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The background art you see is part of a stained glass depiction by Marc Chagall of The Creation. An unknowable reality (Reality 1) was filtered through the beliefs and sensibilities of Chagall (Reality 2) to become the art we appropriate into our own life(third hand reality). A subtext of this blog (one of several) will be that we each make our own reality by how we appropriate and use the opinions, "fact" and influences of others in our own lives. Here we can claim only our truths, not anyone else's. Otherwise, enjoy, be civil and be opinionated! You can comment by clicking on the blue "comments" button that follows the post, or recommend the blog by clicking the +1 button.

Monday, March 11, 2013

Drawing the Line

One of my favorite British mystery series, shown several times on PBS but now seen only rarely, is Foyle’s War.  It relates the adventures of a police detective during World War II Britain, and continually combines wartime plot complications with old fashioned hunting down of malefactors.  One of the interesting plots involved a murderer from an aristocratic English family who turned out also to be a German secret agent.  That brings to mind one of the most obscure trivia of World War II, that German casualties included eight U.S. citizens who had become members of the German SS.  War has historically been a time of switching sides for some, and suffering the consequences, often without benefit of trial.
That is one of the often ignored complexities of the drone warfare issue.   Another is the “collateral damage” issue; from the burning of Washington by the British in the 1812 War to Sherman’s burning of Atlanta to the U.S. firebombing of Dresden to Hiroshima, death and injury to civilians has been a part of warfare.  The assumption has been that close association with the enemy brings you into the same crosshairs with him, whether you deserve it or not.  In that regard, targeted drone strikes are actually a more precise way of limiting “collateral damage” than has been available in the past.  And the argument that use of a new weapon like drones could be copied by some future adversary has never dissuaded us in the past: witness the Monitor/Merrimac battle, jet planes or Hiroshima.   The oddity of a new weapon does not mean its future misuse by the American government against the American people; jet planes are not a weapon of any U.S. police force.   So, does there remain a line that should not be crossed, and if so, where is it?
A clear line would be to avoid attacking U.S. citizens not part of an invading army on U.S. soil.  But that is already illegal, and, by the way, has been since 1812.  Even in the Civil War, solitary confederates off the battlefield were arrested, not shot on sight.  That is because adversaries on American soil fall under our police powers, and our whole justice system, including rights to trial and due process are based on the exercise of those powers.  Even on American soil, military justice requires a different system, with its own rules of procedure and penalties.  A clear difference is that police powers are exercised after commission of a crime, and not based only on intent, and that is not a limitation under military powers. Under military law a soldier can be punished for inaction, not the case in civilian law. Such differences are what declarations of martial law, rarely done and never lightly, are all about.
The absence then of police jurisdiction in an area of violent conflict is an indicator of the availability of drones.  The more complex issue is that of “targeted” drone strikes, i.e. strikes aimed at specific people, who may or may not be American citizens.  An obscure provision of the Constitution prohibits “bills of attainder”, warrants to arrest a person based only on his perceived bad character; that is the source of the prohibition under police powers against arresting someone before actual commission of a crime.  Again, that applies to those under our police jurisdiction.  Putting it all together then, the use of targeted drone strikes in parts of the world where we are engaged in armed military conflict is morally ugly, but legally acceptable.
The real question then is whether we morally can accept targeted drone strikes as ugly but necessary. Here we can fall back only on the old moral test regarding the lesser of evils:  is it the minimal bad thing we can do to avoid greater evils?  As I’ve noted, it involves actually more limited collateral damage than techniques used in the past; it does not require unusable advance planning in immediate action situations, and currently is suitable only for use in sparsely populated hostile terrain.  Its use is against those who have committed or clearly intend to commit great harm against the U.S., involving the loss of many lives.  So long as it involves the highly limited use made of it so far, then drone warfare appears to meet the “least of evils” test.  The real test will come when it becomes cheaper and still more tightly targetable.  War itself is the villain here.  It should be noted, by the way, that I am no lawyer, so my analysis involves only my version of common sense and cannot be blamed on any law school.  Then again, sometimes common sense applies even to the law.

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