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Targeted Killing in US Counterterrorism Strategy and Law:

In the last couple of years, much of my research and writing has been devoted to the law and ethics of war, and with particular focus on targeted killing, the concept of who may be targeted on the battlefield for taking "direct part in hostilities," and robotics on the battlefield. These issues come together in the Predator drone campaign in Pakistan - a centerpiece of the counterterrorism and counterinsurgency campaign that Candidate Obama ran on and his administration has embraced as the 'smaller footprint' of warfare.

I am in favor of targeted killing, the drone campaign in Pakistan, and these forms of increasingly targeted warfare. The Obama administration was right to emphasize them in the campaign and right to see them as a means of more discriminating warfare. It is a tragedy when a dozen innocents are killed in a drone missile attack - but much, much more of one when a military undertakes its activities using artillery. I spent a chunk of my NGO career urging the United States to give up landmines as indiscriminate weapons and to focus its military R&D on coming up not with more destructive weapons, but more discriminating ones. Well, to a considerable extent, it is doing so through robotics, and I find it churlish at best for the humanitarian and human rights groups to turn around and denounce these weapons in their turn. There is a principle behind it - but the principle is merely functional pacifism, the denunciation of the US using force that does not quite have the courage to speak its name.

That said, I have grave concerns that the Obama administration does not take sufficient account that even as its appreciation of its strategic, including humanitarian, use grows, the space of its legal rationale shrinks. We are potentially seeing a coming train wreck between the Obama administration and the international "soft-law" community - the NGOs and advocacy organizations, law professors and academics, UN officials, European governments including their universal jurisdiction prosecutors - over these issues. Or, worse, perhaps the Obama administration sees the coming train wreck, and figures that it can kick the can down the road to get past the next eight years and then let a Republican administration take the heat.

I have written a paper on the topic (shameless self-promotion, but this topic is important) which has just been posted as a working paper to SSRN and to the Working Paper series on national security of Brookings; it will appear as a chapter in a book Benjamin Wittes, ed., Legislating the War on Terror: An Agenda for Reform (Brookings Institution Press 2009).

(show)

Andrew J. Lazarus (mail):
Or, worse, perhaps the Obama administration sees the coming train wreck, and figures that it can kick the can down the road to get past the next eight years and then let a Republican administration take the heat.
How much would you like to bet that the Obama Administration will be followed by a Republican one? Serious wishful thinking here. There aren't enough southern white males to elect a president, and that's about all the GOP has left.
6.6.2009 9:12pm
Kenneth Anderson:
Entirely possible; I make no speculation about that. What I am concerned about is falling into a pattern in which Europeans prosecute Republicans in European courts for various things but then refrain from doing so to Democrats. I discuss the problem here at Opinio Juris a few weeks back, "Gaming Spain and Universal Jurisdiction."
6.6.2009 9:21pm
geokstr (mail):

Andrew J. Lazarus:
There aren't enough southern white males to elect a president, and that's about all the GOP has left.

Gosh, that's what I love about this site. I learn so much from the liberal commenters.

I really didn't realize that there are 59,946,378 southern white males in the US. And there's one thing those dumb hicks will never get right, and that's coming up with a wonderful and conveniently timed national disaster to turn against the party in power. The Republicans are so stupid, in fact, that they arrange their catastrophes to happen a year after they've already won.
6.6.2009 9:36pm
Kenneth Anderson:
Umm ... I want to discuss warbots, predators, targeted killing, and the law behind it, on this thread. And Ember, the Littlest Warbot! We can count southern male republicans another time.
6.6.2009 9:45pm
Dave N (mail):
Geokster,

If we listened to the Democratic talking points then Nixon's victory in 1968 (after the Goldwater fiasco in 1964) was impossible--as was Reagan's victory in 1980 (after Watergate AND 18 year olds now having the vote).

Of course, prior to 1994, the talking point was that Republicans could never be the majority in the House (and I acknowledge, the counterpoint in 2006 was the Republicans could never be the minority).

The reality, of course, is more complex. Typically, eight years is enough for fatigue to set in for the party in power. The only exceptions were 1980, when four years of Jimmy Carter was more than enough, 1988 when GHWB won solidly (though with Dukakis initially favored), and 2000, when Gore won more popular (but fewer electoral) votes.
6.6.2009 9:47pm
geokstr (mail):
Mr Anderson:

I agree with you totally that we should be discussing your post, but I was not about to let that particularly inane snark pass, even if it was off topic. Alinksy's Rule #5, "Ridicule is man's most potent weapon" is only effective if not countered immediately.
6.6.2009 10:07pm
Optimus:
I vote to deploy Ember immediately against the off-topic commenters. Also when the machines become conscious, will we let them vote? Maybe just the ones with guns? And I would likely enlist if I knew I would be an off-site operator and did not have to deal with hands-on violence. Has anyone wondered that taking the soldiers out of the equation makes war in general more palatable to democratic societies? I've always wondered what the tipping point would be (to decide to invade/attack etc versus placating/appeasing) when it was just our bots against the enemy.
6.6.2009 10:25pm
Just an Observer:
From the Brookings chapter:

The problem is that although domestic legal authority exists for the use of force against terrorists abroad, currents are stirring in international law and elsewhere that move to undermine that authority. Powerful trend and opinion-setting — so-called "soft law" — currents are developing in ways that, over time, promise to make the exercise of this activity ever more difficult and to create a presumption, difficult to overcome, that targeted killing is in fact both illegitimate and, indeed, per se illegal except in the narrowest of war-like conditions.


Can you be a little more specific about these trends? Aside from opinion within the "soft law" community, what tangible legal action is on the horizon internationally or domestically?

As far as domestic political attitudes, I have noticed a widespread shift in the opposite direction. Killing missions targeted at both Al Qaeda leadership in Afghanistan/Pakistan and Sadamists in Iraq have enjoyed popular support and even celebration on cable news. This contrasts markedly with the negative political reaction against the Phoenix program in Vietnam.

The most visible objection to the Obama administration's use of drones in the Afghanistan/Pakistan war has come from partisan Republicans making a hollow tu quoque argument to distract from the case against torture.
6.6.2009 10:35pm
Kenneth Anderson:
Fair question, and the easiest thing is to go into the paper - there's a lot of material there from the various groups I mention. If I can find a moment, I'll pull out some of it and put it up as anaddidtion. I think you're right about the domestic situation - and that's precisely why I think it is a collision course. There's a strong consensus on it here; it is regarded as criminal, extrajudicial execution many places elsewhere. As scholar Mark Osiel comments in his new book, The End of Reciprocity, the soft law community of international law is "overwhleming hostile" to the practice.
6.6.2009 10:43pm
Just an Observer:
Thanks.

Overall, I find it hard to think any "soft-law" objections will be taken seriously in the United States, regardless of their merits (on which I am somewhat ignorant and agnostic). There is plenty of international and national hard law (Geneva, U.N. Convention Against Torture, the Torture Act, the War Crimes Act) that seems to have been violated rather brazenly without accountability. Just offending the sensibilities of human rights activists seems more inconsequential by comparison.
6.6.2009 11:13pm
TRE:
I've always found the arguments against targeted killings strange, for example when they were directed against Israel. I agree this is simply how pacifists operate now.
6.6.2009 11:41pm
Pro Natura (mail):
Some questions about targeted killing:

(1) If this is to become SOP for the US, shouldn't we formalize the process with a set of criteria for determining (a) who may be targeted, the circumstances under which they may be attacked, and the rules of engagement for individual attacks; (b) A quasi-judicial procedure for "trying" suggested targets and determining whether they meet the criteria for becoming a target and the rules of engagement for targeting them?

(2) Related to (1a) but a broader policy question: who may we target, e.g., those who have actually mounted operations against the US, those planning such operations, members of foreign governments such as Pakistan's Khan who provided nuclear weapons technology to N. Korea, Iran, etc., foreign leaders like Kim Il Jong?

