Pundits have for weeks been erroneously comparing the issue of “killing Americans” with drone strikes abroad to the brother-against-brother character of the U.S. Civil War of 1861-1865. It’s time to point out that the Civil War is a false analogy to the drone-execution issue. This false analogy muddies the waters, and the public debate over executive privilege and the people’s rights needs to proceed without it.
There are two basic aspects of the Civil War that make it different from the War on Terror, in the ways that matter to the drone issue. One is an obvious feature of the Civil War: the South formally seceded from the Union and called itself a separate nation, the Confederate States of America. The Confederacy thus severed its citizens’ compact with the U.S. Constitution. Plotting acts of terrorism doesn’t sever a U.S. citizen’s constitutional rights; it makes him prosecutable under U.S. law, in accordance with the protections afforded him by the Constitution.
An American citizen’s constitutional rights do not, in my view, apply to foreigners who plot or commit terrorist acts against America. My point is not that all terrorists “deserve” constitutional protection in our justice system, if American citizens do. But in terms of where executive privilege stops, in the matter of executing terrorists or in other ways denying them due process under the U.S. justice system, the bright line is American citizenship. Even if the citizen is Anwar al-Awlaki.
The other relevant aspect of the Civil War is less discussed, however. That aspect is its military character. The Civil War was, for the South, about holding territory by force of arms, and administering it as a separate nation. For the North, it was about retaking territory by force of arms. The mode of the conflict was therefore the form in which pitched battle was met in the mid-19th century. The Civil War was about moving armies over territory and fighting for ground.
It was thus inherently about orchestrated opportunities for killing soldiers in pitched-battle combat. Given the objectives on each side, it could not have been about anything else. Lincoln had no intention of merely bottling up the South, absorbing long-term costs – political and military – and letting time be his main ally. The South had no intention of merely accepting “occupation” and fighting a debilitating guerrilla campaign over decades to wear the Union down. Both sides sought to establish sovereignty over the Southern states’ territory as soon as possible, envisioning a future of pacification and peace, according to their separate political concepts.
Given these factors, the necessity for killing Confederate soldiers had asignificance to the objective that it does not have in the War on Terror. The only way to win pitched battles on land is to kill the enemy soldiers. That makes them eventually stop fighting, in a given battle. Over time, it reduces their ranks and their scope of action, until their leaders either accept defeat or set themselves up for annihilation. The end-state of this process is the winning side controlling the territory in question and dictating terms to the survivors.
The War on Terror does not have this character. Although it is, ultimately, about whose view of political morality will prevail on territory, the mode of the conflict is not pitched land battle. Therefore, the mere killing of enemy combatants is not inherently significant to America’s objective. It is important to have that clear. We are not advancing our own security, merely by killing terrorists. Read that again, please, and understand it. In the Civil War, it was inherently significant to the military and political objectives to kill combatants. In the War on Terror, it is not.
In Afghanistan, where the American objective has been to put territory under the control of a friendly, moderate local government, it is significant to the objective to kill the terrorists who attack friendly troops and civilians. Those terrorists are acting as guerrillas, seeking to deny us the territory that will fulfill our objective. Their relation to our objective in space and time is what makes it essential to kill them.
But that’s not what Anwar al-Awlaki – a U.S. citizen – was doing when he was executed by a drone strike in Yemen. He wasn’t involved in a tactical campaign to deny us territory (as the Taliban are, for example). He wasn’t facing American troops, armed and recalcitrant and posing an immediate threat to their lives. At the time of his execution, there was no tactical, operational, or strategic necessity to kill him to advance the U.S. objective in the War on Terror.
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