Drone Ethics: The Policy and the Memo

Hey, Fox News! INCOMING!!!

Hey, Fox News! INCOMING!!!

With the leak of the Obama Administration’s Justice Department memo laying out  alleged legal and Constitutional justification for targeted drone killings abroad, the ethical debate over this practice finally began in earnest. Back in October of 2011, I visited this topic in a post titled, “The Ethically Messy, Legally Muddled, Drone Killing of Anwar al-Awlaki,” who was an American citizen and also an al-Qaida leader and terrorist, and wrote…

“I am far less confident of a conclusion that the killing was legal than I am that the killing was ethical in a situation where traditional rules and considerations don’t fit the situation well, meaning that decision-makers must go outside the rules to find the right, meaning ethical, course of action.  And I’m even not 100% confident of that.”

This still accurately encompasses my view, although my confidence in the position has declined materially, in part because of the memo. However, my position in 2011 was based on the assumption, using the Bush Administration’s position, that the United States was engaged in a de facto war with al-Qaida, and as a tool of war, killer drones  are within ethical bounds by my analysis. The leaked memo, however, begins with the assumption that the drone strikes are not part of ongoing declared warfare, but rather a new variety of cross-border lethal intervention that has no legitimate statutory basis. I think that under those assumptions, targeting drone killings are illegal, unethical, and to the extent that they give the President of the United States the power to kill someone in any nation based on his assessment that person needs killing, ominous.

I’ll leave the legal analysis of the memo to others. For now, other than pointing readers to my earlier analysis of drone killings in the context of warfare, I just have some observations:

  • The obvious comparison being made is between this memo and the so-called “torture memos” prepared by government attorneys to support the use of torture as an interrogation tool. There are some legitimate points of comparison, but President-sanctioned assassination by drone and U.S. agency administered torture are not ethically equivalent, in warfare or out of it. Torture, the intentional infliction of pain and fear of death, is cruel, and violates ethical and moral absolutes. The best analogy to the comparison would be the difference between legal and justified capital punishment and the “cruel and unusual punishment” prohibited by the Bill of Rights. An individual who could be legally and ethically killed by a drone in Yemen could still not be ethically tortured. Torture is worse, and except for exceptions of apocalyptic proportions, always unethical.
  • Because of that, it is not necessarily hypocritical for critics of the Bush torture policies to be less critical of the  Obama drone killings. I keep hearing conservative radio hosts and publications saying and writing things like, “It’s unethical to torture terrorists, but not to kill them?” Yes, that’s right, and anyone who can’t comprehend why needs an ethics tune-up. Similarly, the fact that Sen. Obama and pre-Attorney General appointment Eric Holder condemned Bush torture policies does not make their drone approval a reversal of principle. It is also true, however, that the critics of the human rights and due process record of the Bush Administration did not typically make such subtle distinctions, and the silence of many of them (not all) in the face of what they would have been calling “war crimes” and “crimes against humanity” if the perpetrators were President Bush and Vice-President Cheney, is damning.
  • Both the torture memos and the Obama drone killings memo were within legal ethics boundaries as advocacy memos. A client asks a lawyer to make the best possible legal argument for a course of action that client wants to pursue, and if the resulting memorandum does not misrepresent authority or make intentionally deceptive and misleading arguments, it can be an ethical use of legal skills in support of a client’s legitimate objectives. It would be unethical for a lawyer who believed a course of action was unquestionably illegal to write such a memo, however, if he or she knew it would be used to advance an illegal objective. It would also be unethical for the client, in this case, the Obama Administration, to represent the memo as something it is not, such as an objective analysis by a lawyer who felt free to declare that the drone policy under discussion was illegal and wrong. I would be shocked if memoranda that fit that description haven’t been produced as well; so far, nobody has leaked them.
  • In my opinion, both the torture memos and the leaked drone memo are weak. (You can read an interesting critique of the drone memo by the author of one of the drone memos here.)
  • Whoever leaked the drone memo was violating the legal ethics rules as well as the law. If identified, the individual should be disbarred.
  • I am far from a constitutional scholar, but in my opinion, once the drone killings are taken outside the context of a de facto war against al-Qaida, with the targets as enemy combatants, they become unethical, unconstitutional and a dangerous extension of Presidential power. The ACLU is mounting a legal attack against the tactic, and it is the right advocate to take on the job. The Administration can’t have it both ways: declaring that there is no “war on terror,” yet killing people, and even American citizens, in sovereign nations on the infinitely flexible theory that they pose a threat to the nation.

