From the Trenches to the Benches

Slate's blog on legal issues.
June 25 2008 4:32 PM

From the Trenches to the Benches

Phil, we agree that there is a place for law in war, and the reasons you give are excellent ones; but there are a series of complicated line-drawing puzzles, and I'd like to hear where you draw the lines.  Let's consider two cases:

1.  a) A tank commander must decide whether to fire into a mosque where enemy soldiers have taken cover. Or b) an Air Force officer must decide whether to order an air strike against an al-Qaida safe house in a crowded neighborhood in Baghdad.

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2.  a) A squad of American soldiers must decide whether to detain an Afghan villager who local witnesses say has transferred weapons to al-Qaida fighters. b) Months later, military officials must decide whether to release this person or continue to hold him.

Both sets of decisions are governed by international and domestic law—and I don't dispute the claim that it may well be in the interests of the United States to comply with international law (though I think this claim is more complicated than others do).

Let's now compare case 1b and 2b. As I understand it, currently the military vets bombing targets with military lawyers. Do you agree that this is a sensible practice? If so, why not use military judges rather than military lawyers ? Wouldn't judges be more credible? And then why not civilian judges rather than military judges? Wouldn't civilian judges have more credibility still (and, according to Deborah, wouldn't they do a better job because they are so good with facts and law)? Now let me ask this question from the other direction. If you think that civilian judges should review the detention decision in case 2b, why not have civilian judges involved in the bombing decision of 1b (or civilian federal magistrates, if you want, who could issue kill warrants in the same way that they currently issue search warrants)?

Let's return to 1a and 2a. If we think civilian judges should be involved in cases 1b and 2b, or even just 2b, why not have them involved in the two (a) cases? True, we wouldn't expect them to ride on the tanks or set up shop at air bases. But we could easily have them review the cases after the fact. Indeed, a soldier who blows up a mosque for no reason or for a bad reason could be tried by a military judge for violating the laws of war. But if we prefer to have civilian judges review detention decisions, why not have a civilian judge conduct the trial of the soldier who destroys the mosque? After all, we don't trust the military, do we? Isn't this distrust of the military, or at least of the executive that controls it, the entire basis of Boumediene ?* Why not require that targeting decisions—of all kinds, even at the rifle level—be reviewed by civilian judges after the fact, allowing the civilian judges to convict soldiers of violations of the law of war or domestic law?

And, as my air-strike example is supposed to illustrate, I think the distinction between operational and post hoc breaks down. If I am a soldier and I know that I can be put in jail for blowing up a mosque, then I will want operational legal advice for ambiguous cases, even if I don't need a warrant. The Army currently supplies operational advice to air commanders but not to tank commanders. Why does this make sense, exactly? Or does it?

Now, one could make the "this is a new kind of war" or "this is not a war at all" argument, and say that the United States can't detain people without civilian-judge level due process, indefinitely, in a nontraditional war with no foreseeable end without destroying its reputation for caring about the rule of law. But if this argument is correct, it applies equally to the targeting decision. It is, after all, even worse to drop bombs on houses and blow up mosques than to detain people indefinitely, and so if civilian judges are necessary to establish credibility for detentions, then they should be necessary to establish credibility for targeting. The arguments that various people have made in favor of Boumediene 's result does not offer any principled basis for giving military judges or lawyers any role at all, in any type of "military" decision in our current nontraditional quasi-war, except to the extent where logistics require an on-site, in the midst-of-hostilities legal determination, and even then subsequent civilian judicial oversight should remain available after the fact.

Perhaps your view is that civilian judges can handle military detentions because they handle civilian detentions all the time. But civilian judges also handle civilian killings all the time (for example, police killings). The relevant consideration is not the act itself but the reasons for it: Can civilian judges handle military judgments as to the necessity of detaining one person and killing another? Does their experience with law enforcement prepare them to evaluate the political and national security reasons for detaining one person and killing another?

*Correction, June 25, 2008: This post originally misspelled Boumediene.  Apologies to those who thought that the post concerned the former president of Algeria .

Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice. Follow him on Twitter.