This Blog covers my interests in history, law, science and literature. I also record events today so that I will have a record tomorrow of events. In this way, I fight the Orwellian editing of history that is all-too apparent in the information age. If you are not a libertarian conservative, you might ask, why isn’t this blog more positive to your point of view. You might as well ask why George Orwell's 1984 wasn't more positive to your point of view.
Releasing a list of criterions needed to make or not make the “kill or capture” list would be reassuring to thoughtful critics who like to make sure that government officials are not being capricious, but it would also be reassuring to the enemy.
War is a matter of move and counter-move. Once it knows the criteria for making the list, al Qaeda would simply recruit American citizens and constrict their activities sufficiently to avoid a drone strike. Al Qaeda has already changed its methods to avoid strikes. In Afghanistan, Arab men don’t always send their wives to eat in a separate room (as is their custom)—they know that U.S. planners consider the women to be civilian non-combatants and will not launch missiles at them while the women are present. Al Qaeda now holds military meetings in mosques because it has learned that the U.S. is disinclined to strike houses of worship, especially during prayer times. The more you teach the enemy, the more he learns to avoid drone strikes
We have forgotten that we are at war. Al Qaeda is not a criminal group to be prosecuted, but an enemy to be vanquished.
In criminal cases, we wisely restrict the power of police and prosecutors. People are innocent until proven guilty and numerous procedural protections force the government to present a compelling case. Even if we could show that the Miranda case led to the nearly 500% increase in violent crimes from 1965 to 1990, most Americans would still support that Supreme Court decision. We fear injustice more than criminality.
In war, we wisely give the president wide-latitude to win and do not treat war-fighting like crime-fighting. In law and order, we strike a balance in favor of the accused. In war, we strike a balance in favor of our forces and our civilians.
There are good reasons for treating different things differently.
Crimes are prosecuted after they occur; no one wants to wait for the next September 11 attack before any action is taken.
In criminal cases, both police and prosecutors have nearly infinite time to investigate and try the case. In war, both sides are constantly taking action. Opportunities for counter-strikes appear and disappear quickly. Decisions must be made in a real time with limited information.
We already know what happens when military decisions are hampered by quasi-legal procedures—it is summed up in “Black Hawk Down.” In the Clinton years, the president purposely forced commanders to undergo lengthy approval processes for each operation. The easiest operation to get approved is one based on an operation that has already been approved. Thus, commanders in Mogadishu carried out six almost-identical operations—using the same type of helicopters in the same order, the same armament, the same deployment pattern and so on. Heavy armor, which did not figure in previous operations, was not permitted in this one. When they did it a seventh time, after winning approval, there was no element of surprise. Scores of American soldiers were killed or wounded and the operation was a humiliating defeat. We should consider the deaths of U.S. forces in Somalia what the Left calls a “teachable moment” and learn its hard lesson.
Predictably following legal procedures is a virtue in law enforcement and a vice in war.
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