Sacha Pfeiffer (2:51)

It'S consider this from npr over the weekend the us said it conducted a military airstrike on a boat in the caribbean killing three people that means so far the us has struck at least fifteen boats and killed more than sixty people whom it's calling unlawful combatants we wanted to understand the history of that term so we called scott anderson a former us diplomat and government attorney who's now a fellow at the.

Scott Anderson (3:15)

Brookings institution so the term unlawful enemy combatant first came into common usage after the nine eleven attacks as part of arguments the us government advanced as to why members of al qaeda and the taliban and related terrorist groups didn't have to be provided with the full bundle of rights and protections that are usually provided to prisoners of war under international law pursuant to the geneva conventions and the related treaties and areas of international.

Sacha Pfeiffer (3:40)

Law we should remind people who may not have been born yet that basically that allowed them to arrest hundreds of suspected terrorists and then hold them indefinitely at guantanamo some of them are still.

Scott Anderson (3:51)

There today that's correct and now particularly in the last ten or fifteen years the term has fallen out of use usually we hear the somewhat more technical international law term unprivileged enemy belligerent used instead of unlawful enemy combatants so returning to it is symbolically notable and by.

Sacha Pfeiffer (4:08)

Returning to the term would those defendants then likely get fewer legal protections than a traditional criminal defendant or traditional prisoner.

Scott Anderson (4:16)

Of war would arguably yes potentially i mean congress has installed a lot of protections since that time and the supreme court has pushed back on some of these interpretations the reality is the trump administration would have a very hard time doing that because we have more than two decades of intervening supreme court decisions and legislation that would make it very difficult and that set up pretty clear limits on substantial aspects of what the bush administration did but it may suggest that they want to push more in that direction then us policy has drifted in the intervening years is there a.

Sacha Pfeiffer (4:49)

Majority legal view on whether the term is justified in these boat strikes it.

Scott Anderson (4:54)

Is i think almost the consensus view among outside legal experts that it is not more than that and this gets to the use of this term as a way to kind of obfuscate the legal barrier here most lawyers looking at this say this should not even be viewed through the lens of the law of armed conflict at all because this is not a war this is the use of military violence against people who would traditionally be viewed as civilians and in trying to use these sometimes controversial terms associated with the war on terrorism the administration is trying to make this all look like just something like the war on terrorism and the reality is it's something extremely different you would view this as very close to state sanctioned murder or targeted killings we should note.

Sacha Pfeiffer (5:35)

That you refer to the people on these boats as i think trying to harm the us we should also note that it's unclear who was on the boats we're at this point going by the word of the white house that these were drug smugglers so it's the details of exactly who was killed are.

Scott Anderson (5:47)

Pretty scant very good point absolutely and that's also part of the problem here i mean in the law of armed conflict framework you have are a situation where it is up to the targeting power the state that's perusing violence to apply a bunch of standards to ensure that they're adequately distinguishing between civilians and military targets so even if you take the government's framing the trump administration's framing this as an armed conflict a lot of obligations still apply and we haven't got a lot of information about how they're complying with it even within this framework the administration is advancing most of.

Sacha Pfeiffer (6:21)

The people on those boats have been killed but a few have lived and so far they've been sent back to their home countries i believe if there are more strikes and more people survive does calling them unlawful combatants potentially lay the groundwork for holding them indefinitely whether at guantanamo or elsewhere it potentially could.

Scott Anderson (6:40)

That was the original use of the unlawful enemy combatant language but i think more realistically seeing what the trump administration has done with them which is return them very quickly to their country countries of origin instead of detaining them and potentially facing that judicial review i think is a strong indicator they don't have a lot of confidence in their legal arguments and they don't want to subject them to that review and it's better to just return these people and unfortunately where they're killed there's not a clear avenue to judicial review like there is if they're detained by the united states or at least there's possibilities of judicial.

Sacha Pfeiffer (7:13)

Review so in some ways it's easier when everyone dies when someone stays alive you have a much more complicated legal.

Scott Anderson (7:19)

Situation precisely i really think the use of unlawful enemy combatant like the use of terrorism designations both real and imagined is a big feint by the administration they want people to talk about the technicalities of these things to say is this a london law enemy commandant and the more fundamental question that people really need to confront about this is that is this anything like what happened after nine eleven and it absolutely is not but in bringing up all this terrorist rhetoric and all these terms and drawing focus on these questions of is this the right use of this designation of this term of this technicality they're able to distract frankly from a lot of.

Sacha Pfeiffer (8:03)

That conversation scott anderson is a fellow at the brookings institution thank you very much for talking about this thank you this episode was produced by avery keatley and gabriel sanchez it was edited by ahmad daman our executive producer is sami yenigun it's consider this from npr i'm sacha pfeiffer.

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