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.
Whereas most observers have fretted that the “abundant caution” currently exercised in vetting targets may not bind future U.S. administrations, the real danger may be exactly the opposite: namely, that the melding of law-enforcement and armed-conflict principles has raised the proverbial bar on the legality of counterterrorism operations to unrealistic levels.
This fundamental confusion would indeed set a perilous precedent, because the laws of war are grounded in hard-fought experience and have proved the most durable check on gratuitous carnage in combat. A legal standard that is unattainable will not secure widespread compliance and therefore amounts to no law at all.
In this sense, it is troubling that the major speeches on this issue have been delivered almost exclusively by the government’s highest-ranking attorneys, because the choice of messenger could reasonably be perceived as a signal that the United States is acting out of a sense of legal obligation. It has not been made sufficiently clear that the quasi-juridical process for target selection is a matter of strategy, not law.
Unsurprisingly, critics of U.S. counterterrorism policy have been emboldened by the government’s own language. Human-rights organizations and many legal academics argue that the United States is not really at war outside of “hot conflict zones” and that its troops should abide by law-enforcement standards. Such police protocols specify that lethal force is not the first but last resort, to be exercised only “when strictly unavoidable in order to protect life.”
That is, the rules for policing and soldiering diverge from the outset. Instead of targeting their adversaries as a class based upon enemy status, law-enforcement officers individuate responsibility for alleged crimes and only resort to lethality when arrest is infeasible and the danger is imminent.
Given that U.S. officials routinely present these twin elements of feasibility of capture and imminent threat as indispensable to their criteria for selecting targets, is it any wonder that critics doubt the country’s claim to operate on a war footing? Absent this backdrop of armed conflict, however, the moral and legal basis for targeted killing quickly erodes, because the very act of premeditated lethality derives its legitimacy from that specialized context of war.
Talk may be cheap, but how nations talk about war can prove costly indeed.
Charles G. Kels is a major in the U.S. Air Force Reserve and an attorney for the Department of Homeland Security. Opinions expressed in this article are those of the author alone and do not necessarily reflect those of the Departments of Homeland Security, Air Force or Defense.