Warfare vs. war fair

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Of Drones & Madmen in Times of War

"Everyone is as God made him, and often a great deal worse."

- Miguel de Cervantes

Well said, man behind the atavistic 'citizen' of the world Miguel invented. No respecter of national or even behavioral boundaries, he. Most called him mad, others saw a simple bored fool, too much in the thrall of romantic notions of a long-ago doctrine known as chivalry. We all know where that got him -- immortality as well as voluntary undoing, among other things. Ultimately, Senor Cervantes causes us to examine and reexamine our concepts of what constitutes reality.

How is this relevant to our subject? Despite its claim to being a truism, 'all's fair in love and war', in the course of increasingly technological warfare the traditional concepts of what is fair vis-a-vis ostensibly treasonous behavior by a technical citizen has gotten a bit unreal.

This has proved a thorny question inasmuch as, despite pronouncements of international law and its enforcement in civilian courts of jurisdiction, military tribunals persist for the prosecution of various accused U.S. citizens. Without going into the legalistic labyrinth (a link is provided below for the bravest among you), look at this rare convergence of views on the U.S. Supreme Court in the 'Hamdi v. Rumsfeld' case:

"Justice Scalia, joined by Justice Stevens, took the strongest position against the legality of the indefinite detention of Hamdi. In a forceful dissent, Justice Scalia agreed with Justices Souter and Ginsburg that the AUMF was not sufficient authorization for a detention without a habeas proceeding, but went further to conclude that no combination of congressional and presidential authority was sufficient absent a congressional suspension of the writ of habeas corpus. Because Congress has not suspended the writ, the government's only two options were to charge Hamdi with a crime or to release him."

Hamdi, a U.S. citizen captured in Afghanistan, was sent to Saudi Arabia provided that he relinquish his citizenship. Padilla, also a U.S. citizen, was transferred to a civil court because the Bush administration worried the Supreme Court would rule his detention unconstitutional. He was convicted and imprisoned on terrorism charges.

Now, what to do in the case that capture or combat killing are, at best, impracticable or inapplicable. Enter the matter of one such 'citizen' reportedly killed in a drone attack which also brought a most wanted villain, also born in the U.S. (see my article 'Yemen Relevance: Of Old Arabian Kings and Their Coles').

First, the concept of citizenship: since Ancient Greece and Rome, this has connoted certain rights from, and responsibilities to, the granter of such status. In modern times, and whilst this concept is somewhat imprecise in general, it implies entitlement to humane protections, including the right to due processes such as a fair trial upon any charges brought by the state.

Again, for purposes of discussion, we will assume that capture of a citizen who is abroad, in hostile territory, is difficult if not impossible without risking other citizens lives, civilian and/or military.

Objectively reliable intelligence garnered by authorized officials of the citizen's state sufficiently demonstrates hostile, even treasonous actions, however indirect. Since this 'intelligence' is almost certainly classified, the circularity of the situation presents itself, but not to any court of competent jurisdiction, at least not under seal, and, if under seal, to the judge(s) alone, not opposing counsel.

Sometimes a passport is just a passport.

Speaking of passports, recall the strange case of Lee H. Oswald, who, after officially renouncing his citizenship, openly spending considerable time in Russia, then an avowed enemy of the U.S. during war (albeit, 'cold'), was given airfare for his return to the U.S., his citizenship restored. While it is likely that he was what he said he was, a 'patsy', his right to counsel and fair trial was, conveniently dispatched by some slob named Ruby who worried for Jackie Kennedy's state of mind. Please.

Legalism -- often confoundingly complex, what with The Universal Declaration of Human Rights, The Geneva Convention and its Protocols, the U.S. Constitution, etc., along with truth -- is often the primary victim of war. Love it or hate it, this war on terrorism was authorized by Congress, Hillary Clinton on the 'aye' side. And, whilst usually cited by the political right for the wrong 'reasons', the Nuremberg Laws, including the Reich Citizenship Law of September 15, 1935, were nothing if not unjust, arbitrary and capricious.

What if such a victim is a mercenary? Six strict requirements must apply, including the factor of monetary gain. Even if shown factually, such a one is still entitled to a fair trial.

As this excerpt from the website of so neutral and humanitarian entity as the International Committee of the Red Cross so pointedly demonstrates, the fog of war is but compounded by life-saving (and life-taking) technologies:

"Precision operations have opened up new possibilities for avoiding the harm to civilians and their property that is the inevitable result of armed conflict. Further, as weaponry becomes more precise, interpretation of international humanitarian law is becoming increasingly demanding for an attacker. So long as such interpretations do not depart from the law or ignore the realities of military necessity, this too is to be welcomed." ( ICRC, Precision Attack and International Law, International Review of the Red Cross, Micahel N. Schmitt, Article No. 859, September 30, 2005).

That last sentence, largely a balanced contradiction, captures the dilemma, leading to brain fog, kissing cousin to that of war.

Sometimes a passport is just a passport.

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Updated Jan 2, 2019 12:29 PM EST | More details


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