PDA

View Full Version : Rule of Law in Iraq & Afghanistan



jmm99
04-22-2011, 02:20 AM
Given almost a decade of experience, some Lessons Learned can be and have been learned from those conflicts.

We start with Rule of Law in Iraq and Afghanistan, by Mark Martins - Brigadier General, United States Army, Commander, Rule of Law Field Force, Afghanistan. J.D. , Harvard Law School, 1990 - Brig. Gen. Martins delivered these remarks as part of the Dean’s Distinguished Lecture Series at Harvard Law School on April 18, 2011, upon receiving the Harvard Law School Medal of Freedom.

Speech (http://harvardnsj.com/wp-content/uploads/2011/04/Forum_Martins_.pdf) (17 pages in pdf)

Slides (http://harvardnsj.com/wp-content/uploads/2011/04/Martins-HLS-MOF-Slides-Accompanying-Remarks-18-Apr-2011.pdf) (15 slides in pdf)

Examples covered:


•Responding to attacks from shrine in Najaf (Iraq)

•Opening the Syria border crossing (Iraq)

•Acting on reports of excessive force (Iraq & Afgh)

•Funding local security efforts (Iraq & Afgh)

•Adopting counterinsurgency theory (Afgh)

•Fielding the rule of law in practice (Afgh)

The examples cover not only the Rule of Law, but also the Laws of War (LOAC).

Those and other legal issues resaulted in:


Third observation — in all of the examples, we had lawyers deployed with us who could help. I have not come close to exhausting all that operational lawyers must be, know, and do in modern U.S. military operations.

They must be soldiers — physically fit to endure the rigors and stresses of combat while keeping a clear head, as well as able to navigate the area of operations, communicate using radios and field systems, and, when necessary, fire their assigned weapons.

They must also be prepared, when called upon, to foster cooperation between local national judges and police, to plan and supervise the security and renovation of courthouses, to support the training of judges and clerks on case docketing and tracking, to establish public defenders’ offices, to set up anti-corruption commissions, to mentor local political leaders and their staffs, to explain governmental happenings on local radio and television, to develop mechanisms for vehicle registration.

Because of their work ethic, creativity, intelligence, and common sense; because of their ability to think and write quickly, persuasively, and coherently; and because of their talent for helping leaders set the proper tone for disciplined and successful operations — I and other commanders tend to deploy as many field-capable lawyers as we can.

The number of judge advocates in the 101st Airborne Division reached 29 under General Petraeus’s command. At the Multi-National Force-Iraq, a force of about 160,000, we had 670 uniformed legal personnel, including 330 operational lawyers — several of whom were great British and Australian judge advocates — and 340 paralegal specialists and sergeants. In Afghanistan, we have nearly 500 judge advocates and paralegal specialists.

BG Martins' comments take us up to this week in Operational Law.

Regards

Mike

jmm99
04-22-2011, 02:27 AM
Operational Law (not to be confused with the "Operational Level of War[fare]") goes back a couple of decades. A good rendition of its early history is "The Strategic Implications of Operational Law" (1995) (pdf attached below):


Operational law is "[t]hat body of domestic, foreign, and international law that impacts specifically upon the activities of U.S. forces in war and operations other than war . . . It is a collection of diverse legal and military skills, focused on military operations. It includes military justice, administrative and civil law, legal assistance, claims, procurement law, national security law, fiscal law, and international law."[1]

The term "operational law" was coined in the aftermath of Operation Urgent Fury in Grenada.[2] At that time, military lawyers at the United States Army Judge Advocate General's School began a reassessment of the legal advice and support due commanders.[3] The long-term result may be a profound change of direction in the practice of military law.[4] There is now an accelerating military professional interest in operational law that goes beyond the Army JAG Corps.[5] This growth in the stature of military operational law is a response to the same environmental factors that led to the development of the doctrinal rubric Operations Other Than War (OOTW).[6] An institutional phenomenon, operational law (like OOTW) reflects the changing nature of sovereignty, the increasing reach of legal norms into military affairs, and the great variety of missions assigned to military organizations.

1. International and Operational Law Division, Operational Law Handbook (Charlottesville, Virginia: The Judge Advocate General's School, 1994), A-1. (The Operational Law Handbook is now used at the Judge Advocate General's School and at the Army War College in Carlisle, Pennsylvania as a text reference. At the War College it has replaced Theater Planning and Operations for Low Intensity Conflict Environments: A Practical Guide to Legal Considerations.).

2. See David E. Graham, "Operational Law--A Concept Comes of Age," The Army Lawyer (July 1987): 9. "Lest there be any doubt, OPLAW is a new concept. It is not simply a modified form of international law, as traditionally practiced by Army judge advocates, dressed up in battle dress uniform and given a çatchy'name." Ibid; "By its nature, OPLAW transcends normally defined military legal disciplines and incorporates, for the first time in one legal regime, relevant substantive aspects of international law, criminal law, administrative law, and procurement-fiscal law." Ibid., 10.

3. A foundation had already been laid within the Judge Advocate General academic community for the construction of operational law doctrine. Department of Defense Directive 5100.77 of 10 July 79 required all US forces to abide by the law of war. (In 1977, President Carter had signed the 1977 Protocols to the Geneva Conventions) As a result, the international law division of the JAG school gained status and positions, though the scope of interest remained fixed on law of war issues. Shortly before the Grenada intervention, Joint Chiefs of Staff Memoranda 59-83, of 1 June 83, (and a later memorandum--MJCS 0124-88, 4 Aug 88) required lawyers to provide advice on both restraint and the right to use force, and to assist in operational plans and orders. These instructions, as well as FORSCOM Message, Subject: Review of Operations Plans, 29 October, 1984, provided the official mandate on which operational law doctrine was developed.

4. Although the Operational Law Handbook includes national security law as one of its elements, it is also correct to conclude that operational law is a practitioner bi-product of national security law. National security law has become a major area of legal study, like domestic law or tax law, that is individually recognized by the American Bar Association. Over eighty law schools in the United States now offer some course work in national security law. This body of legal study reflects legislation and court decisions that have shaped all aspects of national defense during the past half century. It is an area of study that involves scholars, policy makers, and legal practicioners well beyond those in military uniform. The development by military lawyers of military operational law doctrine was a unavoidable consequence of this larger academic movement. Rather than just relating operational law principles based on experiences from military deployments (although this is important), military legal faculty must prepare unit JAG officers to incorporate the lessons of national security law into their military practice. The future of military law is now tied in great measure to the evolution of national security law. The range of this discipline can be seen in the contents of one of the major national security law texts. See, e.g., John Norton Moore, et. al., National Security Law, (Durham, North Carolina: Carolina Academic Press, 1990). Materials in Moore's text cover 1200 pages in 28 chapters ranging from international conflict management to emergency preparedness.

5. As part of its annual senior service college curriculum, The Army War College at Carlisle, Pennsylvania now offers a 30 hour advanced course to prospective senior officers and civilian leaders on legal aspects of defense and military decisions. At the Command and General Staff College at Ft. Leavenworth, Kansas, the follow-on generation of military leaders is now offered a 30-hour elective on operational law.

6. See Headquarters, Department of the Army, Field Manual 100-5, Operations (Washington: U.S. Governmant Printing Office, 1993). FM 100-5 is a periodically updated capstone document for U.S. Army doctrine. This latest edition includes a chapter titled "Operations Other Than War" where a mission list is offered that includes: noncombatant evacuation operations, arms control, support to domestic civil authorities, humanitarian and disaster relief, security assistance, nation assistance, support to counterdrug operations, combatting terrorism, peacekeeping operations, peace enforcement, show of force, support for insurgencies and counterinsurgencies, and attacks and raids. The manual's glossary defines the term OOTW as "military activities during peacetime and conflict that do not necessarily involve armed clashes between two organized forces." FM 100-5 is more definite about what the Army feels OOTW are not . An OOTW apparently cannot be 'limited' war or 'general war,' although OOTW can occur simultaneously or within either of these. Limited war is an armed conflict short of general war, the example given being Operation Just Cause in December 1989 in Panama. General War is defined as "armed conflict among major powers in which the total resources of the belligerents are employed and survival is at stake." Ibid., 2-1. At the time of the writing of this article, a new Army Field Manual on Operations Other Than War was still in draft.

After 15+ years, we (at least Polarbear1605 and jmm99) are still struggling with Rule of Law and Laws of War collisions in "OOTW".

Regards

Mike

PS: in the pdf endnotes, you will find a reference by a then-younger field grade, who has since rose in his world:


18. Mark Martins, Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering (Master of Laws Thesis, The Judge Advocate General's School, United States Army, 1994).

This has become something of a landmark for ROE analysis and training.

jmm99
04-22-2011, 03:11 AM
BG Martins posted the following posts about "Lawfare" in Nov 2010 (all non-technical and worth consideration and thought):

Lawfare in Afghanistan? (http://www.lawfareblog.com/2010/11/lawfare-in-afghanistan/)

Building the Rule of Law in Theory (http://www.lawfareblog.com/2010/11/building-the-rule-of-law-in-theory/)

Building the Rule of Law in Practice (http://www.lawfareblog.com/2010/11/building-the-rule-of-law-in-practice/)

Reflections on “Lawfare” and Related Terms (http://www.lawfareblog.com/2010/11/reflections-on-%e2%80%9clawfare%e2%80%9d-and-related-terms/)

Lawfare: So Are We Waging It? (http://www.lawfareblog.com/2010/11/lawfare-so-are-we-waging-it/)

Bite-sized chewies.

Regards

Mike

jcustis
04-22-2011, 04:05 AM
Given almost a decade of experience, some Lessons Learned can be and have been learned from those conflicts.

We start with Rule of Law in Iraq and Afghanistan, by Mark Martins - Brigadier General, United States Army, Commander, Rule of Law Field Force, Afghanistan. J.D. , Harvard Law School, 1990 - Brig. Gen. Martins delivered these remarks as part of the Dean’s Distinguished Lecture Series at Harvard Law School on April 18, 2011, upon receiving the Harvard Law School Medal of Freedom.

Speech (http://harvardnsj.com/wp-content/uploads/2011/04/Forum_Martins_.pdf) (17 pages in pdf)

Slides (http://harvardnsj.com/wp-content/uploads/2011/04/Martins-HLS-MOF-Slides-Accompanying-Remarks-18-Apr-2011.pdf) (15 slides in pdf)

Examples covered:



The examples cover not only the Rule of Law, but also the Laws of War (LOAC).

Those and other legal issues resaulted in:



BG Martins' comments take us up to this week in Operational Law.

Regards

Mike

the staff judge advocate assigned to my battalion during my last deploy was everything mentioned that a military lawyer should be. He went at his mission with a passion, despite the walls and roadblocks that seemed to routinely appear from the elders and even the district governor himself. he plowed on nonetheless, until the very end. That takes passion for the trade.

jmm99
04-22-2011, 05:23 AM
Jon. Perhaps your SJA was influenced by the attitude of the other field grades in the Bn. :)

Just finished watching an old Sean Connery movie, The Hill (http://en.wikipedia.org/wiki/The_Hill_(film)) (1965). I've never watched the whole thing before. It does pose some "Rule of Law" issues in a military confinement situation.

Regards

Mike

jcustis
04-22-2011, 05:27 AM
:D

He certainly earned his pay, and once he proved he could walk on water, I asked him to make multiple return trips.

JMA
04-22-2011, 05:36 AM
BG Martins' comments take us up to this week in Operational Law.

Regards

Mike

BG Martins is quoted as stating:


Third observation — in all of the examples, we had lawyers deployed with us who could help.

I ask in all sincerity if this is perhaps not the problem?

LawVol
04-22-2011, 06:15 AM
The Article here (http://http://www.washingtonpost.com/world/afghans-death-a-parable-for-countrys-justice-quandary-courts-or-elders/2011/04/17/AF2KJyCE_story.html?hpid=z4) illustrates a problem for our Rule of Law effort. Although Afghanistan does have a history of formal justice, many parts of the country have relied on an informal system consisting of tribal jirgas or shuras.

The formal system is seen as corrupt and impartial. There is some truth to this, but the issue with the informal system is that it often transgresses the Afghan Constitution and Afghanistan's commitments under international law. Just yesterday, I spoke with the Head of the Huquq in one of the provinces (the Huquq is sort of a clearinghouse for handling cases that can either mediate, assign to the jirga, or assign to the court). I asked him to explain how they ensure jirga decisions comply with Constitutional and international law. He ultimately conceded that such complaince took a back seat to public order. The ultimate goal of the jirga is harmony within or among villages. This cuts against traditional western notions of justice, but works for Afghans. The question becomes how much compliance do we require? Can we get by with less than complete compliance or must we sacrifice a functioning, but imperfect, justice system on the alter of idealism?

Our own system of justice has been 236 years in the making (more if you count our English common law origins). Can we really expect perfection in the Afghan system in a mere 7 years (as measured from the 2004 Afghan Constitution)?

jcustis
04-22-2011, 06:24 AM
Can we really expect perfection in the Afghan system in a mere 7 years (as measured from the 2004 Afghan Constitution)?

Good points. And remember gang, perfection is relative.

Justice for crimes purported to be committed by Afghans against Afghans are also a wholly different matter than the rule of law and rules of evidence for crimes committed against GIRoA in the coalition sense.

LawVol, are you observing that the drug courts are more effective than the courts responsible for handling terror crimes?

LawVol
04-22-2011, 06:44 AM
LawVol, are you observing that the drug courts are more effective than the courts responsible for handling terror crimes?

Unfortunately, I haven't had the opportunity to observe the drug courts yet. However, I did observe a few trials at the JCIP (Justice Center in Parwan) where the terrorism cases are tried. I was told by folks more experienced than I, that the JCIP court would be among the best I would see given that JAGs are embedded with the court. I saw an inability of attorneys to deal with basic forensic evidence. In one particular case, the question involved fingerprints. There is a lack of understanding as to how fingerprints work and how the evidence can be used. It's fixable with some training of judges and lawyers and restructuring evidence classes in law schools, but its does need to be done.

Another issue is that law schools typically do not teach critical thinking. Law is learned through memorization, akin to learning the Quran in madrassas. In fact, a good many lawyers and judges have no formal legal training, but instead are educated in Sharia through madrassas. Some knowledge of Sharia is important since it is incorporated into the Constitution, but the absence of any formal legal training is a problem.

Afghan lawyers will tell you that their Constitution requires the application of Sharia law when the Constitution or statutes have no answer. However, that assertion fails to comply with actual practice or the specific wording in the Constitution. I have no issue with applying Sharia law here (after all it is their country), but practice and written law should match. Unless this happens, there will always be accusations of impropriety, a death-knell for system legitimacy.

jmm99
04-22-2011, 06:53 AM
SJAs are not the problem.

-------------------------
LawVol - Good to see you back posting.

As I've thought about this more and more over the years (40+ as a lawyer), I think we have the real "legal process" a$$ backwards.

Our formal construct for what rules a "decision-maker" looks like this - in presumed order of impact on the decision (using Quotes to set off the points):


1. Doctrinal Law (usually written) as read and interpreted by the decision-maker.

2. Living Law (the "law" as it exists in the decision-maker's noggin without deeply pouring into the written law)

3. Social Norms (usually near and local) accepted by the decison-maker.
Items 2 & 3 tend to be ignored by legal formalists.

I'd suggest that the real "legal process" is like so - same elements reversed:


1. Social Norms (usually near and local) accepted by the decison-maker.

2. Living Law (the "law" as it exists in the decision-maker's noggin without deeply pouring into the written law)

3. Doctrinal Law (usually written) as read and interpreted by the decision-maker. If this does not follow the accepted social norms, the decision-maker will interpret the Doctrinal Law to accord with Social Norms and Living Law.

I have used this "strategy" for decades - obviously not as blatantly as I present it here ;) - and it has worked well at both the trial and appellate levels.

In the case of a Astan village decision-maker, national Constitutional law and international law are so far removed from his Social Norms and Living Law that one should not expect him to pay much attention to them at all.

Regards

Mike

LawVol
04-22-2011, 08:21 AM
Mike, you are quite right. We Americans, particularly lawyers I think, become jaded toward other forms of law, especially civil law as opposed to common. However, our main ethnocentrism revolves around social or cultural adaptions of law. We seem to think that if its works for us, it'll work for others forgetting that folks have been doing this for thousands of years.

While I do believe their are certain fundamental rights that exist irrespective of culture, i.e. natural rights (existential rights?) that exist just from the fact that we exist (still working through my thought process on this one), the fact is that most law will turn on societal norms and cultural influence. In trying to enforce our own ideals of justice, we ignore this aspect of legal system creation and hamper our efforts to create a working system. I think we should focus on the big picture and worry about some of this stuff later.

Another aspect of the formal legal system lost on some in relation to rural folks, is the historical trend of desiring limited government. These folks want government to leave them alone. Security is all they really desire from the government and governmental imposition of a "foreign" legal system in lieu of their traditional methods is viewed as undesirable. We have to integrate the traditional system into the formal system and use it as a basis for "selling" the formal system to the locals. This is a generational effort though and American impatience isn't helping.

jmm99
04-22-2011, 04:05 PM
What you say, fits with what Jon said here (http://council.smallwarsjournal.com/showpost.php?p=119019&postcount=726), viewed from a slightly different angle.

This is, I suppose, the tasked mission:


from LawVol
We have to integrate the traditional system into the formal system and use it as a basis for "selling" the formal system to the locals. This is a generational effort though and American impatience isn't helping.

and I couldn't agree more about the time frame (indeed, generational). I toss out what follows for thought. Unfortunately, it's not based on in-country experience. However, it does go beyond staying in a Holiday Inn Express last nite (my wife kicked me out; I stopped beating her ;)).

What I think is based on what I've read (as one example, Justice Sector Support Program stuff - whose links I had here, The dumb lawyer again (http://council.smallwarsjournal.com/showpost.php?p=85103&postcount=9), and here, A little part of the picture (http://council.smallwarsjournal.com/showpost.php?p=83103&postcount=71), have gone South). Freely correct any errors I made.

If I am to be consistent with my methodology (as to steps 1, 2 & 3 used by the decision-maker), those steps would also apply to the decision-makers in Kabul. Their social norms seem to be more "Western" (even "USAian" in many cases) and I suspect the "tailored suit" makes many of us (USAians) more comfortable than we are with the villager who sits there picking his feet while we talk (via one or more interpreters).

Those Kabulians have therefore taken up, into their system of social norms, part of the "Western" formal systems of international and national laws and part of the Sharia formal systems of national and local laws. The result is that their formal system of laws is within the framework of their social norms.

The issue you raise is what gets incorporated at the local level. I'd posit that the formal system (Doctrinal Law) has to be incorporated into the traditional system (Village Social Norms) - and that won't happen unless the formal system squares pretty much across the board with the traditional system.

To me - as a "Western" lawyer, the Taliban (pre-9/11) looked a rather "lawless" bunch; but looking back, I suspect they simply did not want to take on the longterm and thankless task of implementing a national sytem of laws. So, they have the Sharia as their law; but the Sharia that is applied (at least in the countries where Marc-André Lagrange has worked; see this thread, Mullah Omar: Taliban Rules and Regulations (http://council.smallwarsjournal.com/showthread.php?t=8675)) is a "Living Law" (not exactly as written, but in the noggin of the decision-maker).

