David and Jonah are obviously right that the immoral rules of engagement (ROE) the commander-in-chief has imposed on our troops have encouraged Islamic State jihadists to endanger civilians – not that terrorists need much encouragement in that regard. As David observes, this turns the laws of armed combat on their head.
I’ve been venting about this for a number of years now. The driving purpose of international humanitarian law is the protection of civilians. What makes honorable combatants honorable, and what triggers the international-law protections they are owed if captured, is their adherence to venerable standards requiring that they, among other things, identify themselves as soldiers, carry their weapons openly, and confine their combat operations to legitimate military objectives.
This does not mean refraining from attacks in which civilians may be harmed or killed; even if it is certain that civilians will be killed, combat operations are legitimate if they are proportional – if the military value of a potential attack justifies the likely harm to non-combatants and civilian infrastructure. The laws and customs of war are geared toward bringing hostilities to a conclusion (which does not mean a pause). Imposing ROE that obsess over the possibility of civilian casualties to the point of paralyzing military effectiveness is not humanitarian, notwithstanding the good intentions. It prolongs war, which increases the carnage.
Moreover, the commander-in-chief of the United States armed forces has no higher duty than the protection of the men and women who put their lives on the line to protect our nation and pursue its vital interests. The achievement of those objectives serves international peace and stability far better than ROE that endanger our troops while nullifying their capacity to project force. If an objective is not sufficiently in the national interest to justify risking civilian casualties, our troops should not be deployed to achieve it. Nothing is worth putting our forces in harm’s way with their hands tied behind their backs.
The Framers would have regarded unconscionable ROE as an impeachable offense of the first order. My book, Faithless Execution, traces the debates over the Constitution’s eventual Impeachment Clause and illustrates that “high crimes and misdemeanors” is a term of art borrowed from British law. Its focus is political accountability for wrongs inflicted on society at large, particularly those that betray the president’s high constitutional responsibilities. Much more than a penal code’s felonies and misdemeanors, which focus on criminal culpability for private wrongs, “high crimes and misdemeanors” resembles offenses against the code of military justice – e.g., dereliction of duty.
There is no political will in the country even to consider impeaching the president. Because impeachment is a political remedy, not a legal one, it is irrelevant how many provable high crimes and misdemeanors there may be in the absence of public support for a president’s removal. Nevertheless, as I argued in the book (which was published in spring 2014, long before the latest reports about the ISIS campaign), if one were to outline this president’s impeachable offenses, a charge of dereliction of duty base on the ROE would be among them. The commander-in-chief has
imposed on American armed forces serving the United States in congressionally authorized combat missions, in Afghanistan and elsewhere, unconscionable rules of engagement. In a war against terrorists who hide among civilians, and who strategically use civilians to shield themselves when plotting and launching attacks, he and his subordinates have imposed rules-of-engagement restrictions that prioritize the safety of Afghan and other civilians over the lives of Americans troops. U.S. forces have thus been admonished not to fire unless they are certain the target is not only an enemy operative but is also armed. They have been forbidden in all but the most dire circumstances to enter civilian homes – in a war zone, in the places where the enemy notoriously hides – absent “extraordinary circumstances involving urgent risk to life and limb.” And they have been denied air cover while under attack due to fear of potential civilian casualties. Of the more than 2300 U.S. combat deaths in and around Afghanistan, twice as many – nearly 1700 – have occurred during his five years as commander-in-chief than during the first seven years of the war. [Footnote omitted.]
In more sensible times, this would not have been tolerable.