Notes, 2018

“Je voyais tout en noir avant les élections, je vois tout en noir depuis.” [I saw everything black before the elections, I see everything black since.] —Ernst Renan, quoted by Henry James in a letter to William James, 14 March 1876

I dreamed there were two new hobo symbols, one for “You already know everything I need for you to know” and one for “Felonies.”

“I sat without stirring and gazed, gazed with effort and perplexity, as though I saw all my life before me, as though scales had fallen from my eyes. Oh, what have I done! my lips involuntarily murmured in a bitter whisper.” —Turgenev, “A Tour in the Forest”

“Is treatment, particular bad treatment, ever given to a person?
“No. It is always meted out.
“Is anything else ever meted out?
“No. The only thing that is ever meted out is treatment.” —Myles na Gopaleen, The Best of Myles

“I heard Émile Zola characterize his [Droz’s] manner sometime since as merde à la vanille [vanilla shit].” —Henry James, reporting Zola’s diss of Gustave Droz in a letter to Thomas Sergeant Perry, 2 May 1876

What could Bitcoin possibly be good for other than money laundering and tax evasion? There’s an op-ed in the NYT today that maintains that it will help the poor with their banking and help the Federal Reserve manage the money supply. Surely these are the last things on earth that it would ever do—the things that it is least likely ever to do even accidentally. Governments refuse to allow gift cards that are dischargeable in multiple currencies, so it is inconceivable that they will not eventually be obliged to criminalize cryptocurrencies.

“To fear being ridiculous—is not to love truth.” —Turgenev, “A Correspondence”

equipollent (adj.): possessing equal power, identical in meaning

The two narratives are not equipollent.

—Gareth Dale, Karl Polanyi: The Limits of the Market

“It appears that my stuff has been over the heads of the readers. Imagine their stature!” —Henry James to Arthur George Sedgwick, 29 September 1876

“I believe fully, in spite of sneers, in interpreting the French Revolution by anecdotes, though not every diner out can do it.” —Emerson, journal, August 1849

“Eizenstat famously rebuked [Alfred Kahn] for publicly suggesting that rising inflation could result in a ‘very serious depression.’ Kahn responded by continuing to issue warnings of inflation-induced depression, but with the word ‘depression’ replaced with ‘banana.'” —Stephanie Mudge, Leftism Reinvented

At first depression seems to make one’s vision of the world sharpen. After all, narrowing the aperture for light increases the depth of field.

punnet (n.): small, light basket for strawberries, mushrooms, etc.

But there is a much more overwhelming sense of the strange beauty of tiny moments, such as [Oliver] Sacks’s response when Hayes dropped a punnet of cherry tomatoes on the kitchen floor (“How pretty! Do it again!”).

—Alex Clark, reviewing Bill Hayes’s Insomniac City in the TLS, 16 March 2018

semibreve: a whole note (under this terminology, a half-note is a minim, a quarter note is a crotchet, and an eighth note is a quaver)

The vaults and arches seem really to swing above you in great semibreves of rhythm.

—A. S. G. Butler, Recording Ruin

rani (n.): a Hindu queen, a rajah’s wife or widow

She had been there, unrememberingly, before, when she was small enough to ride in a backpack, little ranee on a jogging elephant, her view of the paintings relieved by the back of her father’s neck.

—Alan Hollinghurst, The Sparsholt Affair

“I don’t want to do so difficult a thing as dying without any chance of applause after having done it.” —Edward Thomas to Gordon Bottomley, quoted in Edna Longley, ed., Annotated Collected Poems

“The high, thin nose was a little lonely, a little sad, but the bud of her lips opened and closed smoothly, like a beautiful little circle of leeches.” —Yasunari Kawabata, Snow Country, trans. E. G. Seidensticker

shaw (n.): a thicket; the strip of trees or bushes forming the border of a field

. . . a law
Which was of old when one, like me, dreamed how
A thousand years might dust lie on his brow
Yet thus would birds do between hedge and shaw.

—Edward Thomas, “February Afternoon”

stook (n.): a shock; a group of twelve sheaves placed upright to support each other as the grain dries and ripens

The wheat, tawny with ripeness, had been cut and stood in tented stooks about the fields.