I would explain my uneasiness this way. The President using drones to kill citizens of other nations without due process of law is more illegal and unethical than using drones to kill citizens of this country without due process, once they are identified as “imminent threats.” If that doesn’t bother you, I can’t imagine why.


Sources: WSJ, BBC, NewsMax

Graphic: Umovuguzi

68 thoughts on “Drone Ethics: The Policy and the Memo

  1. Dear Jack: Your comment on how the administration “can’t have it both ways” as far as “no war on terror” vs. justification for air strikes pretty well sums up the argument. I used precisely the same words myself earlier. No American patriot can shed a tear for Al Awlaki, who was a murderous Al Qaeda leader and, legally, a traitor besides. But without a state of war existing between America and the (outwardly) extra-territorial entities of the jihadist groups, acts of war cannot be justified. If they are, then the precedent for such actions threaten not only our foreign enemies, but we ourselves. If the sitting president can designate any person, foreign or domestic, as an “enemy of the state” and order his elimination, then he takes upon himself the authority of a absolute ruler.

    • If it was only the president who could designate such a person.
      But as Chris Floyd put it so eloquently on his blog: “anyone who is arbitrarily declared a “suspected enemy combatant” by the president or his designated minions is no longer a “person.” ”
      Yes, Chris’ blog is a bit of a drama queen but he’s got a point. I don’t think Obama will be on stand-by to pick the targets… That’ll be done by the “minions”.

  2. I’m not sure how on or off topic this comment is going to be, but I’ll put it out there:

    It’s only a matter of time before a drone strike kills, intentionally or not, someone of importance to a country capable of retaliation. With each strike, one has to assume the power corrupts a little bit more, that each strike might be more brazen than the last.

    What are the limits of this “power” the administration wields? Can they do a drone strike in any country, or just a country that grants them this right?

    Can they kill citizens of any country, or do they have to get permission from that citizen’s country in advance?

    What is imminent in the absence of immediate and in the presence of a perceived ‘last chance’? 1 year? 1 day?

  3. I almost entirely agree with you – only on your final point do I wonder. Killing citizens of other countries without due process is an abomination, I agree. But part of me insists that, on account of the contract of citizenship laid out by the constitution, that killing a citizen of this country is a greater crime. We’ve entrusted the government a certain amount of power, so that it may serve and protect us. We did this with the clear understanding that said government was not to use this power against us, without due process being applied first. Now, the government has declared that due process is no impediment to it using force against its’ citzens.

    As Darth Vader said, “I am altering our agreement. Pray I do not alter it further.”

  4. “Because of that, it is not necessarily hypocritical for critics of the Bush torture policies to be less critical of the Obama drone killings”

    I call BS. Not a single person died as a DIRECT result of being tortured (though bin Laden ended up getting capped as the end result of a total of three guys getting water-boarded), while not only is the target of the drone strike being killed (without a single hint of due process or judicial review) but so are many others who’s ill fate had them near the target at the time.

    Sure, you hit a guy in the middle of a field, odds are lower that the people around him are “innocent”, but when you hit a guy at a WEDDING PARTY, your odds go up significantly.

    • Why BS? Civilians get killed when their nation puts them of at risk because of war. That’s war. Too bad. If you’re making a transferred intent argument—that is to say, without legal authorization, killing the target is murder, so the collateral damage is also murder—I might buy that. Wars kill civilians…you try to minimize it, but killing civilians unintentionally doesn’t factor on the war ethics meter.

      • And I would normally agree. For example, I find no ethical failing on the part of Israel when they attack rocket launch sites that are surrounded (or a part of) civilian structures – you fire at me, and I’m going to fire back, and just because you pick up your kid and hold them in front of you doesn’t make ME the bad guy).

        But this is not the case. These are not static emplacements being attacked, but mobile human beings.

