War v. Law Enforcement

NY Times: US Officials sued over deaths in Yemen
Fox: Families of US citizens killed in Yemen drone strikes file suit
The families of two American members of the Al-Qaida in the Arabian Peninsula organization are suing the American government for killing their relatives with missiles fired from unmanned aerial reconnaissance craft - UAVs.
It seems, they feel that being a member of a quasi-state organization that has declared war on the United States does not qualify their family members to be shot on sight. The American Civil Liberties Union, who I sometimes think thinks the U.S. Constitution applies worldwide, has taken their case to federal court to charge the deaths were wrongful because the individuals involved were never charged with any criminal act and thus deprived of their constitutionally guaranteed due process.
Ok, first of all, I haven’t a clue how this case will play out in the courts. I just don’t know where the courts will come down on this issue or whether the courts will even accept that they do have jurisdiction in the case (a very real possibility).
The problem as I see it is that what we have here is a failure to understand the difference between “war” and “law enforcement.”
In war, the rules of law enforcement as applied in the U.S. do not apply. I am sorry, but the bad guys do not have to be given an opportunity to surrender. They don’t have to be read their constitutional rights when they are arrested or detained. In fact, they can be killed by just about any means available. Ok, international law, as reflected in the Geneva/Hague Conventions, does say that certain weapons really aren’t allowed, but that is open to interpretation.
For example, it really isn’t kosher to use a 2000-pound bomb to kill a single person standing in the desert. Not to say that it doesn’t happen but somewhere in the language of the conventions are passages about the “appropriate” use of force to kill people.
Another example, the white phosphorus used to generate smoke screens and to mark targets is not supposed to be used directly against dismounted troops. Phosphorus does create rather nasty wounds that are difficult to treat, as I can attest to. However, it can be used against buildings and vehicles in the open. What happens when there are dismounted troops next to armored vehicles? White phosphorus is a perfectly valid and effective weapon to use on armor (it burns through it), but what about the poor troops outside? Are you supposed to ignore what might be your best weapon against the armor in order not to violate the prohibition against using it against troops in the open? Good question and one my soldiers and I would debate around a campfire at night. Remember, however, when your life is at stake, there are no rules. It is kill or be killed and you want to survive.
Okay, in this case, the father was killed while riding in a car that was hit by an air-to-surface missile. Now was that a legitimate target? Well, he was in Yemen, but the Yemeni government lets U.S. UAVs fly over its country assisting in its fight against the Al-Qaida bunch.
Again, does that make it illegal, as the ACLU contends, to kill a member (who happens to be an American) who is aiding, abetting and controlling portions of a group that openly admits it is waging a war against the United States? Now, in a ”real” war between two nations the answer would not only “yes” but “HELL YES!”
But then is the war with Al-Qaida really a war? The ACLU would tell you it isn’t and in that case the law enforcement paradigm holds: You have make every effort to arrest the person alive (regardless of the hazards to the persons making the arrest), read them their rights, offer them an attorney and tell them that anything that they say can be used against them, bring them to a court in the U.S., charge them, try them … and then maybe, just maybe, you can put them to death. This is known as due process.
This standard really is hard to apply in combat … and so the debate is whether the use of armed UAVs is governed by the laws of crime or the laws war? And what if, the American is only one of several people in the target area – non-Americans and some of them are combatants and some of them aren’t? And then, what if they are not innocent civilians but don’t qualify as combatants according to the definitions in the conventions? The conventions allow you to summarily (without trial) execute illegal combatants and spies.
Murky, isn’t it?
This is the problem with the so-called Global War on Terror. Is it a war-war or is it a law enforcement “war” like the war on drugs or organized crime?
Some, such as me, see the GWOT as a war-war. We authorized the president back in 2001 to seek and destroy the parties responsible for the attack on the U.S. on 9/11. In essence, Congress declared war on Al-Qaida. It didn’t issue a “declaration of war” in the technical sense in that those only really apply to inter-nation conflicts. Al-Qaida really isn’t a nation, although it has at various times controlled parts of several, including Yemen and Afghanistan.
Others, such as the ACLU, say it is not a war but a law enforcement problem, even if American laws don’t apply outside the boundaries of the United States (as a general rule) and very few nations are going to enforce those laws for us. In many cases, those governments are going to actively contest the right of U.S. law enforcement agents operating in their country to capture miscreants.
Personally, I think the case should be thrown out by the first U.S. District Judge that gets the filing as a frivolous lawsuit because the law enforcement paradigm does not apply and the court, therefore, has absolutely no jurisdiction on which it has a right to hear the case.
Sorry, folks, but your relatives chose the bed they made … and unfortunately for you, they got blown up.
Besides, if your relatives had the chance, I am pretty sure they would have tried to kill me.