Just Answer the Freakin' Question Already

Kevin Drum asks a simple question about the recent didn't-quite-get-Zawahiri attack in Pakistan:

For the sake of argument, let's assume that we had pretty good intelligence telling us that a bunch of al-Qaeda leaders were in the house we bombed. And let's also assume that we did indeed kill al-Masri and several other major al-Qaeda leaders. Finally, let's assume that the 18 civilians killed in the attack were genuinely innocent bystanders with no connection to terrorists.

Question: Under those assumptions, was the attack justified?

The question drew more than 200 comments, most of them questions, not answers. 

Would it be justified for the government of say Cambodia to bomb a campus auditorium because Henry Kissinger was there?

Uh, what if they weren't Al Queda supporters AND they never announced they wanted to kill you and never engaged in any attacks on the west?

Why do you believe a word they say?  What gives you the confidence our government is telling the truth about this incident?

Without offering an answer, let me propose another piece of the puzzle...

It's a yes or no hypothetical!  And no one seems able to answer yes or no!

Reading through the comments is like watching John Kerry debate Joe Biden.  It's got high seriousness, self-importance and moral surety, just no answers.  Liberal after liberal wrings his/her hands, unable to absorb even the premise of the question.  The lack of intellectual clarity is stunning.

Anyone wonder why Democrats don't win elections?

Comments

[Rodger]

It is rare for terrorist attacks to kill even 18 innocent people. The obvious answer here is no.

Want more explanation?

My understanding of intelligence is that "pretty good" is closer to "far from certain" than it is to "certain."

Killing alleged al Qaeda leaders may bring short-term gain by taking bad guys out of circulation, but the simulaneous killing of innocents provokes more hatred and terrorism. And that makes for more al Qaeda leaders too.

There's no evidence here suggesting this was the only opportunity to nab or kill these alleged terrorists -- or that they were plotting attacks that would pose imminent threats.

In the US, for good reason, we don't allow the police to shoot suspected "fleeing felons," even if the person is thought to be a mass murderer. Police can use their weapons in self defense or to protect threatened bystanders.

This phrase doesn't merely apply to Americans: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness."

To take another's life requires something akin to due process under law. Otherwise, we are little better than the killers. Under international law, an attack of this type would be legal only if the targets were clearly planning an imminent offensive.

[Lee]

Yes it was.

This was apparently the best chance to kill Zawahiri since Tora Bora. We did get their best bomb builder, apparently.

If you invite to your little town the man who the most powerful country in the world wants dead more than almost anybody else save bin Laden or Zarqawi, you know the risks.

Additionally, how many other little hamlets in Pakistan now want to give Zawahiri sanctuary now?

[Conrad]

Rodger:

"It is rare for terrorist attacks to kill even 18 innocent people. The obvious answer here is no.

Well yes, except for 9/11, and Madrid, and London, and Bali, and Amman and the Philippine ferry bombing, and Manila, and Khobar Towers, and the Riyidah Coumpounc bombings, and the US embassy bombing in Nairobi, and the Beslam school seige, and regularly in Israel and every freiggin' day in Iraq. Other than that, it hardly ever happens at all.

There's no evidence here suggesting this was the only opportunity to nab or kill these alleged terrorists --

Nope, there's no evidence at all that these terrorists, subject to a global manhumt for more than 4 years, couldn't have been nabbed or killed anytime. Except, of course, for the for the fact that, despite siad manhunt, they were still running around unnabbed and undead until last week.

or that they were plotting attacks that would pose imminent threats.

Nope, no evidence at all that they were plotting attacks, except for the fact that the bombs kept going off and the repeated declarations of al Qaeda (including today's video from bin Laden himself) that that is precisely what they are doing.

In the US, for good reason, we don't allow the police to shoot suspected "fleeing felons," even if the person is thought to be a mass murderer.

That's simply an incorrect statement of law.

This phrase doesn't merely apply to Americans: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness."

