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Archive for Wednesday, August 30, 2006

How low will U.S. go?

August 30, 2006

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One of the major issues at the center of the international debate on the Israeli response to the kidnapping of two of its soldiers by Hezbollah was that of "proportionality." That principle, put in very simple terms, is that a nation should respond to a provocative act by another nation or group, with no more force than is necessary and in no events more than the force used against it. According to those who favor proportionality, if a nation is attacked by a small group of soldiers or militants, then the nation attacked ought not unleash the full force of its armed services in response.

I do not want to enter the debate over whether the Israeli response to Hezbollah's actions was proportionate or not at this point. Too few facts about the entire conflict are yet known to make that judgement. But the arguments over the applicability of the principle of proportionality in international conflict has made me consider its application to United States actions in the Middle East and in the war on terrorism generally.

One of the most important policy debates taking place in this country has been about the means and extent to which the United States can and should respond to the threat of international terrorism. On the one side, many argue that there should be no limits to what the United States must do to keep our nation safe after 9-11. If we must torture captives to discover potentially life-saving information, for example, we should do so, or so the argument goes. If we must attack terrorist organizations in other sovereign nations to prevent a repeat of 9-11, then again, the argument is that we should do so.

On the other side there are those who argue that the United States, if it is to maintain its position as the beacon light of liberty and the leader of Western civilization, must always maintain the highest moral standards. Such a policy position would prohibit our use of torture to discover information and prevent us from launching preemptive strikes against terrorists groups under many circumstances.

I have devoted my professional life to the rule of law. I believe that ours is a great nation precisely because we aspire to being a moral and ethical beacon to the world. I am truly troubled at the notion of the United States behaving in a manner which I would consider immoral. At the same time, I understand and support the need to protect American citizens at home and abroad.

I am not comfortable with either of the positions I have outlined above, if they are taken to the extreme. The recent discussions of the principle of proportionality in regard to the conflict in Lebanon, however, has made me wonder whether policymakers ought also apply this principle to American actions in fighting terrorism. More specifically, ought the United States determine its actions, at least in part, by our opponents' acts?

Should we accord to terrorists the same protections we accord to traditional opponents when those terrorists refuse to behave in a similar manner to American soldiers and civilians? It would appear that the terrorist groups with whom we are at war are determined to win their cause and not be burdened by the self-imposed limits under which we operate.

Should we as a nation adopt a principle of reciprocity and proportionality? Should we declare that we will treat our opponents, whether they are soldiers or not, in the same manner as they treat us? If they will abide by the Geneva convention towards our troops, then we will do the same for theirs? If they foreswear kidnapping and torture, then so will we. In short, we will make our actions proportionate to theirs?

I confess that I'm not fully comfortable with the results of this analysis, but, unfortunately, I am coming to believe it may be necessary to go down this road. It may well be that the ultimate tragedy of our war against terror is that we will become more like our opponents, at least in our methods, than we would wish. But, if the alternative is our own destruction, do they leave us with any choice at all?

Mike Hoeflich, a professor in the Kansas University School of Law, writes a regular column for the Journal-World.

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