I'm sure I agree with Greenwald, but I can't make it beyond his first sentence.
You know what? I'd love it if you'd delete that and this comment. First, because there's no reason for this thread to turn into a discussion of whether Greenwald can write, is shrill, etc., thereby ignoring the substance of what he's saying. And second, because I have no interest in criticizing the guy, who, despite the fact that I find him impossibly annoying, is an actual American hero.
And don't give me any shit. I spent two hours talking to a guy with some very serious psychosis who asked me if I was a member of the tribe. Somebody owes me.
The other guy with psychosis at the other bar was Irish. Which happens.
It happens very often if you spend much time in bars.
This is seriously the issue I'm furthest from the lefty-Unfogged mainstream on. Assuming (a) we're at war with "Al Quaeda" (which may be its own problem, but we are, and Congress has authorized the use of force against them) and (b) we have a reasonable belief that the person is an active and operational member of Al Quaeda, why can't the President order that the person be killed, even if the person is a US citizen. He could obviously order the person killed as part of a military attack; a reasonable number of US citizens were killed by the US in WWII because they happened to be part of enemy militaries or enemy civilian areas we were bombing. I mean any given attack may not be a good idea, and like I say the while concept of a war against Al Quaeda is problematic, but given (a) and (b) this just doesn't seem like zomg destruction of all freedom is imminent issue; states, including the US, can go to war, and that's what the executive branch does, and war involves killing people.
I'll give him your cell phone number.
I'd find myself singing the title to Bowie's "Young American: if that weren't so inappropriate given the subject matter.
Lately I've been a bit discomfited by how much I've been agreeing with Halford's comments, so it's nice of him to be so completely wrong here, and on such an important issue.
Yeah, I'm actually pretty surprised to see Halford coming out so strongly on the side of evil on this one.
It's the remote technology that are the problem. If the president wants to kill a citizen without trial, he should have to do it the way the founding fathers intended, and bludgeon him or her with a flaming sledgehammer.
I dunno, sometimes I guess I'm just evil. Honestly, this one doesn't even seem like a particularly hard question to me. Assuming that we are at war with an organization that is an existential, imminent threat to the country (again, this is the part that seems most problematic to me, but Congress actually has made that determination), we've got to have the right to kill its military/operational personnel -- that's what war is, and in our system war is committed by the President. That one of these personnel is or isn't an American citizen doesn't seem particularly relevant.
The harder questions are (a) can you really be at war with an organization in this way at all and (b) what do you do when it's unclear whether someone is actually in the organization or actually in its operational wing that poses an imminent threat (which, as I understand it, was the Awlaki issue, though someone needs to decide).But the citizenship question doesn't have much to do with either of those concerns.
The harder questions are (a) can you really be at war with an organization in this way at all and (b) what do you do when it's unclear whether someone is actually in the organization or actually in its operational wing that poses an imminent threat (which, as I understand it, was the Awlaki issue, though someone needs to decide).But the citizenship question doesn't have much to do with either of those concerns.
Maybe not, in a narrow legal sense, but it provides a convenient political hook to draw attention to those harder questions, which is presumably why it's such a rhetorical focus for Greenwald and others who oppose the administration's answers to them.
And the slippery slope argument seems bizarre. Oh my God the President can kill any citizen he wants to at will! No, he can kill citizens who are clearly members of an armed force that we have for better or for worse democratically decided that we are at war with, in the course of conducting the war. He can kill those people, but not others. Now framing that conflict as a "war" generally may be a bad idea (I've long been on board with the idea that Al Quaeda may not actually exist and in any case we shouldn't really be thinking of ourselves as at war with them), and there may be situations where we don't know if the individual is "clearly" in the armed force that we're at war with, but putting those concerns aside the President/executive branch has always had the right to kill members of enemy forces in the course of a war and that hasn't led people to think that it's basically exactly the same thing as summarily executing his peaceful political enemies in the street.
17 seems more reasonable I guess. Part of it is that Greenwald is such a bullshitter, even if I do agree that the world is generally much better off for having him around. But the hook of this particular argument bugs me.
As a legal matter, I find myself more in agreement with Halford than not. Membership in an enemy force, though, isn't of itself legal sufficient basis to kill someone: for example, chaplains and medics are members of the enemy force. I've not looked into Aulaqi's case all that much, but it seemed plausible that much of the public non-euphemistic case against him made him out to be more of a chaplain than a strategic planner. This to me is the far bigger problem: our intelligence is, imo, deeply untrustworthy, and there's no real accountability at all for getting stuff wrong, even when the deaths of the unambiguously innocent occurs. This is simply not, as a political matter, acceptable in a democracy. And I think the judicial system's deference to the Executive on security matters is seriously problematic.
I don't think the kill list ought to be secret. If someone is openly a member of an enemy force such that killing them is privileged under the laws of war, we should say so. And if they have an argument to make why they are not properly on that list, then they should get notice and an opportunity to be heard. Through a set of flukes, Aulaqi actually had this, and refused to avail himself of it. Our system doesn't respect the rights of people who decline to assert them: whether it was because he didn't think he could show that he wasn't a strategic planner/operational leader, or because he didn't want to validate the US legal/political system, or even that he thought he'd be more useful to his movement if he was martyred, Aulaqi declined an explicit invitation to assert whatever rights his citizenship might have conferred. I find myself consequently less troubled by his death.
Killing his son, however, strikes me as a straight up crime, for which the perpetrators, conspirators, aiders and abettors ought to be facing charges. And the failure to even attempt that means, to me, that our executive cannot be trusted to wield the powers conferred upon it by the laws of war.
IMO, there was an AQ, and denying its actual existence ca 2000-2002 is akin to denying the existence of the Elks Club. I see no reason to think it does not continue to exist today: that we don't know much about what it's (and, eg, Dr. Zawahiri) doing right now tells us more, I think, about its operational security than its existence. I think there is an AQAP right now. Is AQAP a part of the entity with which we are at war? It seems to want us to think it is.
There is an opinion widespread among those who have worked with him that martyrdom would be the greatest service he could render the cause and the least he owed his colleagues. This is not a remark about CC, whose opinion seems to me to nail it on both counts.
It's the "but they're AMERICAN CITIZENS" thing that really gets my goat (speaking as a non-American citizen). Would it really be more OK if only, say, Green Card holders and permanent residents were being assassinated?
"The assassination of Mr Mohammed al-Random by a drone strike last week was an unacceptable atrocity! Obama has gone too far!"
"But wait, according to the Attorney-General al-Random was born in American Samoa. That means that, under Title 8 Chapter 12 Subchapter III Part 1 of the US Code, he wasn't an American citizen. Just an American national. While he would have the same unrestricted rights to live and work in the US as a US citizen, he would not be allowed to vote in federal or even state elections!"
"Really? Oh, thank God for that! Carry on! Bombs away!"
I'm with Halford here. In time of war, the president's allowed to order the deaths of members of the enemy armed forces, whether or not they're US citizens. (Pretty much the entire Army of Northern Virginia was made up of US citizens, and worse still they were on US soil.)
Maybe they could restrict themselves to killing American citizens?
Membership in an enemy force, though, isn't of itself legal sufficient basis to kill someone: for example, chaplains and medics are members of the enemy force.