Goddam facist Chimpy McHitlerburton, depriving al Qaeda leaders of their right to life and liberty, not to mention the happiness they attain by blowing up American infidels.

And, BTW, since the statement quoted appears in the Declaration of Independence (not the Constitution), it doesn't actually have any legal application to Americans, much less to armed enemy combatants.

To take another's life requires something akin to due process under law. Otherwise, we are little better than the killers.

Yes, I can clearly see moral equivalence between the diliberate terrorist murder of thousands of civilians as a military objective, in and of itself, and the colatteral killing of 18 civilians who were in the vicinity of (and may have been harbouring) the terrorist murderers. Indeed, its practically the same thing. Bush and bin Laden, Roosevelt and Hitler, two sides of the same coin.

And, speaking of due process and lack thereof, when will the cowardly bastards who murdered Yamamoto without trial be brought to justice?

Under international law, an attack of this type would be legal only if the targets were clearly planning an imminent offensive.

Er, I actually am an international lawyer and we international lawyers have a technical legal term for arguments like the one made above. We call them "bull shit". No principle of international law says any such thing.

[Rodger]

I don't have time to do the fancy formatting...

Zawahiri still wasn't killed, if the press reports are accurate. We may never know if anyone remotely bad was really in that house.

Dogbites still kill more people annually than terrorism. 2001 was the exception that proves the rule. Risks from terrorism are greatly overstated...akin to lightning strikes. See the excellent work of the scholar John Mueller (Ohio State).

I'm absolutely correct about the "fleeing felon" law. It was my college debate case for an entire academic year and we won the overwhelming share of those contests. The rule used to allow greater police discretion and the police killed about 1000 people a year into the 1980s. The numbers today are much, much lower.

You're right that the war on terror and the manhunts for terrorists should be going better. I blame the enormously catastrophic mis-step that is the war in Iraq. It costs billions per week and bogs down 150K of the best troops in the world. I blogged today about "foreign fighters" in Iraq, if you want to take on that point.

*Alleged* terrorists do have basic rights (do "self evident" rights need to be contained in the Constitution? The UK doesn't even have a constitution). You do realize that the overwhelming majority of people arrested since 9/11 have been released because the suspicions about alleged terror connections were wrong? Did you read the NYT front page story this week about the FBI terror leads since 9/11? Good thing we didn't use the same kind of standard employed against Iraq and now Pakistan with regard to domestic use of force. Instead of wrongly invading privacy, we'd be worried about the killers in the White House.

Oh, maybe we should be.

Collatoral killing in Iraq has, by the President's estimate, cost 30,000 lives. Some reports suggest it is over 100,000. We added 18 more innocents over the weekend in the larger "war on terror." Did the women and children in that house voluntary issue their own death warrant? Really?

Does anyone think the "war on terror" has prevented 10 attacks on the scale of 9/11? If so, definitely try to read Mueller.

How many terror attacks have killed thousands? One. How many military operations have killed thousands (see above)? Using missile strikes against other states without their permission is the kind of action that leads to war. It is an act of war.

Roosevelt's war, by the way, was clearly in self defense by any definition and was thus unquestionably legal and legitimate. Frankly, Bush's justification for "preemptive" use of force is not altogether different from Germany's in the 1930s. See the excellent piece by U of Illinois historian Paul Schroeder in The American Consevative (cough, cough) in October 2002.

OK, Conrad the international lawyer, I'm a scholar of international relations and I say that my interpretation of the norms against using force against other states are quite accurate. The norms are very restrictive for state use of force -- only in self defense (imminent threat) or after UNSC authorization. I've published on this very topic in peer reviewed journals. Even the damn NSS 2002 argues for *changing* the standard. It doesn't contest the content of the old standard.

[Conrad]

Rodger:

1. The fact that you addressed the fleeing felon rule for a year in friggin' undergraduate debate class no more makes you an expert on the subject than the fact that I studied astronomy for a year as an undergrad makes me an astrophysicist. This is proven by the fact that you are completely and bullheadedly wrong as to what the law actually says.

