisory opinion from the courts. And U.S. courts aren’t in that business.
I would say that Congress is just as likely to openly declare war on Mexico and the president to prosecute the attack to the full ability of the U.S. military as the attacks you seem to think we need to fear. Such a declaration may well be a violation of international law, but that’s not very relevant when asking for relief from a U.S. domestic court.
September 7, 2010, 4:37 pmAnderson says:
why the assumption that in everything, including crucial issues of national security abroad, there is always a role for the Federal judiciary?
Why indeed: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.”
Perhaps the courts, rather than the guys itching to pull the trigger, would be a more apt guardian of these rights?
September 7, 2010, 4:48 pmChris Travers says:
Ok. However, suppose you have someone accused of plotting a terrorist organization but that person convinces the Supreme Court of Canada that the Convention against Torture forbids his extradition because of the track record of the US recently on that topic. Does “functional” mean “doing what we say?” or does it mean “working in general?”
For the Venezuelan case, there are a couple of issues. The first is that there is no land journey from Venezuela to the US that doesn’t involve going through lawless portions of Colombia. However, even aside from that, Congress can certainly authorize military force against a state harboring terrorists. I don’t think the 2001 AUMF is limited enough to qualify though unless we read it as having the determination having already been made (Afghanistan).
On the other case, the question is why the PM would say this. If the PM is saying “I’d love to help but your track record on torture means we can’t legally do it, so why don’t you take matters into your own hands” then I don’t think that would be sufficient. Or what if it is “He’s already wanted for crimes here. If he outlives his sentence, maybe in 50 years, then we will extradite” that’s definitely not a good reason to use war powers.
I would like to see the courts able to address this question. I don’t think “how functioning is functioning” is a purely political question.
September 7, 2010, 4:49 pmChris Travers says:
Not really. The court doesn’t have to decide that a similar attack in Liverpool is definitely not, but the court could limit a positive “we have no authority here” ruling to objectively lawless zones and areas where Congress has expressively authorized military action.
September 7, 2010, 4:53 pmChris Travers says:
I’m more worried about people kidnapped by the CIA or military intelligence branches in London or Milan and then taken somewhere and summarily executed. We’ve already had cases of people nabbed by the CIA in Milan and taken to torture centers. So I am not at all sure that the idea of covert action of this sort is far-fetched at all.
September 7, 2010, 4:56 pmohwilleke says:
The war paradigm simply does not translate well to conflicts with groups and individuals who are not state actors in a way that is ill defined geographically. It isn’t obvious that the 2001 Authorization for the Use of Military Force, or at least not all of it, really is a declaration of war, not because it isn’t called a “declaration of war,” because the military force that it authorizes in often not in the nature of war. Part of its is a declaration of war on the Taliban regime in Afghanistan, part of it is a declaration of war on a nebulous group of people involved in or associated with the 9-11 atacks. This part is something else. It looks more like a capital conspiracy criminal justice statute (or perhaps a bill of attainder) than a declaration of war.
Even if it is a war, the legal issue in the 201 AUMF, presents itself different, and is basically, “is this person indeed within the scope of the AUMF,” and what remedy is available is someone is wrongfully targeted as being within its scope when they are in fact not within its scope.
In contrast, in the usual war, the ranks of “the enemy” consist of everyone who is a subject of the regime upon which war has been declared, without individualized inquiry into whether that person was involved in and associated with some non-state group. Ex-patriots of non-enemy nations, in contrast, in the usual war, are normally not considered to be “the enemy” unless they have done something in particular to conspire with the enemy, generally, in the theater of the war. In the usual war, “the enemy” part is easy and only the “combatant” part is hard, and “the enemy” has less rights than the non-enemy.
The criminal justice standard is “probable cause” to search and seizure, with seizure by killing someone justified only in exigent circumstances, may make a lot more sense practically, in the world of a non-battlefield WOT than an absolute right to kill particular people chosen from the universe of everyone in the world in which there is a purely ex parte determination of who belongs on that list.
Wanted dead or alive was a bad idea in the mythical cowboy era American West and it is still a bad idea.