But there are actually rules in the Laws of Armed Conflict (LOAC) about who qualifies as a chaplain or a medic. Lots of soldiers are medically trained and carry weapons as well - every rifle platoon will have a few medic-qualified soldiers. They aren't immune from being shot. To qualify for protection as non-combatants, they have to abstain absolutely from military activities - they have to be chaplains (or medics) and nothing else. They can bear arms, but only for self-protection. If they spend any of their time doing anything military, then they lose the right to self-protection. If you're using ambulances to bring up supplies as well as take away wounded, then those ambulances are legitimate targets. If your chaplain is passing the ammunition as well as praising the Lord, then he's a legitimate target. There were plenty of Iranian clerics who took up arms to fight the Iraqis in the 1980s. They lost their protection under LOAC by doing so - not that the Iraqis would have cared much anyway.
If Awlaqi at any point was planning attacks, or helping to organise them, or even if he was recruiting or training fighters, then those are activities outside the scope of a chaplain's duties, and he loses his protection under LOAC.
Halford is trying to have it both ways with all his provisos about 'assuming it is OK to be at war with AQ, which I'm not sure about...'. Obviously the heart of the problem is what it means to be at war with a transnational non-state ideological movement. If during the Korean War a bombing raid on Korea killed an American citizen living there, that's the fortunes of war. But we had declared war on Communism and started assassinating random American communists who weren't in the war zones at all but were expressing Communist sympathies in public, then that's a problem.
I'm generally with Halford that if you're at war with an entity you are entitled to kill people who are members of that entity's armed forces. But I'm more strongly critical than he is of the idea that you can go to war with entites like AQ (or Los Zetas or Cricket Australia for that matter.) I fully understand why the Cheney/Rumsfeld administration chose to bill it that way, and Obama has gone along with it, but no.
25 illustrates the wisdom of the analogy ban (which I broke w.r.t. the Army of Northern Virginia, I suppose, so bad me) because AQ is an organisation, not just a belief system. The analogy to "assassinating random Communists" would be "assassinating random Muslims". The US didn't - and shouldn't - declare war on radical Islam.
Can you be at war with a non-state organisation? Or, to put it the other way, can a non-state organisation be at war with a state? Well, yes, obviously it can. By definition, I suppose, every civil war involves a non-state organisation on one side. And any war is between two organisations; what's the requirement for both of them to have a bit of land to call their own?
I also agree with Halford. I'm more worried about the point that there still doesn't seem to be any plan to declare an end to the war and relax to normal alert. Also, I suspect the political consequences of running this huge reconnaissance-strike complex of drones, SEALs, helos, SIGINT, and informers all over Pakistan and elsewhere, hiding in plain sight, are nothing good.
If you look at the latest lot of Snowdendumps, we have a parallel development with GCHQ going after random Anonymous IRC servers because, well, they're up to something. The GWOT morphed into the GSAVE and at the margin it's turning into the Global Counter-Intelligence Campaign Against You Know, This Sort Of Thing, incidentally hollowing out the basis of trust among friendly nations and between citizens and government.
It's spook culture, really; it needs to be carefully canalised and kept from leaking into real life. The guy who runs the Stiftung Leo Strauss blog was on this years ago (the "counter-intelligence state").
I love how the high-minded, humanitarian position in this argument takes as an implicit assumption that American lives are worth more than others.
Regarding Awlaki's precise LOAC status, I'd point out that describing him as a "chaplain" misses that religion is the organising principle of the army he belonged to. German NSFOs or Soviet zampolits were unequivocally combatants, and indeed expected to pitch into the fray as a good example to the troops.
Similarly, you could make a case that Prince Rupert would have been justified in having ye olde droan zap Hugh Peters, preacher/ideologue to the New Model, before the Battle of Naseby.
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Just had a bad nightmare that I had something terribly stressful happen and then completely forgot to go to my job interview and got home around 11:30. Then I woke up at 4:30am and knew that I could make a 9:30 interview.
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32: and indeed Bishop Odo. That's him in armour in the middle, holding a club. http://en.wikipedia.org/wiki/File:Odo_bayeux_tapestry.png
I'm not saying I know Aulaqi's LOAC status. But I do notice that when proponents of the War On Whatever talk about him, they are specific about his conduct that amounts to saying that participation in the war is sanctioned by God and drop into euphemistic generalities when the subject turns to his actual involvement in operations/hostilities. My problem would be easily solved, if someone with access to facts would say what they are. Instead, what we get is fact free assertion.
WRT Nidal, for example, did Aulaqi tell him 'you should shoot those people' or 'in answer to your question, shooting those people is not a sin under my religious interpretation'? I suppose if I played close enough attention, and didn't believe that at least every third word from our intelligence apparatus is a deliberate lie, maybe I'd know which it was.
. . . fact free assertion by known liars I meant to say.
35: A club because clerics can't wield an edged weapon? I thought that was only D&D.
I'm on prior record as agreeing with Ajay and ffeJ that the citizenship issue is offensive nonsense. There really shouldn't be a difference in who we can kill without process based on what color their passport is.
On the real question, while I agree with Halford basically that we're allowed to kill combatants in an actual war without process, at this point I am very unsure that (a) Al Qaeda is in any meaningful sense an organization, or more precisely that (b) what our government says about the parameters of whatever organization remains there has any relationship to reality and (c) that what our government says about the operational role of any individual bears any relationship to reality (which is what I understand Charley's point to be.)
You can kill open combatants in a war because there's no doubt about who they are -- they're wearing armbands and holding guns. The need for legal process once you get away from that core case isn't about what actual wrongdoers deserve, it's because legal process is how civilized societies resolve doubt about who is a wrongdoer and what they have done. Secret reviews of evidence by the executive are not legal process in this sense.
39: well, supposedly because clerics weren't allowed to shed blood, yes.
I suppose when a modern bishop goes to war, he carries a flamethrower to keep to the same rule.
41: the counter to that is that the people getting killed by drone strikes are generally inaccessible through the legal process - they're in Yemen or the FATA or other areas that simply don't have effective central governments. Having a public review process to determine their guilt in their absence is possible but it would be, arguably, impractical because they'd know that the drones were coming, which isn't ideal. Having a review process whose proceedings are made public only after the kill might be doable - rather like Fed Open Markets Committee minutes are released several months in arrears. But then you can't have the individual's representatives argue why he shouldn't be killed, which rather detracts from its value as an impartial safeguard.
43: Or he becomes the germ warfare specialist.
44: My thinking on that is mostly "Sucks to be us, then." At this point, doesn't anyone who's genuinely in the relevant class of wrongdoers know the drones are coming anyway?
I suppose when a modern bishop goes to war, he carries a flamethrower to keep to the same rule.
Camilo Torres Restrepo just used a rifle, I think. But he was only a priest. Maybe bishops get something different, as with falconry.
According to wikipedia, he was killed in his first experience of combat. Keeping to the rules might help.
46: sources and methods, too. The process is going to have to include things like "how do you know he's AQ" and it would be nice not to have to say, in advance, "oh, we've been tracking his phone/ we've bugged his house/ his brother-in-law told us".
And, further, the target will know that he's done something that would make him a target, but he won't know that we know; same reason that arrest warrants aren't automatically publicised on issue. You don't want the target to take warning.
If someone is actually a member of an enemy force in a combatant capacity, I don't think their learning that our government knows who they are, and is ok with killing them as part of a war is any kind of big deal. People who are leaders of AQ know we want to kill them. So why do we act like this is some secret that's worth keeping?
