They Can Kill the Kennedys, But They Can't Make A Decent Cup of Coffee?

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New at Reason: Ron Bailey proposes a system for organizing the law of the international jungle.

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  1. Trying to hold a trial for someone never in ones custody is often farcical and fraught with dangers constitutional implications. The judiciary is also a poor place to produce fast decisions that might be needed to prevent mass-casualty terrorist attacks.

    Probably a better system would be to expand the formal declaration of war to include sub-national entities down to the level of individuals. When some idiot somewhere says “go kill a lot of Americans” Congress can declare that an act of war and sic the military on them.

    Placing the decision within the legislative would protect the integrity of the judicial system and separate the designation of the targets from the Executive pursuit of the targets.

  2. “we could establish a formal transparent judicial procedure, perhaps a special court”

    Haven’t I seen some of these before? Like Iranian judges declaring the U.S. the Great Satan, terror groups trying the U.S. President in abstenia, etc. etc.

    Say, did you know that Mexico is suing the U.S. over Mexican citizens sentenced to death? Judgement from our World Court is expected on the 31st. Link here.

  3. Actually, according to E.O. # 12,333 U.S. agents are not authorized to commit assasinations (it was a Reagan E.O.). Until your executive lifts that ban, executive officers, agents, etc. are bound by it.

    Shannon Love,

    The U.S. will likely never declare war “officially” again; its too fraught with international legal implications; including the notion that the U.S. is an aggressor state. Anyway, you have prefectly acceptable covert operations assets to deal with “small war” options like those; there is no need to adopt a heavy legal instrument like a declaration of war for those purposes. Remember too that when your Congress declares war, it delegates a great deal of power to the President that joint resolutions do not (since a joint resolution can be crafted more narrowly in an easier fashion).

  4. Assasinations do not include legitimate military targets.

  5. Sort of along Shannon’s line of reasoning, why not just codify the sovereignty of the individual? Then, by definition, any serious threat by an individual against a state (or individual) would become a declaration of war and the state could go kick their ass according to the Geneva Conventions instead of worrying about civil or criminal law?

  6. Sort of along Shannon’s line of reasoning, why not just codify the sovereignty of the individual? Then, by definition, any serious threat by an individual against a state (or individual) would become a declaration of war and the state could go kick their ass according to the Geneva Conventions instead of worrying about civil or criminal law?

  7. Well, they’ve only officially killed two Kennedys, but I think we can do better.

    Just kidding, sorta.

  8. Jean Bart,

    The point here is to separate the power to designate a sub-national entity a target for military or covert attack and the power to carry out that attack. At present, all the decision making in this regard lays within the Executive branch. This concentration of power is political dangerous and anathema to American constitutional principles.

    Until the last 20 years, the idea that a sub-national group, unaffiliated with or uncontrolled with any nation state could kill thousands of didn’t really exist. We have no legal framework for designating who is and is not a sufficient threat to warrant an attack. Up to this point, we have just made ad hoc designations within the Executive branch to go after a handful of people but If we have to pursue and possibly kill hundreds of individuals then this unbalanced power to decide who gets killed becomes very scary.

    You are correct that it is “fraught with international legal implications” but you are incorrect that this would influence our internal decision making process. Our chief concern here is preventing the internal abuse of power. How that plays in other countries won’t be much an issue.

  9. Shannon Love,

    “At present, all the decision making in this regard lays within the Executive branch.”

    America has a plethora of laws that deal with oversight in these areas by Congress (e.g., War Powers Resolution, 1991 Intelligence Oversight Act, Arms Export Control Act, etc.); indeed, their strictures are fairly stringent; its less of an issue of a legal framework, and more of one of little political backbone.

    “Our chief concern here is preventing the internal abuse of power. How that plays in other countries won’t be much an issue.”

    Certainly it will; and a good way to forgo that is dump the outdated idea of “declaring war.”

  10. Shannon Love,

    Indeed, given the Congress’ textual powers concerning appropriations, and its inherent investigatory powers, Congress is in a very strong position to drive policy here. If they let that slip through there fingers it has less to do with executive abuse, and more to do with the Congress sitting on its rights and duties.