We might say that a generalized Doctrinal Law system is capable of supporting a range of Social Norms - the decision-maker can "interpret" it to do so. However, the Social Norms of a particular group are usually not sufficiently flexible to support a wide range of Doctrinal Law systems. Thus, a Doctrinal Law system (if it has any real meaning to a population group) has to accord with the Social Norms of that group - either by being expressly drafted, or by "interpretation", to meet those norms.

Do the Kabulians and the Villagers have contradictions in Social Norms ?

Regards

Mike

Bob's World
04-22-2011, 04:35 PM
"Rule of Law" is a pet peeve for me as COIN theory goes.

Saddam certainly had rule of law, and it was a major reason contributing to our decision to invade as he enforced that law to ensure that no Shiite or Kurdish insurgency emerged.

The Taliban similarly had rule of law in Afghanistan. Sharia is a very effective COIN rule of law approach when one defines defeat of those who dare to complain about governance as effective COIN. Same is true for many countries on the Arabian Peninsula that are on the edge of full rebellion.

No, "Justice" is the goal, not rule of law. In England when there was a growing perception that there was little "justice" under the law they created the Courts of Equity to address this concern. Good COIN, that. Ultimately the two court systems fused into a more just legal system provided the basis for law and justice as we know it in America today. From everything I hear and read about the US Corrections system it raises a very high alert as to a fading perception of justice among critical populaces from which insurgency could emerge. We have rule of law though.

I wish the State department would change their "rule of law" division to a "justice" division; their "democracy" division to a "self-determination" division; and their "counter-terrorism" division to a "non-state actor" division. They would be more effective for it.

The rule of law is as apt to create insurgency as cure it; but justice is always a step in the right direction.

jmm99
04-22-2011, 05:30 PM
again my shield is raised to your sword.

Very simply (because I've explained this fully more tmes than I should have had to), what you call "rule of law" in your examples (prior post) is really "rule by law" - law imposed from above.

The Chinese legal theorists saw it as part of the Imperial Mandate from Heaven. So, also the "Divine Right of Kings". Neither the Chinese Nationalists nor the Chinese Communists understood our (USAian) concept of "rule of law" and thought we were nuts.

The concept of "rule of law" (to have any real meaning to the masses) has to incorporate the basic concept of "We, the People of X ... do ordain and establish ..."

My battle is not with the "Rule of Law" as so defined ("We, the People ..."), but with use of the term "rule of law" in situations where "rule by law" is the actual system.

The distinction between "rule of law" and "rule by law" is not trivial - cf., the distinction between "relevant" and "material".

Your arguments (with their thoughts as I attempt to parse them, I have more agreement than you might think) suffer from a non-rigorous choice of terminology - which takes you off on tangents (at least to this reader).

Please bear the following in mind as you equate the old Courts of Equity and "justice" (good "COIN" in your words):


This is the Court of Chancery, which has its decaying houses and its blighted lands in every shire, which has its worn-out lunatic in every madhouse and its dead in every churchyard, which has its ruined suitor with his slipshod heels and threadbare dress borrowing and begging through the round of every man's acquaintance, which gives to monied might the means abundantly of wearying out the right, which so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honourable man among its practitioners who would not give--who does not often give--the warning, "Suffer any wrong that can be done you rather than come here!"

Dickens, Bleak House (http://en.wikiquote.org/wiki/Charles_Dickens#Bleak_House_.281852-1853.29).

Please - history and rigor (I'm starting to sound like Wilf).

Regards

Mike

carl
04-22-2011, 06:07 PM
Rule of Law as opposed to Rule by Law, very elegant.

Rule of Law: all are subject to and must abide by.

Rule by Law: some are subject to and must abide by.

Is that part of it?

Bob's World
04-22-2011, 06:26 PM
Mike,

My post not to argue with yours, but rather to express my concern with the concept. While I appreciate the nuance you lay out of "Rule of" vs "Rule by"; but if one needs a lawyer to explain even the name of a legal concept, it is a flawed conceptual name.

No one needs to explain "justice" to anyone. We all know when we feel we have been treated with justice or injustice intuitively. I stand by the position that this is what I want State to pursue rather than "Rule of Law;" particularly when we are on record as being against Sharia law. The implication is that we want to replace your law with our law, and there is little justice in that implication.

carl
04-22-2011, 09:26 PM
No one needs to explain "justice" to anyone. We all know when we feel we have been treated with justice or injustice intuitively.

The feeling of being treated unjustly is likely to be voiced long and loud by most all people who get arrested regardless of the crime. They only rarely say "You got me and I deserve to be got." Therefore I question your premise.

jmm99
04-22-2011, 10:45 PM
First, why this fails logically:


from BW
While I appreciate the nuance you lay out of "Rule of" vs "Rule by"; but if one needs a lawyer to explain even the name of a legal concept, it is a flawed conceptual name.

Lawyers (if they are able) should explain legal concepts and their names. I don't ask the guy who stayed at the Holiday Inn Express to explain medical terms; I ask my doctor.

That does not end the process because many lawyers can't explain legal concepts or their names worth diddly - and may not know the history of the concept and the reasons for it (which go back to Social Norms).

So, non-lawyers also shape these names and concepts - Marc Tyrrell, as just one example, can explain "rule of law" and "rule by law" (as I am using them here) better than I can in terms of population group dynamics. However, boiled down to their basics (as I am using them): "rule of law" is a "bubble up from the base" phenom; and "rule by law" is an "imposed from the top" phenom. Those basics require no "lawyerly" sophistry to present or understand.

Still keeping with the Lawyer Jones theme, what are more legal than the terms, "justice", "democracy" and "self-determination" ? But, moving aside from that, those terms are indeterminate. For example, someone like Maududi uses the same or equivalent terms (in English translations) to describe his Jihadist "state". The terms, "justice", "democracy" and "self-determination", are lovely words; but they mean very different things to different people.

For example, if a group of rebels bases their revolt on the terms "justice", "democracy" and "self-determination", are we to support them automatically. Sometimes, your arguments seem to say just that - other times, they do not - leaving this reader confused as to what your policy really is.

In a post or posts long ago, either Tyrrell or John T. Fishel (or both) suggested using "working definitions" - strictly for purposes of comnunications. I'm always open to that; but both sides have to agree that a "working definition" is just that - not a final, definitive agreement.

---------------------------------
To Carl:


from Carl

Rule of Law: all are subject to and must abide by.

Rule by Law: some are subject to and must abide by.

I'd say that like such (using incredible lawyerly sophistry ;)):


Rule of Law: We all are subject to and must abide by our rules because we established and ordained them.

Rule by Law: You all are subject to and must abide by my rules because I said so.

First example - Carl and Mike (the only members of the population group) have to agree on the rules that will govern them.

Second example - Mike tells Carl what to do.

Hey, I wouldn't let you rule me - If you tried that, I'd exercise my right to insurge based on "justice", "democracy" and "self-determination". :D

I suppose I should have said this to begin with and reduced the Bravo Sierra (in Finnglish - Pullsit; that's for Stan if he sees this).

So, what is the best system - Ex 1 or Ex 2 ?

BTW: Google gives 12,500,000 hits for "rule of law" - There are many, many definitions that do not agree with what I've presented here - and don't agree with each other !! This ain't the Quest for the Holy Grail.

Regards

Mike

carl
04-22-2011, 11:56 PM
I'd say that like such (using incredible lawyerly sophistry ;)):

Rule of Law: We all are subject to and must abide by our rules because we established and ordained them.

Rule by Law: You all are subject to and must abide by my rules because I said so.

No Mike, that's not sophistry. That fine tuning the thought to give it greater clarity and precision. Sophistry would be "I am part of you and you are part of me, we are interconnected by longstanding ties of history, culture and social diversity. We cannot be separated because our diversity unites us therefore my rules are our rules; and since for you to contravene your rules would be contrary to nature if you did that I would naturally slap you up the side of the head since that is what you really want me to do."


Hey, I wouldn't let you rule me - If you tried that, I'd exercise my right to insurge based on "justice", "democracy" and "self-determination". :D

If you insurged I'd have my nephew ambush you at night while you were walking to your insurge venue; or I'd build you a school so you'd like me, or maybe both depending.

Bob's World
04-23-2011, 12:57 AM
(Somehow I know Mike is double billing someone for this...probably me)

I like the distinction as you explain it in "of" vs. "by"; I just don't think 99.5% of those who hear, use, or are expected to employ the term will recognize the difference. This is such a critical aspect of stability and good governance I'd hate to see the battle lost in the nuance of a 2-letter word.

KISS to me is "Justice"; and that is how one feels about how the law is appled to them; not a nuance of how one applies the law to others. Key is to get the implementers to assess their effectiveness from the perspective of the aggrieved populace that should be the focus of the engagement where insurgency exists; or the populace as a whole where one is seeking to prevent insurgency from ever manifesting to dangerous levels in the first place.

I think your concept is both brilliant and clever, and yes, that is a compliment; I just prefer brilliant and simple. (I really like Einstein's thinking on understanding vs knowledge; and the imporance of simplicity). Simple is just so damn hard, it is what I aspire to.

Bob

(And yes, Carl, as a former prosecutor I appreciate fully that prisons and jails are full of "innocent" men. But trust me, very few do not know exactly what laws they broke and know that if they were held to account for all their sins they would never see the light of freedom again. For that matter, most of us would be in there with them if all of our sins were counted as well.) You know what justice is, as does everyone. It varies between people and culture, but we all know it when we see it.

carl
04-23-2011, 01:37 AM
Bob:

You say


(And yes, Carl, as a former prosecutor I appreciate fully that prisons and jails are full of "innocent" men. But trust me, very few do not know exactly what laws they broke and know that if they were held to account for all their sins they would never see the light of freedom again. For that matter, most of us would be in there with them if all of our sins were counted as well.) You know what justice is, as does everyone. It varies between people and culture, but we all know it when we see it.

and you also say


From everything I hear and read about the US Corrections system it raises a very high alert as to a fading perception of justice among critical populaces from which insurgency could emerge. We have rule of law though.

So on the one hand you say, the hoods know that they broke the law and imply they don't feel they are victims of an injustice but on the other hand you seem to say the hoods broke the law but are feeling they have been unjustly treated.

I am confused.

Bob's World
04-23-2011, 01:57 AM
My point was not to confuse you. My point was that even in America we need to never lose sight of how important perceptions of justice are to maintaining a stable populace; and that we are drifting toward instability because we are not focusing on ensuring we have justice in how we apply the rule of law across the populace.

carl
04-23-2011, 02:07 AM
But it has been my experience that hoods almost always feel they are unjustly treated. Prisons are filled with hoods. So it is to be expected that prison populations feel things are unjust. They are not a representative of how the law is perceived as just across society.

As to your point that we just know what is just. It is 1859 and I am a slave catcher enforcing the fugitive slave law. I know in my heart that my actions are just. The fugitive slave knows in his heart that his flight to freedom is just.

How are these positions reconciled?

jmm99
04-23-2011, 02:18 AM
I'll nail Jones next and double b!££ the he££ out of him (since he raised the issue).

First Point

Here is why you are a friend, even though at times you and I may espouse different policies - no Pullsit here:


Sophistry would be "I am part of you and you are part of me, we are interconnected by longstanding ties of history, culture and social diversity. We cannot be separated because our diversity unites us therefore my rules are our rules; and since for you to contravene your rules would be contrary to nature if you did that I would naturally slap you up the side of the head since that is what you really want me to do."

Besides you are nuts enough to put aircraft into very, very lousy landing fields; take out Hankooki Pu$$!; and are one of my three "Stallion" all-around pilots (excluding military jet jockeys) - the other two have Italian ancestry (you ?).

Second Point

If you insurged, I would neutralize you - not a dodge (neutralize = kill, detain or convert). But, the emphasis depends on the governance.

In example #1 - my "rule of law", a constitutional process exists for change (majority rule for "ordinary stuff"; 2/3 or 3/4 for extraordinary). So, the probabilities of an insurgency are lessened in what I see as a "true democracy" (as I have defined "Rule of Law"). Note that a "Rule of Law Democracy" might be quite nasty as to the minority that refuses to accept the "constitutional rule of law" - including the death penalty. That all depends on that group's accepted Social Norms. But, the thrust of "neutralize" would likely be to convert, detain, kill in that priority order.

In example #2 - my "rule by law", I (as dictator) have some choices. Based on the probabilities (and given my resource capabilities), my better choices in priority order are kill, detain, convert. None are excluded; but I as dictator want to completely control the situation and every aspect. You and I have not lived under that - kowalskil (http://council.smallwarsjournal.com/member.php?u=5475) has - please read his autobio (http://csam.montclair.edu/~kowalski/life/intro.html) (yup; he's an old ba$tard like Ken - and I'm getting there - live with it).

My point is that "true democracies" (using my construct of the "Rule of Law") and "true autocracies" (using my construct of the "Rule by Law" and applying it without pity) are not as likely to be insurged - opinions differ as to what their respective probabilities are. The governments that are "in between" get butchered on a much more regular basis.

So, if a "Rule of Law", I'm going to do my most to convert Carl. If a "Rule by Law", putting Carl alongside the long-tail in his avatar would be a high choice.

That's a long bunch of Bravo Sierra (hi Stan :)) to confirm your second point.

Cheers

Mike

Bob's World
04-23-2011, 02:29 AM
Ok, I need to read Mike's post in detail before I reply to it. For Carl:

The United States has less than 5 percent of the world's population. But it has almost a quarter of the world's prisoners.

46% of those are African American.


Carl you counter actually makes my point. As I study the history of insurgency, rarely does the counterinsurgent recognize the perceptions of the insurgent, but rather relys on his own legality and upon the facts he uses to rationalize his actions.

Law and facts just don't matter much in COIN. Justice and perceptions are everything. The persective that matters on both of those is that of the insurgent segment of the populace.

carl
04-23-2011, 02:30 AM
Mike:

Nice explication of why the in between places have more than their share of insurgencies.

carl
04-23-2011, 02:46 AM
Bob:

You say knowing what justice is varies between people and cultures. Yet you also use the variance between US and world rates of incarceration to imply the US system is unjust. How can you legitimately use world rates to question the justice of US rates if the peoples and cultures of the US are very different from that of the world?

When you say 46% of the prison population is African American you are implying that that is unjust because that is less than the % of African Americans amongst Americans. From that you seem to conclude that, correct me if I misstate your position, that African Americans believe the America is unjust. It is a fact that most victims of African American hoods are African Americans and it is quite likely that the victims greatly outnumber the hoods. In view of this I think it unlikely the African American community at large views the justice of the system (shades of 60s talk) in the same light as the hoods do.

My counter could make your point. The other possibility is that you are wrong and there is nothing there.

Bob's World
04-23-2011, 03:07 AM
Carl,

Is this thing on?

You want to argue facts. I feel like I am talking to a block of wood. You are not either a prisoner, nor an African American, correct? My point in wheeling out the statistics is that they indicate a potential problem. What you must do is be able to put yourself in the shoes of a member of the African American populace in general (this would help you to understand the perspective of a potential base to the inshsurgency. How the mothers, fathers, brothers and sisters feel). Then you must be able to put yourself into the shoes of an incarcerated African American (or latin American) and visualize how they might feel.

If all you can do is look at them as "hoods" you are the classic counterinsurgent. Send the navy and the army to Boston and enforrce the rule of law. We'll show em this time, by god!

jmm99
04-23-2011, 03:17 AM
we need a Retainer Contract - I will charge you (a double bill - you wish !!!).

We'll start with what I've charged Polarbear1605 (http://council.smallwarsjournal.com/member.php?u=2680) and John T. Fishel (http://council.smallwarsjournal.com/member.php?u=809). Since you retired a grade higher than them, that's a double-up. Now, since you are also a lawyer in a prior life, that's a triple-up. Since you come from the Pacific NW, that should be another bump. But, I am Merciful and Compassionate.

You can check with the Great White One and the ES Wonder to determine the mammoth proportions of your bill - it will be huge.

And, if we can't resolve that, I will call in the SNCOIC (http://council.smallwarsjournal.com/member.php?u=1135) to settle the affair and make both of us talk to the crickets - which would be true justice.

What We Will Fight About

We will fight about legal and legal history issues, national security policy issues, the interface between civilian policy and military strategy. We will attempt to develop "working definitions". We will prefer communicating with each other - and forego isolated conversations with the crickets.

What I Won't Question, But Will Check You

In your military area (SF and SOF), I'm not about to contradict you. You have provided me with huge insights on direct action and the concept of AQ's use of unconventional warfare (affiliated groups, which should not be the primary target).

In fact, you set me off on looking at Giap and Vietnam in a way that is contrary to what you say, but accords with what I thought - he won in Vietnam; we won in Southeast Asia (that's a History Argument :)).

----------------------
But then, I even check Custis - my standard on the Corps' current strategy and tactics. Won't contradict him, but I'll send him a PM to ask "why ?".

This post is probably too long and personal (maybe better a PM; but that was my choice, right or wrong).

The problem is that I like you - and we've had too many arguments which should have gone to the crickets - at least, for me.

You remind me of another serving Quaker (this guy (http://www.archive.org/details/gov.archives.arc.33278), counsel to LTG Peers and the My Lai Inquiry - a man I was privileged to know and work under).

Best Regards

Mike

PS (added) - Carl and BW should talk to each other - skip the crickets and me - try a PM and find that each of you has more in common than not in common. If not, go see the bugs.

carl
04-23-2011, 03:22 AM
Bob:

No, if anything ever got "on" I would be at a severe disadvantage in all areas of endeavor. Wooden heads chip easy.

I observe that you use the disparity between % of prisoners of a specific race and the % of a specific race in the general population as potential evidence of some sort of malignity. I don't think that is valid. The classic argument to illustrate that is using the less than representative numbers of anglo guys in the NBA as evidence that the league is prejudiced against whites. Percentages of people in most professions or status' are the result of many factors that interact in complex ways. I learned that from reading.

Your statement about putting myself in the shoes of a hood of whatever color or race reminds me of things I used to hear frequently from hoods. They would say "You would have done the same thing!" I would think to myself "No I wouldn't have. I'm not a hood. You are."

I don't think of all the members of any race as hoods. I think of hoods as hoods. As the man said, I dislike them all equally.

LawVol
04-23-2011, 04:25 AM
Wow, I miss a lot while I'm in the rack!

Bob: I understand your request for simplicity, but sometimes that just isn't possible. COIN, as you know, is complexity to the nth degree. The problem with using justice as a basis for COIN rather than rule of law (ROL) is that justice can be unevenly applied while ROL cannot. The Taliban handed out justice, a crude and often barbaric form but nonetheless still justice. Saddam did the same thing. Both, as indicated by Mike ruled by law. If you were a good muslim pashtun, you received justice under Taliban rule; if you were a Hazari Shia, not so much. If you were a sunni in the Ba'athist fold, you likely received justice, a Shia or Kurd, again not so much.

Justice is a fine concept is evenly applied. However, the only way justice is evenly applied is if ROL exists; if ROL is sovereign rather than an individual. So I agree with Bob that justice is a desired end. However, it is not the final end given what I've said above. The complexity of the issue is perhaps unavoidable and it is up to those with legal minds to simplify the concept as much as possible (the inability to simplify such concepts is a pet peeve of mine regarding lawyers; those who can't are ineffective). Mike has done an excellent job of simplifying the concept. Thsi same explanation is used in many circles here and I've found that most folks I talk to get it rather quickly.

