Saw this commentary in the Times Op-ed section
At war with Iraqi law
Killing Zarqawi robbed Iraqis of the chance to bring him to justice.
By David Luban, DAVID LUBAN is a professor at Georgetown University Law Center and has taught for the last year at Stanford Law School. His book, “Legal Ethics and Human Dignity,” will be published in 2007 by CambridgeJune 13, 2006
LAST WEEK’S killing of Abu Musab Zarqawi may mark a turning point in the struggle against terrorism and the insurgency in Iraq. But the fact that he was killed by a pair of U.S. bombs, rather than captured and turned over to the Iraqis for trial, does no favors for Iraq in its struggle to establish the rule of law. Nor does it help that the bombing killed five others — maybe terrorists, but maybe innocent civilians.
Under the laws of war, Zarqawi was undoubtedly a legitimate target. Enemy commanders are fair game. And no one outside his family should shed tears for Zarqawi, who maimed and murdered hundreds with ruthless brutality. Moreover, there may have been valid military reasons to blow him up rather than capture him. According to Defense Secretary Donald H. Rumsfeld, military officials feared that going in on the ground risked Zarqawi’s escape, even though U.S. and Iraqi forces had surrounded the house Zarqawi was in and, indeed, had taken over the entire village.
Nevertheless, there is something disturbing about targeted killing when capture is possible. Suppose that police in the U.S. surrounded the house of a domestic terrorist — let’s say John Allen Muhammad, the Washington-area sniper. We would be outraged if the police simply blew up the house and everyone in it. Everyone knows that the police shouldn’t act as Muhammad’s judge, jury and executioner, and no one would accept the explanation of “collateral damage” for the deaths of the other people in the house. Ruby Ridge and Waco were disasters, not victories.
In an essay in “The Future of the Army Profession,” Tony Pfaff (an Army lieutenant colonel and a veteran of the Persian Gulf and Iraq wars) explains that the professional morality of police and warriors differs sharply. In Pfaff’s words: “Police are always looking to use the least force possible. But Marines and soldiers are trained to defeat enemies…. They are always looking to use the most force permissible.” The gap between police ethics and warrior ethics creates tough decisions in Iraq, where U.S. troops function as both warriors and police, where some adversaries are enemies and others are criminals, and where innocent civilians are everywhere. Pfaff asks the crucial question: “Do civilians have a right to expect the kind of protection U.S. citizens would receive if the same kinds of operations were conducted in the United States?” On a traditional battlefield, the answer is obviously no. Combat is no place for search warrants, due process or proof beyond a reasonable doubt. And, although the traditional rules of warfare forbid intentionally targeting civilians, they do allow attacks that harm civilians, provided the military advantage is proportional to the harm. Human and civil rights don’t vanish in wartime, but they shrink dramatically. The problem is that in the war on terror, it isn’t obvious where the battlefield ends.
That problem extends far beyond Iraq, for the Bush administration insists that in the war on terror, the battlefield can be anywhere and the president can declare where the realm of law ends and the realm of war begins. That is why Jose Padilla, a U.S. citizen arrested in Chicago, could be declared an “enemy combatant” and held for years without trial. That is why hundreds are interned in the legal black hole of Guantanamo, perhaps indefinitely — and why, when three detainees there killed themselves Saturday, Guantanamo commander could proclaim their suicides an act of war and not the product of the despair of those without rights, without a future. In a war on terror that may go on for decades, the result will be a decades-long reduction of peacetime rights, with civil liberties debased to the level of battlefield rights.
To avoid that danger, we should opt for law whenever we have the choice. This year marks the 60th anniversary of the Nuremberg trials, and we would do well to remember how they came about. Winston Churchill wanted to kill the top Nazis without a trial, and Josef Stalin wanted to kill the German officers as well. It was the Americans who insisted on using law where it had never been used before and giving the Nazi leaders fair trials. That decision heralded the human rights revolution and marked a decisive advance in the rule of law.
In Iraq, the capture and trial of Saddam Hussein, despite its flaws, represents the legacy of Nuremberg. By bombing Zarqawi rather than arresting him, we robbed the Iraqis of the chance to do justice to a mass murderer — and we proclaimed, once again, the supremacy of war over law.
OK, this is my section where I get to open my trap. Forgive me if it isn’t as regal as Dr Ludan, I am tired from being in the heat all day. No, don’t forgive me. I am to tired for sentiment. LOL
You know, it must be nice to sit in some air conditioned building, with a staff and nice job, and some 70,000 dollar luxury boat in the parking lot, and write about how you feel the use of a bomb to kill a terrorist is not in the best interests of the country. I know that sounds pretty common, somebody who blasts somebody else by saying “Must be nice to be on the other side.” Well, no matter how hard I try, I just don’t see where people get this stuff from, so I am going to use that opening.
On the one side, I am sure Dr Luban is a professional and does a lot of research before he puts pen to paper. I am sure he is well respected and highly regarded in his field, with many years of experience in ethics and civil rights, criminal justice, and the responsibility of lawyers. He writes with flair and purpose, his comments are direct and recommendations are very well crafted. I am sure Dr Luban is a master in his chosen fields, a brilliant professor, and a wonderful author. That being said, I am very sure that Dr Luban has never been on the wrong side of an RPG. Ever had an IED go off 20 feet from your head, Dr? Ever go up against Zarqawi’s evil minions firing AK-47’s on an open street? Ever wake up in the morning and wonder if today was your day to die? Probably not. So let me say a couple of things from this side of the street.