September 7, 2010, 5:40 pmohwilleke says:
I also wonder if there isn’t a constitutional justification for a different standard for citizens than for non-citizens in Article III, Section 3 of the United States Constitution that operates as a limitation on Congressional and Presidential power in this isolated case. It provides:
Treason is a crime that can only be committed by U.S. citizens, by definition. It is a breach of loyalty owed by a U.S. citizen to his or her country. When a non-citizen does it, it is an act of war – Germans in World War II did not commit treason when they levied war on the United States. There is a fair reading that says that the only way that a U.S. citizen can be punished for levying war against the U.S. or adhering to their enemies giving them aid and comfort is through a treason prosecution, with all of the due process the constitution requires to show that, and that Congress does not have the power to declare a different punishment (like summary execution without a trial) for this offense.
The Founders were personally, to a one, engaged in treason. They had a strong self-interest in making it hard to use state power to punish it.
September 7, 2010, 6:09 pmLitigator London says:
Points have already been made about your comment. Here is my two pence worth.
Your first question was: ” Are we at war with radical Islam, or are we dealing with an outbreak of criminal violence?”
The answer to that question is surprisingly simple. Wars may only take place between sovereign states. More accurately, wars may only take place between the leaders of nation states with the populations suffering the consequences.
You are quite right to say that the traditional concepts of ius in bello are framed by reference to the idea of land warfare between Westphalian type nation states. I forget which war was the last occasion when European railway companies actually ran excursions so that spectators could go and watch (from a safe distance) a set piece battle taking place. It may have been the 1870 Franco-Prussian war, or there may have been one or two such excursions in the early days of WW1. But total war, with whole civilian populations engaged, primarily as victims, as exemplified by the London Blitz, the firestorm of Hamburg, the destruction of Dresden or the nuclear wasteland post Hiroshima and Nagasaki hopefully convinced the world that such total war must never happen again. So wars of aggression were outlawed by Treaty, the UN Charter to be precise.
It is perhaps noteworthy that the sole western democracy whose people are ambivalent about the worth of the United Nations is that nation whose people, secure behind their two “shining seas”, have never experienced what modern warfare can do to a city.
Perhaps that lack of prior experience made the atrocity of 9-11 a much greater shock for the American people with the result that the popular demand for the Bush Administration to “do something” was that much more intense.
In the event the Bush Administration came up with the inane concept of the Global War on Terror™ and it was sold to the Congress and to the people. It seems to me that your nomenclature of War on Radical Islam™ is much the same concept rebranded.
The word ”Islam” means ”the state of acceptance of and submission to the will of Almighty God”. Therefore to speak of a ”war with Radical Islam” is not merely gratuitously offensive to Muslims, it is also an impossibility – one cannot go to war against something incorporeal – an idea.
So, unless you are speaking about the USA conducting a war against every Muslim country in the world – when in fact the USA has not yet finished, or paid for, or even yet succeeded, in its two latest military adventures – I suggest you forget about the word “war or indeed the use of military force at all save in certain strictly defined circumstances because I agree with you about the need to deal with areas where there is no effective government.
We are dealing with ideas – and the danger is that the salafist terrorists have with much success been able to point to the USA as being the principal supporter of corrupt regimes in the Arab world. There is a 3 part BBC Documentary called ”The Power of Nightmares” which you might well find on-line and which is worth watching for some of the background to this.
So let us look once again at what we need to deal with: a collection of the survivors of highly dangerous people who were recruited and brainwashed by techniques honed and perfected by agents of the Reagan Administration for the purposes of its proxy war in Afghanistan with the Soviet Union. Those survivors and the new people they have in turn recruited have turned on those who formerly funded and armed them, which is, to say the least, ironic.
It is necessary to apprehend the principal conspirators and neutralise them. Killing them is most emphatically not the answer, that only creates martyrs. Some of the masterminds will doubtless merit very long terms of imprisonment – others, the rank and file, will have to be de-programmed, very much along the lines of what has to be done with the devotees of some of the nuttier religious cults that cause so many parents so much grief.
Now in fact, the international criminal justice system used correctly is very much the process of choice for the principal actors. But what did the Bush Administration do? It behaved in such a manner that just about every justice system in the western world has been forced to speak in severely critical terms of what the US Government has been caught doing.
I recollect that the first such statement in the UK came from our Court of Appeal in Abbasi & Anor., R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs & Secretary of State for the Home Department [2002] EWCA Civ 1598, [2003] UKHHR 76 – see paragraphs 58-66 – it was plain from the argument in Court that their Lordships could hardly credit that the position of the Bush Administration was that put before the Court.
