Due Process & Targeted Killings

 

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After Anwar al Awlaki,  an American citizen, was specifically targeted and killed by a drone strike, serious questions arose regarding the legality and morality of this killing. From a legal standpoint, this sort of targeted killing seems to violate the 5th amendment of the constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

As might be imagined, people have generally taken “due process of law” as requiring the proper  involvement of the legal system. One likely reason for this is that the amendment seems to be focused on the judicial rather than the executive aspects of the state. In regards to targeted killings, there is also the concern that such killings involve making a person “answer for a capital, or otherwise infamous crime”. If so, a targeted killing without such an indictment or presentment would violate the constitutional rights of the target.

In response to this sort of reasoning, Eric Holder replied as follows:

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

While I am not a scholar of constitutional law, the context of the 5th amendment seems to make it rather clear that the due process is, in fact,supposed to be a judicial process. Of course, since it is not worded as “judicial process”, this does open a legal door for interpreting what is meant by “due process.” As Holder sees it, in addition to following due process  the killing of an American citizen must meet four principles in order to be legal:

The principle of necessity requires that the target have definite military value. The principle of distinction requires that only lawful targets – such as combatants, civilians directly participating in hostilities, and military objectives – may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.

On the face of it, these principles seem rather reasonable in regards to justifying intentional targeting. After all, they boil down to saying that it is okay to target a lawful target that has military value provided that doing so does not cause excessive collateral damage and undue suffering is not inflicted. However, the most important issue of concern here is the matter of due process.

In terms of the legality, that is a matter that must be decided by the courts. As noted above, my view is that due process requires legal proceedings in the context of the judicial branch and that ordering such executions does not fall within the powers of the executive branch. Of course, I am not a legal scholar and hence my view has no weight beyond the effectiveness (or lack thereof) of my argument.

My view does not, I contend, infringe on the president’s role as the commander and chief of the armed forces. If an American citizen is killed in the course of combat because s/he took up arms against American forces, then the citizen was a legitimate target for the armed forces.

However, singling out an American citizen to be targeted and killed is another matter since that seems to be more properly an act of law and not of war. From both a moral and a legal standpoint, there does seem to be a rather important distinction here, namely that between the criminal and the enemy combatant. The mere fact that someone is engaged in activity harmful to the United States (including killing Americans) does not make that person an enemy combatant. Otherwise almost all criminals would be enemy combatants, which would be absurd.

As might be imagined, the stock reply to this view is that we are at war with terror and hence a targeted killing of an American citizen who  is involved in terrorism is thus an act of war. By this reasoning, the targeted killing would be an act of war, on par with having a sniper take out a turncoat among the enemy on the field of battle.

While this does have a certain appeal, there is the rather obvious concern that the war on terror is a rather vague sort of war. After all, terrorism tends to blend all too smoothly into the criminal world (and vice versa). This raises  legitimate concerns about the standards used to distinguish between those citizens who are enemy combatants and those who are merely criminals. As noted above, just because someone is actively harming America or even killing Americans does not automatically make that person an enemy combatant and thus outside of the normal judicial process. After all, Americans murder each other everyday, yet they are not enemy combatants. Also, having foreign ties to violent groups and engaging in violence because of this does not seem to suffice to make a citizen an enemy combatant. After all, there are and have been American citizens with ties to foreign groups (such as the Mafia and Mexican drug dealers) who have engaged in violence against Americans without being considered enemy combatants.

The stock reply to this sort of reasoning is that terrorists can be distinguished by their goals. Crudely put, while terrorists do often engage in traditionally criminal enterprises (such as the drug trade), they are not in it for the money but for some political or religious goal. In contrast, criminals are in it for the money or for some other non-political or religious goal (like revenge).

While this also has a certain appeal, there are obviously criminals who commit their crimes (such as killing abortion doctors or attacking political figures) based on political or religious motivations. These people can even have ties to foreign groups (such as transnational religious groups) and yet they are not enemy combatants.

