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Rifleman
08-13-2011, 03:43 AM
Moderator's Note

This thread's title 'Was William T. Sherman a war criminal?' which covered this thread's discussion, but in August 2013 it became a wider topic and JMM99 suggested we retain this thread to discuss what is now called 'Command Responsibility and War Crimes: general discussion' (ends).

First, a disclaimer. Perhaps this thread belongs in the historical section but I thought it might fit here too. And I didn't find anything relevant when I searched Sherman's name here.

Was William T. Sherman a war criminal?

Neo-Confederates and Confederate apologists say so. But when the morality of bygone slave owners comes up the Neo-Confederates and Confederate apologists also like to point out that you should judge a man in his era and against the background of his cultrual norm and not by a later generation's standards. Don't we have to judge Sherman the same way?

Never mind how such actions would be preceived now. Or how insulted and violated someone's great-great grandma felt at the time her barn was burned.

Was it criminal at the time it happened?

jmm99
08-13-2011, 04:29 AM
but I'd love to discuss Sherman, the Lieber Code (GO 100), the Civil War and Reconstruction in terms of "War Crimes", etc.

(Upon limited reflection, I think the Historians forum might be the better place - since Law Enforcement is pretty much a current affairs forum. That call is up to David et al. (Thread moved by davidbfpo)

As to Sherman, why don't you put together a complaint vs WTS based on the "Neo-Confederates and Confederate apologists" viewpoint ? That doesn't seem to be your bottom line, but why not play devil's advocate.

BTW: ceased active private legal practice on 1 Jun, with only a couple of bramble bushes, closing books and final tax returns to complete. So, on 19 Sep and thereafter, every day should be a Saturday. ;)

Regards

Mike

Ken White
08-13-2011, 05:55 AM
Congrats on the well deserved retirement, Mike. Enjoy it...

Ken

To return to the thread with an answer from this dedicated Southerner; No, he wasn't. Nor were Nathan Bedford, John Hunt Morgan, Ben Grierson and dozens of less well known folks... ;)

War is war. :D

jmm99
08-13-2011, 06:41 AM
"warfare" is "warfare"; but as to the latter, the rules they do change - as to strategy (probably the least), tactics and "war crimes".

For example, one of our favorite generals (Subotai) employed the "wagon wheel test" to separate the "goats" from the "sheep" - too tall and your head was removed to put you in the eternal "sheep class". His problem (in occupying adverse territory) was that he had too few troops to "clear and hold" (much less "build"). So, all potential insurgents had to be removed.

What was "acceptable" to that non-Mongol would scarcely be "acceptable" today; but what is "acceptable" today has many variants (compare EU vs US and have fun). "Old Law" is not necessarily bad - especially where it had clarity.

Regards

Mike

davidbfpo
08-13-2011, 09:53 AM
Moved from law Enforcement to Historians and title amended, so subject is far clearer.

Ken White
08-13-2011, 03:10 PM
"Old Law" is not necessarily bad - especially where it had clarity.who have clarity... ;)

All true. Nor is all change necessarily good, yet, it is. Onward and upward we go. :wry:

Bob's World
08-13-2011, 03:45 PM
In a conversation the other day a person made the observation that "corruption" is taxation where formal taxation structures don't exist.

In that context, In the newly developing "war between nations" (as opposed to war between Kingdoms), where the will/morale and ability of the populace to support a war is so critical to achieving true defeat, deep raids targeting that aspect of the populace were "strategic bombing" before bombers existed.

Grant sent Sheridan into the Shenandoah on the same mission, though the history books seem to focus on Sherman; and all seem to miss that it was on Grant's orders to execute Grant's strategy that both these trusted lieutenants acted.

Grant had a comprehensive grasp on the realities of modern warfighting as it was developing around him, that great tactical leaders like Lee did not appear to grasp. I suspect that if Grant had focused solely on the defeat of Lee's army or the capture of Richmond that the war would have been much more likely to have devolved into a decades long insurgency.

ganulv
08-13-2011, 04:23 PM
Grant sent Sheridan into the Shenandoah on the same mission, though the history books seem to focus on Sherman; and all seem to miss that it was on Grant's orders to execute Grant's strategy that both these trusted lieutenants acted.

Even as a good Southerner, the infrastructure and crop destruction during the March to the Sea make perfect sense militarily to me. I suppose one could color the pillaging of individual homes with a military brush by calling the actions punitive, but that would seem to butt up against the Union’s stated purpose of reintegrating the Confederate states (the behavior might well have been hard to police, but throwing up your hands and saying “Boys will be boys!” is still throwing up your hand) and is the part of the expedition which really sticks in my and many other Southerners’ craw (including the young lady I know who dropped her drawers and squatted down to piss on the Sherman Monument in Central Park during her senior class trip). Interesting that in historical memory of the Valley Campaigns that sort of behavior is not highlighted. That series of events seem to be remembered more as merciless than as rapacious.

I suspect that if Grant had focused solely on the defeat of Lee's army or the capture of Richmond that the war would have been much more likely to have devolved into a decades long insurgency.Of a different type and scale than the decades long insurgency that did take place (https://secure.wikimedia.org/wikipedia/en/wiki/Ku_Klux_Klan#First_KKK), you mean? ;)

Rifleman
08-13-2011, 04:37 PM
As to Sherman, why don't you put together a complaint vs WTS based on the "Neo-Confederates and Confederate apologists" viewpoint ?

LOL, don't know where I'd begin. I suppose I could find something on the League of the South website to cut and paste but I'm not sure I'd want to do that.

That doesn't seem to be your bottom line, but why not play devil's advocate.

Because if I was advocating, I would advocate that he was not.

And I'd like to point something out to Southerners who think he is: what Sherman did to your Confederate ancestors wasn't too much different than what their ancestors a generation earlier did in campaigns against the Creek and Cherokee.

Whatever people believe they need to be consistent in their reasoning process.

Ken White
08-13-2011, 05:56 PM
own namesake's tribe. Much less what his northern neighbors did to the Kiowa, Pawnees and others as they moved west... :wry:

And I'd like to point something out to Southerners who think he is: what Sherman did to your Confederate ancestors wasn't too much different than what their ancestors a generation earlier did in campaigns against the Creek and Cherokee.

Whatever people believe they need to be consistent in their reasoning process.Unlikely to happen, we're all prone to bias and prejudice -- as well as flawed logic -- mine's more flawed than most but my bias (among other things) is tiny ... :D

bourbon
08-13-2011, 05:58 PM
This is a broad generalization, but:

History is written by the victors; so war criminals are only on the losing side.

ganulv
08-13-2011, 06:02 PM
Whatever people believe they need to be consistent in their reasoning process.

A need most frequently honored in the breach, in my experience! :D

And I'd like to point something out to Southerners who think he is: what Sherman did to your Confederate ancestors wasn't too much different than what their ancestors a generation earlier did in campaigns against the Creek and Cherokee.

The actions weren’t too much different—the Sullivan Expedition (http://sullivanclinton.com/) has been called war on vegetables, after all—but the rules were that the rules were different when the adversaries were Indians (Wayne E. Lee (http://www.unc.edu/%7Ewelee/) has published a few papers on this topic). I’m not claiming that that wasn’t hypocrisy, but rather just trying to historicize things.

Infanteer
08-13-2011, 08:33 PM
This is a broad generalization, but:

History is written by the victors; so war criminals are only on the losing side.

I was just going to post that very same thing.

"War criminal" is likely more of a liberal status for "loser" then any sort of strict legal catagorization.

Bill Moore
08-14-2011, 03:49 AM
Posted by Bob,

I suspect that if Grant had focused solely on the defeat of Lee's army or the capture of Richmond that the war would have been much more likely to have devolved into a decades long insurgency.

Have to agree to this statement, the only way to convince the South to surrender was too make the cost of continuing the conflict too much to bear. The strategy was appropriate, and while we can only speculate I suspect it reduced suffering the long run by limiting the duration of the conventional war.

As stated by ganulv, the insurgency did continue. The militants were the KKK, the subversives were various politicians who inacted laws (which the local police enforced violently) that continued to oppress the recently freed slaves until MLK led a mostly peaceful and successful revolt against legal discrimination, and much as our development efforts continue to fail in Afghanistan, or development efforts in the South largely failed due to resistance to industrialization and other factors.

The south now is becoming an economic powerhouse in its own right, and blacks in the south have considerable political power (at least in the larger urban areas). What facilitated that transformation? That might be helpful in determining how to facilitate social and economic change in foreign nations (since we seem determined to do so).

Taking it back to the topic, Sherman's march helped bring the war to an end, but it didn't solve the core issues that the war was fought over. In my opinion, if we desire to defeat the Taliban, then we need to carry the fight into their safehaven and make the price of continuing war too costly. If that is politically infeasible, then we probably need to change our policy and associated objectives. If you want the military to win, then you have to accept that war is war and endure the ugliness that comes with it.

Sherman was no war criminal, he was a soldier that executed his mission very effectively. A tactical mission tied to strategic ends.

jmm99
08-14-2011, 06:04 AM
Sherman operated under GO 100 (http://en.wikipedia.org/wiki/Lieber_Code) - in pertinent part (paras 15 & 17 being determinative):

14. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.

15. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy's country affords necessary for the subsistence and safety of the Army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.

16. Military necessity does not admit of cruelty--that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.

17. War is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy.

On the other hand, "war crimes" and associated death penalties were not limited to the "losing side":

44. All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense. A soldier, officer, or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior.
....
47. Crimes punishable by all penal codes, such as arson, murder, maiming, assaults, highway robbery, theft, burglary, fraud, forgery, and rape, if committed by an American soldier in a hostile country against its inhabitants, are not only punishable as at home, but in all cases in which death is not inflicted the severer punishment shall be preferred.

QED.

Regards

Mike

Polarbear1605
08-14-2011, 03:49 PM
Jmm, thanks for getting the discussion back on course but you need to understand that professional military officers don’t like discussing war crimes…it makes them think and uncover cracks (actually gapping holes) in their strategic war fighting doctrine. Yes “warfighters”, that is a gauntlet you are staring at in front of your corfammed toes. In order to get this discussion going I will gladly defend Sherman and state he is not a war criminal (and maybe some of you will take five minutes to read the Lieber Code).
Sherman is not a war criminal because he followed and obeyed his Laws of War (the Lieber Code – GO 100). The Lieber Code, at just over 9000 words, is a thing of beauty that served the US military well through the Civil War, the Indian Wars, the Spanish American War and the Philippine American War. The Lieber Code not only established the protection for wounded, POWs, and civilians but also demonstrated little tolerance for treachery. Because it did not enable treachery, it provided for the successful occupation of the Confederate States at the end of the civil war. An interesting study is the occupation at the end of the Civil War compared to the botched occupation of Iraq. One of the guiding principles of the Lieber Code in Article 29 states “The more vigorously wars are pursued the better it is for humanity. Sharp wars are brief.” That principle is long forgotten by our senior military leadership.

Ken White
08-14-2011, 04:19 PM
One of the guiding principles of the Lieber Code in Article 29 states “The more vigorously wars are pursued the better it is for humanity. Sharp wars are brief.” That principle is long forgotten by our senior military leadership.Sherman applied not only the Lieber Code but also the prescription of a nominal enemy:

""War means fighting. The business of the soldier is to fight. Armies are not called out to dig trenches, to throw up breastworks, to live in camps, but to find the enemy and strike him; to invade his country, and do him all possible damage in the shortest possible time. This will involve great destruction of life and property while it lasts; but such a war will of necessity be of brief continuance, and so would be an economy of life and property in the end. To move swiftly, strike vigorously, and secure all the fruits of victory is the secret of successful war.""

As quoted in Stonewall Jackson and the American Civil War (1904) by George Francis Robert Henderson, Ch. 25 : The Soldier and the Man, p. 481

Bill Moore
08-14-2011, 06:54 PM
How do we view gradual escalation, allowing safe havens, pretending to fight with civil affairs and nation building while placing combat as a secondary objective, etc. looking through the lens of the Lieber Code? :D

Once again our egos destroy us, every officer out there wants to pretend he can come up with a new idea and redefine war and identify better ways to fight it, and the result is "forever wars" that cause untold suffering and forever damage the cultures/societies involved. Due to the duration of these half fought wars societies know nothing but war, peace is a foreign concept not easily embraced.

ganulv
08-14-2011, 07:57 PM
The Lieber Code, at just over 9000 words, is a thing of beauty that served the US military well through the Civil War, the Indian Wars, the Spanish American War and the Philippine American War. The Lieber Code not only established the protection for wounded, POWs, and civilians but also demonstrated little tolerance for treachery.

At the risk of taking the discussion back off course… Laws are as good as individuals’ and societies’ willingness and ability to enforce them. In the context of the Indian Wars Sheridan’s refusal to call Major Baker to task for the 1870 attack on Heavy Runner’s camp is a glaring lapse in enforcement (I’m not necessarily saying Baker was a war criminal, but there was enough evidence available to Sheridan to suggest negligence at the least) and in the context of the Philippine-American War the water cure was used in spite of Lieber’s Article 16. One should of course acknowledge that both occurred amongst professional soldiers called upon to administer ill-conceived and poorly articulated policy. Plus ça change.

Bob's World
08-14-2011, 08:50 PM
Well to remember that the Civil War was the "war between the states, and not the war within the states; and not attempt too much to draw parallels that apply to an internal insurgency such as is taking place in Afghanistan.

This may seem like an inconsequential distinction to many, but it is one of the most critical nature for me. As CvC wisely noted "The first, the supreme, the most far-reaching act of judgment that the statesman and commander have to make is to establish . . . the kind of war on which they are embarking.""

I don't normally quote or refer to Carl for insurgency, but do so here to point out that one must understand if they are in a war, or if they are in an insurgency. Afghanistan is insurgency; and it is my contention that to follow the principles of warfare in insurgency is folly. The principles of civil emergency apply, and best to remember that such emergencies are almost always well rooted in some fundamental failures of government, rather than failures of populace.

Now I realize that our military doctrine declares insurgency to be war ("complex war or warfare" actually), but that is what happens when one hands a problem to the military to resolve; they will tend to militarize it and couch it in the terms of their profession.

Our doctrine is a proverbial "soup sandwich" on such conflicts, and all of the "new" ingredients that experts have been tossing into the mix over the past 10 years to make it easier to digest have made it even more unpalatable. It is high time we toss the whole mess out and start from scratch and rebuild it one term at at time. I am sure we will find that there will be several left over terms that are far better left out of the mix.

Cheers!

Bill Moore
08-14-2011, 09:25 PM
Well to remember that the Civil War was the "war between the states, and not the war within the states; and not attempt too much to draw parallels that apply to an internal insurgency such as is taking place in Afghanistan.

That is only partially true and misleading in a respect. If we could simply erase Pakistan from the equation, then it would be an internal conflict, but the reality is that is a hybrid conflict that doesn't conform to simple definitions. It is part insurgency, part anarchy, part surrogate/UW, part global non-state actor inspired/supported, etc. This isn't Malaya or the Philippines (which we all understand, yet we still want to focus on a narrow COIN strategy).

The principles of civil emergency apply, and best to remember that such emergencies are almost always well rooted in some fundamental failures of government, rather than failures of populace.

This is definitely a large part of the problem, but not "the" problem. This statement assumes that if Afghanistan had a functional government that Pakistan and non-state actors would cease hostilities. While neither of us know, I suspect that isn't true, and I also suspect that "we" can't fix the Afghan government, so using that as a strategy is flawed from the outset.

Bill Moore
08-14-2011, 10:22 PM
A couple of other thoughts related to the above post.

Much of our doctrine on COIN is centered on legitimacy, which in itself is a fuzzy term, but from a combatant perspective is legitimacy really the key to success?

While not a fan of the center of gravity concept, it can be useful if we're honest with our analysis. As a source of power, the ability to continue the fight, etc., if the Afghanistan government was considered legitimate by a majority of Afghans would that stop the Taliban from fighting (as many of stated, the Taliban is loose coalition of various militant groups, so more appropriately would it reduce the level of violence to a manageable level?).

On the other hand, if the power brokers in Pakistan felt the government in Afghanistan was legitimate how would that impact the level of violence?

I don't know, but again suspect the COG in Pakistan is more relevant than the population in Afghanistan for reducing the level of violence to a managable level.

Instead of jumping to assumptions, I think we need to ask a lot more questions to shed light on the problem, and then and only then discuss changes of strategy. I agree that our doctrine pushed us further and further down the wrong road, but I bet we disagree on what the right road is. We would probably agree if we had a common understanding of the problem that needs to be solved, and that is where we need to start anew.

Bob's World
08-14-2011, 11:03 PM
Bill,

I think I appreciate where you are coming from, and while it is a reasonable perspective I think a push into Pakistan in an effort to solve Afghanistan would find the same thing we found in Laos and Cambodia: A lot of targets to destroy, and perhaps are follow-on lull as the insurgency is forced to drop from a high Phase II back down into Phase I for a while as it recovers, and then surges back again stronger than ever. The bonus in Pakistan is that in launching into a nuclear state we risk far greater consequences than the US had to worry about in launching into Laos and Cambodia.

If defeating the insurgent could resolve an insurgency this could work, but I just don't see where any enduring results have come from such actions. Pakistan's role in this is frustrating to be sure, but they are not the cause of our problems. If we want to find the cause of our problems better we look at our own actions:

1. We disrupt the balance of power, allowing the Northern Alliance to prevail over the Taliban. (I am quite sure that as the Taliban fled into Pakistan they were very confident that the Northern Alliance could never have pulled that off without our help, and that as soon as we left they would come back and re-establish their government.

2. We anointed Karzai to be the leader years before any election took place, and then in a result that the entire world recognized as rigged, Karzai wins that election as well.

3. We oversee the formation of a "central" government that disrupts traditional systems of patronage; and guide the development of a constitution that says all the right things, but does all the wrong things, vesting all patronage nationally into that one man who we had anointed and elevated to lead Afghanistan.