The Supreme Court has stated that "[w]here a police officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force."

As the US Court of Appeal for the 2nd Circuit has stated:

A law enforcement officer is justified in using deadly physical force when necessary to:

(1) defend himself or a third person from the use or imminent use of deadly physical force; or

(2) effect an arrest or prevent the escape from custody of a person whom he reasonably believes has committed or attempted to commit a felony which involved the infliction or threatned infliciton of serious phyiscal injury.

A police officer clearly has probable cause to believe that a mass murderer (to cite your example), a serial killer or a terrorist, if allowed to escape, would pose a threat to others. No reasonable constitutional scholar or competent court would hold that the Constitution proscribes a law enforcement officer from shooting dead a fleeing Ted Bundy or Osama bin Laden. To argue otherwise is not only legally wrong, it's inherently stupid.

2. As for your claims to be a 'scholar of international relations', my suggestion is to keep studying, because the subject of international law still eludes you.

As the saying goes "those who can, do. Those who can't teach" And those who can neither do nor teach, study.

3. Finally, your appeals to US criminal and due process law are wholly irrelevant with respect to matters of national security and defence which, very clearly, are governed by entirely different constitutional provisons.

[Tom]

My larger point wasn't that the attack was right or wrong. It was that the great mass of liberal Dems seem unable to give a yes or no answer even to a defined hypothetical, and that one of the things Americans demand of a president is the ability to clarify the complex. Dems aren't going to get a lot of White House time until we figure out how to give clarifying answers to questions.

[Rodger]

You misunderstand...I wasn't in debate class; for four years I was traveling around the country debating competitively against teams from Harvard, Dartmouth, Northwestern and elsewhere. I was fairly good at it too. If it had been like NCAA basketball, I would have been famous...

Keep in mind that I wasn't the first one in this discussion to appeal to authority or expertise.

1. You did not address any of my points about international law, but instead resort to (weak) ad hominem attack against me and my profession.

I could counter in like fashion. Does your expertise and/or experience in international law extend to the use of force by states -- or do you merely write contracts for transnational corporations?

I'll keep this simple. Consider the plain language of the UN Charter, Chapter 1, article 2(4): "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."The US launched an unwelcome missile strike against Pakistan.

Put that act under the UN Charter with Article VI of the constitution and the attack was illegal under US law too:"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land."Consider also the fact that the Bush administration since 9/11 argues that states must change their understandings about the use of force. See its seminal 2002 National Security Strategy "For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack.

We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries."The recent UN meetings to consider the report by the High Level Panel on Threats, Challenges and Change focused on the need to address and reshape the international law. Allied leaders, like Australia's John Howard have called for changes in the UN Charter. However, until it is changed...well, Kofi Annan flatly declared that the Iraq war was "nonlawful"(premised on the same logic of redefined "preemptive" attacks, as in this case). I've blogged about all these points over the past few years.

2. I should perhaps have pointed out that you essentially ignored one of my first and perhaps best point. Killing innocents in this way creates even more terrorists and sympathy for al Qaida. I suspect you don't concede this point, but you didn't reply to a pretty good argument.

3. The lines you quote from the courts about the "fleeing felon" law are consistent with my first statement. I never said there were no circumstances when the police could shoot and I didn't list all the circumstances when it was OK.

The Court decisions you cite discuss what is permissible, though you reference only 1 of 3 standards from Garner -- and ignore the long-established rule that police have to hold their fire if innocent bystanders would be threatened. Furthermore, you didn't quote this from the Garner decision: "Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so."You also ignore the fact that various jurisdictions have adopted muchm ore restrictive policies in practice. More-and-more have moved away from the "fleeing felon" standard to one more restrictive (the FBI, LA, Dallas, etc.).

In short, the weaker standards may be constitutional (and lawful for the jurisdictions that employ them), but even they require that the officer provide warning of the attack in addition to having probable cause that the felon is guilty of a crime involving physical harm. The officer must also be convinced that s/he cannot otherwise prevent escape.

