My Take On The White House Memo

The fact of the matter is, there are people bearing arms against the nation,  and its people. And among those wishing us ill are several who hold American citizenship. This is hardly new. It has happened before, and it will happen in the future. Members of the German and Italian (and probably, the Japanese) Armies fought against the US. The big example is the Confederate States, whose legitimacy the United States never acknowledged.

The current topic is, of course, radical Islamists who have joined, supported or otherwise aligned themselves with Al Qaeda or the Taliban or a handful of other terrorist organizations.  We are at war with Al Qaeda. If Al Qaeda was a nation state, and its forces wore uniforms and otherwise fought in accordance to the rule of law, not an eye would be blinked at the efforts to kill their leadership, even those who held American citizenship.

The problem arises in that Al Qaeda isn’t, of course, a nation state. And membership is a little more amorphous than we might like. They don’t issue Geneva Convention cards to their fighters (which, for you civilians out there, our military ID cards are in fact also Geneva Convention cards).

URR will disagree with me, and argue that these persons are being denied Constitutional protections. Let me steal a comment from Rob Crawford at Tom Maguire’s excellent Just One Minute blog:

The president has the authority to prosecute wars, and like it or lump it, Congress did the modern equivalent of declaring war against al’Qaeda.

The requirements, as I understand them, are:

1) Threat must be imminent,
2) Capture must not be feasible,
3) The strike is otherwise in accordance with the laws of war.

A US citizen who leaves the country and starts working with al’Qaeada is no different than a US citizen who left the US and took up arms with Hitler’s Germany. They existed, and no one was declared a war criminal when they died during allied air strikes, shelling, rifle fire, or bayonet charges.

And what’s the alternative? That any military operation where there MAY be a US citizen on the receiving end must pass judicial review? How would that work?

Let’s take the three bullet points. The first, that the threat must be imminent. I’m not sure that’s the best description. Rather, I’d say that the target’s participation should be ongoing, rather than some past act with no future role.

Second, Capture must not be feasible. I’m sure if we moved heaven and earth, some targets would be captured. But possible and feasible are two different things.

Third, the strike has to be what would otherwise be within the bounds of the law of war.  For instance, you can’t use a nuke to kill just one guy. That violates the law of war.

URR will argue that the memo is evidence of the denial of due process for persons accused of treason. But in fact, they aren’t accused of treason. The are currently actively engaged as unlawful combatants against the US. The courts have shown no interest in interfering with the actions of the armed forces against unlawful combatants until such time as those persons come into the custody of the US. Their silence can only be taken as consent. And such is right and proper, by the way, as under Article I of the Constitution, Congress is responsible for the regulation of the armed forces, and of course, the President has Article II powers enumerated. Nowhere does the Constitution state a role for the courts in the prosecution of war.

For any that might be captured or otherwise taken into custody, there’s no real evidence they would even be charged with treason. They might be charged with any number of other terrorism related charges.

As to treason in the Constitution, let’s look at a little history. Much of our criminal law comes lock, stock and barrel from English common law. But under that common law, treason was arguably just about anything that annoyed the Crown. It was to avoid that ambiguity that treason, and treason alone, was so specifically mentioned in the Constitution. Of course, so much criminal law was also held to be a matter for the states, and not the federal government, but that’s a rant of a different color.

URR argues:

And just where is this jurisdiction for the authorization of the use of force?  Why, it is anywhere at all where the Government perceives an enemy to be.   As the Memo informs us, there are no geographic limits.   Which implies no battlefield, or perhaps, that everywhere is a battlefield.

First, elsewhere the memo clearly states that the decisions under consideration are for operations outside the United States. The vagueness of the wording he showed:

Memo 3

is deliberate, no doubt. But as we’ve seen, the enemy doesn’t feel any particular need to constrain it’s efforts to any one nation or theater of war. This vagueness preserves freedom of action against the enemy, but is still constrained by the guidance that capture must not be feasible.

After years and years of conservatives decrying treating terrorism as a law enforcement problem (and still decrying the President’s attempts to do so) I find it odd that URR turns around and complains that the President, with the authority of the Authorization of the Use of Force of September 14, 2001, is doing what conservatives have long sought- to treat terrorism as a war.

I fully share URR’s distrust of this administration in particular, and an over powerful government in general. But the fact is, the US has the right, and indeed, a moral obligation to wage war against terrorist enemies. And in waging war, we are under no obligation to attempt to capture the enemy (we are, however required to accept a surrender).  Yes, there is real room for abuse of the process by which persons are designated as enemy combatants. But common sense goes a long way to answering the question of just who those persons are.  And that is the root question. If URR is comfortable with Alwaki and Kahn being killed by troops on the ground, he should be just as comfortable with them being killed by any other method. And should their contemporaries be captured, I too am all for them at the gibbet. After due process.