        I would accept the “we try to minimize civilian casualties” argument, but we’re shooting at the guys when they are at WEDDINGS and at the MARKET. That isn’t “minimizing” in ANYONE’S dictionary…

  5. I’m gonna buttress the slippery slope argument. Are we legally at war? No. But neither was the Cold War, and a war it remains. Why is this distinction important? If the document was prepared by a lawyer than calling it a war would be literally untrue even if it is practically true; and vice versa – calling it a cross-border lethal intervention outside the context of war is literally true even if its not practically true.

    So I would say that the original context of your ethics argument is more accurate than considering drone strikes as non-war related.

    Nor is there realistic reason to worry that this will escalate and become a drone strike free-for-all in any country of the world. As a general trend we tend to only conduct these kinds of operations in countries that are unsuitable for involvement in high-level direct military action. Typically these countries are deemed unsuitable because of a lack of professionalism in their military, an ineffectual government, a lack of suitable capability such as precision guided munitions or an SF cadre, and/or intelligence vulnerabilities – many middle eastern institutions are actively infiltrated by terrorists or have strong anti-american support. These are places that terrorists tend to congregate and these are places where we almost exclusively violate international law to hit our targets.

    And whether or not it is more wrong to kill an american or a foreign national comes down to which philosophy you expect the government to hold to – ownership or protector-ship. Destroying something you own is a much lesser crime than destroying something someone else owns. Or, destroying something your supposed to take care of is a much greater crime than destroying something something you aren’t supposed to take care of.

    • But Jeremy, this administration and President specifically has said we are NOT at war—not in Libya when we were dropping bombs there, not in Iraq, and soon not in Afghanistan. There was a reason for the “War on Terror” terminology that Obama has discarded and rejected. He can’t take credit for “stopping and endless war” and then use what he says he’s stopped as justification for killing anybody who is a threat. There were Congressional authorizations for armed intervention in every conflict you mention. Not this. That won’t wash.

      • Thats more a case for the logical hypocrisy (or idiocy) of the administration than it is for the foggy ethics of drone strikes. For all intents and purposes we are and have been at war in anything but official title. And this is supported by historical precedent; congressional authorization isn’t a declaration of war nor, in some cases, is it even needed for large scale conflict – the Korean War is a good parallel. The term used in legalize today is “cross-border lethal intervention” back then it was “police action.”

        • Come on. The Korean War had legal authorization, so did the Vietnam War, and the Iraq War 2. The so-called “War on Terror” had nothing but a name, and when you subtract that, as Obama did, then there’s nothing. There is no good analogy, and until there is something better than “counter-terrorist activities,” you have to find a justification that doesn’t rely on warfare.

        • Don’t forget that Lincoln suspended habeas corpus.
          Plus, the citizens of any State that seceded from the U.S. are no longer, by definition, citizens of the U.S. any more.

          And yes, I think Lincoln would have used them against the Confederate army.


        • In a combat, an enemy combatants has dramatically reduced the time frame for due process when engaging in aggressive lethal behavior.

          It’s foolish to apply due process to scenarios inside of combat.

          If you are bothered by not giving due process to enemy combatants or even traitorous citizens engaging warfare against us, your gonna freak out when you hear what Abraham Lincoln did to entire armies of American citizens.

          Lets not forget also the Saint Patrick (San Patricio) battalion in the Mexican American war and the bundists of WW2.

          I understand your beef with drone strikes, but within a war/combat context, no issues.

    • There is little doubt in my mind that Lincoln would have done almost anything he deemed necessary to save the Union. Faced with active rebellion in 1861, he did just that to ensure that Maryland and Missouri remained in the Union, including suspending habeas corpus, locking up suspected rebels and closing newspapers without court order or trial, and as I recall preventing the Maryland legislature from meeting to consider secession.

      He was careful to avoid any actions that would treat the CSA as a separate government, but the Union did a de facto belligerent status to the Confederacy (for purposes of prisoners of war, laws of war, etc). However, Lincoln never wavered from his position that the Confederates were fellow American citizens albeit in rebellion.

      I would think he would have had few qualms about using drones against Confederate armies and warships. I am sure Jefferson Davis would’ve done the same. I do have serious doubts about their use on civilian targets. Generally speaking, the Civil War armies didn’t directly attack civilians or cities.

          • Not too bad an analogy, actually, although the primary destruction was economic rather than human life.

            Part of the purpose behind the March was to demonstrate the impotence of the Confederacy to stop a Union army marching through its heartland. I am sure it had its effect on morale and, like Hiroshima, may have hastened the end of the war.