  11. Congress has the power “To define and Punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations” –US Constitution, Art I, Sec. 8.

    The US has given itself authority to exact something close to extra-judicial punishment, without declaring war. (They covered war in the next paragraph) If RWR hadn’t such a damnable pacifist that EO wouldn’t interefere with prosecuting modern-day pirates. Imagine the outcry if anyone (Bush!) revoked that prohibition.

    A difficulty arises in authorizing preemptive action. A presumption of innocence is woven throughout the US law and founding culture. It seems that OBL could be treated as a pirate, and made to walk the plank without due process, since he has publicly declared himself a pirate without the official backing of a recognized nation.

    I absolutely love the idea of individual sovereignty, which might let the US declare war or negotiate treaties with individual persons. I want to be my own tribe.

  12. Mark Fox,

    Well, first there is bit about “high seas” to contend with (perhaps the USS Cole attack would fall under this); and there is the question of what the “Law of Nations” are (apparently the Congress can define them, but has it done so, and are there any 18th century parameters or limitations that must be dealt with?).

    Another clause under the same section might also be useful is that concerning letters of “Marque” and “Reprisal.” And of course the Congress also has the power to regulate the Army and the Navy; which speaks to Shannon’s concerns.

  13. Jean Bart,

    Everything you say about existing powers is true but I would argue it is a matter of degree. If we only need to “assassinate” (for want of better word) a handful of individuals over the course of decades then an ad hoc decision making process has and probably will continue to serve.

    But if we find ourselves having to pursue dozens or hundreds every year then it becomes a potential political threat. I would analogize it to the situations that lead to the War Powers Act. Historically, Presidents and even individual military officers had broad discretion in deciding to use military force but the concern arose that th Executive would on its own initiative involve the entire nation in a large scale military conflict.

    Likewise, I think that allowing the Executive sole desecration in deciding when to assassinate specific individuals poses an unacceptable risk.

    Also, I think that the political effects of designating individuals and sub-national groups as formal enemies of the US subject to military attack without further notice would have a useful diplomatic effect. Nations would have to think twice about associating themselves with designated individuals as it would put them at odds formally with the US.

  14. Shannon Love,

    “…a handful of individuals over the course of decades then an ad hoc decision making process has and probably will continue to serve.”

    Well, that area is as ripe for abuse as any other; I mean, you are making some significant assumptions about the decision-making process here.

    “Historically, Presidents and even individual military officers had broad discretion in deciding to use military force but the concern arose that th Executive would on its own initiative involve the entire nation in a large scale military conflict.”

    Many legal scholars would argue that this is a usurpation of Congress’ Article I, Sec. 8 powers to regulate, etc. the military; indeed, in a case titled “Little v. Barreme” you can see the historical basis of this argument.

    “Also, I think that the political effects of designating individuals and sub-national groups as formal enemies of the US subject to military attack without further notice would have a useful diplomatic effect. Nations would have to think twice about associating themselves with designated individuals as it would put them at odds formally with the US.”

    Well official notice is easily done without declaring war; indeed, a joint resolution is more useful in these concerns because it is more flexible than an actual declaration.

  15. What are the implications for the Guantanimo detainees? Is this a back-handed way of conceding all the hand-wringing was misconceived?

  16. Andrew,

    Not really. At least not from my perspective.

  17. Bailey,

    Care to tell me where in the Newsmax article the claim about the EU is substantiated?

  18. About the detainees: it is difficult to see how it can be unjust or illegal to detain them indefinitely without trial, if they are exactly the kind of non-state actors who otherwise could be killed without process. If the analogy holds between killing enemy soldiers at any opportunity and killing non-state actors– then doesn’t the same analogy allow for the unlimited detention of non-state actors, as for the unlimited detention of POW’s?

    Some vexing problems arise with making mistakes…but that would only be worse in the case of “extra-judicial” killings.

  19. Jean Bart,

    Perhaps saying “Declaring War on Individuals” is to a strong a formalization for what I have in mind. Formal declarations of war appear to have gone by the wayside in any case. The US last declared formal war in 1941.

    I am mostly interested in (1) separating the power to designate a target from the power to kill or capture the target (2) making the process a formal codified one and (3) making the decision a matter of public discussion and record (in most cases.)