Would you agree that it would be against American law for the police to shoot at a house without warning, with only "pretty good evidence" that their suspect was inside, and with the likelihood that many innocent bystanders (including wome and children) were going to die?

4. My arguments about human rights are not irrelevant to matters of defense and national security. Especially when the defense and security claims are far too sweeping for the threat (you overlooked my points about that too).

You didn't do anything more than assert the opposite, so I see no reason to devote more of my time to this point.

[Dave]

That was wonderful........I'm going to go towel off!

[Conrad]

Rodger:

I have neither the time nor the patience to try to educate a willfully obtuse instructor at a obscure regional college on the specifics and limitations of international law.

The bottom line is you are consistently (i) citing domestic legal "rules" that don't exist; (ii) then wrongly transfering these purported rules to international and national security matters (where they wouldn't apply even if they actually existed, which they don't); (iii) in order to reach an absolutely absurd result that would result in God knows how much confusions and dead innocents were it ever actually adopted, which it won't be, because no one with the remotest chance of gaining control of the levers of power would ever be so stupid.

Your reference to the purported warning "requirement" in Garner is a perfect example of this. Let me walk you throught the steps:

First, NO, the law does NOT require that apprehending police issue a warning to a violent fleeng felon prior to employing deadly force. Rather, the courts have expressly and repeatedly held that a warning should be given "if feasible to do so".

Second, forgetting for the sake of argument, that you have quoted the the law incorrectly, how would that puroprted warning apply in this case? Should US planes have dropped leaflets over the site of the suspected al Qaeda meeting saying:

"(1) If you are a terrorist, please come out with your hands up and wait until US or Pakistani forces arrive to arrest you in a few hours.

(2) If you are not a terrorist, please depart the area immeadtely, because intend to start dropping bombs if (1) above is not complied with."

Well duh, is there anyone outside of academia who doesn't understand the fatal flaw in that approach?

Hint, EVERBODY (good guys and bad guys alike) runs away.

Clearly, even applying domestic US crimnal law procedures (which don't apply to national security anyway), such a warning is not feasible (remember that qualification) in this situation and therefore would not be constitutionally required (even if the principle applied to national security matters which, it doesn't).

I'm not going to debate the law with you further because you are obviously being willfully obtuse and keep moving the goalposts when demonstrated to be wrong. It's like trying to teach a pig to sing, it accomplishes nothing and annoys the pig.

As for your claim that, were undergraduate debate like NCAA basketball you'd be famous, that may be so. And if your right hand were Angelina Jolie, I guess you'd be Brad Pitt.

[Pursuit]

Roger,

Really just one simple question: Did you have any role advising Al Gore? Cuz, you know, there is a distinct similarity.

Conrad,

Let me know when you want to come over to our side...I'll clue you in on the handshake, and make sure you get your very own blonde Fox News babe.

[Rodger]

OK Conrad, in the end, you are over the line of civil discourse. Since you are obviously more interested in thinking about masturbation than debating international law, this will be my last post on this thread.

I've been debating someone named "Conrad" on the internet, who first appealed to his own asserted authority, and I'm the one getting slammed about his credentials?

I went to public schools and teach at a public school. BFD. Do you want me to say that your ad hominem attacks reflect an inferior intellect since you obviously don't want to deal with my central claims?

Quite oddly, you've decided to focus almost exclusively on my relatively off-hand reference to domestic law, which was only an analogy and not central to the main arguments I've been making from post-to-post. In contrast, you are completely ignoring everything I've argued about international law, which is purportedly your area of expertise.

It was blatantly illegal to attack another state. It also has dangerous consequences. You are ignoring the gorilla in the center of the room. Pakistan was the victim of an act of war and is pissed off about it.

Think of it this way. If Cuba launched a missile strike at anti-Castro terrorists in Miami, would you be angered and declaring it an act of war? Of course. As Pursuit would apparently know, Fox News would be banging the drums about the outrageous violation of American sovereignty.