Mike: There is a social difference among Kabulis and rural folks (and even residents of other main cities). Kabulis tend to be more western oriented, more educated, etc. Many outside Kabul look at the formal legal system as just another method of central control vice an attempt at ROL (or universal justice if you prefer). There is some truth to this accusation as some within the Kabul power structure are seeking to minimize jirga influence in the overall legal process.

A bill is currently pending in the legislative process (I believe its at the Taqnin right now) that seeks to bring jirgas into the formal system by requiring documentation, compliance with Constitutional/International law, specific requirements for jirga participants, etc. However, this is viewed as a threat by some in the power structure as they see official acknowledgement of the jirga system as weakening central control. Rural folks also see the bill as a threat by an overbearing central authority due to some of the provisions. From what I hear, however, there really isn't an issue from the rural side on documentation and related issues so this is at least an opening that can be pursued. My own opinion is that we should minimize any structural changes to the jirga system as much as possible as we bring it into the formal system. The first issue is getting it in and recognized as such. We can tweak details down the road.

Polarbear1605
04-25-2011, 06:33 PM
Given almost a decade of experience, some Lessons Learned can be and have been learned from those conflicts.

We start with Rule of Law in Iraq and Afghanistan, by Mark Martins - Brigadier General, United States Army, Commander, Rule of Law Field Force, Afghanistan. J.D. , Harvard Law School, 1990 - Brig. Gen. Martins delivered these remarks as part of the Dean’s Distinguished Lecture Series at Harvard Law School on April 18, 2011, upon receiving the Harvard Law School Medal of Freedom.

Speech (http://harvardnsj.com/wp-content/uploads/2011/04/Forum_Martins_.pdf) (17 pages in pdf)

Slides (http://harvardnsj.com/wp-content/uploads/2011/04/Martins-HLS-MOF-Slides-Accompanying-Remarks-18-Apr-2011.pdf) (15 slides in pdf)

Examples covered:



The examples cover not only the Rule of Law, but also the Laws of War (LOAC).

Those and other legal issues resaulted in:



BG Martins' comments take us up to this week in Operational Law.

Regards

Mike

Interesting speech by General Mark Martins but when general officers give speeches they rate constructive criticism about what they are saying. Constructive criticism is a cause for reflection and should be a normal step in developing and building a solution no matter how noble and honorable the work. As a qualifier, I am not a lawyer, and I am not attempting to minimize what the general and the Rule of Law Field Force are currently tackling but I see a fundamental flaw in the basic approach. BTW, in my opinion, the general’s speech spent too much time warming the hearts and egos of the Harvard Law School Staff and students instead of throwing down the gauntlet of reality. Yes, people think that this is complex stuff but we are not going to solve the complicated by making everyone feel warm and fussy.
General Martin states, at the bottom of page four:
“My working definition of the rule of law is that it is a principle of governance which holds that all entities in society, public and private, including the state itself, and including coalition partners form whom the state has sought assistance, are accountable to laws. The rule of law in the society concerned increases proportion to which the laws are made by a legislature or by some process representatives of the people’s interest, enforced by police and security forces that themselves follow the law, and interpreted, elaborated, and applied by judges who are evenhanded, honest, and independent.”
In my opinion, General Martin, in the above definition has just lumped the Rule of Law and the Laws of War into one and then asked us to handle the lump as the Rule of Law and that is the basic flaw http://warchronicle.com/DefendOurMarines/Weimann/LawsOfWar_6SEPT10.htm . Rules of Law and Laws of War are very, very different. Rules of Law apply to society and the Laws of War apply to the battlefield and when society members (non-combatants) are in the middle of the battle field the Law of War is all you got. On the battlefield citizens are non-combatants; if they pick up a rifle (or IED) they become combatants and insurgents are a very small step above spies. We all understand what the general is talking about when he states that “Sound counterinsurgency is a good thing; trying to stage CSI Baghdad or CSI Kandahar on a military objective is not, and quite frankly, the latter is dangerous.” Then why use counterinsurgency as an excuse to mix the Laws of War and the Rule of Law and have our Soldiers and Marines working for judges. Soldiers and Marines follow their ROE that are based on the Laws of War and not judge’s Rule of Law requirements.
In the general’s first example; “Responding to attacks from shrine in Najaf (Iraq)”. The general states “At one point, General Petreaus recalls putting a precision munition within some 400 meters of the Imam Ali Shrine, having received reliable intelligence that about 200 armed Saddam Fedayeen were operating in and around the shrine [there is an exception to the rule protecting religious sites that expose them to attack if they are used for military purposes].” This can only be viewed as an exception to the Rule of Law. In actuality it is not an exception, it demonstrates the Law of War principle of military necessity and military necessity is determined by commanders and not lawyers.
The Laws of War and the Rules of Law have to be kept separate. Yes, we need to establish a “coordination point” for a “relief in place” between the two but we cannot mix them. If an insurgent is captured on the battlefield then he goes into a POW system where he is interrogated for further military intelligence. He should not be provided the rights of a citizen. How else are we going to hunt down the insurgent shadow government that will use the most extreme means of intimidation on non-combatants?
The general does use two good examples of the Rule of Law in his speech; “Opening the Syria border crossing (Iraq)” and “Fielding the rule of law in practice”. Both of these examples add value to what the military commander is trying to accomplish. I also note, however, that the general speaks nothing of burning and ignored issue in both wars…How do we handle insurgents who commit war crimes? To turn them over to civilian host nation authorities ignores the war crimes and does little to stop civilian deaths. A “catch and release” policy puts our Soldiers and Marine at risk and is counterproductive to any COIN effort.

Stan
04-25-2011, 06:51 PM
Hei Mikko !
I admire your constraint and use of the phonetic alphabet to express your views :D




That's a long bunch of Bravo Sierra (hi Stan :)) to confirm your second point.

Cheers

Mike

jmm99
04-26-2011, 03:07 AM
Harvard Law ? .....

1454

You can't handle the truth!

Seriously, it was BG Martins' call as to how he wanted to coat the pill. I didn't go to Harvard; and I can't put myself in his shoes. I'd have no illusions about converting most of Michigan Law's faculty.

In terms of substance, I was pleased with some points, and not totally satisfied with others, in what he calls his "working definition" (thanks for using that term, General) (emphasis added):


My working definition of the rule of law is that it is a principle of governance which holds that all entities in society, public and private, including the state itself, and including coalition partners from whom the state has sought assistance, are accountable to laws. The rule of law in the society concerned increases in proportion to which the laws are made by a legislature or by some process representative of the people’s interest, enforced by police and security forces that themselves follow the law, and interpreted, elaborated, and applied by judges who are evenhanded, honest, and independent.

I'd suggest that the state cannot be held to the law unless the "rule of law" exists (as I've suggested in my "working definition") - rules ordained and established by the People (who have sovereignty over the state).

If the state ordains and imposes the rules from above, the state is not subject to the law because it can change the rules to favor it. In GO's terms, "all animals are equal" morphs to "all animals are equal, but some animals are more equal than others."

That being said, Mark Martins clearly recognizes the relationship of "rule of law" and the People, when he says:


The rule of law in the society concerned increases in proportion to which the laws are made by a legislature or by some process representative of the people’s interest ....

Obviously, I agree with that. But, having said that, I'd suggest that in "regime change" situations "rule by law" (at least initially) is simply what must exist. Astan is a classic case of "rule by law", starting with the Bonn Agreement, etc.

The "working definition" also goes beyond the Astan national law (whether called "rule by law" or "rule of law") ....


... and including coalition partners from whom the state has sought assistance, are accountable to laws ...

which brings in International Law and the domestic laws of the various partners. And, since an armed conflict is on-going, the Laws of War come into play where appropriate.

Now, let me make something clear: Mark Martins is perfectly capable of discussing all of these areas of law in depth, especially the Laws of War (LOAC, IHL) as applied to ROEs and RUFs. His 1994 article is a classic, Major Mark S. Martins, "Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering," Military Law Review, Volume 143 (Winter 1994).

I suppose his problem in becoming too technical at Harvard Law was that most people there would not have understood what the He££ he was talkiing about - Sure, Jack Goldsmith and probably some others; but the average civilian lawyer or law professor is as familiar with International Law and its subset the Laws of War (LOAC, IHL) as with the Roman Rite of Exorcism.

The following section did not really set out the issues I feel important, with respect to the subject matter area discussed:


Acting upon reports of excessive force or crime (Iraq & Afghanistan)

A third example — and this one is representative of incidents that have confronted commanders in Iraq and Afghanistan: on rare occasions we have received reports alleging use of excessive force against civilians or maltreatment of detainees, either at the point of capture during operations or while held in a facility under U.S. control.

The decision-making process in these rare situations — and I am pleased to be able to say that they have been rare, even as we have faced some who have hidden themselves among civilians and who have sought to mount attacks while in detention — the decision-making process in these rare situations has been governed foremost by law and by our investigative and military justice system. The law requires prompt reporting and investigation of all potential violations and, if the evidence points to it, the prosecution of violators. In these situations, our deployed judge advocates take a lead role. But commanders making decisions in these situations also must incorporate comprehensive non-legal measures to prevent future violations and to eliminate factors that might have contributed to the reported incident. These measures may include immediate instructions through the chain of command, training of guards and interrogators, improvement of facilities, invitations to the International Committee of the Red Cross and others to conduct assessments, discussions with and visits by mullahs and Imams and local council members, and so on. Take the case of a so-called escalation-of-force incident in which troops employ the rules of engagement to, with escalating force, warn an approaching vehicle to slow at a checkpoint and end up tragically claiming the life of a civilian. To help prevent such incidents, non-legal measures may include improvements to traffic control points such as physical barriers, clearly understandable warning signs, better lighting, and refinements to procedures.

In fact, it largely ducks the legal issues.

The principal issue is the interface and transitions between the Rule of Law (whatever your "working definition", non-military law) and the Laws of War (LOAC, IHL). As stated by Da Bear, the ideal is a seamless RIP between RoL and LoW.

What I'm seeing (others may have a different perception) is that UCMJ prosecutions appear to be enforcing RoL; and, at least in choice of the charging articles, are RIFing LoW as a co-equal legal system in combat situations.

Yeh, there still is the Rule 916(c) Justification Defense:


(c) Justification. A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful.

and the 916(d) Obedience Defense:


(d) Obedience to orders. It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.

but those are not emphasized (look at the relatively few appellate cases dealing with those defenses).

Again, though, we are getting into subject matter that would seem incredibly arcane to those at Harvard Law. I doubt many there read Defend Our Marines (http://warchronicle.com/TheyAreNotKillers/DefendOurMarines.htm) - that is unfortunate, but a reality.

Regards

Mike

Polarbear1605
04-26-2011, 05:58 PM
Seriously, it was BG Martins' call as to how he wanted to coat the pill. I didn't go to Harvard; and I can't put myself in his shoes.

Yep, your right, but when a general bares his ankle I can’t help but nip at it a bit…much like my wife’s fat cats when they see a bird outside the window; their teeth chatter as a primeval genetic uncontrolled reaction to spotting potential prey. ;)

As I read through the above posts most everyone speaks or at least implies that establishing the rule law in a counter insurgence is a complicated business. My gut than screams, well then, SIMPLIFY IT. Start with the Laws of War; because you must. The reason you must is because that is all there is. When counter insurgency forces move into insurgent controlled territory there is no rule of law. Chances are police and judges has been executed or run out and they will not return until the insurgents are gone. Our Soldiers and Marines are the only thing that can establish control and fight the armed wing of the insurgency and as long as they are fighting it has to be under the Laws of War. When the US military moves in, the armed insurgents move out and the political or shadow government goes into hiding. The insurgent decision to not take on our military forces presents a gap or opportunity to establish our intelligence apparatus/network with the mission of finding the shadow government. Again, these folks must be operating under the Laws of War.

As the insurgency forces are eliminated you can begin transitioning in police, judges, mayors, schools and whatever else is necessary, however, as long as the military forces are there it all stays under the Laws of War. When you don’t need military forces then you are ready for the Rule of Law. There must be a (and I will use these terms again for you military folks out there) "coordination point" and a formal "relief in place" between the Laws of War and the Rule of Law.

If you compare FM 3-24/MCWP 3-33 Counterinsurgency to the Marine Corps Small Wars Manual (MCSWM) (and set aside the difference in publication dates just for a few minutes), there is a marked difference that hits me with all the power of a 16oz boxing glove swung by a professional fighter. Both manuals have a healthy dose of “Intelligence” but the MCSWM has five chapters (the last five) that are almost completely missing from FM 3-24. Those five chapters speak to the frame work for establishing a military (Laws of War) controlled government and then transitioning to the Rule of Law. The MCSWM simplicity is a thing of beauty when compared to discussions, debates, frictions, lawfare, war crimes issues, etc., etc., etc., we are experiencing (first in Iraq and what seems forever) in Afghanistan.

I think the truth teller is the last chapter in the MCSWM is titled “Withdraw”…the last chapter in FM 3-33 is titled “Logistics”.

jmm99
04-26-2011, 06:34 PM
this is poetic:


....a primeval genetic uncontrolled reaction to spotting potential prey...

Regards

Mike

LawVol
04-27-2011, 07:51 AM
Polarbear: As I read through the above posts most everyone speaks or at least implies that establishing the rule law in a counter insurgence is a complicated business. My gut than screams, well then, SIMPLIFY IT.

The law of war (or law of armed conflict as it is sometimes called) doesn't tell you how to address a land dispute issue between two farmers. It doesn't tell jurisdiction or composition of a court system. It doesn't demonstrate the difference between tax collection and a shakedown. Simply put, the Law of War tells you nothing about Rule of Law.

Law of war dictates how war is fought. Rule of law is an ideal by which a country should function (at least from a western perspective). I think you confuse the two. There is a law of occupation that governs how an occupying country (presumably with a military force) must administer an occupied country, but it doesn't apply in Afghanistan because there is a sovereign, functioning government here.

The question becomes how well do we wish the Afghan government to function? Right now, it works, but not very well. Corruption is systemic, governmental control is tenuous, at best, in some parts of the country, and the educational level of most of the country precludes immediate solutions. This is why the effort is complex. We could simplify, say, criminal law within Afghanistan, but it would not be compliant with typical notions of rule of law or Afghan commitments under international law. Hell, the Taliban had a functioning criminal justice system that was efficient, fast, and provided some form of justice. It did not, however, equate to rule of law; rather, it was rule by law.

Why is rule of law important? For a society to function effectively and provide for the well-being of its people, rule of law is crucial. Rule of law ensures that a country is a nation of law rather than of men. In other words, it requires that all are subject to a non-arbitrary legal system. This, in turn, allows people to plan for the future. They can start a business, buy property, etc. Rule of law encourages investment, something Afghanistan sorely needs, because property rights and contract law (components of rule of law) are crucial to the attraction of foreign investment.

The law of war looks to the present; it says how a war is supposed to be fought. Combatants and civilians are given rights that are only applicable during the war so that war's ferocity can be limited in some fashion. Rule of law, however, looks to the future. It seeks to help a country, particularly a warn-torn country, get back on its feet and work toward a viable future. The absence of rule of law merely perpetuates the war paradigm; it allows men to rule by law (force) and make a country their own little fiefdom. Rule of law cuts against this by establishing rules of conduct that respect each individual's rights and freedoms. Again, it provides a degree of certainty.

From your first post:
insurgents are a very small step above spies

it isn't factually or legally correct. While there are indeed differences of opinion among legal folks, an insurgent is invariably seen as a combatant (legal or otherwise). A spy is in a quite different category. The Geneva Conventions recognize only two categories of persons on the battlefield: combatants and non-combatants. A combatant is one who takes up arms; a non-combatant does not do so. A combatant that violates the laws of war, as do insurgents that use the tactic of terrorism, remains a combatant. Sure, Bush lawyers invented the term "illegal combatant," but this isn't found in the Geneva Conventions. A combatant that violates the laws of war loses his criminal immunity and can be tried for war crimes. The legal limbo in which our guests at Gitmo are in is a new invention, but that's another story.


ROE that are based on the Laws of War

While ROE must comply with the laws of war, they are not "based" on it. Laws of war are just that, laws. They have become customary international law and, thus, must be obeyed by those engaging in warfighting. Rules of engagement are just that, rules. These rules are established with command authority to govern action on the battlefield in such a way as to give some measure of control to command authorities that may not actually be present on the battlefield. This is the classic political dominance over military means (Clausewitz points this out by recognizing that war is a continuation of politics). These rules permit politicos to maintain control over the means they use to obtain a political ends by ensuring that those means do not create additional political obstacles. Sometimes this is successful, sometimes not (e.g. Abu Ghraib).


How do we handle insurgents who commit war crimes? To turn them over to civilian host nation authorities ignores the war crimes and does little to stop civilian deaths.

This is being done here, to some extent. There is a national security court system here that prosecutes those captured on the battlefield. These Afghans are tried in an Afghan court, on Afghan soil, by an Afghan prosecutor, while represented by an Afghan defense attorney, in a trial presided by a panel of Afghan judges. American attorneys do play an advisory role, but have no active role in the proceedings.

LawVol
04-27-2011, 04:28 PM
On rereading Gen Martins' speech, I am most surprised at the title (I don't fault him for his effusiveness since he was, after all, receiving an award). The title of his piece indicates that the substance is "rule of law." However, the bulk of his legal discussion, presented in six examples, does not discuss rule of law.

The first four examples demonstrate how law "constrained, enabled, and informed U.S. military operations" during war. Visions of Clausewitz's friction come to mind at this description. The first example has insurgents firing from places protected under the law of armed conflict (LOAC). This is an example of tactical lawfare by the insurgents. They seek either the protection afforded by their choice in firing positions from US reluctance to be viewed as violating LOAC (or reluctance based on potential political and public relations fallout) or the benefit of using American "callousness" as a recruiting or PR tool. Of course, under LOAC the protected place loses its protections because of the enemy action, but that doesn't change the "friction" generated by enemy action.

The second example is a tactical use of lawfare by using law to address a battlefield issue. The situation on the ground required more consumable goods, so law (or at least a change thereto) was used to open a border to allow for increased trade. The third example is similar to the first in that it seeks to address a potential LOAC issue by using law (his last sentence in the paragraph) to address the issue. The fourth issue is akin to the second in that a change or reinterpretation of law was used to broaden the use of CERP funds.

These examples do not constitute rule of law in the sense that we are attempting to bring it to Afghanistan. Under his own definition, the rule of law is "a principle of governance which holds that all entities in society . . . are accountable to laws." The very fact that he uses these examples demonstrates that the rule of law already exists with respect to the primary actor in each of the examples (i.e. the US). But it is the Afghans we are concerned with here. It is only in the last two examples that he briefly constructs a theory of rule of law as conjoined with counterinsurgency and then demonstrates it in practice. His unit is doing great work here and they are bringing rule of law to Afghanistan.

Given his first four examples, I am also a bit surprised by his statement: "I instinctively avoid ever calling the law a mere 'tool' in the service of some other end" (although in the sentence just before this one, he did refer to law as a tool). His four examples clearly demonstrate law being used as a tool to achieve an end. Moreover, this is what all law does. Speed limit laws are used to achieve, among other things, safety. Tax law is used to gain revenue for the government to carry out its functions. Tort law is used to distribute suffering and/or avoid waste. The point is that law is always a tool or as I like to say a means to an end, especially in war.