The standard reply to this is to bring in that the person must be on foreign soil. While this does have some appeal, this would seem to allow the targeted killing of an American criminal who has fled to another country, such as Mexico, to hang out with his drug dealer allies.   As such, it seems rather difficult to make a clear distinction between a criminal and a terrorist that would clearly protect American citizens from being executed by the executive branch. While I will not call for an exact line to be drawn, I will call for more definite standards. I am, not surprisingly, in favor of erring on the side of considering citizens criminals rather than enemy combatants in cases in which the matter is not quite clear.

As I hope is evident, my main concern with Holder’s justification is that it makes it far too easy for the president to order the execution of American citizens without due judicial process. This, I contend, extends the president’s powers in a legally unwarranted and morally dubious manner. As such, the targeted killings of Americans without due judicial process should be regarded as both morally wrong and as a violation of the constitution.

 

 

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36 Comments.

  1. If the criteria for justified killing was used by Russians or Chinese prosecuting Chechen or Tibetan terrorists on USA soil can you imagine the brouhaha?

    “Justifiable War” philosophy is stretched to the extreme in asynchronous war scenarios. The legality is questionable.

    There needs to be four minimum criteria served IMO:

    a) A formal declaration of war over asynchronous enemies needs to be defined in international law, and this be lodged with a international body, in a open manner that can be accepted/declined as being legitimate under that law.
    b) A due process of targeting and execution of strikes that again is subject to legal criteria, e.g., international airspace non-violation, fair notice to non-combatants, etc.
    c) Targets need to be publicly named and given the opportunity of surrender and being tried in 3rd party jurisdictions, or given protective asylum in countries that are not subject to being struck at.
    e) Politicians/Military not complying with the above are subject to War Crime indictment.

    In the UK this has become a news item…

    http://www.guardian.co.uk/world/2012/mar/11/gchq-staff-war-crimes-drones?fb=native&CMP=FBCNETTXT9038

    Two other useful sources for “lawfare” – a new word in this context defining the legality of warfare, specifically arising out of the use of Drones for Targeted Killing without an open and due legal process being seen to be done…

    a) http://www.jadaliyya.com/pages/index/4564/jadaliyya-roundtable-on-targeted-killing_introduct
    b) http://www.jadaliyya.com/pages/index/4049/lawfare-and-targeted-killing_developments-in-the-i

  2. Typo: asynchronous -> asymmetric

  3. Asynchronous warware would apply in the case of time travel and according to rules laid down by the Intergalactic Supreme Court weaponry must of the era.

    Back in the day of Philip II of Spain the monarch wrestled with his conscience concerning the morality of assassinations ordered by him but then he bethought himself. ‘I am divinely appointed and therefore what I do must have divine sanction and is therefore moral’. Divine command theory comes into force here. Perhaps this goes to show that after all the American President is a quasi king, ruling with an unelected cabinet, a unique phenomenon outside tyrannies and dictatorships.

  4. s. wallerstein (amos)

    Let’s leave aside the constitutional questions, which are legal, not ethical.

    On an ethical level, I see no difference between killing a U.S. citizen and a non-U.S. citizen, if both of them are civilians, unarmed and not in the process of committing terrorist acts.

    They’ve been assassinating or trying to assassinate non-U.S. citizens for a long time now.

    It’s the old story: first they come for the Communists, then for the trade-unionists, then for the Jews, now it’s your turn.

    Maybe the next step will be sending U.S. citizens to Guantánamo. A little tropical air will do them good.

  5. s. wallerstein (amos)

    First they came..

    http://en.wikipedia.org/wiki/First_they_came%E2%80%A6

    Martin Niemoller

  6. @Michael

    As I say, it was a typo :sad: But since you shame me :oops:

    I have googled the term and found out that there is a real word/world term Asynchronous Warfare, that is interestingly applicable, so maybe it was merely a Freudian Slip!