—Iris Murdoch, The Bell

“You make me want to bound about you and about the idea of you like an excited dog.” —Iris Murdoch to Michael Oakeshott, 4 November 1958

“One more step, and he would bid the dying gladiator be comforted by the stanzas of Childe Harold.” —Edward Thomas, critiquing the aestheticized “spectatorial attitude” of Walter Pater, quoted in Edna Longley, ed., Annotated Collected Poems

cagoule (n.): a thin waterproof hoodie

Both were swaddled in layers of fat, shiny nylon—what Alan now thought of as engorged cagoules.

—James Wood, Upstate

Believing in the Kool-Aid does not make it a good idea to drink it.

“Compared with a true artist’s conscience, Tamerlane is tenderhearted.” —Walter de la Mare, foreword to Edward Thomas’s Collected Poems (1920)

Butterflies must sometimes wish they could go back to being caterpillars.

thrawn (adj.): perverse, contrary, cross-grained, ill-tempered

He had some bread and cheese in his pocket, and this he began furtively to toss to the dogs, singling out for his favors those that seemed most thrawn in appearance.

—Gavin Maxwell, The Rocks Remain

“Inside the hall, the faces of the students and the lecturer were equally indistinct, which made everything somehow mystical, like eating a bean jam bun in the dark.” —Natsume Soseki, Sanshiro

What does it say about me that when I play fetch with the dog indoors, instead of saying, “Fetch,” I say, “Bring me the head of John the Baptist.”

Philosophy is a representation in language of what it is like and what it means to be in the world. Therefore it will always be impossible finally to distinguish it from literature and it will never be finished.

daedal (adj.): inventive, ingenious; rich, variously adorned; complex

. . . all the living things
that dwell within the daedal earth.

—Shelley, “Mont Blanc”

“And my relatives, moreover, were beginning to feel that this oldness in him was abnormal, excessive, shameful, and the sort of thing bachelors deserve, as do all those of whom it seems that the great day that has no day after is longer than it is for others because for them it’s empty, the moments in it adding up, from morning onward, without ever having to be divided later with children.” —Proust, Du côté de chez Swann

Listening to Nina Simone, I realize that I miss hearing people ask God to damn something.

How far away is Joan Didion from the character in Play It as It Lays who talks about “third-string faggots”?

Oh, ’tis a joy divine on summer days
When not a breeze is stirring, not a cloud,
To sit within some solitary wood,
Far in some lonely wood, and hear no sound
Which the heart does not make, or else so fit
To its own temper that in external things
No longer seem internal difference.
All melts away, and things that are without
Live in our minds as in their native home.

—Wordsworth, fragment 3 from the Christabel notebook

solatium (n.): a sum of money given to make up for loss, inconvenience, or injured feelings

The master in Osaka (Okubata’s older brother) had given him a modest solatium upon his being disinherited, and he had been eating into his capital ever since.

—Junichiro Tanizaki, The Makioka Sisters

To revisit the past is to say good-bye to it again, which is unbearable.

“Is it possible that any editor should endure any inconvenience without meditating an article?” —Trollope, Phineas Redux

A friend’s counsel to Phineas Finn, after he is slimed by Quintus Slide, the 19th-century version of an internet troll: “I don’t see what you can do. You have encountered a chimney sweeper, and of course you get some of the soot.”

Humans vs. AI: Our disadvantage is that we’re all essentially programmed the same, but we’re building many different AIs. There’s only one kind of “us” to be figured out, but every day someone puts together a new kind of “them.”

Arthur Russell sings in the key of heterosexuality with the same acceptance of generic constraint that ABBA sings in the language of English. One’s appreciation is in both cases heightened by the awareness that it isn’t natural.

“In a world where we are all transparent—unable to deceive each other—it might be rational to deceive ourselves about rationality.” —Derek Parfit, Reasons and Persons

“She began crying and laughing. This conflict of tears and laughter always reminds me of the flickering and spluttering of a brightly burning candle when one sprinkles it with water.” —Chekhov, “The Privy Councillor”

“It feels ominous to drive through West Texas with a clean windshield. Road trips always used to be accompanied by the incessant splatter of death. . . . The absence of insects seems to be part of a general diminution of life.” —Lawrence Wright, God Save Texas

clout (adj.): cloth, rag

But whenever did a pan or a clout—when kept clean and tidy—refuse to do its duty, or rebel against its lady?”

