War, war, war. The declarations that we are "at war" are coming furiously now — at war with an unknown enemy, at war on a battleground of the whole world. But we aren’t at war; what was done to New York (those poor dead secretaries and lawyers and janitors and insurance brokers; those poor brave fire fighters and police) and Arlington justifies military action, unilateral or multilateral, in a way that I think nothing in Kuwait ten years ago did. But is it war? "War" implies a relationship between belligerent countries or between a faction within a country attempting to overthrow its government. If we aren’t at war with Afghanistan — and we aren’t at the moment, although it seems more likely by the day — what country are we at war with? Bin Laden, if he is responsible for the bombing, was not attempting to install himself or Al-Qaeda in a position of power within the United States. This isn’t a matter of empty semantics; it’s a matter of fine legal distinction. There are rules — even if they are honored more in the breach than in the observance — that the sides are meant to follow. Blowing up a factory because it can produce matériel is a legitimate wartime activity. Firebombing a city is horrible, but it might be a legitimate wartime activity. Piloting a commercial plane carrying a full tank of jet fuel into the Pentagon might well fall into the bounds of warfare; bombing it certainly would.
When soldiers surrender during wartime, you cannot put them on trial for their behavior unless your own soldiers would be put on trial for that same behavior; it’s in the Geneva Conventions:
If any law, regulation or order of the Detaining Power shall declare acts committed by a prisoner of war to be punishable, whereas the same acts would not be punishable if committed by a member of the forces of the Detaining Power, such acts shall entail disciplinary punishments only.
If we are at war, a credible case can be made that sabotage and even terror attacks are fair game. (Of course, if we are at war, we can shoot beligerents caught behind the line of battle and out of uniform as spies, but the point remains the same.) We are not at war. We aren’t even performing the moral equivalent of war. We are hunting down criminals.
As this Slate Explainer helpfully notes, Congress is empowered by Article I, Section 8, of the Constitution to "define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." The pirates of Tripoli were targeted by the U.S. Navy at the very beginning of the nineteenth century; Stephen Decatur, after learning that Jefferson had ended hostilities, made his famous toast (then, it was to the rule of civilian law; now, I fear that it’s acquired a rather different meaning): "My country, may she ever be right, but right or wrong, my country."
I don’t know whether the war I fear is coming will be another Desert Storm or another Vietnam. I can’t make up my mind if this is the start of a new century of conflict or the death throes of the last. I do know that I worry that the Geneva Conventions, those almost laughable attempts to civilize war, are going by the wayside. We are engaged with enemies that will no longer play by rules:
The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary.
The Contracting Powers agree to abstain from the use of projectiles the object of which is the diffusion of asphyxiating or deleterious gases.
After due notice has been given, the bombardment of undefended ports, towns, villages, dwellings, or buildings may be commenced, if the local authorities, after a formal summons has been made to them, decline to comply with requisitions for provisions or supplies necessary for the immediate use of the naval force before the place in question.
And I worry that by the end of this, we won’t be so concerned with those rules either (if, in fact, we have been since Vietnam). War is hell, and perhaps war cannot be made anything but hell, but those laughable European diplomats tried.