Well, we now have our Judges hearing cases where damages are being claimed for UK government complicity in torture and inhuman and/or inhuman and degrading treatment carried out by agents of or at the behest of the USA. Hardly a eyebrow is raised about the allegations any more and the UK government is having kittens about the disclosure it will have to give.
With the exception that that the international community may have to intervene to remedy “failed states” where there is no responsible government, and that should be done with the authority of a UN Chapter VII resolution, there can be no justification for the use of military force in this struggle of ideas.
So how is the USA doing in the clash of ideas department?
1. Nothing whatsoever has been done that the world can see about the US support given to corrupt Arab regimes.
2. The interventions in Iraq and Afghanistan with their excessive use of air power have provided reams of video for terrorist recruitment propaganda.
3. The USA has done nothing effective in favour of the Palestinians.
4. In an area where the US government has a vital interest in winning hearts and minds – Pakistan – what has been done to assist with flood relief? Pakistan flood victims number 7 millions. Official US contributions stand at US$170 millions and US philanthropic groups a further US$10 millions. UK private aid has already exceeded £67 millions (US$102.9m). In contrast, Haiti with 3 million earthquake victims has received US$1.16 billions in US official aid and US$560 millions in US private aid. Already the word is going round Pakistan about the USA: ”they’re quick enough to drop their drones on us, but not very interested in our survival”.
5. The Mosque controversies, the Islamophobic speeches of the GOP Congressional loons, the Koran burning pastor, are all reported on TV throughout the Arab world.
6. There was a huge surge of support for the USA worldwide when President Obama was elected. This created a window of opportunity. I fear it has been squandered.
September 7, 2010, 6:32 pmarch1 says:
Kenneth,
I’m still trying to get my head around your approach to this topic.
One question that I keep in my mind as I do so is: How comfortable am I with the thought that a perspective such as yours may be prevalent 50 years from now, in countries different from (and more powerful than) that of my descendants?
September 7, 2010, 7:07 pmLitigator London says:
And what about us folks on Airstrip One.
September 7, 2010, 8:16 pmMnZ says:
I don’t see the judiciary mentioned there. I think you are confusing “due process of law” with the judiciary. They are not synomous. The courts are merely part of due process of law.
Mr. Aulaqi could annouce an intention to turn himself in and answering for his crimes in court. It seems to me that the courts exist to protect the rights of an individual if and only if that individual wants that protection (assuming some level of competence of the individual). Mr. Aulaqi has decided that he does not want avail himself of that protection. If Mr. Aulaqi is captured, he will again be tried in a court even though he has rejected their authority. I say let him decide the best way to defend himself. He has no faith in our courts, and he obviously believes that the best way to defend himself is by taking up arms against the US. That is his choice.
I find the entire assassination debate to be bizarre. Apparently, the following course of action is reasonably legal:
1) Congress passes are resolution citing Yemen for failing to control their territory and apprehend Mr. Aulaqi and authorizing the use of force
2) Bomb the Yemeni military into submission – possibly killing thousands
3) Send a team of special forces into Mr. Aulaqi’s region to hunt him backed by helicoptors, jets, and drones
4) Shoot anyone who threatens or attacks the team (including possibly Mr. Aulaqi) – possibly killing thousands
However, sending a drone to kill him is a gross violation of the law. I am sorry, but these are values I do not and cannot share.
I would think a more rational line of thinking would be this. Assassinations are condoned if certain conditions are met. I would think two of those conditions would include (i) the assassination intent is announced publicly and (ii) the individual is given ample opportunity to personally answer for the claims against him in court.
September 8, 2010, 7:52 amSF Alpha Geek says:
This approach still dangerously conflates two different justifications for state action to the detriment of both of them – that of execution of law, and that of defense of its citizens and sovereignity. Simply, the standard should be that, if we want to punish you for past misdeeds, you must be brought before the court and only punished after you are afforded due process of law – that’s the state carrying out its police power. If you’re hiding out in Yemen, we should no more be able to assassinate you for prior terrorist actions than if you had robbed a bank and fled to Brazil.