(3) Should such targeting be publicized or kept secret?
6.6.2009 11:46pm
Pro Scientia:
I was worried that this thread would devolve into people requesting what Pro Natura does in (1)(b): a "quasi-judicial procedure for 'trying' suggested targets." I am loathe to sound too reactionary or potentially barbaric here, but you can't wipe your hands too clean in war. When a commander in the field says he or she needs people with guns in the next town or people with RPG's in some truck Predator Droned (if I can turn it into a verb), it's on that commander to decide whether the use is legitimate. You're not going to send that one to a panel of judges or even other officers.
6.7.2009 12:47am
Philistine (mail):

When a commander in the field says he or she needs people with guns in the next town or people with RPG's in some truck Predator Droned (if I can turn it into a verb), it's on that commander to decide whether the use is legitimate. You're not going to send that one to a panel of judges or even other officers.


Well sure. That's the easy case. There it's simply being used in a tactical military fashion like an artillery barrage.

The hard case is when someone not on the scene (say a CIA operative) says he needs a car, or a building taken out because of who's in it.

At a certain level of remove there are important questions of who is/should be authorized to decide on targets.
6.7.2009 6:58am
Recovering Law Grad:
Prof. Anderson -

Any response to Kilcullen with respect to the wisdom of the drone attacks?
6.7.2009 8:26am
crshedd (mail):
the problem with targeted killing is if the us were to employ this strategy, other countries will also adopt it. they may not be as judicial in it's use.

the who and why will become blurred. some, even in the us, will use it much like the bush doctrine of preventive war, it becomes preventive target killing. even if a court of review were to be employed, a president may decide that having to get clearance within 72 hours of its use will be too much of a burden and we will lose that 'judicial oversight'. and as pointed out on this string, getting clearance beforehand could be problematic.

and much like torture, if the us were to employ this tactic, we could not retaliate against those who may use the tactic on the us.
6.7.2009 8:34am
Pro Natura (mail):

I was worried that this thread would devolve into people requesting what Pro Natura does in (1)(b): a "quasi-judicial procedure for 'trying' suggested targets.

So you take it as a given that the President, for example, should have the right to launch a drone attack on any person any time he decides that that person is a threat to the US and no matter what the collateral damage? What if that person is the elected leader of a foreign country, e.g. Ahmedinjead? And if the President can do this, why not a Secretary of State, an ambassador, a military field officer? After all these persons may be better positioned than the President to decide who should be targeted.

Whether you like it or not, if targeted killing becomes a policy of this country, quasi-judicial or administrative rules will be needed to control the activity.
6.7.2009 9:38am
Ben P:

So you take it as a given that the President, for example, should have the right to launch a drone attack on any person any time he decides that that person is a threat to the US and no matter what the collateral damage? What if that person is the elected leader of a foreign country, e.g. Ahmedinjead? And if the President can do this, why not a Secretary of State, an ambassador, a military field officer? After all these persons may be better positioned than the President to decide who should be targeted.


That's an interesting question, but how is this fundamentally different from the President deciding to send in a Seal Team or for that matter, an Armored Division to do the same job?

The President does have very broad commander in chief powers, and I don't think there are many substantive restrains on "how" he chooses the targets of those powers except in congress's ability to declare war and subsequent war powers acts.

That seems to me to be essentially what you're asking here, is "who gets to tell the president how to conduct a war?"

It's only blurred by the odd fact that the people we tend to be fighting these days aren't national governments. We can plausibly attempt to prosecute a war inside the space of another country without them declaring war back (but also possibly without their consent).
6.7.2009 9:47am
Kenneth Anderson:
Recovering Law Grad:
Any response to Kilcullen with respect to the wisdom of the drone attacks?

Kilcullen is a serious guy and his views merit very close consideration. He might be right - I don't think so, on balance, but much more importantly, the Obama administration and the military do not think so, on balance, at this point. There are always second-order effects of uses of force, including blow back from the local population and many other things. The mere existence of such second order effects is inevitable; deciding whether the secondary effects outweigh the primary effects is a tough call and might vary depending on the politics. So while in my view Kilcullen raises an important point, but at this moment, a secondary one that is outweighed by the primary, what matters more is that the Obama administration - the administration that is going to show how the United States loves and admires and follows international law as the soft law community sees it - thinks that the benefits of the campaign far outweigh the costs to which Ku=ilcullen points.

From the standpoint of the soft law community, the task - if you don't like this strategy - is to raise the secondary costs until they overshadow, as a matter of politics internationally, rather than local military strategy, the benefits. I would say that that also bears costs, including the loss of a much more discriminating weapon.

However, at the end of the day, my paper really takes the Obama administration on its own assumptions that targeted killing is an effective strategy, and asks whether it will be able to sustain it in the face of a growing pushback by international law people who have made their own judgments about what is a discriminating weapon or not.
6.7.2009 10:38am
Raoul (mail):
What I read here is: It is only good if a republican does it. I am sure targeted can be defended legally but I would like to see more discussion on the morality of collateral damage. One thing for sure-if we can warn innocents without compromising the target or find other ways to exterminate the enemy we should.
6.7.2009 10:47am
EricH (mail):
From Professor Anderson's piece:
Amnesty takes the position, in other words, that human rights law — including broad rights against arbitrary killing and guaranteeing due process—should have applied in this instance [the 2005 killing of Haitham al-Yemeni with a CIA Predator strike in Pakistan] irrespective of whether it was an armed conflict or not. It is hard to see the circumstances in which a targeted killing could be permissible under such a standard, which is precisely Amnesty's point.

As critics of the US Supreme Court's rulings that detainees have some habeas rights have argued, it is passing strange that the US government must guarantee some sort of due process in order to hold these individuals but not give any guarantee to drop bombs on them.

But doesn't it make sense then that if the US government must give some sort of protections when deciding to hold terrorists that they should (must?) give some sort of process with oversight when targetting them for death, i.e., proof that efforts to capture were exhausted, et cetera?

It seems to me that the Court's rulings undermine (or strenthen depending on your view) the argument that these targetted individuals have some due process rights.

It's clear that some sort of collision on this matter is coming. Eight years from now or four or one.
6.7.2009 10:47am
EricH (mail):
It seems to me that the Court's rulings undermine (or strenthen depending on your view) the argument that these targetted individuals have some due process rights.

Correction: "...undermine the argument that these targetted individuals don't have some due process rights" before being attacked.
6.7.2009 11:07am
Howard Gilbert (mail):
There is no meaningful distinction between a Hellfire strike from a Predator against an enemy military commander hiding among civilians and one fired by an A-10 against the same commander during the battle of the Panjshir Valley. This is not a "targeted killing", unless you also use the term for a sniper killing a enemy commander with a long range rifle. This places Predator attacks against Taliban commanders in Pashtun tribal areas (on either side of the Afghan-Pakistan border) in the category of combat against a legitimate military target during armed conflict.

This is different, however, from the Predator attack against an al Qaeda military leader in Yemen. One might argue that the attack on the USS Cole caused the armed conflict with al Qaeda to extend to Yemen, but clearly the situation there is different from the Taliban main force in Afghanistan and Pakistan. Drone attacks against al Qaeda in countries not directly part of the armed conflict are more reasonably classified as "targeted killing", and that term should be reserved for those isolated incidents.
6.7.2009 11:11am
EricH (mail):
There is no meaningful distinction between a Hellfire strike from a Predator against an enemy military commander hiding among civilians and one fired by an A-10 against the same commander during the battle of the Panjshir Valley.

I'm wondering, however, if the fact that strike "A" is called in or ordered by a military officer in the field and strike "B" is ordered by a CIA officer in Langley makes a difference?

Legally, not militarily/operationally.
6.7.2009 11:19am
Lou Gots (mail):
Public SOP's/ROE's? Absolutely not, unless as intentional deception. It is axiomatic that the enemy must be left guessing as to our capabilities and intentions. He who defends everywhere, defends nowhere, and we wish the enemy to understand that no place is safe from death from above..

Targeted destruction of enemy command and control assets, as in the case of the Yamamoto shoot-down, is per se lawful. Modern technology in the form of UAV/PGM, enabled by cyber capabilities, tends toward lawfulness in that its discrimination reduces collateral damage. No longer must we flatten a city to take out a single Naval headquarters buiding, or an operationally important rail center, as had been the cases at Hiroshima and Dresden. Indeed it is no longer necesary to take out an entire embassy building to destroy out the room from which militarily relevant signals are emanating. There will be collateral damage, yes, but now much less that with older technologies.

