Even (suspected!) terrorists have rights. It's easy to think about the drone war: It's plain wrong. Sending guided missiles into other people's airspace is an act of war, and killing people without even so much as a sham trial is murder.
The more of this stuff we collectively condone the more the Bin Laden's of this world are winning. That's the real tragedy, that after 9/11 the West lost its moral compass.
Okay, but let's examine the other side. I am not directly supporting this, but I'd imagine the case is
"This is asymmetric warfare in which the adversary is not a hypothetical threat, but has killed many thousands of people globally (not just 9/11). By joining a hostile armed force they can be legally killed in combat operations against that force. By operating asymmetrically, they are relinquishing more rights under the Geneva convention. Because of the nature of this, trial by jury could put humint allies at risk"
Parts of the way this "war" is being prosecuted is wrong, but I don't think this an utter abdication of a moral compass. There really are people planning and executing plans to kill other people, and they should be stopped.
Obviously this story shows that are some disgraceful flaws in the the way the process is set up and executed.
The process violates human rights. This is not war, since no war was declared, and even in times of war responses need to be adequate in particular with respect to the number of civilian casualties. It is illegal and unambiguously immoral to conduct political assassinations of suspect combatants without judicial oversight or giving them a right to defend themselves. Add to that the fact that practically every drone strike kills innocent civilian bystanders including children[1], and there is nothing to discuss here.
JOINT RESOLUTION
Resolved by the Senate and the House of Representatives of the United States of America in Congress assembled:
Declaring that a state of war exists between the armed militant groups of Jundallah, Tehrik-i-Taliban, Lashkar-e-Islam, TNSM, al-Qaeda, ISIL and their successor and fraternal organizations within Waziristan and neighboring provinces and the Government and people of the United States, and making provision to prosecute the same.
Whereas, the recent acts of by the militant groups are acts of war against the Government and the people of the United States:
Resolved by the Senate and the House of Representatives of the United States of America in Congress assembled, That the state of War between the United States and the militant groups of Waziristan which has been thrust upon the United States is hereby formally declared; and
That the President be, and is hereby, authorized and directed to take immediate steps not only to put the country in a thorough state of defense but also to exert all of its power and employ all of its resources to carry on war against the militant groups and to bring the conflict to a successful termination.
-------------------
And then they vote on it and it passes. And the Supreme Court finds that there is nothing unconstitutional about it.
By definition you can not declare war on something not another country because you will be attacking the country those people are in.
Armed militant groups are first and foremost the problem of the countries bordering and including the territory these militants operate in.
Any action against them by foreigners not otherwise involved in the region is an act of war in and of itself.
Imagine - I know this is a tricky one - Russia intervening in North Dakota between two rival bike gangs. The United States would see this as an act of war against the USA, and rightly so.
The only way this could happen is if there was a direct invitation from one of the governments of the affected countries and this would then still be limited to the territory of that country.
> By definition you can not declare war on something not another country because you will be attacking the country those people are in.
Declarations of war identify an enemy, they don't (inherently, though they could also do this) limit the geographic area in which forces of that enemy will be attacked.
> Imagine - I know this is a tricky one - Russia intervening in North Dakota between two rival bike gangs. The United States would see this as an act of war against the USA, and rightly so.
Yes, but that doesn't make declaring (or prosecuting) war against non-state actors impossible, it just means that prosecuting such a war will either require cooperation of or conflict with other states.
That's often true with regard to third-party states in interstate war, too, whose territory is often violated (or, in some cases, the entire country occupied, as the British did to Iceland in WWII) without declaration of war as part of prosecuting a declared war against some other state.
> By definition you can not declare war on something not another country
So the American Civil War wasn't a war, since the south wasn't another country? The Chinese civil war wasn't a war? The Iruqois Wars weren't wars? The Seljuk-Crusader War wasn't a real war? The War of the Sicilian Vespers wasn't a real war? The War of the Succession of Champange wasn't a real war?
It seems like there's about 4,000+ years of natural language clearly establishing that a war is NOT just about fights between two nation states.
But, hey, I could be wrong. It wouldn't be the first time Congress has passed a resolution that ended up being found unconstitutional and it won't be the last.
> So the American Civil War wasn't a war, since the south wasn't another country?
No, it was a Civil War. As you already wrote.
> The Chinese civil war wasn't a war?
No.
> The Iruqois Wars weren't wars?
You are really reaching now.
It seems to me that you are trying very hard to hold on to the idea that there is such a thing as a 'war on terrorism' but the whole thing is nonsense, just as much as the 'war on drugs' or any other mis-use of the term.