            Actually, this brings to mind a similar campaign around the same time, when Grant had Sheridan burn down the Shenandoah Valley to prevent the Confederates from sending another army through there yet again.

            1864 was a hard year in many ways (nearly incomprehensible to us today). Having seen the indirect approach be botched and otherwise fail time and again, Grant devised a straightforward (if exceedingly bloody) and certain strategy to win the war.

            • Yes, it was economic and property damage—Sherman, unlike Grant, didn’t believe in killing people, but it was brutal nonetheless.
              Lincoln and Grant also knowingly allowed the horrible fate of Union prisoners of war to prevent the South from getting soldiers back in prisoner exchanges. They both were Utilitarians to the limit.

        • That and the near dictatorial nationalization of every southern industry.

          Also defending the notion that the ability to define a certain subset of humanity as property is an actual power delegated to a government didn’t help.

          • The South didn’t have much in the way of heavy industry to begin with, Tex. Every mill and foundry was absolutely vital to the war effort. Nor do I believe that the Confederate constitution directly addessed slavery. It probably didn’t matter much, though. Had the South prevailed and Northern economic and political dominance been ended, a number of factors would have likely brought about its phase out or direct abolition (state by state) within a 20 year period. Too few Southerners owned slaves or wanted them around. There was also a growing freedman population, which the war itself was spurring.

            • We’ll disagree then, I’ve perused in depth the census data from the pre-war years and percentage of southern households owning slaves out of total southern (not confederacy south but slave-legal south — includes Kentucky, Maryland, Missouri, delaware) households was on the rise everywhere but Florida where it was slowly decreasing and Delaware where it was quickly decreasing)

              History rewriters like to claim it was declining, but they only reach that number by padding the stat by including households in the north (where states had already abolished slavery).

              Economics by itself doesn’t explain the dependency on slavery either. The entire southern system (poor whites included) was politically tied to slavery and the small cadre of plantation elites.

              I’ve read that the basic psychological relationship established from cradle to grave that handed power like that to slave owners over humans would likely never be given up freely.

              The confederate Vice President said this in defense of the CSA constitution:

              “Our new government is founded upon exactly the opposite idea (from the US constitution); its foundations are laid, its corner- stone rests, upon the great truth that the negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.”

              The CSA constitution does not specifically use the word slavery if I recall, but has several clauses designed to protect the institution on the understanding the states would continue to perpetuate it under the supposed power of a government to define humans as property.

              • That’s interesting, Tex. It certainly contradicts a number of premises I had picked up from past sources. Of course, what Toombs said about the Confederacy and slavery was a matter of his opinion and may well have been a sop to the more hard core slaveowners. That increase in slave ownership might well have been tied to the increased foreign demand for raw cotton. This, plus the attempts by the North at imposing a tariff, were the key factors in the secession movement. Still; slavery was viable mainly in the large plantations or in such industries as warehousing- where large numbers could be employed at once and be more conveniently handled. As in all societies with slavery, the fear of uprising was always in the back of their minds.

              • As Steven said, that’s very interesting information. It also leads me to a couple of questions, though. If the CSA had won — which I think would have to happen by somehow capturing Washington and an enclosed Lincoln — what would then have happened to the other border states? Would Maryland or Kentucky have joined the Confederacy (by 1862 I think Missouri was firmly in Union hands)? My initial feeling would be that by 1862 they would not, although Kentucky might be more likely (no hard evidence for this, though). Of course if Maryland went, I’d think she would effectively take Washington as well, since it would then be isolated.

                What, then, would have happened to slavery in the remaining United States? It seems to me that the U.S. would be quite hostile to slavery, but at the same time indifferent at best to the remaining blacks within its borders — a substantial number if the remaining slave states stay in.

                Secondly, we have to assume the Emancipation Proclamation never happened, so that it is still possible for Great Britain to recognize and/or support the Confederacy. I imagine that the UK would be their major export market for agricultural raw materials, as well as a major source for manufactured goods. The UK would likely become a military ally as well as a political one.

                I wonder if the UK would eventually be able to exert enough political influence (or military clout, in the event of renewed conflict with the United States) to compel the CSA towards some sort of emancipation. It’s not my original idea — Harry Turtledove posits this in his novel ‘How Few Remain’ which is an alternate history story that assumes the South won the war. But it’s at least somewhat plausible.

