Wednesday, October 5, 2011

Due Process With a Bullet

A GI in the hills of France takes aim through a rifle scope at a German soldier. Snow cakes the ground and a few bare trees cling to the ground like bony fingers. At the last moment, the German soldier sees his attacker. “Wait,” he cries out in a passable accent, “Ich bin an American citizen.”
The scenario isn’t a particularly implausible one. Any number of Germans did leave to fight on behalf of their country in the first and second world wars. And there was no question of due process on the battlefield. Members of enemy forces who fought against the United States were killed and any precedent set in that regard was set long ago.

Critics of drone attacks call them “assassinations”, but there is no difference whatsoever between a soldier sighting an enemy officer through a computer monitor or a rifle scope. There is also no legal distinction between firing a bullet or dropping a bomb or launching a missile. The nature of the projectile or delivery mechanism matters in the tactical and strategic sense, it doesn’t matter in any other way. War is war and dead is dead.

If knowing the identity of your target ahead of time is assassination, that is a subjective difference on the battlefield. And Al-Awlaki was not the first enemy officer targeted for death. Excessive nitpckers may raise legal questions about the legality of targeting enemy officers under the rules of war, but anyone who thinks the rules of war apply unilaterally and unequivocally to a terrorist group that does not abide by any rules is a hopeless case anyway.

Anyone who objects to the Al-Awlaki strike on due process grounds should also ask themselves if they would have objected to the strike on Admiral Yamamoto, the man behind Pearl Harbor and the strategic visionary of Japan’s naval war, if Yamamoto had managed to pick up American citizenship while in this country.

Should the United States then have practiced a hands off policy on Yamamoto until the war was won and he could be brought to trial? Had we done that, we might not have won the war at all. And if we try to arrest every enemy fighter on the battlefield who ever lied through his teeth while taking the citizenship oath, we’ll lose this one too.

Until the Warren Court began making up its own Constitution, there was no question about any of these scenarios at all.

An American citizen who defected to join an enemy army, or simply defected or even deserted was denaturalized. Denaturalization stripped him of his status as an American.

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