Squaring the Culture

Thursday the US Supreme Court decided the President was out of bounds to establish a military tribunal for a captured al Qaeda operative. The decision turned largely on whether this man, bin Laden’s personal driver, violated “the rules of war;” without that clear indicator, they could not find justification for a tribunal. And they claimed the government made no attempt to prove he’d violated the rules of war.

They were wrong; they were looking only at the man, not at the war.

Al Qaeda, by its very existence, violates the rules of war — so every member of that group, no matter how inconsequential, violates the rules of war by joining.

Al Qaeda is an army without a country. Its announced purpose is to create a pan-Islamic Caliphate by overthrowing non-Islamic governments. It further announced that its purpose, and the purpose of every Muslim, is to kill all US citizens, whether civilian or military, and their allies everywhere (see the US State Dept’s comments on terror organizations.) Their purpose is a declared war against civilians. The World Trade Center attack was merely the last in an escalating series of violent acts directed against civilians.

War against civilians is a violation of the rules of war, plain and simple. It is defined as a war crime by the UN War Crimes Commission, which allowed the formation of military tribunals in 1947 for “devastation, destruction or damage of public or private property not justified by military necessity… murder, extermination, enslavement, deportation or other inhumane acts committed against any civilian population….”

Thus, al Qaeda’s very existence is a violation of the rules of war. And like the guards at concentration camps in Nazi Germany, the driver of bin Laden’s car is a participant along with bin Laden himself in waging illegal war. (See notes concerning the American Military Tribunals at Dachau for relevant parallels.)

If we’re looking for a precedent to apply, to determine exactly what legal category al Qaeda falls into, consider piracy. Pirates are combatants not aligned with any particular nation, who endanger travelers by committing thefts and murders on the sea. Pirates are considered universally by sovereign states to be “hostis humani generis” (enemies of humanity). (Wikipedia defines piracy here.) Typically, when caught, they’re executed.

The major differences between al Qaeda and ordinary pirates are 1) al Qaeda commits its murders on land as well as on the sea; and 2) their goal is more political than financial. Neither difference changes the diagnosis. The consequence of murdering on land is simply that they’re in violation of the laws of specific nations when they commit their crimes, whereas pirates on the sea often commit crimes where jurisdiction is hazy. The consequence of political motivation is nothing at all. The acts are the same — combatants not aligned with any nation commit acts in violation of the rules of war.

Anything we do to al Qaeda detainees, short of hanging them, is leniency not required by international law. If we executed them after a brief military review, we would be perfectly within universally recognized international law.

Watch for Congress to quickly correct the Supreme Court’s mistake… and to keep doing so until it’s in a form the Court cannot overturn.