—T. F. Powys, Unclay

Music continued for a decade or two after it ended, but unless you already knew the provenance of one of these later songs, you couldn’t figure out when it had been recorded. You couldn’t even write an algorithm that could figure it out. The songs were already outside of music’s history.

After one has learned to manage the isolation and poverty, there is still the challenge of writing itself.

slane, or slean (adj.): a long-handled spade, with a wing or two wings on the blade, used for cutting peat

The men-folk were going to the turf-bogs with their sleans on their shoulders.

—Patrick Kavanagh, The Green Fool

barm (vi.): mix with yeast or leaven; rise in froth or fermentation

The porter was beginning to barm in bellies.

—Kavanagh, Green Fool

creel (n.): large wicker basket

The pot of potatoes was turned out on a creel.

—Kavanagh, Green Fool

Bassani captures perfectly the way that the mere visibility of a victim or former victim spurs in a fascist (or a fascist-leaning bystander) the impression of being unfairly attacked.

The word “mother” is always to some extent in the vocative.

The sonorous, etymologically spurious second “o” in the word “reportorial” is the reason one likes to say it so often.

“Be nice,” the man growled to his dog.

limber (n.): detachable, two-wheeled forepart of a gun-carriage, used for transporting ammunition

“And also, your honour, Artemyev got drunk yesterday, and the lieutenant ordered him to be put in the limber of a spare gun-carriage.”

—Chekhov, “The Kiss”

“And certainly this doesn’t mean that M. Legrandin was insincere when he thundered against snobs. He was incapable of knowing—on his own, at least—that he was one, because we only ever know the passions of other people, and insofar as we manage to know of our own, it’s only from others that we’re able to learn it. On us the passions only act in a secondary way, through the imagination, which substitutes for primary motives intermediate ones that are more decent. Legrandin’s snobbery never advised him to go see a duchess frequently. It charged his imagination with making this duchess appear to be arrayed with all the graces.” —Proust, Du côté de chez Swann; the passage also seems to describe the operation of unconscious racism

“The ferocity of the financial crisis in 2008 was met with a mobilization of state action without precedent in the history of capitalism. Never before outside wartime had states intervened on such a scale and with such speed. It was a devastating blow to the complacent belief in the great moderation, a shocking overturning of prevailing laissez-faire ideology. To mobilize trillions of dollars on the credit of the taxpayer to save banks from the consequences of their own folly and greed violated maxims of fairness and good government. But given the risk of contagion, how could states not act? Having done so, however, how could they ever go back to the idea that markets were efficient, self-regulating and best left to their own devices? It was a profound challenge to the basic idea that had guided economic government since the 1970s. It was all the more significant for the fact that the challenge came not from the outside. It was not motivated by some radical ideological turn to the Left or the Right. There was precious little time for thought or wider consideration. Intervention was driven by the financial system’s own malfunctioning and the impossibility of separating individual business failure from its wider systemic repercussions. Martin Wolf, the Financial Times‘s esteemed chief economic commentator, dubbed March 14, 2008, ‘the day the dream of global free-market capitalism died.'” —Adam Tooze, Crashed

“I once heard a filmmaker say that in order to be truly creative a person must be in possession of four things: irony, melancholy, a sense of competition, and boredom.” —Lisa Halliday, Asymmetry

“He who undertakes anything, thinking he is doing it out of a sense of duty, is deceiving himself and will ruin everything he touches.” —Auden, The Prolific and the Devourer

There is a charm in solitude that cheers,
A feeling that the world knows nothing of;
A green delight the wounded mind endears
After the hustling world is broken off,
Whose whole delight was crime—at good to scoff.
Green solitude, his prison, pleasure yields,
The bitch fox heeds him not; birds seem to laugh.
He lives the Crusoe of his lonely field
Whose dark green oaks his noontide leisure shield.

