Criminal Justice & the Rule of Law

The Fundamental Transformation in the Law, Morality and Politics of War: Individuating The Responsibility of “Enemies”

Richard H. Pildes
Tuesday, July 24, 2012, 3:02 PM
I will soon be posting on SSRN, with my co-author Sam Issacharoff, a draft academic article that offers a broad, integrated conceptual and legal framework for understanding specific counterterrorism legal and policy issues, such as detention and targeted killings. Given the level of interest in these issues, we thought we would post the core thesis of the article here now. Here it is: The morality and legitimacy of the practices of war – or at least, the use of military force – are undergoing a fundamental transformation.

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I will soon be posting on SSRN, with my co-author Sam Issacharoff, a draft academic article that offers a broad, integrated conceptual and legal framework for understanding specific counterterrorism legal and policy issues, such as detention and targeted killings. Given the level of interest in these issues, we thought we would post the core thesis of the article here now. Here it is: The morality and legitimacy of the practices of war – or at least, the use of military force – are undergoing a fundamental transformation. This transformation is not yet directly reflected (or at least fully reflected) in the formal laws of war, but we anticipate that as the changes it evinces become embedded in the practices of states, especially dominant states, these changes in practice will eventually come to be embodied in the legal frameworks that regulate the use of force. The fundamental transformation is this: whereas the traditional practices and laws of war defined “the enemy” in terms of categorical, group-based judgments that turned on status – a person was an enemy not because of any specific actions he himself engaged in, but because he was a member of an opposing army – we are instead now moving to a world which implicitly or explicitly requires the individuation of personal responsibility of specific “enemy” persons before the use of military force is considered justified, at least as a moral and political matter. This shift applies not to any one particular type of military force, such as lethal force, but to all exertions of military power over enemies, including the ways in which they are captured, detained, incapacitated, or tried. To a limited but significant extent thus far, this transformation is reflected in the domestic law, including the constitutional law, of some countries . . . . But this quiet, subtle, and inadequately appreciated transformation has been taking place far more as a matter of practice than of formal legal development. And much of the debate about the proper uses of military force in the context of fighting terrorism comes across as so polarized or confused or unable to engage with the positions of others precisely because we are in the midst of this transformation; as a result, we do not have clear prior legal frameworks, either domestically or internationally, to draw on to implement the transformation taking place, and even more profoundly, we do not fully grasp that we are indeed in the midst of such a transformation, let alone possess the collective insight to work out the full range of implications of these changing understandings. Two principal sets of factors are driving this transformation in the morality and practices of modern uses of military force. The first is simply inherent in the unique features of modern terrorism. The key to the traditional, status-based regime of the laws of war was, of course, that conventional soldiers fought openly as members of an organized military under state control. In particular, they wore uniforms (except for covert operatives) and fought under an organized command structure. As a result, it was accepted, legally and morally, that the opposing side could treat them on the basis of their status, as simply members of the opposing fighting force. First, there was typically little dispute about their identity as a member of the enemy – the open carrying of weapons and wearing of uniforms resolved that issue. Second, there was no need to determine whether such a solider had committed any specific identifiable act that would legitimately make him a target for the use of military force. Whether a solider had fired at the opposing side, or planted a bomb, or engaged in any specific act, was irrelevant: group membership in the opposing army was sufficient. Thus on the front end of the use of force – capture, detention, even uses of lethal force – there was no need to differentiate among soldiers and attempt to individuate personal responsibility for participation in the enemy’s war machinery. Only if someone was going to tried for acts outside the permissible scope of the laws of war – for war crimes – was there a need to determine individual levels of responsibility. Finally, the same status-based, group-membership principles applied on the back end of the use of force: how long an enemy solider would be detained was not a function of his own individual responsibility for specific acts, but of his membership in the group. Prisoners of war were released collectively, as part of a group, at the war’s end or as part of mutually agreed prisoner exchanges. Terrorism inherently changes all that. Because terrorists do not wear uniforms, attributions of status based on group membership are far more uncertain and complex. Moreover, even apart from the issue of uniforms, the ability to know that an individual is part of a terrorist organization, based on anything other than his own individual acts of terrorism, is also difficult. Terrorists typically do not “join” the organization in some formal way equivalent to the wearing of uniforms. While some terrorists do swear oaths of affiliation to signify their membership in the organization, many do not; in addition, even if such an oath has been taken, obtaining proof of it is far more difficult than proof that a solider was wearing a uniform. Indeed, it is often easier to prove that an individual committed a specific act of terrorism than it is to prove that they took an oath of affiliation. Attributions of status, through group membership alone, are therefore extremely difficult to establish. Most terrorists against whom military force is used, therefore, are not identified on the basis of membership per se, but because of the specific acts of terrorism in which they have engaged. Perversely, the act defines the status. As a result of the nature of modern terrorism, therefore, these structural features inevitably and unavoidably propel