Surely no one believes that our enemies forbear to attack us because of some sense of hudna? We know better after 9-11. We are dealing with terror, against which the only antidote is superior force.

Those who would kick against the goad of the end of history would like to shackle our displacement of the military threshhhold by ambulance-chaser ledgerdemain. No. The Law of War, euphemistialy sometimes called the "Law of Armed Conflict," has ever been practical and accepting of new technologies. We should be celebrating how the American way of war has enabled peace-keeping and has reduced the risks to the innocent.
6.7.2009 11:31am
EricH (mail):
I'm wondering, however, if the fact that strike "A" is called in or ordered by a military officer in the field and strike "B" is ordered by a CIA officer in Langley makes a difference?
Had my examples backwards but you get the point...military authority versus civilian authority
6.7.2009 11:38am
Kenneth Anderson:
Well, it certainly makes a difference in US domestic law. One issue is what kinds of operations require going through the process on informing Congress and getting sign off from the president. It's not as simple quite as CIA v military, but there is a cluster of issues there. There are international law issues raised in the paper about operations that fall short of the legal definition of armed conflict and which, under US law, might lawfully be undertaken by the CIA as uses of force withint he meaning of self defense in international law. The US has never regarded Art 51 of the UN Charter to prohibit anticipatory self defense, nor has it ever accepted that the US cannot lawfully go after terrorists taking haven in a third country that is either unwilling or unable to deal with them. This doctrine is laid out in detail in an address by the STate Dept Legal Advisor, Abraham Sofaer, in 1989, the Solf lecture at the JAG school and found in the Military Law Review for that year. So the answer is, yes, there are lots of ways in which both internaitonal and US law put different requirements on the miltiary versus the CIA.
6.7.2009 11:46am
EricH (mail):
Well, it certainly makes a difference in US domestic law

Thanks. Yes, the domestic law differences are obvious. One of the Conspirators raised the question of whether the AUMF permitted such attacks (i.e., Predator) on exclusively Taliban forces inside Pakistan.

But I was wondering either within international law or from critics (Amnesty, et cetera) that there's a difference.

Would Amnesty require, through law, a military commander in the field to go through some sort of procedural or due process checklist before authorizing a counter-strike. E.g., exhausted all means of capturing the individuals, et cetera.

I wonder, as well, if the more "liberal" (for want of a better shorthand) OLC lawyers might be more sympathetic to those views?
6.7.2009 11:55am
Bob from Ohio (mail):

the problem with targeted killing is if the us were to employ this strategy, other countries will also adopt it. they may not be as judicial in it's use.


Most of them do not have the means.

The US and Israel are so far ahead in drones right now that the rest of the world might as well be using swords. They can eventually get them of course but hopefully then we will be even further along.


So you take it as a given that the President, for example, should have the right to launch a drone attack on any person any time he decides that that person is a threat to the US and no matter what the collateral damage?


Yes.

There are, btw, almost certainly "rules" (guidelines rather) being followed right now in day to day killings.
6.7.2009 12:31pm
EricH (mail):
There are, btw, almost certainly "rules" (guidelines rather) being followed right now in day to day killings.

Of course, one of the questions - if not the central one raised by Professor Anderson - is whether these guidelines should be made by the Executive Branch, statutory laws made by the political branches or constitutional requirements (made through US courts and/or treaties).

And especially whether they should be reviewable by the civilian US/international courts.

I think we all agree that there should be some guidelines. The question is who makes them and how should they be enforced.
6.7.2009 12:47pm
Pro Natura (mail):

So you take it as a given that the President, for example, should have the right to launch a drone attack on any person any time he decides that that person is a threat to the US and no matter what the collateral damage?

Yes.
So you believe President Obama has the right to order a Predator strike on Rush Limbaugh?
6.7.2009 12:52pm
Pro Natura (mail):
By the way, I do believe that the United States has a right to target and kill foreigners on foreign soil who are actively working to seriously harm the United States. I believe that the country has this right regardless of the status of the target or the diplomatic status of the country where the planned attack will occur and regardless of foreign opinion.

However, when these actions occur outside of an armed conflict, if the US wishes to appear and to be something other than a lawless rogue state, then our country needs to formalize the process for such assassinations. At a minimum this would include:

(1) Promulgating clearly enunciated rules defining the situations and behaviors that put individuals and groups at risk of such a response.

(2) describing in detail the circumstances that might cause us to violate another country's neutrality ans/or sovereignty.

(3) Creating some kind of review committee and process to ensure that individuals and groups are not arbitrarily targeted for assassination/destruction and that the collateral and diplomatic damage that may be incurred is not too great. [I'd even be willing to accept something like the Tudor and Stuart Star Chambers as a model for such a committe and process.]

I'm not suggesting that this review need be judicial in nature nor have any special regard for the rights of the targets. I just think that such review is necessary to prevent arbitrary and capricious murders becoming a standard part of US policy.
6.7.2009 1:09pm
EricH (mail):
I believe that the country has this right regardless of the status of the target or the diplomatic status of the country where the planned attack will occur and regardless of foreign opinion.
I wonder if the US has - or should have - the same right to target radical imams living in, say, Great Britain as we do targetting those living in Quetta or isolated areas of Pakistan?

Should - or can - Congress or the Executive Branch (both working together) precisely draw lines where one is acceptable and the other not?

Lines must be drawn, as they have. The question is whether we can continue to do this (mostly) domestically or whether international standards will inevitably jump in.

[It would be interesting to see what type of review/process the CIA uses internally before authorizing such strikes]
6.7.2009 1:25pm
http://volokh.com/?exclude=davidb :

Overall, I find it hard to think any "soft-law" objections will be taken seriously in the United States, regardless of their merits (on which I am somewhat ignorant and agnostic). There is plenty of international and national hard law (Geneva, U.N. Convention Against Torture, the Torture Act, the War Crimes Act) that seems to have been violated rather brazenly without accountability.

Indeed. If the UN is really going to take away our guns, as we're repeatedly told by other commenters on this site, then the blue helmets certainly have their work cut out for them.
6.7.2009 1:33pm
Harry Eagar (mail):
'Functional pacifism' I like that, wish I'd thought of it.

I would think that targeted killed, as opposed to the other kind, would be a no-brainer. Isn't the other kind the main component of our definition of terrorism?

Although I don't see the words 'asymmetrical warfare' in this post, they are lurking in the background. Bad words, which have distorted the argument.

The US has the capacity to make warfare asymmetrical to any degree you care to specify. The functional pacifists, Kilcullens and others are devoted to making warfare symmetrical -- that is, from the point of the US, losable -- while saying the opposite.

The real objection to Kilcullen is that he accepts never winning.

I think we lost a teachable moment after the end of the Tamil war when the Europeans made noises about proscuting the victors. They should have been asked, where were you earlier?
6.7.2009 2:51pm
EricH (mail):
The real objection to Kilcullen is that he accepts never winning.
Gosh, I don't think anything Kilcullen has stated could lead one to conclude that he doesn't want us to win.

His concern is simply that the costs of these strikes - e.g., engendering a backlash, driving AQ/Taliban deeper into Pakistan, are higher than the benefits.
6.7.2009 3:05pm
paul lukasiak (mail):
I'm still waiting for Prof. Anderson to explain why he uses the euphemism "targetted killing" when he's talking about flat out murder and/or political assassination. We aren't at war with Pakistan, and killing people in Pakistan is murder, pure and simple. It doesn't matter is Bush ordered the murder, or Obama is ordering it, its still murder.
6.7.2009 4:01pm
M N Ralph:

And Ember, the Littlest Warbot!