—John Clare, “Solitude”

Václav Havel’s legacy

“Havel’s Specter,” my essay on Václav Havel’s philosophy as manifested in his essays, his plays, and his political career, is published in the 9 April 2012 issue of The Nation.

If anyone wants to know what a Czech shopkeeper’s display window under Communism actually looked like, click on the gallery titled “Prague Shop Windows 1976–96” on the photographer Iren Stehli’s website.

For this essay, I consulted Havel’s plays and essays in English, as well as, in some cases, in Czech as published in his collected works, the first seven volumes of which were published by Torst in 1999. For biographical details, I relied on Havel’s autobiographical books, Disturbing the Peace and To the Castle and Back; Eda Kriseová’s campaign biography of Havel (1991; translated in 1993 by me in an earlier life; don’t blame me for all the typos! its original publisher went out of business before the book went to press and it was never proofread); John Keane’s problematic, tonally off-kilter 1999 biography; and Carol Rocamora’s Acts of Courage, which focuses primarily on Havel’s career as a dramatist. I also consulted the New York Times obituary and the chronologies at the back of Jan Vladislav’s anthology Living in Truth and on the website of the Václav Havel Library. Also useful were Hugh Agnew’s The Czechs and the Lands of the Bohemian Crown and Aviezer Tucker’s The Philosophy and Politics of Czech Dissidence from Patočka to Havel. Paul Wilson commented on Havel’s word samopohyb in “Notes from the Underground,” a 2006 article in Columbia magazine. Details of Václav Klaus’s political philosophy are taken in part from his book Renaissance. Klaus claimed that the role of dissidents had been exaggerated in a 15 November 2003 column in Mladá fronta dnes and repeated the claim in a 16 November 2004 interview with Hospodářské noviny as well as in remarks delivered in English in London in 2009. Wilson’s observations about Klaus’s eulogy were published in the New York Review of Books.

Just two days ago, I received in the mail a copy of my friend Jonathan Bolton’s new book, Worlds of Dissent: Charter 77, the Plastic People of the Universe, and Czech Culture under Communism, which I’m eagerly reading and highly recommend! I strongly suspect it will be the definitive account in English of Havel’s ideas about dissidence and the intellectual milieu in which they arose.

Is drone war just?

On Monday, December 13, I attended a panel discussion on “Drones and Targeted Killings Abroad: What is Legal and Who Decides?” It was hosted by the Federalist Society, at the Cornell Club in Manhattan, and the panelists were Ben Wizner of the ACLU and Michael W. Lewis of Ohio Northern University Law School. The moderator was P. Kevin Castel, a U.S. district court judge.

I was led there by my having complained to my friend Wesley Yang that there has been alarmingly little debate in America about whether killing by remote-controlled drones is ethical—whether it’s philosophically consistent with just-war doctrine. Wesley has been researching and writing about the high-stakes legal debates associated with the war on terror—see his recent profile in New York Magazine of Evan Kohlmann, the government’s most prolific terrorism expert—and he invited me—challenged me?—to come along with him to the panel.

The debate took place in a mustard yellow conference room. The Federalist Society is well-known as a conservative, strict-constructionist legal group, so it wasn’t too surprising to find a fair number of older white men in dark suits, flag pins in their lapels. While I was raiding the cheese-and-crackers table, one such attendee, observing a pile of knives and an absence of forks, volunteered that “The caterer must be a lefty.” It transpired that the quiet man sitting beside me during the discussion was Michael Mukasey, George W. Bush’s second attorney general; his identity was revealed to me at the end of the evening when people of the left and of the right converged to have their pictures taken with him.