> But, hey, I could be wrong.
Yes you are.
> It wouldn't be the first time Congress has passed a resolution that ended up being found unconstitutional and it won't be the last.
It's not the constitution of the United States that matters here but international law.
If you want an example of an actual exercise of Congressional power to declare war that applies (conditioned on Presidential determination) to both state and non-state actors, see the 9/11 AUMF.
IOW, been there, done that, and that's what got us where we are.
America is part of the world, and how things have been done in America is a subset of how things are done in the world. So, in a question about “how do you do X”, a concrete example of how America has done X is germane even if the scope is global.
(OTOH, this is a discussion specifically about American action, anyway.)
That's all fine and good as long as America stays within its borders. As soon as they cross those borders a different body of law applies.
If you are of the opinion that this is not the case then maybe America should withdraw from the Geneva convention and various other useful treaties as well because after all, what's the point in having rules of engagement if you're going to ignore them anyway...
> As soon as they cross those borders a different body of law applies.
Yeah, but declarations of war (whether with or without magic words) aren't really important in a legal sense in that domain. Alexander Hamilton observed that they were falling out of use internstionally before the US Constitution was ratified, and the post-WWII international order has essentially made them moot with the recognition of aggressive war as a crime against peace. Fighting a defensive war once hostility was initiated (or, perhaps, clearly imminent) has long been accepted as valid with or without declaration, so with aggressive war itself a crime, there is no war legitimized by a formal declaration.
The international laws governing armed conflict are operative based on the fact of such conflict and the identity of the parties to it, not declarations of war.
But that's the whole point isn't it? 'Identity of the parties to it'. By ignoring the fact that one of the parties involved here has no identity as such there is no way to wage war on them, with lots of civilian casualties as the result of any attempt to do so.
That's the whole reason the Geneva convention was created to begin with, to differentiate between combatants and non-combatants. Now, it absolutely sucks that the other party doesn't play by the rules but that is no reason to stop playing by those rules ourselves. The moment we do so we stoop to that same level.
Anyway, that's a past station by this point and I'll probably have a hard time convincing you that on the evening of 9/11/2001 America had the keys to a new world order in its hands and squandered the opportunity by seeking petty revenge and economic advantage. The lesson learned that evening is that by doing what your enemy wants you to do you lose, big time. You can't wage war on ideas or on reactions.
> By ignoring the fact that one of the parties involved here has no identity as such
Both the US and each of the groups it had targeted under the 9/11 AUMF has an identity.
Some of the targets are parts of diffuse groups with little central command structure, which makes it very hard to end a war against them (and harder still to draw and end to an open ended war where targets are added by loose association), which is a problem of the crafting of the AUMF, it's continuation in effect, and the Congressional oversight of the war effort.
In an international law sense, there's a host of valid questions about the adequacy and appropriateness of the rules governing conflicts involving non-state actors (such as Common Article 3 of the Geneva Conventions.)
> Now, it absolutely sucks that the other party doesn't play by the rules but that is no reason to stop playing by those rules ourselves.
I don't disagree, but drone strikes per se aren't a violation of the rules.
> I'll probably have a hard time convincing you that on the evening of 9/11/2001 America had the keys to a new world order in its hands
Well, yeah, that's a claim that would take some support.
> and squandered the opportunity by seeking petty revenge and economic advantage.
While I doubt the existence of the opportunity you suggest was squandered, I do think the US government did a grave disservice to both itself and the world community with it's conduct in the years immediately following 9/11, most especially, but not exclusively, in the naked war of aggression it leveraged domestic outrage at 9/11 to justify in Iraq.
And I think there are deep problems with the broader “War on Terror”, I just seem to disagree with you on the degree to which those problems are due to violations of clear proscriptions in international law or failure to observe ceremonial requirements.
> conduct political assassinations of suspect combatants
If they're combatants, it's not political assassination. It's a combat operation.
If they're suspected combatants, it's still not political assassination. It may not be morally justified, but it's not political assassination. (And it still may be morally justified. You almost never have total certainty in discriminating between civilian and combatant, even in a formally declared war against a formal military.)
That's hair-splitting nonsense. Drone victims are very often neither combatants nor suspected combatants but rather local warlords/politicians. In many cases the US forces do not try at all to determine whether the victims are combatants (i.e., whether they are holding a gun in their hands, for instance).
As the article lays out the assassinations are made based on death lists compiled by US intelligence agencies. They can put whoever they like on these lists, in this case they put a US citizen on it, for example. That's the paradigmatic example of political assassinations, and e.g. on a par with what the US did when they supported death squads in Chile, except that in Chile the death squads were mostly comprised of non-US citizens whereas drone strikes are conducted by US citizens.
