In a column in the Rocky Mountain News, Paul Campos called our friends Glenn Reynolds and Hugh Hewitt "right wing extremis[ts]" and suggested that they should lose their jobs; Glenn and Hugh, like Campos, are law professors. Campos suggested that calling Glenn and Hugh "fascists" would be pretty close to the mark:

The use of propaganda to help bring about the murder of people you would like to kill has been especially favored by fascists. Fascism is marked by, among other things, extreme nationalism, contempt for legal restraints on state power, and the worship of violence.

And while it would perhaps be an exaggeration to call people like Reynolds and his fellow law professor Hugh Hewitt (who defended Reynolds' comments) fascists, it isn't an exaggeration to point out that these gentlemen sound very much like fascists when they encourage the American government to murder people.

What prompted this rhetorical outburst? Reynolds wrote here that selectively and covertly killing nuclear scientists and mullahs in Iran could be a more effective response to Iran's involvement in Iraq than either diplomacy or invastion:

Nor do I think that high-profile diplomacy, or an invasion, is an appropriate response. We should be responding quietly, killing radical mullahs and iranian atomic scientists, supporting the simmering insurgencies within Iran, putting the mullahs' expat business interests out of business, etc. Basically, stepping on the Iranians' toes hard enough to make them reconsider their not-so-covert war against us in Iraq.

Hewitt weighed in here, in response to Glenn's post:

Glenn will no doubt attract virtual bricks from the usual suspects, but he goes right to the heart of the problem. If we know that Iran is killing American soldiers, if we don't punish that action is some way, the killing will not only continue, it will increase.

Note that Hezbollah hasn't kidnapped any Israeli soldiers lately. There's a reason.

This is what Campos calls "extremism" and borderline (at least) fascism. Campos writes:

[E]ven if Iran were at war with the United States, the intentional killing of civilian noncombatants is a war crime, as that term is defined by international treaties America has signed. Furthermore, government-sponsored assassinations of the sort Reynolds is advocating are expressly and unambiguously prohibited by the laws of the United States. ***

[I]f the American government were to follow Reynolds' advice, his employer would have an accessory to murder on its payroll.

Strong words. One would expect a law professor like Campos to have authority to back up such language. But in fact, his characterizations of the relevant legal principles are over-simplified, if not flat-out wrong.

Glenn cites this article by by Catherine Lotrionte, who teaches Intelligence Law and International Law at Georgetown's Foreign Service School. She writes:

According to international law and U.S. domestic law, the president of the United States, in executing his constitutional authorities as commander in chief of the U.S armed forces, may legally order the killing of a regime leader as part of an armed conflict as long as it is not a “treacherous” killing, an indiscriminate killing, or cause “unnecessary pain and suffering.” As commander in chief, the president alone is directly responsible for the use of force by the armed forces, and he alone must determine the appropriate, most effective means by which to bring the conflict to a conclusion. If the president were to determine that the most effective way to bring the armed conflict to a successful conclusion—minimizing the loss of life while accomplishing the objective of the conflict—is to eliminate the enemy state’s leader, he has the legal authority to do so.

I'm not an expert in this area of the law, but it took less than two minutes of research to identify this 1989 memorandum by W. Hays Parks, Special Assistant for Law of War Matters to The Judge Advocate General of the Army, on Executive Order 12333, which prohibits the American intelligence agencies from carrying out assassinations. The memo contains a wealth of information and analysis. This paragraph is relevant, I think, to the status of Iranian scientists working on nuclear weapons development:

(A) Civilians who work within a military objective are at risk from attack during the times in which they are present within that objective, whether their injury or death is incidental to the attack of that military objective or results from their direct attack. Neither would be assassination. (B) The substitution of a civilian in a position or billet that normally would be occupied by a member of the military will not make that position immune from attack. (C) Finally, one rule of thumb with regard to the likelihood that an individual may be subject to lawful attack is his or her immunity from military service if continued service in his or her civilian position is of greater value to the nation’s war effort that that person’s service in the military. A prime example would be civilian scientists occupying key positions in a weapons program regarded as vital to a nation’s national security or war aims.

And here is Parks' conclusion:

The purpose of Executive Order 1233 and its predecessors was to preclude unilateral actions by individual agents or agencies against selected foreign public officials, and to establish beyond any doubt that the United States does not condone assassination as an instrument of national policy. Its intent was not to limit lawful self defense options against legitimate threats to the national security of the United States or individual U.S. citizens. Acting consistent with the Charter of the United Nations, a decision by the President to employ clandestine, low visibility or overt military force would not constitute assassination if U.S. military forces were employed against the combatant forces of another nation, a guerrilla force, or a terrorist or other organization whose actions pose a threat to the security of the United States.

Beyond that, obviously, the Executive Order that was issued by President Reagan could just as easily be rescinded by President Bush.

I'm not sure whether killing Iranian mullahs and nuclear scientists is a good idea or a bad idea. We should, obviously, be very slow to engage in such conduct. But we are, by many accounts, currently preparing for the eventuality of military strikes against various Iranian facilities which would kill many more people, some of them genuinely innocent. If contemplating such measures doesn't make one an "extremist" or a "fascist," then I don't know why selectively targeting mullahs and scientists would do so.

In short, Campos' attack on Reynolds and Hewitt betrays his ignorance of the subject matter at hand and his failure to do even the most elementary research before denouncing others as "accessor[ies] to murder." As happens so often on the left, "murderer" and "fascist" are the common coin of a polemic that bears no relation to reality. And, needless to say, Campos offers no constructive thoughts as to how we should deal with the threat Iran poses to our troops in Iraq, or the threat a nuclear Iran will pose to us and our allies.

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Posted by John at 12:37 PM  |    |