Introduction by Judge Castel

Jane Mayer outlined the facts about America’s drone program and raised important ethical questions about it in “The Predator War,” published in The New Yorker on October 26, 2009. In his introductory remarks, Judge Castel seemed to draw on Mayer’s article. He noted that the U.S. has two drone programs. The first, run by the military, augments the work of troops on the ground. Castel suggested that the drones were controlled remotely with joysticks and monitored on flat-screen televisions, as the New York Times has also reported. The second program, Castel continued, “is said—I don’t know—to be run out of Langley, Virginia, by the C.I.A.” (Castel was careful throughout the evening to specify that the information he was presenting was secondhand, acquired by him from journalistic reports only, and that any opinions he might voice were to be understood not as representations of his personal judgment but merely as provocations, potentially fictional, intended only to stir up debate. As it happens, in a recent Guardian article about the recall from Pakistan of the CIA’s station chief, whose cover was blown last week by a Pakistani man angry over drone strikes that killed his father and brother, Declan Walsh reports that the CIA now manages its drones out of its Islamabad office rather than Langley.) Castel added that “It’s been said that some of the personnel will wear flight suits” while operating the drones. (This may not be true, however; Charlie Savage has reported for the Times that CIA drone operators do not wear military uniforms, in apparent contravention of the Geneva conventions, an awkward state of affairs that not long ago obliged the Obama administration to rewrite its military commission rules at the last minute while negotiating a plea bargain with Omar Khadr, a former child soldier and Guantanamo Bay detainee, downgrading the charge against Khadr from war crime to a domestic law offense, in order “to avoid seeming to implicitly concede that the C.I.A. is committing war crimes.”) Castel repeated the vignette that begins Mayer’s New Yorker article—the story of the August 2009 remote killing of Baitullah Mehsud, leader of the Taliban in Pakistan, while he was reclining on his roof receiving an intravenous drip. The United States and Pakistan are happy to have got rid of Mehsud, but Castel noted that the killing is thought by some to have taken place on the CIA’s sixteenth attempt to strike Taliban leader. (“During this hunt,” Mayer wrote, “between two hundred and seven and three hundred and twenty-one additional people were killed, depending on which news accounts you rely upon.”) Given such a high rate of collateral damage, can the killing be considered a success?

Castel cited data provided to Mayer by the New America Foundation, according to which Obama in his first nine months ordered as many drone strikes as Bush had during his last three years. (More up-to-date statistics are available on the New America Foundation’s website and in its February 2010 report on drone warfare; New America now claims that 45 drones strikes were ordered by the Bush administration and that the Obama administration, by contrast, ordered 51 strikes in 2009 and another 113 so far in 2010.)

Castel raised a number of questions: Do drone bombings reduce casualties of innocents by allowing operators to wait for certain identification of their target and a minimum number of bystanders? Are they a necessary means of war? Do they change the nature of war in an undesirable way, such that war no longer requires the virtues of courage and honor? (A June 2010 United Nations report warned that the U.S. drone program licensed a “‘PlayStation’ mentality to killing.”) Are any laws broken if the individual targeted by a drone is a United States citizen? If judges have to sign warrants before the government can eavesdrop on U.S. citizens, why don’t they have to vet the government’s requests to assassinate them? Are any laws being broken when the drones kill people outside of Afghanistan—that is, outside the theater of war as conventionally understood? As a closing sally, Castel raised the prospect of “nanodrones”—remote-controlled killing devices small enough to slip into a window—which reminded me of Neil Stephenson’s sci-fi novel The Diamond Age.

Castel then introduced Ben Wizner of the ACLU’s National Security Project, who helped to represent Nasser al-Aulaqi in a recent lawsuit against the Obama administration, which in April 2010 listed as an approved target for killing al-Aulaqi’s son, Anwar al-Awlaki, a cleric with dual U.S. and Yemeni citizenship alleged to have incited terrorist attacks. The al-Aulaqi/al-Awlaki case was dismissed earlier this month, when federal district court judge John W. Bates declared that the father lacked sufficient legal standing to challenge the government’s targeting of his son. Castel then proceeded to introduce Michael W. Lewis, a law professor at Ohio Northern University, who before taking up law served as a pilot for the U.S. Navy during the First Gulf War and the run-up to it.

Ben Wizner’s remarks

“In what circumstances can Barack Obama order the death of U.S. citizens?” Wizner began. He noted that the ACLU chose to assist al-Awlaki’s father in his lawsuit because the Obama administration had provided a legal opportunity by leaking to the media earlier this year its decision to target al-Awlaki for killing—a moment of transparency that the administration later backpedaled from in court, when it invoked the privilege of state secrecy in efforts to have the case dismissed. Wizner asserted that the recent dismissal of the case had been on standing rather than merits—that is, the judge ruled only that al-Awlaki’s father did not have an interest in his son’s welfare strong enough to give him the right to bring the matter to court; the judge did not say anything about the conditions that might give the U.S. government the right to kill one of its citizens. In fact, Wizner continued, the judge noted that the case raised “stark, and perplexing, questions,” such as

Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization?