    “Asynchronous warfare involves a preselected, or delayed (timed) attack on an adversary, taking advantage of the passage of time to develop a strategic opportunity or to exploit a future vulnerability. In a preselected attack, the operation has a latent effect on the adversary. … In a delayed attack often carried out as an act of reprisal months or even years later the operation is conducted after an opponent has lowered his guard.” (see… http://www.fas.org/irp/congress/1998_hr/s980128h.htm )

    In a sense, drone warefare is thus both Asymmetric and Asynchronous, in that a Terrorist attack is conducted in such a way as to avoid direct military engagement, and drone attacks are “manned” from remote sites and without warning to the target. Both sides claim the other in “cowardly” becuase they lack the face to face synchronicity” of traditional warfare.

    Humph! :cool:

  7. Martin:
    Excellent, didn’t know that. Revenge is a dish best eaten cold.
    Much as the little men pushing bicycles along the Ho Chi Min trail beat them out of Vietnam, so they are to be sent home from Afghanistan even when Lazeeboy warriors deploy their drones. That’s the home turf advantage. The worry about legal niceties only comes into play when it is an American. Pathetic.

  8. Dennis Sceviour

    Eric Holder’s differentiation between “due process” and “judicial process” is an artificial contrivance. He implies that the American judicial system is not a due process. Even if this were true, it could be argued the American judiciary ought to have a due process. Those who are in favour of the American judicial system should be keen on defending the system, and finding ways of ensuring it has a due process. Of concern is Eric Holder’s meaning of due process if it is not judicial. Does he mean arbitrary decision, or religious or Godly inspiration? The simple answer is that Eric Holder might think some people are above the law, and this is not in the spirit of the American constitution.

    One thing that concerns me about the Anwar al-Awlaki assassination was the claim that he supported Jihad or “holy war” against the USA. However, in spite of modern media and web-cams, the only evidence against him was an “audio tape.” If there is anything to appreciate about the American judicial system, and its guarantees of trial by jury and cross-examination of evidence, is that in theory it tries to find truth. Somehow, I do not read that in Eric Holder’s four principles and interpretation of due process.

    S. Wallerstein has mentioned an important concern for discussions in philosophy — that is, to separate the moral from the legal discussions. Does anyone have a moral purpose to sit in a comfortable leather chair and push a button to assassinate another person on the other side of the planet based on information from an audio tape? Another problem is the matter of a code of honour in the drone-attacks. It hardly seems like a fair fight. If American interests continue to be availed by sneak attacks with push-button bombs, then as Mike pointed out in another article “we will see our robotic chickens come home to roost (and to lay explosive eggs).” It could be argued that military advantage is a temporary illusion:

    http://www.usnewslink.com/fleetingglory.htm

  9. It’s okay there’s an easy solution so no US citizens get killed! Hurrah!

    http://www.govtrack.us/congress/bill.xpd?bill=h112-3166

  10. Martin,

    Excellent points.

    Technology has certainly helped complicate the ethics of war (or what people claim is war). After all, we can reach out and kill a person almost anywhere. In his Abolition of Man, Lewis presents an interesting discussion about the impact of technology on us.

  11. Michael Reidy,

    While Obama most likely won’t say that he is doing God’s work, the US does use the moral angle to justify this acts. We are the good guys, they are the bad guys, so killing them is just fine.

    While that does have considerable appeal, being good does mean accepting limits on allowed behavior.

  12. s.wallerstein,

    On one hand, I agree with you. Assassination is assassination and the nationality would seem to be morally irrelevant.

    On the other hand, I would argue that killing a fellow citizen is somewhat worse on the grounds of the extra relationship to the person. To use an analogy, murdering anyone would be wrong-but murdering a friend or relative would seem even worse based on that closer tie.

