By Other Means
All the Pentagon’s Lawyers
One man's targeted strike is another man's state-sanctioned murder.
In 1999, Qiao Liang and Wang Xiangsui, both colonels in China’s People’s Liberation Army, published a slender book called Unrestricted Warfare. The two officers predicted that technological innovations and globalization would change warfare almost beyond recognition. In a world of cyberattacks, asymmetric warfare, and transnational terrorism, they wrote, "the three indispensable ‘hardware’ elements of any war … soldiers, weapons and a battlefield … have changed so that it is impossible to get a firm grip on them.… [I]s the war god’s face still distinct?"
Qiao and Wang published Unrestricted Warfare two years before the 9/11 attacks, and their description of likely changes in warfare was strikingly prescient. In previous columns, I’ve described some ways these changes challenge our most basic ideas of what a military is, does, and should do, and suggested that failing to fully confront those changes and challenges is a surefire way to end up with a national security strategy that’s both incoherent and inefficient.
It’s also a surefire way to damage the rule of law.
A lot of ink has been spilled defining the rule of law (some of it by me), but at root it’s pretty simple. The rule of law requires that governments follow transparent, universally applicable, and clearly defined laws and procedures. The goal is to prevent the arbitrary exercise of power. When you’ve got the rule of law, the government can’t fine you, lock you up, or kill you on a whim — it can only do that in accordance with pre-established rules that reflect basic notions of humanity and fairness.
When you don’t have the rule of law, life can get unpleasant. Qiao and Wang, for instance, come from a country where the rule of law is only partially realized, and arbitrary detention and executions without due process remain common. Or consider the grievances enumerated in the American Declaration of Independence: Britain’s King George III, the colonists complained, deprived them of "the benefits of Trial by Jury," refused "his Assent to Laws for establishing Judiciary powers," transported prisoners "beyond Seas to be tried for pretended offences," and "affected to render the Military independent of and superior to the Civil power."
Bad stuff! Americans fought a long and bloody war over it.
Today, however, the very same changes that challenge our long-held assumptions about the military also challenge the rule of law America once fought so hard to establish both domestically and globally. (The United States was instrumental in the creation of the United Nations and the various international human rights treaties and institutions.) For when the idea of "war" loses definition — when the war god’s face grows indistinct — we lose any principled basis for deciding when the law of war applies, and when it doesn’t.
That sounds like a tedious, technical issue — the kind of thing usually discussed in long, tedious legal articles — but it’s no mere technicality. The law of war permits a wide range of state-sanctioned behaviors that are considered illegal (and immoral) when the law of war doesn’t apply.
Start with the obvious: In war, the willful killing of human beings is permitted, whether the means of killing is a gun, a bomb, or a long-distance drone strike. But just try going out onto Main Street and bashing a random passer-by over the head with a brick until he’s dead: When the laws of war don’t apply, we call that murder.
The same goes for a wide range of other behaviors. In war, it’s OK for a lawful combatant to knowingly inflict injury and death on others (as long as they’re enemy combatants or otherwise participating in hostilities, or, if they’re ordinary civilians, as long as your actions were consistent with the principles of proportionality and distinction). Ditto destruction of property, and ditto various restrictions on individual liberties. In war, enemy combatants can be detained (with little or no due process) for the duration of the conflict — not because they have committed crimes, but to keep them from returning to the battlefield. Civilians can also be detained if they pose specific threats.
This is a radical oversimplification of a very complex body of law. But as with the rule of law, the basic idea is pretty simple. When there’s no war — when ordinary, peacetime law applies — agents of the state aren’t supposed to lock you up, take your stuff, or kill you, unless they’ve jumped through a whole lot of legal hoops first. You’re protected both by domestic law and (in theory) by international human rights law.
When there’s a war, though, everything changes. It’s not quite a free-for-all — torture, rape, and killing that is willful, wanton, and "not justified by military necessity" remain crimes under the law of war — but there are far fewer constraints on state behavior.
This seems reasonable enough, and it’s not inherently inconsistent with the rule of law. As long, that is, as war is the exception, not the norm, and as long as we can all agree on what constitutes a war, and as long we can tell when the war begins and ends, and as long as we all know how to tell the difference between a combatant and a civilian and between places where there’s war and places where there’s no war.…
You see the problem. When concepts such as "war" get blurry, the law gets blurry. When it gets blurry enough, you lose the predictability and transparency so vital to any idea of the rule of law.
And this is where we are right now. The U.S. government hasn’t offered clear, full, and consistent answers to any of the key rule-of-law questions related to the ongoing war against al Qaeda and its "associates." Is there a future point at which the war will end and detainees will be released? Based on what criteria might someone be considered a combatant or directly participating in hostilities? Is serving as Osama bin Laden’s chef enough? How about the little old Somali lady in Detroit who gives money to an Islamic charity that serves as a front for a terrorist organization? Can she be targeted? What constitutes hostilities, and what does it mean to participate in them? And just where is the war? Does the war (and thus the law of war) somehow "travel" with combatants — if a suspected al Qaeda operative goes to Pakistan, Yemen, or Somalia, do the laws of war apply to U.S. actions in those countries?
These questions matter.
Take drone strikes. Say — hypothetically! — that the CIA uses an unmanned aerial vehicle to kill a U.S. citizen who it suspects is a member of Mali’s Ansar Dine, a creepy militant Islamist group said to be allied with al Qaeda.
If being a suspected member of Ansar Dine makes someone a combatant in a war on al Qaeda and the laws of war apply with regard to combatants regardless of the sovereign state within which they operate, then the hypothetical drone strike is perfectly lawful, U.S. citizenship notwithstanding. There’s a war; the laws of war apply; enemy combatants can be targeted and killed; and everything is peachy.
But if there’s no war — or if the suspected Ansar Dine member is neither a combatant nor a civilian engaged in hostilities, or if there is a war, somewhere, but not in Mali — then the hypothetical drone strike would be state-sanctioned murder (of a U.S. citizen, no less).
The problem is that we have no principled basis for deciding how to categorize such targeted killings. Barack Obama’s administration — much like George W. Bush’s administration before it — has argued that these are fact-based, individualized determinations. But the information on which the determinations are made is classified. Outside a small circle of U.S. executive branch officials, no one knows what evidence was relied on, and no one knows precisely how the United States defines "combatant." What’s more, the administration takes the view that no court has jurisdiction to review these determinations and that selected members Congress need only be informed in a general way.
I can’t find it in me to condemn the decisions made by my former colleagues in the Obama administration or those who preceded them in the Bush administration. The law of war was developed in a different era, with a different set of realities in mind. The world has changed, and today we’re still stuck trying to make legal arguments based on once-clear categories that no longer have much value. (To paraphrase the immortal Donald Rumsfeld, Bush and Obama went to war with the law they had, not the law we might have wished they had). The result, though, is that neither law nor political institutions now offer any limiting principles on state use of coercion and force.
Back in 1999, Qiao and Wang called it exactly right. Globalization, technological change, and the rise of transnational terrorism would, they warned, lead to "the destruction of rules … [and] the domains delineated by visible or invisible boundaries which are acknowledged by the international community lose effectiveness." In this new era, "all means will be in readiness … and the battlefield will be everywhere … [and] all the boundaries lying between the two worlds of war and non-war, of military and non-military, will be totally destroyed."
Every individual detained, targeted, and killed by the U.S. government may well deserve his fate. But when a government claims for itself the unreviewable power to kill anyone, anywhere on Earth, at any time, based on secret criteria and secret information discussed in a secret process by largely unnamed individuals, it has blown a gaping hole in the rule of law.