The Wannsee Conference of January 20, 1942 marked the culmination of elected German civilian and military leaders’ evolving plans of discrimination, persecution, and ultimately, systematic killing of the Jews of Europe. Yet the bureaucratic nature of the meeting only served to underscore the inherent dangers in wartime policy making. Dotting the I’s and crossing the T’s on one law had the power to cause incalculable death and destruction across the continent. Issues of the scope and nature of those being targeted would become a key debate in the discussions at Wannsee and at the drafting of the 1935 Nuremberg laws. How did Germany want to define “the enemy”?
Two men, Interior Ministry Legal Counsel Bernhard Loesener and Reich Minister of the Interior Wilhelm Stuckart, advocated for more lenient definitions of “Jew” as classified by grandparental lineage, effectively shaping a policy that helped some in interfaith marriages and their children escape persecution and death. This debate over definitions strikes a chord with contemporary issues of justice in American national security policy. The government has interpreted Congress’ Authorization for the Use of Military Force (AUMF) to permit the President to act against “persons who were part of, or substantially support, Taliban or al Qaeda forces or associated forces that are engaged in hostilities against the United States…”. How should we define “associated forces” and what are the consequences when we make this decision?
Like Germany in 1914 and 1939, the U.S. is now a nation at war, and a nation with an “enemy” that is culturally different and at times castigated for these differences. General anti-Muslim sentiment and distrust has been on the rise since 9/11. Many in the United States government, supported by their constituents at home, advocate for an expansive definition of associated forces to include splinter cells, small scale terrorist groups, even those who have been expelled from Al Qaeda like Mokhtar bel Mokhtar, the recent orchestrator of the Algerian oil plant kidnappings, or those who deliberately declined an alliance, like the split faction of al-Nusra in Syria. As the government steps up talks to exit Afghanistan and wind down the war authorized by the AUMF, discussions have shifted to the possibility of a new AUMF. The definition of our enemy is critically important: the more expansive a definition of the enemy, the longer we remain at war, the more enemies we give ourselves, and the greater a domestic divide between cultures.
When Bernhard Loesener submitted his draft of the Nuremberg Laws and requested Hitler define “Jew” as anyone with four Jewish grandparents rather than two, or one, his restriction would save some from discriminate firing, from prohibitions on business ownership, and from criminality of certain acts. The year was 1935. By 1939, his advocacy of exclusionary clauses for German children of mixed marriages would save them from sterilization, deportation, and death. The stakes in America today are similarly grave for an expanded definition of “associated forces”, which the Congressional Research Service has deemed “a category of indeterminate breadth.”
The expanded definition of “associated forces” implicates the possible targeting of hundreds of thousands of additional persons, including U.S. citizens, for inscription on the United States’ kill list. This is worrisome for two reasons. First, because of what it says about the United States as a standard bearer of human rights and dignity. As the country integral to the creation of the United Nations, NATO and the humane prosecution of war criminals at Nuremberg, the United States takes pride in promoting itself as a leader in the respect for human rights and the rule of law. A never-ending kill list based on overly broad criteria threatens to undermine the image the United States has worked hard to cultivate. Stuckart, in a letter to Himmler justifying his restricted definition of a Jew, wrote, “there is no recognizable limit, natural or logical, to its continued spread to ever remoter Mischling [mixed] degrees…”. These words ring true for classification of “associated forces”. The effects of drone strikes are not limited to the enemy target; they damage infrastructure, account for an untold number of collateral deaths, uproot families, and cause entire communities to live in fear of perpetual buzzing overhead. While drones serve an effective part of our military arsenal, the decision regarding who comes under the crosshairs is one not to be taken lightly.
Potential harms of an overly expansive definition of the enemy are equally dangerous for precedential reasons. It is no secret that fears of terrorist threats have led to an escalating lack of discriminatory procedure with the revelations of PRISM, to the outcry of all Americans. Yet the primary concerns of vocal Americans relative to drones are not the possibly indiscriminate kill lists. Instead, the press focuses on the public’s concerns over domestic drone surveillance and rights to privacy. A broad definition of associated forces sends tacit support for the government’s invasive policies in other contexts of national security, like surveillance, and will remain uncontested as it slips through the net of Americans’ more pressing domestic concerns. Who dares to fight for the rights of foreign and U.S. nationals when the President of the United States of America has labeled them terrorists?
In his letter to Himmler, Stuckart quipped: “It has always been my aim to find a reasonable balance between the extent of the actual danger and the severity of measures that situation requires”. Stuckart’s policies of prudence are the best hope in today’s fight against the enemy. A tailored, balanced, individualized assessment of each actor participating in a splinter cell or other non-Al Qaeda non-Taliban fighting unit to assess who they are, what their aims are, how they plan to achieve their goals must be undertaken to ensure that “associated force” does not become synonymous with “Muslim with a gun”. The closest thing we currently have to a legal policy for drones comes from the heavily redacted Office of Legal Counsel’s White Paper for the use of force in targeted killings against U.S. citizens. While a start, all of the steps of the policy are broad enough for interpretation, and there is still no guidance as to the definition of associated forces.
In the period from 2009-2011, the President’s former Legal Adviser to the State Department, Harold Koh, and former top Pentagon legal counsel Jeh Johnson sparred repeatedly over the level of material support necessary for non-Al Qaeda members to be considered threats rising to the level of AUMF-approved targeting. Johnson argued that the U.S. could widen its net of targets, while Koh argued for more restrictive assessments of the level of support. Koh’s more restrained definition won the day in debates to target Robow, the number three of Al-Shabab in Mali, whom Koh saw as working towards destabilizing the regime in Somalia, rather than actively targeting the U.S. With both Koh and Johnson out of the administration and their replacements as yet undecided,an important question remains on who in the administration will defend the limits to the executive policy to kill.
Ethical issues in the law often repeat time and time again. Today, the United States government tries to define “associated forces” for a policy of targeted killing, while seventy years ago the Nazi government tried to define the enemy “Jew” to target for genocide. In both cases a broad spectrum of options existed, all of which were and are considered legal. The more important question for the tides of history is: are they ethical? So long as a robust and open debate on the definition continues at the highest levels of government, the administration does its part to balance security and human rights. Would that it shared these debates more publically, in order for us to understand just how fraught with ethical dilemmas questions of national security are.
Leslie ESBROOK
