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At war with the law in Iraq

June 13, 2006|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 Cambridge University Press.

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's 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.

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