Tag Archives: due process

Syria’s Solution Depends on Moscow

On Wednesday hundreds of people (some sources say as many as 1400) died in Syria, evidently related to a chemical attack on a rebel-held area north-east of the capital, Damascus.  Apart from the scale of the casualties, there is much in this news which is not new or surprising.  As usual in Syria, rebels and regime accuse each other of deploying chemical weapons while denying their own use thereof.  Internationally, various governments support their chosen factions, as the US, UK, and France all publicly blamed the Assad regime, while Russia’s Foreign Ministry suggested that rebels staged the attack in order to provoke international intervention.  American rhetoric in favor of military intervention in Syria has certainly ramped up as a result of the attack.  Nevertheless, the Assad government puts forward a bold face, indicating that an American attack is very unlikely given the current international impasse.

What is more surprising is that Russia also called upon the Syrian regime and opposition to cooperate with UN chemical weapons investigators already in Damascus and permit them access to this fresh site.  The Syrian government has reportedly agreed to do just that.

This has put the western governments who have been consistently calling for Assad’s removal in something of a difficult position.  Before the Syrian regime announced it would allow UN investigators access to the site, the argument was made that they “must have something to hide.”  (The argument, though widespread, is always the argument of the group which controls the courts.  As the history of American criminal courts amply demonstrates, one can be found guilty of a crime one did not commit based on being the wrong color.)  Now that the Syrian government says it will facilitate the investigation, Western hawks are forced to argue that this cooperation is “too little, too late,” and that an investigation five days after an attack is worthless.  This despite the fact that the UN investigators were already in Damascus to investigate attacks from March.  If five days is too late for an investigation, it is unclear what good the UN investigators could do in Syria at all.

As Paul Thomas Chamberlin commented on the day of the chemical weapons attack, the US has a very bad track record for intervention in Muslim areas of Asia and Africa, a history of counter-productive intervention spanning decades.  The parallels between the proposed US support for rebels in Syria and the US sponsored Mujahhidun fighting against the Soviet-sponsored government in Afghanistan, which reduced Afghanistan to the rubble we see today, are frightening.  Of course, the Russians didn’t come out of Afghanistan looking like heroes either.

But the US track record even in the current Syrian conflict does not inspire confidence.  Given the long-standing hostility between the US and the Assad regime, a byproduct of Syria’s alliance with the USSR and cold antagonism to Israel, the US rashly called upon Bashar al-Assad to step down as soon as the protests started in March 2011.  Thus the US lost whatever positive influence it might have had over the regime (not that it ever had much).  With the recognition of the Syrian National Coalition and the progressive revelations how much the SNC has cooperated with the al-Qa’ida affiliate Jabhat al-Nusra, the US has provided its critics with the easy tagline that the American government is supporting terrorism.  When the US and the Russians agreed about the importance of holding peace talks in Geneva “to find a political solution,” the Russians got the Assad government to agree to the talks, while the US-backed rebels refused to participate.  The Syrian government is still touting its willingness to participate in Geneva.  The US hasn’t mentioned Geneva recently.

I think it would be very foolish for the US to intervene militarily without waiting for word from the UN chemical weapons investigators.  To strike at Assad without UN support would convince many in the Middle East of American arrogance and willingness to act as judge, jury, and executioner for a “justice” tailored to suit its own ends.  (And although I prefer to give governing bodies the benefit of the doubt, I find myself troubled by the rising prominence of “defending our national interests” in US government statements about Syria.)  The mess in Syria will have no easy solutions, and for the US to enter Syria now will simply ensure that the mess which follows the war is blamed on the US intervention.  And as media reports almost invariably indicate, the information coming out of Syria could not be verified, meaning we really have little idea who is doing what to whom in the countryside around Damascus.

But I am not a quietist, and I certainly do not believe that the US should just “let them kill each other,” as certain callous Islamophobic westerners are arguing.  The US can certainly help now by continuing to provide defensive technology, by providing humanitarian assistance to refugee camps, and by helping the countries hosting the refugee camps provide police presence in those camps.  Although media reports have depicted Western politicians repeating the mantra of “no boots on the ground,” if a military intervention is needed, I think putting “boots on the ground” may be the best way to humanize the process, far better than raining terror from the skies.  “Boots on the ground” may deliver humanitarian assistance in ways that hellfire missiles cannot.

But in order to facilitate the end of the violence in Syria, and particularly of the secularist vs. jihadi rebel infighting which will inevitably follow Assad’s departure, the US needs to work diplomatically with Russia and wait for the UN chemical weapons inspectors to do their job.  When the US intervenes, I think it needs to do so as part of an international coalition including Russia.  Moscow has been much more effective about influencing the situation in Syria than the US has been.  If the US can get over its spat that Russia provided temporary asylum to whistleblower Edward Snowden (which led President Obama to cancel his state visit to Putin, evidently because revealing that a government is flagrantly breaking its own laws is treasonous), then it just may be able to work with Moscow over how to bring the Syrian conflict to a halt.  Now, Russian president Vladimir Putin‘s civil rights record is also a problem, but if Russia can be disengaged from supporting Assad, Iran will not be in a position to hold up Assad, and China is unlikely to invest what Russia has been doing in order to keep Assad in power.  That is probably the surest way to ensure that Syria does not turn into an al-Qa’ida stronghold training terrorists for the next twenty years.