                Too, what would Lincoln’s legacy have been if he had led the United States to defeat and dismemberment?

                • An interesting fun alternative history to imagine. But one so difficult to really believe. The south had absolutely too much going against it to foresee any real winning outcome.

                  Even the battlefield victories were tempered by the painfully disproportionate casualties taken by the southern armies.

                  I highly doubt a captured Washington DC would force the north to capitulation. The beauty of our republican democracy and western mindset is we don’t cleave I physical symbols of governance. The actual government: senate, HR, prez and SC would rapidly vacate and set up shop in New York or Philadelphia or elsewhere and still function.

                  As for the south being ready to give up slavery, I still say not anytime soon… Evidenced by the voluminous laws enacted after the war to put blacks in a virtual state of servitude if not an actual one.

                  • Here’s 2 even more interesting alternatives to ponder:

                    In the early 1800s, the civil war could have occurred when the admission of free/slave states came to a boiling point and sectional stress began to boil. But in true fashion, a compromise was reached to kick the can down the road… Would an early 1800s civil war have ended with northern victory? Not so certain…

                    Would an early 1800s civil war been less bloody? Very likely so…

                    Would an early 1800s civil war led to an embittered England to attempt a 3rd go at reclaiming Ye Olde Colonies?

                    The other alternative:

                    During the Mexican American war, what if we’d prosecuted it to full completion and annexed Mexican territories?

                    Would those territories have applied for statehood as slave states (under Missouri compromise) or as free states (as was the prevailing Mexican attitude towardsslavery). Wpuld they have even applied for statehood? Sarge983 has interesting notions about this.

                    What impact would this have on our demographic issues today? Our cartel issues today?

                    • Those alternate histories have occurred to me, guys. In recent years, there have been a whole deluge of novels dealing with an alternate history deriving from a Southern victory. One of my favorites remains MacKinlay Kantor’s 1960 novella “If The South Had Won The Civil War”.

                      Personally, I think (as many do) that the key event was the mortal wounding of Thomas J. Jackson at Chancellorsville. If Jackson had been in command of his corps at Gettysburg, it would likely have been a different story. The quick seizure of Culp’s Hill on the first day would have denied the Union Army a natural line of resistance on Cemetery Ridge and, likely enough, set the stage for the defeat-in-detail of the Army of the Potomac- corps by corps- right down the road to Washington. The capital would have fallen, the Lincoln government captured and the state of Maryland secured for the Confederacy. My bet is that the big northern cities would have erupted into a panicked chaos and effectively denied the northeastern governors any chance to do anything but suppress internal lawlessness. Also; if Gettysburg had become a federal disaster on the first day, Pemberton might have held on in Vicksburg, knowing that Grant could not possibly sustain the siege under the conditions. I think, given the likelihood of chaos in the north, Kentucky would have gone for the South. Missouri- bitterly divided- might have been partitioned along the river. Another question is what would be the status of the western territories. Wouid there have been a second California Republic? A Mormon State of Deseret? An Indian confederation on the Great Plains? Endless possibilities!

                    • Even with Stonewall Jackson’s bold maneuvers the South was still absorbing disproportionately higher casualties in each battle, no victory would ever end it for the North, therefore at some point men would simply just run out. A problem not shared by the North.

                      I don’t think a victory at Gettysburg would have amounted more than a postponement of the inevitable. The South simply had too much going against it for tactical victories to carry them over.

                      I don’t see a capture of the general government as very likely either, the men forming the govt can easily evacuate and set up shop elsewhere despite the symbolic capture of the capital. Amusingly, the Civil War is improperly named: civil wars are contests by 2 groups for control of the whole nation in which battles for the capital often are key. Our Civil War was really just an insurrection.

                      As much as it seems interesting to study a Southern victory, one would have to pretend like everything going against the South (which did lead to its defeat) could somehow sustain the Sourh after a military victory… Which I don’t see that happening.

                      The South had become a man-depleted police state, no way that would have been successful after a military victory.

