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.