4. We then dedicate ourselves to the defense of this government we had created and set out in earnest to force the people of Afghanistan to submit to its rule.

All Pakistan ever did was employ a shared Pashtun populace to maintain a degree of influence over Afghanistan, and quite reasonably supported a Taliban government that also drew its support from that same populace base in both countries.

No, to launch an attack into Pakistan in an effort to "win" might make our egos feel better for a while, but it would not be the best thing we could do for the people of this region.

To just walk away and let it sort out naturally would be less bloody and more durable.

To stay with a focus shifted to building and enforcing trust trust between the two sides may prove to be an exercise in futility, but it is far better than to simply stay and help one side beat up on the other. But first we must change how we think about these things.

Bill Moore
08-15-2011, 12:21 AM
While not ruling it out, I am not advocating attacking Pakistan, but rather reexaming the so called center of gravity. I don't think it is the Afghan people, I think it is the power brokers (not necessarily the civilian government) in Pakistan.

I'm not offering a solution, only suggesting we're focusing a lot of effort on the wrong problem, which will likely be a waste of national treasure when we finally realize it isn't working. If we can't address the real problem because the risk versus gain isn't worth it, then maybe pulling out (with several caveats) is the right course of action, but that is a hard and painful decision to make since we have committed so much to date. Pride influences our decisions more than facts, so whatever the new course of action is it will need to address both the facts and our national pride.

Bob's World
08-15-2011, 02:29 AM
I don't know if its a COG or a POB (Point of Blame), but I say shift the focus to the conduct of a Constitutional Loya Jirga with full participation by both sides of this little fracus in attendance (with safety guaranteed by ISAF and no one being deemed "beyond the pale" by ISAF or GIRoA). This is political. Fix the politics and the rest will fall in place. As to ISAF they need to transition to a role of keeping both sides honest for some period of time, and then fade away altogether.

AdamG
08-17-2011, 04:36 AM
Somewhat related -

At the outset of the Civil War, neither the Union nor the Confederacy had a centralized military intelligence department — and yet the need for information on enemy troop movements, political developments and even simple things like geography was immediate. In the breach, they turned to a motley crew of amateur spies who were as untrained and untested as the soldiers who met on the early battlefields at Bull Run and Wilson’s Creek.

Despite the equally jumbled espionage operations in the North and the South, the Confederacy had several advantages. Even before the South seceded, secessionists had established spy rings in Washington, a hotbed of southern sympathizers, which gave them access to vital information at some of the highest levels of government. The South also benefitted from the stream of critical intelligence that came its way from the many former Union officers who swore their allegiance to the South after secession. And while the Union faced an enemy with a loosely assembled government still in its infancy, the Confederacy opposed an established and well-known target.

http://opinionator.blogs.nytimes.com/2011/08/15/the-unions-spy-game/?src=un&feedurl=http%3A%2F%2Fjson8.nytimes.com%2Fpages%2Fo pinion%2Findex.jsonp

Pete
08-19-2011, 03:24 PM
In 1995 our Civil War Roundtable in Frederick, Maryland heard a presentation on W.T. Sherman and the Law of Land Warfare. The guy who gave the lecture was a JAG O-5 from HQDA who was wearing his dress greens when he spoke to us. He said he was from South Carolina or Georgia and that he had spent much of his JAG career working with Special Forces.

He told us he had given many talks to foreign officers and NCOs on the Law of Land Warfare when he accompanied SF training teams overseas, adding that most foreign military personnel had expressed admiration for how the U.S. armed forces play by the rules, Then he said there was a notable exception to that reputation in American military history, the case of William T. Sherman.

“Does this look like a crazy man or not?” he asked, flashing a photo of Sherman on the screen. From there it was all downhill, a sordid tale of rapine, pillage and plunder. It made the guy’s wearing of dress greens a bit unseemly to say the least. It made one wonder whether the lecture was the official position Of the U.S. Army.

Grant’s instructions to Sheridan on how to scorch the Shenandoah Valley in 1864-65 and Sheridan’s guidance to his army implenting it are in about the same league as Sherman. The idea was to make the Valley inhospitable to Jubal Early & Co. and to destroy the "Granary of the Confederacy."

Rifleman
08-19-2011, 04:16 PM
Grant’s instructions to Sheridan on how to scorch the Shenandoah Valley in 1864-65 and Sheridan’s guidance to his army implenting it are in about the same league as Sherman. The idea was to make the Valley inhospitable to Jubal Early & Co. and to destroy the "Granary of the Confederacy."

IIRC, The Duke and Sergeant-Major Quinncannon (Victor McLaglen) had rode down the Shenandoah together and burned The Duke's wife's plantation. Maureen O'Hara's character was holding a bit of a grudge about that.

Bob's World
08-19-2011, 04:20 PM
As Lincoln said when Grant laid out his plan, "Those not skinning can hold a leg."

While the majority position is that Meade was the one skinning and Sherman one of several "holding a leg" I suspect that it might well have been the other way around. That Sherman, the most trusted Lieutenant with the most trusted Army was the one skinning (“You I propose to move against Johnston’s army, to break it up, and to get into the interior of the enemy’s country as far as you can, inflicting all the damage you can against their war resources.")

And it was the less trusted Meade and Army of the Potomac, closely supervised by Grant personally, (“Lee’s army is your objective point. Wherever Lee goes, there you will go also.” ) that was holding a leg.

Defeating Lee's army was an essential task; but the most critical task was arguably Sherman's to execute. I think this is one reason why to this day it is also the most controversial aspect of that long and bloody war. I think Southerners understand inherently that it was not the capture of Richmand or the defeat and subsequent surrender of the Army of Northern Virginia that defeated them, it was the hard, cold realization of Sherman's march that "The South" as a whole was defeated as well.

When an undefeated Germany Army marched home to an undefeated German populace at the end of WWI I suspect that both Grant and Lincoln would have offered that "this isn't over yet..."

slapout9
08-19-2011, 05:17 PM
Sherman new Strategy=Targeting and to do it right you need a map of the System. He had special Tax map made of Georgia showing the Richest people and the richest counties in Geogia and then in proper Military fashion Uncle Billy made em howl!!

Pete
08-19-2011, 06:24 PM
I imagine that the French and Indian War presented a lot of moral dilemmas for those who wanted to adhere to the so-called "Usages of War" that were generally accepted in Western Europe at the time. They were for organized armies fighting on the plains of Flanders, dress-right-dress and close it up, dress and cover. Wilderness fighting in America between two races was much more vicious and unforgiving.

During that war Col. Washington had to send a platoon up from his 1st Virginia Regiment to investigate the massacre of a family in the village where I live. The family was dead and just like in Vietnam the wily VC had once again gotten away. On the tactical level war in the raw leads men to do what works, not what abstract moral codes tell them to do. Some things are beyond the pale -- death camps and massacres -- but I imagine battlefield situations challenge accepted notions of right and wrong.

Pete
08-19-2011, 08:06 PM
Thomas "Stonewall" Jackson had such limited social skills that today some would think he was autistic or somewhere on the autism spectrum, like Alan Turing at Bletchly Park. John S. Mosby shot the the town bully in Charlottesville, Virginia when he was a student there at the University of Virginia in the 1850s. At the time Mosby weighed 110 pounds and the bully was 200. They said Sherman was insane and Grant was a drunk.

The modern-day selection standards for serving as an officer would have filtered out many of the finest combat leaders of the Civil War. When one lists the essential qualities of being a combat leader being a nice guy is nowhere on anyone's list of the top ten attributes.

Rifleman
08-19-2011, 11:28 PM
This is a broad generalization, but:

History is written by the victors; so war criminals are only on the losing side.

Look at the two famous green dragoons from an earlier war: Banistre Tarelton and Henry Lee.

One account of the "Waxhaws Massacre" says Tarelton had a horse shot out from under him during the initial attack. His troops saw their commander go down and went wild. They cut down men trying to surrender before Tarelton could remount and get them under control. So Tarelton is remembered for "Tarelton's Quarter" which is to say no mercy.

Lee's Legion wore green uniforms similar to Tarleton's British Legion. They once overtook some Loyalists by surprise who thought Lee was Tarelton until the last minute. An incident similar to Waxhaws happened with Lee's men out of control and cutting down men who may have been trying to surrender. And Lee didn't have the excuse of trying to remount and gain control of troops that thought their commander had gone down. Historian Robert Bass commented, "The quality of Lee's mercy here was far worse than Tarleton's at the Waxhaws."

These two men seem to have been strikingly similar in many of their experiences and operational methods. Yet, "Bloody Ban" is remembered as a villain and "Light Horse Harry" as a hero.

Pete
08-20-2011, 05:49 PM
From there it was all downhill, a sordid tale of rapine, pillage and plunder.
When I attended Fort Benning OCS in 1977 one of the instructors who spoke to us in Infantry Hall had a humorous Vu-Graph slide about the ideal TO&E for an Infantry division. He pointed out the little box on the organizational chart showing the authorized personnel and equipment for the Rape, Pillage and Plunder Section -- one Major, one Master Sergeant, and one Truck, Utility, Utility, One-Quarter Ton, 4x4, M151A1, with Equipment. :eek:

ganulv
08-24-2011, 01:58 PM
http://farm7.static.flickr.com/6067/6076519154_3557355f35.jpg (http://www.flickr.com/photos/mtbradley/6076519154/)http://www.flickr.com/photos/mtbradley/6076519154/http://flic.kr/p/afXKrC

jmm99
07-30-2013, 07:32 AM
by John Fabian Witt (Amazon (http://www.amazon.com/dp/1416569839); used hardcover, like new, under $3 + $4 ship).

Snips from Lawfare book review by Steve Neff (http://www.lawfareblog.com/2013/06/lincolns-code-the-laws-of-war-in-american-history-2/):

Of all the images that George Washington conjures up in the minds of Americans, surely that of war criminal must be the least likely. Yet this remarkable book begins with an account of charges levelled against Washington as a result of conduct in the French and Indian Wars in 1754. Specifically, the allegation was complicity on Washington’s part in the killing of a non-combatant in the course of an attack on a French detachment – a charge that Washington even admitted to (although he soon contended that the admission was inadvertent). In his later career as the leader of the American Revolutionary armies, Washington would take scrupulous care to become, in Professor Witt’s words, “the living embodiment of the Enlightenment way of war.”

The book proceeds to treat the way in which that Enlightenment way of war, as expounded most famously by the Swiss writer Emmerich de Vattel in 1758, evolved over the period from the late Eighteenth Century to the First World War. The book’s title therefore rather understates the range of material covered, since the Civil War section is only the middle part of three, comprising about half the book. It is a fascinating story, told with style and a steadily critical eye.

Detailed attention is especially given to two vital issues that presented themselves with special force in the frontier conditions prevailing in America in the late Eighteenth Century. The first was the presence of slavery, and the many ramifications that it was to have. ... The second problematic issue was unconventional warfare.
...
The challenges posed by unconventional warfare were also constantly at hand. As American settlement expanded relentlessly southward and westward, struggles against Indian tribes became common. And the view was widely held – not least by the redoubtable lawyer-cum-frontier warrior Andrew Jackson – that Indians were not entitled to the benefits of the Enlightenment way of war, since they refused to abide by its constraints. Jackson, as so often, proved as good (or bad) as his word. Where he encountered serious political trouble, though, was not in his treatment of Indians, but in his robust handling of two British nationals accused of inciting and aiding Indian enemies during Jackson’s Florida campaign. They were tried by a hastily organized military commission, found guilty, and executed in 1818.

Unconventional warfare also became an important, and highly troublesome, feature of the Mexican War of 1846-48, as Mexico began to rely on guerrilla forces in the wake of the repeated defeats of its conventional armies in the field. In response, General Winfield Scott made the first systematic use in American history of military commissions (or “councils of war,” as they were called) to try captured enemy troops for violations of the laws of war – and also to deny combatant status to guerrilla fighters.

In the Civil War, guerrilla warfare again became a feature of the hostilities, alongside familiar conventional clashes between regular armies. In this conflict, Francis Lieber, a German immigrant political scientist and international lawyer, made his famous contribution in the form of the Lieber Code. But he also made a less known, and highly important, second contribution to the Union cause: the exposition of the law on unconventional warfare. ...
...
If the Civil War finally ended the slavery issue, the problem of unconventional warfare continued to be very much alive, first on the western frontier in North America, and then in the Philippines in the years following the Spanish-American War of 1898. In these situations, the problem, in Witt’s view, is that the sense of the overwhelming justice of the Union cause in the Civil War – i.e., the extirpation of slavery – was no longer present. But the permissive approach to military necessity that suffused the Lieber Code nonetheless remained part of the American approach to the laws of war. In this sense, the longer term legacy of the Lieber Code may well have been more malign than is generally appreciated. The story that Witt tells, in short, is certainly not a triumphalist one.

Precedents set in the Mexican and Civil Wars continued to be applied in these later conflicts. In the Indian wars, trials by military commission were employed, resulting in death sentences in a number of cases. In the Philippines, the lawfulness of torture for the extraction of key information came to be a highly controversial issue. At least five American soldiers were placed on trial for engaging in the practice. The most notable was Major Edwin F. Glenn, who was also a lawyer. He was convicted, though with only a light sentence imposed. Remarkably, Glenn went later became the chief author of the United States’s manual on the laws of war of 1914, in which heavy reliance was placed on the earlier Lieber Code.

More in the book review and much more in the almost 600 page book.

Regards

Mike

Infanteer
07-31-2013, 02:22 PM
Sounds like 600 pages of "Perspective Fail".

jmm99
07-31-2013, 07:01 PM
Not this I hope.

https://i.chzbgr.com/maxW500/5159438848/hD2A3D1B0/

But then, each has one's own perspective, doesn't one ?

Regards

Mike

jmm99
08-01-2013, 03:29 AM
I'm beginning to like this topic more and more - as it becomes less and less "legal" in its essence. Its essence consists of history, persons, politics, policies and strategies, centered on the civilian-miltary interface that developed General Orders, No. 100 (aka Lieber Code).

BLUF: This 3.5 min video by John Witt, The Great Forgotten Character of the Civil War (http://videos.simonandschuster.com/The-Great-Forgotten-Character-of-the-Civil/1832585411001), sums up his arguments.

All of Witt's videos (as well as some publications) are linked at Lincoln's Code: Related Audio/Video (http://documents.law.yale.edu/lincolns-code/audio-video).

The three best video lectures by John Witt on Lincoln's Code (each is about a hour) are these three: Book Talk with Professor John Fabian Witt: Lincoln's Code: the Laws of War in American History (http://vimeo.com/58121772) (Yale Law School); Lincoln's Code: The Laws of War in American History (http://www.youtube.com/watch?v=GwjQK5LZM_Q) (Library of Congress); and Lincoln's Code: The Laws of War in American History (http://www.youtube.com/watch?v=Hyld-wCiRPo) (Duke Univ.).

Looking at the civilian-military interface according to Witt, we have three components:

1. The Civilians, who were Lincoln, Stanton and Seward in major roles.

2. The Civilian-Military Interface was Lieber.

Lieber, as a young soldier, was badly wounded in Belgium, chasing after Bonaparte. He left Prussia because of his liberal leanings in the 1820s. Lieber was informed by practitioners, who were also theorists and teachers: Machiavelli (http://www.amazon.com/The-Art-War-Niccol%C3%B2-Machiavelli/dp/030681076X) (e.g., The Art Of War ; see also The Discourses and The Prince on the same Amazon page), Frederick the Great (http://www.amazon.com/Frederick-Great-Art-War/dp/B0007HK3FS) (e.g., Luvaas, Frederick the Great on the Art of War), Clausewitz (http://www.amazon.com/War-Carl-von-Clausewitz/dp/0691056579) (e.g., Howard & Paret trans., On War).

Note that Lieber's ideological trajectory was different from the trajectory that led to the International Humanitarian Law currently accepted in the EU: from Vattel ("Father Namby Pamby" in Lieber's words) through Kant (to sum Lieber's opinions, a "closet pacifist") to the "ICRC Community" (the European Conventions and Red Cross from the last half of the 19th century, the League of Nations, the UN, etc.).

3. The Reviewing Panel. Of these general officers, a majority had legal educations, but they were primarily soldiers and secondarily lawyers. The chief example was Henry Halleck (West Point, 3rd in class; like Sherman, he practiced law as a minor part of his life). Halleck wrote two major treatises:

Elements of military art and science, or, Course of instruction in strategy, fortification, tactics of battles, &c. : embracing the duties of staff, infantry, cavalry, artillery, and engineers : adapted to the use of volunteers and militia (https://ia600306.us.archive.org/20/items/elementsofmilita00hallrich/elementsofmilita00hallrich.pdf) (1861; 492pp)

This treatise reflected Halleck's study of Jomini, well before the US publication of The Art Of War (http://www.amazon.com/Art-War-Antoine-Henri-Jomini/dp/1165049422) (1862 Eng. trans). Jomini, a practitioner, who also a theorist and teacher.

International law, or, Rules regulating the intercourse of states in peace and war (https://ia600405.us.archive.org/30/items/internationallaw00hall/internationallaw00hall.pdf) (1861; 958pp.)

This treatise very much reflected Halleck's views, as its preface states:

During the war between the United States and Mexico, the author, while serving on the staff of the commander of the Pacific squadron, and as Secretary of State of California, was often required to give opinions on questions of international law growing out of the operations of the war. As it was sometimes difficult or impossible to procure books of reference, except in the libraries of ships of war which occasionally touched at the ports of the northern Pacific, he commenced a series of notes and extracts, which were arranged under different heads, convenient for use. The manuscript so formed has been occasionally added to as new books were procured, and it is now given to the press, with the hope that it may be found useful to officers of the army and navy, and possibly, also, to the professional lawyer. With this view, a number of authorities are referred to at the end of each paragraph. It is proper to remark that these authorities are not quoted in support of the views expressed in the text, for they are sometimes directly opposed to the opinions so expressed. They will, however, be found to contain something upon the questions discussed, or upon matters immediately connected with them.

