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What if?

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What if?

Individual liberty versus personal safety; drone strikes and targeted killings; the denigration of parliamentary processes: Otago alumnus Professor Jeremy Waldron discusses some of the legal and philosophical complexities of modern politics.

An insurgent detonates a roadside bomb on Thursday, but is killed doing his civilian job by a missile from a foreign power’s aerial drone on Friday morning – this distinctly 21st century method of “targeted killing”, says Professor Jeremy Waldron, adds extra complexities to centuries-old debates on where criminal law and the rules of war intersect.

Discussion on this and other legal “blurrings” has underpinned much of his academic career, which began with a Bachelor of Arts (Philosophy) and LLB (Law) at Otago in the mid-1970s. His interest in law and philosophy pre-dated undergraduate study.

“There were five children in our family and we always received volumes of the Oxford Junior Encyclopaedia. We got the set pretty quick – I got one called ‘Law and Order’,” he laughs.

Otago furthered his intense interest in the “intricacies of the whole legal process and systems, and the ideology of the rule of law”.

He has since lectured at several prestigious universities including Berkeley, Princeton, Columbia and Oxford, and now New York University’s School of Law. In 15 books and numerous articles he has explored a range of questions on political theory, constitutionalism, the rule of law, democracy, torture, security, homelessness and international law.

Post 9/11 and the US invasion of Iraq, his work – such as his 2010 book Torture, Terror and Trade-Offs: Philosophy for the White House – has delved into the opaque world of interrogation and torture to explore how public safety can be maintained in a way that protects the inviolate rights of the individual.

He has most recently discussed individual-liberty-versus-public-safety themes in the context of state-sanctioned “targeted killings”.

A primary concern is that while the rules for conventional warfare – where the chess pieces of two opposing powers line up to fight “symmetrical” battles – are well-defined by various international conventions, laws surrounding counter-insurgency and killing by drone or death squad are more fluid.

“Terrorists – or insurgents, if you support their cause – only do it part-time. The question, about someone who is a part-time mechanic and a bomb-maker, becomes whether it’s lawful to target that person when they are not engaged in lethal activity."

“On the one hand, drone strikes or operatives on the ground protect the state’s national interests, and the safety of its citizens, but it has to be done in a way that allows states to maintain the moral high ground. It presents many interesting legal questions.”

In recent years, as the Obama regime stepped up targeted killings, questions of legality were increasingly asked, he says. The BBC reported White House figures showing US drone and air strikes killed between 64 and 116 civilians outside war zones between 2009 and 2015 – human rights groups argued the number of non-combatants killed was far higher.

While others discuss the broader moral dilemmas these strikes present, Waldron focuses on providing clarity on legal issues.

“It would be easy to say, ‘if only we could resolve issues around sovereignty, or limiting collateral damage or doubt about the identity of targets’ – but that would be a distraction, for me, from talking about where counter-terrorism measures sit on the cusp between law enforcement and military engagement and whether the lethal logic of the war model could, or should, work in combination with the individualised logic of the crime control model.”

A key question is whether the use of lethal force becomes dependent on the ability of the main protagonists to rationalise their actions – or if “fire can be fought with fire”.

“The Israeli Supreme Court is one of the most articulate defenders of the position and says their state must defend itself with one hand tied behind its back. In 2006 it said targeted killing was permissible when armed apprehension and capture of insurgents wasn’t a possibility. But US courts see this as a political question.”

This distinction was tested in 2010 when Nasser Al-Awlaki appealed to US courts for his son Anwar’s name to be removed from a death list: the courts decided they would not hear the case because it was a constitutional issue, Waldron says.

Anwar, a US citizen who the Obama regime said had links to terrorist groups and individuals linked with terror plots, was killed in the Yemen by a missile fired from a CIA-operated drone in 2011.

But has increased use of drone strikes seen them become publicly normalised, despite their precarious standing in international law?

“Just as he was anxious from the outset to move away from the prisoner detainee model that had damaged President Bush, President Obama increasingly dictated that Special Forces, under the military chain of command, would control targeted killings.

“This was a way to challenge the multiple difficulties it was facing legally – he wanted to make them look more procedural. But the notion that the US will maintain a death list of 300 to 400 people is always going to look somewhat anomalous.”

Aside from writing on terrorism, Waldron’s work in New Zealand over the past 20 years has been to return to “scream a little bit” at the denigration of parliamentary processes that ideally involve many MPs, but which end up “being browbeaten and dominated by the executive”.

“It’s mitigated somewhat by the committee system, but you don’t have the different layers of scrutiny in place that you have in the US, especially after the second chamber was abolished in New Zealand in the 1950s.”

Apart from theatrics in the House, the erosion of a robust process – he cites a rule which allows members of parliament to not be present in the chamber when voting on issues – means parliament can be seen as a “talking-shop” by a disengaged public and portrayed as “comedy hour by the news media”.

The ultimate danger with all safeguards gone is “effectively elective dictatorship – a system in which cabinet controls all agendas”.

Whether it is parliamentary process or terrorism, Waldron’s work explores an important “what if?”

“We have to think about the checks and balances, and maintaining rigorous legal systems. Counter-terrorism, for instance, requires greater scrutiny because it improves our security by making other people more vulnerable – we trade off the liberty of a minority for our security. When we do that there are important distributive questions about the equity of benefits and burden.”

And what if the rules from the “war on terror” are arbitrarily applied to fight the “war on drugs” in the US, and targeted killing became part of a domestic strategy for crime prevention? Ultimately, Waldron says, justice must prevail.

“In a democracy, there’s always that interplay between popular pressure – because when you say popularism you refer to the people whose lives are affected by terrorism or drugs – and the requirement to maintain the rule of law.

“If we purport to occupy the moral high ground in the war against terrorism the indispensable part of the strategy must be transparency and recourse to international laws. To put it another way, we would seriously discredit the struggle against terrorism to the extent to which we descend into the unconstrained use of lethal force.”

Story: Sam Stevens
Photo: Alan Dove