Sounds like the title of a book I'd read to my eight-year old.
6.7.2009 4:12pm
Andrew J. Lazarus (mail):
I tend to discount any comment that includes logic (?) like the following…
As critics of the US Supreme Court's rulings that detainees have some habeas rights have argued, it is passing strange that the US government must guarantee some sort of due process in order to hold these individuals but not give any guarantee to drop bombs on them.
Is it any more strange then the incontrovertible idea that you may shoot to kill a soldier on the battlefield but not after he has been detained? The argument quoted would also suggest that it was passing strange that in WWII the American armed forces in Normandy could not kill French civilians in cold blood, although they could do so as collateral damage in bombing and shelling.

Maybe what is passing strange is the idea of laws of war at all. But in that case, the question goes far beyond beliefs held by (inter alia) a majority of the Supreme Court.

In the instant case, I would suggest that we have given notice through the AUMF that we are at war with Al Qaeda (or, perhaps, that we are responding to their state of war with us). That certainly covers strikes in Afghanistan and Pakistan.

I also question the long-term efficacy of targeted attacks. It's not as if repeat Israeli decapitation of Hamas in Gaza permanently crippled the organization, is it? If by some fluke, Al Qaeda had managed to crash its planes into the Pentagon and Capitol more effectively, we would hardly have surrendered, ourselves.
6.7.2009 5:05pm
EricH (mail):
Is it any more strange then the incontrovertible idea that you may shoot to kill a soldier on the battlefield but not after he has been detained?

The Supreme Court, of course, has given (some) constitutional rights to enemy alien non-combatants not enemy alien soldiers.

If enemy alien non-combatants have constitutional habeas or due process rights then those rights apply whether they are being held by the US government or whether the US government is about to drop a bomb on them.

The analogy to soldiers on or off the battlefield - where the law is settled and clear - is completely different. Unless one believes that alien soldiers have constitutional due process rights as well.

In which case, I'll surrender to the nearest authority.
6.7.2009 6:16pm
Mark Bahner (www):
Kenneth Anderson writes, "Umm ... I want to discuss warbots, predators, targeted killing, and the law behind it, on this thread."

Don't you think it makes a difference which country it's in? Isn't it significantly different if the targeted killing is happening in Pakistan versus Afghanistan?
6.7.2009 6:22pm
DennisN (mail):
Mark Bahner:



Don't you think it makes a difference which country it's in? Isn't it significantly different if the targeted killing is happening in Pakistan versus Afghanistan?


It doesn't. It's war, declared or not. We can kill our enemies wherever we can find them. In war, we kill on suspicion. Look up "reconnaissance by fire."

As to whether or not it is diplomatically expedient to kill foreign nationals, that's a matter of National Policy. That's political.

The only recourse between nations is diplomacy or war.
6.7.2009 6:31pm
Mark Bahner (www):
"It doesn't. It's war, declared or not."

If it's war, when will it end? When will the alleged "War on Terror" end?

"We can kill our enemies wherever we can find them."

I suggest "we" not try this strategy if we "find" our "enemies" in or near the persons of the leadership of Russia, China, or any other nation with nuclear weapons capable of reaching U.S. soil.

"The only recourse between nations is diplomacy or war."

But our "enemy" at the present time is not a nation.
6.7.2009 6:40pm
Harry Eagar (mail):
EricH, the short answer would be, because Kilcullen said so, in his book.

A longer answer is here
6.7.2009 8:30pm
Harry Eagar (mail):
Sorry, looks like I messed up the link. Hope this is better:
here
6.7.2009 8:33pm
Mark Bahner (www):
"I am in favor of targeted killing, the drone campaign in Pakistan, and these forms of increasingly targeted warfare."

How about the Al Shifa plant in the Sudan?

What do you think about the legalities there?
6.7.2009 9:31pm
EricH (mail):
Sorry, looks like I messed up the link. Hope this is better

Thanks for the link/review.

That reviewer, it seems to me, is arguing that Kilcullen is mistaken as to how vast the enemy is (Kilcullen thinks it's a smaller part of Islam) but not that he doesn't think there is an enemy that must be destroyed.

Thusly:
"He [Kilcullen] thinks it is a small coterie of takfiri (which he prefers to salafist, jihadi etc.) Muslims, but not Muslims generally and not Islam as a political ideology. He's wrong. Islam is the enemy of not just the West but of all civilization, because all Muslims, not just takfiris, accept the doctrine of Islamic supremacy."

Of the two polarities, I'm in the middle (my own Dick Morris triangulation strategy).
6.7.2009 9:40pm
Andrew J. Lazarus (mail):
EricH: My response apparently did not make myself clear. The fact that long-time usages of war do not allow for the cold-blooded execution of prisoners could be seen as "passing strange" in the same sense as granting limited rights to Gitmo detainees. This blog's comments threads were full of claims that since spies could be executed after a trial, it surely must be permissible to torture them, non-lethal torture being less than execution. (Presumably one could make the same argument for domestic criminals who have committed capital crimes, although somehow since Dick Cheney never ordered the torture of the wretched SOBs on American Death Rows, no one raised it.) This argument founders, I suggest, for the same reason as the "passing strange" argument presented here. It juxtaposes what appears to be a lesser act (detention; torture) with a greater (death from aerial attack; execution) and by ignoring differences in context creates a paradoxical result. In the case of detention, the legal precedent was not as clear, although I suggest that permanent near-incommunicado detention (including a large number that, Bush defenders notwithstanding, did not take place under battlefield conditions) was as unprecedented in American history as anything the Supreme Court ordered.
6.7.2009 11:12pm
Ricardo (mail):
If enemy alien non-combatants have constitutional habeas or due process rights then those rights apply whether they are being held by the US government or whether the US government is about to drop a bomb on them.

That's not the case. A Pakistani citizen in Pakistani territory who is not in U.S. custody, control or jurisdiction cannot be said to have rights under the U.S. constitution. The laws of war offer some protection but if he is known to be a member of a terrorist outfit fighting against the U.S., he is fair game. Once he is detained and under the control of the U.S. government, the situation changes -- for one thing, he doesn't pose the same potential risk to the U.S. government once he is in custody as the government can control his movement and his communications. As I read the Supreme Court's decisions, the more control the U.S. government exercises over a foreign citizen in a foreign territory, the more rights start to attach to the person.

Aside from this, there is also the point that many who wound up in U.S. custody would not have found themselves the targets of drone killings or military actions. So "potential targets of drone killings" and "Guantanamo detainees" are not really comparable groups of people as the former group is likely to be more carefully selected and therefore more likely to contain truly dangerous individuals than the latter.
6.7.2009 11:55pm
DennisN (mail):
Mark Bahner:



"It doesn't. It's war, declared or not."


If it's war, when will it end? When will the alleged "War on Terror" end?


That's a matter of international politics. My answer would be that it ends when we judge they (whoever "they" are, are not of sufficient danger to us to be worth killing, or we decide on a different strategy. Personally, I'd be surprised if it is over in the next hundred years, but I hope I'm wrong.




"We can kill our enemies wherever we can find them."


I suggest "we" not try this strategy if we "find" our "enemies" in or near the persons of the leadership of Russia, China, or any other nation with nuclear weapons capable of reaching U.S. soil.


That's a matter of national strategy, but yes, I agree with you. Just because we have the capability of doing something does not mean it is a smart thing to do. But that's a matter of international diplomacy. We have the capability to nuke Moscow. I suggest that Moscow is completely safe from our nukes.



"The only recourse between nations is diplomacy or war."

But our "enemy" at the present time is not a nation.


Then we can kill them like dogs.
6.7.2009 11:56pm
John Moore (www):

As I read the Supreme Court's decisions, the more control the U.S. government exercises over a foreign citizen in a foreign territory, the more rights start to attach to the person.

As I interpret this, it means that killing (which also is likely to kill innocent bystanders) is a tactic strongly favored over intelligence gathering by capture and interrogation.

Which is utterly insane, whether it's the law or not.
6.8.2009 2:18am
Ricardo (mail):
As I interpret this, it means that killing (which also is likely to kill innocent bystanders) is a tactic strongly favored over intelligence gathering by capture and interrogation.