Halleck and Lieber had no substantial legal disagreements.

Weigley's two books: The American way of war;: A history of United States military strategy and policy (http://www.amazon.com/The-American-way-war-military/dp/B0006C503E) (The Wars of the United States); and History of the United States Army (http://www.amazon.com/History-United-States-Army-Macmillan/dp/B0007DPKU0) (Macmillan Wars of the United States) (The Wars of the United States), should be useful background to the 18th and 19th century period covered by Witt's book and lectures.

BL: Witt's book takes us from the Limited War of the 18th century and early 19th century (i.e., limited to the battlefields, and generally avoiding civilian populations) to the Total War of the later 19th century (e.g., Sherman's Marches in Georgia and the Carolinas) and the World Wars.

- to be cont.

jmm99
08-01-2013, 03:52 AM
In following Witt's trail, I ran into two books which seemed too interesting not to order them.

The first deals with the Limited War construct of the the 18th century and early 19th century - a video and the book itself.

Book Talk with Professor James Q. Whitman: The Verdict of Battle: the Law of Victory and the Making of Modern War (http://vimeo.com/58217343) (Yale Law School) (1.5 hrs)

Meet the author, James Q. Whitman, and listen to a conversation about his new book. Today, war is considered a last resort for resolving disagreements. But a day of staged slaughter on the battlefield was once seen as a legitimate means of settling political disputes. James Whitman argues that pitched battle was essentially a trial with a lawful verdict. And when this contained form of battle ceased to exist, the law of victory gave way to the rule of unbridled force. The Verdict of Battle explains why the ritualized violence of the past was more effective than modern warfare in bringing carnage to an end, and why humanitarian laws that cling to a notion of war as evil have led to longer, more barbaric conflicts.

and The Verdict of Battle: The Law of Victory and the Making of Modern War (http://www.amazon.com/The-Verdict-Battle-Victory-Making/dp/0674067142#_) (Amazon)

Today, war is considered a last resort for resolving disagreements. But a day of staged slaughter on the battlefield was once seen as a legitimate means of settling political disputes. James Whitman argues that pitched battle was essentially a trial with a lawful verdict. And when this contained form of battle ceased to exist, the law of victory gave way to the rule of unbridled force. The Verdict of Battle explains why the ritualized violence of the past was more effective than modern warfare in bringing carnage to an end, and why humanitarian laws that cling to a notion of war as evil have led to longer, more barbaric conflicts.

Belief that sovereigns could, by rights, wage war for profit made the eighteenth century battle’s golden age. A pitched battle was understood as a kind of legal proceeding in which both sides agreed to be bound by the result. To the victor went the spoils, including the fate of kingdoms. But with the nineteenth-century decline of monarchical legitimacy and the rise of republican sentiment, the public no longer accepted the verdict of pitched battles. Ideology rather than politics became war’s just cause. And because modern humanitarian law provided no means for declaring a victor or dispensing spoils at the end of battle, the violence of war dragged on.

The most dangerous wars, Whitman asserts in this iconoclastic tour de force, are the lawless wars we wage today to remake the world in the name of higher moral imperatives.

Whitman recognizes, BTW, that one pitched battle did not necessarily lead to a binding result; and that result might be reached only after a series of pitched battles - e.g., the career of Frederick the Great. Moreover, the "verdict" of a pitched battle(s) was not always accepted.

The second book deals with the much longer period before 1701, where warfare resembled Sherman's Marches and then some.

Lauro Martines, Furies: War in Europe, 1450-1700 (http://www.amazon.com/Furies-Europe-1450-1700-Lauro-Martines/dp/1608196097) (Amazon)

We think of the Renaissance as a shining era of human achievementa pinnacle of artistic genius and humanist brilliance, the time of Shakespeare, Michelangelo, and Montaigne. Yet it was also an age of constant, harrowing warfare. Armies, not philosophers, shaped the face of Europe as modern nation-states emerged from feudal society. In Furies, one of the leading scholars of Renaissance history captures the dark reality of the period in a gripping narrative mosaic.

As Lauro Martines shows us, total war was no twentieth-century innovation. These conflicts spared no civilians in their path. A Renaissance army was a mobile city - indeed, a force of 20,000 or 40,000 men was larger than many cities of the day. And it was a monster, devouring food and supplies for miles around. It menaced towns and the countryside-and itself-with famine and disease, often more lethal than combat. Fighting itself was savage, its violence increased by the use of newly invented weapons, from muskets to mortars.

For centuries, notes Martines, the history of this period has favored diplomacy, high politics, and military tactics. Furies puts us on the front lines of battle, and on the streets of cities under siege, to reveal what Europe's wars meant to the men and women who endured them.

Hans Delbruck, History of the Art of War, vols I-IV (esp. vol III (http://www.amazon.com/Medieval-Warfare-History-Art-War/dp/0803265859/) and vol IV (http://www.amazon.com/The-Dawn-Modern-Warfare-History/dp/0803265867)); Philippe Contamine, War in the Middle Ages (http://www.amazon.com/War-Middle-Ages-Philippe-Contamine/dp/0631144692) and Paret, Makers of Modern Strategy (http://www.amazon.com/Makers-Modern-Strategy-Machiavelli-Nuclear/dp/0691027641), to list just three references, seem material (IMO) to the issues raised by Witt, Whitman and Martines, in what amounts to at least six centuries of political and military history.

All in all, these three books seem an outstanding workout in military history.

Regards

Mike

wm
08-01-2013, 01:58 PM
Mike,

At the risk of making a sweeping generalization, the issue is less about when and more about why. In other words, I think that the distinction your sources have noted between European Rennaissance and Enlightenment warfare may have have more to do with the underlying source of conflict. I suspect that a war which is in large part based on a conflict of ideology --Catholicism versus Protestantism in the 30 Years War, for example--will tend to be much more nasty than one which is largely focussed on using force to legitimate a claim to territory or establish one's hegemony--War of Spanish Sucession, Seven Years War, and the War of Austrian Sucession, e.g.
The first three Anglo-Dutch Wars (wars to establish commercial hegemony) belong to the earlier period, yet tended to be pretty civilized. If we move to the 19th Century, compare the nastiness of the Napoleonic Wars and the American Civil War (conflicts of ideologies) to that of the Mexican, Austro-Prussian, Franco-Prussian, and Spanish-American Wars to name just a few examples of territorial land grabs/wars of hegemony.

jmm99
08-01-2013, 07:35 PM
hi wm,

Good to hear again from the "Lunatic Fringe" (was that a consequence of your time spent at that Place on the Hudson ? :D); and see windmill tilting in action. :) What follows is my own windmill tilting - definitely an opinion piece, as to which differences exist as to the opinions.

Seriously, my own generalization is summed in this post's title: one has to look at the "Whys" (and the "Why Nots") before taking facts (to the extent the facts are "known") from one time period and applying them to another period (the "Whens").

Again, generally, one can see (1) the "real" reasons for the conflict; (2) the "real" forms of governance of the parties; and (3) the "real" ideologies of the parties, as factors influencing "What" (Kind of War) we'll see.

The wicked words above are "known" facts, "real" reasons, "real" forms of governance, "real" ideologies, etc. (aka verifiable historical facts, which plague accurate re-enactments of historical events). They particularly plague one who believes (as I do) that the life of the military arts and the legal arts is not logic, but is experience.

Of course, one who is very creative (not my personal bent) can posit (assume) a set of facts, constraints, etc.; and from those create a very logical and internally coherent framework for roleplaying, etc. The danger is that that framework may look great, but fall on its a$$ in practice - in short, articulate incompetence.

The dichotomy between Logic and Experience will always be with us - the wrestling Bull and Bear (of Wall Street) makes a neat symbol.

I see timeframes (the "Whens") as being useful for ordering purposes - and, with respect to the topic at hand, for comparing what was occuring in the military arts in one period with what was occuring in the legal arts of the same period.

Getting back to Jim Whitman and his "Pitched Battle" theory, I came upon an earlier (before his book was published) video lecture, Whitman Delivers Fulton Lecture in Legal History (http://uchicagolaw.typepad.com/faculty/2009/05/whitman-delivers-fulton-lecture-in-legal-history.html) (Chicago Law, 2009). The link has a short abstract of his theory, as well as a 1 hour lecture on it - better than the more recent Yale effort.

My principal argument with Whitman is that he seems to be saying (perhaps his book, when I get it, will clear that up) that the legal arts drove the military arts in the "era" of "Verdict by Battle". Generally, my argument is that the opposite is (should be) the norm - military law should be driven by the military arts. Yes, politics and policies also enter into that fray.

Regards

Mike

wm
08-02-2013, 01:28 PM
So many opportunities to comment in your last post, but I will limit myself to two:

The wicked words above are "known" facts, "real" reasons, "real" forms of governance, "real" ideologies, etc. (aka verifiable historical facts, which plague accurate re-enactments of historical events). They particularly plague one who believes (as I do) that the life of the military arts and the legal arts is not logic, but is experience.
History as re-enactment is central to the work of R.G. Collingwood, a philosopher who was also a practicing archeologist and historian of Roman Britain. However, his view of re-enactment is not simply what you may have seen had you been at Gettysburg at the beginning of this past July. He is rather obtuse in his description, but you might want to look at The Idea of History in your spare time.


My principal argument with Whitman is that he seems to be saying (perhaps his book, when I get it, will clear that up) that the legal arts drove the military arts in the "era" of "Verdict by Battle". Generally, my argument is that the opposite is (should be) the norm - military law should be driven by the military arts. Yes, politics and policies also enter into that fray.

I tend to agree with you here. In fact, I think that this is analogous to what Thomas Kuhn had to say about paradigm shifts. Collingwood also has something to say about it in his discussions of metaphysics and philosophical method. 'Method', by the way, can also be replaced with 'logic' on at least one interpretation of the meaning of 'logic.'

I suspect that quite often we have changes in what we do (practice or, in the present context, military art) that occur quite unreflectively. After the fact, one may start to analyze the new practice and attempt to explain its efficacy (or lack thereof), which is the formation of the theory. In other words, theory may be logically prior to practice, but practice is quite often temporally prior to theory.
As an example, let's suppose near the end of a given campaigning season at some time in the distant past, a victorious commander decides to billet his army in the captured city rather than razing it, as was the prior custom. He discovers that he and his army have benefitted as a result (easier to keep campaigning, looting and pillaging next season because he still has his army at hand, perhaps). Based on this exerience, a new rule of conduct (military "law") is promulgated: "Do not destroy captured cities." (BTW, I doubt that just a single instance will suffice.) The final step would be for some legal theorists to generalize this new legal construct by mapping the law to a theory or building a new theory as to why not destroying captured cities instantiates some value of much broader application--like a right of innocent people to be safe in their property and possessions. Interestingly, to me at least, the original pragmatic motivation--the commander's desire to be able to start his next campaign sooner-- (if one existed at all) has been lost in the process.

Dayuhan
08-03-2013, 01:11 AM
Given the "small wars" focus here, it might be interesting to expand the "Was ___ a war criminal" to the Native American Wars, and to the American conquest of the Philippines.

Was Howlin' Jake Smith a war criminal?

A matter, perhaps, for another thread...

jmm99
08-03-2013, 03:02 AM
hi wm,

I've not read Collingwood; I've read about Collingwood - and some snips. My impression is that he was willing to go well beyond what the five senses register and explore what was in the minds of the historical actors. In short, he looked to the facts and to the "facts".

My example of "re-enactment" to illustrate my usage (probably superficial in philosophical terms) is based on the Scopes case (complete transcript (http://www.amazon.com/Worlds-Most-Famous-Court-Trial/dp/1886363315), 339pp.). First, you are Darrow as you read, and understand, the seven day transcript; next you are Bryan as you repeat the process. Since the Darrow-Bryan examination is the highlight (in reality, it was outside the presence of the jury), you'd repeat the being-Darrow and being-Bryan processes for that part of the transcript (only 20pp.).

A bit of imagination, intuition and fuzzy logic helps in re-enacting the drama. I have to admit that I've watched Inherit the Wind (http://en.wikipedia.org/wiki/Inherit_the_Wind_(1960_film)) (which is an historical event different from the Scopes trial) multiple times. So, I probably have suffered something of a "Kuhnian" paradigm shift and conflation of the two events. Am I Clarence Darrow or Spencer Tracy ? :confused:

I love your example of paradigm shift. In my non-philosophical terms, it sums to me as:

Rule of Conduct: Do not destroy captured cities.

"Real" Reason ("motive", "cause") for Rule: With army garrisoned in the captured and intact city, it's easier to keep campaigning, looting and pillaging next season.

"Received" Reason (by theorists, probably intent on doing "good") for Rule: The right of innocent people ("civilians"; but are all of them "innocent" ?) to be safe in their property and possessions.

Nice, on-point example of Spartan simplicity.

Holmes, in his Common Law - 6th Lecture (http://www.constitution.org/cmt/owh/commonlaw06.htm), made the same point in more verbose fashion. The basic issue was why do we take "possession" into account in property disseisin cases, rather than directly addressing "ownership" (which after all is the ultimate question). Kant and various other high-powered theorists came up with constructs based on freedom, liberty, free will, etc., as the reason(s) to look at "possession" as an initial issue. The real reason (in English Common Law) was simply practical. Different writs existed to try "possession" vs "ownership". The "possessory" writs were newer (trial by a form of jury, rather than trial by battle), more flexible (many different types of situations were covered), quicker (fewer trial delays were allowed) and settled most of the cases anyway.

Hugh Everett (http://www.amazon.com/The-Everett-Interpretation-Quantum-Mechanics/dp/0691145075) made this point about verifying a theory by its capacity to generate a predicted experience, which accords with a subsequent actual experience (pp.253-254):

A crucial point in deciding on a theory is that one does not accept or reject the theory on the basis of whether the basic world picture it presents is compatible with everyday experience. Rather, one accepts or rejects on the basis of whether or not the experience which is predicted by the theory is in accord with actual experience.

Everett then used the Copernican theory (which is complete enough to allow the deduction that the Earth's inhabitants will not feel its motions, spin and path around the sun). He asked: "Do you feel the motion of the Earth ?"

To me, Everett makes a good point.

Regards

Mike

jmm99
08-03-2013, 03:30 AM
Hi Steve,

I agree. I'd suggest using this thread. The events in the Indian Wars and P.I. were subject to the Lieber Code and Articles of War - discussed above in this thread. To the extent that the military practices were "scorched earth", they fit the concept of "Total War" we've been discussing.

I'd suggest a change of the thread title to the title I've used for this post. If a mod would feel so inclined ...

I used "General X" simply to emphasize that the issue is one of command responsibility. However, the amended thread could include lower grade field officers. For example, you, I and Polarbear1605 had a pretty good conversation about Tony Waller (then a Maj.) being guilty or not guilty of war crimes.

Command responsibility became a bigger issue after WWII - e.g., Gens. Yama$hita and Homma; and continues to be on the front burner of the "ICRC Community".

So, if you can take a little break from hooking those huge bass :), frame an indictment of Howlin' Jake Smith.

Regards

Mike

davidbfpo
08-03-2013, 09:23 AM
This thread's title 'Was William T. Sherman a war criminal?' which covered this thread's discussion, but in August 2013 it became a wider topic and JMM99 suggested we retain this thread to discuss what is now called 'Command Responsibility and War Crimes: general discussion' (ends).

Dayuhan
08-04-2013, 02:02 AM
So, if you can take a little break from hooking those huge bass :), frame an indictment of Howlin' Jake Smith.

An indictment must already exist, somewhere, as Smith was tried by court martial, for the crime of "conduct to the prejudice of good order and military discipline". He was found guilty; the court recommended that he be admonished.

Smith's case is widely cited, largely because it was formally investigated and formal evidence was obtained, both during Maj Waller's trial and Smith's own trial. The specific orders that became items of contention were the order to "kill and burn", the instruction to take no prisoners, and the designation of anyone over 10 years of age as capable of bearing arms. These orders were established by the testimony of Maj Waller and other witnesses. Whether those orders would justify prosecution for war crimes, rather than for "conduct to the prejudice of good order and military discipline", I'm not qualified to say.

In many other cases the evidence is not sufficient to establish a retrospective "verdict" in any legally satisfactory state. Certainlyu there are enough surviving accounts to establish that torture was widespread, and that prisoners and the wounded were systematically executed. Frederick Funston, among others, is described in various accounts as having specifically ordered the killing of prisoners.

This quote, from a Major Cornelius Gardener, the Army's Provincial Governor of the Tayabas province (1902) always struck me as alomost "pop-centric", and an echo of views to come...


"Of late by reason of the conduct of the troops, such as the extensive burning of the barrios in trying to lay waste the country so that the insurgents cannot occupy it, the torturing of natives by so-called water cure and other methods, in order to obtain information, the harsh treatment of natives generally, and the failure of inexperienced, lately appointed Lieutenants commanding posts, to distinguish between those who are friendly and those unfriendly and to treat every native as if he were, whether or no, an insurrection at heart, this favorable sentiment above referred to is being fast destroyed and a deep hatred toward us engendered.

The course now being pursued in this province and in the Provinces of Batangas, Laguna, and Samar is in my opinion sowing the seeds for a perpetual revolution against us hereafter whenever a good opportunity offers. Under present conditions the political situation in this province is slowly retrograding, and the American sentiment is decreasing and we are daily making permanent enemies."

War crimes? You're the lawyer. Bad policy? Retrospectively, maybe not, as the "permanent enemies" did not in fact appear. Thrashing the enemy into submission, as we've seen in Sri Lanka much more recently, is effective, if you can do it.

