February 26, 2013
The 16-page “U.S. Department of Justice White Paper” on the killing of U.S. citizens by the U.S. Government has been receiving well-deserved condemnation among academics and experts in the field of military affairs. Most of that condemnation has focused on the astonishing claim of power to kill a U.S. citizen without “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” This is clearly out of line with all notions of self-defense in both domestic and international law.
What I want to emphasize is something a bit different. The White Paper over and over repeats the assertion that the U.S. is in a state of “armed conflict with al-Qa’ida and its affiliates.” This continues a pattern begun on September 12, 2001, a pattern that accepted a bogus “declaration of war” by a criminal group, honored criminals with the title of “combatant,” continues the arrogance of U.S. policies that have made it harder to combat terrorism, and continues to assist the recruitment efforts of the jihadists. The more we claim the right to inflict violence as we wish, the easier it is for others to recruit those who will inflict violence against us.
In other situations, the language of “war” has been used with some success as a political signal that we are really serious about a problem, such as the “war on poverty,” the “war on drugs,” and the “war on crime.” In those usages, it has a political meaning that commits resources to a problem without changing the rules for addressing the problem. But when it was used to describe a “global war on terror,” suddenly it was being used to justify actions that would be utterly illegal outside the state of armed conflict – indeed some actions, such as torture, are illegal even during an armed conflict but that’s another story.
This issue of armed conflict has plagued U.S. policy for over a decade now and has been used to justify horrific attacks on the Rule of Law. In fact, the past decade can be described as a “War on the Rule of Law” – torture, executive detentions, secret black sites, rendition to other countries, illegal wiretapping of citizens – all in the name of a “war” that does not fit the notion of “armed conflict.”
The “law of war” is now the “law of armed conflict” (LOAC). “War” is defined in U.S. Defense Department publications as “large-scale, sustained combat operations.” The white paper recognizes that international tribunals define “armed conflict” as “protracted armed violence between governmental authorities and organized armed groups.” But the paper claims there is “little judicial or other authoritative precedent that speaks directly to . . . one of the parties is a transnational, non-state actor.” This is simply not true.
The international conventions of “armed conflict” recognize that non-state actors may be involved in armed conflict. Certainly, an insurgent group fighting for control of an occupied territory, such as the U.S. faced in Iraq for several years and now faces in Afghanistan, qualifies as a party to an “armed conflict.” And military operations against a pirate haven or slave depot might constitute “armed conflict” without the long-term aspects of “war.” But a loosely aligned number of groups, with no pretensions of achieving political recognition as a government hardly qualify as identifiable entities fighting for a political objective.
Indeed, in the logic of the white paper, if there is no evidence that someone is planning an attack, then declaring a state of “armed conflict” with that person’s group is an unnecessary and unsettling recruiting tool for the bad guys.
Wayne McCormack is the E. W. Thode Professor of Law at the University of Utah S.J. Quinney College of Law. Professor McCormack teaches Constitutional Law, Counter-Terrorism, International Criminal Law, Torts, and Civil Procedure.