Leaving aside the question of whether war was declared, and while war without declaration may be its own problem, both US and international law recognize that war exists (and the laws of war apply) when armed conflict is initiated, whether or not a declaration was made previously.
You care conflating acts of with crimes. When a country does it these things are acts of war, when an individual or a group of individuals does this it is a crime. A really bad one, but still a crime.
I agree with you completely. But it's not like criminal justice resources aren't being utilized in addition to drone operations. And I think the question of how to fight armed combatants in remote areas of the world is a real moral gray area (really: how many people should die to apprehend someone committing crimes of this type in a remote area of the world? The law enforcement/military people that would do this are 3-dimensional and their lives count).
> But it's not like criminal justice resources aren't being utilized in addition to drone operations.
So? Of course the criminal justice resources are being used but at the same time there is a long list of transgressions that if they weren't a response to terrorism would invite just that.
> And I think the question of how to fight armed combatants in remote areas of the world is a real moral gray area (really: how many people should die to apprehend someone committing crimes of this type in a remote area of the world?
It's actually really simple, and not morally gray at all: If you can name your foe then you ask kindly for the nation where the foe is hiding to extradite them so they can be put on trial. If that fails then you're out of luck.
> The law enforcement/military people that would do this are 3-dimensional and their lives count).
This is the basis of the doctrine of 'force protection', worthy of a chapter all by itself and in many ways a substantial part of the problem. American lives are not worth even a little bit more than the lives of people of other nations.
So, in short: getting your hands on the perpetrators of terrorist attacks is roughly as hard as getting US 'contractors' extradited from the United States to Iraq for the crimes they committed. And that means that if it does not work you do not have an automatic 'ok' to go and kill those people because that makes you stoop to the level of nation state sponsored terrorism, aka acts of war.
"The "iron fist" COIN path, focused primarily on eliminating the insurgent threat, is historically less successful. A motive-based path (one that focuses on eliminating the incentives to support or participate in an insurgency) has been much more successful."
What is this "operating asymetrically"? And how exactly does that justify anything?
Seems like I can say US is opperating asymmetrically, so it's ok to kill all US citizens (or at least people who voluntarilly became US citizens). And it will have just as much validity. Like none...
That was the city of Philadelphia, not the US military. Also, it was generally recognized as a completely unacceptable action. Don't try to pretend like that's evidence of some sort of ongoing US-military-bombing-US-citizens-on-US-soil, it's not.
Because the police have sacks of C4 hanging around? That'd be a big fat no. They obtained essential support from the military.
And sure it was considered unconscionable. Who went to prison in the administration of the time? Hint: not the police, military, or politicians who ordered it.
There's also the case in which the Air Force bombed Tulsa. Still, more African Americans, so it wasn't really a big deal (notice a trend?).
The supplies came from the FBI, not the military. FBI is civilian. Also, wrt the Tulsa race riot, it was individuals with personal aircraft, not the Air Force.
It's fine to be angry but not OK to twist basic facts.
> The logical next step then is drone strikes on US soil? I mean, why not? What's the legal difference?
Because of the way the 9/11 AUMF is crafted, there's no legal difference, just as there would have been no legal difference between bombing Japanese forces in WWII that happened to be found on US soil and bombing then in Japan or some third country.
There are, however, practical and political differences, which is why, e.g. when German unlawful combatants were identified in the US in WWII (after two of them turned themselves in to the FBI, who they had trouble convincing of the reality of the situation, and fingered the rest of the group), the government didn't send an assault force and level the neighborhood, but instead the FBI picked them up (and then handed then over to the military.)
I like your point, but terrorism and war is conflating. I wouldn't want to ignore a terrorist that we know hides in Syria, and that we believe to be dangerous. That could be our moment of hesitating to kill Bin Laden. And unlike Bill Clinton, who had no drones back in 1998 and would have had to use a cruise missile strike, today it can often be done with no civilian casualties.
Sending in troops in this godforsaken places means losing more lives.
Say we have proof that a target is a known terrorist and that no civilians are around. Would you still risk the lives of 10 soldiers to catch him. Or of 2,996 and just let him go?
I do agree that the Americans probably don't have much proof of terrorism or other wrongdoing for many of the targets, and that so far they have stricken several times where civilians were around.
The more of this stuff we collectively condone the more the Bin Laden's of this world are winning. That's the real tragedy, that after 9/11 the West lost its moral compass.