What is war from a legal perspective? What is D-Day, to name one example? It is thousands upon thousands of agents of the American government going out and administering the death penalty to others without any due process whatsoever. The extreme arbitrariness of their action is epitomized in the conduct of an enemy army: the Confederacy. In the growing night at the battle of Chancellorsville, Stonewall Jackson was shot by his own soldiers as he returned to their lines. General Jackson would have required no more “due process” than having a light shone on his face, but his soldiers didn’t even do that. They simply shot him. And the Confederate soldiers were not unique in this conduct. Friendly fire deaths are a sad reality of modern warfare; its not a violation of the constitution.
This is what war is: the arbitrary application of force.
And understanding this, I have joked for a long time that to hear certain liberals tell it, the proper approach on D-Day would be for our soldiers to storm the beaches at Normandy, brave the hail of gunfire, climb up into the Germans positions and then arrest and Mirandize the German soldiers. I always considered this to be a reduction ad absurdum, until I read, an extension of certain principles enunciated by my opposition intended to take it to an degree that even most liberals would concede was absurd. I didn’t expect any liberal to say, “yes, that is exactly what I want: arrests and Miranda warnings for Germans on D-Day.”
At least until I read this from Matthew Yglesias:
If Bill Clinton wants to bomb Serbia, then Serbia gets bombed. If George W Bush wants to hold people in secret prisons and torture them, then tortured they shall be. And if Barack Obama wants to issue a kill order on someone or other, then the order goes out. And if Congress actually wants to remove a president from office, it faces extremely high barriers to doing so.
Whether or not you approve of this sort of executive power in the security domain, it’s a bit of a weird mismatch. You would think that it’s in the field of inflicting violence that we would want the most institutional restraint. Instead, the president faces almost no de facto constraints on his deployment of surveillance, military, and intelligence authority but extremely tight constraint on his ability to implement the main elements of the his domestic policy agenda.
Wow, amazing. Glenn Greenwald sounds an equally idiotic note here.
Let me explain a few things to you folks.
First, our government has a positive duty to protect its citizens. The Declaration of Independence states that among our inalienable rights is the right to life. Everyone notices that, but they often fail to notice the next line: “That to secure these rights, governments are instituted among men[.]”
In other words, a government that cannot protect your life, is not legitimate. People like to think about rights as negative limitations on the government, but the government has a greater duty than simply to do no harm; the government has a duty to take positive steps to protect our rights, including the right to life.
Or more precisely to protect the innocents of our nation from the aggressors.
In ordinary circumstances, the government should not be able to take a citizen’s life without all of the constitutional rights and accoutrements that go with it. But there are certain circumstances when the ordinary rules have to be suspended, when there is a need to “take the gloves off” and act more arbitrarily. We call that power to act arbitrarily, WAR.
But what marks the difference between when the war power can be invoked and not? The answer is provided to us by Lincoln, when he issued the Proclamation Calling for the Militia, on April 15, 1861. He stated that
> the laws of the United States have been for some time past, and now are opposed, and the execution thereof obstructed, in the [Southern States] ... by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by law[.]
Thus when there as a combination, a conspiracy, too powerful to be suppressed by ordinary judicial means or by the marshals, it was time to call out the troops and to invoke the power of war.
On 9-11, it was immediately apparent that we were being attacked by a conspiracy too powerful to be suppressed by ordinary judicial means. The left still is under the delusion that it can be. And that is the fundamental disagreement. But as long as we say this is war, we have to give the President the power to wage war. That means the right to kill our enemy arbitrarily.
“But wait,” you might say, “these are American citizens they are talking about.”
Yeah, and so was Abraham Lincoln.
“Okay,” you might say, “but look D-Day and other wars were different. For instance, this only went on for a short period of time…”
They didn’t know how long it would have been at the time.
“And they were against other nations.”
Except the Confederacy was not another nation. And while they asserted that they were a belligerent power, that is now how Lincoln and the North framed it. They framed it as a massive conspiracy.
“And the enemy always wore uniforms, so it really wasn’t hard to tell who was friendly or not..”
And actually that wasn’t true in the Civil War. In the part of the nation that made cotton, it turned out that ironically the government was not able to afford proper uniforms most of the time. Of course the officer corps got them, but the rank and file? Not so much.
So what Mr. Yglesias and Mr. Greenwald find so troubling is nothing more than how we have conducted war since the beginning of this republic, how the law of war was understood long before the first letter of the Declaration of Independence was written.
Closing point. There is no doubt that this infuses the president with a quite amazing amount of power. And that is why character is so important when choosing a president.
