Posted by
Defend America on Thursday, February 18, 2010 8:23:01 AM
Kill or Capture?
A tricky question of life, death, and incentives.
A few years ago, I got into an argument with an expert on military operations. I had written a
white paper
proposing the creation of a national-security court for terrorism
cases. In the paper I criticized the trend to “judicialize” warfare,
arguing that, in our system, judgments about the detention and
treatment of alien enemy combatants are the preserve of the political
branches, not the politically unaccountable courts. It was not my
overall thesis to which the military expert took exception. The point
of contention had to do with the incentives the legal system creates
for soldiers.
I contended — and still contend — that the
leftists who were pushing for judicial intrusion into the capture,
detention, and interrogation of enemy operatives were subverting the
human-rights agenda they purport to serve. There are many scenarios in
which our forces are in a position either to kill or to capture the
enemy, situations in which both are valid options under the laws of
war. In a kill-or-capture situation, capture is the more merciful
option. From an intelligence perspective, it may also be the more
advantageous. The underlying objective of international humanitarian
law is to civilize warfare. Yet, I posited, by freighting capture with
judicial second-guessing, rather than leaving the matter to the sound
discretion of our professional warfighters, the Left was virtually
guaranteeing that more combatants would be killed. As Justice Clarence
Thomas has
observed,
a Hellfire missile targeted at a jihadist who has not been given notice
or an opportunity to be heard is an extremely prejudicial termination
of his due-process rights.
The military expert took exception to this assertion. Our troops, he
countered, were the most disciplined military force in history. They
are trained to follow orders, not to act on their subjective sense of
what is in their personal interests. I do not have a military
background, so I was loath to argue, though it still seems to me that
many acts of extraordinary valor stem from the soldier’s split-second
battlefield decisions, taken in the absence of orders. But even
conceding the expert’s point for the sake of argument, there remains
the matter of the superior who gives orders to the combat soldier.
Surely his incentives matter, no?
http://article.nationalreview.com/425301/kill-or-capture/andrew-c-mccarthy