Should Republicans go ahead and add Supreme Court Justices to head off Democrats

Trying to change the rules of war

David Rivkin and Lee Casey:

In considering changes to the current system for handling captured al Qaeda and Taliban operatives, we should keep in mind that most critics of American policy, at home and abroad, will not be satisfied with any system that does not treat captured terrorists as honorable POWs, or as ordinary criminal defendants in the civilian justice system. In particular, the nongovernmental organizations that have been most vocal in their criticisms have an agenda that is far broader than merely protecting individuals from potentially unjust imprisonment.
For nearly 30 years, despite consistent U.S. opposition, these activists have sought to revolutionize the laws of war by granting privileged status to guerrilla fighters (whose "national liberation" causes they generally favored), and by remodeling the rules of war to match domestic policing norms.
There are many examples of this strategy. One is the insistence that a minimum level of force be used, directed at incapacitating the opponent, even on the battlefield. This, of course, is a policing standard, not a military one. The laws of war permit the use of force at whatever level necessary to achieve victory, taking into account critical rules of distinction (targeting combatants only) and proportionality, which requires that incidental damage to civilians not be excessive in relation to the military advantage sought. Similarly, demands — or expectations — that there will be no collateral damage to civilians as a result of combat suggests policing, rather than war-fighting, standards. Treating unlawful combatants as criminal defendants fits into the same paradigm.
Unfortunately, although the effort to remake the laws of war is often defended on "humanitarian" grounds, the standards being promoted are unrealistic and markedly favor irregular and unlawful fighters who pose the greatest threat to the civilian population. In fact, the limitations imposed on the use of force, and the treatment of suspects, by domestic police organizations, far from reflecting some universally applicable humanitarian imperatives, arose only because the state has an effective monopoly of military force, and that the damage caused by an individual perpetrator, or group of perpetrators, is comparatively limited. This, of course, is not the case when fighting a foreign enemy, and especially a transnational group like al Qaeda, whose goals are not pecuniary but geopolitical.

The proposed changes would also mean more deaths on both sides. Using overwhelming force and decesive action shortens the conflict and reduces the killing.