IN DEFENCE … NO, MAKE THAT IN PRAISE, OF OMAR KHADR

Here’s a newsflash for all those American servicemen serving in Afghanistan and Iraq. And for their wives.

When you enlist in a nation’s armed forces, there’s an understanding that at some point you may be asked to go off somewhere to try to kill some people. No, not people who were trying to kill you first. They’re only trying to kill you now because you’re there trying to kill them. If you went home, they wouldn’t be trying to kill you anymore. Maybe, so long as you’re not still trying to kill them, they’d even invite you to stay on for a while, as their guest. But as I say, not if you’re only staying to try to kill them.

It might be supposed that they were trying to kill you first. Certainly your government has taken pains to describe 9/11 as unprovoked, as in “We wuzn’t doin’ nothin’!” If you believe that you’ll believe pretty much anything, including that the cannons trained on their villages had nothing to do with the aboriginal peoples of your country signing away their land in exchange for the promise of … What was it again? Ah yes, a medicine bag.

But don’t get me wrong. To say, as I’ve just done, that 9/11 was your due, is not to say you ought not to have done the things you did to earn it. On the contrary, the occasional lick the people you’ve aggrieved manage to get in – 9/11 was just a lucky shot, and probably a one-off – pales when compared to what your people have gained from your government’s policies abroad. Nature’s red in tooth and claw. It’s how natural selection works. It’s the way God intended it to be.

Some day God will intend that it’s someone else’s turn to be the Amalekites. Maybe yours. But not today. Today you’re riding high. So enjoy the ride. But do not whine about the pittance you have to pay as your fare. Whining is unmanly, the gender-neutral term for which is unseemly. And the one thing God cannot abide – I’m one of His Chosen People, and He and I’ve talked about this – is unseemliness.

Joining the army is different from just joining the police force back home. Between law enforcement officers and those over whom they’re charged with enforcing the law, there’s an unwritten understanding. If you tell me to move along now, and I go quietly, you won’t shoot me. That’s win-win all around. But when we’re at war, if I have to move from where I am it’s a loss for me, because which of the two of us has to move is precisely what we’re at war about.

You can bethink yourself just a peace officer, a peace keeper, a keeper of the peace, call yourself what you will. You’re just lending a hand to the local government – right? – albeit the quisling one you’ve just installed. But thinking so doesn’t make it so. Or at least not your thinking so. What matters is what I’m thinking. If I’ve given uptake to the quisling regime you’ve installed, then I’ll move along when instructed to do so. But if not we’re going to have to try to kill each other. And this is why you can’t just install a quisling, instruct him to invite you to remain, and then redefine our war as a mere police action.

Well, you can. But then you should be neither surprised nor offended when someone tosses a grenade into the open window of your police car.

So in bringing our jurisprudential intuitions to bear on a particular killing – was it a crime or an act of war, and if the latter was it a war crime or fair game? – we need to decide, before anything else, whether the parties were at peace or at war. Here, however, we can’t allow the answer to depend on what the belligerent in question might think, because then every petty criminal will demand to be treated as a POW, immediately thereafter declare surrender, and then, since there’s now a cessation of hostilities, claim his right to be released. The Japanese soldier who hid in the jungle because he didn’t know his Emperor had surrendered was one thing. But if he’d known but decided to fight on anyhow, that’s something else entirely.

And it’s for drawing that distinction that we have both the concept and the institution of something we call sovereignty. Sovereignty is not a normative notion, it’s a descriptive one. A nation is sovereign if there’s someone who, in his negotiations with other sovereigns, can reliably speak on behalf of his citizens, not because he has their proxy, but because he has the power to force their compliance with the terms he’s negotiated.

And it’s here wherein lies the rub. In neither Afghanistan nor Iraq was there a sovereign in place to enjoin his subjects to lay down their arms and then enforce that injunction. The installation of a quisling doesn’t alter this unless that quisling can now enforce the order that we all lay down our arms. But even if he can, is he the new sovereign or just an agent of the occupier? And if just the latter, aren’t an occupied people supposed to resist their occupation?

Well yes and no. If I raise the white flag I thereby forfeit my right of resistance in exchange for you forfeiting your right to kill me. If I don’t honor my forfeiture I can hardly expect you to honor yours. In the course of specific battles in both Afghanistan and Iraq, white flags were indeed raised. But since no sovereign was in place to surrender on behalf of all his subjects, any combatant who did not signal surrender remained legally and morally free to resist.

The occupier, of course, will disagree. But it’s a specious disagreement. And a disingenuous one. The only people who’ll buy it – and they’re really the ones to whom it’s addressed – are the same ignorant citizens back home who thought, vis a vis 9/11, that “We wuzn’t doin’ nothin’!”