That would depend on whether the objective is intelligence gathering or neutralization through killing. Civilized countries have always recognized boundaries between what you can and cannot do to someone of intelligence value once they are in your custody. Your claim that this is "utterly insane" is not a persuasive argument to the contrary.
6.8.2009 2:31am
srp (mail):
The subtle problem is that highly discriminate precision weapons combined with a pervasive and critical media actually reduce our freedom of action and deterrence. We used to be able to say "make sure your neighbors aren't screwing with us, because if we go after them in self-defense your whole neighborhood is going with them." Now we're creating the expectation of no collateral damage, or rather, the amount of collateral damage required to cause a backlash against us declines as the perceived precision of our weapons increases.
6.8.2009 3:52am
DennisN (mail):
srp:

Now we're creating the expectation of no collateral damage, or rather, the amount of collateral damage required to cause a backlash against us declines as the perceived precision of our weapons increases.

This also makes the deterrence less effective. It is less politically frightening to think that a house in your territory will be blown up, than that half a city will be bombed to smoking rubble.

Ironically, while we make warfare less indiscriminately horrible, we make it more likely, and more common.

I don't know a solution to that. I'm not advocating running around turning the cities of people who offend us into Hamburgs.
6.8.2009 7:31am
buffpilot (mail):
Dennis,

"I'm not advocating running around turning the cities of people who offend us into Hamburgs."

Actually that is a discussion topic in the pentagon/military circles right now. How do you conquer a country without getting an insurgency? Why did we get one in Iraq and not one in Germany or Japan post WWII? On the macro level the only difference between Germany and Iraq: Germany had a large part of its military age males killed or wounded, a good cnunk of its civilian population killed, wounded or displaced, and most of its medium-to-large cities leveled. So to avoid an insurgency and truely end a war, must we level the country? Iraq was taken with a minimal of force and barely any destruction of the infastructure.

Was the fact that we took Iraq bloodlessly from both our and Iraq view lead to the Iraqi's not beleiveing they were defeated and thus the insurgency? If so what would it take to have a Islamic country know its been defeated and go the German route vs. the Iraq/Palistinain route?

First time post, long reader and excuse my poor spelling...
6.8.2009 9:40am
Gramarye:
buffpilot:

I think the differences go beyond that, however. Germany and Japan both had recognized central governmental institutions capable of surrendering on behalf of the body politic. Yes, there were scattered holdouts in Germany, and such holdouts would have seemed much more numerous had the magnification effects of the modern media existed in 1944. That's a footnote, however. In Iraq, not only did Hussein never surrender (indeed, he had his rather comical crony out in front of the cameras urging people to fight us to the end), but when he vanished from Baghdad, there was no one with the credibility to surrender on behalf of "the Iraqi people" (which, as we well know, were a heterogeneous lot to begin with).

If Japan or Germany had consisted of three or four different ethnic factions with deep historical antipathy for one another, imposing a peace in those countries might have been similarly arduous. Likewise, if Iraq had been single-ethnic and single-sect, tamping down violence there immediately after the invasion would likewise have presented fewer challenges.

That said, I do not expect that one will ever reduce a population to unconditional surrender using nothing but targeted drone attacks against their leaders. That is not the purpose of such attacks, and it is certainly not America's goal to be in charge of running Pakistan (to say nothing of Yemen and other countries even further from the public radar where we've engaged in the occasional drone strike).

With respect to the shrinking legal space in which tactical strikes occur, I will say that I generally agree with Prof. Anderson's identification of the problem. I wasn't able to download the PDF from SSRN, so I can't say anything about any proposed solutions he might have offered. I'm not convinced that merely "asserting" our traditional, inherent right of self-defense would be sufficient to preserve the legal room for such strikes, because the factions that have captured the international legal apparatus in many systems asserting universal jurisdiction would consider the opportunity to "carefully consider and reject" (or some similar opinionese) such a rationale a fillip on top of the opportunity to prosecute and sentence an American "warmongering" official or ex-official. They would simply repudiate that traditional self-defense rationale whenever the opportunity presented itself. Functional pacifism, again: writing or rewriting the rules of war to make playing by the rules as impossible as possible.
6.8.2009 11:10am
John Moore (www):


As I interpret this, it means that killing (which also is likely to kill innocent bystanders) is a tactic strongly favored over intelligence gathering by capture and interrogation.



That would depend on whether the objective is intelligence gathering or neutralization through killing. Civilized countries have always recognized boundaries between what you can and cannot do to someone of intelligence value once they are in your custody. Your claim that this is "utterly insane" is not a persuasive argument to the contrary.

From the standpoint of the individuals who are subjected to our non-judicial actions in a non-declared war, I suspect they really don't care about the context. Civilized countries try to avoid unnecessary suffering and death. Period. Context determines how justified it is (within limits - it can't be all situational ethics).

We are currently in a situation where we hamper our ability to both defend ourselves and reduce unnecessary harm to innocents abroad by limiting out intelligence gathering capability due to strict rules on interrogation (and probably more importantly, puritanical and hypocritical focus on the captives over those not "in our hands").

As to targeted killing itself, one would have to ask why the US Phoenix program in Vietnam has widely been condemned as terrible, while our attacks in Pakistan were not. I suspect it is partly due to the psychological impact on those who choose to condemn or not - the up close and personal impact of the Phoenix targeting vs the anonymity of the killer and killed in Pakistan. Probably the single most important practical, as opposed to theoretical difference, is whether the war in which the actions take place are popular or unpopular with the opinion making liberal elite.
6.8.2009 12:05pm
Mark Bahner (www):
"So to avoid an insurgency and truly end a war, must we level the country?"

No, but it would be wise to get the army (and police) of the defeated enemy on your side, rather than against you.

For example, it would have made sense for the U.S. to pay the salaries of every Iraqi military person of the level of colonel or below, as well as to pay the salaries of all Iraqi police members, for the first ~5 years after we invaded.
6.8.2009 12:27pm
Mark Bahner (www):

But our "enemy" at the present time is not a nation.


Then we can kill them like dogs.


I'm not sure what your meaning is for "can." We "can" blow up a pharmaceutical plant in the Sudan, killing a man on the night staff, and likely causing dozens, hundreds, or thousands more to die of disease.

We "can" because we did. The only question is whether that act violated any law.
6.8.2009 12:40pm
deepthought:
Peter Singer has a new book out (Wired for War: The Robotics Revolution and Conflict in the Twenty-First Century 2009) that raises some of the same issues. From an essay in The New Atlantis:


(Discussing the friendly fire incident where Canadian soldiers were killed by a F-16 in Afghanistan)Change this scenario to an unmanned system and military lawyers aren't sure what to do. Asks a Navy officer, "If these same Canadian forces had been attacked by an autonomous UCAV, determining who is accountable proves difficult. Would accountability lie with the civilian software programmers who wrote the faulty target identification software, the UCAV squadron's Commanding Officer, or the Combatant Commander who authorized the operational use of the UCAV? Or are they collectively held responsible and accountable?"

This is the main reason why military lawyers are so concerned about robots being armed and autonomous. As long as "man is in the loop," traditional accountability can be ensured. Breaking this restriction opens up all sorts of new and seemingly irresolvable legal questions about accountability.

In time, the international community may well decide that armed, autonomous robots are simply too difficult, or even abhorrent, to deal with. Like chemical weapons, they could be banned in general, for no other reason than the world doesn't want them around. Yet for now, our laws are simply silent on whether autonomous robots can be armed with lethal weapons. Even more worrisome, the concept of keeping human beings in the loop is already being eroded by policymakers and by the technology itself, both of which are rapidly moving toward pushing humans out. We therefore must either enact a ban on such systems soon or start to develop some legal answers for how to deal with them.

If we do stay on this path and decide to make and use autonomous robots in war, the systems must still conform with the existing laws of war. These laws suggest a few principles that should guide the development of such systems.
6.8.2009 1:20pm
Harry Eagar (mail):
'If so what would it take to have a Islamic country know its been defeated'

That one's easy, in concept, but in practice impossible because of our touchiness about religion.

I suggested it well before the invasion of Afghanistan: Make it a war between us and Allah. We say, we're takin' out your sacred sites, stop us.

