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The Magistrate

The Magistrate's Journal
The Magistrate's Journal
February 6, 2013

A Note On 'Drone Strikes', Ladies And Gentlemen

The largest problem in discussion of this matter is that it does not fit neatly into familiar categories, leaving people to choose that which suits them best, rather than that which might be the most accurate fit.

The source of this poor fit with existing categories is that what is actually occurring is a passage of hostilities between a state actor and a non-state actor, namely the United States and a loose-knit movement of Islamic fundamentalists who manage to wield on occasion in places military power approximating that of an established state.

That such hostilities exist, and are pressed from both sides, is beyond argument: that is a fact. One may view the hostilities as more or less justified from either side, or as being of one degree of seriousness rather than another, and adopt a view accordingly of what policies may be most appropriate to their conduct, but to deny that such a state of mutual, and mutually pressed, hostilities exists, is to remove oneself from sensible conversation, waving a flag inscribed 'Carry on without me, folks, I am not taking this any more seriously than you ought to take me.'

Traditionally, states faced with hostilities pressed by a non-state actor refuse to treat adherents of the non-state body as belligerents, but rather consider them simply as common criminals, engaged in a variety of felonies. This is, however, a political decision, not something required by existing law. States make this decision, when they do, because they feel it casts the non-state actor in a bad light, and makes it easy for people to ignore the political aims of the non-state body, so that no one needs bother considering whether these aims are legitimate or not. The benefits to a state from this course are obvious, but it does come at some cost, at least to a state which has some tradition of liberty under law. This cost is restriction of state action against the hostile non-state actor to the bounds of ordinary police enforcement of criminal law; the whole panoply of warrants for search and arrest, trial with evidence and defense, and so forth. This can render dealing with the hostile non-state body somewhat more difficult, and more time consuming, all of which may well allow the hostile non-state body appreciably greater scope for action.

But a state may well decide, and certainly is within its rights to decide, to treat the non-state body pressing hostilities against it as a belligerent party, as an object for the war-fighting power of the state to engage. While this does elevate the political status of the non-state actor somewhat, the state may gain benefits more than commensurate with this. Put bluntly, at war, the state is free from any constraints of police enforcement and court adjudication of criminal law in its treatment of adherents to the the non-state body it regards as being at war with it. No one ever served a search warrant on a pill-box, no one ever set out to place members of an enemy infantry regiment under arrest and bring them to trial. Enemy combatants in the field are simply killed, and if taken alive, are simply held prisoner until hostilities are concluded. The state is bound only by treaties it has entered into regarding the conduct of war, into which concepts of criminal law and civil liberties simply do not enter.

The third possible category which exists is insurrection. Insurrection must arise within the bounds of a state, and be conducted by persons who are inhabitants or citizens of the state, and are expected to show it loyalty accordingly. If one takes an expansive view of the United States as Empire, it would be possible to class the hostilities the loose-knit body of Islamic fundamentalists are pressing against the United States as insurrection: one would have to regard them as subjects of the Empire, whose writ runs over the whole of the Islamic world. If one does view the thing as, in some sense, an insurrection against imperial rule, the thing is simply brought back to the case of warfare, for a state's or an empire's relation to an insurrection is one of war, where the insurrection is powerful enough to maintain control of some portion of territory within its bounds, and field organized armed forces. This condition, as a matter of fact, obtains in several places at present ( providing one is prepared to accept, even if only for purposes of argument, that those places are within the imperial bounds of the United States ).

It is the presence of citizens of the United States among the adherents of the non-state body engaged in hostilities which gives this categorical uncertainty ( or in some cases, deliberate blurring ) its great heat. Such persons, if the matter is regarded as not being warfare ( commonly on the grounds that war occurs only between states ), would be entitled to the full range of protections and rights under the Constitution. If the matter is regarded as warfare, however ( on the reasonable ground that the non-state body they have cast their lot with meets the qualifications for a belligerent party ), then such persons are simply enemies in the field, and liable to all the hazards of participation in war against a state, with their citizenship becoming immaterial, save for its placing them at hazard of prosecution for treason should they be taken alive.

My personal view is that the matter ought to be regarded as warfare. A citizen of the United States who adheres to an external body engaged in hostilities with the United States is just one more combatant in the field against the United States, with no right to be treated as anything but a combatant in the field against the United States. It is proper for the authorities of the United States to continue to treat such a person as a citizen, if he is taken alive. But the authorities of the United States are under no obligation to take extraordinary steps to take him alive, rather than kill him in the course of military operations against the belligerent party he has joined.

And to forestall likely reflexive responses, had the previous administration killed al' Alawi in the Yemen, my attitude would not be different by a whisker.

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