the use of military force to be directed against specific individuals based on the specific acts those individuals are believed to have committed, as opposed to their status. That is why the use of military force against terrorists necessarily must shift, and has shifted, away from the traditional group-based membership attributions of responsibility to individuated judgments of responsibility. And this individuation applies – or the pressure to maintain this individuation – to every stage of the use of military force. First, the initial threshold issue of identification becomes far more complex and consequential: is this actually the specific person believed to have committed specific acts? A whole new regime (whatever its precise contours) to ensure the accuracy of the initial identification question becomes necessary – something virtually irrelevant in the traditional war context. Second, the degree and type of the appropriate use of military force up front might suddenly become relevant in a way that they are not in the traditional context. In traditional war contexts, one did not distinguish among soldiers and officers based on any sense of specific responsibility; if a barracks could be bombed or artillery directed at an advancing force, these things were done without any attempt to differentiate the different levels of responsibility or culpability of individual soldiers or officers. Today, however, it might well be that uses of lethal force, in the form of targeted killings of specific individuals through measure like drone attacks, are more appropriate and justified against high-level commanders than low-level foot soldiers. Similarly, on the back end of the use of military force, when it comes to matters like detention of enemy terrorists, it might also be proper – as a moral and political matter, at least – to individuate responsibility. We might hold the architects of 9/11 indefinitely, but it might not be appropriate similarly to hold low-level couriers or others indefinitely. In traditional wars, of course, these distinctions were mostly irrelevant; all members of the enemy, based on their status, were released as part of group-based releases. Moreover, there is a great, but unrecognized, paradox underlying the emerging individuation of responsibility as well. This paradox accounts for a good deal of the polarized positions that have circulated since 9/11 about the legitimate uses of military force. As the fundamental transformation in the practice of the uses of military force moves, even implicitly, toward an individuated model of responsibility, military force inevitably begins to look justified in similar terms to the uses of punishment in the criminal justice system. That is, if someone can be targeted for the use of military force (capture, detention, killing) only because of the precise, specific acts in which he or she as an individual participated, military force now begins to look more and more like an implicit “adjudication” of individual responsibility. A tremendous premium immediately comes to be placed on what we might call “adjudicative facts” – is this the person who did X – rather than “legislative facts” – is this person a solider in the opposing army. And as soon as military force must be tied to individuated judgments of responsibility, it is easy to understand why, for some critics of the use of force, questions will arise regarding why it is the military, and not the judicial system, that is making these individualized, adjudicative judgments. These kind of individuated judgments have not traditionally been the province of the military, after all. And there is an understandable impulse to conclude that if we are in the world of individualized, adjudicative-like judgments, the institution most traditionally designed for that function is the judicial system. Thus, as the unavoidable structural forces that drive uses of military force against modern terrorism come to depend on individuated judgments of responsibility, it is also inevitable that the boundaries between the military system and the judicial system will become more permeable than in the past. The two systems will not be able to exist in hermetic isolation from each other. The considerations that have traditionally informed one will spill over into the other – and vice versa. That is the fundamental reason that the debates over the appropriate uses of military force have been, or are likely to remain for some time, so unresolved, uncertain, confused, and polarized. In our view, the principal task of the modern morality and, eventually, law of war – the task this Article sets for itself – is to come to terms with this transformation and with the emerging imperative to individuate responsibility when using lethal force against terrorism. We believe it is a serious mistake to conclude from this inevitable individuation that the traditional civil and criminal judicial system should, as a result, fully supplant and displace the uses of military force altogether. But on the other hand, the use of military force must be adapted--as it already is in the midst of doing, under both internal and external pressures--to embrace and take fully into account the reality that “enemy” responsibility in this era must be individuated. The military, for example, is going to have to generate (and is already generating) procedural protections, analogous to those used in more traditional adjudicative settings but adapted to the unique context of military force, that provide sufficient accuracy and legitimacy to ensure that these individuated attributions of responsibility are being made through credible processes and structures to make them as accurate and fair as possible. That is true whether the military force at issue involves detention or targeted killings. To the extent the government as a whole succeeds in generating the novel structures, institutions, and processes necessary to legitimate the use of military force in an age of individuated enemy responsibility, these uses of force will be more widely accepted. Our aim is to contribute to that project.

Professor Pildes is the Sudler Family Professor of Constitutional Law and Co-Faculty Director for the Program on Law and Security at NYU School of Law. His scholarship focuses on legal issues concerning the structure of democratic institutions and politics, separation of powers, administrative law, and national-security law. A clerk to Justice Thurgood Marshall at the United States Supreme Court, Professor Pildes has been named a member of the American Academy of Arts and Sciences, a Guggenheim Fellow, and a Carnegie Scholar.

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