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Terror, Legality and the New Rules of War

Round Up the Usual Suspects … and Shoot Them

by DOUGLAS LUMMIS

The issue is not whether bin Laden was a very bad man (I suppose he was) or for that matter whether Barack Obama is also a very bad man (looking worse all the time), but what happens to the law when states violate it with impunity.  Yes, the fact that bin Laden is believed to have been a terrible man makes it easier for the public to accept his killing, but that’s just the danger.  For years, Hollywood has been thinking up villains so detestable that the audience positively yearns for Dirty Harry and his many clones to blow them away without doing anything so silly as to read them their rights.  People fail to notice that when they blow away the crook, they blow away a piece of the law as well.

Marjorie Cohn’s recent article on this site, Assassinating Bin Laden: Why It Violated International Law, is well-reasoned and informative, and written with the calmness appropriate to discussing matters of law. But I think Cohn has not quite captured the peculiar nature of our situation. Being unprecedented, it is a little hard to grasp.  Until 9/11 states, or anyway, the US and most other constitutional states, had two separate bodies of law under which they could coerce people: criminal law and the laws of war. 

Law enforcement agents, operating under the criminal law, had (the Hollywood image to the contrary notwithstanding) no right to execute criminals, though they could shoot people to protect themselves and others or to prevent escape.  My father, who voted Republican from Wendell Willkie to Bob Dole, worked for some thirty years as a federal law enforcement agent, and often went to work with a fat .38 revolver in a leather holster under his jacket, but when I asked him if he had ever shot it at anybody, he considered the question insulting.  His job was to collect evidence, arrest suspects and turn them over for trial. He arrested people by putting his hand on their shoulder.  “I knew one officer who had killed a man,” he told me, “but he was pretty crazy.” He considered the movie The Untouchables an insult to his profession.

Under the criminal law, a person can only be punished for having actually done something prohibited by law.  There is ? thank goodness ? no law against being a bad person; you have to do something bad.  On the contrary, under the laws of war to be eligible for killing you don’t have to do anything but put on a military uniform; a fresh recruit who has only been on the front lines for ten minutes is fair game, so to speak.

Cohn writes, “Extrajudicial executions are unlawful, even in armed conflict”. This is true, but tautological, as “extrajudicial execution” is already the name of an illegal act.  What is legal in war is the intentional killing of enemy combatants (not called “execution”) and the accidental killing of (hopefully not too many) noncombatants who get in the way (“collateral damage”).

Thus the job of the soldier and that of the police investigator are entirely different.  The soldier is not trained to sift evidence and identify suspects; if the person he faces is an enemy soldier, that’s all he needs to know.  The police investigator, on the other hand, is not trained to shoot on sight, to fire heavy artillery into places where you can’t see who’s there, or to drop bombs into cities.  His or her job is to identify, locate, and arrest suspects.

Before 9/11, terrorism was treated as a crime.  After each incident, suspects were hunted down and, where found, brought to trial.  The process was notoriously slow and frustrating, and the results sometimes disappointing.  But the fabric of the law was preserved.  Two days after the 9/11 attacks, President George W. Bush declared a “war on terror.”  The expression might be harmless enough if it meant, as did “war on poverty” etc., an all-out campaign.  But Bush was not speaking metaphorically; he meant that from that point on the campaign against terrorism would be carried out not under criminal law, but the laws of war.

Many have since pointed out the contradictions in this; Zbigniew Brzezinski‘s famous, “How can you carry out a war against a tactic?” is apt, but it shouldn’t be taken to mean that Bush’s policy was merely dumb.  That is, in the long run it was and is devastatingly dumb, but in the short run it conferred on the US real advantages.  If the struggle against terrorism is carried out under the rules of war rather than criminal law, that means you get to shoot suspects.  People believed to be terrorists no longer need to be arrested and subjected to trial: they can, like enemy soldiers, be gunned down, no questions asked.  It further means that it no longer matters whether they have actually carried out any terrorist acts; all that is required is that they are terrorists.  In practice it means that they only need to be terrorist suspects.

This is one of the big differences between war on terror, and ordinary war: it is no longer necessary for the soldier to make sure that the person in his sights really is an enemy soldier, either by the uniform or by combat behavior.  It seems that if the person looks the part, that’s about all that is required.  Thus from the very beginning of the Afghan and Iraqi wars we heard daily on the news about the killing of “terrorist suspects.”  To repeat the point, in law enforcement you can’t kill suspects, and under the laws of war you can’t intentionally kill civilians.  Under the new rules of the war on terror, you can kill civilians by labeling them suspected terrorists.

Another difference between the war on terror and ordinary war is that in war, the enemy, though combatants, are not criminals.  Thus if captured they may not be tried unless they are suspected of violating the laws of war, and they have the right to be treated as POWs.  But in the mongrel mix of the two legal systems under which the war on terror is carried out, people captured as terrorist suspects have neither the rights as POWs under military law, nor the rights of suspects under criminal law (I understand that this is being contested, but this was the original model).  Moreover, though they are treated as criminals, this does not necessarily depend on anything they may have done; they are criminals by virtue of what they are: (suspected) terrorists: the rightless persons in the black holes of Guantanamo Bay and elsewhere.  The only other case I know of where people were punished under the law for what they were, is the late medieval and early modern witch hunts in Europe and America.

The point here is that long before the Navy Seals blew off half of Osama bin Laden’s head, countless other “suspected” terrorists had been killed ? as Cohn would say, extrajudicially executed ? by the US military.  The big difference is mainly that bin Laden is a high-profile figure, and his execution more intensely personal than most. But still, in carrying out this execution, President Obama is only faithfully carrying out the policies of his predecessor George W. Bush.

The structure of international law is a fragile thing.  It consists not only of treaties, but also of precedents and customary law handed down from the past.  If a powerful state consistently violates some of its principles, and consistently gets away with it, presumably those principles will eventually become obsolete and the new practices will become the law.  In this sense, the damage to the structure of international law over the last ten years has been horrific. This is what I mean when I say that whether bin Laden was a terrible man is not the issue. It’s when the suspect seems the most terrible that the law is in the most danger.

Douglas Lummis is a political scientist living in Okinawa and the author of Radical Democracy. Lummis can be reached at ideaspeddler@gmail.com