Freddie DeBoer makes me an honorary member of the neoconservative project:
The emphasis on his status as a military target is importance because it changes the question of due process. Enemy soldiers and officers are subject to different legal rules than criminals, although interestingly, for positions like Serwer's, soldier's rights are in many ways more protective than criminal rights. So far, so good. And yet despite the fact that Serwer is adamant that bin Laden was a military target, duly authorized by Congress, he is also sure that Al Qaeda is not a military organization that deserves the legal treatment as such. Check out this Tweet: "because AQ is a criminal organization not a state or entity acting in self defense." I think you'll forgive me for being confused. If Osama is a military target, and the head of Al Qaeda, what sense does it make to say that Al Qaeda is emphatically a criminal organization?
Well, if I follow the strands of the Twitter argument correctly, for Serwer it's necessary to keep this kind of criminal/military fusion because he at once wants to assert that bin Laden was a military target not subject to conventional due process and at the same time assert that Al Qaeda has no equivalent right to, say, kill President Obama. As this discrepancy shows, it's a difficult line to walk with any argumentative consistency. So Serwer is the latest who has taken to creating a "heads we win/tails you lose" fusion for terrorists where they deserve neither the treatment of enemy soldiers, protected by the Geneva convention and a large body of international law, nor the treatment of criminals, protected by domestic laws of due process. There is a long tradition in human history of those engaged in war to attempt to designate subhuman status for certain combatants, which is entirely the point of the meticulous erasure of rights of the accused for suspected terrorists. Denying habeas corpus, the right to counsel, the right to fair and speedy trials, the right to public openness and accountability in justice-- all of this is part of a larger project of rendering terrorism suspects inaccessible to elementary human rights. I'm afraid that Serwer is now contributing to that project.
I'm not really sure what DeBoer finds confusing about this. Al-Qaeda is a criminal organization with the capability to engage in military operations against states, but that doesn't give it the legal right to do so. The U.S., pursuant to the 2001 AUMF, is engaged in such a conflict in Afghanistan and Pakistan. That doesn't make AQ soldiers, it makes them combatants. An attempted murderer does not suddenly become imbued with the right to legally kill his victim if they reply with lethal force. Al-Qaeda doesn't have the right to attack us anymore than we have the right to attack France. But if attacked, we have the right to respond in self-defense. If there's a "double standard" with regard to the right to engage in hostilities, it's entirely justified.
Despite what DeBoer implies in his post, he literally cuts off my post mid-paragraph in order to charge me with refusing to extend humane treatment protections to suspected terror detainees. This is what I wrote:
The emergence of non-state entities capable of engaging in armed conflicts against military forces poses a genuine legal challenge, but bin Laden cannot shake his status as a legal target simply by being a criminal anymore than terrorists being criminals would allow the Bush administration to disregard standards of humane treatment for those captured in such a conflict. It is one thing to argue that capture and trial would have been preferable, another entirely to argue that the killing was illegal.
So no, we don't get to break the rules, and AQ does not get to take advantage of the loopholes in them. Moreover, I'd love to see the basis for DeBoer's conclusion that I support "Denying habeas corpus, the right to counsel, the right to fair and speedy trials, the right to public openness and accountability in justice -- all of this is part of a larger project of rendering terrorism suspects inaccessible to elementary human rights," given that the majority of my written work since taking this job has involved writing about such things. But the legal and moral calculus on a battlefield is different, and while I reject the legal concept of a "global battlefield" against al-Qaeda, we are at war in Afghanistan, pursuant to the will of Congress and the American people, and as such, those rules apply.
DeBoer takes the approach that even if the killing were consistent with the law, it doesn't matter because he believes there are no circumstances in which the government is justified in killing anyone. I don't take that view, and I particularly don't take the view that American service members are just "the government" and so cannot act in their own defense while those who are trying to kill them are part of the unbreakable circle of life.
DeBoer's real objection seems to be my rejection of pacifism, or lines of argument that lead to pacifism by implication. Not necessarily on the basis that it would be sound policy to respond to terrorism with pacifism, but because there aren't supposed to be any enemies to the left:
All of this has consequences. It's all part of the same old dynamic: the right respects and honors its fringe, invites it to the table, and attends, at least in rhetoric, to its concerns. The left forever seeks Sister Soulja moments to excise its fringe from polite conversation, in the vain hope that this will somehow compel the people who despise us the most to take us more seriously. And then we wonder why the center resides where it does.
This is a common theme in DeBoer's writing; the correctness of a particular position isn't as important as whether it's "liberal" enough and therefore moves the larger conversation leftward. I consider Glenn Greenwald a friend, and in no way was I trying to "excise him from polite conversation." On this issue we disagree.
Pacifists and many on the right actually retain similar moral frameworks when it comes to violence, although they come to different conclusions. Both are absolutists in that neither make real moral distinctions between different kinds of violence. In practice, the latter aids the former by blurring the moral lines between preemptive war in Iraq and violence in self defense. So while I don't think pacifism in this case is particularly moral, in practice their blurring of the distinction between justified and unjustified acts of violence gives them a kind of moral equivalence torture lovers are furiously trying to achieve.After, I'm sorry to say, Serwer says, "However, those arguing that the killing of bin Laden is illegal because 'violence is always wrong' are on no firmer ground than those who support the use of torture as legal on the basis that it would lead to lives being saved," explicitly equating the morality of pacifism with the morality of support for torture. Which, from my biased and limited vantage, is just categorically wrong.
If the left cannot articulate a clear moral distinction between acts of violence in self-defense and acts of aggression, then it simply enhances the right's attempts to conflate the two. While I don't think the fight against terrorism will be won even primarily through violence, there is no path away from the erosion of individual liberty in the name of national security that does not, at some point, involve killing people who are threatening the security of the United States. We do have the option of making sure that when we use violence, we do so in accordance with the rule of law. The alternative vision is not a world without violence, but one in which the law simply doesn't matter, and secret prisons, torture, and wars of aggression are undertaken with little resistance, because there is no moral argument for rejecting them while still protecting American lives. Offering a blanket moral objection to killing bin Laden, even under circumstances that are both legally and morally justified, merely makes the latter outcome more likely than it already is.
If the choice is between pacifism and barbarism, the American people will choose the latter. That's precisely why some conservatives want to pretend that those are the only two we have.