On the other hand, if you’re “at war” with the US – that is, if you have demonstrated that your future actions are likely to include attacking (or facilitating attacks on) US citizens or US interests, then you make yourself a legitimate target for the military power – not the police power – of the state. If we happen to take you out of the fight by capturing you instead of killing you, you can be turned over to the police arm of the state to be punished for past misdeeds, but if its more convenient for us to take you out of the fight by killing you, then so be it. And, as long as you’re still a threat (that is, as long as you’re “at war” with the US) we can keep you out of the fight, even in the absence of legal action. Absent legal action, however, we’re obligated to release you as soon as you’re no longer a threat, no matter what your past behavior may have been.
As a practical matter, this is pretty much what both the Bush and Obama administrations have done. However, by not offering a clear explanation of why they have behaved this way, and by not more drawing the distinction between the state’s military and police powers, they’ve left themselves open for attack from the left, who either don’t understand the distinction, or more commonly, wish to de-emphasize and delegitimize the state’s military prerogatives.
Which is precisely what leads to such bizarre theories as you outline above – that for the state to exercise its military power, it has to stage a massive invasion and get lots of people killed instead of sending in a drone. I suspect that most people who argue for that point of view do so with the intent of making the exercise of military power so expensive and distasteful as to to be impractical in almost all cases.
September 8, 2010, 11:07 amTed says:
I would like to thank both you and Litigator London for your posts. This is why I read this blog.
I also am willing to buy your distinction between war powers and criminal justice. You’ve mentioned several times that war powers are justified by “defense of its citizens and sovereignty.” Fair enough. But could you further define what it means to defend one’s sovereignty?
Having not known anyone killed in the WTC, having never met or spoken with Saddam Hussein, having never lived in a cave with Obbie, and having never frolicked in the hills of Pakistan, I’m finding it hard to understand why Islamists of any kind threaten the sovereignty of the US. What threat do Islamists pose to our national security? Is it merely because they are foreigners committed violence? We did not declare war, or exercise war powers, in cases of domestic terrorism. But that doesn’t really seem to be a reason that supports the reasoning for war powers; reasons you and London laid out very well.
I guess I just don’t believe that our involvement in Iraq or Afganistan is in defense of our sovereignty. I don’t think a few individuals, particularly those described as “radical,” pose that great of a threat to a powerful nation. I could be wrong, but I’m not sure that I’m so clearly wrong that it warrants discussions about whether we need to start assassinating people again. I guess on the bright side, we might assassinate enough of the right people so that we will become engaged in a defensive war that actually threatens our sovereignty.
I keep wondering — pointlessly I suppose — what would have happened if we didn’t use occupying military force post-9-11? Would we be part of Iraq or Afganistan, or some new country other than the USA? If not, then what exactly do you mean by threatening sovereignty? Where was the threat? On evidence I’ve seen over the past 9 years, our own bad reaction to a bad action has created a more realistic threat to our sovereignty than anything a thousand, or even a million radical Islamists could have posed.
September 8, 2010, 12:30 pmDavid Schwartz says:
I agree. If I can shoot a burglar dead while he’s trying to rob my house, I should certainly be allowed to break his arm a few days later.
September 8, 2010, 12:44 pmTed says:
Do you think that Congress would authorize war against Yemen (and 1,000s of civilian deaths) to pursue a single suspect? If not, shouldn’t the same weight be given to the decision to kill the suspect without due process?
September 8, 2010, 1:55 pmSF Alpha Geek says:
My take on this probably lacks nuance – but to my mind, when an entity directs violence against a nation’s citizens and possessions to influence it’s foreign policy or actions, that’s an attack on that nation’s sovereignty. In the olden days, we called it an act of war.
So, in the leadup to 9/11 we had a pattern of violence directed against the US by radical Islam: a prior attack on the WTC, the attack on the USS Cole, the bombing of the Khobar Towers, the embassy bombings in Kenya and Tanzania, and a dozen or more other serious attacks that were thwarted. The policies, the properties and the citizens of the US were targeted by agents of radical Islam. And then there was 9/11 – 3,000 +/- US nationals killed and billions in direct and indirect damage to the US. More important, every indication is that such attacks will continue, limited only be the resources of the enemy. If “radical Islam” were a nation-state, there would be no question of a cassus belli, and of the right of the US to act in its own defense.
But it’s not, and I argue that we need to develop (or rediscover) a model that guides us in our use of the state’s military power against non-Westphalian actors. litigator london says:
but I think that’s both facile and wrongheaded, an artifact of the western nation-state. Essentially, as I said before, we hold out the nation-state as the apotheosis of political form, and we further hold it to be the only political form that can legitimately employ force. But that’s not a universally held belief – radical Islamicists believe that their use of force is legitimized by Allah, and further believe that Allah demands of them that they use force to advance their agenda.