I don't care enough about the domestic arguments to sort them all out. Your decision to focus almost exlusively on my least important argument only demonstrates the weakness of your overall position.

In addition to the questions about international norms, you have completely ignored every empirical point I've made about the "war on terrorism." The administration has proven that it rarely finds a terrorist, though it has looked under every rock. Moreover, the threat of terrorism is vastly overstated in any case.

Killing those innocent people was morally wrong in my view and likely will provoke more terrorism. Employing an act of war against an ally was very bad and dangerous policy, establishing a horrible precedent for the use of force in international politics.

[Conrad]

"you are obviously more interested in thinking about masturbation than debating international law.

Well of course. If only I could find a way to make masturbation pay the bills. . . .

[Conrad]

"The administration has proven that it rarely finds a terrorist, though it has looked under every rock.

Is that so? Hmmm. A five minute Google search turns up the following names of al Qaeda terrorists no longer enjoying their right to life, liberty and happiness:

Muhammad Khalaf Shakar
Hambali
Khalid Shaikh Mohammad
Abu Faraj al-Libbi
Abu Zubaydah
Zacarias Moussaoui
Mounir al-Motassadek
Mohammed Atef
Richard Reed
Abu Abdul Aziz
Abu Seba
Saleh Arugayan Kahlil
Bassim Mohammed Hazeem
Ahmed Omar Abdel Rahman
Sheik Omar Abdel-Rahman
Midhat Mursi al-Sayid Umar
Abu Ubayda al-Misri
Ibn Al-Shaykh al-Libi
Abdul Rahim al-Sharqawi
Abd al-Hadi al-Iraqi
Muhammed al-Darbi
Ramzi bin al-Shibh
Abd al-Rahim al-Nashiri
Mustafa al-Hawsawi
Majid Khan
Yassir al-Jazeeri
Waleed Mohammed bin Attash
Adil al-Jazeeri
Mohamad Nazir bin Lep
Mohamad Farik Amin
Tariq Mahmood
Hassan Ghul
Musaad Aruchi
Mohammed Naeem Noor Khan
Ahmed Khalfan Ghailani
Abu Faraj al-Libi
Abu Zubaida
Ramzi Binalshibh
Mohammed Haydar Zammar
Ali Abdul Rahman al-Ghamdi
Mohamedou Ould Slahi
Omar al-Faruq
Mohsen F. A Kuwaiti
Abd al-Rahim al-Nashiri
Ali Qaed Senyan al-Harthi

I could list a lot more, but after five minutes of cutting and pasting, I got bored. I note that Newseek reports more than 3,000 al Qaeda leaders of various ranks killed or captured by the US and its allies since 9/11.

"Moreover, the threat of terrorism is vastly overstated in any case."

Really? As former readers of my defunct and unlamented blog may recall, I lost a friend and a client at the World Trade Center, and in Bali, a co-worker, a guy I used to play rugby with and a girl I'd slept with (although, to be fair, it would be hard to set off a bomb in Indonesia and not get a girl I've slept with).

Plus, I flew out of Suharto airport about 3 hours before a bomb exploded in the main terminal and my sister was stationed at the American consulate in Jeddah when terrorists attempted to storm it.

Personally, that's way more than enough threat for me.

[Rodger]

That was civil, so I'll respond. And I'm truly sorry for the personal losses you've suffered in the various attacks. I'd note that Indonesia has about 240 million people, so it is fairly clear that wild hyperbole is a key part of your argument style.

Assume Newsweek is right (based on US claims) and the administration has killed or captured 3000 al Qaida since 9/11.

If Michael Scheuer is right about al Qaida's structure, and there's little reason to believe that he isn't, I am dubious that the "terror" side of that organization could have anywhere near 3000 leaders. The overwhelming majority of al Qaida were trained to be insurgents and are active in Chechnya and Kashmir, but very unlikely to enter western countries and commit acts of terror.