Torture, Wizner said, is always illegal, but targeted killing is sometimes legal. According to Wizner, the ACLU does not contend that the government needs to obtain warrants before conducting targeted killings, nor does the ACLU believe that courts should be involved in real-time decision-making. Their contention is merely that such killings are only lawful in a theater of war and against an imminent danger. The Obama administration hasn’t disclosed its definition of lawful killings, but since it has placed individuals on its target list for months at a time, its standards must be more permissive than those proposed by the ACLU. Wizner observed that unsupervised powers are almost always abused in the long run, and that a policy of taking the government’s word for the prudence and wisdom of its actions hasn’t always worked out: the Bush administration claimed that it was only detaining dangerous terrorists at Guantanamo Bay, but the majority, it turns out, are far less scary than advertised.

Through the al-Awlaki lawsuit, the ACLU was asking the government to disclose its standards for remote killing. “Due process,” Wizner said, “requires at a minimum that citizens be put on notice as to when they could be put to death.” He noted that the Israeli government’s targeted-killing program had been challenged in court by human rights groups there, and that the Israeli Supreme Court had ruled that lethal force could be used by the government against individuals, but not for retribution, not if arrest or another lesser intervention could solve the problem, and not merely on the basis of membership in a group. The Israeli Supreme Court required that every instance of targeted killing be followed by a post-hoc investigation.

Why, Wizner asked, can’t the U.S. also make explicit its legal standards? The Obama administration has set no limits so far to its power to kill specific individuals, he maintained. The administration has not said whether the killings are permissible only when a threat is imminent, and if so, how imminent. Wizner suggested that the lack of clarity about the U.S. policy might help to legitimize targeted killings by other nations, whose ethical standards and target lists might not be palatable to Americans. In March 2010, Harold Koh, legal adviser to the State Department, defended the Obama administration’s targeted-killing program as justifiable as a matter of national self-defense; Koh claimed that the killings by drone were being conducted in accordance with the just-war principles of distinction (that is, they target only military personnel and equipment, not civilian ones) and proportionality (that is, they don’t kill more civilians incidentally than the military target is worth). Wizner granted that Koh’s argument might hold in its broad outlines, but Wizner insisted that Koh had not revealed enough details to enable anyone outside the Obama administration’s inner circle to judge whether the policy was in fact justifiable.

What limits, if any, can be put to the use of military force? Wizner asked. Can a U.S. citizen be killed in Yemen, with which the United States is not at war, as well as in Afghanistan, where the United States has acknowledged it is waging war? Is an organization like Al Qaeda in the Arabic Peninsula (AQAP) covered by the Authorization for Use of Military Force Against Terrorists (AUMF), the declaration of war passed by Congress a week after 11 September 2001, even though AQAP did not exist at the time and had nothing to do with the September 11 attacks? In closing, Wizner quoted the Israeli Supreme Court: “It is when the cannons roar that we especially need the laws” (a flip of the more familiar, much-abused Ciceronian tag).

Michael W. Lewis’s remarks

Lewis began by differentiating what he called the “law enforcement standard” from the “law of armed conflict standard.” In law enforcement, you’re only allowed to kill someone who poses an imminent threat. In war, however, you’re allowed to kill your enemies whether or not they pose an immediate threat. In the al-Awlaki lawsuit, Lewis averred, the ACLU was attempting to apply a law-enforcement standard to an armed-conflict situation. Furthermore, Lewis continued, the laws of war don’t recognize geopolitical borders as limits to military endeavor, and the ACLU’s advocated position would create sanctuaries behind international borders where none had originally existed.

The laws of war, Lewis summarized, distinguish civilians and combatants. Combatants are only recognized as such if they belong to an organization that enforces the laws of war; in the American army, for example, a soldier who gratuitously kills an Iraqi civilian may be tried by an American court martial and imprisoned. Balancing this liability is something called the combatant’s privilege: so long as combatants do not violate the laws of war, they are immune from prosecution for arson, murder, or damage to private property.

