Punishing Violators of the Customs of War

Terrorists in Iraq, wearing no uniforms, recently violated the laws of war by the barbarous murder of two US soldiers.

AP:

The U.S. military recovered the booby-trapped bodies of two missing soldiers Tuesday, and Iraqi officials said the Americans were tortured and killed in a “barbaric” way. An insurgent group claimed the new leader of al-Qaida in Iraq executed the men personally…

“Coalition forces had to carefully maneuver their way through numerous improvised explosive devices leading up to and around the site,” the military said in a statement. “Insurgents attempting to inflict additional casualties had placed IEDs around the bodies.”

A number of the usual offenders from the Blogosphere have taken this occasion, when we should all be voicing our indignation at the conduct of the enemy, and wishing our troops success in hunting the malefactors down and exacting vengeance, instead to strike moralizing poses and quote grave legal opinions, informing us of imaginary obligations to avoid excessive injury to the enemy.

Stephen Bainbridge turns to Blackstone’s Commentaries on the Laws of England:

Islamofascist terrorists will use torture regardless of whether the US responds in kind or not…

The Anglo-American tradition, according to the great English jurist William Blackstone, includes a “prohibition not only of killing and maiming, but also of torturing (to which our laws are strangers).” We thus ought to abstain from torture simply because a prohibition of torture is part of the moral and legal heritage we are fighting to defend.

Andrew Sullivan gets carried away with himself to the point of spouting treason, attributing to us moral equivalence with this particularly vicious and cowardly enemy.

One can only wish that Andrew Sullivan would go out to a workingman’s bar, and repeat exactly the same sentiments, in order to give some right-thinking American the opportunity to rebuke them in the most appropriate fashion.

My point is that we can no longer unequivocally condemn the torture of these two soldiers because we have endorsed and practised torture ourselves. What was once a difference in kind between us and our enemy is now a difference in degree. That fact profoundly weakens our moral standing in the world, the power of our cause, and impedes the long-run success in the war of ideas that the war on terror involves.

Gregory Djerejian contributes additional sanctimony.

Clearly, when American soldiers are tortured, murdered, and multilated by illegal combatants, the decision of just how the perpetrators should be punished, were the perpetrators of that outrage so unfortunate as to fall alive into the hands of US forces, ought to be the perogative of the local American commander. Politicians should not interfere, and the opinions of domestically-based law professors, corporate attorneys, and old ladies are completely beside the point.

The Laws of England and the Laws of the United States have not a thing to do with any of this. War takes place outside the jurisdiction of civilian law, and the murderers of Privates Menchaca and Tucker have no claim whatsoever to the privileges and immunities of the US legal system nor the least pretence to a right to be treated as prisoners of war.

They are unlawful combatants, and are eggregiously guilty of violating the customs and usages of war. Their lives ought to be regarded as forfeit, and the only questions a US commander on the scene ought to be asking himself in the event of their capture are: what form of execution would be regarded as most disagreeable by primitives infatuated with Islamic superstition? and, what would make the most dramatic impression, and provide the greatest deterrence to future outrages?

The British avenged the Sepoy Rebellion of 1857 by tying the mutineers to the muzzles of cannons, which were then fired. Surely, we can do better today.