Clips of a period document, just out of interest:

http://i22.photobucket.com/albums/b329/dayuhan/Capture1.jpg (http://s22.photobucket.com/user/dayuhan/media/Capture1.jpg.html)

http://i22.photobucket.com/albums/b329/dayuhan/Capture2.jpg (http://s22.photobucket.com/user/dayuhan/media/Capture2.jpg.html)

http://i22.photobucket.com/albums/b329/dayuhan/Capture3.jpg (http://s22.photobucket.com/user/dayuhan/media/Capture3.jpg.html)

A wider indictment, also of the period, can be found here:

http://en.wikisource.org/wiki/Secretary_Root%27s_Record:%22Marked_Severities%22_ in_Philippine_Warfare

These certainly involved some cherrypicking, but are not without interest:

http://historymatters.gmu.edu/d/58/

I would be interested to see a serious study comparing attitudes toward these matters in "peer conflicts" such as the civil war and in wars fought against "savages", widely viewed at the time as being essentially members of another species. From the US perspective that would mean the Native American wars and the Philippine-American War... maybe Steve Blair could provide some cases from he former. Certainly any such examination could also look at Europe, and compare attitudes and practices prevalent in conflicts among Europeans with those pitting Europeans against Kipling's "lesser breeds without the law".

ganulv
08-04-2013, 03:05 AM
I would be interested to see a serious study comparing attitudes toward these matters in "peer conflicts" such as the civil war and in wars fought against "savages", widely viewed at the time as being essentially members of another species. From the US perspective that would mean the Native American wars and the Philippine-American War... maybe Steve Blair could provide some cases from he former. Certainly any such examination could also look at Europe, and compare attitudes and practices prevalent in conflicts among Europeans with those pitting Europeans against Kipling's "lesser breeds without the law".

Colonel Chivington at Sand Creek comes to mind.

jmm99
08-04-2013, 03:23 AM
for two reasons:

1. Whether or not to do something (commission), or not do something (omission), is a decision that has to be made by the military officer, or by the civilian official (war crimes applies to the entire chain of command, military and civilian), because that officer or official is the one who will get fried.

2. Lawyers' opinions in this area are not reliable because they vary all over the map - e.g., consider the range of lawyerly opinions about the drone strikes, and the range of opinions by investigators regarding the material facts.

BTW: I'm a retired gentleman, not the SWC lawyer; and I'd like to see some comments (and research) from others. The rest of your post was OK in that regard. I can do without $hit like: "You're the lawyer." No, I'm not. I also have no particular personal interest in prosecuting or defending Smith.

Regards

Mike

PS: later, I'll add a couple of black-letter bits, only as background.

Dayuhan
08-04-2013, 03:45 AM
I can do without $hit like: "You're the lawyer." No, I'm not. I also have no particular personal interest in prosecuting or defending Smith.

I didn't intend to suggest that you'd have an interest in either defending or prosecuting him, only to acknowledge that while I've an interest in the history, I have little or no capacity to determine whether any of these actions or events were or were not compliant with the codes and practices of that time. On that score your opinion would mean a good deal more than mine.

ganulv
08-04-2013, 04:17 AM
2. Lawyers' opinions in this area are not reliable because they vary all over the map - e.g., consider the range of lawyerly opinions about the drone strikes, and the range of opinions by investigators regarding the material facts.

There are so-called opinions that are unsupported assertions and there are so-called opinions supported by evidence. Any one of the former is just as good as any other of the former. The same can’t be said about the second category.

One could argue that it’s turtles all the way down and that all evidence is only so-called and assertional. That’s too Ingsoc for my tastes, though.

jmm99
08-04-2013, 07:03 AM
Regards

Mike

jmm99
08-04-2013, 07:39 AM
If you are prosecuted for war crimes, your prosecution will hinge on the rules which you can find in ICRC Customary IHL, Chapter 43 - Individual Responsibility (http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter43).

You will not, of course, be prosecuted by the ICRC - but in a military or civilian court of your own country, another country claiming universal jurisdiction or an international court. These are basically pro-prosecution rules; so any competent prosecutor will use them or something close to them. According to the ICRC, they are rules set by Customary International Humanitarian Law; and, thus, binding globally.

The quote below has the link to each rule's webpage, and the black-letter rule. In addition, for each rule, the webpage includes an explanatory commentary (of several pages, plus footnotes). The commentaries include various headings - e.g. : Summary of Rule, International armed conflicts, Non-international armed conflicts, Interpretion, Forms of individual criminal responsibility, Individual civil liability, Mitigation of punishment, Manifestly unlawful orders, Unlawful orders, Armed opposition groups, Footnotes. You really have to read all the commentaries to understand the charges against you.

151. Individual Responsibility (http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter43_rule151)

Rule 151. Individuals are criminally responsible for war crimes they commit.

152. Command Responsibility for Orders to Commit War Crimes (http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter43_rule152)

Rule 152. Commanders and other superiors are criminally responsible for war crimes committed pursuant to their orders.

153. Command Responsibility for Failure to Prevent, Repress or Report War Crimes (http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter43_rule153)

Rule 153. Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.

154. Obedience to Superior Orders (http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter43_rule154)

Rule 154. Every combatant has a duty to disobey a manifestly unlawful order.

155. Defence of Superior Orders (http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter43_rule155)

Rule 155. Obeying a superior order does not relieve a subordinate of criminal responsibility if the subordinate knew that the act ordered was unlawful or should have known because of the manifestly unlawful nature of the act ordered.

Our troops are required to correctly apply these rules to the various situations covered by the commentaries - and, if they don't happen to have a lawyer at their elbows, tough $hit (ignorance of the law is not a very good defense). I don't think I'm asking too much of SWC members to learn the same rules and commentaries; not freeze like deer in the headlights when legal issues come up; and at least attempt some historical re-enactment as a soldier of that time - who probably (with some exceptions) "had little or no capacity to determine whether any of these actions or events were or were not compliant with the codes and practices of that time."

In re Yama$hita (http://supreme.justia.com/cases/federal/us/327/1/case.html), 327 U.S. 1 (1946), is the classic SCOTUS case on command responsibility. The dissent of Frank Murphy - on the merits of prosecuting Yama$hita - is worth the read; keeping in mind that it was written by a 50-something reserve infantry officer who offered to resign from the Court in exchange for a rifle company in WWII combat. It also has a discussion of the law of war crimes as applied in the P.I. before WWII - which Frank Murphy knew well.

Regards

Mike

Murphy opinion (13pp.) attached.

Polarbear1605
08-04-2013, 04:19 PM
A war crime is a direct command responsibility. Sadly, the country that is best at deflecting that responsibility is the US and its military, specifically its general officers. Was Abu Grab really the responsibility of seven junior Army reservist NCOs? US general officers confuse the LOW (Laws of War) with the ROL (Rule of Law) and they do it for political purposes. The sad part is it undermines their chances for strategic success. The US Marine Corps Commandant is in all kinds of hot water because he did not follow the UCMJ nor the LOW. Instead he went the political route.

http://www.marinecorpstimes.com/article/20130519/NEWS/305190016/Marine-Corps-commandant-legal-staff-targeted-IG-complaint

The senior US military leadership is running a political cover up for bad military strategic policy and thinking. Here is yet another example:

http://www.fayobserver.com/articles/2013/08/01/1273331?sac=fo.local

For any military officer, former, active or retired to place blame on the “lawyers” demonstrates a failure in leadership.

davidbfpo
08-04-2013, 05:08 PM
I am not sure what happened in a number of recent posts, but we meandered away from our normal high standards of respect for each other.
Thank you, now please carry on.

jmm99
08-04-2013, 07:28 PM
Still, the Clint Lorance case was probably not as simple as the newspaper makes it (Lorance being painted as something of a mini-Lt. Calley). I did a bit of Googling and read other accounts of the events which paint quite a different picture. Of course, there may well have been two or more divergent factual accounts before the court members - not unusual in these cases where we have civilians and "civilians", combatants and "combatants".

If I were a member of the court, I would have taken this statement of Lorance very negatively to him (via a number of possible meanings hidden in its ambiguity):

Before he was sentenced, Lorance told the jury he respected the verdict.

"I take full responsibility for the actions of my men on 2 July, 2012," Lorance said.

What the hell does that really mean ? I suspect it was simply a version of the non-apology apology so popular today - and, of which I am growing tired.

In any event, one can't evaluate the Lorance case without the type of data you hooked me up with in the Haditha and Behenna cases - two different results as to "war crimes" - and, of which (the topic of international laws of war) I am also growing very tired.

I guess it gets down to whether international laws of war posts have any value added at all (the higher purpose) and any fun had (the lower purpose). I'll have to ponder that for a bit.

Meanwhile, I've one more set of blackletter rules to put together - Chapter 44 on War Crimes themselves, since I said I'd do that.

Regards

Mike

jmm99
08-05-2013, 03:19 AM
ICRC Customary IHL, Chapter 44. War Crimes (http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44).

Same drill as before: link, blackletter rule, commentary; except the first commentary is much longer (28pp.). They all have to be read to understand the rules' applications.

156. Definition of War Crimes (http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44_rule156)

Rule 156. Serious violations of international humanitarian law constitute war crimes.

157. Jurisdiction over War Crimes (http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44_rule157)

Rule 157. States have the right to vest universal jurisdiction in their national courts over war crimes.

158. Prosecution of War Crimes (http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44_rule158)

Rule 158. States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.

159. Amnesty (http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44_rule159)

Rule 159. At the end of hostilities, the authorities in power must endeavour to grant the broadest possible amnesty to persons who have participated in a non-international armed conflict, or those deprived of their liberty for reasons related to the armed conflict, with the exception of persons suspected of, accused of or sentenced for war crimes.

160. Statutes of Limitation (http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44_rule160)

Rule 160. Statutes of limitation may not apply to war crimes.

161. International Cooperation in Criminal Proceedings (http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter44_rule161)

Rule 161. States must make every effort to cooperate, to the extent possible, with each other in order to facilitate the investigation of war crimes and the prosecution of the suspects.

So much for black-letter rules.

-------------------------------------------
What follows is a more important issue to me, which I have mulled over the last two years; and which I will address candidly.

James Spaight contended in 1911 that:

[T]he International Law of War ... is a quasi-military subject in which no one, in the army or out of it, is very deeply interested, which everyone very contentedly takes on trust, and which may be written about without one person in ten thousand being able to tell whether the writing is adequate or not.

My conclusion is that nothing has changed in a century; the international laws of war are a minimal topic with little value added for most people; and that topic is probably better left to specialized sites such as Lawfare and Opinio Juris, where there is peer review. If I'm wrong, please tell me why.

Regards

Mike

wm
08-05-2013, 12:56 PM
My conclusion is that nothing has changed in a century; the international laws of war are a minimal topic with little value added for most people; and that topic is probably better left to specialized sites such as Lawfare and Opinio Juris, where there is peer review. If I'm wrong, please tell me why.

Mike,

I'll not tell you that you are wrong.
However, I will suggest (as I climb upon my soapbox) that the international laws of war are not a minimal topic. Instead, this a topic that I believe is minimalized by many so that they do not have to deal with the very ugly thing that war is. Perhaps if we were to bring it out into the open even more, people might be less inclined to allow a bunch of jingoist rhetoric or drum-thumping politicians to influence them and allow the Executive to put people (both those in uniform and the innocent civilians that are supposedly being protected) into harm's way without very good reasons. (Maybe such discussion will even raise the standards for what count as very good reasons.) If nothing else, such discussions might be less likely to become exercises in causistry, with many people responding in a way similar to how Dayuhan did earlier in this thread to torque you and Polar Bear 1605 off. (Off my soapbox now, back to re-reading Kant's Perpetual Peace).

jmm99
08-05-2013, 06:53 PM
Kant's Perpetual Peace - better watch it; when you get to "Heaven", Lieber will nip at your ankles for being a "closet pacifist". :D

Regards

Mike

Polarbear1605
08-05-2013, 06:57 PM
I am not sure what happened in a number of recent posts, but we meandered away from our normal high standards of respect for each other.
Thank you, now please carry on.

Standard US Civil War Tactics…find a good piece of high ground (terrain or moral; either works), dig in and let’em come (Fredericksburg, Gettysburg). It is one of those wait until you see the whites of their eyes things. ;)

Polarbear1605
08-05-2013, 07:24 PM
James Spaight contended in 1911 that:

My conclusion is that nothing has changed in a century; the international laws of war are a minimal topic with little value added for most people; and that topic is probably better left to specialized sites such as Lawfare and Opinio Juris, where there is peer review. If I'm wrong, please tell me why.

Regards

Mike

Could not agree more...SECDEF recently ask the Defense Legal Policy Board for an investigation into six questions:

http://www.caaflog.com/wp-content/uploads/20130531-Subcommittee-Report-REPORT-OF-THE-SUBCOMMITTEE-ON-MILITARY-JUSTICE-IN-COMBAT-ZONES-31-May-13-2.pdf

An unsolicited critique recommending that Combat Commanders should follow the LOW vs whatever they are doing now starts with:

"One flaw that manifests itself early in the investigation is the board’s definition of “civilian casualties” defined as “the death, serious injury or abuse of a local national civilian due to the action of US or Coalition forces in a combat environment”. We believe that this definition is entirely too broad and distracts from the LOW (Laws of War) protected status of combatants and noncombatants. In addition, this definition entirely ignores non-combatant casualties caused by enemy actions. Because the SECDEF specifically establishes the scope of this investigation to “military justice in combat zones” that should immediately mean that all definitions should be based on the LOW.
The LOW presents a number of rules and definitions for personnel present in a combat zone. The two main categories are combatants and non-combatants with categories defined for prisoners of war, wounded, spies and others. We must remember that the LOW state:
“Civilian immunity carries with a strict obligation on the part of civilians not to take a direct part in hostilities--they must not become combatants. Taking a direct part in hostilities means engaging in acts of war directed toward enemy personnel or materiel. Civilians who take part in fighting (whether singly or as a member of a group) become combatants and lose their personal immunity.”
The panel’s definition of civilian casualties, therefore, actually extends civilian immunity to enemy combatants (and terrorist) and, as the panel repeatedly states, “especially in COIN operations”. We believe that much of the controversy ricocheting from many of these high profile combat operational death cases is rooted in DOD’s non-adherence to the LOW definitions."

jmm99
08-05-2013, 07:54 PM
no one in this thread has the slightest reason to apologize or make nice for anything. Repeat: no one in this thread has the slightest reason to apologize or make nice for anything.

Bear Post 2: Response (if any) only after reading the 217 page report - and you gripe about me giving you long assignments. :) But first I have to look at a 2-hour movie on Waterloo - "pitched battles" and all that, old boy. ;)

Regards

Mike

wm
08-05-2013, 08:17 PM
Kant's Perpetual Peace - better watch it; when you get to "Heaven", Lieber will nip at your ankles for being a "closet pacifist". :D

Regards

Mike

I acknowledge the strength of your title's "perhaps"
As to Kant and Perpetual Peace:
One thing in Kant that I like a lot is his notion of a regulative ideal. It is something we probably cannot attain, but ought to strive for anyway. I think Perpetual Peace is such a regulative ideal.
And my reason for posting my comment may well be summed up in the following short poem from the Danish polymath who was the inventor of the SOMA Cube (http://en.wikipedia.org/wiki/Soma_cube)

Only hoping

Only hoping isn't what
Gives us strength to cope
Let us only hope; but not
only only hope.

Polarbear1605
08-05-2013, 08:32 PM
no one in this thread has the slightest reason to apologize or make nice for anything. Repeat: no one in this thread has the slightest reason to apologize or make nice for anything.

Bear Post 2: Response (if any) only after reading the 217 page report - and you gripe about me giving you long assignments. :) But first I have to look at a 2-hour movie on Waterloo - "pitched battles" and all that, old boy. ;)

Regards

Mike

and when you get done with that I will send you our 36 page critique ;)

Steve Blair
08-05-2013, 09:06 PM
I would be interested to see a serious study comparing attitudes toward these matters in "peer conflicts" such as the civil war and in wars fought against "savages", widely viewed at the time as being essentially members of another species. From the US perspective that would mean the Native American wars and the Philippine-American War... maybe Steve Blair could provide some cases from he former. Certainly any such examination could also look at Europe, and compare attitudes and practices prevalent in conflicts among Europeans with those pitting Europeans against Kipling's "lesser breeds without the law".

You can also find some examples from the U.S. interventions in the Caribbean during the inter-war period. Haiti springs most quickly to mind, but there are others.

Dealing with the Indian Wars, there are a number of factors that come into play. Chivington was never held to account for a number of reasons, one of which was his status as an officer of volunteers (putting him beyond the reach of military justice). That was actually one of the arguments against using those troops on the frontier (made before the Civil War, so it wasn't a result of post-War second thoughts). The Marias River massacre in 1870 was another example...one that effectively destroyed the plan to shift control of the reservations to the Army and led to Grant's "Peace Policy." Major Baker, commander of the forces that attacked a Piegan band camped near the river, was a known drunkard but was never charged. There is also the strong possibility that the camp he attacked was intentionally misidentified as hostile by a scout who had connections to the band Baker was supposed to be hunting. A final example is the Camp Grant Massacre, carried out by both natives and citizens in 1871 near Tucson, AZ. No real charges resulted from Camp Grant, even though it sparked a major Indian war in the area. Territorial politics played a role, of course, but it should also stand as a stain on George Crook (often proclaimed as the Indian's one true friend) that he did nothing to bring the perpetrators of the attack to justice and instead worked indirectly with them to discredit the officer (a Lieutenant Whitman) who had established the camp and was trying desperately to keep the peace in the area.

The attitudes of Army officers towards the Indians is a fairly complex question, and varies greatly depending on which officer you're considering. Some were realistic enough to understand what was happening, some hated the Indians, others were indifferent. Many blamed the Indian Bureau and local civilians for Indian troubles. I don't know that there was one overall "view" held by Army officers of their opponents.