Moreover, 3000 is only a small number compared to the number of people killed in the "war on terror." How many innocent lives must be lost to avenge 9/11?

Bush says at least 30K have died in Iraq and the administration won't even guess as to the numbers in Afghanistan. The 2004 Lancet study estimated 100,000 civilian deaths in Iraq (half women and children). Another private estimate suggests as many as 220,000+ deaths in Iraq and Afghanistan.

Even using the low end estimate, the "war on terror" has killed many times as many people as all the terrorists in all their attacks.

Is that a good strategy? Is it effective? Does it yield a net decrease or increase in terrorism? Donald Rumsfeld's famous "long hard slog" memo asked these sorts of questions and no one really knows for sure.

And, yes, terrorism risks are greatly overstated (as a justification for policy) despite your personal experience.

In every year except 2001, more people die from dog bites, drown in toilets, or drown in bathtubs. About the same number have died from accidents with deer on the highway and allergic reactions to peanuts.

The administrations says 9/ll "changed everything." While there's very little reason to believe that the current counter-terror strategy is any more effective than the prior strategy, there is (unfortunately) great reason to believe that the war on terror is far more deadly for innocent civilians in places like Afghanistan, Pakistan and Iraq.

Plus, of course, lowering the threshold for using force in international politics is a very bad idea.

[Conrad]

Civility brought you back. Shit! I guess it's back to rudeness and venom then.

[David]

Hey Conrad, in between telling us about all the chicks you banged in Indonesia (way to go, by the way, you're a real man's man), you might want to respond to Rodger on international law. Because right now, for an international lawyer it sure sounds like you don't know dick about the subject.

[Conrad]

*Sigh*

Having previously expounded at great length as to why Rodger's Constitutional arguments are absurd, I thought (hoped) his international law argument was so transparently inapt that readers could see its weakness for themselves. I guess I gave some of you too much credit.

Two preliminary matters before I get to Rodger's howlingly obvious error:

First, Rodger seems to view international law as "law" in the same sense that domestic law is "law". It isn't. Indeed, many scholars and practioners have advocated adopting a term other than "law" to describe it to avoid confusing the dim.

Second, Rodger adopts a "naturalist" view of international law. That's an approach that neither the US nor most scholars have ever accepted.

Now, to Rodger's patently obvious mistake: The cited UN Charter provison is not applicable here. The US did not, as the UN Charter proscribes, "use force against the territorial integrity or political independence of" Pakistan.

This phraseology has a well settled meaning. It means, among other things, that a nation may not seek to seize territory or overthrow a lawful government.

Pakistan's territorial integrity and political independence were not altered by the US action, nor did the US action seek to, or have as its aim, any change to such integrity or independence.

Indeed, the US did not take any actiona against Pakistan at all. It took action against al Qaeda, which was using Pakistan as a refuge.

Consequently, the UN Charter provision quoted by Rodger is, on its face and by its terms, irrelevant and not applicable.

The US's action was entirely permissible because: (1) actions against al Qaeda are recognized as self defense, which the UN Charter permits; (2) it is well established under customary international law that a third country cannot serve as a shelter or sanctuary for forces engaged in hostilities with another country and that such hostile forces may be attacked (and customary international law is every bit as valid as a treaty); and (3) Pakistan has been repeatedly put on notice as to al Qaeda's presence on its soil and is either unwilling or unable to put a stop to it.

Imagine Himmler, Goebbles and Borman meeting in a village in neutral Switzerland during WWII. The British get word of it and blow them to hell, killing 18 Swiss villagers in the process. Is Britian's action permissible under international law? Absolutely. This is exactly why the Swiss interred all military personnel from either side who entered its territory. Even allowing such personnel to freely leave Switzerland and return to combat could have been sufficient to justify an attack on it.

Of course, I shouldn't have to explain any of this since simply reading the plain language of the cited provison should have been enough to reveal Rodger's error.