So with respect to the firefight that took place in the Afghan village of Ayu Kheyl on July 27, 2002, in which one Christopher Speer was killed, one Layne Morris was wounded, and Omar Khadr was captured, the first issue that must be resolved is the jurisprudential status of that firefight. And that, in turn, hangs on the jurisprudential status of the type of which that firefight was a token. If Khadr was an ‘illegal combatant’, indistinguishable from a cop-killer on any street in America, then he’s entitled to the same due process as that cop-killer – which, by the way, he wasn’t afforded – but also liable to the same kind of post-conviction punishment. But if Khadr was an unencumbered soldier when he threw the grenade that killed Speer and wounded Morris, he is to be congratulated for having done his job well. If, upon his capture, he remained a soldier, but now an encumbered one, then there’s no question that his treatment at and after Guantanamo Bay has been unconscionable. He is owed an apology, by the Canadian government, by his American captors, by Morris, and by the widow of Speer. If they think he owes them one, they need to pull their heads out of their asses.

As a political philosopher, and as a philosopher of war, I can attest that this is the single most difficult problem in either, and therefore in both. It surfaces and resurfaces like the dolphin off the port bow. It dominated the jurisprudence, both in the court of law and in that of public opinion, with the hunger strike deaths of Bobby Sands and nine others in 1981. And now, with Guantanamo Bay, it’s come back to haunt us yet again.

Why? Because it was never resolved. It was never resolved because it can’t be, and it can’t be because there’s no fact of the matter to which we can appeal or on which we can triangulate. Unless Khadr and his captors are willing to refer the matter to compulsory arbitration and abide by that arbiter’s decision – and that ain’t never gonna happen! – any talk of justice will be mere phonemes in the wind. As Hobbes put it, “[In] this warre of every man against every man … the notions of right and wrong, justice and injustice, have there no place.” So yes, Abu Ghraib was, and Guantanamo Bay remains, a blatant violation of the Geneva Conventions to which the Americans are signatories. But so what?!

A law is enforceable. If not it’s just entreaty. A convention lies somewhere in between. It’s enforced by nothing other than the retaliatory behavior-in-kind of one’s co-negotiators. Under normal conditions that nothing-other-than is not nothing. It’s what stands between us and a return to inter-tribal savagery. But the Americans don’t have to worry about their POWs facing like treatment, because they’re dropping their Daisy Cutters from altitudes beyond the range of the enemy’s SAMs.

And so ISIS has rightly taken its gloves off to fight as dirty as it can, given its limited wherewithal to fight at all. Such is the nature of ‘asymmetrical warfare’. Always has been, always will be. Fighting clean is the luxury of symmetrical pugilists, like the jousters of old, or the battle lines at Jena or Waterloo.

Some fights can be fought clean. Others cannot. Occupations can get particularly grotty. And whether fairly or not, the stench tends to cling disproportionally to the occupier. The Germans found that out in Poland and the Ukraine, the Israelis in the West Bank and Gaza, the Americans in Vietnam, and now they’re finding it out again in Afghanistan and Iraq.

In fact opposition to those invasions was driven not so much by worries about body bags – no one thought the cost of Afghanistan or Iraq would come anywhere close to the 55,000 in Vietnam, and it hasn’t – but by the moral morass a long-term occupation would invite. And they were right to worry. Soldiers at the end of their tour bring that morass back with them. Hence the epidemic of Islamophobia in America, and the emerging fascism that invariably accompanies xenophobia.

The occupied eventually recover from their occupation. The occupier never does. Which is not to say occupation is invariably a bad thing. It’s to say only that it carries costs, some of which defy quantification by the usual designated bean-counters.

Since we’re comparing war and mere criminality, I should add that a parallel analysis can be drawn about capital punishment in America. Most abolitionists hang their case on their worries about wrongful conviction, the argument being that a wrongful execution cannot be repaired. Well, neither can time lost in prison. Nor, save where there’s been malicious prosecution, will it even be compensated.

A better argument – one which police associations are too thick to recognize – is that the bank robber who’s already killed someone in the bank, isn’t an idiot. He knows that with a hundred cops surrounding the building, he’s not going to miraculously escape. But the prospect of capital punishment removes any reason not to just go down fighting, taking a cop or two down with him. So given that the deterrence argument is well known to fail, capital punishment can’t save lives, it can only endanger them.

But even in Texas, the number of executions is very very small. And so the better argument still is the symbolic one. It’s what capital punishment signals to all the rest of us. In a polity in search of civility – and God knows America could use some – it brutalizes instead. It’s hard to kill without a healthy dollop of hatred. So if killing is acceptable, so is hatred. Fascism feeds on hatred. And so Americans have allowed yet another vector to encourage rather than combat the fascism lurking within the American ethos.

But I digress.

I’ve said that there’s no fact of the matter to which we might appeal to decide whether Khadr was

a) a soldier entitled to whatever our conventions on the treatment of our POWs afford him, or

b) a criminal who, having been charged with a promulgated offense, is entitled to due process, including a jury of his peers, or

c) some third category concocted ad hoc for the sole purpose of ducking both (a) and (b).