Every teenager in America knows that the NSA is collecting their snapchats. Every member of AQ knows that any communication of any kind is subject to interception. Sometimes what we're keeping secret just isn't secret.
When I see "sources and methods" I think 'bad faith/bullshit.' Ok, yes, protect the brother in law. But the intercepted phone call?
And really, I say publish the list, and let people come forward to contest it. You could arrange it so you didn't have to reveal sources/methods to someone without a clearance until there was some kind of showing that a mistake had been made. And yes, while I said I would want to protect the brother in law, now I'm going to step away from that a bit: if the person on the list can show that his brother in law stands to inherit if he gets droned, that ought to be taken into account as evidence.
And the slippery slope argument seems bizarre. Oh my God the President can kill any citizen he wants to at will! No, he can kill citizens who are clearly members of an armed force that we have for better or for worse democratically decided that we are at war with, in the course of conducting the war.
It isn't really a slippery slope. The President can kill anyone he declares is clearly a member of an enemy force. And he has done it, despite the dubious - and secretive - nature of his decisions.
As for arguments in the form of "assume this dubious thing, then assume that dubious thing, then the conclusion naturally follows" - well, this sort of argument is the reason that lawyers are held in such low regard.
It's the "but they're AMERICAN CITIZENS" thing that really gets my goat (speaking as a non-American citizen).
An important line is crossed when we Americans assert the right of our government to treat citizens the way we would treat non-citizens. It's not the only line, or even the most important line, but it's still an important line.
49: Both what Charley said, and to the extent that the issues you describe are significant (which can be real) I say again, sucks to be us. Being a civilized society isn't free; there are going to be some downsides.
Greenwald does address the question of focusing on American citizens.
And when people take the moral tack on that, but turn into legal hair-splitters on the (laughably broad) AUMF and the question of uniformed combatants, I wonder why they keep choosing the side that favors the administration. I don't dispute that somewhere, sometimes, there are people who are a threat to the US and probably need to be killed. But Obama has been in office for many years now, and has done not one thing to reform the process by which those people are chosen, either by subjecting it to oversight or transparency, so we're left with a situation I would have thought is obviously unacceptable, in which a handful of people in one branch of government, all reporting to the same man, decide, in secret, who the government will kill.
54: Important lines are important, got it.
I mean if it wasn't secret the people they wanted to kill might hide and then they wouldn't get to kill them. Frown!
If someone is actually a member of an enemy force in a combatant capacity, I don't think their learning that our government knows who they are, and is ok with killing them as part of a war is any kind of big deal. People who are leaders of AQ know we want to kill them. So why do we act like this is some secret that's worth keeping?
Because, probably, we don't want them to run and hide or whatever? Targeting decisions get kept secret in wars all the time, because there's an advantage to the enemy not knowing you're coming.
And I don't think that this - "You could arrange it so you didn't have to reveal sources/methods to someone without a clearance until there was some kind of showing that a mistake had been made" - is at all practical. You're saying that justice would be served by simply publishing a list of names, and putting the onus on each of them to prove that they weren't involved in whatever the government thinks they were involved in but won't tell them about?
Pwned by 58, I suppose, but, yes. It's a war, the point is to kill the people on the other side.
I mean they could just own up and offer to get killed, too.
55 also to 59. The Wire would have been a much shorter TV show if Bunk had been allowed to blow Stringer and Avon away on sight, and the people of Baltimore would have been much safer. But there are reasons not to act like that, despite the obvious advantages.
I really should see about maybe watching The Wire. I've heard good things.
Sorry about the Wire reference. With Ogged back, I'm a little temporally dislocated.
60 -- Suppose the list has a bunch of people on it that don't belong. Your answer seems to be go ahead and kill them, that's how it works. The alternatives are (a) don't kill anyone, lest you have people on your list that don't belong or (b) let people on the list contest their status. If they make a prima facie case that they don't belong on the list -- I'm not a soldier, I'm a plumber, and you've confused me with someone with a similar name -- then shift the burden to the government. The judges, and hundreds of civilian attorneys have security clearances, and can look at just what it is that the government is basing its assertions on. If it's some GTMO prisoner who made up a bunch of stuff in exchange for candy bars and/or porn videos, then there would be a chance to show that while that guy says he saw you on July 1, 2001 in Kabul carrying a gun, you were actually in Paris on July 1, 2001, then you'd have something.
It's not perfect, but protecting the guy who sold you out for a bag of chocolate bars isn't what our democracy should be about.
The harder questions are (a) can you really be at war with an organization in this way at all and (b) what do you do when it's unclear whether someone is actually in the organization or actually in its operational wing that poses an imminent threat (which, as I understand it, was the Awlaki issue, though someone needs to decide).
Well, precisely. Which is why accepting "we're at war with Al Qaeda!" as justification for targeted assassination in bullshit. (Actually, are targeted assassinations permitted under the laws of conventional war? I am not sure. )
We also have declared wars on poverty and drugs. Okay to assassinate bankers or Walter White?
Incidentally, I tried to re-watch The Wire, got 15 or so minutes in, and was like "Nope!" Absolutely impossible to watch those kids knowing what happens to everyone.
65.last points to a much darker direction for the Willy Wonka sequel.
Let's not give people ideas about non-metaphorical wars on poverty. There's probably already a half dozen PACs that would argue that assassinating the poors is the easiest way to reduce poverty.
I thought there was an option c, which was to allow killing without disclosure that someone is on "the list" where that's reasonably necessary for the conduct of the war, but make the list known after the fact, together with some public statement of reasons that the person appeared on the list, and maybe some procedure(which I guess could also be classified, but still adversarial) to contest status as an active member of al quaeda (or whatever organization we're at war with) on the list after the fact. Obviously that's not much comfort to the dead guy (hey, we killed you! but you weren't an Al Quaeda operative after all), but at least it would provide some procedural check and incentive to restrain the list to people who clearly are effectively military members of the opposing force, which seems to me like the key issue.
I continue to believe that we'd have been better off thinking about combatting Al Qaeda as part of the President's constitutional prerogative to combat piracy rather than as a war. The banned metaphors seem much more apt.
Also, I believe 42 is a myth -- maces were better than swords at killing dudes in plate armor, so that's what he used.
I continue to believe that we'd have been better off thinking about combatting Al Qaeda as part of the President's constitutional prerogative to combat piracy rather than as a war. The banned metaphors seem much more apt.
Also, I believe 42 is a myth -- maces were better than swords at killing dudes in plate armor, so that's what he used.
69: someday "shooting drugs with drones" will mean something besides using bee stingers to inject heroin.
but he won't know that we know
Yes he will, assuming he's not half witted.
62: The analogy ban is just bleeding and dying here. Come on, I'm not advocating summary execution of all criminals on suspicion. Might as well argue that the people of London were, in fact, a lot safer and generally better off because the RAF was allowed to kill anyone it thought might be a member of the Luftwaffe, with no sort of review process either before or after.
I think that trying to set up some sort of half-arsed attempt at due process for the kill list is the worst of both worlds. Either it's a military decision on targeting, taken in wartime, in which case it should be a command decision that's kept secret as necessity requires. Or you argue that this isn't a war, and you want to give people the right to contest their extradition, see the evidence against them and defend themselves against their accusers in an open court. But the intermediate steps are cripplingly inefficient as a process of war and horribly unjust as a process of law.
Let's take Awlaki. Assume for the moment that the stories about him are true: that he actually is involved in organising terror attacks on the US. He's hiding out with the Awalik clan in the desert in Yemen, which is, basically, a state with no real grip of most of its territory.