The reaction of many in the west (as exemplified in litigator london’s comment above) is to reassert that only nations can wage war – that is, only nations can legitimately employ force. So far, that’s not controversial. However, perversely, their next step is to assert some sort of weird symetrical requirement, to declare that because non-state actors cannot legitimately use military power against nations, nations cannot legitimately use military power against non-state actors. In other words, the prevailing opinion in this thread appears to be that outside of “war-zones” defined by the boundaries of states such as Afghanistan, it is not legitimate for the US to exercise military power against its enemies. Further, since military power is not legitimate, the US may only exercise police power in those situations – that is, an enemy of the US, intent on doing harm to its citizens and institutions, must be pursued using the judicial system.
Paradoxically, that paradigm elevates the rights of the non-state actor above those of the nation-state. It provides protections to the terrorist that do not belong to the soldier. It requires the the threatened nation nation to assume risks it would not assume in a war with another nation.
Further, it leads to ludicrous results in practice – in theory, upon learning that a terrorist intent on attacking the US was hiding in Yemen, we could demand that their government yield him up – if they failed to do so (despite the reality that the government of Yemen doesn’t control much of its own territory outside of Sanaa), it would be within our rights to declare war on Yemen, bomb the country flat, station tens of thousands of troops there, and hunt our hypothetical terrorist down. However, we could not simply kill him without due process of law. That’s more than ridiculous – it’s immoral to insist that we have to inflict thousands of Yemeni casualties to satisfy our post-Westphalian preference to engage in war only with other states.
Instead, we need a theory that defines and regulates the use of military force (that is, a “state of war” against non-state actors. Effectively, the Bush and Obama administrations have been waging war against the network of radical Islamic actors anyway, but without formal guidelines, I think its an approach with a substantial potential for abuse. On the other hand, the “soft-law” side’s only contribution is to suggest that the state forego its responsibility to its citizens unless a terrorist can be brought before the bar of justice and convicted using civil, not military, rules of evidence.
Now, litigator london mixes questions of morality (when is it acceptable for the state to use military force?) with questions of policy (would it be more fruitful for the US to contribute more to Pakistani flood relief and less to combat operations in Afghanistan?), while the issues you raise seem more purely policy focused. I think it’s important to keep those issues separated. The question of morality bounds the potential range of policy decisions. There may be many possible morally permissible policies to be pursued. The question of “was it a morally acceptable policy” is not the same as “was it the best policy.”
It strikes me that both you and litigator london are arguing for appeasement, suggesting that changes in US policy might have been more fruitful than using military force against Afghanistan and Iraq. I disagree with that position for a whole host of reasons. But it seems to me that’s a different discussion than the one that triggered this thread.
September 8, 2010, 2:51 pmSF Alpha Geek says:
We disagree on first principles here, inasmuch as my entire argument is for a ethical model for the use of military power against non-state actors. I make that argument because I think that the “trust us, we wouldn’t abuse our military prerogative” arguments that the proponents’ of drone warfare, for example, have too much room for abuse. But far better that worldview than one that holds that non-state actors can use extreme and protracted violence (“wage war”) against a nation and its citizens, and the nation may not respond with force to protect itself, but only to punish criminal wrongdoing. That’s simply perverse.
My understanding of a “war of ideas” wouldn’t include WTC (94 and 9/11), Khobar Towers, the USS Cole, Tanzania, Kenya, London and Madrid, plus a host of other attempted attacks. Further, I think that you’re mistaken about the relationship between force and ideas. In a situation where two people share the same general worldview but differ on particulars, negotiation and compromise are possible. Where two people want fundamentally incompatible worlds, not so much. Francis Bacon put it better than I could:
“Between two types of men who seek to create inconsistent kinds of worlds, I see no alternative but force. It seems that all societies rest on the death of men.”
we forget that at our peril. We may not be at (or want to admit that we’re at) war with Islam, or at least a certain strain of Islam, but that’s not really the question, is it? The issue is actually is Islam at war with us, and, if so, what do we do in response?