                    • I’d counter with this, Tex. First, as I said, Jackson had been in command of his corps, he would have aquickly seized Culp’s Hill, as it was the obvious key to the battlefield. At the time, only one Union corps was in place with the others hard marching up from Washington in their columns. If Jackson had denied them Cemetery Ridge as a battleline and not wasted that first day, Lee’s army could have destroyed the Army of the Potomac right back to the gates of Washington. He would ALSO have stood astride any land route for the federal government to escape to, especially after such a quick, overwhelming military disaster. And Maryland itself was hostile territory. Some may have managed to get aboard ships at Anacostia, but the bulk of the government, its records and its apparatus would have been left behind. And where would they have gone? With internal chaos, no organized resistance but for a few 2nd string militia regiments and Lee’s army within easy striking distance of Philadelphia and New York… what, then? My guess is that the northeastern states would have concluded a separate peace with the Confederacy to preserve themselves. If Grant had broken off from Vicksburg without taking it (and headed east, as per Gingrich’s book) he would have had Bragg, Johnston and Pemberton in pursuit, as his was the last viable Northern force in the field, excepting maybe Rosecrans. Not only could the South have won it, but it might have won so thoroughly that Davis’ government, as the only viable national government in existence, might have been turned to by the Northern states to reunify the country in the wake of major urban upheavals and economic collapse!

                      Another interesting scenario might have been at Shiloh. Suppose Albert Sidney Johnston’s wound had been discovered and properly treated (or hadn’t happened at all) and he had remained in command during the first day. He might well have succeeded in driving Grant’s army into the river, destroying it. Then, the next day, he could have taken down Buell’s small Army of the Ohio. End of the war in the West!

                      One further note. The key to America’s victory in the War of Independence was gaining both the recognition and support of key European powers; France, Spain, Holland and even Turkey. And the key to THAT was the great victory at Saratoga. It was a similar case with Texas. If the Confederacy had won an overwhelming victory on Northern soil at Gettysburg, that might well have spurred recognition by both Britain and France, for both economic and political reasons. An influx of European investment, trade and (with it) credit for buying war materiel would have finished the business of the War Between the States.

                    • I have to disagree on a number of points.

                      I believe that by July 1, Vicksburg was finished no matter what happened in the east. Pemberton asked for terms on the 3rd because his army was at the very end of its resources and starving. Also, being the sort of general he was, Grant would not have abandoned the siege (nor would Lincoln have ordered him to do so) just because he was being transferred east.

                      In July, 1863 there was basically no possibility that the South could have captured Washington (unless they could’ve marched an army up to the city gates and inside without anyone noticing). Washington was protected by a huge number of forts and fortifications, and overmanned to boot. This was a major sore point between Lincoln and McClellan. Not until Grant took charge and Lincoln finally had a general he truly trusted would many of these soldiers be rousted out to join the Army of the Potomac.

                      I don’t know how far north Lee might have reached if he had won at Gettysburg. Gingrich/Forstchen’s book posits that he would’ve been stopped at one of the river barriers before reaching Philadelphia or Pittsburgh. In any case, I am sure that Lee would have been mindful (as Lincoln always was) that any time he moved north of the Potomac, he offered the North the chance to cut off and destroy his army, which would certainly have ended the war.

                      Finally, by Gettysburg the South had no hope of foreign recognition. The Emancipation Proclamation forever ended the possibility of Britain recognized the Confederacy. Public opinion was so strong that the British leaders dared not. Their only realistic hope was that the North would succumb to war weariness and give up. Lincoln was never going to do so — see that famous pledge he had his cabinet sign.

                      It’s fun to speculate, but I think by 1863 it was simply too late for the South. In truth, I wonder if their only realistic chance was to win at the very beginning in the summer of 1861.

                    • I agree with a good deal of Diego’s analysis, but would also like to discuss the specifics of the Battle of Gettysburg from the turning point option that SMP brought up…

                      What if the South captured Culp’s Hill?

                      I don’t think we should assume that Gettysburg would have developed along the same lines at all had this occurred.

                      Had the CSA occupied Culp’s Hill and subsequently Seminary Ridge, there is no reason why this would not have rounded out as just another indecisive skirmish such as had been the experience of the two armies since Chancellorsville.