There are many examples of law's use as a tool in war, but I'll give just one. In the heyday of European imperialism in Africa, they inevitably came across African tribes that refused to submit and chose to fight instead. Of course, the Europeans had a firepower advantage (repeating rifles, etc.) over the tribes. In an effort to maintain that area of superiority, the competing European country entered into a treaty (i.e. international law) agreeing that none would sell this technology to the tribes. Thus, even though competing against other countries for African riches, these countries saw the long-term benefit that law could provide. This is lawfare plain and simple. Contrary to what the folks at The Lawfare Project are selling, lawfare is a tool that can be used for good or ill. I guess it depends on your viewpoint. :wry:

jmm99
04-27-2011, 04:43 PM
Hey John (and anyone else interested),

You have a Marine squad, accompanied by a like number of Astan National Police. You are looking at a residential compound. You observed as you were arriving a half-dozen individuals entering the compound. Intelligence confirms the half-dozen individuals are all "part of" AQ.

What "law" applies ? - Rule of Law; Laws of War; Rule of Law and Laws of War. Add any facts needed to explain the answers - I posit there may be alternatives.

Regards

Mike

Polarbear1605
04-27-2011, 06:03 PM
Hey JMM…I once heard a story or fable about catching a monkey… you first cut a small hole in a coconut shell…just big enough to allow the monkey to slip his hand into the shell. Then stake out or tie down the shell and put something shiny and bright into the shell. When the monkey reaches in and grabs the shiny object he makes a fist that prevents him from getting his hand out of the shell …because the monkey refuses to let go of the bright shiny object, he gets caught.

Hello LawVol, first, thanks for your comments and keeping the discussion going on this tread. Despite the discussion being a bit ignored, I think it is of vital importance and the fact we have gotten an US Air Force Kabul person involved makes my day. At this point, I know JMM is waiting for me to drop the other shoe…
LawVol, I am a little surprised by your arguments and comments…most are sophomoric at best. For that reason, I am not going to address them all but just some of the gems. You seem to be talking in sound bits not based on doctrine but dogma. The only “feel good” dogma argument you seemed to have missed is “justice is blind”. You can read about the difference between doctrine and dogma here: http://warchronicle.com/DefendOurMarines/Weimann/SinsOfGenerals_PartSix.htm


The law of war (or law of armed conflict as it is sometimes called) doesn't tell you how to address a land dispute issue between two farmers.
I agree, however, neither can a judge, a mayor, a lawyer or a policeman who is not there. Remember, within this thread, these are law arguments within the context of an insurgence war. A squad leader, a platoon leader, a company commander or a battalion commander can resolve the issue when it occurs in his assigned AOR when the Rule of Law does not exist because the Taliban has literally killed it off. In that situation all you got is the Laws of War or (and you use the politically incorrect word) marshal law. To assume our military leaders at all levels cannot resolve these types of issues in war zone smacks of distrust.

Yes, commanders need lawyers on their staff and as I mentioned, General Martin’s example of opening the Syrian border is a good positive example. Remember in the Syrian border example, a judge is not making the decisions, it is the military commander operating and exercising his military authority; the lawyers are in support.

I am arguing you must start with the Laws of War and transition to the Rule of Law and both cannot exist together. When US Soldiers and Marines are collecting evident for judges you are mixing them. When you turn insurgents over to civil judges for insurgent activities, you are mixing them. When you mix them, you undermine your own counter insurgent strategy to your determent and to the benefit of the enemy. There must be a transition, and the question then becomes what is the transition point. I do argue that the transition point is when the troops are no longer needed because the local Rule of Law system can stand on its own. Until the troops are withdraw, you operate under marshal war.


This is being done here, to some extent. There is a national security court system here that prosecutes those captured on the battlefield. These Afghans are tried in an Afghan court, on Afghan soil, by an Afghan prosecutor, while represented by an Afghan defense attorney, in a trial presided by a panel of Afghan judges. American attorneys do play an advisory role, but have no active role in the proceedings.

If this is working so well let me ask this question: 1) how many Afghans, Taliban, and/or insurgents have been brought to trial for killing US service men and women? 2) Another question, if this is working so well why have Afghan casualties gone up significantly each year since and inclusive of 2008?

While there are indeed differences of opinion among legal folks, an insurgent is invariably seen as a combatant (legal or otherwise). A spy is in a quite different category. The Geneva Conventions recognize only two categories of persons on the battlefield: combatants and non-combatants. A combatant is one who takes up arms; a non-combatant does not do so. A combatant that violates the laws of war, as do insurgents that use the tactic of terrorism, remains a combatant. Sure, Bush lawyers invented the term "illegal combatant," but this isn't found in the Geneva Conventions. A combatant that violates the laws of war loses his criminal immunity and can be tried for war crimes.
Again, I agree. However see questions 1 and 2 above. DOD orders and directives are clear that any war crime committed by or against US military personal must be investigated and resolved. To bow those orders and directives to the Afghan rule of law while the troops are still fighting is unpardonable in my silly legal 101 opinion. (BTW thanks for the law 101 lecture but I got it a very long time ago.) By not applying the laws of war to the insurgents you are undermining your own strategy and efforts. Another question: How many spies have been prosecuted or are there none in Afghanistan?

LawVol, you are offering up the bright shiny objects of a bad strategy that is short on merit. Recommend, like before, that you go back and read the MCSWM and then ask the question why it provides a guide for marshal law and ends with a chapter on “withdraw”. Your correct simplification is not easy but it is not an excuse not to try.

jmm99
04-27-2011, 07:46 PM
before you agree on this:


The Geneva Conventions recognize only two categories of persons on the battlefield: combatants and non-combatants.

Convention (III) relative to the Treatment of Prisoners of War (http://www.icrc.org/ihl.nsf/INTRO/375?OpenDocument). Geneva, 12 August 1949, covers combatants and non-combatants (the latter being members of the armed forces who should not bear arms - ties in with GCs I and II).

Convention (IV) relative to the Protection of Civilian Persons in Time of War (http://www.icrc.org/ihl.nsf/FULL/380?OpenDocument). Geneva, 12 August 1949, covers civilians on the battlefield and in occupied territory.

To them, you can add the participants, combatant and non-combatant, who engage in armed conflicts not of an international nature under Common Article 3 of all four GCs.

-------------------
And, yup, I heard that monkey story ... in which one of my great-gg....ggrandfathers played the main role - and suffered a horrible fate. But then he was a Marine officer and a French-Canadian. :)

Regards

Mike

carl
04-27-2011, 11:40 PM
Hey John (and anyone else interested),

You have a Marine squad, accompanied by a like number of Astan National Police. You are looking at a residential compound. You observed as you were arriving a half-dozen individuals entering the compound. Intelligence confirms the half-dozen individuals are all "part of" AQ.

What "law" applies ? - Rule of Law; Laws of War; Rule of Law and Laws of War. Add any facts needed to explain the answers - I posit there may be alternatives.

Regards

Mike

Is this a legal question or a what would you do it you were there question? I am a little confused.

jmm99
04-28-2011, 01:09 AM
;)

Something of a law school exam question; but it also includes tactical issues since choice of tactics will affect choice of law (and vice versa). And, also, includes choice of strategy and policy since those factors enter into ROEs and RUFs.

The "what would you do if you were there" part of the question is left wide open because I'm not about to write military hypotheticals. The basic situation has been described and addressed in a number of SWC threads - some involving situations which were handled by Os and EMs who posted here.

The hypo is simple, but add the alternatives and you end up covering both Laws of War and Rule of Law (not necessarily applicable at the same time). In short, a complete answer requires the whole ball of wax.

Regards

Mike

carl
04-28-2011, 03:28 AM
Mike:

All right, I'll take a stab at it with the certain knowledge that I will make a complete fool of myself.

What I would do is a combination of things that I read in Free Range International and Treasure of Sierra Madre. The best outcome would be the capture of the all subjects. The minimum outcome is none of them get away.

So with that in mind. Surround the compound with the force available and with additional forces if available. Arrange for some kind of aerial backup if available. Wait until daylight then walk up to the front gate and knock. Inform the headman that you know that 6 subjects, whom you name, are in there. You are here to do your duty as a soldier of your country and collect them. You will address the headman by his name and refer to the honorable dealings you have had with him before and tell him you would prefer that he tell the subjects to act like men and come out to surrender or fight without endangering him or his. They have unfairly placed him in a bad position and it would be better if they came out. You understand if he feels honor bound to shield them but if that is his decision request that he send out all the women and children since if it will come to a fight, it would be better that they not be involved. At this point you have an Apache or two clatter overhead noisily. Then you have him make his decision. Let the neighbors know what is going on.

When the thing is done, one way or the other, hang around and tell the neighbors again what happened and why it happened the way it did. If it is too dangerous to walk up to the front gate, use a cell phone or just yell.

Let my deconstruction begin.

LawVol
04-28-2011, 04:45 AM
Given the borderline ad hominem attack, I see now that my response offended you. This was certainly not my intent. My “legal 101 lecture” was not intended as such, but merely a means of establishing the foundation from which I speak. It prevents arguments over how “is” should be defined ala Bill Clinton. That being said, it certainly seems as if you relish an excuse to “drop the other shoe.” I, on the other hand, am simply looking for intellectual debate and, possibly, an opportunity to broaden my knowledge base. While we may certainly disagree, I would hope that we do so as gentlemen since vitriolic responses are beneath us. While I believe that my initial responses are quite consistent with current COIN doctrine, I have elaborated below in an effort to address the concerns you perceived. All citations are to FM 3-24.

There can be no dividing line between the law of war and rule of law in a COIN environment. The kinetic part of COIN is not conducted in a vacuum and the population does not remain static while the military conducts its operations. The population affects and is effected by military operations. Thus, both the law of war and rule of law must be simultaneously applied.

Your desire to bifurcate a COIN environment into that controlled by the law of war and that controlled by rule of law is directly contrary to the doctrine you suggest I ignored. FM 3-24 (I’ll use this one since it is currently in effect, although I do like the MCSWM too) indicates that COIN is a combination of offensive, defensive and stability operations with the proportion of effort devoted to each changing over time depending on the situation on the ground (1-106). In Afghanistan, the effort is, at best, equally divided between offensive and stability operations – I would argue, however, that the effort probably tilts in favor of stability given our transition strategy. This is why there cannot be a solid division between Law of War and Rule of Law as you suggest. For example, in Helmand and Kunar provinces (arguably the most kinetically active in the country right now) both the military and the State Department have rule of law advisors in place. Thus, offensive operations (to which the law of war applies) are occurring simultaneously with rule of law efforts.

This strategy is necessary because our current COIN doctrine establishes its necessity. The population within a COIN environment is typically distinguishable as a small minority in favor of the insurgents, a small minority in favor of the government, and the bulk ambivalent or waiting to see who wins before casting their lot (1-108). With this target population (i.e. the ambivalent), governmental legitimacy is paramount (1-113 to 1-120). Indeed, “a COIN effort cannot achieve lasting success without the [host nation] government achieving legitimacy” (1-120). A major factor in achieving this legitimacy is the rule of law (1-119). Thus, we learn (according to the doctrine you mention) that offensive operations (i.e. law of war) are simply not enough; the rule of law must be implemented.

“Establishing the rule of law is a key goal and end state in COIN” (D-38). Thus, offensive operations without rule of law are counterproductive to the COIN effort. This doctrine doesn’t indicate that rule of law is a goal after COIN, but rather in or during COIN. Again, there is no separation. Our doctrine emphasizes this by stating: “counterinsurgents may need to undertake a significant role in the reconstruction of the HN judicial system in order to establish legal procedures and systems to deal with captured insurgents and common criminals.” Thus, while the law of war does indeed play a role in targeting insurgents, the rule of law is also applicable during COIN.


In that situation all you got is the Laws of War or (and you use the politically incorrect word) marshal law. To assume our military leaders at all levels cannot resolve these types of issues in war zone smacks of distrust.

Here, I think you put words in my mouth or seek to assign a belief to me that I simply do not hold. While most military leaders are indeed quite capable of handling any issue that arises, I believe it to be at cross-purposes when the US military attempts to implement host nation law. After all, our doctrine states that host nation legitimacy is the goal. How can that goal be achieved if Americans are implementing the law? How can a target population possibly view the local government as legitimate if the US military implements its law?

On a final note, I don’t believe I ever used the term martial law as I do not see its applicability to Afghanistan (at least from the perspective of US application and maintenance of martial law). According to the MCSWM (13-3 (b) and (c)), martial law is a form of military rule that must be declared by Congress or the President. This has not been done for reasons mentioned in the next paragraph of the MCSWM. The distinction between the two are important because the emphasis is on real government versus temporary authority in the absence of the real government. In Afghanistan, as you know, there is a real government that exercises sovereignty. While this governmental authority is tenuous in certain provinces, it nonetheless exists. Thus, martial law must be declared by it and not the US government. Furthermore, given our COIN doctrine, it must be exercised by Afghans and not Americans.

Polarbear1605
04-28-2011, 05:54 PM
Hey John (and anyone else interested),

You have a Marine squad, accompanied by a like number of Astan National Police. You are looking at a residential compound. You observed as you were arriving a half-dozen individuals entering the compound. Intelligence confirms the half-dozen individuals are all "part of" AQ.

What "law" applies ? - Rule of Law; Laws of War; Rule of Law and Laws of War. Add any facts needed to explain the answers - I posit there may be alternatives.

Regards

Mike
__________________
JMM
Interesting question, I am going to take a different approach here looking at different techniques (or tactics) required (probably too strong of a word here…hmmm… how about taught vs required) in both the Laws of War and the Rule of Law. If you are operating under the Laws of War, the squad leader should immediately order his grenadiers to start pumping 40mm 203 rounds through the windows while his AR men put a steady stream of suppressive fire into the exterior doors. As suppressive fires are executed, the squad leader leads a 4 to 5 man stack to the best entry point and proceeds to clear the house with grenades and small arms fire. After the house is cleared, he sorts the bodies, secures POWs, treats the wounded, and hopefully, at least one AQ is captured and/or wounded and available for intelligence interrogation and gathering. As a Law of War scenario everything I just described is legal and they stay legal even if you add the collateral damage of a dead mother and child to the causality list. BTW because of the mother and child’s presence, the AQ survivor should also be charge with the war crime of using civilians as shields.
In the Rule of Law approach the Afghan national police surround the house. The police Lt or sgt pulls out the bullhorn and announces the house is surrounded and states the AQ should come out with their hands in the air to allow their arrest. If the AQ members refuse and announce they have a mother and child as hostage, the Afghan police begin captive hostage negotiations. (Hopefully, there is not another AQ unit in the area that can attack and wipe out the police while negotiations are ongoing.) When they surrender (big assumption here considering AQ is an organization full of suicide bombers and everyone of them believes that martyrs go to heaven) the chief policeman starts to collect evidence to support his case against the members of the AQ for charges of….hmmm…charges??? What do we charge these AQ folks with?? What have they done that is illegal…what laws have they broken…? (Maybe illegal immigration?? How many cases have been prosecuted in Afghan for illegal immigration?) And Oh!...the Afghan policeman has 96 hours to build this case before all detainees must be released. Oops sorry, that is our NATO rule not the Afghan police rule.

Now according to LawVol, the correct answer is c. Rule of Law and Laws of War:

Thus, both the law of war and rule of law must be simultaneously applied. after all, that’s the doctrine (remember you said it brother, and I am not putting words in your mouth this time). I am very excited about reading LawVol's solution to this JMM scenario.

Carl in many ways you have the correct approach and answer. However the risk is very high, (I know, no guts no glory!) and I think your assumption is that in this scenario your gut (or that feeling for situations warriors can and do develop in war) is telling you that you can pull this off. But what if your feelings are telling you these AQ guys will go down taking as many Americans as they can with them. The scenario says these are confirmed AQ, not Taliban, not pilgrims, and not visiting relatives. Remember, no one knocked on Zarqawi’s door in Iraq. We dropped two 500 lb bombs on the house he was in and caused multiple collateral deaths (including a woman) and guess what…under the Laws of War it was legal.

One more step: Let’s assume the Carl approach, but when the chief policeman knocks on the door mister AQ guy answers the door, seizes the initiative, and puts a pistol to the knocker’s forehead and blows out his brains. Will the remaining Afghan policemen apply their Rule of Law techniques or will they turn to the squad leader and say; “Clear that house”? At that point the squad leader needs to make a decision of which applies, the Rule of Law or the Laws of War. It is a decision of either or…not both.

Inter arma silent leges: in time of war the law is silent.

jmm99
04-28-2011, 06:37 PM
or should I plan on sitting back and waiting for a while ? :)

We all know this (html (http://www.au.af.mil/au/awc/awcgate/usmc/strategic_corporal.htm) & pdf (http://milnewstbay.pbworks.com/f/Krulak-StrategicCorporal-1999.pdf)):


Modern crisis responses are exceedingly complex endeavors. In Bosnia, Haiti, and Somalia the unique challenges of military operations other-than-war (MOOTW) were combined with the disparate challenges of mid-intensity conflict. The Corps has described such amorphous conflicts as -- the three block war -- contingencies in which Marines may be confronted by the entire spectrum of tactical challenges in the span of a few hours and within the space of three contiguous city blocks.

So, following this construct and positing a separate mission in each block, we could have mission 1 governed by RoL, mission 2 governed by LoW; but can we have mission 3 governed by both RoL and LoW at the same time ?

Obviously, if we look at mission 1 and mission 2 as a whole, RoL and LoW are governing at the same time, but as to separate missions.

I can't think of an example where mission 3 (let's posit it has a single legal issue) could be governed by both RoL and LoW at the same time, unless RoL and LoW are exactly the same. In that limiting case, one has a distinction without a difference.

If RoL and LoW are different and conflicting, mission 3 would become a contradiction in terms.

Yeh, you can have a country with RoL in parts and LoW in other parts (USA during the Civil War as an example); but, both cannot contradict on the same issue.

Regards

Mike

PS: Not really -


Inter arma silent leges: in time of war the law is silent.

In time of war, the law allows military discretion - e.g., can a surrender be accepted reasonably and safely in the combatant's judgment. The law (at least to the US Naval Services) (is) (was) quite explicit on that one. There is a lot of difference between being silent and cutting a lot of slack.

carl
04-29-2011, 04:37 AM
Polar Bear:

Given what I've read here and what I've learned about clearing houses in extremely benign circumstances, there is no way that compound would be taken by people with small arms. That is what the Apaches are for. All the palaver is to avoid using them and to avoid women and children being hurt if possible. Talking to the neighbors is to make sure everybody knows what is going on and what the alternatives are. Gas would be a great tool in this case but I was told once our guys are not permitted to use it.

Innocents getting killed, I've read, should be looked upon as being as bad as our guys getting killed which is the reason for the palaver. Bending over backwards is justified but if they don't come out, the Apaches would demolish the place.

I apologize to all those who have been there and done that as I most certainly have not, but I am only responding to the problem posed. Please forgive me if I sound foolish.

Mike:

I can't speak to the law of the situation you set up. I can only I outline what I think would be sensible.

LawVol
04-29-2011, 05:49 AM
So, following this construct and positing a separate mission in each block, we could have mission 1 governed by RoL, mission 2 governed by LoW; but can we have mission 3 governed by both RoL and LoW at the same time ?

In short, yes. PolarBear presents compelling examples of mission 1 and mission 2 (I'll address these is a moment), but predictably avoids answering missions 3 since he does not believe it possible to combine LoW and RoL. Fair enough, but I disagree.