There is, however, a fact of the matter – even if difficult to precisify – about the consequences of whichever of (a) or (b) or (c) we select. But there are certainly some general inferences we can make:

Opting for (a) is going to encourage resistance to occupation. Opting for (b) is going to require amendments to America’s criminal code that the rest of the world will consider laughable. And opting for (c), though it might marginally discourage resistance, is going to set any progress we’ve made in jus in bello and post bellum back about two-thirds of a century, pretty much to the beginning of the Second World War.

Of course an additional consideratum – albeit now only in retrospect – is how each of these options would have sat with the American military, and with American public. Neither (a) nor (b) would have sat well with either. So from the purely short-term political perspective, (c) was pretty much a duh. And that, no doubt, is why your government chose it.

But have these short-term gains been worth the long-term damage? I think not. But then I’m not an American. But neither am I a disinterested onlooker. I’m a philosopher of war, not because I’m a pacifist – I’m not – but because I think that when we have to draw blood, there are more and less pareto ways of going about it. I think that by honoring Khadr, as option (a) would do, yes we’re rewarding resistance. But by rewarding resistance we might encourage the occupier to be less provocative of that resistance. And that, I think, would be pareto. The occupier would get less of the fruits of victory, but at a lower cost, and the occupied would retain some of that fruit at virtually no cost at all. Back to win-win.

Win-win yes, scoffs, the pacifist, but not nearly the payout of not going to war in the first place. If America hadn’t invaded Afghanistan, Omar Khadr would have had no reason to toss that grenade. If America hadn’t invaded Iraq, there’d have been no Malachi regime, hence no persecution of the Sunni minority, and hence no rise of the resistance to that persecution which then morphed into ISIS.

All of which may be true, but so what? Nations don’t go to war to make the world a better place. They go to war to make the world better for them. Tooth and claw, remember, tooth and claw. If “men had all agreed to put an end to war,” then “last night” you did indeed “dream the strangest dream [you’]’ve ever dreamt before.” War is how natural selection works. It’s the way God intended it to be.

The invasion of Afghanistan was a bad idea. The invasion of Iraq was a worse one. The latter is now the second longest war in American history, but only because the former is the longest. Neither has been the most expensive. That was still WWII. Vietnam takes first place for lowest return on investment. In short, America has a rather checkered track record in victories and defeats. But there’s something churlish – is there not? – in taking one’s humiliation out on a hapless fifteen year old kid after the fact for just doing what he was there to do in precisely the way Speer and Morris were just doing what they were there to do.

Some people think Khadr should be excused because of his age. I think he should be lionized all the more for it. Child soldier my ass! Fifteen year olds have been going to war since before we emerged from the cave. In fact I wouldn’t be surprised if fifteen has been at or above the average age of ‘enlistment’ since before we emerged from the cave. And to suggest that he was a mere dupe of his even more infamous ‘terrorist’ father is even more myopic. It suggests that Speer and Morris were not dupes of whomever or whatever sent them into battle. Doesn’t the obituary of every soldier who’s fallen in Afghanistan and Iraq include the mandatory assurance that “He believed in the mission.”? I suspect Khadr knew a helluva lot more about what he was fighting for than pretty much any of the soldiers he was defending his country against.

“Not his country!” you counter.

Why? Because he was born in Canada? If so, then what do you want to say about the young people, some of them no more than fifteen, who came from every corner of the world to fight against Franco and the fascists in the Spanish Civil War? They too lost, and many of them died for trying. But some of the greatest literature of the century was penned to honor their courage, while for his Khadr has spent a decade in a brutal prison, and a couple more years behind bars in the country that was complicit in the violation of his military, civil, and human rights.

Yes, in 2015 he was finally released. And yes, just recently he’s been given a begrudging apology and a few shekels to try to make something of a life for himself. But it’s not an apology if it’s begrudging. And an out-of-court settlement settles nothing if it’s opposed, as apparently it is, by two thirds of the taxpayers whose ‘settlement’ with him it is.

A judge in Utah awarded Morris and Speer’s widow $134,000,000 for the injury to the former and the wrongful death of the latter, though thankfully neither will collect a penny of it. Still, the suit was unmanly of Morris, and unseemly of the widow Speer. Both of them knew, or should have known, that when you enlist in a nation’s armed forces, there’s an understanding that at some point you may be asked to go off somewhere to try to kill some people. And that when you do, there’s an understanding that those you’re trying to kill are going to try to kill you first.

If you can’t accept that, then you had no business enlisting in the first place, or allowing your husband to. If they want compensation for their loss – and I wish them God’s speed in getting it – their claim is against their own government, not the outnumbered and outgunned kid who had the good fortune, but also the balls, to take two of the enemy down with him, and then, after thirteen years of unlawful confinement, the dignity to stand tall and just get on with his life.

I’ve never met Mr. Khadr. But I’d be honored to. Some men aspire to greatness. Others have greatness thrust upon him. I doubt whether Omar Khadr is a great man. But I have little doubt he’s a good one. If, at the end of the day, just that is the most that can be said of me, I’d be okay with that.

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