Dr Luban says that by killing Zarqawi, we have done no favors for the Iraqi’s struggle to establish law. I don’t believe this to be true at all. There is an overwhelming feeling among the average Iraqi citizen that there is no real laws. It’s difficult on a daily basis to establish order, not because it can’t be done, but because there is an incredible amount of corruption, at every level. Ministries, agencies, militias, religious groups all have their own agendas here, and it is impossible to tell where the allegiance of any one person may go from time to time. I believe that killing Zarqawi proves to the Iraqi people that the government means business. The Iraqi police were the first one on the scene (a VERY big thing here, because it appears to the local people that the attack was done with the help of the Iraqi police) and they were doing a good job at the scene. The people over here understand that the leader of Al Qaeda was killed, and that means that if you are a terrorist, sooner of later, we will find you and kill you. Now, had Zarqawi chose to give himself up freely, I am sure that the government would have been more than happy to put him on trial. Unfortunately, that wasn’t the case, and the problem is that there really isn’t much of a law to go on. All things considered, the people (especially the Shia) are glad he is dead. The struggle to establish law will go on, and in time they will get it right. Zarqawi, however, will not be around for that glorious day. Pity.
That leads me to my next point. He assumes that when Donald Rumsfeld says that we had the village surrounded, he was completely surrounded and there was no way he was ever going to get out. Ever seen an Iraqi village on the map? There is a huge tactical problem involved in attempting to surround a village in this country. I have participated in sweeps that encompass entire sections of a village, and it takes a considerable amount of manpower to do that. Ever street corner, every building, every hole in the ground has to be covered, and still its even money that if you were dedicated, or you know the area, then you know where to go and can get out. Sure, we could go in and try to arrest or contain him, but the collateral damage involved if Zarqawi wanted to stand and fight would have been much more significant. Yes, it’s sad if anybody that may have been in the house was an innocent victim, but terrorists in this country don’t go to the houses of innocent people, take over, and spend the night. I would bet serious dollars that he was at a home of supporters, suppliers, or strategists who knew who he was. He wasn’t going to give himself up, and the Iraqi forces, regardless of what the higher ups say, are not readily able to take on the kind of task that would have been required to root him out. This isn’t the same as capturing Saddam, this guy was going to fight back. Easier to take him out of the equation with a bomb, than with a blowgun.
That made me think of another quick question? If we wanted to save him for Iraqi justice, would you be the guy to give him the subpoena? I will be more than happy to drop you off so you can go in and walk him out.
Dr Ludan asks the question “Do civilians have a right to expect the kind of protection U.S. citizens would receive if the same kinds of operations were conducted in the United States?” To answer, yes they do. I believe every government should provide the kind of protection that US citizens receive. The problem is that not every government is the US government. The police in the US don’t get rockets fired at them. The citizens in the US don’t get murdered in broad daylight because they were born a certain religion. The citizens in the US don’t get killed because they work for the government as a street sweeper. The citizens in this country do. You can’t compare the rights of the US citizen with the rights of the Iraqi citizen. In America you are born with those freedoms. In Iraq, you die because you used them. You simply can’t compare the rights and privileges the US citizen has to those of any other country. To do so assumes that those people in the other country enjoy the same freedom and protections that Americans do. Basically, you are comparing Canadians and Australians to Americans. Not much difference there.
There is something that needs to be understood here. If you are a criminal, at least in America, you have rights. Those rights are guaranteed by the Constitution and the Bill of Rights, and if you are living in the US, you have the ability to draw upon them to protect yourself. If, however, you are an enemy combatant, you do not have those rights afforded to you. How ironic it would be if we captured Osama Bin Laden, then afforded him the same protection under the US law that he tried to destroy. If you are an American citizen, and you choose to make war against your own country, then you should not be entitled to its protection, and if you are Jose Padilla, aka Abdullah al-Muhajir (which means something like warrior who comes from a foreign land) well sorry buddy, you really should have listened to your mother when she said “Bad association spoils useful habits.” Better luck in your next life. If you are currently residing in a cell in Guantanamo Bay, because you were captured and you are/were/will be/was/continue to be a terrorist, and you decide to hang yourself (Muslims don’t commit suicide, they martyr themselves, which is a whole story in itself) well, I guess that’s just the way it is. The fact that you hung around this many years is still some kind of miracle. I guess you must have some story to tell that you haven’t told yet. The end state of this is that you can’t assign these people the rights and freedoms of the citizens, because these people have chosen to fight against those very same citizens. How many people were killed in the Trade Center attacks, the Pentagon? How many people were killed in a field in Pennsylvania? We can’t assign these people the rights that those who died, never got to use. I recall Timothy McVeigh died, and I didn’t see to many people crying about that.
You say “In a war on terror that may go on for decades, the result will be a decades-long reduction of peacetime rights, with civil liberties debased to the level of battlefield rights.” For the average American, even the average American prisoner, his rights will not be debased. That is because there are people who believe in the rights of its citizens so much that they would fight for years to get people to vote to pray in school, or not pray in school. That takes dedication, belief, and a sincere desire to do the right thing. The Nuremburg trials took place after the war. The trials were for war criminals, much like the trial of Saddam Hussein is now. Zarqawi is not a war criminal, he is a terrorist. He kills for the sake of fomenting fear, not for some government. Al Qaeda is not a government; it is, essentially, a corporation, run by a CEO, which needs money and supplies to continue operations. How do you destroy a corporation? You destroy the leadership. You cut off the supplies and the money. You stop buying the product. Maybe a couple of 500 pound bombs will keep the wannabe’s from going to the store.