What, if anything, should the US do?
Leave him there?
Apply for extradition? No, the Yemeni authorities couldn't catch him if they wanted.
Try to kidnap him and bring him for trial in the US?
Demand the Yemenis do the same?
Threaten them with sanctions if they don't?
Invade?
For now reason I can express, I feel compelled to note that Yemen has cob buildings that are up to ten stories tall.
War is almost always wrong, and this war is wrong. But this particular issue hardly even registers compared to other reasons why this war (and other wars) are wrong.
I'm more worried about the point that there still doesn't seem to be any plan to declare an end to the war and relax to normal alert.
Yes, this. I can see a good argument for the idea that you can sometimes go to war (a real, non-metaphorical war) with a clandestine non-state organization (I'm less sure whether or not this actually should have been done even for 2002-era AQ; 9/11 could have been stopped pretty easily by competent law enforcement and airline security, AFAICT. Though Congress actually clearly did decide that we were at war and the President could use military force against AQ).
But it shouldn't be able to go on forever, to the point where it's not really clear whether or not the organization you're at war with still exists in a meaningful sense. One big problem is that the same people with the best knowledge of the actual current state of Al Quaeda also have incentives to keep that knowledge secret and to continue on a war footing.
If the military can't be sure whether the people it is targeting are actually members of the enemy force -- or if it's shown that its judgment in this area is simply abysmal -- then its targeting decisions, when it comes to people who might actually be civilians, has to be subject to review. I don't care much for post hoc review, because (a) the guy is dead; (b) he can't show you he was in Paris on July 1, 2001; (c) it will be a closed process geared to exoneration. Unless post-hoc review is going to lead to charges of negligent homicide of everyone involved, you have to do the review ahead of time.
So what if he runs away and hides? They're already hiding, more or less, and if they go deeper into hiding, that's a disruption of operational capability. I'll see your Aulaqi and raise you a Bin Laden.
The presumption that every male of military age in Yemen is a member of the enemy force is unconscionable, an no one willing to entertain it should have the authority to decide anything at all.
It takes a village to raise a Bin Laden.
There's a real debate, at the highest levels, about what the AUMF means once we're out of Afghanistan. I suppose they'll cling to AQAP for dear life, but the government knows that even if hey stop actually shooting people with drones, they still have to pretend there's a war on, or they have to release all the prisoners in GTMO. Including those they currently say they can't charge with any crime but don't want to release.
Wars involve killing people who shouldn't be killed. If you were to list all the deaths from this war in order of how wrong they were how many names would there be before Awlaki? Ten thousand? Fifty thousand? It's war, and wars are horrible things that always involve killing actually innocent people.
I can see a good argument for the idea that you can sometimes go to war (a real, non-metaphorical war) with a clandestine non-state organization
In its infancy, America conducted a fairly successful war against the Barbary Pirates. If an American citizen had been on a Barbary Pirate ship, he might easily have drowned when the ship shank. Things are different now. We can target people individually and we might be wrong. Does that mean we shouldn't try to target enemy officers who, in a different historical setting, would have been relatively safe from attack? No, I think we should target them. I'm more concerned about killing civilians, regardless of nationality, which we do all the time.
I have to say I'm not sure I understand where you people who are saying that you can't have a war against a non-state entity are really going with that. The Bush Admin tried that argument, when it asserted that the Geneva Conventions didn't apply at all to people captured in the war against AQ (as opposed to the war against the Taliban). Justice Stevens rejected this in Hamdan v. Rumsfeld:
As an alternative to its holding that Hamdan could not invoke the Geneva Conventions at all, the Court of Appeals concluded that the Conventions did not in any event apply to the armed conflict during which Hamdan was captured. The court accepted the Executive's assertions that Hamdan was captured in connection with the United States' war with al Qaeda and that that war is distinct from the war with the Taliban in Afghanistan. It further reasoned that the war with al Qaeda evades the reach of the Geneva Conventions. See 415 F. 3d, at 41-42. We, like Judge Williams, disagree with the latter conclusion.The conflict with al Qaeda is not, according to the Government, a conflict to which the full protections afforded detainees under the 1949 Geneva Conventions apply because Article 2 of those Conventions (which appears in all four Conventions) renders the full protections applicable only to "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties." 6 U. S. T., at 3318.59 Since Hamdan was captured and detained incident to the conflict with al Qaeda and not the conflict with the Taliban, and since al Qaeda, unlike Afghanistan, is not a "High Contracting Party"--i.e., a signatory of the Conventions, the protections of those Conventions are not, it is argued, applicable to Hamdan.60
We need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories.61 Article 3, often referred to as Common Article 3 because, like Article 2, it appears in all four Geneva Conventions, provides that in a "conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party62 to the conflict shall be bound to apply, as a minimum," certain provisions protecting "[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by ... detention." Id., at 3318. One such provision prohibits "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." Ibid.
The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being " 'international in scope,' " does not qualify as a " 'conflict not of an international character.' " 415 F. 3d, at 41. That reasoning is erroneous. The term "conflict not of an international character" is used here in contradistinction to a conflict between nations. So much is demonstrated by the "fundamental logic [of] the Convention's provisions on its application." Id., at 44 (Williams, J., concurring). Common Article 2 provides that "the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties." 6 U. S. T., at 3318 (Art. 2, ¶1). High Contracting Parties (signatories) also must abide by all terms of the Conventions vis-À-vis one another even if one party to the conflict is a nonsignatory "Power," and must so abide vis-À-vis the nonsignatory if "the latter accepts and applies" those terms. Ibid. (Art. 2, ¶3). Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory "Power" who are involved in a conflict "in the territory of" a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not). In context, then, the phrase "not of an international character" bears its literal meaning. See, e.g., J. Bentham, Introduction to the Principles of Morals and Legislation 6, 296 (J. Burns & H. Hart eds. 1970) (using the term "international law" as a "new though not inexpressive appellation" meaning "betwixt nation and nation"; defining "international" to include "mutual transactions between sovereigns as such"); Commentary on the Additional Protocols to the Geneva Conventions of 12 August 1949, p. 1351 (1987) ("[A] non-international armed conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other").
Although the official commentaries accompanying Common Article 3 indicate that an important purpose of the provision was to furnish minimal protection to rebels involved in one kind of "conflict not of an international character," i.e., a civil war, see GCIII Commentary 36-37, the commentaries also make clear "that the scope of the Article must be as wide as possible," id., at 36.63 In fact, limiting language that would have rendered Common Article 3 applicable "especially [to] cases of civil war, colonial conflicts, or wars of religion," was omitted from the final version of the Article, which coupled broader scope of application with a narrower range of rights than did earlier proposed iterations. See GCIII Commentary 42-43.
I wonder if Stevens mentioned the Barbary Pirates in that opinion.
85 -- Not many of the people who've died in the War Pursuant to the 2001 AUMF have been selected for killing by name. [insert a half dozen banned analogies here]. Intention makes a difference if you're trying to run a liberal democracy.
Anyway I would be interested in reading Halford's good argument.
89: unlikely. The Barbary Wars were interstate wars. The Barbary Pirates, so-called, were the armed forces of the Muslim states of north-west Africa, operating under a clear and legitimate chain of command from their various internationally-recognised governments, which declared war on the rest of the world on an annual basis in order to give legal cover to their policy of taking and selling slaves. They weren't Al-Qaeda, they were more like the SS.
