Wars and Pieces of Law

“The halls of Montezuma,” in the Marine Corps Hymn, refers to the Mexican War, in which the US regularized the border with Texas and acquired by conquest New Mexico, Arizona, California, Nevada, Utah, and parts of Colorado.

While we look at the Mexican War in the rear view mirror as a flagrant act of Yankee imperialism, the truth of the matter at the time was that the border between Texas and Coahuila (the Mexican border state of which Texas was formerly a part) was unsettled, violent, and the peaceful means to resolve border disputes had not yet been institutionalized in the Permanent International Court of Justice.

Mexico had more men under arms than the US. Mexico lost because it was disunited and out-generaled, not because it was a pushover.

For flagrant imperialism, the War of 1812 would be the poster child. The US set out to annex Canada on a fake pretext and got its butt handed to it by a coalition of British and First Nations forces, and the former burnt the US capital to add insult to deserved injury. The US chooses to remember the success by the Indian fighter Andrew Jackson at the Battle of New Orleans, fought after the war was over.

Whatever the politics of the times, these two colonial power skirmishes left Indian nations divided by imaginary lines on a map between the US and Canada on the north and Mexico on the south.

For most of my lifetime, these borders had little practical effect. Because I am not Abenaki, Blackfoot, Six Nations, O’Odham, Yaqui, or any of the other nations that wound up bisected, my experience was that of a tourist. I was used to visiting Canada or Mexico as I pleased.

Since the attack on the Twin Towers, you are supposed to have a passport to cross those lines. The borders, we were told, had to be laced up tight as necessary security during the infinitely durable “war on terror.”

Are we at war or are we not? This is hugely important.

Speaking from inside the US, was the Congressional authorization for use of force the necessary equivalent of a declaration of war?

No, it was not necessary, and no, it was not the functional equivalent of a declaration of war. The executive (at that time, President Bush) did not need the permission of Congress to pursue organized crime by non-state actors across sovereign borders. See Thomas Jefferson's action against the Barbary Pirates immortalized in the Marine Corps Hymn, "to the shores of Tripoli."

Congress has the authority to forbid the executive from taking action that involves crossing sovereign borders. See the statutes President Reagan violated in the Iran-Contra scandal.

I say "war on terror" is rhetorical excess like "war on poverty" or "war on drugs." It denotes a level of commitment to a goal, not a legal state of war.

It makes all the difference in the world what laws apply to these conflicts. So far, Presidents Bush and Obama have both cherry-picked between the laws of war and the laws of transnational crime to justify whatever policy seemed wise from time to time.

I don't blame them. If I had the duty the POTUS has, I would probably do the same for as long as I could get away with it. That may be a long time, because the judiciary has little stomach for ruling on war powers until it absolutely must and Congress, which has authority to control military adventures, is reluctant to fade the heat when it can be put off on the POTUS.

To say that I understand is not to say that I approve or that I enjoy the ignorance of the US electorate. Self-government is a lot of work. Get used to it.

We hear a lot of nonsense about killing US citizens with drone strikes. I cannot imagine what difference it makes whether a target is a US citizen?

If they are soldiers on a battlefield, it is lawful to remove them with Hellfire missiles, and the platform from which the missiles are launched does not matter. If caught, they can be detained without trial until the war is over, but if detained on American soil they can use the writ of habeas corpus to test whether they are in fact combatants.

If they are violent felons and cannot be taken into custody by peaceable means, they can be shot on sight. It happens every day in cities all over the world, and it was English common law that a law officer could shoot a fleeing felon before the US existed. In modern times, the felony has to involve violence, but with that addition the rule remains. If caught, they can be tried for their crimes but not simply held without trial.

I look at this “war on terror” and it looks pretty much like every US war has looked from Indian country, with a disproportionate number of our kids coming home in boxes. This time, we’re losing more of our daughters along with our sons, and it’s been over ten years with no end in sight.

It matters greatly whether terrorists are prisoners of war or criminals.

It matters in what process is due to them. It matters in what can be done to them after the process.

Most of all, it matters in when we can send our children off to college rather than off to clean out another wretched hive of scum and villainy.

Or the rule of law just does not matter, in which case remind me how the US differs from terrorists beyond having more efficient means of terrorizing?

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.