An interesting point of comparison might come from looking at the conduct of volunteer forces in places like Eastern Kentucky or the Kansas-Missouri border region during the Civil War. Clearly peer-on-peer, and at times kin-on-kin, but the fighting there was often far more ruthless than that encountered on the plains. Some of the Indian conflicts (such as the Army's prolonged pursuit of the Nez Perce in 1877) were almost conventional affairs, and certainly more "civilized" than what went on in western Missouri and parts of Eastern Kansas during the Civil War and before.

jmm99
08-06-2013, 02:29 AM
The following excerpt is lovely, ironic black humor (to my now admittedly warped sensibilities):

p.131, fn 170

One issue that the Subcommittee discussed was whether the Article 32 investigating officer should be a judge advocate or other officer. ... GEN Chiarelli referenced investigative efforts after Haditha: “in order to understand why we shot and why we didn’t shoot, you got to have somebody down there to understand what it’s like to have to make those decisions, and not all our lawyers have had to make those decisions, but I think it was absolutely critical that that individual ha[s] a bevy of lawyers that he could call on to give him recommendations and make sure he was straight.” DLPB Public Meeting, 15 February 2013, Transcript, at 183.

Thus, GEN Chiarelli, I'm sure that you'll recommend that each Marine "Strategic Corporal", who has to make the actual command decision to order "the shoot" and probably do some of the actual shooting, shall have his own "bevy of lawyers". And, also that bevy will covey and come up not only with the appropriate weaselly, lawyerly language for the order, but also the appropriate weaselly, lawyerly language for his after-action report to render him impervious to prosecution. Ah, yes, Gen. Large Rhetoric; what is sauce for the goose is sauce for the gander.

Now, I'm warmed up for the 36-page critique.

You could send it email; or if you think it's fit for publication, save it as a .pdf file and attach it to a post here.

Regards

Mike

TheCurmudgeon
08-06-2013, 03:48 PM
An Oklahoma Army lieutenant has been found guilty of two counts of murder in connection with a series of shootings in Afghanistan.

A jury at Fort Bragg delivered the verdict against Clint Lorance, an 82nd Airborne Division lieutenant, on Thursday evening and he was sentenced to 20 years in prison, forfeiture of all pay and dismissal from the U.S. Army. Lorance, 28, was found not guilty of making a false official statement.

Prosecutors said Lorance recklessly ordered his men to open fire immediately, after three men on a motorcycle approached his patrol in southern Afghanistan in July 2012. They said this was in violation of the military's rules of engagement, which requires soldiers to hold fire unless they have evidence of hostile action or hostile intent.

...The two soldiers who fired the shots have been reprimanded but won't have to go through a full court martial.


One of them, Private David Shilo, testified at Lorance's court martial: 'I was given a lawful order. My life wasn't threatened at the time.'

http://www.dailymail.co.uk/news/article-2383037/Clint-Lorance-guilty-Army-officer-gets-20-years-jail-murder-ordered-troops-open-Afghan-men.html

Polarbear1605
08-06-2013, 04:00 PM
We found out about the Defense Legal Policy Board as they concluded their investigation public hearings on the SECNAV questions from a press story. We missed the hearings but we were able to submit the "critique" and have it entered as part of the record. Needless to say, we were pressed for time and "way behind", hence, the heavy use of enclosures. When I tried to upload I got this message: "Your file of 533.0 KB bytes exceeds the forum's limit of 195.3 KB for this filetype." I will have to email it to you. :) ...maybe the SWJ will publish it...ewwww...I like that idea. :cool:

jmm99
08-07-2013, 04:28 AM
Any errors in translating from Arctic Ursian to English are mine. :D

Two attachments to the Critical Critique were image files which I couldn't convert. One of them is a letter re: 1stLt. Andrew Grayson (one of the Haditha Marines - acquitted), which exists somewhere in Defend Our Marines (http://warchronicle.com/TheyAreNotKillers/DefendOurMarines.htm). The other is the "Flag Officer Amici Brief (http://sblog.s3.amazonaws.com/wp-content/uploads/2013/03/Behenna-Brief-of-Retired-Flag-and-General-Officers-et-al.pdf)" filed in the SCOTUS Behenna case (docket record (http://www.scotusblog.com/case-files/cases/behenna-v-united-states)).

01 Bear is the Critical Critique; 02 & 03 Bear are the Attachments.

Regards

Mike

jmm99
08-07-2013, 04:53 AM
From 01 Bear, p.3:

We were also surprised that the panel did nothing to address or even discuss the issue often called the “double standard” (See Attachment 3: Double Standard). This ad hoc standard can be viewed in two different perspectives. The first situation is we seem to be holding our infantry small unit leaders [to] a very tight standard when compared to strategic military operations. Civilian casualties due to air, drone, and Special Forces strikes seem to be easily accepted, yet small unit actions causing fewer casualties can easily result in a court martial action. In addition, we now have a public relations situation with something called the “Leavenworth Ten”. These are Soldiers and Marines serving lengthy sentences when enemy terrorist[s] convicted of murdering US Service Men in Iraq and Afghanistan have longed been turned over to the host nation and released (See Attachment 4: “Heroes, Shame and Tarnish Brass”).

Another concern is expressed in the following questions. Who on the panel represents the enlisted Marines and Soldiers? Was there someone specifically appointed to look out for the best interest of the military enlisted personnel and junior officers? Do any of the panel’s recommendations impede a combat Marine’s or Soldier’s right to self-defense? Do any of the panel’s recommendations disrupt or impede the combat trust relationship between military leaders and their subordinates that is considered essential for successful combat operations?

We would expect to see a number of Sergeant Majors and Master Chiefs and a set of former civilian defense councils as panel participants. The pool of experienced civilian defense councils in this country, dealing with these high profile cases, has certainly grown since the beginning of Operation Iraqi Freedom. The expansion of experienced civilian defense councils can partially be attributed to the accused and their families who have absolutely no trust and confidence in the military court martial system. The distrust, in part, comes from the military persecutors and service chiefs manipulations; both fair and unfair, and both perceived and real.

This complex of issues has little to do with bevies of lawyers. It has a great deal to do with Command Responsibility and Responsible Command. What do others feel about these issues ?

Regards

Mike

wm
08-07-2013, 04:43 PM
This complex of issues has little to do with bevies of lawyers. It has a great deal to do with Command Responsibility and Responsible Command. What do others feel about these issues ?

I suspect it has as much to do with personal risk aversion and personnel risk aversion.

By this, I mean we tend to use stand off weaponry to lessen the risk of having to put troops in direct combat (personnel risk aversion). However, when we are required, for whatever reason, to get up close and personnel with enemy combatants, we must take significant personal risk to protect those who have not given up their privilege not to be killed without good reason (the innocent civilians). Commanders should have high levels of personnel risk aversion and so tend to use stand off weapons. Since using these kinds of weapons reduces the risk to the troops, folks are probably more likely to look the other way when collateral damage (not the kind excusable under the doctrine of double effect by the way) occurs. When troops do have to get involved directly, the personnel risk aversion is still there and is compounded by personal risk aversion. But, to outsiders, personal risk aversion is not permissible; for them a "you knew the job was dangerous when you took it" attitude prevails. Thus, collateral damage that occurs as a result of limiting personal risk (I'll just pick off the guy on the motorcycle from here rather than put myself at more risk by getting close enough to a see if he is armed) is just not as acceptable.

BTW dealing with personnel risk aversion instantiates aspects of both Command Responsibility and Responsible Command while personal risk aversion relates almost exclusively to Command Responsibility in my view.

Polarbear1605
08-07-2013, 08:51 PM
Understand what you are says about risk aversion…but I honestly do not believe that our general officers are applying any type of risk analysis or matrix to these situations. I do believe that the “double standard” is now dogma and an indicator of bad strategy. For example, and I have used this one frequently because the world watched this event on their TVs. When we got al-Zarqari in Iraq, we dropped two 500 LB bombs on the house he occupied. There was collateral because among the multiple bodies was a woman and probably a child. We also know that Special Forces had eyes on target because when they got to Zarqari to confirm his death, he was still alive. This attack is easily justified under the laws of war based on the principle of military necessity.
When we look at Lt Lorance's case, as an example (I say example, because our military leadership has gotten so confidently numb with this dogma, they no longer leak the investigations and we only have these passing lines in short news articles), he was not convicted of violating the laws of war. He was convicted of murder. When two “civilians” are dogging you on motor cycles on a counter insurgency battlefield, calling them civilians and charging you with the Rule of Law crime of murder, avoids the issue that they may have been acting like recon. Acting as recon moves them into the Laws of War category of “Enemy Combatants”. What this legal case does (and many others) is to extend the right of civilians to enemy combatants and denies the rights of combatants (and self-defense) to Soldiers and Marines in combat.

jmm99
08-08-2013, 02:15 AM
I understand the catagories:

1. Personnel Risk Aversion, involves both Command Responsibility and Responsible Command.

2. Personal Risk Aversion, involves almost exclusively Command Responsibility (perhaps ?)

but I think the construct needs more development.

I'd suggest a distinction between "personal risk aversion" and "unit risk aversion" (which I'd distinguish from "personnel risk aversion"). E.g., under one set of facts which could be argued in the Behenna case (which involved multiple, variant and contradictory sets of facts and "facts"), with respect to a specific individual (say, a unit commander), personal self-defense would be not justified to him, whereas unit self-defense would be justified to him - all under the same set of posited facts (or "facts"). In short, a unit commander in killing a person could be unjustified with respect to the concepts underlying personal self-defense (variable), but justified with respect to the concepts underlying unit self-defense (absolute).

More broadly, we have the concepts underlying "individual" and "collective" self-defense; as well as the concepts underlying "individual" and "collective" offense against what is perceived or defined as "evil". I'd argue that both Command Responsibility and Responsible Command are involved as soon as a "unit" (e.g., a 4-man fireteam) enters the picture. So, the "Strategic Lance Corporal".

Thus, the focus should be focused on what I'd call "Comparative Combat Philosophies and Policies", driving "Comparative Combat Law" (not Google categories) - a very non-objective topic, subject to biases and emotions (and rightly so, I'd argue).

While the "laws of war regulating combat" (jus in bello) have been discussed ad nauseum (at least to me presently), discussion of their underlying philosophies and policies is less frequent. Perhaps, I've missed some things.

Gabriella Blum is one who has discussed this topic in two recent articles (abstracted below).

For an introduction to her, see these videos (less than 10 min each): Gabriella Blum, Tomorrow 2008 (http://www.youtube.com/watch?v=V9qy69pRtCQ) (JMM comment: Focus is on the future of International and Regional Organizations - "coalitions of the willing" vs "coalitions of the pi$$ed"); and Gabriella Blum, Tomorrow 2009 (http://www.youtube.com/watch?v=9vzVXxtORGo) (JMM comment: Focus is on Liberal Arts Education vs "Trade Schools", to include law schools; "a collection of slaves").

Besides being interesting (much more so than Michael Walzer), she has great methodology and depth, as exemplified in the following:

Gabriella Blum, The Dispensable Lives of Soldiers (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1457434) (2009)

Abstract:

Why are all soldiers fair game in war? The laws of war, under their current interpretation, divide up populations into two classes – that of civilians and that of combatants – and accord each its own set of privileges and obligations. Taken together, the legal principles of military necessity and distinction strike up a bargain by which combatants are to be sacrificed for the protection of civilians. Under this bargain, all soldiers are fair game, regardless of their role, function, or the degree of threat they pose at any particular moment. Consequently, the killing of retreating soldiers in Iraq, the attack on officials meeting in Korea or shooting soldiers playing soccer in Bosnia – are all legitimate military operations.

This paper challenges the status-based distinction of the laws of war, which has so far been widely accepted by international law scholars, calling instead for revised targeting doctrines that would place further limits on the killing of enemy soldiers. My argument stems from a recognition of the value of all human life, including that of enemy soldiers. I argue that the changing nature of wars – the decline in the importance of any generic ‘combatant,’ the growing civilianization of the armed forces, and the advance in technology – casts doubts on the necessity of killing all enemy soldiers indiscriminately.

I offer two amendments: The first is a reinterpretation of the principle of distinction, suggesting that the status-based classification be complemented by a test of threat. Consequently, combatants who pose no real threat would be spared from direct attack. The second is a reinterpretation of the principle of military necessity, introducing a least-harmful-means test, under which an alternative of capture or disabling of the enemy would be preferred to killing whenever feasible.

I discuss the practical and normative implications of adopting these amendments, suggesting some possible legal strategies of bringing them about.

Gabriella Blum, The Individualization of War: From Collectivism to Individualism in the Regulation of Armed Conflicts (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2231168) (2013)

Abstract:

In a celebrated humanitarian move, wartime regulation has evolved from a predominantly state-oriented set of obligations — which viewed war as an inter-collective effort — to a more individual-focused regime. In fact, the regulation of armed conflict increasingly resembles, at least in aspiration, the regulation of police activities, in which it is the welfare of individuals, rather than the collective interest of the state, that takes center stage.

I demonstrate that many contemporary debates over the laws of war, including the distinction between the jus ad bellum and jus in bello, proportionality, detention of combatants, and reparations for victims implicate exactly the tension between collectivism and individualism in the regulation of armed conflict.

I further argue that notwithstanding the humanitarian benefits of the move to greater concern over the human rights of those affected by war, reimagining war as a policing operation harbors real dangers that must not be overlooked. These include imagining more of policing as war, inhibiting military action for the protection of others, and inviting more aggressive acts “short of war” against targets around the world.

Her subject matter choices (from the 2009 article) are mine also:

The article proceeds as follows. Part 2 offers an overview of the general principles of the laws of war, as they pertain to the permissible targeting of combatants on the battlefield. Part 3 summarizes the mainstream philosophical justifications for subjecting combatants to deliberate targeting and the dissenters’ voices in challenging them. Part 4 fleshes out three fundamental strategic changes in the nature of wars and combatants, namely the declining value in killing generic combatants in modern
conflicts, the civilianization of the armed forces, and the technological sophistication of at least some militaries. In Part 5, I propose possible alternative doctrines, which aim at limiting the legitimate targeting of combatants. I discuss the practical implications of this amended reading and the possible legal strategies for bringing it about.

All that being said, for the most part, I strongly disagree with much that she opines as a recipe for the future. But, that is a matter of variant philosophies and policies - which proves my point (at least to myself ;)).

Where we end up on these issues of "Comparative Combat Philosophies and Policies", driving "Comparative Combat Law", hinges little on dry reason, but rather on our experiences and our concepts of integrity, moral courage, loyalty and accountability - see 1993 Krulak USNA, pt.1 (http://www.youtube.com/watch?v=tHPUhlE7fTw) and pt.2 (http://www.youtube.com/watch?v=GN7_wG7rBEM) (about an hour total); and Hugh Thompson at My Lai (USNA, 5 videos (http://www.youtube.com/playlist?list=PLcuUHQsaiCX4ggYjKdPcXE_ur4EPgYt3R), about 1 hour).

Regards

Mike

jmm99
08-08-2013, 06:38 AM
Some (Gabriella Blum not among them) cite the following incident (mentioned in Blum's 2009 article as quoted below) as evidence of an enemy spared by the humanitarian instincts of the poet and mythologist Robert Graves (one of my favorite authors on myths):

In Just and Unjust Wars , Michael Walzer ([1977] 2006, 143) famously takes on the question of the Naked Soldier, first raised by Robert Graves (1929) in his memoir Good-bye to All That : Is a soldier stripped naked and swimming in the lake a legitimate target during an armed conflict? The answer, says an uncomfortable Walzer, is unequivocally “yes.”

My recollection of Graves WWI memoirs, Good-bye to All That (http://www.amazon.com/Good-Bye-That-Autobiography-Robert-Graves/dp/0385093306), was that the event was less than humanitarian. Lo and behold (at p.132) we find it - and a discussion of individual and collective risk:

Like everyone else, I had a carefully worked out formula for taking risks. In principle, we would all take any risk, even the certainty of death, to save life [of a comrade] or to maintain an important position. To take life we would run, say, a one-in-five risk, particularly if there was some wider object than merely reducing the enemy's manpower; for instance, picking off a well-known sniper, or getting fire ascendency in trenches where the lines came dangerously close. I only once refrained from shooting a German I saw, and that was at Cuinchy, about three weeks after this. While sniping from a knoll in the support line, where we had a concealed loop-hole, I saw a German, about seven hundred yards away, through my telescopic sights. He was taking a bath in the German third line. I disliked the idea of shooting a naked man, so I handed the rifle to the sergeant with me, 'Here, take this. You're a better shot than I am.' He got him; but I had not stayed to watch.

Whatever this might be, humanitarianism it was not.

Graves was one of four Royal Welch Fusilers who wrote WWI memoirs of note. The others were Siegfried Sassoon (3 vols.), Frank Richards (2 vols.) and J.C. Dunn (a thick Bn history). The last includes extensive excerpts by Clifton Stockwell aka "Buffalo Bill", who was the "officer in charge" of the RWF's segment of the 1914 "Christmas Truce". Stockwell was a fine soldier (a coy, bn and bde commander), who went to bat for his men with higher commands; but who had an abrasive personality - e.g., "I never remember him having any favorites: he treated all the men the same way - like dirt"; and "... an absolute pig if you got the wrong side of him."

Regards

Mike

wm
08-08-2013, 01:04 PM
I honestly do not believe that our general officers are applying any type of risk analysis or matrix to these situations. I do believe that the “double standard” is now dogma and an indicator of bad strategy.
Bear,
You may be right that no deliberate application of risk analysis is being applied. However,I am not so sure that what is happening is dogmatic. I believe (and am supported by a fair amount of research reported in the safety engineering literature) that each individual has a different level of risk tolerance/risk aversion. (I do not really want to get sidetracked into a nature/nurture argument and discuss whether this is innate or acquired.) Having differing levels of risk tolerance suggests we also have different needs and, therefore, techniques for risk mitigation. Compare, for example, Montgomery's and Patton's campaigns in N. Africa and the WWII ETO. I submit the action to mitigate risk occurs almost reflexively rather than deliberately and, therefore, is not dogmatic.

