Posts Tagged ‘warfare’

A Slightly Longer Answer

Monday, May 9th, 2011

The other day, we said the short answer is that the killing of Osama bin Laden was lawful.  Some have asked for a bit more detail in the answer.  We can’t give the full answer, of course, but we can give a slightly longer one than we did.  A full answer is going to require more facts than we’ve been able to glean from the papers, and is going to have to come from the DoD and the State Department anyway.  They haven’t given a full legal analysis yet (and that’s fine, by the way), and the actual facts seem to change each time we read about what happened.  Fortunately, the law doesn’t change with the facts.  So though we can’t give a full answer, we can make a few assertions with a fair amount of confidence.

First, lawful military targets do not only include those who are in the middle of shooting guns at your soldiers.  Anyone who is an identified member of a hostile enemy is going to be a lawful military target.

Al Qaeda is a known hostile enemy, one which has been involved in combat against the United States for a long time now.  Any identified member of that hostile enemy would be a lawful military target.  It doesn’t matter whether that person was armed or not.  Let’s repeat that: it doesn’t matter whether he was armed or not.  It doesn’t matter whether he poses any immediate threat.  All that matters is that he was an identified member of a hostile enemy.

With uniformed services, this is easy.  If you see a uniformed enemy officer, you’re free to take him out.  The uniform identifies him as a lawful target.  He could be walking down the street, minding his own business — it doesn’t matter.

But with non-uniformed enemies, there has to be some reason to believe the guy walking down the street is a member of that hostile enemy.  There has to be a reasonable certainty that he’s one of them.  In other words, you’ve got a positive I.D.

If you’ve got someone who is an identified member of a hostile enemy — either by uniform or by positive I.D. — then a soldier is allowed to shoot them, even if they pose no particular threat at the moment.  The lawfulness comes not from what they’re doing, but from who they are.

The only real exception is when they are hors de combat — a term of art that essentially means “no longer in a position to fight.”  Examples include the wounded, POWs, and those who have surrendered.

The only variable in Osama bin Laden’s case is whether he was hors de combat at the time he was shot.  Unless that exception applies, he was a perfectly lawful target.  The orders to kill him were lawful, and those carrying out the kill mission were acting lawfully in following those orders.

We weren’t there, and neither were you, so it’s impossible to say whether bin Laden had been incapacitated or had surrendered prior to being shot.  The facts reported thus far is that this wasn’t the case.  He doesn’t seem to have been the type to surrender in the first place.  And even if he had wanted to, the burden is not on the soldiers to figure that out — he’d have to make it extremely clear.  Which can be difficult in the middle of a firefight.

So there’s no reason to believe he was hors de combat. Given that, and given that there was a reasonable certainty that he was a member of al Qaeda, a known hostile enemy, he was a lawful military target, and it was lawful for the SEALs to take him out.

And that’s really all there is to it.

We’re Glad You Asked That

Thursday, May 5th, 2011

It’s only been a few days since Osama bin Laden was killed in a U.S. military assault on his compound in Pakistan.  And in those few days, the internet has been buzzing with discussions, debates and hand-wringing over whether the U.S. acted lawfully.  We’ve been reading thoughts of people on every continent, regular folks with access to a computer, who may or may not even know what they’re talking about.  And all we have to say is this:

We’re glad to be living in a world where such hand-wringing is possible.  More than that — a world where it’s actually meaningful (rather than silly) to wonder whether a precise military action by the world’s single greatest military power, against its universally-acknowledged military enemy, comported with some higher and overriding law.  A world where such hand-wringing is done at great length by that same great power, prior to engaging in the military action to begin with.

Imagine that, just for a moment.  Has this ever before been the norm, in the entire history of mankind?  Because it sure is now.

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How did we get here?  How did the world evolve to a point where the Rule of Law is the rule, not the exception?  Where everyone pretty much expects that even the greatest military power is not above the law?

It’s been a long time coming.  International law has been developing for centuries.  But credit has to go to the  U.S. and to the U.N., both for living by the Rule of Law (most of the time) and spreading the ideal and the idea.  It matters that the world’s superpower acknowledges the law, and cares deeply whether its actions are lawful, no matter which party happens to hold the presidency at the moment.  It also matters that the world has an engine for forming and enforcing (somewhat) rules that are binding not only on those who would be bound, but also on the strongmen and thugs who would not.

Of course, we’re not all the way there yet.  There still are plenty of places where the Rule of Law doesn’t exist.  They suffer for it — not just atrocities and depredation, but failed economies, corrupt governments, and dearth of opportunity.  If there is one thing above all that separates the first world from the third world, it is the Rule of Law.  Especially in this globalized world, the places that succeed are those where contracts can be counted on, everyone has to play by the same rules, and the rules are actually enforced.  Once you’ve got that, you can kind of predict what’s going to happen with enough certainty to invest one’s time, labor or capital to actually do something.

And it’s easy to spot the countries without the Rule of Law.  For example:

Still, the world is on the right path.  Let’s hope that there really is some sort of “arrow of history” like the one Francis Fukuyama proposed back in ’92 (though he did subsequently back away from the idea).  We’re hardly Utopian in outlook — our own mother calls us “old doom and gloom” — but it’s not unrealistic to hope for at least a trend towards more and more Rule of Law in the world, with the result of more and more general safety, security and opportunity.

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But we’re getting off topic.

The point is, we’re glad to be living in a world that can be full of hand-wringers over whether the U.S. acted lawfully in taking out an apparently unarmed Osama bin Laden, without instead capturing him and putting him through a criminal process of some sort with due process, etc.

(And for those who really want to know whether it was lawful or not, the short answer is yes.  The medium answer is he was a lawful target of a lawfully authorized kill mission during a war in which both he and the U.S. soldiers were combatants.  From all that we’ve read, it was done by the book.)

Can Yoo Be Sued?

Tuesday, June 15th, 2010

9th_circuit

In the early days of the War on Terrorism, the Bush administration wanted to know what interrogation techniques were legal.  So it asked the DOJ’s Office of Legal Counsel for a memo on what could and could not be done to prisoners.  Staff lawyer John Yoo was tasked with doing the research and writing.  He did his research, wrote his memo, and that was that.

Well, no.  That was not that.  Some people didn’t agree with his legal reasoning.  More people (most of whom never even read the memo) shrilly lambasted it as a “war crime.”  We’re not particular fans of the memo ourselves (see our parody of it here), but we think it’s beyond stupid to call it a war crime, or even the slightest bit of misconduct.  He did what any lawyer in that situation is supposed to do: he analyzed existing law, and gave his opinion of what the law said.  The fact that other people disagree, even disagree strongly, doesn’t mean he did anything wrong.  The fact that his conclusions don’t comport with other people’s policies or principles still doesn’t mean he did anything wrong.  Even if he was wrong, that doesn’t mean he did anything wrong.

But now the 9th Circuit is struggling with the issue of whether Mr. Yoo can actually be sued for having written that memo.  Again, we’re no fans of the memo, but how he could possibly be sued for having given fair legal advice is beyond us.  Allowing this case to go forward, as we’ll discuss in a minute, would have enormously bad consequences for the government and the military.

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The case was brough by Jose Padilla, a.k.a. Abdullah al-Muhajir, who was arrested in 2002 for plotting a radioactive “dirty bomb” attack.  Padilla was in military custody for about four years, during which time he claims to have been subjected to sleep deprivation, stress positions, extended periods of light and dark, and other interrogation techniques.  Padilla filed a lawsuit last year against John Yoo, claiming that Yoo’s memos “set in motion a series of events that resulted in (more…)