  13. Michael Reidy,

    The comparison is an apt one. I grew up doing the Vietnam war and remember that the “old people” often seemed divided and confused about what we were doing there and what our goals were. Our leadership never did make a compelling case nor did they come up with an overall effective strategy. Afghanistan and the general war on terror seems to sliding towards that sort of situation: we are not clear what we are trying to do (beyond winning) and our methods are not working as well as we would like.

  14. Dennis,

    Good points. It is fair to ask if Anwar al-Awlaki did anything that would justify the death penalty in a court of law.

    I think that Holder is wrong about due process in this context, but I also must admit that I never studied constitutional law.

  15. The due process clause is presumably to prevent the issuing of writs or bills of attainder and the like, i.e,. arbitrary and vindictive punishments ordered by the legislature or the executive government.

    Due process mainly means that punitive actions by the state will only be for established crimes (whether established by the common law or by statute) that are found to have been committed after a recognisable curial process with the basics of natural justice involved. I.e. facts will be found fairly and the law stipulating the elements of the offence will be applied to the facts. This is closely tied to the more general concept of the rule of law.

    So … if this action is seen as analogous to something like an arbitrary and vindictive punishment, I’d say that it is precluded by the due process clause and possibly also by the separation of judicial from legislative and executive power. (In the Australian context, I and others have argued, and there is high judicial authority, that the separation of powers is sufficient to make writs of attainder, etc., unconstitutional.)

    Surely the only issue is whether these attacks more analogous to acts of war (assuming, one presumes, that the US is involved in a war or something analogous to it with al-Qaeda). I’m willing to bet that many Americans will see this as more analogous to act of war, such as killing one of the “dangerous men” (soldiers and their political masters) of an enemy nation, than like an arbitrary punishment such as a writ of attainder.

    That doesn’t mean I’m arguing that they are correct: I’m just trying to establish how this issue should be analysed – what is at stake in legal theory, and how different people’s intuitions relate to the relevant legal categories.

    Leaving aside all the guff about esoteric definitions of “due process” (and of course there are already some esoteric definitions of this in American constitutional law!), I’m sure that people who defend such actions feel, in their bones, that their actions are more like taking out an enemy combatant than like arbitrary and vindictive punishments of politically disliked citizens.

  16. Dennis Sceviour

    No Bill of Attainder or ex post facto Law shall be passed (United States Constitution, Article I, Section 9)

    What is esoteric about that?

  17. s. wallerstein (amos)

    Russell:

    I have no doubt that the people who decide to assassinate alleged terrorists (I say “alleged” because no one is brought to trial) feel in their bones that they are killing a dangerous enemy and that they have only good intentions.

    In fact, many have noted that what characterizes U.S. foreign policy is inevitable good intentions. The U.S. is governed by people who are incapable of doing something with evil intentions.

    That may say something about the admirable capacity of U.S. leaders to rationalize whatever they do. As the saying goes, the road to hell is paved with good intentions.

    Let’s say that the Iranian government develops drones and that they begin to assassinate all those who have carried out or even urged terrorrist attacks against Iranian atomic scientists. As you know, Iranian atomic scientists are being assassinated with car bombs, most probably by Israeli agents or perhaps by the CIA.

    I don’t know whether the Iranian leaders who begin to assassinate their enemies with drones will have good intentions or not. In general, “we” have good intentions, and “they” don’t.

    However, independent of the intentions, what is the ethical difference, if any, between the Iranians killing their enemies with drones and the U.S. doing it?

  18. The only real problem I have with Holder’s four principles is that there’s nothing about oversight in them. Well and good in the case of Awlaki and similar incidents that we all get to know about- but the CIA does things we don’t know about constantly, including kill people. Nothing about Holder’s principles suggest that the American people necessarily get to hear about it when a fellow citizen is executed, and if the Gov’t reserves the right to keep these things secret, then they lose a lot of (all of?) their motivation to follow the four principles in the first place.