I'd suggest a distinction between "personal risk aversion" and "unit risk aversion" (which I'd distinguish from "personnel risk aversion").
Works for me. I was trying to make a distinction between the individual (a natural person, by the way) and the collective (an artificial person). However, I do have some qualms about what to make of the status of that artificial person. I find it hard to cash out exactly what those qualms are and why they bother me, but for starters, I question the applicability of the analogy found in St. Augustine that takes the acceptability of personal self defense and maps it to national self defense. I think that much of my concern stems from two sources: the concept of a moral agent and the notion that praiseworthiness/blameworthiness requires some ability to act after deliberation. Artificial persons are not able to deliberate in my worldview and are not "really" moral agents as a result.

On a different tack, I think the distinction between command responsibility and responsible command is tied to the difference between positional (public) rights/duties/morality and personal (or private) rights/duties/morality.

ganulv
08-08-2013, 01:21 PM
On a different tack, I think the distinction between command responsibility and responsible command is tied to the difference between positional (public) rights/duties/morality and personal (or private) rights/duties/morality.
Every subject’s duty is the king’s but every subject’s soul is his own?

wm
08-08-2013, 01:22 PM
Some (Gabriella Blum not among them) cite the following incident (mentioned in Blum's 2009 article as quoted below) as evidence of an enemy spared by the humanitarian instincts of the poet and mythologist Robert Graves (one of my favorite authors on myths)
I had forgotten about Walzer's Naked Soldier. Thanks for reminding me. The key difference in the account you then quoted from Good-Bye to All That is that Graves refers to the target as a naked man, not a naked soldier. The passage in Walzer is meant, I think to highlight the tension thast exists in the fact that a soldier is also a human being. Some of us (Americans at least) are stuck with words from the Declaration of Independence (all men are created equal) that make it hard for us to separate the soldier from the human being. I do not think that Graves had the same problem, as you note by saying the act was less than humanitarian--the sergeant was a better shot after all.

jmm99
08-08-2013, 02:11 PM
My dad was nailed by a German mortar while traveling between the latrine slit trench and his foxhole. He thought the Germans showed decency in not nailing him while he was astraddle the slit trench. :D

Regards

Mike

wm
08-08-2013, 05:40 PM
My dad was nailed by a German mortar while traveling between the latrine slit trench and his foxhole. He thought the Germans showed decency in not nailing him while he was astraddle the slit trench. :D

Regards

Mike

In a prior post you mentioned memoirs from Welch Fusiliers. With the German Guns by Herbert Sulzbach is also a rather genteel WWI memoir. For an interesting German counterpoint to Graves, Sulzbach, Sasson et.al., you might take a peek at Ernest Junger's Storm of Steel

BTW Sulzbach also served in the British Army, eventually getting a commission during WWII.

jmm99
08-08-2013, 10:18 PM
which exceeds those I mentioned in a number of respects. I've not got into the WWI Germans very much (just Junger and Rommel). Sulzbach looks interesting and sounds a bit like Col. Blimp's German friend.

But, I have to embark on reading (studying ?) a pair of WWI vets in tandem: Collingwood (Idea, Principles) and Wittgenstein (Investigations) - they seem to go together. I can't promise they will occupy me enough to shut me up; but they seem a good start. :D

Regards

Mike

jmm99
08-11-2013, 09:45 PM
HT to SWJ Blog, Analysis - Effects of Lorance murder verdict on combat decisions to be seen (http://www.stripes.com/news/us/effects-of-lorance-murder-verdict-on-combat-decisions-to-be-seen-1.234828) (by Catherine Pritchard, The Fayetteville Observer, N.C.; 11 Aug 2013). The article includes various points of view (incl. Charlie Dunlap). Here's a generalized view by Dave Bolgiano:

David Bolgiano, a retired Air Force lieutenant colonel who served as a command judge advocate in Iraq and Afghanistan in the early 2000s, said too many military commanders and legal officers have held their soldiers to an "untenable" standard in these conflicts.

Bolgiano is the author of a 2007 book called "Combat Self-Defense: Saving America's Warriors from Risk-Averse Commanders and their Lawyers" and co-author of a 2011 book called "Fighting Today's Wars: How America's Leaders Have Failed Our Warriors." He now works as a use-of-force consultant and writes about ethical, legal and tactical dynamics of deadly force encounters.

Bolgiano said that the rules of war that govern the actions of U.S. soldiers are fine, but they've been interpreted too rigidly in many cases by commanders worried about their own careers and by over-zealous military legal officers.

"They're demanding that decisions in combat be right, not reasonable," Bolgiano said. "It's a very critical point. They are just refusing to acknowledge this problem."

Bolgiano said the U.S. military also has failed to train soldiers adequately on discerning what represents a threat.

But the overwhelming problem, he said, is that they've been placed in a situation where they're not being legally allowed to defend themselves in combat situations that require split-second decisions.

There's a little verbal inconsistency here: "...the rules of war that govern the actions of U.S. soldiers are fine..." vice "... they're not being legally allowed to defend themselves in combat situations ..."

What Bolgiano is attacking are not the written legal rules, but their interpretations by self-serving commanders and their military lawyers. Of course, my general viewpoint is that the "law" includes much more than the written law on the books. Interpretations by superiors are only one of the components that some "positivists" would find extraneous to the law. We also have customs and usages within the force, as well as in what and how that force was trained. The last factors are very material if the test is "reasonableness", as opposed to "rightness" or "correctness".

Regards

Mike

wm
08-12-2013, 01:02 PM
The 28-year-old 82nd Airborne Division officer also was convicted of threatening to kill local villagers, ordering a soldier to shoot toward villagers to harass them, asking a soldier to file a false report saying that villagers shot at the outpost, and obstruction of justice for efforts to cover up the circumstances of the two deaths

If the charges noted in the above quotation are correct and were proven, I'd say that the defendant was a rather problematic leader. The stuff about risk aversion may be correct, but I see that as a sidebar issue in the case at hand. This guy appears to have had other issues that made him unfit to lead troops in a counter-insurgency operation.

Polarbear1605
08-12-2013, 05:33 PM
Bear, You may be right that no deliberate application of risk analysis is being applied. However, I am not so sure that what is happening is dogmatic. I believe (and am supported by a fair amount of research reported in the safety engineering literature) that each individual has a different level of risk tolerance/risk aversion. (I do not really want to get sidetracked into a nature/nurture argument and discuss whether this is innate or acquired.) Having differing levels of risk tolerance suggests we also have different needs and, therefore, techniques for risk mitigation. Compare, for example, Montgomery's and Patton's campaigns in N. Africa and the WWII ETO. I submit the action to mitigate risk occurs almost reflexively rather than deliberately and, therefore, is not dogmatic.
Thanks for the clarification. I understand now you were looking at this from a different view point and agree with your example that it is reflexive vs deliberate. When I refer to dogma my “vs” is as in “dogma vs doctrine”.
http://www.youtube.com/watch?v=i5c3yMy-llA dogma vs doctrine starts at about 2:07
In my mind, doctrine is a teaching, it is written down and can be read and learned. Dogma is an opinion. For example, in many general officer speeches, especially when talking about counter insurgency or counter terrorism, they use the terms Laws of War and Rule of Law interchangeably when they are separate and very different (at least in my opinion). For example: In both below cases these general officers are talking about war and combat and they can’t resist tying it back to the Rule of Law.
http://www.humanrightsfirst.org/wp-content/uploads/pdf/RML-Hoar_Krulak_Miami_Herald-Fear_was_no_excuse_2009-09-11.pdf
http://www.hughhewitt.com/the-haditha-investigation/
Soldiers and Marines are governed by their Rules of Engagement on the battlefield and ROEs are based on the Laws of War. In COIN operations, one of the reasons combat troops are present is that there is no rule of law. For a military general officer to think (and apply) the Rule of Law and the Law of War is the same thing...is dogma. In almost every one of the US “war crime” cases, US servicemen are not charged with violating their Rules of Engagement; they are charged with murder and the elements of proof that they must defend against, are for the same elements of proof used in the Rule of Law charges of murder.
http://warchronicle.com/DefendOurMarines/Weimann/LawsOfWar_6SEPT10.htm
Is this a reflex reaction to the loss of strategic legitimacy (Abu Grab)? Probably. Is it the right reflexive reaction…No… but it is an indicator of bad strategy.

jmm99
08-12-2013, 09:06 PM
from my post #57:

Still, the Clint Lorance case was probably not as simple as the newspaper makes it (Lorance being painted as something of a mini-Lt. Calley). I did a bit of Googling and read other accounts of the events which paint quite a different picture. Of course, there may well have been two or more divergent factual accounts before the court members - not unusual in these cases where we have civilians and "civilians", combatants and "combatants".

That's why we have "jurors" (court members).

As to the real Lt. Calley, I thought he was a twit based on the media coverage - and the Peers Report (http://law2.umkc.edu/faculty/projects/ftrials/mylai/mylai.htm); but I never met the man himself.

I did meet Ernest Medina, in a non-adversarial, strictly-business setting, when he worked for Enstrom Helicopter. From that meeting alone, I'd say he was a competent middle-level manager with a good personality. Of course, My Lai was not discussed; nor the fact that one of my early mentors (a person to be greatly respected) had signed off on the Peers Report which was damning to Medina (http://law2.umkc.edu/faculty/projects/ftrials/mylai/medina.html), but who was acquitted in his court-martial.

All that is to illustrate that variant factual sets arise (here, three sets as to Ernest Medina: JMM personal meeting, the Peers Report and Medina's court members). As to Lorance, the two newspaper articles present the factual view that the court members apparently accepted - a mini-Lt. Calley. I'm not going to argue that apparent factual finding was not supported by evidence.

But, Lorance (like Snowden) is not the issue for what lessons might be learned from this and like incidents. Polarbear1605 has provided us with some examples of what is materially at issue.

IMO: These questions, asked as a consequence of My Lai (http://law2.umkc.edu/faculty/projects/ftrials/mylai/questions.html) (with the last one updated to Abu Graib), are still the material issues:

1. Should we apply legal rules to incidents arising out of warfare? What is the purpose of developing and applying such rules? Have such rules changed the nature of warfare, or prevented more or worse wartime atrocities from occurring?

2. What should the rules of warfare be with respect to treatment of civilians? Who should be considered a civilian (or a non-combatant)? Should there be special rules governing the treatment of women or children?

3. What is the defense of superior orders? Why have such a defense? When should the defense be available? What should be done in the case of ambiguous orders or when oral commands contradict written directives? Must the belief that a superior order is lawful be reasonable? Should different standards apply to privates than to persons higher up the chain of command? What should a soldier do when he is given an order that he thinks is unlawful?

4. How do you explain what happened at My Lai? What can be done to prevent such tragedies from happening again? What does My Lai teach us about the nature of evil? Was Calley evil, or was he a more-or-less “normal person in abnormal circumstances”? Would Calley have acted differently had he received more training in the rules of warfare?

5. Was Calley simply following orders? What had he been told? What did he reasonably infer? Did he believe that his superiors were aware of his orders? Did he try to hide his actions from his superiors?

6. If Calley had been ordered to “waste” civilians, was he obligated to disobey such an order because it was clearly illegal?

7. When Medina said that he gave no order to kill the residents of My Lai, was he being completely truthful? Was Medina aware of what was happening at My Lai when there was still time to do something about it? Should sins of omission be treated the same as sins of commission?

8. Which was worse—the massacre or the cover-up?

9. What relevance was it that atrocities had been committed against U.S. servicemen in the area in the days immediately preceding the My Lai operation?

10. Were there any heroes at My Lai? What makes a hero able to act heroically? How can we make more people likely to act heroically?

11. Was justice done in the court martial of Calley? In the court martial of Captain Medina?

12. How much influence did politics and politicians have on the outcomes? Should we try harder to insulate courts martial from political influence?

13. What role did the media play in exposing the My Lai massacre and explaining its significance?

14. What was the public reaction to these courts martial? How do you explain this reaction?

15. What is the lasting significance of My Lai? Did it substantially change public attitudes toward the Viet Nam War? Has it changed how we prepare our soldiers for war?

16. What comparisons can you draw between My Lai and the prisoner torture and abuse scandal at Abu Ghraib prison in Iraq? What are some of the key differences? Who was most responsible for what happened at Abu Ghraib? Does Abu Graib, as well as incidents involving the rape and killing of civilians in Iraq, suggest that we haven't learned well the lessons of My Lai? What needs to be done to prevent these gross affronts to human dignity during the stress of war?

Regards

Mike

TheCurmudgeon
08-12-2013, 09:27 PM
I hesitantly offer this into your question on what causes incidents like Mai Lai and Abu Gharib. It is from a paper defining war from a motivational perspective. Starting with the assumption that war is a natural act for human beings (with some evidence to that effect) I define war as “deadly or potentially deadly organized violence committed by a subset of one group, whose actions are morally sanctioned by that group, against a discrete and identifiable other group with a specific objective or goal.” One of the key motivational components is the us-versus-them characteristic – there has to be two sides otherwise it is not war, it is just murder. I identify two types of “sides”, one based on traditional distinctions like ethnicity or religion, another based on individual characteristics like ideology. The last part discusses what I argue can happen when you start with a designation based on individual attributes (like a hostile act or intent) and leave a person in that environment long enough – they begin to adapt the traditional distinction of all people of a type being the enemy regardless of individual characteristics. I am not sure that has anything to do with the LT Lorance, but it does offer a different way to look at your question.

Interstate conflicts can also be based on Individual Identity. Although generally not seen as such, the first interstate conflict that had the characteristics of Individual Identity was the Napoleonic Wars. France had just passed through the first stages of its revolution and the ideals of freedom and liberty were part of the recruiting propaganda for the war effort. The military had been restructured based on individual merit not birthright and the new systems allowed for national mobilization. The wars were viewed as being a fight for the liberation of Europe from kings and tyrants. That same idea holds true in modern wars. When America chose to act against Saddam Hussein it portrayed the action as a war of liberation. We were not there to fight the Iraqi citizens; we were there to topple an oppressive regime. The “us” was all freedom loving people (including Iraqis); the “them” were all the oppressors.

Three points are worth noting regarding interstate wars based on Individual Identity. First, certain historically acceptable tactics may no longer be viable. If country A is basing its distinction on Individual Identity then attacks that disproportionally affect the civilian population are not going to be acceptable to the civilians of country A. Salting the earth or laying siege on a city kills the individuals who are not the target of the war. It is no longer war, it is simply murder. This is not to say that the civilians of country A are not willing to accept collateral deaths, but these deaths have to be “collateral” not intentional. Second, even though the civilian population may see the war that way, the participants may not. Autonomy is an anxiety-free motivation where there is nothing anxiety-free about combat. It is conceivable that the psychological dynamics will shift a Soldier’s mindset towards Collective Identity and viewing the enemy, including civilians, as a homogonous group. At the extreme this will allow Soldier’s to commit acts that they would otherwise not engage in, like the Mai Lai Massacre or Abu Ghraib. Third, it would be difficult, if not impossible, to have two countries use Individual Identity against each other. If both see the citizen’s of the other country as “just like me” then it is difficult distinguish who I am fighting against. There is no “us-versus-them”; there is only “us”. Any Country whose political system is built on popular sovereignty with a representative form of government is going to fall into this category. This could, in part, account for what is known as the Democratic or Liberal Peace. This does not mean that these countries cannot go to war with each other. It means that the nature of the events must be such that the other side can be characterized as somehow repressive, unjust, illegal, or otherwise clearly “not like us”.

jmm99
08-12-2013, 11:24 PM
He who hesitates is lost. :D

I define war as “deadly or potentially deadly organized violence committed by a subset of one group, whose actions are morally sanctioned by that group, against a discrete and identifiable other group with a specific objective or goal.”

As you say, a "we-they" thing, with which I have some agreement:

post #74 (http://council.smallwarsjournal.com/showpost.php?p=148287&postcount=74)

More broadly, we have the concepts underlying "individual" and "collective" self-defense; as well as the concepts underlying "individual" and "collective" offense against what is perceived or defined as "evil". I'd argue that both Command Responsibility and Responsible Command are involved as soon as a "unit" (e.g., a 4-man fireteam) enters the picture.

but, as to which, wm raises a concern:

post #76 (http://council.smallwarsjournal.com/showpost.php?p=148296&postcount=76)

I was trying to make a distinction between the individual (a natural person, by the way) and the collective (an artificial person). However, I do have some qualms about what to make of the status of that artificial person. I find it hard to cash out exactly what those qualms are and why they bother me, but for starters, I question the applicability of the analogy found in St. Augustine that takes the acceptability of personal self defense and maps it to national self defense. I think that much of my concern stems from two sources: the concept of a moral agent and the notion that praiseworthiness / blameworthiness requires some ability to act after deliberation. Artificial persons are not able to deliberate in my worldview and are not "really" moral agents as a result.

That concern is well-founded because there has been an on-going debate, cutting across cognitive science and philosophy, concerning "group selection" and its associated issues. This has primarily focused on religious groups as examples of "group moral psychology". But, the general concepts could apply to any well-defined subgroup - e.g., military forces, especially when at war. Generally, one could vulgarly speak of a "meme" (realizing some hucksterism associated with "memetics") - using the accepted genetic "deme (http://en.wikipedia.org/wiki/Deme_(biology))" as an analogy (e.g., polarbears :)).

See generally, Group selection (http://en.wikipedia.org/wiki/Group_selection); Altruism and Group Selection (http://www.iep.utm.edu/altr-grp/); Beyond Belief: Enlightenment 2.0 (http://thesciencenetwork.org/programs/beyond-belief-enlightenment-2-0); and Beyond Belief: Candles in the Dark (http://thesciencenetwork.org/programs/beyond-belief-candles-in-the-dark).