Anyone not a combatant is a civilian, and according to the Geneva Conventions, civilians may never be targeted in a military operation. But civilians also may never take part in armed conflict; if they do, they become targetable. By directing the actions of Nidal Malik Hasan (the Fort Hood shooter) and Umar Farouk Abdulmutallab (the attempted underwear bomber of Christmas 2009), al-Awlaki crossed the line, Lewis said, and rendered himself a legitimate target of lethal force.

What’s more, Lewis continued, crossing borders in pursuit of an enemy has traditionally been an accepted practice during wartime. In pursuit of FARC, the Colombian military has crossed into Ecuador; in pursuit of Hezbollah, the Israeli military has crossed into Lebanon. Neither incursion is considered a violation of the laws of war. (Asked during the question-and-answer period later about the controversy over American forces moving into Cambodia during the Vietnam War, Lewis argued that the scandal was not on account of the border crossing, but because the facts of the war were being kept secret from the American public.)

If a neutral country finds itself the host of a person engaged in hostilities with the United States, Lewis maintained, the country need not grant the United States permission to enter its territories in pursuit of him. But if the country wishes to maintain its neutrality, it must deny that person harbor. Yemen, where al-Awlaki is thought to reside, has in fact chosen to act as an ally, Lewis noted—referring, with a smile, to a State Department cable recently released by Wikileaks, which reveals that Yemen’s president promised the head of U.S. Central Command in January 2010 that he would keep his people in the dark about the American bombing missions against AQAP. (“We’ll continue saying the bombs are ours, not yours,” said Yemen’s president.)

As a matter of strategy, Lewis argued, granting terrorists political sanctuary was tantamount to giving them the initiative—allowing them to choose the next battlefield. It was, he insisted, to turn international law upside-down. (Lewis has further elaborated his support of the Obama administration’s targeted-killing policy in a paper posted on the Federalist Society’s website.)

Discussion

In the questions and answers that followed, the discussants made further interesting points, but this post is already rather long, and perhaps I should limit myself to relating a few of them in the course of sorting through some of my own thoughts.

When in the past I have read about the Geneva Convention’s definition of combatants, the emphasis has always seemed to be on the requirement that combatants wear an identifiable uniform—a requirement that has always seemed a little arbitrary to me, especially when used to justify the indefinite detention of people who were volunteer fighters from impoverished regions, where the purchase of a uniform may have been a relative luxury. I found more ethically convincing Lewis’s emphasis on the requirement that combatants belong to an organization that enforces distinction and proportionality in the waging of war. That said, unless I’m missing something, I’m not sure the difference between a lawful and an unlawful combatant is pertinent here. Lewis is arguing for the government’s right to kill combatants of either kind, and the legal point at issue seems to be whether the killings may take place in territory outside the theater of war. It doesn’t seem relevant that someone like al-Awlaki, by failing to belong to an armed force that obeys the laws of war, may have forfeited his right to the protections afforded by the Geneva Convention to prisoners of war.

Toward the end of the debate, Lewis said, almost as an aside, “I don’t see any difference, by the way, between a drone and a manned aircraft.” To my surprise, Wizner nodded. (For the record, I don’t know for certain whether he nodded in agreement or merely to express something like, ‘I recognize that argument,’ but it seemed to me that Wizner was signaling agreement.) I see now that Koh made a similar claim in his March 2010 remarks:

There is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict—such as pilotless aircraft or so-called smart bombs—so long as they are employed in conformity with applicable laws of war.

I see the force of the claim. It no doubt seemed unchivalric when swords were first superseded by gunpowder, but the point of war is to defeat the enemy while suffering as little injury oneself as possible. So the problem with drone killing isn’t the cocoon of safety around the person holding the joystick. That doesn’t mean there isn’t a problem with drone killing, but it does mean that some of my horror over the technology may be a little sentimental.