    Russell: There might not be an ethical difference between the Iranians killing their enemies, and us doing so. But such individual actions aren’t the only level of consideration. You seem to dismiss the idea that the U.S. has good intentions and Iran doesn’t by making it an ‘us’ vs. ‘them’ thing- of course we see ourselves as good, because we’re us, and so on. But really, I think that’s where the entire distinction lies. Are Iran and U.S. really equivalent moral entities with equivalent aims? If Iran and the U.S. somehow switched military strength right now, do you think things could continue as they had? I think we all know (or know of) individuals of whom we would say “I would trust that person with a gun” and people we wouldn’t. Seems to me states can be that way too.

  19. s. wallerstein (amos)

    Ryan:

    I live in Chile. I don’t trust the U.S. with a gun. I’m sure that you are aware of the CIA support for the 1973 coup which bought Pinochet to power here.

    If I lived in Nicaragua or Iraq or Viet Nam, I would not trust the U.S. with a gun either.

    Would Iran with a gun be worse?

    Maybe. I don’t rule that out.

  20. I worry that if it were Bush doing it, we would worry more.

    What an ethical President does now, an unethical President can extend even further later.

  21. wallerstein:

    Well, that’s just my point. You don’t trust the U.S. with a gun, and you have your political/historical reasons for thinking so. I’m sure there’s some other country that you would trust more.

    That’s the consideration that’s most important. An evil, dangerous, untrustworthy, or whatever country perusing it’s interests or attacking it’s enemies is different than another country doing so.

    That’s why I disagree with your point that Iran, Israel, or the U.S. executing it’s enemies are necessarily morally equivalent. Hell, maybe you think the US is more dangerous than Iran, ok. But all nation’s interests are not created equal.

  22. Shelley- Under Obama, The Patriot act was found Constitutional, Libya was attacked with no Congressional approval, the wars in Iraq and Afghanistan were escalated, and Gitmo, far from being closed, is getting a soccer field.

    The only difference between Bush and Obama re: foreign policy is rhetoric and the party that voted them in.

    I suppose when you say ‘we’, you’re assuming that anybody that could possibly read a philosophy website must be a liberal/slash Democrat…and insofar as you’re talking about that group, I think you’re right. YOU guys no doubt would worry more if Bush (or any Republican) was doing this as opposed to Obama. When Obama was voted in, all the war protesters in my down immediately went home. But it’s got nothing to do with this president being ethical, and some other president being unethical. It has everything to do with the outrage at Bush’s foreign policy being largely a partisan reaction in the first place.

  23. Russell,

    As you note, a key issue is whether these killings are acts of war (like a sniper taking out a turncoat on the field of battle) or more akin to simply gunning down a criminal on sight.

    I’m inclined to say that they seem more like gunning down criminals, but this might be because I see the war on terror as more akin to being a matter of dealing with criminals rather than soldiers.

  24. Ryan,

    Good points. I find it interesting that Obama gets bashed by the right when he is, in fact, doing many things Bush did and actually stepped up many of the things that many liberals opposed. While some folks on the left have chided Obama for this, it is almost as if these things are cloaked so few people really talk about them in depth. True, there will be a news bit here and there, but Obama largely has largely been able to coast along.

  25. I can’t see this as a philosophical issue – sorry.

    It’s a political and legal issue.

    The issue of whether one can be ‘at war’ with terrorism in general rather than with a specific country, is at its heart.

    One can as easily say it violates this or that constitution as say that the constitution was not framed with terrorism in mind.

    The only philosophical point of interest is that the ability to do, and get away with it, trumps morality, every time.

    “If a man is killed and no one is there to see it, has a murder taken place?”

    :mrgreen:

  26. It may be an obvious point of what is missing in the concept of “due process”, but let me compare the case of the US soldier accused of killing illegally 16 non-combatant Afghans, being flown out of the country, so as to ensure a due process of legal prosecution can be done. According to what is know as Status of Forces Agreement(SOFA), that protects the legal rights of the military when overseas. And the Drone killings of Americans and non-Americans based on the the “Holder Protocol”.