I agree with Robert Kagan that Europe has largely forgotten that largely because US military power over the past fifty years has allowed them to live in an artificial, inward looking bubble where resort to force was not necessary. And the resort to force is not necessary between any two nations that share the ideals of western liberal democracy, because while details and policy preferences may differ, those two nations share a common worldview. It would be insane for Iceland and the UK to use force to resolve fishing differences, for example. Unfortunately, few progressive thinkers seem to have any experience with, or understanding of, the world outside what Thomas Barnett calls “the functioning core” (roughly isomorphic to the west, plus some thoroughly westernized nations like Japan.) I suspect that a good bit of US versus European attitudes towards the world stem not from European experiences in WWII, but from the US’s continuing engagement with the world in contrast to European isolationism.
The war is not of negotiable ideas, with two sides that are amenable to compromise, but of worldview. The issues you raise “support for corrupt Arab regimes” “use of American airpower,” “plight of the Palestineans,” are excuses, talking points for self-absorbed and self-loathing westerners. They are not the core reasons behind the attacks on the west by radical Islam. There is a strain of Islamic thinking that is fundamentally incompatible with liberal western values. That strain must either mutate (becoming a more private religion, compatible with secular institutions – something that has already happened to much of Islam, especially in places like Indonesia), go dormant (lose the resources to continue violence against the west), or die out – as long as it survives in its present form, there will be no peace.
September 8, 2010, 4:06 pmKirk Lazarus says:
By that criterion radical anti-abortionists, Black Panthers, the Weathermen, and Vietnam war protestors have committed acts of war against the US. Should the US have launched military responses against them?
September 8, 2010, 4:59 pmTed says:
With respect to whether use of criminal law or military force is justified, I don’t see any meaningful difference between an act of domestic terrorism and an act of foreign terrorism. If your distinction is based on a “threat to sovereignty,” then the domestic act appears “more serious” than the foreign threat. More broadly, I think you err by too broadly defining the scope of a threat to sovereignty.
I agree with you that military force is justified in response to legitimate threats to national sovereignty. I disagree that terrorism fits that bill. Including acts by non-state actors extends the use military force to any violent act, or even non-violent act by anyone, foreign or domestic. Your mistake is to draw the distinction based on the motives of the actor. Rather, I think you’d be better off having a principled way to distinguish between legitimate threats to sovereignty, such as nation-state might pose, and whining and kicking by disgruntled members of a foreign “association.” The latter could, I suppose, pose a legitimate threat to sovereignty, but I think it is highly unlikely.
Again, I don’t think anyone can offer a reasonable argument that radical Islamists currently have a chance at dissolving the US, at least by violent/military means. Without such a reasoned position, I would have to conclude that, in the current state of things, radical Islam does not pose a legitimate threat to the sovereignty of the US, no matter how “threating” the act. The threat must be clearly and objectively legitimate in order to use military force.
This distinction is hugely important. You acknowledge the Pandora’s box that Bush opened when he went off-reservation to justify unorthodox military force. It doesn’t take long before the executive branch will push the envelope further. I think the executive branch is full of the most power-hungry people on the planet, that’s why they have the positions they have. They’re not always ill-meaning, but they are often overreaching. Give them a loophole to exploit and they will do it sooner than later.
Because radical Islam does not pose a le
With regard to applying criminal law to non-state actors who “act against” the US, I think it is unquestionable that they apply to US citizens, at home and abroad. Why? Because the constitution requires it. Suggesting that you abandon your constitutional rights because of your present geographic location is absurd.
Whether constitutional rights apply to non-citizens is a different matter. People who are not citizens, and who don’t participate in the obligations of citizenship, don’t appear to have any claim to rights under the constitution. While the constitution is a good example of what innate human rights might be, it is not a document that conclusively establishes what innate human rights actually are.
This is hugely depressing. I often am tempted to agree with this. Then I remember that it’s based on a false dichotomy, an extremely dangerous one. There is no meaningful difference between reconcilable and irreconcilable differences. All cultural differences are reconcilable until the actors decide they aren’t. Nothing inherent in the differences make them “irreconcilable.”
If you don’t believe this, then your distinction between criminal law and military is meaningless, as it is in certain parts of the world. We should simply seek to destroy all those who disagree with us until only those who agree are left. Such a lonely world it would be for the “victor.”
September 8, 2010, 5:51 pmSoronel Haetir says:
We need only destroy those who are unwilling to allow others to live in peace as they are. So long as they don’t visit their misery upon US soil or lawful overseas interests of US citizens I care little for how unpleasant they choose to make their own lives.
