VIVAS! to the "Unlawful Enemy Combatants"

The current conduct of the "war on terror" depends fundamentally on placing certain people "beyond the pale" -- in other words, entitled to neither civilian justice (because they are fighters) nor military justice (because they are not "soldiers"). They belong to a third, ill-defined category, that of "unlawful enemy combatant". They exist in legal limbo. This is the basic fact exposed in the film The Response, about the Combatant Status Review Tribunals.

I remember being at a screening of "The Response" at Columbia University in January, 2010, and hearing the legal scholar Matthew Waxman talk about the possibility that the legal field really needed to address this third, not-civilian, not-military status. At the time, I felt an inward revolt against this categorization, this reduction of people to "non-person" status. I held as an article of faith an idea I learned in Jane Mayer's book, The Dark Side: there is no such thing as a person who does not have a status under the Geneva Conventions.

I maintain my view that the types of combatant status defined under the Geneva Conventions should be our guidepost. But now I am also beginning to wonder if this notion of a "third type of status" -- one that differs sharply from our conventional notion of soldiers as "state actors" -- isn't pointing us to some profound truth about war and peace, violence and non-violence.

WHAT IF we stopped the pretense that "terrorism" is something different than "war"? (War IS terror.)

WHAT IF we admitted that, in terror/war, it is the commission of acts of violence and the injury of victims that is at issue? (Every other aspect of "military affairs" is a sideshow.)

WHAT IF we began to ask what ethics enter into the commission of acts of violence -- and in what ways this may be different when violence is committed in the service of a personal conviction/choice vs. when violence is committed in the service of state power? (In other words, personal responsibility EXISTS.)

Today, the U.S. government assassinates people week in, week out, in Afghanistan, Pakistan, Yemen, and Somalia, using drones and other means, and the mainstream U.S. press unquestioningly publishes accounts of these killings, parroting characterizations of the dead as "terrorists" or "militants." And hundreds of people -- technicians, operators, analysts, etc. -- are in the "kill chain" for each of those killings, with very little sign that any of them ever raise a moral objection.

It has long ago been pointed out that these victims are in many cases indistinguishable from people who were hailed as "heroes" when they fought conscientiously against the Soviet invaders of Afghanistan (viz. Charlie Wilson's War).

I was recently present when a leader in the field of war crimes investigation denounced the failure of international courts to act on reports of war crimes. When "lawful" combatants can commit depredations with impunity, is the "law of war" and "military law" really of any significance?

SO . . . .

Is it possible that the so-called "unlawful" type of combatant is not more violent or less principled than the so-called "lawful" type?

Is it possible that the so-called "unlawful" type of combatant is, in fact, less violent and more principled than the so-called "lawful" type?

And if either or both of these are, in fact, the case, what consequences does this imply for human society?

These questions need to be addressed.

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ON THE IMAGE ACCOMPANYING THIS POST
My children grew up in Lexington, MA, where they were given a very clear idea of the heroism of "irregular" combatants.

ON THE TITLE TO THIS POST
I grew up in Chatham, NJ, where we also had a Revolutionary tradition, but one that was a bit more conventional than the one to which my children were exposed.

When I was in high school, our revered English teacher, Mr. Foley, taught us the line "Vivas to those who have failed ...." from Walt Whitman's Leaves of Grass Mr. Foley encouraged us to think about people who have the courage to try something really difficult and also deal with the consequences of failure. That was a unique perspective in that very mainstream suburb where I grew up. I'm not sure I've fully internalized Mr. Foley's lesson, even today. But I'm trying ....

I play not a march for victors only . . . . I play great marches for conquered and slain persons.

Have you heard that it was good to gain the day?
I also say it is good to fall . . . . battles are lost in the same spirit in which they are won.

I sound triumphal drums for the dead . . . . I fling through my embouchures the loudest and gayest music to them,
Vivas to those who have failed, and to those whose war-vessels sank in the sea, and those themselves who sank in the sea,
And to all generals that lost engagements, and all overcome heroes, and the number-less unknown heroes equal to the greatest heroes known.