The United States government insists, as Attorney General Eric Holder has said, that “we are a nation at war.” Yet in prosecuting what they used to call the war on terrorism (and now call “an armed conflict with al Qaeda, the Taliban and associated forces”) the nation’s highest officials routinely employ the terminology of justice and due process. Top executive policy makers have alluded to a robust deliberative mechanism for determining whom to target, subject to “rigorous standards and process of review.”
A vocabulary of crime and punishment appears well suited to a military strategy geared toward eliminating individual members of a terrorist network based upon their past and pending bad acts. But such “adjudicative” language is starkly at odds with the government’s stated wartime posture.
The context of war denotes a distinct moral universe in which certain individuals are licensed to dispense lethal force against one another. “War,” wrote the famed Nuremberg prosecutor Telford Taylor, “consists largely of acts that would be criminal if performed in time of peace.” Soldiers, however, can be lauded rather than tried for violent exploits because they are acting as legitimate agents of a warring party and thereby possess “belligerent immunity.”
Central to this unique moral construct is the acknowledgement that the justice of a party’s cause has no bearing on the rights and responsibilities of the soldiers who are fighting for it. With respect to individual combatants, the concept of a war crime denotes violations of the specific body of law governing the conduct of hostilities as opposed to active participation in an unjust war. The philosopher Michael Walzer refers to this principle as the “moral equality of soldiers,” holding both liberators and subjugators to the same battlefield constraints.
This neutral posture is critical to the coherence of the laws of war, because it divorces the humanitarian checks on indiscriminate violence from the troublesome political controversies that led to violence in the first place. On the battlefield, notions of guilt and innocence do not apply, except as they pertain to war crimes. Pursuant to these rules of warfare, combatants can and do attack one another at virtually any time and place, not because the enemy soldier has done anything wrong but simply because he or she fights on behalf of the enemy.
Granted, conflicts with nonstate actors complicate this equation considerably, especially to the extent that they make no effort to conform to the framework generally agreed to among states (and often actively try to thwart it). Civilians who take up arms are not combatants, but their “direct participation in hostilities” makes them lawful targets “for such time” as they do so.
There is a great deal of controversy over what constitutes “direct participation” and how long such participation subjects civilians to lethal force, but the moral paradigm for targeting them remains the same as for soldiers: they are liable to be killed because they are fighting in a war, not because they are criminals sentenced to death. The latter determination is outside the province of combat precisely because it would require a formal adjudication that the accused directly participated in hostilities without the right to do so.
The incongruous U.S. position that it is “at war,” while simultaneously upholding due process with respect to certain targeted individuals, thus places the nation’s defense community in an impossible bind. On the one hand, due process is not required in wartime targeting. On the other hand, the use of force in war can never hope to satisfy the standards of due process. While the attorney general correctly noted that “due process” does not always require “judicial process,” it surely demands something more than an ultrasecretive internal review culminating in life-or-death edicts during White House “Terror Tuesday” meetings.