Jeh Charles Johnson, General Counsel of the U.S. Department of Defense, on Friday admitted that murder by drone is not a form of law enforcement:
“Some legal scholars and commentators in our country brand the detention by the military of members of al Qaeda as ‘indefinite detention without charges.’ Some refer to targeted lethal force against known, identified individual members of al Qaeda as ‘extrajudicial killing.’
“Viewed within the context of law enforcement or criminal justice, where no person is sentenced to death or prison without an indictment, an arraignment, and a trial before an impartial judge or jury, these characterizations might be understandable.”
Indeed, pretty darn understandable. So, what’s the way around it?
“Viewed within the context of conventional armed conflict — as they should be — capture, detention and lethal force are traditional practices as old as armies. Capture and detention by the military are part and parcel of armed conflict. We employ weapons of war against al Qaeda, but in a manner consistent with the law of war. We employ lethal force, but in a manner consistent with the law of war principles of proportionality, necessity and distinction. We detain those who are part of al Qaeda, but in a manner consistent with Common Article 3 of the Geneva Conventions and all other applicable law.
 Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (“detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war”).
 Geneva Convention Relative to the Treatment of Prisoners of War, art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
The notion that U.S. treatment of prisoners complies with the Geneva Conventions is ludicrous, but so is the basic premise here that murdering and imprisoning people is justified because it is part of conventional armed conflict. There is nothing conventional about soldiers at desks on other continents flying drones, or soldiers jumping out of helicopters to kill and kidnap in residential neighborhoods. There are no front lines, no trenches, no battlefield, no army, no opposing army, no opposing nation, no territory fought over, no separation between civilians and military action. That armies have always killed and captured people doesn’t legalize killing and capturing people in any, much less in all, circumstances. Armies have tortured, looted, and raped as well.
“If I had to summarize my job in one sentence: it is to ensure that everything our military and our Defense Department do is consistent with U.S. and international law.”
Hmmm. Is it consistent with this law?
“The High Contracting Parties solemly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another. The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.”
How about this law?
“The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”
Or this law?
“The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States . . .
“To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
“To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
“To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
“To provide and maintain a navy;
“To make rules for the government and regulation of the land and naval forces;
“To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
“To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress . . .
“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”
There is nothing legal about war. If there were there would still be nothing legal about non-U.N. war. If there were there would still be nothing legal about non-Congressional war. In fact, Obama’s other lawyer Harold Koh has told Congress that it has no power to stop presidential wars, such as the one in Libya, because such actions are neither wars nor hostilities. Why? Because, as with drone murders, the Americans are not present on the ground and not likely to be immediately killed.
But then how can the conventional nature of war legalize the killing and imprisoning? Either it’s war and Congress has control over it, or it’s not war and the supposed legal and moral loophole for all evil does not apply.
And if it could, what can possibly constitute “proportionality, necessity and distinction,” in the act of killing people with drones, the vast majority of whom are innocent civilians, and the rest of whom are targeted victims who include Americans (is this country at conventional war with itself?) teenagers (is this country at conventional war with minors?) and the citizens and residents of nations the United States is not at war with in any conventional sense.
Were another nation to begin murdering people in the United States with drones and night raids, would the U.S. government consider those actions justifiable as conventional war (or justified in any other way), or would the United States launch a war against that nation? And if the latter, what would justify it? What justified the invasion of Afghanistan? What justifies the bombing of Gaza? According to President Obama,
“there’s no country on Earth that would tolerate missiles raining down on its citizens from outside its borders.”
Not Yemen? Not Somalia? Not Pakistan? Not Afghanistan? Those nations are legally justified in murdering and imprisoning Americans? This can’t be right.
Nor can it be right to take seriously Johnson’s suggestion that the U.S. war on terra will end some day, not while the terrorizing of foreign nations continues producing the sort of resistance that Johnson uses to justify the continuation of the killing. That’s a loop that neither ends nor comes to rest on any legal or moral support.
Photo by Charles McCain under a Creative Commons license.