  20. I am mostly interested in (1) separating the power to designate a target from the power to kill or capture the target (2) making the process a formal codified one and (3) making the decision a matter of public discussion and record (in most cases.)

    I like these goals, although I recognize (as you do too, apparently) that the last goal, of making it a matter of public record, might not always be feasible. There should also be some mechanism for the “hit” order to be rescinded by whichever person or body gives the order.

    My first thought is that we could use the “letters of marque and repraisal” clause of the Constitution for Congress to put people and organizations on this list. Putting that power in the hands of the executive branch would be too dangerous. Even if the power to put a person on the list resided in one executive agency, and some other agency or department actually carried out the attack, both authorities would ultimately be subservient to the President.

  21. Andrew,

    “…it is difficult to see how it can be unjust or illegal to detain them indefinitely without trial, if they are exactly the kind of non-state actors who otherwise could be killed without process.”

    Why? If they are legitimate military targets, they can be killed (but only in specific ways – no glass bullets or other like measures – at least according to the “laws of war,” which the U.S. ascribes to). However, once they are prisoners of a state the dimensions of what a state may and may not do with them change. I think this is partly due to the unspoken notion that they are “wards” and no longer able to “fight back.”

  22. Shannon Love,

    I am mostly interested in (1) separating the power to designate a target from the power to kill or capture the target (2) making the process a formal codified one and (3) making the decision a matter of public discussion and record (in most cases.

    Well, as to (1), it seems that if Congress acted properly this would not be an issue. Regarding (2), the process is formally codified; that is the executive has its own procedures, and procedures given to it by Congress, to make these assessments. It all has to do with how closely they adhere to those procedures (Iran-Contra proved that despite such procedures, the executive branch was willing to skirt or ignore them at all will). Finally, as to (3), American intelligence agencies, your executive, and even most members of Congress, would likely object to it on a variety of grounds – national security for example.

  23. JB

    I assume that detained non-state actors shouldn’t be mistreated, any more than POW’s should…but why would they be entitled to a “trial”, to determine whether it is lawful to detain them, or not? The detention of POW’s is not subject to such Due Process.

  24. Andrew,

    Well, given Shannon’s POV, they would presumably be POWs. As to the process they are due, well, that is measured mostly by the Geneva Convention, which states that all captured combatants are to be treated according to those conventions as if they were lawful combatants until determined otherwise. Whatever American domestic courts decide on these matters is another issue, and is partly related to whether they have jurisdiction over the POWs, etc.

    The point is that even unlawful combatants are required to have some sort of process to determine their status under the “laws of war” (which is mostly customary law dating back hundreds of years – see writers such as Hugo Grotius) and the Geneva Conventions. Of course this “process” need not be all that extensive (or at least that was true historically); in WWII, for example, during the Battle of the Bulge, German soldiers caught infiltrating allied lines while wearing American uniforms were shot shortly after being caught, a few officers setting up essentially a “drumhead court” and making a decision concerning their fate in a short period of time. French officers during the seige of Cassino made similar decisions, so it was not an “American national policy.” States no longer condone such practices generally; and I think the Geneva Convention also frowns on such practices in its post-WWII form.

    In GWI many Iraqis were captured; some who had shed their uniforms and were trying to blend into what civilian population we encountered (where we on the left flank it was not densely populated); but it would have been improper to kill these “evaders.” But still, just a day before we were killing Iraqi soldiers with abandon; the change in circumstances is dramatic. One day one must kill and watch men run screaming about while tearing at their brains from a burst open skull, and the next one must simply detain.

  25. > when are extra-judicial killings acceptable, if ever? we could establish a formal transparent judicial procedure, perhaps a special court, in which non-state freelance aggressors accused of murder can be tried and if found guilty, convicted in absentia. If convicted, federal agents, including, most especially, the military would be duly authorized to capture or even kill the killer.
    This may sound utopian, but what’s the alternative? Unending global blood-feuds?

  26. One day one must kill and watch men run screaming about while tearing at their brains from a burst open skull

    Jean Bart-

    I know you get a lot of flack from the hawks around here. Anybody who has had to participate in such a gruesome battle has obviously earned the right to be critical of military policies. The hawks will scoff at this, and they’ll get even angrier when I answer their scoffing with “How many gruesome battles have you participated in?” but the point remains.

