That was the subject line of The Nation’s e-mail yesterday (yes, I’m on their list) promoting this story, by Tom Engelhardt. At its heart, it’s an extended screed against the Obama-era drone campaign — written with almost as much venom as the same article would be written against George W. Bush. Engelhardt predicted that drones — among the most precise weapons in our inventory — would someday be classified as “weapons of mass destruction,” but that wasn’t the truly interesting part of the article. The interesting and disturbing discussion was of the Obama administration’s effort to create a so-called “legal architecture” for its drone strikes.
This is exactly the problem with the contemporary American philosophy of war. As I discussed earlier this week, we are obsessed with binding ourselves to entirely unilateral, excessively restrictive rules of warfighting. Thus we create “legal architectures” for everything from drone strikes to artillery-fire missions to our conduct in the midst of actual firefights. Translating this “architecture” down to the battle captain in a TOC (tactical operations center) or to the infantry in the streets results in confusion and uncertainty that the enemy — unfettered by any such uncertainty — ruthlessly exploits.
How about this as a legal architecture: The United States of America and its military possess an inherent right of self-defense, a right that is not contingent upon enemy location, including in otherwise-protected civilian buildings. There are of course strategic, tactical, and diplomatic considerations that factor into any decision whether to engage the enemy, but our right of self defense provides the legal justification we need.
Critically, the “legal architects” who are so concerned with moderating and precisely defining our rules for war (rules that can never anticipate every contingency) miss the most important “moderating” force in the United States military — the moral norms that govern the conduct of all but the most aberrant American soldiers. Our guys live, fight, and die to defeat a vile enemy while protecting the weakest and most vulnerable members of the culture and community around them.
An Iraq memory stands out: After days of effort, our troopers finally located and cornered insurgents who’d been lobbing mortar shells into one of our combat outposts. The insurgents scattered and ran. One of them scooped up a very small child in the middle of a village and literally held him like a football. The hovering Apache helicopter didn’t fire on him. The troopers on the ground didn’t fire. Even when they had a clear shot, they didn’t want to risk the toddler he was carrying in his arms. So they hung back, hoping he’d tire or drop the child before we lost contact. Fortunately, the 130 degree Iraqi summer heat got the best of him, and he literally collapsed into a ditch — where our guys not only saved the child but also captured the insurgent and found his entire weapons cache.
Our “legal architecture” removes agency and judgment from those most equipped to make the right decisions — our troops on the ground. Our “legal architecture” merely provides a guidebook for our enemy to exploit. Instead of promulgating regulations, I suggest we err on the side of trusting the experienced military and even moral judgments of the members of our profession of arms.
David French is a Senior Counsel for the ACLJ. A Kentucky native, David is a 1994 graduate (cum laude) of Harvard Law School in Cambridge, Massachusetts and a 1991 graduate (summa cum laude, valedictorian) of Lipscomb University in Nashville, Tennessee. David has been a commercial litigation partner for a large law firm, taught at Cornell Law School, served as president of the Foundation for Individual Rights in Education (FIRE), and currently serves as a Senior Counsel at the American Center for Law and Justice. He is the author of multiple books, including A Season for Justice: Defending the Rights of the Christian Home, Church, and School and the upcoming Home and Away: The Story of Family in a Time of War.
Used with the permission of the American Center for Law and Justice.