I do, however, think you vastly underrate what it means to attack a nation’s sovereign interests. By your standard the Barbary pirates were no such threat. No conceivable act of the north African states was going to produce a change in the form of US government. Yet they were kidnapping US citizens for ransom and otherwise interfering in trade that did not involve them.
I don’t see that it matters very much whether such acts are undertaken by a government, by groups that are tolerated by a government or by groups that choose to operate from areas not controlled by any government at all.
Also note that there are only statutory and policy considerations that come into play regarding use of the military within the U.S. proper, there are no constitutional issues at all. The document even expressly provides for a mechanism to call troops into federal service for the task. If domestic terrorists were hundreds or thousands instead of ones or tens then domestic application of military force might well be considered advisable.
September 9, 2010, 12:03 amLitigator London says:
No. The principle is that the use of military force must always be regulated and that regulation must be territorial – i.e. under the ultimate control of the sovereign state where it is used.
Use at home
===========
The reason why your Founding Fathers, as with their English contemporaries, distrusted the whole concept of standing armies was that an army could all too easily be turned against the citizenry. So we have the concept of the militia. And when did the use of the militia become possible? Only when a magistrate required it. I do not know whether the expression ”reading the Riot Act “to a person or persons” survives in the USA as a metaphor for giving someone a severe dressing down with a threat of unpleasant consequences if they do not mend their ways. The origins of the expression lies in the Riot Act 1715. If the local magistrate was faced with a disorderly assembly which the constables could not control, the Act empowered the magistrate to read the statutory warning and then, if the crowd did not disperse within an hour, the militia could be called in to restore order. The actual warning was in these words:-
“Our sovereign Lord the King chargeth and commandeth all persons, being assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the act made in the first year of King George, for preventing tumults and riotous assemblies. God save the King.”
So the concept of the army being called out ”in aid of the civil power” is well established. And of course it is for each state to set its own rules as to how and when military force can be used.
Assistance to allies
====================
It has always been acceptable in international law for one state to ask for help from a ally. The Vietnam “war” was not a declared war. Why? Because technically, the US military presence was at the request of the lawful government of South Vietnam. In theory the operations conducted were under the ultimate responsibility of the sovereign civil power. That is the theory on which there are still troops from the USA and the UK garrisoned in Germany. Germany is the territorial sovereign and the troops are there at its request under the terms of the NATO treaty. Likewise the presence of US military forces in the UK.
Peace Enforcement
=================
This was the new concept introduced by the UN Charter. The use of military force on the territory of another state sanctioned by the UN Security Council. The Korean “war” was such an action (there was no declaration of war) and there have been very many others. The first invasion of Iraq was so sanctioned.
That is the present situation in Iraq and Afghanistan. The invasions under the Bush Administration were probably unlawful but the presence of troops there today is (i) at the request of the governments of each state and (ii) sanctioned by UN Security Council resolutions.
So the principle is that the use of military force by a state outside its own sovereign territory on the territory of another state is lawful only: (i) if in response to acts or aggression by that state; (ii) at the request of that other state; (iii) authorised by the UNSC. I expect that the use of drones would be considered lawful if the drone lands on the territory of a state which has requested or authorised the strike.
Descending to their Level
=========================
Your mistake is to equate what are serious criminal acts with war. A war can only be started by a sovereign state. The terrorists who bombed the London Underground were criminals. Likewise those who bombed in Madrid or elsewhere. Likewise those who perpetrated the 9-11 atrocity.
Serious criminal acts though they were, they did not put the very existence of the US Republic, or the Kingdom of Spain or the United Kingdom at risk. To dignify them with some quality going beyond the merely criminal is a mistake. Those who were accessories before and after the fact also have to be caught, tried and punished – as criminals . It is actually beneath our dignity as sovereign states to deal with them in any other way.
So if international co-operation in the criminal justice field is defective, and it is far from perfect, then we work at improving that. There is an established principle: “aut dedere aut punire”. If a foreign state harbours wanted criminals, then that state can be put to its election: “surrender the fugitives or punish them yourself”. If it fails to do either then there can be sanctions.