    I don’t say this so much with admiration (how can one really “admire” something so gruesome?) but with the simple acknowledgement that you obviously know what you’re talking about when it comes to war.

  27. A little off-point, perhaps– but I have often wondered about the demise of the old practice of summarily executing combatants caught out-of-uniform (and the related summary justice for pirates and mercenaries).

    I would guess (although I don’t know) that the last time the practice was officially sanctioned by the US government WAS WWII. The North Koreans used many infiltrators in South Korean uniforms, and I wouldn’t be surprised if many were summarily executed. I would guess there would be some examples in British practice since WWII. But most civilised countries have abandoned any sanction for it, and I can easily picture an American or European officer being tried, even in the clearest imaginable circumstances.

    But what if other countries continued to claim a sanction to act this way…eg. Indonesia, where piracy is still quite common? I don’t know what happened to them, but a couple of American-citizen mercenaries were sentenced to death in one of the former Portuguese-African colonies, simply for being mercenaries as I recall. In the 70’s. The State Dept. was interceding, with some reluctance, because there WERE citizens.

  28. Isn’t the law of the jungle like a giant shrimp?

    Hit and Runners, of all people, need to relax and let complexity do its tit for tat or whatever the hell it feels like doing.

  29. thoreau,

    “I know you get a lot of flack from the hawks around here.”

    We live in democracies so we can give each other flack.

    “Anybody who has had to participate in such a gruesome battle has obviously earned the right to be critical of military policies.”

    I think of it more simply as passing rights on; as if I am part of a historical continuum of rights and people who fought for and exercised them. And people pass these on in other ways besides being warriors.

    As to war, I am fond of General Sherman’s thoughts on war:

    “I am tired and sick of war. Its glory is all moonshine. It is only those who have neither fired a shot, nor heard the shrieks and groans of the wounded, who cry aloud for blood, more vengeance, more desolation. War is hell.”

    I don’t believe he was a pacifist (neither am I); but he was no glamorizer of war as we still see today (I find American military recruiting commercials disturbing for this reason).

  30. Andrew,

    Actually, pirates were treated as economic criminals and received trials, albeit often pro forma drumhead trials before execution. Summary executions of those violating the rules of war, especially those relating to uniforms and other means of distinguishing combatants from non-combatants were fairly common in Western armies up through WWII.

    The practice ended in large part because every opponent we have faced since the end of WWII showed such an intentional disregard for the traditional rules of war (like those embodied in the Geneva convention) that enforcing battlefield justice would have resulted in the executions of large numbers of prisoners.

  31. Isaac Bertram,

    Given their “we are too inept to attack now, so wait until we improve” statement, I think yes that is definately a possibility.

    As to the end of GWI, it was expected I understand that the defeat would be enough topple Hussein. I was neither involved in nor understood the “high goings” that occurred over the ceasefire. I can say from a military perspective its was the proper thing to do; mercy is part of a military campaign after all, in certain circumstances. This wasn’t Clauswitzian war in other words.

    As to today, in my opinion, I am glad that France and the U.S. ending this feud over Iraq.

  32. Shannon Love,

    Well, the U.S. in Viet Nam also showed such a disregard; units that entered into Cambodia in the late 1960s dressed in “peasant clothes” (though, given their size in relation to SE Asians, it did not hide them very well – indeed, given that there were generally just a few Americans along with those from the local population they could recruit, I have read that they had to forgo parachute drops as the far larger Americans would descend to the ground more quickly, and thus be quickly exposed with reduced numbers).

    Anyway, the use of unlawful enemy combatants has been common in American experience since WWII; so pragmatically, one does not kill theirs, so they do not kill yours.

  33. Those who inveigh against assassination but support “legal? warfare on legal and/or moral grounds appear to hold the lives of the “poor bloody infantry” in less regard than those of the exalted beings who run nation-states [a common notion in the 19th century].