In any event, here are two persons who accept "group selection":

David Sloan Wilson, Professor in the Biology and Anthropology Departments at Binghamton University - video (http://thesciencenetwork.org/programs/beyond-belief-enlightenment-2-0/david-sloan-wilson)

Jonathan Haidt, an Associate Professor of Psychology at the University of Virginia - video 1 (http://thesciencenetwork.org/programs/beyond-belief-enlightenment-2-0/jonathan-haidt), video 2 (http://thesciencenetwork.org/programs/beyond-belief-candles-in-the-dark/jonathan-haidt-1)

Jonathan Haidt (a secular liberal), in 2006, published When morality opposes justice: Conservatives have moral intuitions that liberals may not recognize (http://cbdr.cmu.edu/seminar/Haidt.pdf)

Conclusion

To summarize, we have argued for three main points: 1) Human morality consists of more than what is covered by the traditional Kohlberg/Gilligan domains of justice and care. 2) Liberal morality rests primarily on these two foundations (we call them reciprocity and harm), but conservative morality rests on five foundations, including ingroup, hierarchy, and purity concerns as well. 3) Recognizing these latter foundations as moral (instead of amoral, or immoral, or just plain stupid) can open up a door in the wall that separates liberals and conservatives when they try to discuss moral issues.

and one who doesn't (with 23 comments, many mini-articles, to Pinker's article):

Steven Pinker, The False Allure of Group Selection (http://edge.org/conversation/the-false-allure-of-group-selection).

Jonathan Haidt, To See Group Selection, Look at Groupishness during Intergroup Competition, Not Altruism during Interpersonal Competition (http://edge.org/conversation/the-false-allure-of-group-selection#jh) (a comment on Steven Pinker; first example by Haidt):

One of the few social psychological studies that actually put real, ongoing groups into real and protracted conflict was the famous "summer camp" study carried out by Muzafar Sherif [1], who brought two groups of twelve-year-old boys to a summer camp in a state park in Oklahoma in 1954. At first, the two groups did not even know of each others' existence, yet even so, each group started marking territory and creating a tribal identify for itself. Both groups engaged in some mild tribal behaviors that would be useful if the group were to encounter a rival group that claimed the same territory. That is what happened on day 6 when the "Rattlers" discovered that the "Eagles" were playing baseball on what the Rattlers took to be "their" ball-field. The Rattlers then challenged the Eagles to a game, which initiated a weeklong series of competitions that Sherif had planned from the start.

Once the competition began, it was as though a switch was flipped in each boy's head. As Sherif described it: "performance in all activities which might now become competitive (tent pitching, baseball, etc.) was entered into with more zest and also with more efficiency." Tribal behaviors increased dramatically. Both sides created flags and hung them in contested territories. They raided each others' bunks, called each other names, and even made weapons (socks filled with rocks.)

Were these acts altruistic? Technically yes, because each tribal behavior had some cost for the individual, and it benefitted the group's cohesiveness or effectiveness. But I think the opposite of selfishness in evolutionary terms should not always be altruism. For the purposes of the present debate, things get clearer if we contrast selfishness with groupishness. The hand of group-level selection is most vividly seen when we look at behaviors that impose some cost on the individual, but that do not transfer that cost as a benefit to one or several specific other group member (which would help the selfish individualists prosper in a multi-level analysis). Rather, mental mechanisms that encourage individuals to do things that help their team succeed, despite some cost to the self, are the most likely candidates for having come down to us by a path in which group-selection played a part.
...
[1] Sherif, M., Harvey, O. J., White, B. J., Hood, W., & Sherif, C. [1961/1954]. Intergroup conflict and cooperation: The Robbers Cave experiment Norman, OK: University of Oklahoma Institute of Group Relations.
...
In sum, most of our social psychology, and even most of our moral psychology, was shaped by individual-level selection. There has always been competition among individuals within groups, competing for status, mates, and the trust of potential partners for cooperation. But if you examine the psychological traits that motivate and enable cohesion, trust, and effective coordination, and if you do this during times of intergroup conflict, you will find many behaviors and mental mechanisms that are much harder to explain using only individual-level mechanisms. You will find yourself swimming among group-selected traits.


So, Haidt's theories are much along the lines that TheCurmudgeon wrote.

Regards

Mike

wm: my answer (probably too simplistic) re: artificial persons (military units, corporations, limited liability companies, etc.) and deliberation - moral agency, is that natural persons are appointed or elected to deliberate. Perhaps, some day, machines will take over as moral agents - the Universal Truth Machine - and those then living will see Kurt Godel disproved. So far, Godel has held up.

TheCurmudgeon
08-13-2013, 03:17 AM
I hesitate because I am not really a philosopher. I stay away from WM, he knows way too much for me.

If I were going to argue with him I would say that St Augustine was schooled in Roman teachings of Cicero and their legal doctrine which did not have any doctrine of individual rights (http://www.amazon.com/Idea-Natural-Rights-University-Religion/dp/0802848540/ref=sr_1_8?s=books&ie=UTF8&qid=1376357506&sr=1-8&keywords=natural+rights), only duties. So if St Augustine built his arguments on self-preservation on duty to the group then it makes perfect sense.

In any case I try to base my ideas on anthropology not philosophy. That is because I will lose to WM in philosophy arguments.

jmm99
08-13-2013, 03:54 AM
Patricia Smith Churchland, UC President's Professor of Philosophy, UC San Diego, hits "we-they" conflicts spot on in this panel from Panel: This is Your Brain on Morality - Beyond Belief 2008 (http://www.youtube.com/watch?v=ALpwPeeIKP4), starting at 15:45 (about 5 min. of Churchland). She concludes: "It's part of the package, as crappy as it is."

For more of Pat Churchland:

Patricia Churchland - Beyond Belief 2008 (http://www.youtube.com/watch?v=bGuuw-i0aYk) (16 min. short course; biochemistry and philosophy, "... choice, responsibility and the basis of moral norms in terms of brain function, evolution and brain-culture interactions ..." !!)

Lectures (about 1 hour+ each; ~ a week of her classes):

Patricia Churchland - Morality and the Mammalian Brain (http://www.youtube.com/watch?v=n_PtnBacAP0).

Patricia Churchland - Braintrust: What Neuroscience Tells Us About Morality 01 (http://www.youtube.com/watch?v=9Bv4k8CJnuc).

Patricia Churchland - Braintrust: What Neuroscience Tells Us About Morality 02 (http://www.youtube.com/watch?v=aku-ltBBtPc).

Decisions Responsibility and the Brain (http://www.youtube.com/watch?v=_3zUqj0x848).

Getting to the meat of it (says the ancien biochemist ;)); it's indeed surprising what connections ensue from Collingwood's Principles of History (Human Nature and Human History :)).

Regards

Mike

TheCurmudgeon
08-13-2013, 12:27 PM
JMM, thanks for all the material. I will look it over.

One other point on us-and-them: categorizing people based on obvious characteristics seems to be something we (as humans) like. Think about the uniform. What purpose does it serve? It lets me know who is on my side and who is the enemy (an who is not in the fight). Take that away and we feel uncomfortable.

I am curious if Soldiers who kill an person who is not in uniform have a harder time dealing with that then a if they had killed the same person in a clearly identifiable enemy uniform.

But we are getting off topic.

davidbfpo
08-13-2013, 03:22 PM
One other point on us-and-them: categorizing people based on obvious characteristics seems to be something we (as humans) like. Think about the uniform. What purpose does it serve? It lets me know who is on my side and who is the enemy (an who is not in the fight). Take that away and we feel uncomfortable.

I am curious if Soldiers who kill an person who is not in uniform have a harder time dealing with that then a if they had killed the same person in a clearly identifiable enemy uniform.

But we are getting off topic.

Ah, don't worry that can be a SWC way of making progress:wry: There is a thread 'How Soldiers deal with the job of killing':http://council.smallwarsjournal.com/showthread.php?t=13523

There's also, now slightly off topic, a parallel one on how LE deals with killing.

wm
08-14-2013, 02:07 PM
Thanks for the clarification. I understand now you were looking at this from a different view point and agree with your example that it is reflexive vs deliberate. When I refer to dogma my “vs” is as in “dogma vs doctrine”.
My thanks right back at you for your clarification. Good thing we are able to clarify terms used.
As to the distinction between Law of War and Rule of Law, I would assert that in the domain of "Legal Processes" the former is a subset of the latter. In other words, it really makes no sense to talk about the Law of War unless an environment exists in which some fair/objective process (or perhaps "due process" is a better word choice) exists to examine whether aspects of the Law of War have been followed or breached.
This last may seem to be at variance with your points about an absence of the rule of law, but I took your point to be that this absence is found in the area of operations, not in the organization conducting COIN. The deployed force has a goal (perhaps) of installing or restoring the rule of law to that place where the COIN mission is being conducted; that deployed force also operates internally under the Rule of Law. In the case at hand, the UCMJ/MCM is a significant part of the Rule of Law specification but is not the whole story.

wm
08-14-2013, 02:28 PM
One other point on us-and-them: categorizing people based on obvious characteristics seems to be something we (as humans) like. Think about the uniform. What purpose does it serve? It lets me know who is on my side and who is the enemy (an who is not in the fight). Take that away and we feel uncomfortable. Emphasis added.

I'm not so sure that categorizing is something humans like. It may well be, especially if you agree with folks like Immanuel Kant, that we must categorize. Categorizing allows us to bring order to all the stuff that bombards our senses--if nothing else, a filing system for sorting/storing the sensory inputs. If this is true, then saying we like to do it seems rather silly to me. If we have choices about how we categorize, then maybe we could say that we have chosen one method over another because we liked it better.

TheCurmudgeon
08-14-2013, 07:30 PM
I'm not so sure that categorizing is something humans like. It may well be, especially if you agree with folks like Immanuel Kant, that we must categorize. Categorizing allows us to bring order to all the stuff that bombards our senses--if nothing else, a filing system for sorting/storing the sensory inputs. If this is true, then saying we like to do it seems rather silly to me. If we have choices about how we categorize, then maybe we could say that we have chosen one method over another because we liked it better.

Like may have been to vague a term. Predisposed to see the world in terms of us and them might be a better way to phrase it. Natrually skeptical/fearful of strangers. Our speicies has adapted that natural fear and adopted mechanisms to deal with it by allowing for an instanious trust. (I am a Prussian. I trust other Prussians, all others must pay cash.) From what I have read on evolutionary anthropoligists this the going theory.

wm
08-14-2013, 09:36 PM
Like may have been to vague a term. Predisposed to see the world in terms of us and them might be a better way to phrase it. Natrually skeptical/fearful of strangers. Our speicies has adapted that natural fear and adopted mechanisms to deal with it by allowing for an instanious trust. (I am a Prussian. I trust other Prussians, all others must pay cash.) From what I have read on evolutionary anthropoligists this the going theory.
Stan,

A couple of thoughts (the pre-emptive strike missed:D)

In a past life doing comsec monitoring, I remember we had a poster that said "In God we trust. But we still monitor his freqs." I wonder to what degree we trust those others. I suspect that most of you Prussians have varying levels of trust for each other; the levels being directly porportional to some other relationships that you have to each other besides the mere fact of being Prussian. Another way of saying this that I still need something to explain the existence of things like the air defenders practical advice, "Shoot first and sort the pieces out on the ground."

It may tie back to the earlier post in which I noted folks apparently have differing levels of risk tolerance. Perhaps more analysis of the Fight or Flight mechanism in the "reptile" brain will uncover something. However, I think this will be another instance of the so-called Qualia problem.

How do we correlate a physical event with a feeling--synapses "firing" in the brain with pain or pleasure for example? I see this as a variation on the old mind-body problem that Descartes wrestled with unsuccessfully. He claimed our thoughts caused us to move by making the pineal gland oscillate, which in turn caused other bodily movement. He also suggested that our sense of taste was produced by the various shapes in food "poking" our tongues in different ways, which again translated through the pineal gland into sweet, sour, etc. Not a very satisfying explanation because it still relies at some level on "And then a miracle happens."

Recognition of someone as a fellow Prussian engenders trust. How? Is it merely artifactual or is it necessary? If it is necessary, what is the causal nexus?

jmm99
08-14-2013, 10:09 PM
in terms of us and them" is Pat Churchland's basic hypothesis - multi-disciplinary (see Churchland links in my post above). Her evolutionary path boils down to:

Me

Me-Mine (kids)

Me-Mine-Kin

Me-Mine-Kin-Kith

As to "trusting" strangers, the quickest method is a trusted intermediary known to both parties. All of us probably know the non-intermediary method: put the trade goods on the beach; and wait for the other guy's trade goods offered in exchange. Recycle until someone picks up the last offered goods. That is a more time-consuming process.

Here is some more of Jon Haidt on a similar topic:

Johnathan Haidt, The Groupish Gene (2012) (short course, 17 min.)
http://www.youtube.com/watch?v=T64_El2s7FU

Johnathan Haidt, The Groupish Gene (2012) (long course, 1.5 hrs)
http://www.youtube.com/watch?v=NQ192d4c4S0

A lot of scientific weeds grow here, just as a lot of legal weeds grow elsewhere. The bottom line is that "we-they" is a human group given, but hypotheses differ on whether that given is caused by cultural selection, genetic selection, or both (in which case, how much from each); and, in both types of selection, the relative roles played by individuals and groups.

--------------------------------
I don't want to get down into the legal weeds - and simply won't; but this is a muddled mess:

As to the distinction between Law of War and Rule of Law, I would assert that in the domain of "Legal Processes" the former is a subset of the latter. In other words, it really makes no sense to talk about the Law of War unless an environment exists in which some fair/objective process (or perhaps "due process" is a better word choice) exists to examine whether aspects of the Law of War have been followed or breached.

This last may seem to be at variance with your points about an absence of the rule of law, but I took your point to be that this absence is found in the area of operations, not in the organization conducting COIN. The deployed force has a goal (perhaps) of installing or restoring the rule of law to that place where the COIN mission is being conducted; that deployed force also operates internally under the Rule of Law. In the case at hand, the UCMJ/MCM is a significant part of the Rule of Law specification but is not the whole story.

Are you arguing something along the lines of Kevin Heller's hypothesis, 'One Hell of a Killing Machine': Signature Strikes and International Law (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2169089) (to be published) ?

Perhaps you could diagram your "Legal Domain", and how all these fit together.

Regards

Mike

TheCurmudgeon
08-15-2013, 02:23 AM
I no longer attempt to define things in terms of legal arguments, as unsatisfying as that may be. I remember my Civil Procedure instructor, on the last day of class, telling a story about a cow that wove an uncertain path up a hill. That path was followed by other men. Eventually it became a road that a twon grew up around to become a city. And when people asked how it was this crocked path became the main street of the city the only answer anyone had was that it had been that way before them - the precedent had been set.

So, rather then let some long dead cow define how I think, I look to science and reason to find answers ... at least that is my excuse this week.

Men use these tools like the law and philosophy to try to define how they feel inside about what is right and what is wrong. They need to ask why it is they feel that way. If humans are just animals with no divine spark then everything we do is an adaptation designed to enhance survival. That is true up until we created an economic excess. This created an unnatural condition that we have been trying to deal with ever since. Our Primitive mind tries to deal with a modern world. And so, we are lost...adrift in a world we cannot understand.

enough for now ... I need a drink

jmm99
08-15-2013, 04:45 AM
After this post, everyone will want a drink. :D

It's the ultimate law review article: a title, one chart and the rest footnotes. ;)

"Legal Domains"

I. Domestic Law (e.g., US)

A. Federal - to include: UCMJ and Extraterritorial Statutes

B. State

II. Regional Law (e.g., EU) - to include (in addition to formal regional entities, e,g., EU): various bi- and multi-lateral agreements, as well as much trade and commercial law, are more regional than global.

III. International Law

A. Laws of Peace

B. Laws of War & Neutrality

IV. Religious Laws

Notes:

(1) Generally, I take off the trottle and put on the brakes so far as natural law theories in my "Legal Domains" are concerned (to include the cottage industry of various "just war theories"). Just war theories are interesting to me, but not compelling.

If you are interested, pick a just war theorist you like (as an author), who writes about areas in which you have an interest. For me, that is Larry May. May has a number of books on topics material to this thread and the issues of killing in war (including very large killings).

Larry May, JD, PhD, is W. Alton Jones Professor of Philosophy, Professor of Law, and Professor of Political Science, Vanderbilt University:

Crimes Against Humanity: A Normative Account (http://www.amazon.com/Crimes-against-Humanity-Normative-Philosophy/dp/0521840791) (2005);

War Crimes and Just Wars (http://www.amazon.com/War-Crimes-Just-Larry-May/dp/0521691532) (2007);

Aggression and Crimes Against Peace (http://www.amazon.com/Aggression-Against-Philosophical-Aspectrs-Conflict/dp/B007MXIDDY) (2008);

Genocide: A Normative Account (http://www.amazon.com/Genocide-Normative-Account-Larry-May/dp/0521122961) (2010);

After War Ends: A Philosophical Perspective (http://www.amazon.com/After-War-Ends-Philosophical-Perspective/dp/1107603625) (2012).

He handles Hobbes and Grotius as follows:

May, A Hobbesian Approach to Cruelty and the Rules of War (http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=8908300), Leiden Journal of International Law / Volume 26 / Issue 02 / June 2013, pp 293-313

Abstract

Contrary to the way Hobbes has been interpreted for centuries, I will argue that Hobbes laid the groundwork for contemporary international law and for a distinctly moral approach to the rules of war. The paper has the following structure. First, I will explain the role that the laws of nature play in Hobbes's understanding of the state of war. Second, I will explain Hobbes's views of self-preservation and inflicting cruelty. Third, I reconstruct Hobbes's important insight that rationality governs all human affairs, even those concerning war. Fourth, I explicate the idea of cruelty moving from what Hobbes says to a plausible Hobbesian position. Fifth, I address recent philosophical writing on how best to understand the rules of war. Sixth, I then turn to legal discussions of cruelty's place in debates about the laws of war, showing how my Hobbesian approach can ground these laws.