    We talk about Asymmetric War (and Asynchronous ones) but it was never meant to mean asymmetric in terms of hypocritical application of the concept of justice.

    See…
    http://www.bbc.co.uk/news/world-asia-17363675#TWEET102789
    http://www.thedailybeast.com/articles/2012/03/14/obama-s-mission-impossible-in-afghanistan-after-soldier-shooting.html
    http://www.fas.org/sgp/crs/natsec/RL34531.pdf

  27. Dennis Sceviour

    Do we have an agreed definition for Terrorism?

    For the most part, terror is a media word used to incite emotions. If the definition for a Terrorist is a person who frightens others, then a terrorist could mean anything from a child wearing a Halloween costume, to a film actor playing a villain. Political commentator Walter Laqueur has counted over 100 different definitions for terrorism (Bounding The Global War On Terrorism, Jeffrey Record). The American Presidential office (or military advisers) have not used the word terrorism recently, so the perhaps the new politically correct word should be militant. For example:

    http://www.nytimes.com/2012/03/14/world/asia/militants-attack-afghan-delegation-at-site-of-killing-spree.html

    Now, what is a militant?

  28. @Leo,

    In as much as Justified War Theory is a study of ethical philosophy then I would say “Due Process & Targeted Killings” is a legit topic for discussion.

    Is a “War on Terrorism” a War that can be justify targeted killings without a open due process (or by the “Holder Protocol to be specific)?

    See… http://www.iep.utm.edu/justwar/

  29. Mike,

    I’ve wondered a lot why Obama ended up running foreign policy exactly the way Bush did, or McCain said he wanted to. I think it boils down to one of two things:
    1.) He was some lying manipulator guy who didn’t mean a word he said while he was campaigning. I don’t believe this, but a lot of liberals I’ve talked to do.
    2.) When he became President, he found out a bunch of stuff he didn’t know before, and in light of this information, he finds it impossible/unethical/whatever to do the things he said he was going to.
    #2 seems plausible to me. I think there was a lot of “Bush is mentally handicapped at worst, the reincarnation of Hitler at best” rhetoric that kind of sunk in with people- a lot of folks were ready to believe that doing the exact opposite of everything Bush did was a good idea, because of this perception of his incompetence. I think Bush’s biggest failing was in not explaining his reasons for doing anything, and letting his opposition explain it for him.
    So now we’re in this weird land where Obama is doing what Bush did, and yet the popular mythology is that Obama is a Great Man and Bush was not, so there’s a lot of confusion.

  30. s. wallerstein (amos)

    Ryan:

    We need a Tolstoy or a Balzac to understand the process by which the guy who wrote “Dreams from my Father” ended up sending drones against alleged or suspected terrorists in faroff Pakistan.

    I don’t think that Obama is good and Bush bad nor do I entirely understand Obama’s changes.

    When one wants something with one’s heart and soul, a woman, a job, integration in a social group, one says whatever one has to say to get what one wants and one believes it at the time.

    So too, I suspect that Obama wanted to become president with such passion that rather than lie to become president, he convinced himself that whatever he had to say to win the presidency was true.

    I also suspect that Obama possesses that special gift, which I noted above, of rationalizing all his acts, of only attributing good, lofty and noble intentions to his actions. Thus, if he stretched the truth a bit in winning the presidency, it was with the best intentions.

  31. wallerstein

    Take this for what it’s worth, but when it was becoming clear that Obama was going to win the election (though he hadn’t quite yet), a radio pundit I listen to said that he had spoken with President Bush, and President Bush said,

    ‘I’m not really concerned with who wins the election, because when they know what I know, they’ll have no choice but to carry on doing things the way I’ve done them,’

    and that’s how it played out.

