I have been reading Norm's excellent post Argument over Anwar al-Awlaki. With his customary elegance and clarity Norm dissects the problem and offers a clear-cut solution:
Their justifications depend on its being a war; and terrorist networks are the designated enemy in that war.
Indeed, says I to myself and turns to the usual chores. But then, somewhere between feeding the chicken and milking the cats, the uneasy feeling, so familiar from the university days, started to assert itself in the pit of my stomach. You know how it is when you enjoy a lecture, conducted by a scientist you deeply respect, when you feel that you are following every statement and everything is loud and clear. Until, that is, the lecture is over and you join the other underdeveloped hopefuls in the corridor. And then it gradually and inexorably downs on you that, in fact, your understanding was at best an illusion... well, you know how it goes if you've been a student...
So, I felt like a child lost in a dark forest of decrepit lucubrations*.
To start with, take a look at WOT - the War On Terror. Not to mention the sad fact that the term itself is being suppressed by the current US administration, although in fact the administration continues (more or less) the same spectrum of activities, just being unwilling to confirm that there is a war and there is terror, and both are to be out there for quite some time. But the first real legal hurdle is calling it a war, because
war is defined as "
Open and declared conflict between the armed forces of two or more states or nations." It is difficult to see how the legal minds will customize the WOT to fit this definition. Or, which seems to be even more challenging, how they will customize the definition to fit the WOT.
The second, and even bigger hurdle is, of course, the "T" issue.The definition of terror is, probably, the most contentious one in the international morass of legal mumbo-jumbo. The reasons are only too well known, being for the most part political. The attitude to the "terror" term more or less clearly divides the lambs who suffer from it and the wolves that are only too happy to deal it to the world. But there is the third category - people who will not let the term to be strictly and simply defined. Their ideology of moral equivalence ("Your terrorist is my freedom fighter") precludes the "T" term from being ever formally defined. You can read this
Wiki discourse, for instance, but you can bet your last buck that it will only make the fog thicker.
All in all, it looks like an international legal support for assassination of terrorists will not be coming any time soon. Or ever. Moreover, the voice of "moral equivalence" supporters calling for international
persecution prosecution of military or intelligence forces carrying such assassinations out, is rather too shrill for any reasonable compromise to be found in the legal bailiwick.
What about a single state trying to build a legal foundation for the assassinations? Here, I am afraid, the situation is not much better: the local legal beagles are looking over their shoulders at their learned colleagues in UN, EU and other supra-national juggernauts, which doesn't encourage creativity. Besides, in most countries the "moral equivalence" pushers are doing their stuff as well as (if not better than) their international brethren. And, of course, some "interested parties" are already
crying law and justice:
If we accept that the president can order the killing of any American without due process of law, the Constitution is rendered meaningless. Even in the post-9/11 era, our leaders and military personnel have a duty to uphold the Constitution.
Sure, and doesn't it remind you of the prison self-made lawyers? But a point of law is a point of law, and we can't avoid addressing the issue just because it was raised by a dubious character. Of course, when a person
decries the lawlessness of that or another assassination, you may want to ask yourself whether the person is a) intractably dense or b) supportive of terrorism or c) trying to stick it to somebody, politically speaking. Which, at the end of the day, is not all that important, the fact remains that such a person makes going after a terrorist doubly dangerous for the people who do the job.
So where does it leave "our leaders and military personnel"? High and dry and permanently looking over their shoulders, keeping in mind that a sudden change of fortunes (or, rather, political winds) in their own country, not to mention a sudden whim of a overactive legislator in some other country could easily mean a prolonged legal battle and, possibly, an even more prolonged incarceration.
And here the soft belly of democracy is exposed at one of its weakest points. Imagine the military following the letter of the law, e.g. sending a sufficiently large unit to extract the wrongdoer and to bring him to the court of law in their country. First of all, what about the sovereign rights of the country hosting (quite frequently willingly) the said wrongdoer - after all it's akin to waging a war against the host? Then, how about the inevitable loss of soldiers and civilian bystanders in the hostile environment? Are soldiers' and civilians lives expendable when the letter of the law should be upheld?
Don't expect any answers from well meaning politicians or various doo-gooders, from terrorist enablers or from moral equivalence peddlers.
While the Israeli assassinations (mainly in the Gaza strip) were immediately branded barbarian, unlawful, ... [substitute your favorite pejorative], US military fairs a bit better. Although it should be noticed that the numbers of the civilian bystanders killed and wounded by US military in Afghanistan and Pakistan were much higher than in Israeli attacks. But US assassinations are slowly but surely gaining headlines as well, and the pressure from abroad and from within may cause a problem even for Washington.
To much rejoicing in certain quarters...
And then what?
P.S. I know that this post is mostly stating the obvious. But, in my humble opinion, it bears repeating.
(*) Of course it's a quote, what did you think, that I am able to... it's just that I am reading and enjoying now
The Finkler Question. And so should you.