I can only assume from Mike's scenario that the individuals referred to are unarmed since weapons are not mentioned and the tenor of the scenario does not indicate the presence of weapons. This, IMO, fundamentally changes the nature of the problem and demonstrates how LoW and RoL are blended. Notice the scenario says intel indicates the individuals are AQ. Not to disparage the fine abilities of our intel community, but this is not the "beyond reasonable doubt" standard used in criminal court, but more akin to a "reasonable suspicion" used by police in the field. Just as cops can take limited action based on "reasonable suspicion" so to can troops take limited action based on intel. In the present case, both LoW and ROE would counsel against the action suggested by PolarBear. A shoot first, ask questions later mentality can lead to war crimes and/or political circumstances not desired by the command authority (e.g. Abu Ghraib, comparisons to "kill teams," etc.). But this does not mean that action cannot be taken (lest you think I'd give these guys a pass).

Given the intel, investigation (I do not use this term in a law enforcement capacity, but simply mean check it out) is indeed permitted. Moreover, in conducting this investigation, troops are permitted to take appropriate safety measures as indicated by their ROE and are subject to LoW.* Assuming that, upon approach, these individuals take up arms, then return fire, etc. is authorized. But, assuming they have no weapons, they are simply taken into custody, interrogated, and turned over to the Afghan national security justice system. This means they get sent to the DFIB, a detainee review board is conducted, and, ultimately, they are tried for crimes. Carl's response to the scenario is akin to what I envision here.

Now, the Gitmo scenario enters into play, but I must admit of limited knowledge here. I know what would have happened in the past, but am unclear how the Obama Administration is currently handling this. I think Obama has said no new prisoners are to be sent there, but I'm unsure. In the past, the plan was to send them to Gitmo and, ultimately, try them in a military tribunal, which because of recent Supreme Court decisions is a blend of LoW and US Constitution law (i.e. RoL).

There is a possibility that LoW is being mistaken for something it is not in this conversation. LoW establishes limitations on combatant conduct in the field in an effort to protect civilians and limit the destructiveness of war. Of course, one can argue whether this is really even possible or desirable, but it is what it is. Again, assuming no weapons, there is no authorization to engage as no concrete threat exists.

Now, assume weapons are present (this way I won't be accused of parsing facts to support my argument). IMO, nothing really changes. Even though the individuals are entering a residential compound and, say, not actively engaging our forces, they are still declared hostile forces and can be engaged (this is actually an ROE issue and ROE may have changed since I last worked with it). If the individuals fight back and are killed, so be it. However, if one surrenders, he must be taken into custody and processed as I indicated above.

I view LoW as a subset of RoL. The essence of RoL is that the law applies to all, especially the government. Through adherence to LoW by both US and GIROA forces, we demonstrate and strengthen RoL. Thus, I don't see the two as conflicting. There may also be a misunderstanding of RoL and criminal law as applied by law enforcement. These are too neither synonymous nor conflicting. Like LoW, criminal law, and its procedural aspects, are a subset of RoL. RoL is not limited to simply engaging in a criminal investigation (although a properly conducted criminal investigation and trial is indeed evidence of RoL); RoL is much broader.


Inter arma silent leges: in time of war the law is silent

A final note: If this statement were true, then LoW would remain silent as well. You have argued that law (i.e. LoW) not only refrains from remaining silent, but that it actually controls. Thus, your conclusion is not supported by your premises. Mike has it right that law is "relaxed." I only point this out because reliance on phrases such as this could pose issues for our people in the field and I see it as part of my job to protect them through accurate explanation of law.

*I purposely avoid describing any tactics involved in conducting the investigation and/or "clearing" the house as this is outside my lane and one who gets too far outside his lane often does nothing but demonstrate ignorance on the topic at hand. Although I do have some familiarity in this area, I prefer to leave this to the experts here.

carl
04-29-2011, 01:15 PM
John:

I assumed the subjects were seen to be armed. I should have specified that.

jmm99
04-29-2011, 05:01 PM
on Da Scenario:


You have a Marine squad, accompanied by a like number of Astan National Police. You are looking at a residential compound. You observed as you were arriving a half-dozen individuals entering the compound. Intelligence confirms the half-dozen individuals are all "part of" AQ.

---------------------------------
Some "basic” questions

I’d suggest several questions that the “You” in the scenario might ask himself (or herself, that gender less likely):

- Where am I ?

Could be Astan; could be Pstan; could be a training exercise in Texas. Let’s keep the first two and toss Texas because it would get too complicated.

- Who am I ?

Could be military (not necessarily USMC or combat arms); could be a civilian (a modern, new and improved version of Robert Komer).

- What am I doing here ?

“FID”, “COIN”, “LE”, “DA”, etc., etc.

- Why are all of us here ?

That includes separate answers for “You”, the residents of the residential compound, the Marine squad, the ANP, and the six individuals (all “part of” AQ, as “confirmed” - not as “indicated” - by intelligence).

-------------------------------------------
Some “legal” stuff (don't need a law degree to find the answers)

What Geneva Conventions & Protocols have been accepted by Astan, Pstan and US ?

Different for NATO and ISAF "coalition partners" ?

What SOFAs (formal and informal) exist v-a-v Astan-US, Pstan-US, Astan-Pstan ?

Different for NATO and ISAF "coalition partners" ?

Does Astan recognize the existence of an “armed conflict” in Astan - and its parameters ?

Same question for each of the other parties named above - and then repeat for Pstan ?

What Astan and Pstan criminal law (if any) is applicable to persons who are “part of” AQ ?

What implications result from a person being “part of” AQ under current US law ?

What is the proof standard under current US law to find that a person is “part of” AQ - "beyond reasonable doubt", "reasonable suspicion" or something else ?

When under the Laws of War (LOAC, IHL, CIHL) may an unarmed person be knowingly and intentionally targeted and killed ?

-----------------------------------------
The comments assuming or not assuming an “armed” group within the compound are interesting. The scenario intentionally did not include openly carried arms - but it did not exclude concealed or cached arms either.

Unfortunately, we can’t use ROEs, RUFs, tactical directives, etc., with any accuracy (one issue is classification; another is different treatment of HVTs and even more classification).

Regards

Mike

Polarbear1605
04-29-2011, 06:33 PM
Is pugil practice nearly over ....
or should I plan on sitting back and waiting for a while ? :)

OK …I just felt my choke chain jerk (kindly)…the good news is no one yelled the word “heal” at me.
In the augments above both General Martins and LawVol state and lament (the lament word is not intended for LawVol) the complexity of establishing the Rule of Law in an insurgency. I agree. It is very complex. In fact, that complexity is costing us time we can ill afford. No matter where you are in establishing the Rule of Law at some point in the near future someone is going to declare victory and everyone goes home. I am not saying that we should not move Afghanistan to the Rule of Law…that is a good strategic requirement for a Counter Insurgence War, however, it will not win the war for you (at least in the amount of time we have left). Implementing the Rule of Law is a noble and honorable cause. I understand Afghanistan is unique and a third world Tribal County …but your running out of time…we are going to have to do something different if we are going to be successful.

I am saying, if it is complex; then simplify. In my mind, the Laws of War are as simply as you can get (yes, I am not a lawyer and personally ;), I think I deserve a medal for coming into this discussion with all you lawyers). In my opinion, the LOW and ROL cannot exist together on the battlefield because not only are they based on different principles but also different decisions makers play their roles very differently.

The ROL requires an extensive system…here in the states we have volumes of law books and history, policeman, detectives, lawyers, prosecutors, judges, CSI’s, experts, the list is all most endless. As you build that system in Afghanistan, (whatever it will look like, as long as it works) take the complexity of the firefights and war out of the building phase. You cannot have first term enlisted Soldiers or Marines trying to do the job expected of seasoned police detectives. You are scheduling the Soldiers and Marines to fail. In combat, (and I mean eye ball to eye ball combat) the only legal apparatus in effect that protects our Soldiers and Marines is the Laws of War. I have never seen an OPORD spell out the ROL in war or peace time for that matter. The ROL is not your main effort, elimination of the insurgents is. The best way to eliminate the insurgents is to let the Soldiers and Marines fight the war under the LOW, like they always have.

LawVol argues that both the LOW and the ROL apply in the Afghan counter insurgency war. That statement works fine at the “bright shiny” strategic level but it adds a complexity at the tactical level that, in my opinion, undermines the counter insurgence strategy. General Martins, in his speech, gives us another example of this complexity:
” Fourth observation: having competent and deployable legal support, much of it trained in halls such as these, is not enough. I grow concerned when I hear of an Italian prosecutor filing charges against a U.S. soldier who followed his rules of engagement and tragically shot and killed an Italian agent during the agent’s rescue of an Italian journalist. Investigation established that the agent had failed to communicate his plan to coalition forces or comply with the soldier’s instructions; wisely, the Italian court dismissed the case. I grow concerned by suggestions that soldiers during armed conflict should be held to the same standards of collecting evidence, establishing chains of custody, and giving rights warnings to which policemen are held in American cities and towns.”

I would submit that this is why the doctrine that both the LOW and the ROL existing together is flawed. If they operate together, after it was determined that the soldier followed his ROE (again ROEs are based on the LOW), then the Italian prosecutor would be correct in charging the soldier with murder under the ROL. And why not, if the charge was murder (and that is an assumption on my part) the Italian prosecutor had the two basic ROL elements of proof for murder; intent and a body. Someone had to make a call here. I am hoping it was a commander who stated that the ROE (LOW) were followed and therefore, we will not proceed with a ROL murder trial (and bless the lawyer that sorted that one out with the Italians).

If you look at the transition of the LOW to the ROL, and assume it is a time line. You can start anywhere on the line based on the situation in a village, a province, and or a city. If there are no insurgents in a village, Great!...establish control with the troops under the LOW (do not tie their hands with the complexity of the ROL) , establish the mayor, the judge and the police and when they are ready, declare they are now operating under the ROL and withdraw the troops to the next village. Personally, I feel that is a tremendous incentive for the village to cooperate with the troops and their leaders to move to the ROL and that supports the counter insurgence strategy.

At the beginning of the Civil War President Lincoln suspended habeas corpus. He immediately recognized that something else was needed in order to successful prosecute the war. He ordered the creation of the Lieber code formally titled: “General Order 100: Instructions for the Government of Armies of the United States in the Field.” The Lieber Code is considered the first written Law of War. As the Union fought the war and occupied the southern states, the Lieber Code, the LOW at the time, was the law that controlled the war and the occupation. As insurgencies started to flared up, after the war in occupied territory, the military commanders effectively eliminated those insurgencies and then transition the occupied territory to the ROL. The Lieber Code would later be the basis of the Geneva Conventions LOW. General Order 100 was in effect for the Civil War, the American Indian Wars, the Spanish American War and the Philippine America War (an insurgence).

LawVol stated: “A shoot first, ask questions later mentality can lead to war crimes and/or political circumstances not desired by the command authority”

Disagree and agree. In all the combat cases that have embarrassed the US Military publically and politically in both Iraq and Afghanistan, none have anything to do with “shoot first and ask questions later”. I will make the argument that is because the LOW (military necessity, distinction, self-defense) authorizes the US Military to engage the enemy where and when we find them. In the Haditha case, a Marine rifle squad cleared two houses causing collateral damages (much like our “what now” scenario above). The first investigation found that the Marine squad followed their ROEs (WOL) and like our Italian example above, the same Marines were charged with the ROL charge of murder. Not because of any loyalty to the ROL but because the service chief did not like the political circumstances.

In times of war, the “rule of law” is silent - just one last poke!

jmm99
04-29-2011, 09:18 PM
Perhaps, a Beneficiarius to pin on your pelt:

http://www.aurorahistoryboutique.com/products/R000323_L.jpg

in recognition of your devotion to Roman military law. :)

Cheers,

Mike

carl
04-30-2011, 02:49 AM
I’d suggest several questions that the “You” in the scenario might ask himself (or herself, that gender less likely):

- Where am I ?

Could be Astan; could be Pstan; could be a training exercise in Texas. Let’s keep the first two and toss Texas because it would get too complicated.

- Who am I ?

Could be military (not necessarily USMC or combat arms); could be a civilian (a modern, new and improved version of Robert Komer).

- What am I doing here ?

“FID”, “COIN”, “LE”, “DA”, etc., etc.

- Why are all of us here ?

That includes separate answers for “You”, the residents of the residential compound, the Marine squad, the ANP, and the six individuals (all “part of” AQ, as “confirmed” - not as “indicated” - by intelligence).



Isn't most of this implicit in the original scenario?

LawVol
04-30-2011, 04:53 AM
because I'm headed out to one of the provinces shortly.

First, I'll be candid and admit that I'm not completely sure we can bring the rul e of law (at least in the western sense) to Afghanistan. The desire for it just doesn't seem to be there. The feeling is more one of "Let me get what I can because the Americans are leaving in 2014." That being said, the mission is the mission and we do what we can to accomplish it. The COIN mission dictates that LoW and RoL apply simultaneously in that, as I've previously indicated, LoW in a subset of RoL. In other words, complying with LoW demonstrates some aspect of RoL.

I think I'm beginning to understand where PolarBear is coming from; although I still disagree with his conclusion. I think he is disturbed by the over-legalization of the battlefield to the extent that it places lives in danger. For example, what would have happened if our sentry had withheld his fire in the Italian case and it was a bad guy. We learned that lesson in Beirut.

If this is the foundation of your argument, I agree to an extent. However, that over-legalization emanates from overly restrictive ROE, not RoL. ROE is a political call, not a legal one. It becomes legal in the sense that it is an order subject to the UCMJ. In other words, to the extent that ROE jeopardizes American lives, blame politicians and commanders not lawyers. We don't make ROE. Also, I do agree (assuming that really is the basis for your position) that ROE is overly restrictive and could place our guys in dangers. That is why I emphasize the self-defense portion of ROE.

In my own case, I always ask "can I articulate a rational reason for fearing for my safety?" If so, I'm good to go. I also support the position that any "close call" shooting should immediately require a defense attorney for the shooter and a 24 hour cooling off period before the shooter can be questioned. This eliminates adrenaline outbursts from the shooter that may or may not reflect reality. I think I may be in the minority on this though.

If I'm completely off target here, I can reengage when I get back from down south.

Fmr11A
04-30-2011, 06:01 AM
Hey John (and anyone else interested),

You have a Marine squad, accompanied by a like number of Astan National Police. You are looking at a residential compound. You observed as you were arriving a half-dozen individuals entering the compound. Intelligence confirms the half-dozen individuals are all "part of" AQ.

What "law" applies ? - Rule of Law; Laws of War; Rule of Law and Laws of War. Add any facts needed to explain the answers - I posit there may be alternatives.

Regards

Mike

- Are the individuals part of a declared hostile force? (in 2007, in Iraq, our JAG told us that we could not conduct missions with the intent to "kill or capture" suspected members of AQI because they were no longer a "declared hostile force." Instead, we had to go with the intent of "capture," though we were free to kill in self-defense).
- What is your mission?
- What is the commander's intent?

Also, how could rule of law "apply"? Isn't rule of a law a characterization of how a legal system is used, rather than a system that can be applied?

Bob's World
04-30-2011, 01:10 PM
Insurgency is not complexity. It is actually quite simple. What makes insurgency appear complex is a range factors:

1. It is an illegal challenge to government, and governments not want to accept much if any responsibility for such illegal challenges always look for causes and cures outside their own domain of responsibility.

Why this makes things complex: If I lose my car keys inside my house, but insist on only looking outside my house for these keys, where I am sure someone else has hidden them I have created a complex, unsolvable problem that will vex me considerably.

2. Western perspectives on COIN are derived from intervention operations in the affairs of others, initially as colonial powers, and then more recently to maintain Containment based control measures or simply in places where the residual disruptions of colonialism and containment are still strong. Such efforts typically:

a. Ignore the effects of the intervening party on creating the conditions that give rise to the current insurgency.

b. The intervening party tends to intervene because they believe their interests are best served through the certainty of sustaining the sitting government in power.

c. The intervening party is by definition from some other land, people and culture.

d. The intervening party is by definition on the side of the law, and the insurgent and his supporters are by definition outlaws.

e. Experts tell us (over and over and over) that it is "complicated" or "complex"; and since I can't find my damn car keys anywhere, and I know I am "right" and because I know I am smart, my failure must be due to some overwhelming complexity.


We need to step back from this planning assumption of "complexity." It has become a "fact" and frankly I believe that it is a position that was reasonably come to, but that lacks merit when one makes the effort to remove themselves from the biases associated with history and nature of such intervention operations.


The law is very complex (I am still recovering from the mental abuse of law school). Justice, however is very simple. Even the smallest child appreciates instinctively when they have experienced either justice, or injustice. It is how one feels about how the rule of law is applied to them. While there are certainly variations shaped by personal opinion, understanding of the facts, culture, position, etc; these all fall within a fairly narrow band that we all instinctively understand.

How to bring the rule of law to a place like Afghanistan is indeed a daunting challenge. It is both complex and complicated. It is also not required for effective COIN.

What is required is to seek to bring perceptions of Justice to that segment of the populace that is the base of support (the bulk of that popular iceberg that floats beneath the surface of any such movement) for the insurgency (that glaring tip that protrudes disturbingly from the surface).

We know as fact that this populace perceives that they receive greater justice from the Taliban application of the rule of law (a harsh, outdated form of Sharia held in great disdain by the West) than they do from GIRoA's application of the rule of law (a West-approved, modern, kinder, gentler form of law). Why is that??

For one, it is certain. For another it is timely. For another it is available. Does anyone believe that it is easier or safer for a Taliban tribunal to travel to some village, hunted by the full strength and capacity of the ISAF coalition, to enforce the law than it is for a GIRoA tribunal protected by the same??

No. What makes it complex and complicated is that we focus on the wrong things. We believe that we must first secure the village before we can bring justice to the village. We believe, in essence, that we must "destroy the village to save the village." That is some sad, misguided thinking that sounds wrong because it is wrong.

No, we must bring justice to the village in order to be able to secure it. This means we must secure the justice system to allow it to exist and function in a hostile environment, just as the Taliban do. If the system proves itself to bring better law and greater justice under the law, then it will out-compete and prevail over the Taliban offering. Simple.

How do we do this?

1. Shift development efforts to building secure justice centers in key locations. These must not only house adequate office and court space, but also living space for the justice staff (think about our own bases there and the US Embassy in Kabul)

2. Then we must shift security to prioritize securing these facilities and providing secure means for the populace to file their cases and to travel to the justice facilities.

3. We must focus capacity building on training the staff, from the highest judge, to the lowest clerk, how how to perform their jobs. Not how to apply our law, they have their own.

4. We must pay these brave citizens a wage that makes taking on such dangerous and essential duties worthwhile; and that also immunizes them from excessive corruption that could rob the legal system of justice. If a certain amount of corruption is part of local justice, then that from of corruption must be protected and allowed no matter how much it offends our modern sensibilities.

5. Next, we must take this show on the road. There must be a trusted and regular circuit court system that brings justice to the people. This too must be secured for it is a high value target for any insurgent. The operations of such a circuit court system should be so important that one might assign, say the entire Stryker BDE in RC-South to the sole mission of supporting circuit court operations. (Realizing that this would take them from the mission of protecting the convoys necessary to support our massive bases and Clear-Hold-Build operations; but then these would become much smaller and have a lower priority under a new "Simple" approach.)

