Do you ever wonder how international rules are embedded in the daily practice of world politics? Here’s one poignant example-yesterday’s article from Amos Guioria & Foreign Policy.  Not only is Guioria’s argument succinct, covering the relevant principles and rules of the law of armed conflict, but demonstrates how the politics of civil societies and the real complexities of the battlefield all enter into the decision to use force against non-state actors.

This article, of course, references the story reported by the Wall Street Journal (and others) about the recently-cancelled CIA program designed to capture or kill Al Qaida leaders.  Yes, Dick Cheney dramatically exceeded his authority as Vice President when he advised the CIA to lie/not disclose the program to Congress.  I suspect that his reasoning was based on the premises that (a) the CIA can operate outside the rules of armed conflict and (b) that the covert program would be leaked if Congress were ever appraised of about the plan.  In the first case, Cheney and the legal advisers of the Bush administration have consistently held incorrect (bordering on the immature) understandings of the international rules governing armed conflict.  The evolving nature of warfare requires that any actor, especially those representing a government or organization, that enters the battlefield is held to a set of rules and standards about when and how to use force.  These are not only espoused in the voluminous body of that is the Law of Armed Conflict, but also enshrined in U.S. domestic law and U.S. Military rules and regulations.  In the second case, there was concern amongst Cheney and others in the administration that members of Congress would leak the existence of the program, and thus secrecy was required.  Again Cheney’s reading of the U.S. law is rather liberal; but his real concern appears to be that, if informed, members of Congress would leak the existence of the program to the public.

So what?  Is any thoughtful person that naive to think that any member of Al Qaida, from Bin Ladin and al-Zawahiri to the financiers down to the lowly drivers think that the U.S. isn’t trying to actively capture or kill them?  Members of Hamas, Islamic Jihad, Hezbollah, and others don’t cry foul at Israel’s policies in this regard.

In the end, in spite of the actions of VP Cheney and others in the former administration, does this mean that the program was wrong?  Absolutely not; so long as the CIA teams were to operate within the rules of war once they entered the battle space in their efforts to capture or kill members of Al Qaida. Strikes from Predator drones have (unfortunately) killed far more civilians than Al Qaida & Taliban these past eight years.  As good as the Predators are, I’m fairly confident that CIA teams would be able to make faster decisions in real time to discriminate between combatant and non-combatant in the battle space.  Predators invariably violate state sovereignty, just as the CIA teams would in attempting to capture or kill individuals who are a part of the Al Qaida network.  Modern armed conflict, from inter-state war to the use of force against non-state actors, is an extraordinarily complex affair.  The best practices for governments are those that base their policies and actions in rules (the hallmark of civil society), and then balances these policies and actions against the realities of the battle space.  The case of the U.S. and its now-terminated CIA program of targeted assassinations against Al Qaida is just another example of the failings of the American policy in recent years; a good idea, but terrible execution.