Joshua Foust on the paradoxes of the Obama administration indicting Tehrik-i-Taliban leader Hakimullah Mehsud:
Which brings us to this criminal charge: conspiracy to kill Americans and using a weapon of mass destruction. The latter charge is fundamentally stupid, the result of the U.S. government defining down the idea of "WMD" so that anything that goes boom is now a weapon of mass destruction, rather than the normal idea of WMD as chemical, biological, or nuclear weapons designed to inflict mass casualties. The former is difficult to square with how warfare works: in essence, the Department of Justice is making it a crime to resist offensive military operations in your own homeland.
It might seem a semantic distinction, especially given the massive campaign to assassinate Hakimullah, but it's really not. The U.S. has made it a crime to fight in a war -- not to commit specific atrocities, the way one would normally define a crime or a war crime, but to attack spies conducting an assassination campaign in a war. Despite the terrible loss of intelligence agents, that is war. It is violent, and you do not enjoy specific immunities from reprisal if you choose to participate in it. The CIA is an armed actor in the war in Afghanistan, and it is one of the only American agencies actively participating in the war in Pakistan. It is not exempt, in a legal sense, from its targets fighting back.
In a manner of speaking, this also highlights some of the bizarre angles to the idea of the war on terror. The U.S. seemingly can't make up its mind about how it should go after militants. It wants to kill some, capture others, and exclude still more. It wants to reconcile some, but won't say how or under what conditions. It tries to assassinate leaders, killing their families in the process, but then charges them with conspiracy to commit murder when they hit back. The whole thing's a mess, with overlapping initiatives and contradictory objectives.
You could argue that the TTP doing things like sponsoring terror attacks against non-combatants in the U.S., like Faisal Shahzad's attempted bombing of Times Square, are criminal acts that should be distinguished from battlefield behavior. But it's a moot point, since Mehsud wasn't indicted for that; he was indicted for orchestrating the suicide bombing that killed seven CIA officers at Khost. The DoJ press release mentions the Times Square bombing, but it's not among the crimes he's charged with.
Just to continue in this theme of confusion regarding how the administration applies the law with regards to terrorism, consider Mehsud has something that extremist cleric and U.S. citizen Anwar al-Awlaki doesn't: An indictment. The U.S. government has asserted its authority to kill him even though he's outside of a war zone and hasn't been charged with anything. Meanwhile Hakimullah Mehsud, a foreign national operating in a theater of ongoing military combat, has just been charged with a crime for killing the other side's spies, months after the U.S. has already targeted him for assassination with drone strikes.
The administration, despite its "rule of law" rhetoric, obviously sees federal law as just another strategic "tool" to fight terrorism with. The problem with using the law in such a manner is that it fosters the perception that the administration is being arbitrary and lawless.