                      Had Lee occupied the immediate Key Terrain in and around Gettysburg, Meade (on the defensive) had no impetus to remove him from that terrain. Gettysburg was a chance meeting and had no serious strategic value…except to Lee himself. His army was scattered between Chambersburg to Hanover and Gettysburg represented an obvious rally point, while Meade’s Army of the Potomac was in a relative mass approaching from the south of Gettysburg and could engage battle anywhere along that line.

                      Again, Meade on the defensive, simply needed only delay Lee in hostile territory. Each delay inside an enemy zone of control, although unnerving to the enemy, is ultimately a massive risk to one’s own supply lines and lines of communication. Inevitably Lee would have to strike.

                      Meade, hypothetically denied Culp’s Hill and Seminary Ridge could simply displace slightly south and occupy new defensive positions. The notion that Lee would be able to destroy the Army of the Potomac piecemeal relies on Lee being able to rapidly gather his army (which was spread in all directions), immediately on the lead Union Corps, before any other Corps arrived…which would have been simply impossible.

                      Once Meade occupied new defensive positions he had the luxury to just wait and watch. Lee, knowing every moment wasted in enemy Zone of Control spells disaster, would finally have to either attack Meade in his new positions (and likely resulting in a similar but different-named Gettysburg) or he would have to hope a completely speculative plan of striking for Harrisburg would send the north to panic. But such a plan would come at the risk of continuing to delay inside enemy territory and extending his supply lines and lines of communication even further, with a massive Northern Force in hot pursuit.

                      I will submit this:
                      Lee was bold. But this time he was recklessly bold, he chose to develop the engagement at Gettysburg based solely on the initial but stammered success against the Union Cavalry. He was itching for a fight and impatiently ignored the fact that he had little accurate reconnaissance to go off of.

                      Meade did not win the Battle of Gettysburg. He has his Corps Commanders to thank for that.

                      “It’s fun to speculate, but I think by 1863 it was simply too late for the South. In truth, I wonder if their only realistic chance was to win at the very beginning in the summer of 1861. -Diego

                      I’ve read about simulations run addressing that very notion. The rapidity of mobilization in the South vs the North, the ravaging of the officer Corps of the Federal Army as many southerners departed, the energy of the State governments, and other factors would have guaranteed an almost unstoppable Southern assault to the north, had the South chosen that option. Unfortunately, that would have flown in the face of the entire intent of trying to be the defenders against ‘Northern Aggression’, the South would have had to change it’s whole reasoning behind secession had it chosen an initial hurrah and charge into the Northern States.

                    • Not to interject in a wholly off topic tangent, but this is all hindsight bias. As Mcpherson wrote at the end of “Battle Cry of Freedom,” it seems inevitable that the South would lose now, but in truth, hundreds of things might have turned the tide the other way, even by 1863. Had the First Minnesota not been handy and brave, if a history prof wasn’t in charge of protecting the hook on Little Round Top—heck, even Pickett’s Charge might have succeeded with a little luck—which Lee usually got in spades. Why the hell didn’t Lee have the fences pulled down during the night, or at the start of the charge? What if the artillery hadn’t aimed too high? What if Custer hadn’t stopped Stuart? Most of all, what if the South had just hunkered down at the border and fought a defensive war?

                    • I guess we should interpret this as a “take this discussion elsewhere”

                      Would it help if I added “ethically” before every verb and “ethical” before every noun?

                  • Sure, but that’s what makes it so much fun to debate. Between the four of us, we probably have a dozen ways the South could win and a dozen reasons their loss was inevitable. And what also makes it an attractive topic is that we can debate to our heart’s content, but we know all along that the South did lose and are thankful that it turned out that way.

                    • Looking around at what I see at present, I’m not so sure that the right side side won, Diego! However, we’ve about beaten the old horse to death. I still think (as a number of scholars do!) that the first day of Gettysburg was what decided the war. Oh, well!

                      Now… could Richard III have won at Bosworth Field? Any takers?!

                    • “Until recently” ??? You must be reading different spin doctors. I’ve been taught that Henry was a monster since I was knee-high to a grasshopper. Chopping heads off of wives and saints will do that to your reputation.

                    • Recently in perspective, that was 600 years ago. Certainly we knew about the killing of his wives. But we never really learned about the mass repression of the Catholic Church. The massive dispossession of many nobles based on Henry viii’s paranoia. The massive centralization of power as the formalization of bureaucracy occurred. The 10a of thousands murdered for heresy.

