re: "If You're A Terrorist Abroad, the Fact that You're an American is Only Incidental"

Rusty Shackleford, Ph.D at The Jawa Report ("Sand people, get it?") explained, as you would to a child, what you do to enemies in wartime.

Money quote(s):

"The way you word things matters and I've become more and more annoyed over the past few years as many on the Right have increasingly adopted the phraseology of ardent Leftists. People who only a few years ago were die hard supporters of the war on terrorism today use phrases to make it seem that the same policies carried out under Bush are now leading to jack-booted-thuggery.

....

The particular wording I'm annoyed at today is the description of drone strikes as the "targeted killing of American citizens"."

Read on, MacDuff.

"We're at war. In a war, you kill your enemies. The fact that your enemies who are members or leaders of a foreign terrorist organization operating overseas are American is only incidental to the fact that they are terrorists.

We didn't kill Anwar al-Awlaki and Samir Khan because they were Americans. We killed them because they were terrorists.

This wasn't a case of the President of the United States killing a criminal in lieu of a trial. These were enemy combatants. You kill your enemies, you don't bring them to trial.

The fact that your enemy is an American citizen is irrelevant." (Emphasis in original text. - CAA.)

Simple truths. It's troubling that they need to be stated, and re-stated (and re-stated yet again) but that's why they pay us bloggers the big (non-existent) bucks.

(After all, if it was easy, everyone would be doing it.)

"The idea that we are going to fly FBI agents to Yemen, read members of al Qaeda their rights, and then bring them to Virginia for a trial is sheer fantasy. It's completely and utterly disconnected to reality.

Yet that is what you are arguing for if you oppose targeted assassinations or military trials. Unless, of course, you are arguing that the US should do nothing about jihadi terrorism, even when that terrorism is directly targeted against the United States.

Before 9/11 the policy of the US was to treat terrorists as criminals. After the USS Cole and African embassy bombings, President Clinton sent in the FBI to investigate.

Yeah, that did a lot of good. 9/11 was an outgrowth of that policy position.

So, if you want to go back to that model then, by all means, keep advocating for an end to drone strikes and military commissions.

And when we're hit on a mass scale like we were on 9/11 again, I'll blame you and your legalistic ideology in regards to notions of civil liberties for the atrocity." (Emphasis in original text. - CAA.)

2/1

re: "In Lieu of Rough Handling"

Lex at Neptunus Lex ("The unbearable lightness of Lex. Enjoy!") posed some questions of lawfulness and Constitutionality.

Money quote(s):

"(S)econd thoughts on the killing of an American citizen abroad by agents of the US government"

Naturally, as a consular officer the notion of killing an Amcit is so far outside the pale that it mega-boggles the mind.

From a more soldierly, laws of land warfare-minded, perspective it's certainly possible to envision such as thing in terms of inadvertently killing an Amcit in the course of combat operations, either as an adversarial combatant (i.e., the enemy) or as a collateral (unintended) casualty.

After all, stopping to examine one's opponents passports or citizenship status prior to engaging by fire and maneuver just doesn't come up in any standard format for an operations order that CAA has ever encountered.

Nonetheless, when standoff weapons (such as drone-launched missiles) are so accurate as to constitute sharpshooting and to (finally) give some semantic substance to the term "surgical strike," we must take a pause and consideration in cases where the U.S. citizenship status of an enemy belligerent is known (and, indeed, is a substantial component of the danger he presents to us).

"From a constitutional perspective, we’ve definitely crossed a line here. We sidestepped up to it over the years, little by little. And then vaulted over it in the dark, while no one was looking. It’d be nice if one of the aforementioned, named gentlemen explained to us where the new line has been drawn, if it has been. And if it has not, it would also be useful for a people of laws, governed by express consent, to know who will have a hand in drawing it."

10/11

re: "Surrendering to the Drones"

Jens David Ohlin at the LieberCode ("The Lieber Code was the first codification of the international laws of war.") looks at the legality of drone-launched missile attacks.

Money quote(s):

"Although technically the United States has a “capture or kill” program, the drones are often used for targeted killing operations. True, they are also used for surveillance, which might precede an operation to capture a suspected terrorist, but the drone strikes we are concerned about involve the deliberate killing of suspected terrorists.

One of the comments during the panel discussion was quite elegantly phrased: You can’t surrender to a drone." (Emphasis in original text. - CAA.)

The (bolded) comment reveals as much about the confusion between the law enforcement and warfare models of, problem-solving as it highlights an assumed drawback of using drones in counter-terrorism.

(Of course, one man's bug is another man's feature.)

"The idea that a suspected terrorist cannot surrender to a drone suggests, somehow, that the appropriate course of action is to send in troops who could potentially accept the surrender of the targets and capture them rather than kill them. This argument deserves a little more scrutiny.

It is important to distinguish between the duty to accept surrender and the duty to afford the enemy the opportunity to surrender. These are two different normative requirements, under both the laws of war and the morality of warfare. Everyone agrees that a soldier cannot kill an enemy combatant who effectively communicates his desire to surrender to the opposing soldier. In fact, declaring that “no quarter will be given” (i.e. refusing to accept surrenders) is both a violation of international humanitarian law and a war crime generating individual criminal responsibility.

However, that’s entirely different from the duty to offer the enemy the opportunity to surrender." (Emphasis in original text. - CAA.)

What "Everyone agrees" to (see above) isn't necessarily so under wartime conditions. A bright guy like Prof. Ohlin can probably cite a half-dozen circumstances where a combatant on the battlefield is not obligated to accept a surrender, no matter how clear the "I surrender" message is communicated.

"(Y)ou can’t surrender to a drone, but you also can’t surrender to an F-16 or a stealth bomber or any other form of aircraft that fires weapons from a distance. That doesn’t necessarily suggest that the proposed norm is incorrect, but it does suggest that it is highly revisionary and would require wholesale revision to current practices of modern warfare. Although such a view would not necessarily be fatal to a moral requirement for warfare, I do believe it is fatal to a legal requirement that is necessarily based on customary international law (and requisite state practice)."

This is where Prof. Ohlin cuts to the meat of this question. Combatants (lawful or otherwise) coming under long-range or stand-off fire have few surrender options available to them, whether that fire is artillery, rocket, bomber, or drone-launched.

"Many of the asserted objections to targeted killings turn out not to be objections to drones per se but actually to the strategic use of air power generally.

As it happens, though, the recent technological advancements associated with air power (and smart bombs) make these weapons more discriminating than they have ever been in the past. A missile fired by a drone or F-16 today might ironically be more discriminating than an artillery shell fired a decade ago (or a missile fired today by a less technologically advanced country). Furthermore, within the category of air power, a drone operator has more real-time high resolution images of his target than a fighter pilot, who in many cases is dropping a bomb on a set of defined coordinates regardless of who happens to be in the building at that time."

A more suspicious sort, such as CAA, might see discussions like this as just the first feelers of an attempt to get civilized powers to voluntarily relinquish one of the more effective forms of military power currently available to them.

12/6