90: Yes, unimportant people never get a memo with their name on it before they get shot. It's yet another advantage of poverty.
Also, I believe 42 is a myth -- maces were better than swords at killing dudes in plate armor, so that's what he used
I remember a big spread in National Geographic in 1966 to celebrate the 900th anniversary of Hastings. I used the projector, I forget what they're called, that would magnify a magazine photo against a screen or wall. I therefore studied the Bayeux Tapestry as only an adolescent can. I don't remember any plate armor at all; you've got mail!
92: So the Barbary Pirates were an internationalist terrorist organization with state support, who declared war on western states. And that makes them dissimilar to AQ?
The analogy ban is just bleeding and dying here.
Starting with the "war" on Al Qaeda. Sending drones into Yemen is not at all like the RAF in WWII.
Admittedly, there's a continuum here, and some non-state actors really are enemy combatants in every sense, but Al Qaeda doesn't pose any kind of existential threat to the US, and it's more properly thought of as - more analagous to - a criminal operation.
A question for our UK contingent: Are there any lessons we should learn from the treatment of the IRA*?
*That's a non-rhetorical question. I think the IRA was much more obviously an enemy combatant than Al Qaeda, but beyond that I have little knowledge and no opinion.
Ok, so since lots of innocent people get killed in a war, many of whom are worthier then you, there's no reason to protest them intentionally killing you, and saying it's pursuant to the authority granted by Congress in 2001. That's your argument?
operating under a clear and legitimate chain of command from their various internationally-recognised governments
I would be interested in reading more about the clear and legitimate chain of command between the Barbary Pirates and their supportive states. I would wonder if it was all that different from the support given to AQ by the Taliban.
97: My argument is that if the military had cause to believe that I was an officer of AQ it would be fairly stupid not to kill me when given the chance while pretending to be at war with AQ. Make sense?
If you were to list all the deaths from this war in order of how wrong they were how many names would there be before Awlaki? Ten thousand? Fifty thousand? It's war, and wars are horrible things that always involve killing actually innocent people.
Right. This is why I don't get why anybody objects to torture. If we can kill people, why should we be disturbed about inflicting pain?
Further to 97, the fact that our wars necessarily involve the deaths of innocents would only highlight the stupidity.
See, I don't think we should accept the frame that our mission in Yemen properly comes under the 2001 AUMF. What's going on there is an armed rebellion. We are helping the government put down that rebellion. Our government should have to go get a new AUMF for this mission, in my opinion. The justification is that AQAP had at one time some sort of relationship to AQ -- and seems to have been started by AQ members -- but I'm not sure the war against AQ should extent to AQAP any more than [avert your eyes, folks] deprecation of Steve Miller should extend to Boz Scaggs.
100: Perhaps because torturing people for information is more repugnant than killing people who we believe are officers of AQ.
99 There's a guy who will say you are in exchange for a bag of chocolate bars.
A question for our UK contingent: Are there any lessons we should learn from the treatment of the IRA*?
The main difference is that the IRA didn't have any sanctuary areas at all. There was nowhere they could go, really, where they couldn't be arrested by the RUC or other security forces, or by the Garda and extradited north. So the drone strike issue didn't arise: if we knew where a player was, we'd just pick him up. And because both sides of the border had (reasonably) functional states with functional police forces and courts, the whole thing could be dealt with in a way that gave law enforcement primacy - basically, as a criminal operation, under normal criminal law. The army was only ever operating in Northern Ireland "in support of the civil power".
That's not the case with AQ: they're mainly operating in places that have no functional government, like the FATA and Yemen and Somalia and so forth.
And not even the really good one either.
illustrates the wisdom of the analogy ban (which I broke w.r.t. the Army of Northern Virginia, I suppose, so bad me) because AQ is an organisation, not just a belief system. The analogy to "assassinating random Communists" would be "assassinating random Muslims".
The analogy ban is quite dead in this thread. But in response to your point, the Communist party was an organization as well, not just a belief system. The HUAC question was always 'are you now or have you ever been a member of the Communist party'.
Al Qaeda was/is basically a criminal conspiracy. I think it's wrong to declare war against a criminal conspiracy, because we should structure state violence against criminal conspiracies through the criminal law, which involves more protections than war does. I think this is very appropriate, for lots of reasons (it protects rights much better and criminal conspiracies simply do not present the challenges and threats of wars against an organized state or mass army). If there are practical considerations when taking on a particular powerful or dangerous criminal conspiracy, you should still try to build up your emergency measures from the criminal law and preserve those protections where at all possible.
I don't see the relevance of 87 to this point, as presumably the Geneva convention Article 3 would also apply to unarmed/civilian members of a criminal conspiracy captured in a war zone, regardless of whether you had 'declared war'. I'm not a lawyer so I may be missing something, but it appears to be some kind of civilian catch-all clause.
104: If we're bidding, I'll do it for free in this case.
Even less worried if it is Moby's word to be evaluated.
I would be interested in reading more about the clear and legitimate chain of command between the Barbary Pirates and their supportive states. I would wonder if it was all that different from the support given to AQ by the Taliban.
Both sides admitted that the Barbary States controlled the corsairs. The corsairs sailed out of their harbours and sold their slaves in their markets. Various European states signed treaties at various points with the rulers of the Barbary States, in which their citizens were granted protection from being enslaved in exchange for a regular payoff.
I suppose that calling them "pirates" is a bit confusing if you don't know the history, because we think of all pirates as being like the buccaneers of the Spanish Main, basically stateless seaborne robbers. The corsairs weren't like that. They were more like the regular military forces of a state that lived by piracy and slavery.
I don't see Geneva CA3 applying to the capture of, say, a Mexican drug cartel member who's taken across the border into the US. In the absence of an AUMF, there's no war zone. Just places where it's hard to get the cooperation of local law enforcement, or places that won't extradite, or places where the central government's writ simply doesn't run.
I don't think 'criminal conspiracy' is a big enough term for AQ. It's a revolutionary organization.
111: My knowledge of this particular episode is not extensive, but I am under the impression that we declared and waged war against the corsairs rather than the barbary states to whom the corsairs sold stolen goods and slaves. No?
I am under the impression that we declared and waged war against the corsairs rather than the barbary states to whom the corsairs sold stolen goods and slaves. No?
No.
The first Barbary war was between the United States and Tripoli. Wiki quotes Congress: 'Although Congress never voted on a formal declaration of war, they did authorize the President to instruct the commanders of armed American vessels to seize all vessels and goods of the Pasha of Tripoli "and also to cause to be done all such other acts of precaution or hostility as the state of war will justify."'
The second was, similarly, against Algiers.
110 -- That's where you're making your big mistake. You're assuming some kind of evaluation.
114: Your quote doesn't actually say that Congress declared war on Tripoli or Algiers. I wonder if the declaration of war against AQ was significantly narrower.
text, if you are sincerely asking for information, then the wiki page on this is pretty well written, and I can recommend a couple of other books as well.
If you're just doing your normal passive-aggressive bullshit and pretending to ignorance in the hope of making this thread all about you and your deliberate misunderstandings, then I would strongly suggest that you explore another type of entertainment, such as the recreational inhalation of bathroom bleach.
115: Similarly I assume that some sort of evaluation takes place on a battlefield.
116: If it were possible to underestimate your influence I would try my very best to do so.