I call this the Bonifacian solution. Boniface cut down the sacred grove of the Germans, and when the gods did nothing, the religion collapsed. Boniface himself was later murdered, but too late to attribute it to the gods.
6.8.2009 1:31pm
whit:

This also makes the deterrence less effective. It is less politically frightening to think that a house in your territory will be blown up, than that half a city will be bombed to smoking rubble.




star trek already had this episode. a society had so perfected war that the two sides used a computer to determine who had been killed by the latest strikes, then these people reported to death chambers for painless termination. due to the antiseptic and non-horrible nature of this warfare, it had continued for centuries (iirc).

kirk showed them that war has to be horrible, ugly, brutal, etc. because that helps ensure that it won't last forever and (theoretically) people will be more circumspect about starting one.

both the US and israel suffer from expectations that go along with targeted warfare. we are EXPECTED now to kill only the bad guys with surgical skill, whereas the technologically inferior other side has carte blanche to lob inaccurate missiles and use IED's because that's all they can do.
6.8.2009 1:33pm
methodact:
I'm in favor of something like an Operation Salvage Nobel, to rehabilitate the image and credibility of the Nobel Peace Prize, after it was shamefully given to global warming hoaxter Al Gore.

In my judgment, the ideal counter to that outrage is to nominate Alex Jones and campaign for the Nobel Peace Prize to go to him.

Alex Jones has already warned that we cannot use drones overseas, without them eventually being deployed here, by the US government, against the American people. Mr. Jones (won't any honest university award him an honorary doctorate?), has discussed that Census workers are already taking GPS readings on everyone's doorsteps.

We know the government already possesses a "secret weapon" that allows them to target and kill remotely, and that at some point, just clicking on a nick online will track down and dispatch death summarily.

The Nobel Peace Prize awarded to Alex Jones, will surely slow the arrival of that sad day, down.
6.8.2009 2:19pm
DennisN (mail):
buffpilot:

Actually that is a discussion topic in the pentagon/military circles right now. How do you conquer a country without getting an insurgency? Why did we get one in Iraq and not one in Germany or Japan post WWII?


We did get into an insurgency in Germany post WW-II. The Werewolves were quite active for several years before the general population had enough.

The situation in Japan, I think, had a lot to do with the preservation of The Emperor as a figurehead. That, and the fact that Japan had been unconquered for so many years, gave us considerable street creds.

The factor that you mention, that we systematically devastated their civilian infrastructure, also had a major part to play. It's hard to maintain an insurgency when you can't feed or house yourself. It helps even more when your conquerors are culturally similar and are trying to keep you fed.

Was the fact that we took Iraq bloodlessly from both our and Iraq view lead to the Iraqi's not believing they were defeated and thus the insurgency? If so what would it take to have a Islamic country know its been defeated and go the German route vs. the Iraq/Palistinain route?


I truly hope we don't have to find out. In the end, if we do go there, it may make the fate of Germany look like a Sunday School picnic. A strong point can be made that the war is not over until the enemy is incapable of defending themselves. That obviously was not the case in Iraq.

This brings up a side-issue, that is the status of combatants in an unconventional war. Modern Law of land Warfare grew up from Europe's reaction to the Thirty Years Wars. The Peace of Westphalia evolved into today's Hague and Geneva Conventions. One of the main objectives of those conventions was to separate Lawful Combatants from non combatants. In essence, war was reserved for Nation States, who agreed to treat each other's helpless casualties (including POWs) with a certain dignity. OTOH, unlawful combatants could be treated like criminals and executed.

We are getting away from this with the current crop of irregular wars. Where the enemy does not distinguish itself from Civilians using the HC tests, the distinction between Lawful Combatant and helpless Non Combatants is blurred. The natural military response is to treat them all as combatants. Kill 'em all and let God sort 'em out.

A popular uprising can easily fall into the Unlawful Combatant category, with potentially dire results for the general populace.

Total War is a genie I would really like to keep in the bottle.


buffpilot, be gentle with those Grey Ladies, they're getting long in the tooth. ;-)




whit:

both the US and israel suffer from expectations that go along with targeted warfare. we are EXPECTED now to kill only the bad guys with surgical skill, whereas the technologically inferior other side has carte blanche to lob inaccurate missiles and use IED's because that's all they can do.


I've long argued that that sort of forbearance is a strategic mistake. The Palestinian terrorism continues with the consent and encouragement of the locals. I would argue that sniper fire should be suppressed with artillery. Mortar fire should be suppressed by shelling entire grid squares (1 km square) flat. Bring it home to them with interest.

A war is not won until the defeated side believes it is defeated, and loses the will to fight. Anything less is the recipe for endless warfare.
6.8.2009 2:20pm
Ken Arromdee:
I think the differences go beyond that, however. Germany and Japan both had recognized central governmental institutions capable of surrendering on behalf of the body politic.

I would also suggest that there were no outside forces with a vested interest in seeing that Germany and Japan have insurgencies.
6.8.2009 5:18pm
Mark Bahner (www):
I suggested it well before the invasion of Afghanistan: Make it a war between us and Allah. We say, we're takin' out your sacred sites, stop us.


If all the Muslim-majority countries in the world blew up every church and cathedrals in the U.S., do you think that would defeat the U.S.?

Suppose they blew up all the churches and cathedrals in Europe? Would that defeat anyone?
6.8.2009 9:35pm
ReaderY:
The war power is nothing less than the power to kill, that is, the power to determinate on demand. The Supreme has typically held that when the power to terminate on demand exists, it is unprofessional for the professionals in charge of termination procedures to permit themselves to be distracted from the performance of their objectives.

As Justice Stephens explained it in his concurrence to Stenberg v. Cahart,


That holding--that the word "liberty" in the Fourteenth Amendment includes a woman's right to make this difficult and extremely personal decision--makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty.


Here, too, there is a constitutional right to make a similar very difficult and extremely personal decision when necessary to protect a different but similarly important constitutional right, the constitutional right to provide for the common defense and security. Is it any more possible to understand how there could be any legitimate interest in requiring a military professional to follow any procedure other than the one that he or she reasonably believes will best protect the people in their exercise of this similarly fundamental constitutional liberty?

Further, is there any reason to believe that opponents of choice are actually motivated by the "humanitarian" concerns they claim? Denying Americans their right to make the most basic decisions about their own security is as cruel, as barbaric, as inhumane, as profoundly disrespectful of American's basic human dignity as denying the right to choose similar kinds of targeted termination procedures when the interest involved is their reproductive health. Can it really be seriously believed that a person so respectful of Americans' privacy and dignity that he isn't even willing to trust them with the right to make choices about their own security is any more likely to be acting out of humanitarian considerations then a person who would deny American's the right to choice about their reproductive health?

It's been repeatedly argued that people who seek to deny Americans choice about termination procedures are not acting from humanitarian considerations at all, but are seeking to degrade Americans and destroy their dignity. These arguments would seem to have every bit as much validity to them in this context as they are in the other. If they're true at all, they're probably true here too.

Americans, after all, seem to have a grasp of their opponents psychology and motivations that is truly remarkable. They say they know the true sources of their opponents' motivations, and far better than their opponents do.

If we're willing to believe that opponents of expanded choices and greater freedom of action in the abortion context could only possibly be thinking the way they do because they're secretly possessed by demos, why not believe it here? After all, here's another case where we have a choice between greater freedom of action for Americans and respect for professionals on the one hand, and "traditional values" and listening to preachers and so forth on the other. Shouldn't this be a really easy call?

What? Not such an easy call? Why not? if all that demonization rhetoric just doesn't seem like it holds water, maybe it doesn't hold as much water as people have managed to convince themselves in the abortion context either.
6.9.2009 1:31am
buffpilot (mail):
Dennis,

Thanks - I no longer fly the old birds anymore. Retired after 20 but did get to see Afghanistan from 35,000 ft....

Maybe we could learn from the Sri Lunka's defeat of the Tamil Tigers. Maybe that is how you crush an insurgency. But I worry that if we cannot find a 'humane' way to defeat an Islamic enemy, we will find another path to victory. Remember Falujah (sp?) could have been solved with one B-61 instead of the bloody house-to-house fight the Marines actually did.