6. Police are a critical part of such a justice operation. Prioritize police (who exist to promote justice) over the building of a national army (who exists to suppress the populace). They probably need to be recruited from across the land, employed locally, and organized in such a fashion as to owe their patronage to the level they operate, and not to Kabul.

Insurgency is simple. Justice is simple. What appears to be "hard" is our stubborn clinging to the archaic biases of our colonial history of such interventions. We do not need to control the outcome, we merely need to be seen as the one who helped bring about a new, and better stability. Such a perception among the people will ensure our influence with whatever government ultimately emerges.

And if that government commits itself to injustice as well? It too will soon fall prey to insurgency.

LawVol
05-01-2011, 02:00 PM
recovering from the mental abuse of law school

best line . . . ever. :)

Interesting ideas. It sounds very similar to BG Martins' "hub and spoke" model of bringing rule of law to Afghanistan (which seems to be an adaption of the ink blot strategy). Legal hubs are set up in the five main population centers. As these become viable, the concept is moved to smaller and smaller population centers and linked back to the larger centers. Rights now the focus is on establishing effective Provincial Justice Centers in Herat, Mazar, Jalalabad, Kandahar, and Kabul. There is also talk of a sixth one in Khowst. The problem seems to be timing. Given transition concerns, the timeline is compressed so much that we're moving focus into the districts at an advanced rate. Focus everywhere is focus nowhere, it would seem.

I think the model, much like your own, is workable and does greatly simplify the issue. However, what happens at the local level outside your key areas? As we "ignore" these places while solidifying the key areas, doesn't taliban justice becomes stronger? Also, while we can certainly protect the justice center and its operators in legal green zones as you suggest, how do we protect those that use our services? It would be quite easy for the taliban to determine who is using it and then punishing the locals.


we must bring justice to the village in order to be able to secure it.
well said.

Bob's World
05-01-2011, 04:36 PM
Protecting those who work with GIRoA and the Coalition is a problem for every aspect of our operations there over the past 10 years, not just this one narrow, but critical, LOO.

If the Coalition does not shift focus to oversee and drive a reconciliation that results in reincorporating those represented by the Taliban with those represented by the Northern Alliance into an evolved, inclusive form of GIRoA, there will inevitably be a growth of insurgency as we withdraw (and we will withdraw) that will indeed punish those who have collaborated with our occupation. To assume otherwise is naive.

The Justice LOO I lay out here must be part of a larger effort that takes on overall legitimacy of governance (ends the Northern Alliance monopoly and Taliban exclusion) and equity under the law (ends the centralized Ponzi scheme of Patronage codified under the current constitution that make ALL government in Afghanistan "Government in a box" - a box built by the constitution, protected by the Coalition, and filled with cronies by Karzai). In such a scheme security efforts and development efforts would be greatly reduced and refocused as well to support these main efforts that go after the true drivers of this enduring conflict.

Can we protect all the people in the short-term? No. More will die due to the deliberate and accidental acts of both sides in this conflict. When one wages war against and among the people, the people suffer. We must focus on the longterm. If we only seek to enforce an exclusion of one side, then there will be a backlash, and it will likely be a brutal one.

Polarbear1605
05-01-2011, 04:52 PM
LawVol: Gald to see you are safe and sound. To steal a line from the movie “The Last Samurai”…I truly enjoy our “conversations”. ;)


because I'm headed out to one of the provinces shortly.

The COIN mission dictates that LoW and RoL apply simultaneously in that, as I've previously indicated, LoW in a subset of RoL.
Nope …yes, we have to use the LOW and pursue the ROL…but all military operations are governed by the LOW. On the battlefield there is no subset.

I really like the “Bob’s World” solution; it is (IMO) thought out, different and viable. Let’s assume Bob’s Striker BDE scenario for a sec (I do like it). I would envision the BDE driving into the village (just to let any hidden bad guys in the vill know that the good guys are here) or not (it would be up to the Joint Task Force Law commander), the BDE sets up a perimeter around the ville…everything inside the vill is ROL and everything inclusive of the perimeter and out is LOW. Coordination Point is designated on the perimeter on the main road to the vill … police chief, judge, or gov official meet there with the BDE commander and agree that everything inside the perimeter is LOW and everything outside the perimeter ROL. Further coordination: BDE states that any ROL incident or situation will be brought to the judge and passed to his police at this coordination point; and if a LOW incident occurs in the vill; ie – an undetected or hidden insurgent cell that your police can’t handle attacks you, my troops will enter the vill to do their thing (that you need done) under the LOW. The two players shake hands and each goes to work on their side of the street.
FM 2-24
(1-160) “…insurgents are constrained by neither the law of war nor the bounds of human decency.”
(2-24) Human decency and the law of war require land forces to assist the population in their AO’s.”
(D12) “When insurgency occurs during occupation, the law of war includes rules governing situations in which the military forces of one state occupy the territory of another.”

Last comment on the separation of the LOW and the ROL (and LawVol, I do think that in many ways we are saying the same thing but differently). After 9/11, the president was faced with a decision to apply either the LOW or the ROL to this terrorist incident and the Global War on Terrorism (AQ). Yes, neither fit well; generally speaking, the LOW applied to states and nations not terrorist organizations; the ROL does not extend outside the territorial limits of the US. The Pres, however, had to made a decision, either or. The president picked LOW and then his administration started to build an apparatus (procedures) that attempted to fill those gaps in the LOW applied to the war on terrorism. If they are not two very different things why did the President have to choose? If you get the chance read “New Wars, New Laws? Applying the Laws of War in the 21 Century Conflicts” by David Wippman & Matthew Evangelista. The book is a compilation of papers and speeches…generally; there is no discussion or debate that the LOW and the ROL are different or separate.


In other words, complying with LoW demonstrates some aspect of RoL.
Yep…agree as does implementing the ROL when it is ready, using the LOW.


I think he is disturbed by the over-legalization of the battlefield to the extent that it places lives in danger.
Absolutely, and reputations and the legal rights of our Soldiers and Marines at the expense of politics.


In other words, to the extent that ROE jeopardizes American lives, blame politicians and commanders not lawyers.
I understand my tone can be ruff, but don’t recall blaming lawyers. I do blamed commanders, specifically generals regularly.
Generals also state the bright shiny dogma that ROL and WOL are the same. In fact, they constantly exchange the terms as they fill their sound bits with the buzz words. Different subject, but this joint article by Generals Krulak and Hoar (and I think highly of both officers), starts with the LOW arguments and then concludes with ROL bright shiny dogma. http://www.federaljack.com/?p=11123 In reality, the Bush administration was attempting to draw the line (in our favor) in a LOW definition that is wide open. The definition is wide open because when we sit down at the “let’s decide what the laws of war should say” table, the opposition is sitting there across from us and they ain’t going to vote yes on any wording that puts them on report.

Ok next up…why do we not prosecute insurgents for war crimes? We are back to Questions 1, 2 and 3.

…1) how many Afghans, Taliban, and/or insurgents have been brought to trial for killing US service men and women? 2) Another question, if this is working so well why have Afghan casualties gone up significantly each year since and inclusive of 2008?...3) By not applying the laws of war to the insurgents you are undermining your own strategy and efforts. Another question: How many spies have been prosecuted or are there none in Afghanistan?

Polarbear1605
05-01-2011, 05:41 PM
Perhaps, a Beneficiarius to pin on your pelt:

http://www.aurorahistoryboutique.com/products/R000323_L.jpg

in recognition of your devotion to Roman military law. :)

Cheers,

Mike

Hey, I like it but photo does not have a scale reference...will that beneficiarius thingy fit on my lapel? ;)

jmm99
05-01-2011, 07:50 PM
from Carl
Isn't most of this implicit in the original scenario?

Not "implicit" to me when I wrote it. The Interwebs admittedly lack for expressive clarity. Don't read into what I write too much beyond the black and white. It was not until I watched the reruns years later that I realized that Hamilton Burger meant "hamburger" (to Perry Mason).

Which (thankfully) moves us to:


from fmr11a

- Are the individuals part of a declared hostile force? (in 2007, in Iraq, our JAG told us that we could not conduct missions with the intent to "kill or capture" suspected members of AQI because they were no longer a "declared hostile force." Instead, we had to go with the intent of "capture," though we were free to kill in self-defense).

- What is your mission?

- What is the commander's intent?

Also, how could rule of law "apply"? Isn't rule of a law a characterization of how a legal system is used, rather than a system that can be applied?

Going backwards, "Rule of Law" and "Laws of War" (as often used above by me and others) are shorthand for two systems of law. Most simplistically, "Rule of Law" = the national non-military, civilian legal system, which is in effect in Peacetime, and in times of armed conflict in "pacified" areas. Whereas, "Laws of War" = a military legal system, a subset of International Law and a subset of national additions, which is in effect in areas of armed conflict.

That being said: "rule of law" (as opposed to "rule by law") can be a characterization of how a legal system is used. But, to do that, you have to spell out a "working definition" - as I have done; as Mark Martins did in his speech.

As to the middle two questions, - What is your mission? - What is the commander's intent?. My set of questions (in A follow-up (http://council.smallwarsjournal.com/showpost.php?p=120282&postcount=52)) was an attempt to suggest those areas of discussion; and that certain legal answers should be known to (and findable by) non-legal types (HT: Peter Newell, link cited by me here (http://council.smallwarsjournal.com/showpost.php?p=119608&postcount=16)).

The first question "Are the individuals part of a declared hostile force?" is theoretically crucial since it expands the hunting license beyond the always-in-play "defense of self and others" rules of the open-source SROEs. Combatant members (those who are "part of") a "declared hostile force" (you'll find this additive feature in the unclassifed SROEs) are subject to "kill or capture" (regardless of hostile threat; at any time, at any place), given a "positive ID".

The last is the practical problem. If you only learn that "Joe" is a combatant of a "declared hostile force" because he is shooting at you or is planting an IED, the expanded hunting license adds little. You (about Iraq) and Custis about both Iraq and Astan), for example, could better comment on the practical implications of limiting the scope of the 2001 AUMF at the tactical level. Based on what Jon has written in several places, the more restrictive rules did not impede his unit as a practical matter.

Finally, I find much to agree with (as a practical matter; what "should or should not be" gets into endless circularity) in this (http://council.smallwarsjournal.com/showpost.php?p=113035&postcount=3) (emphasis added):


fmr11a

My view is that our military forces are the only units with the adequate size, resources, and structure to perform the mission-essential task of connecting the central government to the lowest political units. They should be focused upon that task and it will likely need to occur by way of acting as a third-party mediator. As a caveat, I would add that task organizing as a military-civilian type task force at the BN level would be ideal if we have sufficient civilian personnel with the relevant skill/experience. Security operations should be supporting tasks. Security operations should be driven by specific considerations on the ground, not necessarily done as preliminary operations that are assumed to "shape" the battlefield for political reconciliation.

Since this is one of my interests (discussed in various places with Wilf (http://council.smallwarsjournal.com/member.php?u=1814)), I'd be interested in the "relevant skill/experience" you suggest for the civilian personnel at the Bn level - as well as, what decisions are "military", what decisions are "political", who decides "tiebreak" ? - the whole ball of wax, as you wish.

Some "military-civilian dialog (http://www.imdb.com/title/tt0059113/quotes)" (in a "Small Wars" context):


Liberius: [Liberius and Razin are debating whether or not to allow Zhivago's release] I command this unit!

Razin [Poltical Commisar]: We command jointly! The Party Bulletin expressly states...

Liberius: Bah!
[knocks bulletin out of Razin's hands]

Liberius: I could have you taken out and shot!

Razin: And could you have The Party taken out and shot? Understand this: as the military struggle draws to a close, the political struggle intensifies. In the hour of victory, the military will have served its purpose - and all men will be judged POLITICALLY - regardless of their military record! Meanwhile, there are still White units in this area - the Doctor stays

Regards

Mike

PS: How to avoid law school "mental abuse" ? In my limited experience, none of the I Law and Comp Law guys were student burners. The Procedure guys were substantively different, with the Criminal Procedure guys being the worst at burning students. My general defensive measure was to sit in the front row at the far left (to the prof's right side) and not arouse the prof's "primeval genetic uncontrolled reaction to spotting potential prey" (HT Bear). Also, have side jobs (dealing with Real World Law) and cut as many classes of student burners (and of boring professors) as you can.

That didn't prevent all interchanges; but it limited them. And once, I got really lucky - or "How I burned Jerry in Advanced Criminal Procedure". Anyway, the practice of law is what it's all about - and one can look back on law school as primarily a course in a different library science, some mental abuse, and some decent conversations with profs and other students.

jmm99
05-01-2011, 08:22 PM
Beneficiarius placement - but since you asked .... :D

This also ties in with fmr11a's military-civilian team idea - seriously.

Here is as much as you need to know about the grade of Beneficiarius (http://www.erminestreetguard.co.uk/beneficiarii.htm) (also a standard and an insignia of the Beneficiarius):


In the principate, the term came to be used for a specific grade of officer within the military staff (officium) attached to each equestrian officer of an auxiliary unit; each camp prefect; each legionary tribune and legionary legate; each provincial procurator and other equestrian officials within a province and each provincial governor.

In short, they were of the Roman Professional Soldiers (or Marines in the smaller Roman Navy), who had come through the ranks to centurion or super-centurion grades.

The Roman officers, for whom they served, whether their social class was senatorial (Caesar) or equestrian (Pilate), were trained in rhetoric and served as often as magistrates than as soldiers. In short, they were trained and served as lawyers. Some were gifted military amateurs; some were definitely not gifted military amateurs.

The Beneficiarii, like other centurion super grades, functioned as a link between the lawyers (the top dog officers) and the professional military. A Beneficiarii of the governor's staff had a lot of clout (he could draw a circle in the sand with his belt insignia - and say: "I am Rome. Cross the line if you dare."):


Whatever duties they carried out away from the provincial capital they did so as the representative of the governor. This explains the number of miniature “beneficiarius lance” badges found on military sites in Northern Europe. These would have been attached to leather belts or strap ends and showed that the person was an official of the governor and operating on his behalf independently of any other military officer.

Since a bear wears no belt, I can only see it being pinned to the obvious male appendage - sort of a pizzle stick, I suppose.

Cheers

Mike

jmm99
05-01-2011, 09:06 PM
Here it is, at Hi Fuchs (http://council.smallwarsjournal.com/showpost.php?p=82521&postcount=376).

Note that, by making the Army Manual the standard for both military and non-military agencies, the effect was to move part of our Laws of War into our Rule of Law. Krulak-Hoar probably could have stated it more precisely.

We also have had discussions about the UCMJ moving our Rule of Law into our Laws of War.

Regards

Mike

PS: I expect I may be a bit spotty in replying to posts here or elsewhere at SWC for the next few weeks - may be, may be not.

LawVol
05-02-2011, 06:47 AM
Your Back!...?

Yep, my trip was cut short due to flight restrictions so I had to catch whatever was available out of there or risk a long-term stay with short-term supplies. On watching the news this morning, I now know why. :D It was still a productive trip and I learned a bit about Pahtu vs Hazara views of RoL.


LawVol, I do think that in many ways we are saying the same thing but differently

I'm beginning to see this as well. I did come across an example on my short trip that illustrates, I think, both of our positions. It seems there is some frustration among a particular battle space owner because of the conflict between RoL and LoW (his characterization as relayed to me). He doesn't like the fact that his troops sometimes have to do warrant ops (serving warrants and all that entails) as he'd rather just kill them. Given proper PID, I can't say I'd disagree but then again I don't make the rules or generate the mission. However, some of the spec ops folks actually like the warrant ops because they find that on showing a village elder official paperwork, they often are able to take custody without shooting. These differing experiences, however, are likely a result of differing conditions. What works in one place may not work in another (this is why a ground-level view is crucial for policy-level folks).


I understand my tone can be ruff, but don’t recall blaming lawyers.

I meant this as more of a general statement rather than an indictment of anything you said specifically. Thanks for the book suggestion; I'll check it out.

Surferbeetle
03-06-2012, 05:54 PM
Mike,

So many interesting things, so little time...:wry:

The rule of law assessments by my legal beagle CA brothers & sisters were always very interesting.

Wonder if this is applicable, helpful, correct?

Guiding Principles for Stabilization and Reconstruction (http://www.usip.org/publications/guiding-principles-stabilization-and-reconstruction), Section 7 Rule of Law

Regards,

Steve

jmm99
03-07-2012, 02:48 AM
Hey Steve,

Your question:


The rule of law assessments by my legal beagle CA brothers & sisters were always very interesting.

Wonder if this is applicable, helpful, correct?

Guiding Principles for Stabilization and Reconstruction (http://www.usip.org/publications/guiding-principles-stabilization-and-reconstruction), Section 7 Rule of Law

seems better placed here than in "War Crimes".

Once LawVol decompresses from Afghanistan, I'd hope he'd join in the discussion. Of course, Polarbear1605 is always decompressed when it comes to "Rule of Law". :)

I will take a crack at answering your question re: USIP; but not tonight.

In the meantime, take a look at LawVol's closing blog post, Closing Thoughts (http://down-the-hole.blogspot.com/2012/02/closing-thoughts.html) (17 Feb 2012). As to the "rule of law", I found these paragraphs by John to be most compelling:


Davis is not, however, completely wrong from my perspective. His conclusion that the results (real, imagined, or expected) are not worth the effort is accurate from my own perspective. While Davis toured with combat units, I toured with development folks working in the area of rule of law. Thus, our views become complimentary in that counterinsurgency doctrine places great importance on the development of rule of law, as it is the glue that allows hard won combat victories to mature into sustainable civil society. The issues of rule of law are every bit as complicated as the tribal and enemy dynamics described above. However, some are of our own making.

Americans have a tendency to throw money at problems in the belief that money can fix everything. Combine this with a myopic view of rule of law and the effort here becomes stagnant. Afghanistan is a poverty-stricken country with little hope of matching the influx of coalition money in the near future. Given the history of warfare here, Afghans are more likely to think in the short term than in the long term. This dictates that Afghan powerbrokers will look to absorb as much money from the coalition as possible before the coalition leaves (having an end date certainly provides incentive for this conduct). Thus, Afghan officials within the rule of law sector constantly ask for infrastructure and financial support for personnel. This is accomplished with little thought to sustainability. In other words, how will this infrastructure and personnel be paid for when the coalitions leaves? This strategy, however, does lead to a perception of success since supporters can point to the number of courthouses built, judges hired, and bad guys prosecuted without any in-depth thought to the long term sustainability of the effort. Unlike Davis, I do not see lies here – I see misperception.

Our approach to rule of law is also, generally speaking, too focused on criminal law. This, I believe, stems from the fact that criminal law is viewed as “sexy” by lawyer and layman alike. After all, Hollywood doesn’t make television shows about contract law, do they? However, when one is trying to build a sustainable government, it is necessary to generate revenue to pay for that government’s operations. Contract law fosters security of business contracts, which increases foreign investment. Customs regulations assist in the generation of tax revenue. Transportation law allows the efficient movement of people and cargo so that business can flourish. Lawyers and judges trained to settle land disputes (a huge issue here) allow for resort to courts rather than to violence. Sure criminal law is important, but not to the exclusion of civil law or the relegation of it to almost an afterthought.