Patience
========
The criminal justice system can be slow. We are still apprehending and prosecuting Nazi war criminals. The important message has to be “you can run, but you cannot hide forever”. I want terrorist leaders brought into Court, given a fair trial and punished if convicted. I want their wickedness exposed at trial for all to see. I do not want them shot in a mountain cave or exterminated by a drone if that can be avoided.
And that, by the way, is why I hope and pray that one day we will also see those responsible for criminal acts covered by the Torture Convention brought to justice.
September 9, 2010, 12:25 amLitigator London says:
I agree with very much of what you say. The only point I would make is that a civilised state draws no distinction between the “constitutional right” or “human rights” of an accused person when it comes to the criminal justice system. We afford both exactly the same protections.
September 9, 2010, 12:36 amLitigator London says:
The criminal justice system is not there for the protection of the accused. It is there to punish wrongdoers for the protection of society. It gives the accused certain rights – such as the presumption of innocence, the right not to self-incriminate etc – also for the protection of society since it is better that the guilty go unpunished than that the innocent are wrongly convicted.
If the gentleman in question is a suspect, he is still innocent until proven guilty in a Court. And his presence before the Court should be achieved by lawful means, otherwise society is descending to his level. If he chooses to remain in the “badlands” and he gets caught up in a fire-fight so be it. But that is far cry from the state deciding to kill him without a trial.
That’s the first step on a very slippery slope indeed. In effect it is equivalent to “outlawry”, the executive declaring a person outwith the protection of its law.
The idea of state substituting the verdict of a court with an executive warrant of execution is abhorrent. Just when do you rename the CIA “SMERSH”? You might as well rip up your constitution at the same time.
The justice system can wait for him to be taken into custody.
September 9, 2010, 1:17 amLitigator London says:
Thinking about it, outlawry is exactly what is being proposed by some for Anwar Aulaqi. The medieval Writ of Outlawry ["Caput gerat lupinum"] not only deprived the person of all legal rights, but he could be killed on sight as if he were a wolf or other wild animal. Hence the Latin.
I know the US criminal justice system is pretty barbaric by modern European standards but just what else do people have in mind?
The branding of thieves perhaps. Justice Scalia did say in a lecture given in the Middle Temple in 2000 that as an originalist he would find it hard to say that it was a “cruel and unusual” punishment within his understanding of your Constitution.
But even though the concept of outlawry was still part of the common law in the 18th Century, Blackstone said that that the outlaw’s life:
… is still under the protection of law, …; and though antiently an outlawed felon was said to have caput lupinum, and might be knocked on the head like a wolf, by any one who should meet him; because having renounced all law, he was to be dealt with as in a
state of nature, when every one that should find him might slay him; yet now, to avoid such inhumanity, it is holden that no man is intitled to kill him wantonly or wilfully; but in do doing is guilty of murder, unless in happens in the endeavour to apprehend him.” – Commentaries on the Laws of England (1979 ed) vol 4, 314.
So on that footing, the proposal is certainly more along the lines of the medieval writ than with the understanding the Founding Fathers had of outlawry as at the time of the Constitution.
September 9, 2010, 5:06 amChris Travers says:
I completely agree with this. I would however, raise one narrow objection that I think is relevant here. Large parts of Yemen are essentially autonomous regions controlled by the tribes that live there. The criminal justice system presupposes active, professional law enforcement agencies which simply are not applicable to that specific case. So there is a major problem here.
My inclination would be to allow the courts to inquire factually into the question of whether a given area is sufficiently lawless to render the protections of the criminal justice system moot. If they are, then the decision to use force is a political question. If they are not, then it is a question of Constitutional rights.
September 9, 2010, 8:10 pmSoronel Haetir says:
I believe this is still far too narrow. Both Germany and Japan had active judicial systems (ignoring the fact that in the 1930s there was likely very little crime against the US or US citizens by people living in those countries).
Congress always has the option of declaring an unjust war, even against fully functioning democracies. Just because it is unlikely to do so does not remove the power. Congress could say “we aren’t going to use this power” (as has been done with letters of marque and reprisal) but that is a statement of policy, subject to change, not a fundamental change in law that courts get to override a changed policy with.
And remember, at least one court has ruled that the AUMF is in fact a declaration of war.
The battlefield is not just where our enemies choose to make it, we have input into that as well. Probably more input, in fact, if we chose to exercise the ability. And it only takes one belligerent to open a new theater.
September 10, 2010, 12:07 pm