118: My bullshit is generally aggressive-aggressive. I would think that passive-aggression bullshit would be more like claiming to have more knowledge on a subject than someone else and then refusing to provide it.
sorry, that's "passive-aggressive bullshit"
Ajay, I would love to read lots of books about the Barbary Pirates and may at some point do so, but if you have read those books, the thing to do here would be to actually provide some responsive information.
If you tilt your head back while you're doing it, that'll help it get all the way back into the sinuses.
It's like you're upset that I've asked you for information that you supposedly know.
107 -- Suppose it's not a war. You're a number 3 guy in the AQ crime family. US agents take you into custody in Pakistan, with the connivance of Pakistani authorities. They don't want to charge you with a crime, because they don't want to reveal who tipped them off to you being there, so they take you to a military base in Afghanistan and hold you in a cell. And beat you periodically to see what info they can get from you. How are you better off with it not being a war, and instead of a combatant force, you were just a member of a criminal conspiracy?
Don't mind if it stings at first, that'll go away after a few minutes.
126: if it wasn't a war, why is there a US military base in Afghanistan? US agents don't have powers of arrest in Pakistan, so what you're describing is a kidnapping. And why would you have to reveal how you found someone's location in order to charge them with a crime? All you need to charge them, surely, is some evidence that they committed a crime; how you tracked them down is neither here nor there...
It's a kidnapping. Who are you going to complain to?
We have military bases lots of places where we're not having wars.
It's not really that good of a hypothetical, I admit. What PGD wants is an orderly and lawful law enforcement procedure. I agree that that would have been a better response to 9/11, and I would have been ok, as well, with military forces acting in support of law enforcement (eg with bin Laden being kidnapped from Afghanistan and brought back to New York City to stand trial). Bush used to describe what he was trying to do as 'bringing [malefactors] to justice' and it sounds like what we should be doing until it turns out that what he meant was killing them, or otherwise holding them as far away from any sort of adjudicative process as possible.
US agents don't have powers of arrest in Pakistan, so what you're describing is a kidnapping.
This sort of issue, I don't find morally troubling at all, if the person detained receives due process after detention. It might or might not turn into a problem with the government of the area where the detainee was located (Pakistan, or as discussed above,Yemen), which might or might not be a reason not to do it, but in terms of the rights of the detainee, it seems unimportant (particularly if the alternative is killing them without process).
We have military bases lots of places where we're not having wars.
Yes, but you've only got military bases in Afghanistan because you had a war there. In the absence of a war, the place would be still run by the Taliban, and they wouldn't let the US set up a base there.
And the point about it being a kidnapping is that kidnapping and conspiracy to kidnap are federal offences under US law. I'm not seeing how this is an improvement, rule-of-law-wise.
What do you have to even kidnap or kill these guys for? Just wait for them to enter the US and arrest them then. If they don't ever enter the US, then there is no problem.
I'm not seeing how this is an improvement, rule-of-law-wise.
You're not seeing how detaining someone in a manner that looks illegal (if not somehow authorized by the "it's kind of a war" and the exigencies of the situation), and then giving them a trial characterized by due process and releasing them if not found to be guilty of some well-defined offense is an improvement, rule-of-law-wise, over killing them without process? Because this one seems like a pretty easy call to me.
If they don't ever enter the US, then there is no problem.
I can think of several ways in which somebody could create problems without entering the U.S.
133: because conspiracy to kidnap is actually no-kidding illegal, so you're saying that, as an act of policy, you're just going to ignore established law for as long as you want, until you decide that you don't need to any more, and that's a really bad precedent.
Killing people because they're in the opposing army during a war isn't illegal.
134: Sure, but problems so severe you need to set up a global network of kidnappers and assassins?
If the Pakistani authorities are on your side and reliable, I'm not sure why you don't just get them to arrest the target and try him under Pakistani law (or extradite him to the US).
Is it conspiracy to kidnap when the government does it?
138: yes, because the act of kidnapping itself is happening in Pakistan, where US government agents don't have powers of arrest. If it was happening in the US it wouldn't be conspiracy to kidnap, it'd be "organising someone getting arrested".
Yes, yes, but is the severity of these problems commensurate with the problems involved in keeping a global network of kidnappers and assassins?
140: Against the laws of Pakistan, sure. I was speaking of U.S. law. Agents of one government have often planned and carried out things against the law of another government (e.g. espionage) without being overly concerned about breaking their own laws.
I've never looked into it, but I remember hearing that there were vast insurance consequences of treating 9/11 as an act of war rather than a crime. Does anyone know any facts about that?
I think ajay your 137 is the direction I wanted to go, and would nearly always prefer. When the civil authority is incapable, or unreasonably unwilling, I guess I'm not ruling out use of force completely. My point, more or less (and quite poorly articulated) on this issue is that while I'd rather we weren't having a war, because I wish we weren't doing the things we are doing, I think I'd rather, if we are going to be doing what we are doing, that we call it a war, rather than some sort of ad hoc gloves off law is a quaint relic of another time non-war war. Which is where I think the 'you can't have "war" with a non-state group like AQ' argument ends up going.
You don't need a global network of kidnappers and assassins. You need good intelligence and a set of small teams of kidnappers and assassins. Think about how Israel handled the Munich terrorists. They even had an informal set of checks and balances going to ensure that they only got people who were unambiguously guilty.
145 -- We don't need all that: we have bags of chocolate bars.
You don't need a global network of kidnappers and assassins. You need good intelligence and a set of small teams of kidnappers and assassins.
Oh, nevermind then.
144: " My point, more or less (and quite poorly articulated) on this issue is that while I'd rather we weren't having a war, because I wish we weren't doing the things we are doing, I think I'd rather, if we are going to be doing what we are doing, that we call it a war, rather than some sort of ad hoc gloves off law is a quaint relic of another time non-war war. Which is where I think the 'you can't have "war" with a non-state group like AQ' argument ends up going."
Comity on unAmerican activities!
They even had an informal set of checks and balances going to ensure that they only got people who were unambiguously guilty.
144 -- in the end that wasn't an important insurance issue, as far as I know.
Israel isn't very subtle about operation names.
Never mind. You said "comity".
135: There is no legal state I'm aware of under which capturing people is more illegal than killing them. If we're at ordinary war and they're open combatants, both are fine. If we're not at war at all, both are illegal. So killing someone without process is never going to be legally preferable to detaining them without process -- they might both be okay, but killing won't ever be better. Agreed?
Now, we've got a situation where we're not at ordinary war, we're in this screwy Global-War-On-A-Poorly-Defined-Organization situation. And the people we have a problem with aren't open combatants -- they may be very bad people, but they're not wearing uniforms. At this point, we have a number of options:
(A) Full rule-of-law: If we can't get the jurisdiction where they're located to arrest them, we do nothing; if we can, arrest and trial. I, personally, am just fine with that. Maybe I'm underestimating the existential risk to our society from being that cavalier about the threat they pose.
(B) Due process after irregular detention: So we have targets in jurisdictions that are either not cooperating with us or have no control over their territories. And there is, in some sense, a Global War-On-Something going on, and we think these targets are vitally important to it. So we take some sort of military action to arrest/detain the targets where they are (limited by the geopolitical implications of pissing off the relevant jurisdiction), and then treat them as criminal defendants from that point on.
(C) The World Is Our Battlefield: We say someone's a legitimate target, they are. No process, no problem.
