Boy have I come in for a shellacking from readers and other civil libertarians. Glenn Greenwald's latest is quite a barrage of logic, legal expertise and passion, but in trying to think these questions through some more, I found the comments section on Daniel Larison's blog-post here more helpful. Indeed, it's almost a model of intelligent debate on this subject. And it highlights what I think are some useful and important good faith differences between those of us who all agreed on the horror of the Bush administration's invocation of dictatorial executive powers in the detention and treatment of prisoners of war and those of us who now nonetheless disagree on some important aspects of what I continue to call a war on Jihadist terrorism.
Our first disagreement is a fundamental one. I believe this is a war, not some kind of lesser counter-terrorism operation, or a global criminal operation. I understand that it is not always prudent to blast this term around, for fear of empowering the theocratic murderers who want to kill us; and I concede that this is a fluid term, with threats waxing and waning; I concede that we may at time over-estimate the forces against us; and that the trauma of 9/11 should not dictate our every move. But there are groups and individuals out there trying to kill as many Westerners, and fellow Muslims, as they can, and to do so with no qualms and with as much damage as possible. This is not a chimera. Attacks have continued every year since 9/11 and before. The perpetrators of 9/11 remain at large. New bases in Yemen and Somalia and Iraq and Pakistan and Afghanistan exist. If they could get their hands on some form of WMDs, they would. And they'd use them.
Moreover, the war against these amorphous forces of al Qaeda is perfectly constitutional, having been authorized by the Congress, against an enemy that directly attacked the mainland of the United States, and had already attacked US embassies and warships, and murdered the civilians of allies, most grotesquely in London and Madrid. I did not reproduce the image of the destroyed World Trade Center for some cheap attempt at moral blackmail, or to propagate irrational fear, but to remind ourselves of the scale of the damage inflicted by a military organization that is still determined to kill as many of us as it can, and is even now re-grouping to kill more in the name of God.
It is, moreover, a theocratic military organization of horrifying methods, violating core Muslim teachings in its mass murder of civilians, and with a barbarism as bad as any in the history of warfare. I am not ashamed of fighting this enemy, or of supporting a war against it. I remain, of course, concerned that we understand it accurately, do not over-estimate it, or by our own errors and misjudgments unwittingly empower it. This makes this war extremely difficult. It requires both isolating an Islamist terrorist army from the world's Muslim population (whom it targets) and also relentlessly hunting it down and killing its members when they remain an active military and physical threat against us. That's why I support an outreach to the Muslim world as well as a relentless yet carefully targeted war against Jihadists. That's why I want a Green Revolution in Iran and a two-state solution in Israel/Palestine. And it's why I regard resolving these issues as matters of some urgency - because I do not believe the threat is an illusion, or the prospect of wider global war unimaginable.
I should add that it is precisely because I take this to be a war that I took the gross violations of the laws of war engaged by the Bush administration to be so damaging and wrong and counter-productive. When you unleash the power of warfare, the use of raw violence to coerce an enemy into defeat, that power is so great and the passions it unleashes so powerful that the temptation to go beyond legitimate war-aims into torture and mistreatment of captives or collective punishment of civilians must be resisted strongly. When it is actually condoned and authorized by the commander-in-chief, the results can destroy the civilization we are trying to defend.
And so I find torturing captives in warfare far more morally troublesome than killing the enemy in a just war. Because warfare, alas, even just warfare, is about killing the enemy. Now the question before us is whether it is still right to kill an individual member of an enemy organization if he is an American citizen, fighting a war against this country and his fellow citizens in a foreign country which is a base of operations for al Qaeda, where the prevailing government, such as it is, is unable to capture or detain him and where it is effectively impossible for us to capture him and bring him to a military tribunal or civilian trial. That's a mouthful and a lot bundled up into one sentence. But I think it's a fair statement of the ultimate question we are asking - and it is an important question and I respect very much the concerns of those who say no.
So let's try to unpack this. First, is it legitimate in a war to target for killing any individual in an enemy army? Of course it is. In Larison's thread, commenter Anderson notes the example of Admiral Isoroku Yamamoto. I hope Glenn Greenwald will forgive me for citing Wikipedia here:
On 14 April 1943, the US naval intelligence effort, code-named "Magic", intercepted and decrypted a message containing specific details regarding Yamamoto's tour [of the South Pacific], including arrival and departure times and locations, as well as the number and types of planes that would transport and accompany him on the journey. Yamamoto, the itinerary revealed, would be flying from Rabaul to Ballalae Airfield, on an island near Bougainville in the Solomon Islands, on the morning of 18 April 1943.
U.S. President Franklin D. Roosevelt ordered Secretary of the Navy Frank Knox to "Get Yamamoto." Knox instructed Admiral Chester W. Nimitz of Roosevelt's wishes. Admiral Nimitz consulted Admiral William F. Halsey, Jr., Commander, South Pacific, then authorized a mission on 17 April to intercept Yamamoto's flight en route and shoot it down.
It worked. Was Yamamoto "executed" or "assassinated"? Or was he killed in wartime, as my own plain English word would have it? Was the failed 1941 attempt to kill Rommel by No. 11 Scottish Commando at Bedda Littoria, Libya, an assassination attempt? In 1951, a U.S. Navy air strike killed 500 senior Chinese and North Korean military officers and security forces attending a military planning Conference at Kapsan, North Korea. Was that a mass execution of targeted war leaders? If the Royal Airforce had had intelligence revealing Hitler's precise whereabouts and had a chance to bomb it, would that have been an assassination? If Osama bin Laden's location were somehow decrypted, and capture was not feasible within sufficient time, and president Obama ordered a drone attack that killed him, would that be an act of presidential "assassination" or a legitimate act of warfare? I think the latter. And under military law, the same principle applies to someone not in uniform in a global counter-insurgency. From the Parks 1989 Memorandum on assassination in exactly such a situation:
Guerrilla warfare is particularly difficult to address because a guerrilla organization generally is divided into political and guerrilla (military) cadre, each garbed in civilian attire in order to conceal their presence or movement from the enemy... A civilian who undertakes military activities assumes a risk of attack, and efforts by military forces to capture or kill that individual would not constitute assassination.
Now, of course, the added issue here is if a member of the enemy military is actually an American citizen fighting the US on enemy soil. (Not American soil, where the military has and should have no role in conducting warfare against al Qaeda.) Obviously this matters. A lot. So let's unpack this further.
Consider one hypothetical. An American citizen joins the German army in the Second World War and is killed in a gun-battle, as allied troops march through France. Is he thereby somehow an illegitimate target for killing? Are we required in such a war to ensure due process, to go through the constitutional requirements proving treason, even while on the battlefield? I'd say not. What if such a saboteur or traitor were subsequently captured alive? Ex Parte Quirin determines that a military commission - not a civilian trial for treason - is sufficient to prove their guilt. They are, in other words, members of an enemy army, against which the president has been authorized to wage war by the Congress. They are therefore liable to be captured, or if not able to be captured, killed. That is the sense in which I mean there is no due process in killing someone in a war.