A critical component of the rule of law is due process, and due process takes time.  That time is costly, as thousands are dying in Syria.  But due process is precisely what distinguishes seeking the common good from self-serving bullying.  If the US is serious about seeking what is best for Syrians, then it needs to support all Syrians and not just its favored faction, and it needs to allow the UN chemical weapons inspectors to do their job.

Advertisements

Are Drone Attacks Legal?

Yesterday I responded to President Obama’s speech defending the use of drone attacks and targeted killing (full transcript of the speech here) by giving some moral objections to the use of killer drones away from a battlefield.  (As I indicated in that post, the notion that the whole world is a constant battlefield in the War on Terror, as it is sometimes claimed, is patent nonsense.)  In this post I will consider the legality of the use of drone strikes away from a battlefield scenario.

Three caveats first, however.  One, I am not a lawyer (although my parents always said I should be), and am very aware that my ideas in this domain are only suggestions to be taken up or discarded by those who have the training.  Second, I do presume that actions are legal unless proven otherwise, so the burden of proof is on the claim of illegality.  Third, although we would like laws to be good and just, legality and morality are in fact logically independent: something can be illegal and yet morally neutral (driving one mile over a very low speed limit, for example), and something can be legal and yet morally wrong (at least until a law is passed to prohibit, for example, the widespread abuse of workers in nineteenth-century factories).

Legal Reasoning

President Obama explicitly asserted the legality of drone attacks, even drone attacks upon US citizens who are plotting to attack the US (although not upon US soil, interestingly).  The main argument for the legality of drone attacks is that they are part of a defensive war between the United States and al-Qa’ida:

We were attacked on 9/11. Within a week, Congress overwhelmingly authorized the use of force. Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces. We are at war with an organization that right now would kill as many Americans as they could if we did not stop them first. So this is a just war – a war waged proportionally, in last resort, and in self-defense.

By contrast, critics of the legality of “targeted killing” liken it to assassination, which is prohibited under Reagan’s Executive Order 12333 (thanks to Jurist for this detail).  That is why the Wikipedia article “Assassination” contains a section entitled “Targeted Killing,” although at the time of this writing a little over half of that section consists of a rehearsal of which legal scholars have asserted the distinction between “assassination” and “targeted killing.”  (The discussion in the “Legality” section of Wikipedia’s “Targeted Killing” article is a bit fuller.)  The article by Jeffrey Addicott on Jurist (cited above) lays out an argument for the distinction between assassination and targeted killing, noting that EO 12333 did not define “assassination” (so we are evidently free to define it circularly as illegal murder, and thus the prohibition in EO 12333 is merely tautological), that the US is at war with “the virtual-State al-Qa’eda,” and that the “law of armed conflict describes lawful targets.”  According to Addicott’s interpretation of this “law of armed conflict,” “An enemy combatant – whether part of an organized military or a civilian who undertakes military activities – is a legitimate target at all times and may be lawfully killed, even if by surprise.”

Now, I’m not going to lay out an argument why “targeted killing” is a form of assassination.  I think it is, but I suspect the use of those words is sufficiently slippery that such a case will be mired in meaningless assertions regarding rival uses of language.  Instead, I have two considerations which lead me to suggest that “targeted killing” and drone attacks away from an active battlefield are probably illegal.

The first consideration is to ask whether the laws of war apply.  President Obama’s legal defense of “targeted killing” relies upon the “War on Terror” being a defensive war.  He explicitly states, “at war with al Qaeda, the Taliban, and their associated forces,” and this war is just because it is “a war waged proportionally, in last resort, and in self-defense.”  I do not in any way deny that al-Qa’ida has attacked US people and property illegally and unjustifiably.  I merely question whether one can be “at war with an organization,” as President Obama puts it, in a way that the “laws of armed conflict” apply.  It is revealing that in Professor Addicott’s version of this argument, he refers to “the virtual-State al-Qa’eda.”  Does the invocation of the laws of war require that al-Qa’ida be considered a state?