(B) wouldn't be my first choice of the three options. But if you're going to say that the realities of "war" demand that we do something, it seems very obviously preferable, from a human rights point of view, to (C).
127: Is your inability to say anything intelligent about an area in which you claim expertise supposed to sting? I must not have gotten a very strong dose.
The last line of 154 should be "from a human rights and rule of law point of view..."
killing someone without process is never going to be legally preferable to detaining them without process
Doesn't that depend on what other laws need to be broken in order to detain them? This was ajay's point, I think. Killing them may literally be pressing a button, whereas detaining them may require covert operations in another sovereign state, removing them from that state, etc. And from a rule of law perspective, we may be able to squint our eyes funny and conclude that they are enemy combatants or close to it and so we have a right to kill them. Whereas we may have no legal basis to do the things we'd need to do to detain them.
Killing them may literally be pressing a button,
Which literally makes something explode, and kills someone, in a jurisdiction in which you are not legitimate law enforcement. Where we're 'at war', but we're not 'at war' with the country where we want to kill people, I think this is still questionable.
whereas detaining them may require covert operations in another sovereign state, removing them from that state, etc.
If you're worried about having the permission of the relevant jurisdiction, this is a legal problem; if you think that something about the war you're engaged in makes the opinions of the relevant jurisdiction irrelevant, it isn't.
Whatever the legal situation you think applies as to "What we're allowed to do in Yemen without the Yemeni government's permission and cooperation", I really don't think there's any such situation where the answer is "Killing people with drones is fine, detaining them and removing them from the country isn't."
158: I don't follow any of this as closely as I should, but aren't there circumstances in which we are legally allowed to fly drones over jurisdictions, even though we would not legally be allowed to stage military operations in those jurisdictions without either getting the cooperation of the jurisdiction or declaring hostilities against the jurisdiction?
159: Damfino.
But if you tell me that there are circumstances where we would not be legally entitled to carry out a military operation, but we are legally entitled to fly a drone with the intent of having it explode and kill people, because that's not a military operation, I will call you a silly person.
Well, I could be off base, but I thought that was why we always get nuances from Brennan like: "As a matter of international law, the United States is in an armed conflict with al-Qa'ida, the Taliban, and associated forces, in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defense. There is nothing in international law that bans the use of remotely piloted aircraft for [purposes of national self-defense] or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat."
(Emphasis added.)
at least when the country involved consents
This is a pretty big exception. Sure, if the relevant authorities are fine with what you're doing, you're good.
or is unable or unwilling to take action against the threat
And I find it hard to imagine a legal principle under which this would permit drone strikes against a targeted individual but not a raid to detain the same individual. There's nothing legally magical about a drone being pilotless, AFAIK, and nothing legally magical about it being airborne as opposed to on the ground.
I always thought that the first point of international law was exactly that you couldn't use lethal force in the territory of another state and that doing so was legitimate grounds for the other state to declare war on you. At least, in political science sovereignty was usually defined as a monopoly on the legitimate use of force in a given territory.
The second point of international law concerns duty free liquor shops.
Which would be why Steve McQueen, at the end of the Great Escape, was trying to jump the barbed wire on his motorcycle to get into Switzerland. Ordinary war, ordinary combatant (I think -- an escaped POW reverts to being a normal soldier?), but if he could have crossed into neutral territory, he would have been safe from attack (unless the Nazis were willing to commit an act of war against Switzerland).
I think the legal principle under which we can commit drone strikes against targets in Yemeni territory is "We don't give a damn if it's an act of war against Yemen, what's Yemen going to do about it? It's not like we're going to invade or anything." And if that's the principle, fine, but it applies just as well to military action to detain targets.
I could see kidnapping count as being just as wrong as killing as far as violating an international boundary, but I can't see kidnapping ever coming up worse.
I didn't even notice I was pwned there.
I65, 168:
I was just saying to someone a few days ago how odd it is that Steve McQueen isn't shot in that movie: He garroted a motorcycle messenger, and put on his uniform. Sure, by the time he was run down he seems to be wearing loafers, chinos and a sweatshirt, but he'd violated the laws of war more than any other escapee, all of whom were executed.
They clearly liked him -- they even let him keep his ball and mitt through multiple periods in the cooler.
I thought the Yemeni government had actually given us some kind of formal permission to conduct drone strikes there, on the theory that they need help and don't actually control their own territory. I could be wrong.
172: I don't know either (and I really don't know about Pakistan, where I'm completely unable to keep track of what we're doing with Pakistani permission and what they're objecting to). If there genuinely is a situation where the jurisdiction says "No, we won't arrest this person or let you do it, but drone strikes are fine," that's something I'd have to think hard about -- I think that in the plausible real world cases the right thing to do would be nothing.
173: I have the same sense as Rob. And my sense of Pakistan is that the tacit agreement was: you drone whoever you want in Waziristan, and we'll bitch and moan every time it gets press.
But then we droned some people elsewhere, and the bitching and moaning became (more) sincere.
Arguably, it shouldn't be possible for a gov't to legitimately permit anyone to kill its own citizens - it would be as if Strangers on a Train actually revealed a legal loophole. "But Your Honor, he told me it was OK to kill his wife!"
OTOH, insurgencies are a different thing. Would it be a problem for the US if the Brits had killed Lee?
The Brits were closer to supporting Lee than killing him.
Arguably, it shouldn't be possible for a gov't to legitimately permit anyone to kill its own citizens
The issue is that a government shouldn't be able to grant rights it doesn't have -- if it would have been wrong for Pakistan to do something, it's wrong for us even if Pakistan lets us do it.
Pakistan doesn't seem to have regarded the raid that killed Osama as an act of war, and there's no reason to think that they would have thought so if we'd captured rather than killing him. So whatever permission we have in terms of drone strikes, it doesn't look, in Pakistan, like a clear drone-strikes-yes/raids-capable-of-detaining-a-target-no.
175: Don't think I've forgotten. Fuckers.
176: Right. But then we get to the arrest/kidnapping debate. We know Pakistan can arrest its citizens and put them on trial. We know that Pakistan can arrest its citizens and extradite them to the US*. So what's the line, precisely, that's crossed if Pakistan explicitly (albeit secretly) permits the US to arrest and remove its citizens?
*granted, this usually involves due process, but I don't know how critical that due process is, if the extradition partner is presumed to be respecting due process itself
177: Really what we're getting into is that Pakistan is, for want of a better term, an "unreliable" partner. That is, the government is not meaningfully united (powerful factions are pro-Taliban, if not outright pro-AQ), and even the parts that are legitimately on board with the GWOT and the US are not willing/able to do so in plain sight.
Come to think of it, it's a bit like how England was, in fact, deeply divided over the US Civil War, because they were deeply anti-slavery, but deeply pro-cotton imports. And so you had this very tricky balance in how the government would support the South, and everything was done sotto voce, if you will.
Our involvement in Yemen in 2014 is more or less the same as our involvement in England in 1944. We do not merely have permission to use drones, but we are active allies in opposition to a specific force. (This isn't the only armed struggle going on in Yemen right now, but sfaik we're not actively involved in the others). The Yemenis are supplying the targeting information, and frequently claim that our strikes were their own.
Is there any reason to think that the Yemeni government would object to a US raid for the purpose of apprehending a target to be tried in the US? (Genuinely asking out of ignorance -- it seems possible that there might be, but more likely than not that if they're fine with drones, they'd also be fine with that sort of thing.)
