Before I go into what he said, a little background for framework. There is a fundamental difference between war and criminal prosecution. Military operations are not predicated on the commission of a crime. If I take an enemy soldier prisoner, we are allowed under international legal norms to detain that person for the duration of the conflict, without any assertion that what that soldier was a crime. For that reason, we aren't required to hold any kind of hearing to keep him. Similarly, if we attack an enemy soldier, we aren't doing it because he committed a crime, its simply because he's an enemy soldier. (And, yes, history shows that women can and do fight, be captured and die in combat. I am simply using the masculine pronoun for simplicity.)
When I say "enemy soldier", that has a meaning in the law. An enemy soldier is considered a "lawful combatant". To have that status, he must be a member of an armed force of a state and wear some type of distinguishing clothing. Everyone else is an "unlawful combatant". A civilian has no legal right to engage in combat, and, as long as they aren't attacking our forces, civilians can't be targeted. Members of non-state actors like al Qaeda don't qualify as "lawful combatants". This doesn't mean that they have no rights if detained; it means they must be treated humanely and their status determined by a lawfully constituted tribunal.
Sorry about the length of this digression, but you will see nowhere do I talk about citizenship or trials or due process.
Now, in his speech, Attorney General Holder talked about the successes we have had trying terrorists in Article III civilian courts. This was in opposition to proposals that all such trials be by military commissions at Guantanamo. He said there are times that it makes sense to use a court and there are times when it make sense to use a commission. Some of the considerations are status (the accused is not a member of an al Qaeda linked group), citizenship (by statute, U.S. citizens can't be tried by a commission), the offense charged (commissions have a more limited list of offenses they can address), and international cooperation (some countries won't cooperate with us if a person were to be tried by commission).
He then turned to when we can use lethal force. He pointed out that the use of "all necessary and appropriate force" against the threat of attacks by the Taliban, al Qaeda and similar groups was authorized by Congress in 2001 (Authorization for Use of Military Force, Pub. L. 107-40). This therefore qualifies as an armed conflict and under international law, we can take action against enemy belligerents wherever they may be found. While we must respect another country's sovereignty, established norms allow us to act without a country's consent, if that country is unwilling or unable to deal with a threat in its territory.
It is completely legal to target the adversary's chain of command, including senior military leaders. Holder referred to the World War II targeting and shooting down of the plane which carried Japanese Admiral Yamamoto. This concept was a justification for the killing of Osama bin Laden.
If a US citizen takes part in the planning or execution of violent attacks against Americans, their citizenship does not give them immunity from targeting. Even with that lack of immunity, the Government believes that the Fifth Amendment's Due Process clause does require a determination that the individual poses an imminent threat of violent attack against the US, capture is not feasible, and that the operation be conducted in a manner
consistent with the four fundamental law of war principles which govern the use of force.
The principle of necessity requires that the target have definite military value. (An example of this principle can be seen from the Saddam Hussein's Victory Arch in Baghdad. In Desert Storm, when General Schwarzkopf wanted to have the Air Force destroy it, he complained that the lawyers wouldn't permit it without a showing of necessity, which he couldn't make. It's still there today.)The principle of distinction means that only lawful targets--combatants, civilians directly participating in hostilities (including the chain of command), and military objectives--may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. (There is no rule that collateral damage must be completely avoided.) The principle of humanity requires that we not use weapons that inflict unnecessary suffering. (The textbook application of that rule is the prohibition of glass shrapnel, which can't been seen as well on x-rays.)
Are there limitations to this concept? Holder said that this concept only applies when a U.S. citizen who is a part of al Qaeda is found outside of the U.S. There is no "hunting license" in the United States and it is contrary to our traditions to have our military carrying combat operations on U.S. soil.
For that is what they are--combat operations. (We are now transitioning to what Paul thinks of this.) For that reason, they must be carried out by our military and not the FBI or CIA and absolutely not by contractors. But, I think from a legal point of view, this is no different than if an American citizen decided to serve as a senior German officer during World War II. That citizen would be as much a legitimate military target as the German citizen serving with him. The same concept applies today.
[To comply with Defense Department rules, I probably should say that the views presented here are my own and do not necessarily reflect the views of the Department of Defense or its components.]
No comments:
Post a Comment