    Let me propose a shocking alternative: All future conflicts that we initiate should begin with a sudden, systematic assassination of the top layer of the entire ruling apparatus of the organization/nation we are up against . This is followed by a declaration that any who survive and are caught will be interrogated, imprisoned and/or shot at our leisure. In any case, they are fish food.

    Now let?s consider the consequences. While this might make for some increased resolve on the part of some of the foe, it will be compensated for by the mad scramble to cut deals that will inevitably result [pardons can be given . . .for a price]. The UN, The French and NPR will complain bitterly, but they already do that. Congress will get upset ? unless the polls show that the public likes this idea, in which case they will just blather as usual. This could make some people REALLY MAD at the USA [as compared to what?].

    If this entire concept offends you MORE than killing a battalion T-72s from 3,000 meters in the dark [beyond the range of their primitive night vision], which adds up to about 100 carbonized bodies, then you need to examine why you think politicians are less expendable than tankers. Why do I need some kind of federal judge or committee of congressmen to permit me to kill a “supreme leader” [with the blood of thousands on his hands], but a nod from the Gunny is sufficient for sending some poor nameless jihadi-boy in Karjacistan to meet the 72 virgins?

    While you are at it, consider that no organization can count the loss of its top 50-100 leaders as anything less than a stunning blow, [while the loss of 100 faceless men is known to be something that political leaders can easily endure], so this mass assassination is likely to end the war fast with less carnage overall. We could be really nasty and state publicly that only the COMPETENT leaders will be killed, thereby mortally insulting anybody we leave out or miss.

    The feasibility of such a strategy is not the issue, and I will concede that wiping out 30 tanks in 75 seconds with a platoon of M1A2s is by far the easier task than picking off the leadership of an opposing nation/bandit kingdom/gang. But if we put our minds to it, we could find ways to get it done.

    P.S. Consider this: in all of his movies put together, how many people has 007 ARRESTED? Zip, nada, zilch.
    Several major babes who changed sides at the last minute and provided ?invaluable service to the Crown? do not count, as the only gentlemanly course for CDR Bond was to let them go . . . . afterwards.

  34. OldFan-

    Your proposal shouldn’t be too hard to implement. Show OJ a picture of Bin Laden, tell him that Bin Laden has been sleeping with OJ’s girlfriend, and then tell OJ to do what he does best.

    Problem solved!

  35. OldFan,

    “Let me propose a shocking alternative: All future conflicts that we initiate should begin with a sudden, systematic assassination of the top layer of the entire ruling apparatus of the organization/nation we are up against.”

    Those wouldn’t be assasinations; they would be lawful acts during wartime; if a ware were declared. I believe you need to learn the difference between the two.

    “Congress will get upset ? unless the polls show that the public likes this idea, in which case they will just blather as usual.”

    Well, Congress’ has a specific textual constitutional role in matters of war and the regulation of war. So they have ever right and duty to complain. Of course if you want to turn America in a military dictatorship that’s your decision.

  36. Jean Bart,

    The use of false colors by small scale covert units by the US dates back to WWII, however, it was always recognized that this placed the soldiers outside of protection of military conventions.

    I doubt the ending of battlefield executions had any tit-for-tat sort of origin. Most US covert military teams would have been covered by conventions regarding irregular solidiers. The numbers who didn’t would have been small and the individuals cognizant of the risk.

    I think you dramatically underestimate the sea change that occurred when Leninist doctrine became the basis of military morality in much of the world. They believed that the benefits of the revolution would excuse all action necessary to bring it about. They abandoned whole scale the conventions intended to protect civilians and in many case doctrinally used tactics meant to maximize civilian causalities for political effect.

    Trying to punish individual soldiers in these circumstances was pointless. Especially when most of these soldiers where just illiterate peasants with no training in military conventions. Eventually, we just gave up and started trying to get the leadership that ordered such actions.

  37. Shannon Love,

    There use predates that actually; at least to your “civil war.”

    And if you think these actions started due to some “leninist” revolution in the way warfare is waged then you are sadly mistaken; irregular or small-unit combat that emphasized terrorizing civilian populations has always been with us. Compare the “nationalist” chinese vs. the communists; whatever else can be said about the communists, it should be noted that it was the nationalists who started such terror tactics (indeed, they preceded the Long March by several years), not the communists.