The complexities of the situation here, and our seeming inability to address them, lead me to a pessimistic (although I think realistic is a more accurate term, but that’s my perception) view of the sustainability of this effort. Applying this to the questions I asked in the first paragraph regarding my contribution also results in a cynical outlook. As I do not think this endeavor to be sustainable (indeed I see civil war on the horizon) I cannot say I’ve made a difference. The men and women that reduced Al Qaeda to a shadow of its former self made the difference here, which, incidentally, was the original political objective of this war. Conversely, I have learned a lot, although I’m not sure that what I learned was actually intended. Unintended learning, though, is sometimes the best kind of learning. For that knowledge, at least, I am thankful.

A virtual shell of beer is raised to you, John. Welcome Home. :)

Regards

Mike

Surferbeetle
03-07-2012, 03:25 AM
Hey Steve,

Your question:

seems better placed here than in "War Crimes".

Once LawVol decompresses from Afghanistan, I'd hope he'd join in the discussion. Of course, Polarbear1605 is always decompressed when it comes to "Rule of Law". :)

I will take a crack at answering your question re: USIP; but not tonight.

In the meantime, take a look at LawVol's closing blog post, Closing Thoughts (http://down-the-hole.blogspot.com/2012/02/closing-thoughts.html) (17 Feb 2012). As to the "rule of law", I found these paragraphs by John to be most compelling:

A virtual shell of beer is raised to you, John. Welcome Home. :)

Regards

Mike

Mike,

Greatly appreciate it, whenever you get to it. Lots of things going on in the world of late. :)

By the way i also use that framework to look at/measure our own/western institutions and practices. ;)

John/LawVol,

Welcome home, job well done.

Take care,

Steve

Polarbear1605
03-07-2012, 07:34 PM
Hey Steve,

Once LawVol decompresses from Afghanistan, I'd hope he'd join in the discussion. Of course, Polarbear1605 is always decompressed when it comes to "Rule of Law". :)


Mike

You know the bear never misses a chance to charge a windmill...and probably should not pass this one up but I do need to read the reference...remember, what drove Don Quixote mad was reading besides I would never describe myself as compressed...concerned and a bit fanatical is better. ;)

jmm99
03-07-2012, 10:35 PM
;)

My plan was to answer Steve's question by commenting on the USIP monograph in general; and on its Rule of Law section in particular.

I do have some initial thoughts - without commentary now.

In Guiding Principles for Stabilization and Reconstruction (Glossary), one finds the following definitions, which provide some boundaries for the scope of "Stabilization and Reconstruction":


Stabilization
Ending or preventing the recurrence of violent conflict and creating the conditions for normal economic activity and nonviolent politics. (UK Stabilisation Unit, “Helping Countries Recover From Violent Conflict.”)

Violent Conflict [defined by USIP]
A clash of political interests between organized groups characterized by a sustained and large-scale use of force.

Peace Enforcement
Coercive action undertaken with the authorization of the United Nations Security Council to maintain or restore international peace and security in situations where the Security Council has determined the existence of a threat to the peace, breach of the peace, or act of aggression. (UN DPKO, “Peacekeeping Operations Principles and Guidelines.”)

Peacekeeping
Action undertaken to preserve peace, however fragile, where fighting has been halted and to assist in implementing agreements achieved by the peacemakers. (UNDPKO, “Peacekeeping Operations Principles and Guidelines.”)

Peacebuilding
Measures aimed at reducing the risk of lapsing or relapsing into conflict, by strengthening national capacities for conflict management and laying the foundations for sustainable peace. (UN DPKO, “Peacekeeping Operations Principles and Guidelines.”)

Disarmament, Demobilization, and Reintegration (DDR)
A process that contributes to security and stability in a stabilization and reconstruction context by removing weapons from the hands of combatants, taking the combatants out of military structures, and helping them to integrate socially and economically into society by finding civilian livelihoods. (United Nations, Integrated DDR Standard.)

Reconstruction
The process of rebuilding degraded, damaged, or destroyed political, socioeconomic, and physical infrastructure of a country or territory to create the foundation for long-term development. (United States Army, Field Manual 3-07: Stability Operations.)

Development
Long-term efforts aimed at bringing improvements in the economic, political, and social status, environmental stability, and the quality of life for all segments of the population. (DRAFT UK CAWG, Inter-Departmental Glossary of Planning Terminology.)

These are not modest boundaries even if one reads them conservatively.

The scope of the Stabilization and Reconstruction concept is established by its summaries of End States:


2.1 End States

Below is a summary description of each end state, framed according to the perception of the host nation population, as they will be the final arbiters of whether peace has been achieved.

• Safe and Secure Environment
Ability of the people to conduct their daily lives without fear of systematic or large-scale violence.

• Rule of Law
Ability of the people to have equal access to just laws and a trusted system of justice that holds all persons accountable, protects their human rights and ensures their safety and security.

• Stable Governance
Ability of the people to share, access or compete for power through nonviolent political processes and to enjoy the collective benefits and services of the state.

• Sustainable Economy
Ability of the people to pursue opportunities for livelihoods within a system of economic governance bound by law.

• Social Well-Being
Ability of the people to be free from want of basic needs and to coexist peacefully in communities with opportunities for advancement.

and Key Principles:


3.1 What are the key cross-cutting principles in an S&R environment?

• Host nation ownership and capacity means that the affected country must drive its own development needs and priorities even if transitional authority is in the hands of outsiders. Ownership requires capacity, which often needs tremendous strengthening in S&R environments.

• Political primacy means that a political settlement is the cornerstone of a sustainable peace. Every decision and every action has an impact on the possibility of forging political agreement.

• Legitimacy has three facets: the degree to which the host nation population accepts the mission and its mandate or the government and its actions; the degree to which the government is accountable to its people; and the degree to which regional neighbors and the broader international community accept the mission mandate and the host nation government.

• Unity of effort begins with a shared understanding of the environment. It refers to cooperation toward common objectives over the short and long term, even when the participants come from many different organizations with diverse operating cultures.

• Security is a cross-cutting prerequisite for peace. The lack of security is what prompts an S&R mission to begin with. Security creates the enabling environment for development.

• Conflict transformation guides the strategy to transform resolution of conflict from violent to peaceful means. It requires reducing drivers of conflict and strengthening mitigators across political, security, rule of law, economic, and social spheres, while building host nation capacity to manage political and economic competition through peaceful means.

• Regional engagement entails encouraging the host nation, its neighboring countries, and other key states in the region to partner in promoting both the host nation’s and the region’s security and economic and political development. It has three components: comprehensive regional diplomacy, a shared regional vision, and cooperation.

To me, this looks like a comprehensive state-building program which has its legal bases in the UN Charter and Conventions; International Human Rights Law; and, to a lesser extent, International Humanitarian Law (which goes beyond the Laws of War [LOAC] accepted by the US).

In any event, in considering the value of "Stabilization and Reconstruction", one has to view the concept in terms of - Where am I ? Who am I ? Why am I here ? Who owns me ?

Regards

Mike

jmm99
03-07-2012, 11:06 PM
This is a total sidebar to the USIP article. I've kicked around in my head the idea of writing up "Civil Affairs for Knuckle-dragging Neanderthals" (among whom I place myself in answer to the question "Who am I ?" :)).

The idea would be to look back at the origins and development of Civil Affairs in the context of its doctrine before the Kennedy Administration and Vietnam (when "COIN" became ...), as evidenced by:


1940 USMC Small Wars Manual.pdf
1940 FM 27-5 Military Government.pdf
1943 FM 27-5 (OpNav 50E-3) Military Government & Civil Affairs.pdf
1947 FM 27-5 (OPNAV P22-1115) Civil Affairs - Military Government (op '56).pdf
1954 FM 41-15 Civil Affairs Military Government Units.pdf
1957 FM 41-10 Civil Affairs - Military Government Operations.pdf * intended for use in conjunction with FM 27-5 and FM 41-15.
1958 FM 41-5 (OPNAV P 21-1 AFM 110-7 NAVMC 2500) Joint Manual for Civil Affairs - Military Government.pdf *This manual supersedes FM 27-5/OPNAV P 22-115,14 October 1947, including C 1, 19 June 1956.

and the close link between these doctrinal publications and the Laws of War publications:


1914 FM 27-10 Rules of Land Warfare.pdf
1934 FM 27-10 Rules of Land Warfare.pdf
1940 FM 27-10 Law of Land Warfare (up '44).pdf
1944 Ann Arbor JAG School, Law of Belligerent Occupation.pdf
1956 FM 27-10 Law of Land Warfare (up '76).pdf

Those "law books" owe their principal ancestry to the 1863 Lieber Code (G.O. 100), of course.

While these ancient Civil Affairs manuals are heavily law-based, they are not overly legalistic - and are short. The 1940 Military Government manual uses 23 pages to cover the substantive subject matter !! The 1940 Small Wars Manual is more verbose (about 100 pages, starting at Chapter XI).

Line officers then seem to have been much more law oriented than at present. Tony Waller (no law degree) was an adept courtroom examiner and arguer. A number of Marine generals (serving in WWII and after, some into the Vietnam Era) had law degrees - which did not contaminate their line officer service.


General Clifton B. Cates, 19th Commandant of the Marine Corps, was a 1916 University of Tennessee law school graduate. He retired from the Marine Corps in 1953.

General Earl E. Anderson was a lieutenant colonel when he graduated from George Washington University's school of law (as law review editor-in-chief) in 1952. For the next 12 years he mixed legal and aviation duties then, until his retirement in 1975, was an aviator and a senior staff officer.

Lieutenant General Walter W. Wensinger was a 1917 University of Michigan law school graduate before joining the Marine Corps and, other than duty in the Office of the Navy JAG for three years, was a career infantry officer.

General Merrill B. Twining, a 1932 graduate of George Washington University's law school, was a career infantry officer.

Lieutenant General George C. Axtell was a career aviator who graduated from George Washington University's law school as a major in 1952.

Lieutenant General Herbert L. Beckington, an artillery and infantry officer, graduated from Catholic University law school in 1953, as a major.

Major General Avery R. Kier was a 1927 graduate of Kansas City School of Law, but was a career aviator.

Brigadier General James Snedeker, an infantry officer, was a 1940 law school graduate who represented the Marine Corps and the naval service on numerous boards and committees relating to military law, and was the first Marine to hold the billet of Deputy Judge Advocate General of the Navy.

In an earlier era, General Holland M. Smith, who retired in 1946, was a graduate of the University of Alabama's law school, and practiced, briefly, before entering the Marine Corps.

From 1989 Solis, Marines and Military Law in Vietnam - Trial by Fire 01.pdf (http://www.marines.mil/news/publications/Pages/MARINESANDMILITARYLAWINVIETNAMTRIALBYFIRE.aspx); and Holland Smith tells his own story, 1948 Holland Smith, Coral & Brass.pdf (Smith, Coral & Brass.pdf)

On the other hand, that Neanderthal Manual would take a lot of time. :(

Regards

Mike

Polarbear1605
03-08-2012, 01:32 AM
From 1989 Solis, Marines and Military Law in Vietnam - Trial by Fire 01.pdf (http://www.marines.mil/news/publications/Pages/MARINESANDMILITARYLAWINVIETNAMTRIALBYFIRE.aspx); and Holland Smith tells his own story, 1948 Holland Smith, Coral & Brass.pdf (Smith, Coral & Brass.pdf)

On the other hand, that Neanderthal Manual would take a lot of time. :(

Regards

Mike

Yep, reading Gary Solis's Military Law In Viernam: Trial by Fire now. It covers from 1965 until we got out. I am struck by the few number of "war crimes" court martials and how little publicity they got. There is also an interesting court martial of a Sgt that shot and killed a USO singer as she sang. The Sgt got 20 years and was released after 2 years and 9 days when his appeal court ordered a retrial that fell apart because evidence had been lost.

jmm99
03-08-2012, 04:11 AM
Technically, the killing of a civilian in South Vietnam could not be a war crime. The victim was a resident of an allied nation, protected by the laws of Vietnam. So, the charge would be some version of homicide (murder, manslaughter, negligent homicide), with a probable 916 (Justification) defense. A Retro Haditha or Back to the Future, which you know well.

Now, if the shootee were an enemy combatant (NVA or VC Main Force), perhaps protected by the Geneva Convention in full (GCs III) or Common Article 3, there would be no crime at all - unless the shootee was shot after capture (which could be prosecuted as a war crime).

One problem in Vietnam (which was solely for GVN and USG political reasons) was treatment of the VCI (Viet Cong Infrastructure) as civilians. Let's take our friendly VC political cadre associated with a VC company. In reality, that cadre would usually hold a grade one step higher than his military counterpart ("civilian" control of the military ;)); and would personally dabble in selective violence if needed.

If the VCI cadre was killed by, say, a PRU (Provincial Reconnaissance Unit), he was technically a civilian under South Vietnamese law. On the other hand, our Civil Affairs officers were legitimate military targets. In terms of functional equivalence, the VCI cadre had more military clout than the US CA officer.

Vietnam mucked up things in a number of areas.

Regards

Mike

PS: For those interested in the OSO shooting, it's at Part 7, pp.2-4 pdf. Basic facts - not contested:


On 2O July 1969 a USO show was in progress in the Staff and Officers' Club at the 1st Force Reconnaissance Company's base camp. Miss Catherine Anne Warnes, singer for the Australian musical group, "Sweethearts on Parade," stepped back from the microphone after singing the show's final song, just as there was a muffled shot. The 20-year old Australian fell to the floor, dead.
...
By 2100 the Staff and Officers' Club was filled with Marines anxious to hear the band and the attractive singer in the pink miniskirt. The 1st Force Reconnaissance Company commander, Major Roger E. Simmons, sat about eight feet from the stage. ... Later investigation revealed that the killer had fired one .22-caliber round from behind a jeep that was parked 35 yards from the Staff and Officers' club. The bullet cut through the club's screen wall, entered Miss Warnes' left side, pierced her aorta, and exited her right side, killing her almost instantly.

Was Major Simmons the intended target? Newspapers speculated that Miss Warnes had stepped into the line of fire ("Was Girl's Killer Gunning for Maj?" read one headline), but Major Simmons thought not. It was not an issue at trial, although a straight line could be drawn from the major's position to Miss Warnes to the jeep from behind which the fatal round was fired.

I conned myself just now into ordering a used hardcover of Solis' Son Thang: An American War Crime (http://www.amazon.com/Son-Thang-American-War-Crime/dp/1557507430), whose title is a misnomer in light of what I wrote above (Son Thang was not a "war crime").

Polarbear1605
03-10-2012, 12:49 AM
Well if you read Son Thang by Gary Solis...then you also need to read Honor Restored by Denzil D. Garrison. Mr Solis writes Son Thang from the prosecuter's point of view. Honor Restored is written by a member of the defense team. There is also a third book Blue's Bastards by Randy Herrod the defendent. Blue's Bastards has my favorite line...reportedly it came from a colonel, the senior member of the court martial board, immediately after the court martial: "I'm not going to tell you how we voted, but I'll tell you this: if we send the little sons of bitches out there, then we sure as hell have to take care of them." You also get a better feel for Ollie North's involvement in the court martial from Garrison's book. James Webb also pops up in this story. :)

jmm99
03-10-2012, 03:34 AM
Like-new hardcover of Son Thang (just under $8 inc. shipping) showed up in my mailbox this noon. It was the property of the Kiel, Wisc. Public Library (no one took it out); and sold by a used book-dealer from near Green Bay. A fluke in parcel post delivery - their loss, my gain. :)

Anyway, I got through the first two chapters (which includes some of Ollie North and Jim Webb, +s to me); but I have to go back to the hamlet aerial and get the geography and timeline down. Son Thang was not My Lai; but it wasn't Haditha either.

And, yes, after 45 pages, I saw Gary Solis sitting at the prosecution table - e.g., his description of the carnage caused by military munitions (p.45). As a defense counsel, you try to keep out the blood and guts photos; but often that is not possible. To get exclusion, you probably have to stipulate points that the prosecution would otherwise have to prove. As Tony Waller did by pleading Guilty to most of the Specification, but Not Guilty to the Charge and to the rest of the Specification.

Bottom line: Gary Solis would be a formidible opponent (smart guy and good writer).

OK: I followed your tactical advice - books ordered (under $10 inc. shipping) ;)

Something hits me in the gut wrong about a spCM (Herrod's "delayed transition" from 3/3 to 1/7) for a guy who twice went out for a wounded Marine (the same guy, who happened to be Ollie North) and is up for a Silver Star.

Regards

Mike

jmm99
03-10-2012, 04:21 AM
I could rip at Section 7 and rewrite many paragraphs. That would take a lot of time, which I'd rather devote to my Neanderthal Manual. ;)

I did find three sections that stood out to me as being positive (even though written in something of a UNese dialect) - and worthy of some thought since they are principles.

First,


7.4.2 Act only with an understanding of the local context.

A proper rule of law assessment is vital because assistance should be designed in relation to the context rather than universal templates. A multidisciplinary team comprising both host nation and international actors, that covers both urban and rural areas, is optimal [JMM: is mandatory]. Consult the users of the system as well as justice institutions.

Key questions for assessment include the following:

• What does the formal justice system look like on paper and in practice? Can it perform basic rule of law functions?

• What are the informal rules, traditions, and culture that underlie the system and its capacity and needs?

• What subsystems of justice are used by the population, including non-state justice and policing?

• What are the broader conflict-related factors, including regional influences, the security/crime situation, how human rights are being protected, the socioeconomic and political context, the cultural context, and the treatment of marginalized groups?

• What was the role of the justice system in the conflict? Was it part of the problem or part of the solution?

• What are the key drivers and mitigators of conflict that are affecting or could affect rule of law?

From the People; back to the People, said Mao. In practice, Mao's movement failed in that regard. As stated, Mao's theory is the true Rule of Law; that is, the rules come in raw form from the People, are refined by the Government and sent back to the People for approval; and so on, to arrive at an acceptable product.

Of course, you can have Rule by Law, where the rules are made by the Government's fiat. So long as the People accept those rules, you have a workable system; and can call it "Rule of Law". If a significant portion of the People does not accept them (feel they are "unjust"), you have a problem.

Second,


7.4.5 Recognize interdependence.

Rule of law requires more than an exclusive focus on formal justice institutions. It is an interdependent system of many parts involving institutions that manage justice (e.g., ministries), law enforcement agencies, courts, prisons, oversight bodies, law reform agencies, and legal education institutions. The justice system also depends on interaction with non-state justice systems, non-state actors (e.g., civil society), and the general population. Progress in security, governance, economic development and social well-being are all dependent on a functioning rule of law system.

Accepted as written.

Third (three parts, all intertwined),


7.5.3 Approach: Legal Framework Assessment

Understand the existing legal framework as the first step in working toward a just one. Laws may be chaotic, meaning it is difficult to answer the question of what law applies. They may also be deficient, meaning they contain provisions that are inconsistent with human rights or are antiquated and fail to address common S&R challenges, such as property rights, human trafficking, and organized crime. In most war-torn states, the legal framework frequently exhibits signs of neglect and political manipulation, contains elements of discrimination and seldom meets the requirements of international human rights and criminal law standards. Legal framework assessment involves a comprehensive mapping of all laws and decrees - formal and informal - followed by an analysis that identifies areas that require urgent attention or longer-term treatment.

7.5.4 Gather, catalogue, and distribute the applicable laws first.

Reach out to legal practitioners, ministries, the courts, the police, the prison services, law schools, academics, NGOs, and legal diaspora to collect applicable laws. This will involve multiple sources of law. Identify and collect core documents including the constitution, criminal code, civil code, commercial code, civil procedure code, administrative law, citizenship law, and property law. Also, look for regulations, acts, bylaws, internal procedures (e.g., police procedures), and laws and decrees regulating the customary justice system or parallel justice systems (e.g., rebel laws). Catalogue the laws gathered and translate and share them among host nation and international colleagues.

