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Military Law Is to Law as Military Music Is to Music

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Jeh Charles Johnson, General Counsel of the U.S. Department of Defense, on Friday admitted that murder by drone is not a form of law enforcement:

"Some legal scholars and commentators in our country brand the detention by the military of members of al Qaeda as 'indefinite detention without charges.' Some refer to targeted lethal force against known, identified individual members of al Qaeda as 'extrajudicial killing.'

"Viewed within the context of law enforcement or criminal justice, where no person is sentenced to death or prison without an indictment, an arraignment, and a trial before an impartial judge or jury, these characterizations might be understandable."

Indeed, pretty darn understandable.  So, what's the way around it?

"Viewed within the context of conventional armed conflict -- as they should be -- capture, detention and lethal force are traditional practices as old as armies. Capture and detention by the military are part and parcel of armed conflict.[13] We employ weapons of war against al Qaeda, but in a manner consistent with the law of war. We employ lethal force, but in a manner consistent with the law of war principles of proportionality, necessity and distinction. We detain those who are part of al Qaeda, but in a manner consistent with Common Article 3 of the Geneva Conventions and all other applicable law.[14]

[13] Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) ("detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war").

[14] Geneva Convention Relative to the Treatment of Prisoners of War, art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.

The notion that U.S. treatment of prisoners complies with the Geneva Conventions is ludicrous, but so is the basic premise here that murdering and imprisoning people is justified because it is part of conventional armed conflict.  There is nothing conventional about soldiers at desks on other continents flying drones, or soldiers jumping out of helicopters to kill and kidnap in residential neighborhoods.  There are no front lines, no trenches, no battlefield, no army, no opposing army, no opposing nation, no territory fought over, no separation between civilians and military action.  That armies have always killed and captured people doesn't legalize killing and capturing people in any, much less in all, circumstances.  Armies have tortured, looted, and raped as well. 

"If I had to summarize my job in one sentence: it is to ensure that everything our military and our Defense Department do is consistent with U.S. and international law."

Hmmm.  Is it consistent with this law?

"The High Contracting Parties solemly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another. The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means."

How about this law?

"The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice."

Or this law?

"The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States . . .

"To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

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http://davidswanson.org

David Swanson is the author of "When the World Outlawed War," "War Is A Lie" and "Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union." He blogs at http://davidswanson.org and http://warisacrime.org and works for the online (more...)
 

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