In the course of a long, balanced post on the Al-Marri case, Orin Kerr, who has often criticized the Bush Administration’s use of executive power in the War on Terror, makes an elementary point that is too often overlooked. Explaining the reasons why he thinks the defendant should have been regarded as an enemy combatant rather than a civilian criminal, he writes,
The first and most important is that members of a terrorist cell see themselves at war; they see themselves as soldiers in a holy war against the United States, and are acting accordingly. When a group sees themselves as soldiers at war trying to kill you, it seems fair that you should want to return the favor. [emphasis in original]
A majority of the 4th Circuit panel thought otherwise. To the judges’ rarified perception, an individual who, according to uncontradicted evidence, was a member of al-Qa’eda and entered the United States for the purpose of killing Americans was just an ordinary criminal defendant who couldn’t be restrained by the government until after he committed a crime.
Well, that’s what one expects of a brace of Clinton appointees. But before we sneer and blame the First Husband-to-be, it’s only fair to note that the same view prevails in surprising quarters. For example, from the Washington Post:
The insurgents who kill our young soldiers are ruthless, but we have sometimes been cautious in our response. Take the question of targeting bomb makers: There may be an unlimited supply of explosives in Iraq, but there is not an unlimited supply of people who know how to wire the detonators. In 2004, CIA operatives in Iraq believed that they had identified the signatures of 11 bomb makers. They proposed a diabolical — but potentially effective — sabotage program that would have flooded Iraq with booby-trapped detonators designed to explode in the bomb makers’ hands. But the CIA general counsel’s office said no. The lawyers claimed that the agency lacked authority for such an operation, one source recalled.
There are technologies that would allow us to detonate every roadside bomb in Iraq by heating the wires in the detonators to the point that they triggered an explosion. But these systems could severely harm civilians nearby, so we’re not using them, either. “In our system, we often are not given credit for the fact that we are very concerned about collateral damage,” [Gen. Montgomery] Meigs [who headed a Pentagon task force on how to neutralize the IED threat] said.
(Maybe civilians could be warned when bomb sweeping teams come through and get away from the area. Or would that disrupt life in Baghdad too severely? And don’t bombs likewise “severely harm civilians” when they explode on the terrorists’ timetable rather than ours?)
And then there is this from an Army squad leader recently back from the front lines:
A perfect example of problems arising from [Rules of Engagement] was when a buddy of mine was guarding a section of the exterior of one of the forward operating bases in Iraq from which we were operating.
While he was on duty, he was getting shot at. But rules of engagement say, you can’t engage without permission. So he radioed the sergeant-of-the-guard and said, “Hey, I’m getting shot at. May I return fire?”
The sergeant asked, “Are you in any immediate danger?”
My buddy responded, “No, not as long as I’m ducking behind the concrete [barrier].”
The sergeant said, “OK, don’t return fire until you are in immediate danger.”
The sergeant, adhering to his understanding of the ROE, was saying, Fight only if you can’t hide. Is that how we fought World War II?
The rationale for this legalism is, no doubt, the avoidance of atrocities. I agree with the goal, but the means are misguided. Historically, almost all battlefield excesses by American troops have resulted from panic, low morale or poor situational awareness. Rigid rules of engagement don’t have much influence over a guy in one of those states. I’d be surprised if the ROE have saved any lives in Iraq, except for the lives of terrorists.
Whether or not one approves of this particular war, restrictions that serve only to make life easier for men who “see themselves as soldiers in a holy war against the United States, and are acting accordingly” are bizarrely misguided. Except for the Michael Moore types, not many critics of the Iraqi campaign openly root for defeat. Many declare that they want to wage war vigorously on other fronts. But won’t the shackles that hamper our soldiers in Iraq be just as detrimental in Afghanistan? Or New York?
Further reading: Andrew C. McCarthy, “Lawfare Strikes Again”
Comments