If it wouldn't be a problem, I think that solves the 'kidnapping' question. If it's authorized by the relevant authorities, it's not kidnapping.
I suspect the bigger issue motivating drone vs. capture raid is what happens when things go wrong. When a drone attack goes bad, the US winds up apologizing (or not) to the relatives of the wedding party that got slaughtered. When a capture raid goes bad, the other side winds up with a bunch of hostages to use or bodies to desecrate. Although the moral/rule of law considerations are mostly on the side of the latter approach, I can understand why risk-averse politicians might prefer the former.
Oh, I'm sure you're right that that's most of the motivation.
It's hard for me to imagine a rationale -- whether stemming from Due Process or some other source -- for a government to have the right to detain and torture a person for an indefinite period of time, and yet not have the right to simply kill that person. If we view it as a matter of international law, I suppose the question is whether a government has the right to extend its forces into the foreign territory to either kill or extract and torture the individual. And I suppose that depends on whether we have the permission of the government of the territory in question or are at war with it. And the question of permission is always going to be murky when the United States is dealing with a small country whose government is quite reasonably intimidated and yet needs to safe face to stay in power.
As for the Due Process question, the white paper is fairly clear on Obama's position on killing: since Congress has authorized war against AQ, an AQ officer who is also an American citizen has no Due Process right not to be killed. This reasoning is based on Supreme Court decisions which held that we can torture those citizens.
The reasoning makes some sense. Any kind of torture violates international law, even in times of war. But of course during a war one tries to kill the members of the opponent's army, and in most cases it is a strategic advantage to kill an opponent's officer.
It seems to me that, had the Supreme Court ruled differently, it would be reasonable to simply extend the normal rules of war to AQ members: we can kill them in foreign territory, but we can't torture them. As is, the law is that we can do both.
184 -- What Supreme Court case authorizes torture?
181 -- The government of Yemen has been uncooperative with respect to a few of the Cole suspects, to the extent that I think you'd expect them to object (and one would guess that they have objected). You seem to assume that the US makes demands and Yemen acquiesces, but I don't think it's anywhere near as simple as that. US conduct in response to the Life March, for example, shows that continued cooperation with Yemen, on its terms, is a high priority for the US.
186: It's my belief that we are torturing people in Gitmo and have been for a long time now.
So, more specifically, the forms of detention which Hamdi permits, in combination with the methods of interrogation which we openly use, indicate that we torture suspected AQ members.
As a non-American citizen, I am not offended by the "but they're AMERICAN CITIZENS" objection: I am not offended at all.
Yes, I understand that many Americans believe (truly, deeply, and at the gut level that characterizes true belief) in American exceptionalism. And I realize that for some (I will not say all, and I don't want to say most) Americans, American lives are more worthy and valuable than the lives of those others who are not-American -- in large part, I suspect, because for these USians, non-Americans don't quite seem real?
But if the Canadian executive branch were to assert the right to engage in targeted assassinations of Canadians, I would be making the same objection: "but they're CANADIAN CITIZENS."
And not because I believe in "Canadian exceptionalism" (eh? what would that mean!? there is no such thing), and nor because I believe the lives of Canadians are inherently more worthy and valuable than the lives of any other citizens (this I do not believe at all). But rather, because I believe that to grant the Canadian executive a targeted-assassination power would be to violate (at a very serious and non-frivolous level) the terms of Canadian citizenship, and would be to break the social contract (between citizens and their government) upon which lawful governance depends.
187, 188 -- I'm not going to disagree with you on whether torture has taken place, at GTMO and other places: and I think it's been far more widespread than the general consensus has it. But I really don't think you can read the Hamdi opinion as holding that the government can torture prisoners. Here's a snippet from O'Connor's plurality opinion:
Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan.
And then in Hamdan, the Supreme Court said that CA3 applied, which is the opposite of authorizing torture. (And which led to the shutdown of black sites, and movement of "high value" prisoners to GTMO.) Now Congress purported to make the Geneva Conventions unenforceable, in the Military Commissions Act: the DC Circuit currently has a case challenging this provision, which was argued last month.
Another part of the drones-v-raids decision in Pakistan is that the Pakistani rednecks don't really realise fully that there is no way drones could operate over Pakistan without the consent and involvement of the Pakistani government. But if the Pakistani police turn up, with or without US commandos in tow, and arrest some beard who's a favourite of the rednecks, then it's obvious even to the rednecks that the Pakistani government must be involved, and they get a sad on and start blowing stuff up (or rather start blowing stuff up more), and the Pakistani government would rather that didn't happen. If it's just drones, then they can say "oh, that's the Americans for you, nothing to do with us", and the rednecks believe them.
165, et seq: On the admittedly somewhat peripheral issue of LOAC and Steve McQueen:
A POW is legally a non-combatant and he stays a non-combatant even after he escapes. Because he's not a combatant he can't be shot on sight (unlike a normal non-POW soldier, obviously), and he doesn't have an obligation under LOAC to wear uniform, but, equally, if he kills an enemy soldier in the course of his escape, it's not a legitimate act of war; he's committed murder. And if he's wearing civilian clothes as a disguise, legally he's in the clear, but the Germans had a nasty habit of using that as evidence that a POW wasn't just an escapee but a spy, and shooting them.
Now, escaping from a civilian prison is a crime under civilian law, but you can't use that to try and convict POWs for escaping from POW camps; it's their duty to try to escape. If you recapture them, you can give them administrative punishment in a POW camp, like restriction of privileges or time in the cooler ("Hilts, old boy, will you STOP bouncing that BLOODY BALL ALL THE TIME!") but that's it.
If Hilts/Steve McQueen had made it into Switzerland, he would have been interned for illegal entry, and subsequently repatriated back to the UK, via the US embassy. On recapture, he should have been tried for murder by the German authorities.
The POWs who were shot at the end of the film did (unlike the Steve McQueen character) actually exist. Their murder, like the murders of various special forces soldiers captured behind German lines, had no backing in LOAC, and after the war was over we tracked down the Germans responsible and we tried them and hanged them - except for a few whom the Russians protected, because their skill sets and moral flexibility made them useful members of the post-war East German security forces.
192.1 makes the rather sweeping assumption that all Pakistani rednecks are half witted, which is a dangerous assumption to make and contrary to my experience. It takes only one intelligent and curious person in a community - possibly the favourite beard, possibly not - to make the connection and explain it to everybody else, and they will understand what's gong on as well as you do.
I was wondering how the escaped POW thing worked -- reversion to combatant status sounded wrong once I'd said it.
But generally, the discussion of what Pakistan or Yemen will permit seems like a bit of a side issue, or at least a side issue compared to what I'm concerned with, which is that we shouldn't be killing anyone without process unless they're an open combatant in a war, and defining 'open combatant' as 'someone we have evidence too secret to be shared in public against' would make a cat laugh.
Once someone's not an open combatant, how we can go about giving them the sort of process necessary to determine if they can be punished is a practical problem, and the answer is sometimes going to be "We can't." At which point, I think the right answer isn't "So then we kill them without process" but "Not all problems have solutions, and the world isn't going to come to an end if we don't kill this guy with a drone."
193: maybe, but it took an awful long time for that to start happening. Note the relative lack of protests against the Pakistani government because of its involvement in drone strikes - partly because the Pakistani government has been carefully making it clear that it is shocked, shocked! to find that US aircraft are dropping bombs in Pakistan (I've put next week's flight plans in your in-tray, General. - Oh, thanks very much).