If we had done that would the insurgency have stopped cold?
6.9.2009 8:49am
DennisN (mail):
Buffpilot:

I think we can learn a lot from Sri Lanka's defeat of the Tamil Tigers. If you want to win a war, set out to win it. There is no humane way to do so. This is the lesson of William Tecumseh Sherman. You stop killing them when they are unable to resist you.

The doctrine of limited, "humane" wars does a lot to encourage those wars.

That having been said, I am still reluctant to the Roman solution of , "create devastation and call it peace." I'll go there if I have to, but I think it is worth considerable US expenditure in lives and treasure to avoid it.

One of the problems with the Long War, the war against radical islamists, is that we don't know how to fight it. We have no paradigms. We have no proven doctrines. Iraq was an experiment; one that went rather well, all things considered. A'Stan is another experiment. It is less likely to turn out well in the end, because of the structural differences between Iraqi and Afghani societies. But we will learn lessons there, as well.

As long as we do not consider radical islamism to be an existential threat, we will pussy-foot around and play the dilettante at war. If we ever do decide they are an existential threat, we will treat them with all the cold blooded ruthlessness that marked the Indian Wars.
6.9.2009 9:58am
Mark Bahner (www):
"The doctrine of limited, "humane" wars does a lot to encourage those wars."

Here are the four largest contributors to wars:

1) Countries that are poor (have a low per-capita GDP),

2) Countries that are not democracies,

3) Conscription,

4) Countries that have high barriers to trade with other countries.

"As long as we do not consider radical islamism to be an existential threat,..."

Why should we consider radical Islamism to be an existential threat? The United States isn't going anywhere. The odds of radical Islamists killing even 2 percent of our population in the next 30 years is very small (I'd put it at less than 10 percent). And the odds of them killing more than 10 percent of our population in the next 50 years are essentially zero.

"One of the problems with the Long War, the war against radical islamists, is that we don't know how to fight it."

Our first mistake is even thinking it's a war. I doubt the Founding Fathers would recognize it as such.
6.9.2009 12:57pm
Harry Eagar (mail):
'If all the Muslim-majority countries in the world blew up every church and cathedrals in the U.S., do you think that would defeat the U.S.? '

They can't, but we could blow up all the mosques. That's what asymmetrical warfare could be about.

Bahner is taking the same position as Kilcullen: we should just put up with the steady trickle of murders. I doubt whether, if the target population were Mark Bahner and people who live in his neibhborhood, he would be so indifferent.

Where is it said that I cannot object to having $10 stolen out of my wallet because not every dollar I have was stolen.

It's war whether Bahner thinks it is or not, because our enemies think it is. And it's a religious war because they said so. Nothing we can do can change that.

Bahner's list of 4 causes of war is silly. There are plenty of countries with low GDP that are not at war, while there are almost no Muslim countries that are not at war.
6.9.2009 2:20pm
DennisN (mail):
Mark Bahner:

Why should we consider radical Islamism to be an existential threat?


Perhaps we shouldn't at this point, although the more radical elements consider themselves an existential threat to us.

We may change our mind if they initiate a nuclear device on our soil, or deploy a biological attack. There certainly are elements that are seeking those capabilities.

Our first mistake is even thinking it's a war. I doubt the Founding Fathers would recognize it as such.


They think it's a war. That means a lot. I think that a steady stream of attacks against us is justification to consider it a war, even if it's still a very limited one.
6.9.2009 5:25pm
Harry Eagar (mail):
'I doubt the Founding Fathers would recognize it as such'

Franklin would have, for sure, which we know -- or at any rate, I know -- because when confronted with an exactly analogous threat, and a government that wouldn't react, he formed a private army.
6.9.2009 7:45pm
Mark Bahner (www):
'If all the Muslim-majority countries in the world blew up every church and cathedrals in the U.S., do you think that would defeat the U.S.? '

But if they could, do you think that blowing up all the churches would defeat the U.S.? Seriously: yes or no? And if your answer is "no," why do you think it would be any different for Muslims? (Do you think they'll think, "Hmmmm...they blew up all Allah's mosques...they must be more powerful than Allah?") (No offense intended to any Muslims reading this.)

"They can't, but we could blow up all the mosques. That's what asymmetrical warfare could be about."

It could be about blowing up all the mosques??? Again, what do you think that would accomplish? (Besides making even the majority of Christians in the world think the U.S. is behaving disgracefully?)

"Bahner is taking the same position as Kilcullen: we should just put up with the steady trickle of murders."

No, obviously not. When has the U.S. ever "put up with a steady trickle of murders"? (Hmmmm...I guess that should be "When has the U.S. ever 'put up with a steady trickle of murders' of white people?")

"I doubt whether, if the target population were Mark Bahner and people who live in his neighborhood, he would be so indifferent."

My neighborhood is certainly closer to likely targets (e.g. Washington DC) than your neighborhood! Or did you think radical Islam's real target is Pearl Harbor, Part II? (Movie teaser: "This time, the fanatics win!")

"Bahner's list of 4 causes of war is silly. There are plenty of countries with low GDP that are not at war, while there are almost no Muslim countries that are not at war."

Harry, in this age of Google, there's really no excuse for a man as intelligent as yourself to make such an ignorant statement. You could have simply Googled, "per capita GDP of countries" and the first hit would have been this Wikipedia page:

http://en.wikipedia.org /wiki/List_of_countries_by_GDP_(PPP)_per_capita

From that list of countries, starting with #1 being the highest per-capita GDP in the world, if you looked only at Muslim countries, you would see:

#1 Qatar -- A Muslim country, not at war.
#5 Brunei -- A Muslim country, not at war.
#11 Kuwait -- A Muslim country, not at war.
#14 United Arab Emirates -- A Muslim country, not at war.
#22 Bahrain -- A Muslim country, not at war.
#36 Oman -- A Muslim country, not at war.
#37 Saudi Arabia -- A Muslim country, not at war.
#55 Libya -- A Muslim country, not at war.
#60 Malaysia -- A Muslim country, not at war.
#62 Turkey -- A Muslim country, not at war.

That's the top 10 Muslim countries, in terms of per-capita GDP, and NONE of them are at war. So don't say my list of 4 causes of war is "silly." It just makes you look...silly (and ignorant).

"It's war whether Bahner thinks it is or not, because our enemies think it is."

It's depressing and frightening to see such illogical thought on a blog devoted to the law. (Even worse, it seems to be an illogical thought shared even by some of the blog authors, such as Kenneth Anderson.)

Timothy McVeigh thought he was at war with the U.S. Do you think that the U.S. was at war with Timothy McVeigh, because Timothy McVeigh thought he was at war with the U.S.?
6.9.2009 8:48pm
Harry Eagar (mail):
' Do you think that the U.S. was at war with Timothy McVeigh, because Timothy McVeigh thought he was at war with the U.S.?'

If it had known what he was up to, I hope so.

Your list of top 10 countries includes 3 that are at war, which you'd probably know if you read the newspaper.

With the exception of Brunei, the others only manage not to be at war by not having any infidel neighbors. Of approximately 25 Muslim borderlands, almost every one is aflame.

This is not true of any other large confessional, ethnic or other group. It probably means something. You figure it out.

And, yes, I do mean exactly what I say. One way, perhaps the only potentially bloodless way, of encouraging Islam to undergo the kind of reformation/reorganization toward a secular society that defanged Christianity would be to directly challenge the power of allah --and, of course, beat him, but I take that as a given.

It would be extremely unpleasant for sincere Muslims, but I can live with that.
6.9.2009 9:47pm
Mark Bahner (www):
"If it had known what he was up to, I hope so."

Well, that's the thing. The U.S. government didn't know what he was up to until after he did it.

But let's look at AFTER he did it. Suppose the U.S. government saw a rental van driving along a highway. Now suppose Bill Clinton was as sure it contained Timothy McVeigh as he was that the Al Shifa plant was a chemical weapons factory.

Since we're at ware with Timothy McVeigh, the U.S. government should be able take the van out with a missile from a Predator?

"Your list of top 10 countries includes 3 that are at war, which you'd probably know if you read the newspaper."

Like the U.S. is at war? Which ones are you thinking of?

