Taking Land In Afghanistan

Though, thank the Good Lord, we haven’t had many cases of this type at home, an interesting issue arises when the military must destroy private property in wartime, under battle conditions. The U.S. Supreme Court held in United States v. Caltex, 344 U.S. 149 (1952) that when the U.S. Army blew up a privately owned refinery in the Phillipines in World War II, to keep it from falling into the hands of the advancing Japanese troops, that was not a compensable taking. Similarly, in Y.M.C.A. v. United States, 395 U.S. 85 (1969) damage to a YMCA building in the Panama Canal zone, in which American troops took temporary shelter during local riots, and from which they eventually had to withdraw under fire, was likewise not a compensable taking. That’s how it goes. War is hell.

But if the New York Times is to be believed, the locals in Afghanistan get paid for their farms, irrigation systems, land and crops that are destroyed by Allied troops fighting the Taliban. Carlotta Gall and Ruhulla Khapalwak, Winning Hearts While Flattening Vineyards Is Rather Tricky, N.Y. Times, March 12, 2011, at p. A4. The U.S. and Canadian troops fighting in Afghanistan find themselves sorely pressed at times for lack of roads by which to transport their equipment. So they enter the needed land, raze existing structures or vineyards, and build the needed roads.

But the Times also discloses that some of the compensation payable to the locals is not just for taking land for those roads, but also for destruction wreaked by the military on local farms and vineyards. “Fruit trees have been felled, vines uprooted, and fields and barns flattened.” Which, if we read Caltex and Y.M.C.A. correctly would not happen when Americans make similar claims.


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