I was also surprised, during the question-and-answer period, to hear Lewis concede that he was comfortable with the proposal of “some form of post-action review” of targeted killings. It surprised me even further when he said that “the guys in Langley bother me, because they’re in Langley. Whether there’s law-of-war training in the CIA, I don’t know.” In other words, Lewis was worrying whether the CIA’s operators might themselves be unlawful combatants—a question that concerns me rather more than the question of whether al-Awlaki is one. When an American soldier goes rogue, he is court-martialed. What happens to a rogue CIA officer? No doubt it’s something unpleasant, or so one hopes, but the secrecy of the organization may make it all but impossible to verify whether CIA killings are in compliance with the laws of war. Given the CIA’s propensity in recent years for kidnapping and torture—of the innocent as well as the probably guilty—one isn’t disposed to take their good behavior on trust.

Lewis welcomed post-action review and was concerned by the secrecy shrouding the CIA’s involvement; Wizner did not object to targeted killings without prior judicial review. If the two of them were representative of informed political opinion, I found myself wondering, might it be possible for Congress to agree on some legislation? Surely the soldiers operating these devices would prefer to know for certain when they were and when they weren’t committing war crimes.

On further consideration, this fantasy began to seem a little overoptimistic on my part. The trouble is the chasm between the law-enforcement model and the armed-conflict model. Should terrorists be treated as criminals or as enemy soldiers? The great difference between these paradigms may be related to my niggling sense that there is something wrong with drone killing, even if it’s not the remoteness of the attack. Maybe killer drones upset the balance of power between individuals and governments by making it easier to kill a specific person—by making war microlocal. It is accepted that in war a certain number of innocent bystanders are killed. In law enforcement, however, any death of an innocent is an outrage. Why do we allow soldiers to kill the “wrong” people in relatively high numbers but not police officers? Perhaps it’s because we distinguish between peace and war, and we understand war to be a temporary state marked by conflict and chaos, in which a government uses force to accomplish broad aims such as taking control of a region. Under such conditions, we are willing to accept that the use of force may be imprecise. We understand that being at war is different from being at peace. Lewis’s concern about crossing borders is, I think, a red herring. If FARC’s soldiers move into Ecuador, then I think we understand that in their retreat, FARC’s soldiers trail the boundaries of the theater of war after them. The trouble is, what happens if a few of FARC’s leaders abruptly surface in Madrid? If, in such a case, the Colombian military were to start blowing up the FARC leaders’ apartments, it would be reasonable of Madrid’s citizens to object.

One of the benefits that people expect from government is personal security from attacks by government itself. (And protection from other governments; Madrileños expect that Spain will not attack them and that Spain will protect them from Colombia if Colombia tries to—and from FARC, for that matter.) The social contract is understood, at least in some strains of political philosophy, to be a haven from the state of war. If an individual may be killed by his government on its say-so, without judicial review before or after his killing, there is no haven from the state of war. In fact, security from such attack is so fundamental to well-being that a person vulnerable to it might be thought of as lacking a government at all. It is no remedy if a government merely promises that it will only execute dangerous enemies to social order. Citizens need to be able to feel confident about the government’s epistemology; they need to be able to challenge the government’s identification of enemies before the fact, or (less reassuringly) they need to be able to punish after the fact government officials who turn out to have been in error. A case as celebrated as al-Awlaki’s is not where the trouble is likely to lie; given the stir about him, the governments of the United States and Yemen have probably been obliged to think long and hard about the certitude of the evidence against him. (Still, to say a word for the criminal model: if Yemen’s president is willing to wink while the U.S. bombs terrorists within Yemen’s borders, can’t he bring himself to extradite a single terrorist for us? Does his tenure in power really depend to that extent on duplicity?) The possibility for injustice, however, will increase the further down one goes on the government’s target list. What if some individuals lower down are listed because the CIA has misidentified them, as it misidentified Khalid El-Masri, an innocent German citizen whom the CIA kidnapped and tortured in 2003 and 2004 because they mistook him for a terrorist with a similar name? What if the culpability of some individuals lower down on the list has been grossly exaggerated, as was the case with the Uighurs in Guantanamo Bay? Without the protections afforded to suspects under the criminal law model, such errors would never be redressed, and might not ever even be discovered.

I’m offering these thoughts with the caveat that I’m still thinking through these issues myself. I don’t feel that I’ve gotten to the bottom of them.