It appears that as part of what used to be called the Global War On Terror and now our permanent state of selective war, an American citizen who we may safely presume was both a member of al-Qaeda and not personally a combatant or a high-placed leader has been killed by way of a drone strike. This has caused much worry and concern and indeed I have invested my own angst into the matter. There also seems to be a deafening silence on the matter from liberals, while progressives scream at them that this is worse than anything Bush ever did.
Professor David Schraub, however, asks us to critically ask why we care about this, and his analysis is instructive. I’ll give a quick gloss but you should read his whole post; he brings a clear-eyed sobriety to the event while not domesticating anything about it, something that I doubt I’d have been able to achieve on my own.
The obvious concern is that an U.S. citizen has been killed by his own government without so much as an arrest warrant, never mind a trial and appeal. But really, this isn’t a concern at all. A citizen can take up arms against the United States and if he does so, obviously he can be treated as an enemy combatant and shot to death by one of our soldiers. Nothing illegal there. If he’s captured and arrested, he is to be afforded some procedures but they can be abbreviated during wartime (this is from the Quirin case during World War II, in which a citizen was executed for attempting acts of sabotage on the military). Indeed, the legality of both killing an enemy combatant and the procedural rights guaranteed to individuals captured on the battlefield treat the citizenship of the enemy as irrelevant. This is actually pretty well-settled law. Even more disarmingly, at least some sorts of non-combatant persons are legitimately targets of fatal military strikes — communications people, munitions suppliers, and so on — so the fact that Al-Awalki was not a combatant ought not be enough, on its own, to cause worry. One problem is how to identify whether Al-Awalki or someone like him is a legitimate target in the first place. The enemy in this war does not comply with the rules of war; it is not a state opponent and its warriors do not wear uniforms.
But the real difficulty with the case, according to Schraub, is that the law is inadequately developed to deal with an ambiguous situation in which an individual seems to be afforded the full suite of rights due a citizen (because he is a citizen) and simultaneously is just as properly treated as an enemy combatant on the battlefield entitled to no rights whatsoever (because that’s effectively what he is, if his non-combatant role is proximately linked to combat operations of our non-state enemy). In other words, we cannot say with any degree of precision whether the killing of Al-Awalki was lawful because the law has not armed us with sufficient analytical tools to sort out which regime — law of crime or law of war — is to be used in this situation. For those of us who look to the law to provide absolutes, to provide resolutions to these sorts of tensions and ambiguities, such a lacuna in the law is existentially unsettling. Balancing these competing concerns is hard work.
One reaction to this is to rely on morality. For the past ten years, this been the “conservative” position — Al-Awalki is a bad guy, which means he deserves to be treated like a bad guy, thus we should pick the legal regime which justifies the desired result. This is an unprincipled way to approach the law, but not an unprincipled way to approach the moral issue.
The other primary reaction has been that of caution, the last decade’s “liberal” position. If it is difficult to decide how to analyze an issue, it is more prudent to pick the mode of analysis that affords greater individual rights as opposed to lesser. I’ve tried to err on the side of caution myself.
Both of these are deontological approaches, varying by preference and priority of competing and conflicting duties. Utilitarianism offers little possibility for resolution, however. A utilitarian approach — to pick the mode of analysis which best achieves our goals as a society — again gives varying results depending on the time frame of one’s analysis. In the short run, to dovetail with the moral argument, as our objective in wartime must always be to win the war. But it diverges from morality and goes back to prudence as one takes a longer and longer view; there will be peace after the war and our raison d’etre as a nation is the preservation of individual liberties.
My best alternative to that is to consider al-Qaeda to be a state opponent rather than a non-state opponent in the war; for us to recall that 9/11 was, on a political level, intended to bait the United States into an antagonistic role against Muslims generally, so as unite Muslim people into forming a new Caliphate. The problem here is that if al-Qaeda was a proto-state, its bid to coalesce into a real state with geographic borders and nationalistic sentiment failed and we have by now defeated it. The war against this proto-state, in other words, has already been effectively won and what we are doing now would be described as “mopping up.” (If we are “mopping up” against a functionally-defeated state opponent, then the law of war analysis applies to Al-Awalki and the drone strike ought not to cause us any substantial heartburn.)
These are all shortcuts, however, to the hard work of coming up with a truly new intellectual and legal structure, neither war- nor crime-based, for considering the challenges we continue to face. I don’t pretend to have any answers there. But will be useful to have consciously thought through the theoretical problems as we confront that difficult philosophical task.