    I would agree with you that Obama said whatever he needed to to be elected – I mean, that’s what politicians do. But, everything we know about his past before the campaign seems to confirm his belief in the positions he took DURING the campaign. So you’d have to say that not only was his campaign a lie, but his entire life leading up to it was as well. I *really* don’t like Obama, but I’m not prepared to go that far.

  32. s. wallerstein (amos)

    Ryan:

    Our perception of a person’s character certainly does depend on whether we like her or not.

    I might interpret Obama as being “an ambitious, Machiavellian, opportunist” or on the other hand, as “being weak and too willing to compromise, with a tendency to give in to pressures from powerful interest groups (the Pentagon, the CIA, Wall Street)”, in the first case, if I dislike him and in the second case, if I like him, which I do.

  33. Ryan,

    While candidates tend to say things that are not true (or turn out to be untrue), I do agree that labeling Obama as a mere liar would be unfair. Like you, I am inclined to think that once he got on the job, the situation was such that he believed he needed to act in the ways he is now acting. It might also be because he is attempting to counter the Republican charge that he is weak on defense. While Republicans do still try to cast him as weak, given his kill record it is rather hard to make this claim stick.

  34. Mike, I think a lot of this comes down to one’s political beliefs (duh). A person who tends to think Obama’s anti-war campaigning was wise, and decent ideology to begin with will still think that, and the idea that some reality forced Obama away from that attitude won’t ring true to them- because they think reality supports that attitude. That’s my guess, anyway.

  35. Mike sez: “As you note, a key issue is whether these killings are acts of war (like a sniper taking out a turncoat on the field of battle) or more akin to simply gunning down a criminal on sight.

    I’m inclined to say that they seem more like gunning down criminals, but this might be because I see the war on terror as more akin to being a matter of dealing with criminals rather than soldiers.”

    Yes, well summed up. If you “chunk” this as a criminal matter, people are being executed without trial on the authority of some sort of excutive order that looks like an act or bill of attainder (not sure why I wrote “writ” – I think I have writs on the brain at the moment, for unrelated reasons). That will be pretty clearly unconstitutional.

    If you “chunk” it as an act of war against someone who has become a turncoat – signing up in the forces of the enemy – then you’ll probably think that the constitution is not envisaging such a situation in requiring due process, etc. Or if you think “due process” applies even here you’ll think it makes very different demands here from those it makes in the criminal sort of case.

    If the matter were fought out in the courts it would involve trying to get the courts to see it as like one of these situations rather than the other. Personally, I think the whole idea of a “war on terror” is bullshit, but it might be possible to convince a court that the US is involved in something analogous to a war against certain specific organisations such as al-Qaeda.

    On the situation if Iran were carrying out analogous military strikes on US soil. Well, presumably the question of whether the strikes were constitutional (as opposed to whether they are morally wrong, or whether we disapprove of them, etc.) would depend on the situation and how it matches up with the constitution of Iran.

    I don’t have too much trouble envisaging that these strikes against, say, (1) a paramilitary militia based on US soil, which (2) includes Iranian citizens who have signed up out of hatred of the Iranian regime, and (3) which is involved in plotting and carrying out attacks on Iran … might be constitutional under Iranian law.

    That is all I am discussing at the moment – not whether these strikes are morally defensible or whether we would or should disapprove of them, but only whether they are legal under the constitution of the nation carrying out the strikes.

    Someone commented on whether this is a philosophical issue. To me, it is both a philosophical issue and a legal issue. When we get to very deep legal issues involving how a constitution should be applied to some historically novel but important situation, I think that we actually are involved in philosophical debate, like it or not. We are trying to work out what deep ideas underpin the constitution, in an effort to decide how to go about interpreting and applying it. I think that the law is always entangled with philosophy in these publicly important and novel cases, and the lawyers involved in these cases are perforce doing applied philosophy (and they are aware of this).

    But perhaps that’s because I have a fairly broad idea of what counts as philosophy.

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