"And, yes, I do mean exactly what I say. One way, perhaps the only potentially bloodless way, of encouraging Islam to undergo the kind of reformation/reorganization toward a secular society that defanged Christianity would be to directly challenge the power of allah..."

By blowing up all the mosques in the world? Unbelievable!

"It would be extremely unpleasant for sincere Muslims, but I can live with that."

And if there just happened to be thousands of Muslims in those mosques when they were blown up, that wouldn't trouble you either?
6.9.2009 10:48pm
John Moore (www):
<blockquote>

And if there just happened to be thousands of Muslims in those mosques when they were blown up, that wouldn't trouble you either?
</blockquote>

If we're at war with them, and it's the best way to end the war (bombing mosques isn't IMHO), then it's an acceptable, if tragic, loss.

If the war with radical Islam, started by them, continues for a long time, we may be forced to actually defeat them, rather than contain them - like we did with the USSR. Except in this case, we would probably have to kill a whole lot of them to do so.

Such is the real world - the world of the jungle where diplomatic niceties are toys for fools.
6.10.2009 2:06am
Mark Bahner (www):
If we're at war with them (Muslims), and it's the best way to end the war (bombing mosques isn't IMHO), then it's an acceptable, if tragic, loss.



If the war with radical Islam, started by them, continues for a long time, we may be forced to actually defeat them, rather than contain them - like we did with the USSR. Except in this case, we would probably have to kill a whole lot of them to do so.


There's only one way to start a war, under the U.S. Constitution. That's for Congress to declare a war.

Congress can not declare a war on "radical Islam," under the Constitution, because "radical Islam" is not a government.

Saddam Hussein's government in Iraq was a government. The Taliban in Afghanistan was a government.

"Radical Islam" exists *everywhere* (e.g., many of the the 9/11 hijackers lived in the U.S. and West Germany) Osama bin Laden and friends don't control governments. Therefore, the U.S. government cannot be at war with them, because they are not a government. To accept that the U.S. can be at war with "radical Islam" is to accept that "radical Islam" is a legitimate government. It's not. It's a criminal enterprise. The U.S. government can not be at war with criminals, because that would elevate criminals to a status of legitimacy they neither have nor deserve.

"Such is the real world - the world of the jungle where diplomatic niceties are toys for fools."

Unfortunately, this is an all-too-common point of view in the U.S. U.S. laws aren't designed to protect criminals. They're designed to protect those who do NOT break the law.

I find it extremely puzzling that even well-educated and seemingly-rational people fail to see this. If one accepts that the U.S. government can go into any country in the world and kill a person--and likely some innocent bystanders--without any trial, then there is NO incentive for any government in the world to assist the U.S. in arresting those people and bringing them to trial. In fact, the incentive is exactly the opposite. The incentive is to denounce the U.S. and refuse to cooperate with the U.S. government in bringing criminals (e.g. radical Islamists who have committed crimes) to trial.
6.10.2009 12:56pm
Harry Eagar (mail):
Turkey, Malaysia, Libya.

My idea on the mosques was, list 100 (selecting the most emotionally important to believers) and announce that until Muslims behave themselves with respect to infidels, a cruise missile will take out one an hour (or day, week, whatever) until they correct their behavior.

I would expect thatL 1. the mosques would be empty; 2. Muslims in general would revise their belief system in the direction that Christians did.

This method has worked all over the world -- challenge the old gods, and when they cannot defend themselves, belief systems change. Religions collapse.

'There's only one way to start a war, under the U.S. Constitution'

Or attack Pearl Harbor.

This is a law blog, and I read it because lawyers are trained to pick apart arguments. That does not, however, mean that the people who promulgate laws do a good job. Your view seems to be that if our enemies paint outside the box we drew, we are precluded as a matter of law from resisting them.

I cannot think of anything more destructive to the rule of law than telling people they cannot protect themselves.
6.10.2009 1:41pm
Mark Bahner (www):
"Turkey, Malaysia, Libya"

Let's see...of my list of the top 10 Muslim countries in per-capita GDP (with #1 being highest), Turkey is #10 (#62 in the world), Libya Malaysia is #9 (#60 in the world), and Libya is #8 (#55 in the world). So your claim is hardly devastating to my argument. In fact, it could reasonably be said that even your claim supports my argument that low per-capita GDP causes war. (Note: Instead of writing, "Here are the four largest contributors to wars:" I should have written, "Here are the four largest contributors to a high number of annual deaths per 100,000 people per year from war.")

BTW, with whom do you think Turkey, Malaysia, and Libya are at war?

"My idea on the mosques was, list 100 (selecting the most emotionally important to believers) and announce that until Muslims behave themselves with respect to infidels, a cruise missile will take out one an hour (or day, week, whatever) until they correct their behavior."

An amazing proposition, and one which I'm glad has virtually no chance of ever being adopted.

"I would expect that 1. the mosques would be empty;..."

Yeah, Bill Clinton probably hoped that when he was blowing up the Al Shifa pharmaceutical plant. Unfortunately (for the poor bloke who was killed) some folks have to work.

And unfortunately for everyone, I have virtually no doubt that there would be hundreds (or even thousands) of Muslims who would go to their holiest sites specifically so they WOULD be killed. Did you ever see the movie, "Gandhi"? Did you not see the power of the scene of the Dharasana salt factory in Gujarat? Well, the scenes your proposition would provoke would make that scene look like...a movie. There would be film of innocent people (probably praying) at the Masjid al-Haram mosque in Mecca, as a U.S. missile shoots down and kills them all. It would be the greatest al Qaeda propaganda clip of all time.

"2. Muslims in general would revise their belief system in the direction that Christians did."

"In the direction Christians did" WHEN? When in the world did members of some religion or government blow up Christian churches until the Christians "corrected their behavior"?

I wrote: "There's only one way to start a war, under the U.S. Constitution. That's for Congress to declare a war."

You responded, "Or attack Pearl Harbor."

No, as I pointed out to David Nieporent, Pearl Harbor did NOT start a war. It was the U.S. Congressional declaration of war against Japan that started the U.S. war against Japan. Until the moment that Congressional Declaration of War was approved, we were NOT at war with Japan. Not under the Constitution. (Which is the Supreme Law of the Land.)

http://www.volokh.com/posts/1181615410.shtml

"Your view seems to be that if our enemies paint outside the box we drew, we are precluded as a matter of law from resisting them."

No, you're completely wrong. The Founding Fathers drew a box called the Constitution to protect us. It is not possible to paint outside, because we can add another box with a Constitutional amendment. Or we can shred the box, so that it offers no protection.

You're 180 degrees wrong about what protects us. (Unfortunately, a majority of the country also shares your wrongheaded view.) For example, in 2000, who was the most dangerous man (to people in the United States) in Afghanistan? You probably think the answer is Osama bin Laden, but the correct answer is Mullah Omar.

The best way to keep U.S. citizens safe is for the U.S. government to have the full cooperation of all the other governments of the world. Targeted assassinations of citizens of other countries is just about the worst way to do that. (The only way that's perhaps even worse is to blow up mosques.)
6.10.2009 9:34pm
Harry Eagar (mail):
Iraq, Kurds; Chad; Thailand.

In your literalist way, I suppose you don't think these are wars, because nobody signed the correct document, but I assure you that people are being killed just like in a legal war.

I would be indifferent whether Muslims were in the mosques or not. They didn't clear that symbol of wickedness the World Trade Center first.

'The best way to keep U.S. citizens safe is for the U.S. government to have the full cooperation of all the other governments of the world.'

Never going to happen. Move to Plan B.

I agree with you, by the way, that my humane approach will never be adopted, and not only because people are more reluctant to destroy pretty buildings than they are to kill people.

It is not in the cards that one-fifth of the world's population with about 1/10,000th of its lethal force is going to forever let them kill people, although I understand that you and Kilcullen (and, apparently, the president) expect it. I expect that eventually hard men will take over from the feeble pantywaists who have been in charge for the past 8 years and more.

When they do, I doubt they will discriminate any more than the hard men of World War II did. The Constitution survived that, just as it survived Lincoln/.
6.10.2009 11:46pm

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