War Is Not Criminal Justice

One of the things I’ve been wanting
to do for a long time is bash the idiocies about the current war and previous ones coming
from the regular columnists of Lew Rockwell’s web site. Gene Callahan has kindly provided a target of opportunity in a recent article.

In it, he makes the mistake of treating the military prosecution of Japan in WWII as if it
were a matter of whether the Japanese people, as distinct from the Japanese military or
government, were necessarily to blame for their government and military’s war against the
USA. Of course they weren’t. But, because of the total economic mobilization of the
Japanese economy, and the preparations for total military mobilization of the Japanese
people in the event of US ground invasion of Japan, they still contributed to the Japanese
military threat to the USA. While this wouldn’t include those Japanese who were not
engaged in war production or in the militia, military technology of the time wasn’t
accurate enough to enable the US to only attack those who were engaged in war production
or in the militia. Those in war production or the militia were fair game, the rest were
collateral damage whose deaths and wounding are properly the fault of the Japanese
government/military, not the US.

Callahan’s comments would be applicable if, after Japan’s surrender, the US had put the
Japanese people as a whole on trial and then inflicted some sort of collective punishment,
such as the aerial bombardment of the whole country. But, in fact, US conduct after
Japan’s surrender shows that US intent was quite different. Truman accepted the first
surrender terms formally offered by Japan, even though they weren’t the unconditional
surrender FDR had been pushing for, and MacArthur called for massive famine relief to
prevent widespread starvation due to the destruction of the Japanese merchant marine and
railroad networks during the war. Starvation was prevented, land was redistributed from
the feudal aristocracy and given to the peasants as private property, women were given the
right to vote, a liberal constitution was imposed on Japan, free elections were allowed to
take place, and the foundations were laid for one of the freest and richest countries in
Asia and the world. Those actions were hardly consistent with the idea of collective

Interested readers are recommended to read Richard Frank’s "Downfall" about the
atomic bombing of Japan and the question of Japanese surrender to the USA. Also see Thomas
Fleming’s "The New Dealer’s War" for additional criticism of FDR’s policy of
unconditional surrender.

I see that Callahan has also joined the chorus protesting
the detention of Jose Padilla. I really wish those who criticize the War on Terror on
civil-libertarian grounds would make up their minds. First, they criticize the detention
of Al Qaeda and Taliban terrorist at Camp X-Ray at Guantanamo Bay, Cuba, arguing that they
ought to be treated as POWs, even though POW status is a privilege to be earned by obeying
such laws of war as wearing uniforms, insignia, having a recognized chain of command,
bearing arms openly, etc. Then they criticize the detention of Jose Padilla for his
terrorist activities, arguing that he ought to be either charged with a crime or released.
If he actually were a lawful enemy combatant, the US would be under no obligation to do
either, they could simply hold him as a POW until the end of the war, at which point he
could be repatriated – or tried for war crimes.

Padilla certainly isn’t a lawful combatant, as he wasn’t in uniform, openly bearing arms,
etc., when he was caught. But in detaining him for the duration of the war to question him
and ensure he never actually succeeded in any terrorist conspiracy, the US is well within
its legal and moral rights to treat him as a POW in this respect. The Bush administration
has already said that if it does decide to charge him with a crime, he will then be turned
over to the civil court system.

Rothbardian libertarians like Callahan don’t seem to understand the international laws of
war. They make much of the distinction between combatants and non-combatants when
criticizing the killing of non-combatants, but they don’t seem to recognize that it is the
responsibility of combatants to distinguish themselves from non-combatants so their
enemies may attack them without endangering non-combatants. That means no using
non-combatants as human shields, no hiding in civilian hospitals, churches, mosques,
refugee camps, etc. It means wearing uniforms to distinguish yourself from non-combatants
and insignia to distinguish yourself from enemy combatants. It also means restricting your
choice of targets to enemy combatants. Terrorists, by any reasonable definition, break all
of these rules. That puts them in the category of unlawful combatants, just like spies and
saboteurs. Ever see one of those great WWII movies about Allied commandos operating behind
enemy lines, like "The Guns of Navarrone"? A standard bit of dialogue in them is
about how they can be shot as spies once they’ve been captured by the Germans. Those lines
are usually assigned to the German characters, but they reflected the same international
laws of war that were observed by the Allies, too. Enemy spies are subject to summary
execution under the laws of war. That’s one of the things that makes espionage so risky
and exciting.

Realizing that the US would be within its legal rights to simply line up Padilla against a
wall and shoot him as an enemy spy puts his treatment into perspective. He’s being treated
very leniently, all things considered. So are the detainees at Camp X-Ray in Guantanamo
Bay, Cuba.

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