    Isaac Bertram,

    PARIS – Anti-terrorist police took three suspects into custody in connection with an investigation into a mysterious group’s threats to bomb French railways, police said Friday.

    I am hoping that they have caught these fools.

  38. …The hawks will scoff at this, and they’ll get even angrier when I answer their scoffing with “How many gruesome battles have you participated in?”…

    Henry David and Jean Bart,

    “How many gruesome battles have you participated in?”

    I once posed the same sort of question to Jonah Goldberg (at townhall.com and National Review) when he was bloviating on attacking Iraq. I essentialy asked him why since he was the right age in 1990 he had not enlisted to fight GWI, but further why since he was still less than 34 yrs old (the cut-off age for recruits) he had not enlisted for this adventure. I received no reply. I did, however, receive a snarky reply, later, when I asked about the legality of a war not declared by Congress.

    Jean, I opposed GWI, (although I thought Saddam’s invasion of Kuwait reprehensible, I thought it might be solved thru diplomatic means) (I also didn’t think that this was, in fact, an American or a European problem, I figured if the Saudis and Kuwaitis couldn’t fix this, why should “we”). I respect the fact that you and others did your duty in that conflict.

    Even so, I think that the cease-fire left so many open questions that it required exceptional foreign polcy tactics to resolve them. I believe that Clinton clearly failed in this and left a mess that Bush had to “clean up”. The problem is I think Bush has failed too. I think he squandered the goodwill residual of the 9/11 attacks with his unilateral approach. I think he failed to take sympathetic signals from Chirac, Schroeder and Jean Chretien (Canada) and mounted a military assault far too soon.

    The foregoing is an over-simplified version of what I really think.

  39. BTW Jean

    I heard on the radio that the French train bomb planters had demanded a $6M ransom. Could be this is just plain mercenary thuggery rather than political thuggery

  40. You will recall that in WWII it was debated
    whether it would be ethical to ‘assassinate’
    Hitler or Yamamoto. Their deaths not being by combat.
    The first men to bomb Tokyo were asked to volunteer,
    and contrary to the movie, the main issue wasn’t fear of death,
    but the fact that they would be bombing a city,
    a city filled with civilians, perhaps hitting a hospital.
    It wasn’t long until bombing and artillery was blind to deed.
    Just look at mankind today, dressing as civilians,
    acting by sneaking, lying, flying civilian filled planes
    into buildings filled with civilians for no gain of ground.
    We think of spies with double-O status without blinking.
    The new warfare of striking at the head of the snake,
    sparing the deaths of hundreds of thousands of soldiers,
    making the leaders think twice before yelling war.
    “The times they are a changing.”

  41. From the perspective that the point of war is to secure one’s ability to stand, unmolested, upon a particular patch of ground, killing enemy leadership may not be a effective as it seems. If, killing the leader results in a fragmenting of the enemy into smaller factions, each fighting you for that patch of ground, you will have much more killing to do before the goal is achieved. If the goal is to destroy an enemy society and way of living, then killing leaders first is probably a decent first step. Rarely is such a total victory the goal. Wars tend to be fought over borders and empires, where all that is sought is a change in behaviour, rather than destruction, of an opposing nation.

    The questions of social value of leaders v. soldiers, and of treatment of those in false colors are fascinating to me. Leadership (congress via the executive) sets policy and trains soldiers to act according to some sense of morality and ethics. Then, the armies, given their charge, figure out how to best accomplish the mission, which includes some measure of skirting the rules and risking judgement by their own. In this, I echo Ruthless. A military, like a corporation, seeks the most efficient way of reaching a goal, and that might include lying, cheating, and stealing, to the extent that the generals (and corporals) think they can “get away with it”. I do not expect we’ll see a perfectly moral army.

    To connect with the beginning thoughts in the thread, it seems to me that there’s too much trust of the military by the congress, and of the congress by the people. Although the mechanism is fuzzy, we apparently agree that congress has the responsibility to tell the army who it is supposed to kill, generally or specifically, and also the responsibility for overseeing the killing techniques. The people, who are responsible for overseeing congress, are content to hold signs and bellow rather than delve into the complexities of the situation.

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