7.5.5 Conduct a comprehensive analysis of the applicable law.

The laws gathered need to be analyzed to ascertain compliance with international human rights law, criminal law, civil law, and commercial law (e.g., treaties on organized crime; drug trafficking; the International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; Convention on the Rights of the Child); to assess how religion impacts the law; and to understand what problems are not addressed in the laws. One body or organization should coordinate this analysis. Have a mixed team of academics and practitioners, legal and nonlegal, who can contextualize the law as it relates to the host nation. The analysis should be carried out by both host nation and international actors, and the team should consult widely within and outside the justice system. Start the assessment early; a full assessment can take up to one or two years.

One or two years - get real. Michigan did this in the 1960s - and was working out the kinks into the 1970s. That was under optimal conditions. I have complete agreement that this is how to do it. I also doubt it will be done.

Exactly how these "international actors" get involved - and how involved they get - are questions not answered in what I've quoted above.

Regards

Mike

Surferbeetle
03-10-2012, 06:59 AM
I've kicked around in my head the idea of writing up "Civil Affairs for Knuckle-dragging Neanderthals" (among whom I place myself in answer to the question "Who am I ?" :)).

You are not alone in this...:)

Idealized fictional books such as A Bell for Adano (http://en.wikipedia.org/wiki/A_Bell_for_Adano_(novel)) are interesting, but not a real world case study of CA work.

Instead, I wonder about either finding or chasing and assembling some case studies chronicling the deliverables of real world CA-Bubba types (and not limited to just US troopies) that were key team members of succesful reconstruction experiences: W. Edwards Deming (http://en.wikipedia.org/wiki/W._Edwards_Deming#Work_in_Japan) comes to mind. This leads me to a sacralegious question; which came first, the OODA loop (http://en.wikipedia.org/wiki/OODA_loop) or the Deming Wheel/PDCA Cycle-Plan, Do, Check and Action (http://www.balancedscorecard.org/TheDemingCycle/tabid/112/Default.aspx)? :eek:


The idea would be to look back at the origins and development of Civil Affairs in the context of its doctrine before the Kennedy Administration and Vietnam (when "COIN" became ...)

Excellent work on the references, Mike. I once held an original copy of the 1947 FM 27-5 Civil Affairs - Military Government...it easily fit into a soldiers pocket...perhaps because the approach taken was more of a performance based work specification than a prescriptive work specification....a focus on outcomes or results rather than process (http://www.window.state.tx.us/procurement/pub/contractguide/SpecificationTypes.pdf).

Additional Skill Identifiers (http://www.apd.army.mil/pdffiles/p611_21.pdf), a functional and timeless concept that i hope the Army will use again, one day, for it's CA forces. Doing so will help us get back to recruiting more 'Deming types'.

Big Picture, I am wondering out loud about how to quantify the differences between public sector and private sector 'nation building' solutions...sustainable economies (http://www.usip.org/programs/centers/sustainable-economies) vs functional economics (www.ft.com) approaches over in the EUCOM Econ Thread... :wry:

jmm99
03-10-2012, 10:34 PM
At least, that's the way it should be. :D

Unfortunately, I've never held the real 1940 FM 27-5 Military Government (http://usacac.army.mil/cac2/cgsc/carl/docrepository/FM27_5_1940.pdf) in my hand. I've had to "make do" with the online version. That little book is really basic with its "Performance Based Specifications" (24pp.) vs. "Design Specifications" (30pp.). That's the doctrine - with "skill identifiers".

You really do have to keep Neanderthal manuals simple - think the Pierre of the North comic, where the final frame shows the polarbears halfway into the igloo and Pierre saying "I really 'ate zis place !" ("hate" in French-Canucklish pron. "ate" - " 'elp, 'elp, zem polarbears 'ate me."). Beware of zem very clever and very hungry polarbears. :)

OODA - without looking it up (and I haven't to write this post): Is it Observe-Orient or Orient-Observe ? So, OODA is of no value to me because of my own deficiencies in acronymics.

For what it's worth, my built-in loop is Data-Analyze-Decide-Act. That's worked in the courtroom where you have to DADA (or DODO) in the interval between two sentences. E.g., the opposing lawyer's question and the witness' answer. It also works in less time-stressed situations (trial prep, or still longer case prep), where you can use different decision-making trees, and more sophisticated use of tempo.

Feel free to develop Deming-type case studies and Engineering Economy models. You will lose me in the first few paragraphs. My time at Michigan Tech was in other areas (with some, I've stayed Scientific American current over 45 years).

Regards

Mike

Polarbear1605
03-11-2012, 02:04 PM
Like-new hardcover of Son Thang (just under $8 inc. shipping) showed up in my mailbox this noon. It was the property of the Kiel, Wisc. Public Library (no one took it out); and sold by a used book-dealer from near Green Bay. A fluke in parcel post delivery - their loss, my gain. :)

Bottom line: Gary Solis would be a formidable opponent (smart guy and good writer).

OK: I followed your tactical advice - books ordered (under $10 inc. shipping) ;)
I know...I love that used book function! For an old book worm it is just GREAT!


Something hits me in the gut wrong about a spCM (Herrod's "delayed transition" from 3/3 to 1/7) for a guy who twice went out for a wounded Marine (the same guy, who happened to be Ollie North) and is up for a Silver Star.

Regards

Mike

Yep, I am sure if confronting Gray in a legal boxing match, he would leave marks. Gray also has another book out “The Law of Armed Conflict”… trying to read through it for some time now…I believe it is Mr. Solis’s text book…I keep putting it down to read more fun stuff.

To me, Herrod’s SPCM for UA is also surprising but does reflect his command situation. Good combat leaders work real hard on unit cohesion and Ollie North is one great combat leader regardless of his political issues late in his career. Combat firefights/battles are also tremendous cohesion builders. If you suddenly lose your leader and your unit with a transfer to a different division the “system” support structures have been kick out from underneath you and a sudden UA problem should not be unexpected (and does need to be addressed). Unit SOPs normally set an unofficial standard that the Company CO gets the first NJP offense, the Bn CO gets the second, third offense gets the super NJP option of a summary court and that is the normal route to a SPCM.

OODA Loops and Deming - Boyd theory was never sold as something new…at least not by its author. It was an historical analysis of sorting out and picking what works and then an assembly of those piece parts. Boyd Theory is much richer than just OODA loops. I don’t remember any references to Deming but the list is extensive. The Boyd briefs (slides) are available on line and the USMC Quantico Library now has a copy of COL Boyd delivering the audio portion of those briefs (12 hrs+). If you ever want to spend the time, let me know and I will let you know how to get your very own set Boyd CDs. I personally feel you have to have both (the slides and the audio) to understand Boyd.

Read the reference…it is very good and I am especially impressed by the reference list. Of course, being the dedicated fighter of windmills (besides being a knuckle dragger) I have to state my criticism.
The doc seems to rely heavily on UN and NATO references and that presents, in my opinion, a considerable flaw. I would sum up that flaw with the phase: “its fine, if you are dealing with the villages of Europe, but how does this work in a tribal content, specifically a Muslim tribal content?” In addition, I feel it is a tactical manual that ignores and glosses over some of the strategic realities. I mention that because I believe we are going to add Afghanistan to the now growing list of wars that we have won tactically but lost strategically.

The strategic issue is which ROL do you want to implement? Ours or theirs? Especially, when theirs is culturally very different from our ROL. Either way presents us with a dilemma. Their law, for example, requires that an adulteress woman is publically stoned. In the US, we always have an opposition party. If we attempt to implement a Muslim based ROL, the opposition party (and I am convinced it makes no difference which party is in the minority) will see this as an opportunity to garner power. Another example is President Bush was politically attack for using the LOW to fight the war on terrorist; Eric Holder is being attack for trying to use the ROL. States can legally execute their own citizens, so how will the US public handle the legal and public execution of a convicted adulteress by stoning?
Boyd Strategic Theory states that whatever works for you must also work against the enemy (Boyd’s cheng/chi theme). Clausewitz calls for a balance in the trinity of war …people, government, and the Army. “The theory that ignores any one of them or seeks to fix an arbitrary relationship between them would conflict with reality to such an extent that for this reason alone it would be totally useless.”

Of course, my favor windmill that cocks my barber’s bowl sideways, is the separation of the ROL and the LOW. The manual does not address it and therefore, I my mind, it is flawed. It is still a good manual as long as you understand the flaws. I understand that the legal folks view them as the same thing. But as a knuckle dragger, I do not see how I can operate under both; Inter arma silent leges. I still feel that there has to be a coordination point between the two as you transition from the LOW to the ROL. If you mix them, at some point there is going to a sorting out…and the sorting always means someone is going to lose and any loss, either way, means you undermine your own strategy. I recently finished “In the Shadow of Wounded Knee” by Roger Silvestro…and like Haditha, I think it is a great example of mixing them and then sorting it out with winners and lossers demonstrating a flawed strategy.

jmm99
03-11-2012, 07:37 PM
I'm waiting for the 2010 “The Law of Armed Conflict" to get well below $50 used (presently about $65 w/ shipping). My reason is that so many changes have been occuring since 2008, both in US and Int. Law, that I'd hestitate to believe a 2010 book, without checking original sources since then. Since what I post usually are or are referenced to original sources, I didn't see where spending ~$100 (list price) was worth it.

As to the S&R Guide, I had the same basic problem as you did. That is, as evidenced by many (but not all) sections - "Western" or "international" rules are "superior"; and should be the standards against which legal assessments and "reforms" are measured.

Here, on the other hand, are several more sections which are more positive and "local" in focus:


7.5.7 Approach: Short-Term Law Reform

Consider whether short-term law reform is necessary. Short-term measures may be necessary to address deficiencies in the law that will impact stability and to address laws that are inconsistent with human rights conventions and standards. While criminal justice laws usually receive the most attention, the majority of disputes and procedural issues that arise - and directly affect the population - initially involve nonviolent offenses that may escalate into violence if victims have no legal recourse. Short-term reform should also address gaps in civil and commercial code and procedure. In this context, short term refers to the first two years after the cessation of hostilities. See Gap/Challenge: Section 7.11.4, Non-criminal justice assistance.

Yes; although to be realistic, one could substitute up to 10 years for "short term law reform"; and 10-30 years for "long term law reform". Even under optimal conditions, a lot of "working out the kinks" is needed.

A smart country lawyer (not me - wasn't one then) commented that the (now defunct) Justice of the Peace system (minor criminal cases and small claims civil cases) was the most important part of the judicial system, because that was where most people contacted the judicial system.


7.11.4 Prioritization of noncriminal justice assistance.

Criminal justice is often prioritized as the primary focus for rule of law assistance. Other important areas of potential assistance, such as property rights or public administration reform, have not been addressed.
Property issues and displacement can affect a large percentage of the population. More people may deal with the state’s public administration than with the criminal justice system on matters such as civil registration and health services. Research and the development of best practices in these fields needs to be developed.

7.11.5 Engagement with non-state or religious justice systems.

While it is agreed that there needs to be engagement with the non-state justice system to promote the rule of law, the international community does not fully understand these systems, how they operate, what to do with regard to human rights issues, and even less so, what assistance measures promote the rule of law. Empirical, comparative research is needed. In addition, research is needed to look at how to deal with non-state, religious systems of justice and how to integrate religious considerations into rule of law assistance overall.

Yes. The term "law", if one looks at it more broadly and with respect to convincing the decision-maker, includes not only written law but also a package: "law" in the heads of the decision-maker and community; expectations of "legal" outcomes; societal norms, values and needs; and a lot more.


7.5.9 Undertake discreet legal reform in the short-term if necessary.

Whether law reform should be conducted in the short term will depend on the context. Reforms may be deferred because changes to the law may make little difference. New laws that have been drafted in haste may not have been researched sufficiently, or political will for reform may be lacking. In either case, work with what is there and find creative legal solutions to filling gaps in the law or addressing deficient provisions of law (e.g., where there is no criminal offense for trafficking, use tax evasion provisions). Short-term reforms should involve discreet changes to existing laws rather than a long-term overhaul. Address urgent problems such as laws that grossly undermine human rights or inadequate laws for pretrial detention. In the economic arena, providing for predictable contract enforcement, including oral and informal contracts, is critical. Dealing with real and personal property claims, developing mechanisms to resolve property (especially land, livestock, and commercial) disputes, and determining inheritance rights will always be an urgent need. Be aware of the impact that new laws or legal provisions will have on other laws and justice institutions.

Generally, this is fine. You can see UNese at work in defining "urgent problems" as being human rights and pretrial detention. Local priorities may be quite different.

The bottom line is that Guiding Principles for Stabilization and Reconstruction (http://www.usip.org/publications/guiding-principles-stabilization-and-reconstruction) is well worth reading - and a great amount of work went into it. But, it is an animal created by a committee; and like all manuals should not be accepted as "gospel". As the title suggests, it is for "guidance".

Regards

Mike

jmm99
03-11-2012, 08:35 PM
I've been directed to “In the Shadow of Wounded Knee (http://www.amazon.com/Shadow-Wounded-Knee-Untold-Chapter/dp/0802714617)” by Roger Silvestro, more than once. OK: for under $5, I'll bite.

Wounded Knee gets more complex since words such as "massacre" and "atrocities" tend to abound. The two other killings focused on by him were non-military.

We have a better (and more recent) example, which did not involve massacres or atrocities by anyone. Besides, it's relatively "local" to me and we "local indigenes" shamelessly self-promote. Moreover, the key reading materials for the test are free.

I speak of Sugar Point, 5 Oct 1898 (post by me here (http://council.smallwarsjournal.com/showthread.php?p=125666&highlight=ojibwe#post125666), without discussion of RoL and LoW, but with added links). KIA: 1 officer and 5 troopers (3rd Inf. Regt.) + 1 Indian policeman (caught in crossfire). Indian combatant casualties - none. As they say: "Got some".

The references: The last Indian uprising in the United States (http://collections.mnhs.org/MNHistoryMagazine/articles/3/v03i05p273-290.pdf); and The Battle of Sugar Point : a re-examination (http://collections.mnhs.org/MNHistoryMagazine/articles/50/v50i07p269-275.pdf).

The questions:

1. Technically, what law or laws was or were formally applied from the gitgo up to and including Pres. McKinley ?

2. In reality, what law or laws was or were really (not formally) applied by Pres. McKinley to settle the matter ?

Regards

Mike

jmm99
03-12-2012, 03:30 AM
And anyone else interested.

I do have a bias in favor of Ojibwe (surprise). Part of that is explained by a 1971 MI Supreme Court decision, now going on age 41, People v Jondreau, a test case brought on behalf of a lot of Ojibwe. It was a total win, which is nice to reflect on - when we were young, etc.

That case is sometimes cited today - e.g., Robert O. Porter, Tribal Disobedience (http://www.law.syr.edu/Pdfs/0No.05-2%20Tribal%20Disobedience.pdf) (2005), p.12:


The first case in Michigan was brought in 1965, when William Jondreau, a member of L’Anse Chippewa band, argued that he was not subject to state laws by virtue of the Treaty of September 30, 1854. Jondreau won the case in the Michigan Supreme Court in April 1971 [JMM: 6 years later !], thus opening the door for other cases to follow. While not all of the cases brought were successful, eventually, the right of Indians to fish in waters outside of their territory was upheld by the state and federal courts.

An interesting draft paper.

People v Jondreau attached (12 pages, includes 2 pages by me explaining the strategy and tactics of the Supreme Court appeal)

Regards

Mike

BTW: for some reason, my connection to my ISP is OK, but my speed to download other webpages is less than 20% of normal. Solar flares or Anonymous ? :D

jmm99
03-16-2012, 12:19 AM
I thought this article U.S. must aid Afghan judicial system (http://www.politico.com/news/stories/0312/73938.html) (by DAPHNE EVIATAR, 13 Mar 2012), is worth looking at for its factual observations on the current state of that judicial system. Daphne Eviatar is the senior counsel in the Law and Security Program of Human Rights First. She says (emphasis added):


Kabul has a dismal record for providing either humane treatment or due process. The United States has no reason to believe it will change its practices now.

As recently as October, in fact, the United Nations reported that the Afghan intelligence service systematically tortures detainees, based on an investigation of 47 detention facilities in 22 provinces across the country.

Afghanistan’s justice system, meanwhile, is notoriously corrupt, failing to provide even the most basic elements of fair trials, including defense lawyers. When I was in Kabul last year, Afghan defense lawyers and human-rights activists told me that defense lawyers for the accused are still a rarity in much of the country. Even when a defense lawyer is assigned, that attorney often can’t meet with his client for many months, particularly in national security cases. In the meantime, the suspect may be tortured into confessing to a crime he didn’t commit.

Once the case gets to court, getting a judge to even listen to a defense lawyer’s objections or allow presentation of real evidence is challenging. Most Afghans I interviewed insist that evidence is irrelevant in any case. The popular sentiment is that with money, anyone can buy his way out of jail. Those without, guilty or innocent, will be left to rot in prison.
...
To the U.S. military’s credit, it’s been trying to improve Afghan trials in national security cases by providing mentoring and training for judges and prosecutors handling trials in a U.S.-built facility on the Bagram Air Base and ensuring the accused get a lawyer. But that’s made only small improvements so far, judging from the poor quality of the Afghan trial I observed at Bagram last year. ...

Ms Eviatar then goes on to argue her title's point - the U.S. must continue to aid Afghan judicial system.

Now, the Afghan judicial system is very low on my personal list of priorities. The system is FUBAR and what $s are handed to Karzai & Krooks are more likely to end up in Swiss bank accounts than in Ms Eviatar's good works:


This judicial system needs far more than a few mentors for judges and prosecutors. It needs investigators trained to produce reliable evidence, prosecutors who understand its value and defense lawyers trained to demand that evidence and challenge confessions resulting from torture. It also needs to be able to ensure the safe and humane treatment of detainees.

But, if a few billions in grants/bribes are needed so that the "kids" and "grandkids" come home quicker, I'll chip in. Perhaps, even better, the Aghanis will carry out their threat not to execute a Strategic Partnership Agreement and will request that we leave - YES !

However, like Christopher Bassford (http://smallwarsjournal.com/jrnl/art/bringing-real-life-to-american-strategy-in-afghanistan), I'm having a daydream:


The correct strategy begins with calling a referendum in Afghanistan asking the Afghan people (a useful but essentially nonsensical term) whether they want us to remain or go. Once the “Go!” vote is in, we will demonstrate our deep respect for the Afghan people and our affectingly genuine commitment to democratic processes by leaving - lock, stock, and barrels of money. And take any genuine Afghan allies home with us. Who can complain about that?

The only real danger to this approach is that Afghan leaders and voters might suddenly wake up and recognize that the gravy-train is actually serious about leaving the station. Therefore the question must be artfully posed in such a manner as to guarantee a resounding endorsement of American withdrawal. It’s easy to envision us muffing it through clumsy word-smithing and our usual counter-productive propaganda efforts. One must of course concede the possibility, however unlikely, that Afghan voters will instead beg us to stay. If you agree that we would have a moral obligation to do that, then surely you will agree we also have a moral obligation to ask their opinion on the matter.

:cool:

Regards

Mike