Among this year’s Oscar nominees for best documentary was “Dirty Wars,” based on a book by Jeremy Scahill. It examines the top-secret U.S. Joint Special Operations Command, which is accused of carrying out drone strikes and other “targeted killings” that may violate international law as well as the U.S. Constitution. Scahill raises issues that relate not only to America’s “War on Terror” but also Israel’s effort to deal with terrorist threats by using similar methods. 

The first question raised by the title of the book is whether there has ever been a “not dirty” war. From the Romans’ leveling of Carthage in ancient times, to the use of biological weapons (dead carcasses catapulted over castle parapets) in siege warfare in medieval Europe, to Sherman’s burning of Atlanta and scorched-earth March to the Sea during the Civil War, to the use of chemical weapons during World War I, to the strategic bombing of Dresden and Tokyo and the dropping of the A-bomb over Hiroshima and Nagasaki in World War II, to the My Lai massacre in Vietnam and up to the present day, war has always been, in Sherman’s words, hell, and usually dirty – although some wars have been fought more in conformity with the “laws of war” than others.  

Soldiers have always had to contend with “the fog of war,” having to make uncertain, often hair-trigger decisions about the identity and whereabouts of an enemy. The climate for fighting wars arguably is getting foggier. Increasingly, there is also what Michael Glennon has called “the fog of law.” 

Today, especially, it would seem harder than ever to fight wars honorably, to observe the traditional rules restricting the resort to armed force (ius ad bellum) contained in the United Nations Charter as well as those rules restricting the nature of the force that can be used (ius in bello) contained in the Geneva Conventions and other such instruments. 

War, always messy, has become an even messier phenomenon. I recommend Scahill see the recent movie “Lone Survivor,” which offers a counterpoint to “Dirty Wars,” as Navy Seals get killed trying to fight cleanly. 

British professor Mary Kaldor and other scholars have described “the new wars.” Armed conflict today tends mostly to take the form of “force without war” – sporadic violence in scattered locales, often involving non-state actors such as terrorists, guerrillas and gangs, as opposed to large-scale armed combat between the unformed armies of states across well-defined fronts, marked by neat beginnings (formal declarations of war) and neat endings (peace treaties). 

Scahill laments the fact that the “War on Terror” is temporally and geographically boundless, with no end in sight and with the “battlefield” seemingly everywhere, stretching from Benghazi to Boston.  Is he aware that no declaration of war has occurred since WWII, and that, as Herman Wouk has said, “Nothing like D-Day will happen again”?   

That’s the good news: Interstate war as we have known it is in decline and relatively infrequent. The bad news is that when it does occur, it tends to mix with intrastate violence (civil war) and extrastate violence (transnational terrorism) in complex conflagrations, such as in Iraq and Afghanistan, making for legal minefields. 

What poses a special problem for countries such as the United States and Israel is the phenomenon of “asymmetrical warfare,” as both are facing a shadowy enemy in al Qaeda, Hezbollah and other groups that have tried to level the playing field against a superior foe by changing the standard rules of engagement. 

How can we be expected to observe conventional rules, including international humanitarian law (which requires one to avoid targeting civilians), when our adversaries follow no such rules? In fact, these adversaries not only explicitly target civilians but hide behind them, daring us to strike them so that we will then be criticized by Scahill and human-rights advocates for the admittedly tragic collateral damage we cause.  The fact is that oftentimes we no longer can even distinguish between combatants and civilians.

Regarding targeting killings, was it wrong (illegal or immoral) for the United States to fire a drone strike at Anwar al-Awlaki, an American cleric who had been linked to three of the skyjackers responsible for murdering 3,000 people on 9/11 and who was inspiring further jihad against the U.S. from Yemen?  Should we have applied “lawfare” rather than “warfare,” attempting to capture him as a criminal, read him his Miranda rights and bring him back to America to stand trial? Was it a violation of both international law proscriptions against “targeted assassinations” and American constitutional proscriptions against “extrajudicial executions” and denial of due process? 

My view is that we were well within our moral and legal rights to take the action we did. Although I agree that we need to improve the transparency of the covert CIA and Department of Defense drone programs and promote greater congressional and judicial oversight, as well as review our intelligence-gathering surveillance methods, realistically there are limits to how open we can be if we hope to succeed in combating terrorism. 

Israel faces the same dilemma in balancing the need to respond to existential threats to its security with its commitment to the rule of law domestically and internationally. 

It is easy to applaud critics of U.S. foreign policy such as Scahill and NSA whistleblower Edward Snowden as heroes. Yes, if we have to fight, let’s aim to fight the right way, as best we can. One has to wonder, though, whether D-Day could have been kept secret and WWII won, and whether we would be here debating all this as a free people today, had these folks been on the scene then railing against “dirty wars.”