                      Nah we didn’t lay attention to that until recently.

                      But by comparison Richard III was not so bad, but that was the narrative advanced in the centuries following bosworth and the Tudor dynasty.

                    • It’s been noted that it was Richard who instituted the right of habeus corpus into English law. But whatever his flaws or virtues, he was nothing like the psychopathic villain that Shaespeare portrayed. He was also the most renown English warrior of his time, who habitually led from the front. Ever since Henry’s victory at Bosworth, though, the Tudors were paranoid about their royal legitimacy. That included Elizabeth herself, who was not only the last of the dynasty, but had before been branded as the illegitimate daughter of an illegitimate monarch. Naturally, her protege bard was led to paint Richard III in a bad light to an extent that bordered on the absurd. “Now I am resolved to play the villain.”? Get real, Willie.

                    • That Richard wasn’t all bad doesn’t make him good, and that Henry was worse doesn’t make Richard any better than awful. The bottom line is that I wouldn’t want to turn my back on either of these guys.

                    • I agree Jack. I wasn’t necessarily making a comment to imply A goodness on Richard’s part.

                      SMP. The War of the Roses was really just growing pains. England had hit that population tipping point where simple feudalism wouldn’t cut it anymore. The war of the roses was for a lack of better terms ‘convenient’ for clearing out the ranks of feudal lords and paving the way of the development of England’s bureaucracy and ultimately the prototype of its modern government.

                    • There’s a lot of truth in that, Tex. This was in the transition times between the old feudal era and the rise of the commons. But the Wars were still basically an old fashioned dynastic squabble that went viral! It could well be said that the disproportionate casualties among the peerage (the traditional ransom for captured knights and barons went out the window as it turned to vengeance and savagery) helped the emerging merchant class in its quest for greater influence. After Bosworth, Henry VII pulled off one of the greatest financial coups in history by his establishment of the social rank of baronet; thus both placating the merchants and bringing hard cash into the depleted Royal Treasury.

    • In a way, he did, Michael. You could make the argument that the Union Army’s use of hot air balloons for battlefield recon was the great granddaddy of today’s drones. Of course, they didn’t pack Hellfire missiles!

  6. On the subject of killing U.S. citizens versus non-U.S. citizens outside of war, I don’t think there is a distinction. Here’s why:

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

    That’s “all men*”, not “all citizens of the United States of America”. The notion that people of other countries do not have the same rights that Americans do is antithetical to our founding documents. We are never in the right when thinking of non-Americans as some sort of lesser beings.


    * Yes, “men” in the sense of “mankind” or “humans”, not “males”.

    • When United States citizens engage in “levying war against them or in adhering to their enemies, giving them aid and comfort”, that’s treason under the Constitution. Article 3, Section 3. Aside from child depredation, it is the most despicable of all crimes. Nobody says that it legally renders them or anyone else a “lesser being”. But it might as well.

      • Agreed.

        To clarify: “lesser being” was my own term, and I was using it to (exaggeratedly) describe the idea that is sometimes posited that people who are not U.S. citizens should not have the same rights as people who are. In this particular case, we’re talking about life, so it’s especially apt.


      • Aside from child depredation, it is the most despicable of all crimes. Nobody says that it legally renders them or anyone else a “lesser being”. But it might as well.


        And there is a legal concept that might justify drone strikes against Americans who do not promptly surrender themselves to face charges for violations of the laws of war.

        It is called outlawry, and Bill explains it .

        The immediate consequence of being proven a nithing was outlawing. The outlawed did not have any rights, he was exlex (Latin for “outside of the legal system”), in Anglo-Saxon utlah, Middle Low German uutlagh, Old Norse utlagr. Just as feud yielded enmity among kinships, outlawry yielded enmity of all humanity.[63] …”Yet that is but one aspect of outlawry. The outlaw is not only expelled from the kinship, he is also regarded henceforth as an enemy to mankind.”

        • Michael: It’s also interesting to note that the Norse also had a curious system called weregild; literally, man-gold. By that tradition, an killer could buy his way out of outlawry by posting a sum to the appropriate authorities with a different sum for a serf, a freeman or a chief. Sometimes, looking at the legal shennanigans of some of our “prominent” leaders and celebrities, I wonder if that custom is not alive and well in modern times!

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