Of course, the rhetoric of the “War on Terror” built off earlier American public campaigns designed to rally popular sentiment behind some unpopular measures, such as the “War on Poverty,” the “War on Cancer,” and the “War on Drugs.”  But in the first two cases (and in the domestic policies attached to the third) we recognize a metaphor, namely that the opposing threat to be battled is not to be fought militarily according to the laws of warfare.  The “War on Drugs” is more ambiguous, because it has been used as a motivation for foreign military intervention, although the rhetoric has fallen on hard times.  But it seems to me that, rhetoric aside, the applicability of the rules of war requires there to be a recognizable war, which I would characterize as requiring hostility between two countries/states.  The Oxford English Dictionary similarly defines “war” as armed conflict “between nations, states, or rulers, or between parties in the same nation or state,” although Wikipedia includes “non-state actors” as potential combatants.

It is obvious that al-Qa’ida, whatever else it might be, is not a state.  It has no legitimate sovereignty, it has no constituent population which it serves, it has no territory it governs or could govern justly.  As President Obama’s speech acknowledged, it is an organization.  And organizations can be illegal and violent (think “organized crime”), but the response to organizations is not warfare.  The declaration of war requires a state upon which war is declared.  Without a state which can be held accountable to the Geneva Conventions, the laws of warfare simply do not apply to the “War on Terror.”

The inapplicability of war-time legal reasoning is also apparent from the evident domestic peace in the US.  Certainly terrorist attacks shake us, and for those killed and maimed there is no recovery, but compared to the continuing violence in the civil war in Syria, or the sectarian violence in Iraq, terrorist attacks are one-off events.  This is not to minimize the horror of them, but to indicate the different timelines of violence between warfare and terrorism.

But challenging the “War on Terror” as a vehicle for legal reasoning does not necessarily demonstrate the illegality of drone strikes.  Perhaps “targeted killing” is legal in peace-time, and as I indicated above, all actions are presumed legal unless demonstrated otherwise.  It is here that my second consideration comes in, by analogy.

Apart from times of war and active battlefields, civil society depends for its continued operation on certain legal norms which restrict (for example) vigilantism and blood feuds.  Among these legal norms are due process, which mandate that when a crime has been committed, a person accused cannot be punished before being tried and found guilty in a court of law.  To take an interpersonal example, most legal systems justify violence in self-defense: if you are being attacked, you can fight back.  But this justification ceases to be relevant when the attack ceases: if you have been attacked and your assailant is walking away, attacking your assailant is not justified.  Instead you must seek redress through the criminal or civil legal systems.  The self-defense justification is also not applicable to pre-emptive strikes: just because you suspect that someone is planning to harm you, attacking them before they make an aggressive move is not self-defense.  Plotting to commit a violent crime is indeed itself a crime and punishable as such, but does not give rise to a justification of violence against the person so plotting, until the attack is initiated.  Even if people have previously committed violent crimes and are suspected of plotting further violent crimes, if my understanding is correct, nevertheless the self-defense justification cannot be invoked simply because they are the sorts of people who commit violent crimes (although greater than normal police caution is certainly called for).  The self-defense justification must be based on an actual ongoing attack initiated by them as aggressors.

If the “War on Terror” is not in legal terms a war to which the Geneva Conventions apply, then the rules of peace-time due process must be upheld.  A government therefore cannot invoke the self-defense justification for violence except where there is an open confrontation initiated by a hostile outside force.  Thus shooting terrorists attempting to detonate a bomb clearly falls under the self-defense justification, but tracking down people who have attacked you and killing them there falls outside self-defense justification.  The key component of Professor Addicott’s argument that an “enemy combatant” is a “legitimate target at all times” (emphasis his) requires there to be a state of war.  In the absence of a state of war, a violent assailant is not “a legitimate target at all times” but only when actively prosecuting an attack.  Apart from an initiated terrorist operation, a terrorist is a criminal who must be treated with due process.

It is particularly important for the US to recognize that the “War on Terror” is a rhetorical turn of phrase and does not give rise to a state of warfare in light of the disparity of suffering.  Americans know we are not living in a warzone.  Pakistanis, especially those living in Waziristan, might be more inclined to consider themselves as living in a state of warfare.  But for the many non-al-Qa’ida aligned Pakistanis in Waziristan (almost a million), if there is a state of warfare, then the US is clearly the aggressor, because those non-al-Qa’ida aligned Pakistanis have done nothing against the US.  I would suggest that the US government should weigh carefully whether it wants to assert that the drone strikes are part of a state of warfare, a state in which the claims of self-defense may be found unconvincing.

Again, let me repeat that I am not a lawyer.  But it seems to me that the legal justification of targeted killing and lethal drone strikes depending on America’s defensive war against al-Qa’ida, invokes obviously inapplicable “rules of war”.  The “War on Terror” is a rhetorically savvy American public relations push, but it is not a war to which the “rules of war” could possibly apply.  In the absence of a state of warfare, the due process requirements of the rule of law in civil society outweigh the national interests in the targeting killing of known or suspected criminals by surprise when they are not actively carrying out criminal operations.  President Obama indicated his “strong preference for the detention and prosecution of terrorists,” but a strong preference is not enough.  “Self-defense” should never be a legal cloak for violent counter-aggression which bypasses due process.