May, Grotius and Contingent Pacifism (http://www.historyofethics.org/022006/022006May.shtml) (Studies in the History of Ethics, Feb 2006)

Grotius’s great work, De Jure Belli ac Pacis, an 864-page work published in 1625, is still considered to be the single most important work in international legal theory. [3] Grotius is the great modern defender of the Just War tradition, but he is also a kind of pacifist. This is an uneasy alliance within the same thinker. But such is the history of the Just War tradition, where its adherents maintained the same dual ideas: that war was evil, but that it could be, indeed must be, justifiable in certain cases.

In this paper I will attempt to explain how Grotius reconciled the various elements of his political philosophy, and by building on his ideas I hope to provide the beginning of an account of a doctrine I will call “contingent pacifism.”[4] Contingent pacifism is opposed to war not on absolute grounds, but on contingent grounds, namely that war as we have known it has not been, and seemingly cannot be, waged in a way that is morally acceptable. As we will see, contingent pacifism makes jus ad bellum dependent on jus in bello.

3 Hugo Grotius, De Jure Belli ac Pacis (On the Law of War and Peace) (1625), translated by Francis W. Kelsey, Oxford: Clarendon Press, 1925.

4 As far as I am aware, Jeff McMahan first coined this term, but employed it in another context. See Jeff McMahan and Robert McKim, “The Just War and the Gulf War,” Canadian Journal of Philosophy, vol. 23, 1993, pp. 501-541.

Some just war theorists turn "jus ad bellum is dependent on jus in bello" on its head; that is "jus in bello is dependent on jus ad bellum". Thus, if as a combatant your state or group begins a war unjustly (jus ad bellum), you as a combatant are screwed - everything you do as a combatant (jus in bello) is illegal. In my "Legal Domains", jus ad bellum, jus in bello and jus post bellum are determined separately - at least to the extent that biases, emotions and sentiments allow that to be done.

Thus, I don't think that the "rules of justice" are an illusion; but they are "fuzzy" because of the biases, emotions and sentiments involved. In this statement, Adam Smith missed the mark:

Adam Smith, The Theory of Moral Sentiments, III.I.123 (http://www.econlib.org/library/Smith/smMS3.html)

The rules of justice may be compared to the rules of grammar; the rules of the other virtues, to the rules which critics lay down for the attainment of what is sublime and elegant in composition. The one, are precise, accurate, and indispensable. The other, are loose, vague, and indeterminate, and present us rather with a general idea of the perfection we ought to aim at, than afford us any certain and infallible directions for acquiring it.

Truth be told, Smith started to back off in the next paragraph, in this "perhapsey" sentence: "A man may learn to write grammatically by rule, with the most absolute infallibility; and so, perhaps, he may be taught to act justly."

- notes cont. in next post -

jmm99
08-15-2013, 05:50 AM
(2) For a contrarian view of just war theory, look first to Noam Chomsky. A Just War? Hardly (http://www.chomsky.info/articles/20060509.htm) (by Noam Chomsky; Khaleej Times, May 9, 2006) (basic premise)

In his highly praised reflections on just war, Michael Walzer describes the invasion of Afghanistan as "a triumph of just war theory," standing alongside Kosovo as a "just war." Unfortunately, in these two cases, as throughout, his arguments rely crucially on premises like "seems to me entirely justified," or "I believe" or "no doubt."

and Noam Chomsky: The Limitations and Problems with "Just War" Theory (http://www.youtube.com/watch?v=e1pNz8A5vMA) (USMA, 2006; 45 min.) (full course), looking to three sources of "just war theory" and Chomsky's conclusions:

1. literature (Walzer et al) - lacking in "rigour";

2. natural law (human nature) - promising research, but as yet no bananas;

3. positive law (UN Charter, Hague, Geneva) - some good rules (basically policy choices; no surprise that NC choices are somewhat different from JMM choices).

Point 2 starts at 12:25 through 18:00; cf. human language - "hard-wired" (genes) and/or "environmental" (memes)? John Mikhail of Georgetown (mentioned by Chomsky) was Chomsky's student.

(3) Then consider John Mikhail, Georgetown, Professor of Law (https://blogs.commons.georgetown.edu/johnmikhail/), with a long list of publications: Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (http://www.amazon.com/Elements-Moral-Cognition-Linguistic-Cognitive/dp/0521855780) (2011), and, in my opinion (despite my pain in having to credit MIT ;)), the best lecture concerning the brain, cognition and philosophy, Where Morals Come From (And Why it Matters) (http://video.mit.edu/watch/where-morals-come-from-and-why-it-matters-9269/) (2 hrs):

Beatriz Luna, Associate Professor of Psychiatry, Dept. of Psychiatry, School of Medicine, University of Pittsburgh; John Mikhail, Associate Professor, Law Center and Philosophy Department, Georgetown University; Patrick Byrne, Professor of Philosophy, Boston College; Christopher Moore, PhD '98, Assistant Professor of Neuroscience, Department of Brain and Cognitive Sciences, Whitehead Institute (moderator). Description: A neuroscientist, lawyer and philosopher together manage to wrap their arms around the centuries' old question of the origins of human morality.

Mikhail's research is not yet definitive (IMO); but, if well-validated, will establish a very man-made (brain-made) set of very basic legal rules. As such, it smacks much more of positive law than natural law.

Moreover, as Mikhail and others point out in various articles and lectures, the human brain has competence to make moral (and legal) rules, but that does not predict the brain's performance as to whether specific moral (and legal) rules will be made - or whether those actual rules will have cross-cultural consistency.

(4) Not surprisingly, one finds strong opinions against a genetic determinism inclining humans to war. The principal author of this viewpoint is John Horgan, The End of War (http://www.amazon.com/The-End-War-John-Horgan/dp/1936365367) (Amazon) and videos:

John Horgan: The End of War? (http://www.youtube.com/watch?v=vM6rvequsz4) (short course, 5.5 min.)

John Horgan: The End of War - Bioethics Seminar (http://www.youtube.com/watch?v=IHaS6TKgXfQ) (longer course, 38 min.)

Authors: J Horgan, J Lears, D Swanson: "Wars and the Need to stop them!" (http://www.youtube.com/watch?v=6vqUDGjW00o) (long course, 1.5 hrs)

Horgan, Hastings Talk Refutes Genetic Determinism of War (http://www.thehastingscenter.org/News/Detail.aspx?id=5816) (2012)

Is war inevitable? Is it hardwired in human nature? Many believe that the answer to both questions is yes. But in his new book, The End of War, science journalist John Horgan reaches the opposite conclusion, making the case that “the end of war is possible, and even imminent.” Horgan discussed the research that led him to that optimistic view at The Hastings Center on April 26 as part of the Garrison Seminar series.

Horgan critically analyzes scientific claims that war is “in our genes,” including the supposed discovery of a “warrior gene” that promotes violence. Research has found minuscule difference in rates of aggression between carriers and noncarriers, he says. “My guess is that the warrior gene claim will eventually be discredited, because that’s the pattern with attempts to link complex behavioral traits to specific genes,” he writes in his book.

Horgan also debunks data cited in scientific literature that lethal group violence dates back to our common ancestors, chimpanzees. An example of such data is that the median annual death rate from intergroup aggression among chimpanzees is 140 per 100,000. In fact, Horgan says, as of 2004, researchers had directly witnessed only 12 deaths total from lethal intergroup aggression and that chimpanzee violence may be related to environmental factors such as population stress caused by human encroachment.

Horgan, director of the Center for Science Writings at the Stevens Institute of Technology in Hoboken, N.J., says his goal “is to start a conversation about why we fight and how we can stop."

In that respect ("... a conversation about why we fight and how we can stop..."), SWC is well in front of the pack.

(5) To conclude and summarize the Notes:

Except for Religious Laws (quite a separate topic, including internal matters in a religion, but also theocracies and theonomies), my Legal Domains do not recognize a "Brooding Omnipresence in the Sky". Yes, that comment and methodology is Holmesian; but, the times and experiences of Holmes and me differ - so, then, our "facts" and "laws" differ - as do our results.

Finally, I'll quote the part of Adam Smith's essay on Moral Sentiments (link in part 1) which I apply to the rules of justice in my Legal Domains, even though he intended his words to be applied to moral virtues:

But there are no rules whose observance will infallibly lead us to the attainment of elegance or sublimity in writing; though there are some which may help us, in some measure, to correct and ascertain the vague ideas which we might otherwise have entertained of those perfections. And there are no rules by the knowledge of which we can infallibly be taught to act upon all occasions with prudence, with just magnanimity, or proper beneficence: though there are some which may enable us to correct and ascertain, in several respects, the imperfect ideas which we might otherwise have entertained of those virtues.

Not Q.E.D.; but not an illusion either.

Regards

Mike

wm
08-15-2013, 01:54 PM
Mike,

The following are some questions/comments on your last 2-part post:

Is the listing of your legal domains ordered in any way? That is, is it, perhaps, hierarchical in a set theoretical way? For example, is Domestic Law a subset of Regional Law, etc? Or perhaps the listing represents a rank ordering for applicability/precedence? E.g., is Domestic more important/more fundamental than Regional, etc?

Your reference to Holmes, viz, "The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified" (Southern Pacific Company v. Jensen, 244 U.S. 205 (1917)) is, in my opinion, one of his appeals to common sense. As an aside I never figured out why the court ruled as it did in the case--seems to me a ship tied up in port is not on the high seas and, as a result, cannot be considered to be under maritime law, but that is a digression.

While on the subject of Homes' quotations, one of my favorites is this, "To have doubted one's own first principles is the mark of a civilized man." ("Ideals and Doubts," Illinois Law Review, Vol. X (1915)).

On Chomsky and Adam Smith:
When considering Chomsky's work in linguistics, one can see quickly how he is at odds with Holmes. Transformational-generative grammar is far from parsimonious. In fact it seems to create more "band-aid" rules every time a grammatical exception pops up. Each of its rules has an extremely expansive ceteris paribus clause. As a result the rules can become rather hard to apply.

Your ultimate quotation from Adam Smith includes the following important disclaimer, "And there are no rules by the knowledge of which we can infallibly be taught to act upon all occasions with prudence, with just magnanimity, or proper beneficence"(emphasis added)(Theory of the Moral Sentiments Part 3, Chap 6, http://knarf.english.upenn.edu/Smith/tms316.html). At the end of the day, we are still faced with weakness of the will--even though we know what we ought to do, sometimes we still don't do it. As an example, I've had Smith's Theory of the Moral Sentiments on my bedside table for over a year now but have been unable to force myself to finish rereading it, even though I know I ought to do so in order to finish my research on the hypothesis that Francis Hutcheson is the basis of much of Smith's thoughts (as well as Jefferson's and maybe Madison's)--Dickens keeps drawing me away.

jmm99
08-15-2013, 08:54 PM
but I'll try to answer the questions:

Is the listing of your legal domains ordered in any way?

1. No; not in any deeply thought out scheme as to the four major sets (Domestic, Regional, International, Religious). As to them, I did notice in making the chart that the order grows outward from the viewlens of the primitive "ME" - probably an influence of Churchland, Haidt et al. on my current mindset. To my mind, the sets grow less and less tangible as one moves from Domestic, through Regional & International, to Religious.

2. I "ordered" subsets of only two main sets (Domestic & International). As to Domestic, I used the US, where the Supremacy Clause gives precedence to Federal Law. However, the US of the Articles of Confederation would give a different answer; and the US of the Declaration of Independence another. Some countries have "Federal-State" divisions; others do not.

3. As to International, I used the very classical Oppenheim division into Laws of Peace (http://archive.org/details/internationallaw01oppeuoft) and Laws of War & Neutrality (http://archive.org/details/internationallaw02oppeuoft), occupying separate spheres and neither being over or under the other. I didn't explicitly confront the "issue" of how that classic division can be handled in the context of "War in Peacetime" (per our J. Lawton Collins and France's Andre Beaufre), or in the "Three Block War". My mind says that can be handled.

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That is, is it, perhaps, hierarchical in a set theoretical way? For example, is Domestic Law a subset of Regional Law, etc?

1. No. Definitely not in a formal set theoretical way; although (like Cantor (http://en.wikipedia.org/wiki/Georg_Cantor)) my mind accepts physical infinity, mathematical infinity and the Absolute Infinite (http://en.wikipedia.org/wiki/Absolute_Infinite), though it differs with Cantor on infinitesimals (http://en.wikipedia.org/wiki/Infinitesimal). The Absolute Infinite occupies a separate compartment in my mind, divorced from my mindsets directed to science, law and war (where "Gott mit uns" is, in my mindview, a blasphemy).

2. This needs work, but consider the development of a coalition, into and through a confederation, into a nation-state - e.g., the US over 1775-1865. Couldn't we see in that progression a shift from Regional Law as a "subset" of Domestic Law, to Domestic Law being a "subset" of Regional Law, to Regional Law becoming the new Domestic Law for the nation-state. Perhaps, the development of the EU could be similarly analyzed - any EU legal philosophers ?

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Or perhaps the listing represents a rank ordering for applicability/precedence? E.g., is Domestic more important/more fundamental than Regional, etc?

1. No, as to the four main sets for either applicability or precedence - unless one is made so over another. For example, a country's Domestic Law (usually in its Constitution or Basic Law) could specify that Regional and / or International Law have precedence over Domestic Law - and a number of states have done just that.

2. No, as to the four main sets for either more important or more fundamental. There could be a temporal primacy - e.g., my mind says that Domestic Law should be in place before Regional Law is formed. But, mankind has certainly created any number of regional and international organizations without having appropriate foundation blocks in place.

3. My Legal Domains, as charted, are "fuzzy"; going from the general to the specific is where the work comes in; and might not be worth the effort in a particular case. We see that in science where the generalized wave equation is simple:

http://upload.wikimedia.org/math/e/2/9/e29ddfcef18d182110adc56344a17967.png

but applying wave equations to, say, the kinetics of a very simple chemical reaction (hydrogen + oxygen > water) is very complex. There are simpler, but somewhat less accurate, ways of getting across the concept.

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A area that needs a bit more explanation is Religious Law. In a culture that is very secular (but still has religious groups), Religious Law applies to the internal workings of the religious groups - each group creating its own law - positing separation of church and state. Of course, the culture (even if very atheistic) may become quasi-religious by finding the source of its laws in some form of "Gott mit uns" - e.g., Nature-Reason as in the French Revolution, or its Political Dogmas (as in the Communist states). Whether religious or quasi-religious, the "Brooding Omnipresence in the Sky" looms large in those cultures' laws.

In any event, the "Brooding Omnipresence" will become very dominant in a theonomy (e.g., Western Europe of the Middle Ages according to Paul Tillich, A History of Christian Thought (http://www.amazon.com/History-Christian-Thought-Touchstone-Books/dp/0671214268); pp.322-323, sums it up in his words). In my words, almost everyone in the community buys into the same meme - God's Law. Hence it's not imposed on those believers; but springs from their beliefs. Mao's "from the people, back to people" had similar theoretical underpinnings (I'm not arguing that the ChiComs did that in practice). The modern US version of theonomy (e.g., Gary North (http://www.garynorth.com/freebooks/docs/2112_47e.htm)) has nothing to do with the concept of theonomy used by Tillich and me.

Today, we are more likely to see theocracies or ecclesiocracies (Wiki (http://en.wikipedia.org/wiki/Theocracy)), where Religious Law supplants all or part of Domestic Law; and, perhaps, Regional Law. The obvious examples are the Muslim countries, where both Islamic culture and Islamist fervor come into play. Our Islamic scholars here at SWC can better run with that topic than I. We all can conclude that Religious Law has played a material role in our Small Wars of the last 25 years.

Regards

Mike

TheCurmudgeon
08-18-2013, 10:21 PM
Recognition of someone as a fellow Prussian engenders trust. How? Is it merely artifactual or is it necessary? If it is necessary, what is the causal nexus?

I would say it is largely artefactual, a remnant of of a brain that was only designed to be a member of a small group (less than 100 members). In modern society where there are thousands of people you can interact with you need a shorthand to know who to trust.

Check out "less than human: Why we Demean, Enslave, and Exterminate Others (http://www.amazon.com/gp/product/0312532725/ref=oh_details_o08_s00_i00?ie=UTF8&psc=1)".

Also, along the same lines: "Extreme mass Homicide: From military massacre to genocide (http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CC8QFjAA&url=http%3A%2F%2Fwww.researchgate.net%2Fpublicatio n%2F222417608_Extreme_mass_homicide_From_military_ massacre_to_genocide%2Ffile%2F9c96051964c43caa27.p df&ei=GDERUqinDOr7yAH3oIHoBw&usg=AFQjCNGEPwWNpfNC_Q8JM7tMY7NIwubteA&sig2=zXNx95KnqUzgIy7dN3k9bg&bvm=bv.50768961,d.aWc)." A good read along the us-versus-them line of thought.

ganulv
08-18-2013, 11:31 PM
Transformational-generative grammar is far from parsimonious. In fact it seems to create more "band-aid" rules every time a grammatical exception pops up. Each of its rules has an extremely expansive ceteris paribus clause. As a result the rules can become rather hard to apply.

It might amount to a linguist’s aside not very germane to the discussion at hand, nevertheless…

If I understand correctly, and I might not as I have admittedly never taken a course in syntax (which is the bailiwick of the Chomskyan tradition), TGG takes for granted the existence of certain linguistic capabilities. It’s useful to consider how Chomskyans make use of the term ‘learning.’ They say that ceteris paribus, a child no more learns to speak than to walk. Rather, speech and walking manifest themselves. Grammatical and lexical exceptions are the elements of language that are learned.

There is some decent evidence for this perspective. The two best are probably the fact that children seem to invariably regularize and have to be taught not to in certain instances (like grammatical gender in Romance languages or umlaut plurals in English—“It’s ‘geese,’ not ‘gooses,’ Matthew.”) and creoles (which are by definition young languages and have very few irregularities). That evidence holds water to a certain extent, but there is counterevidence, too. When you have some knowledge of certain American Indian languages as I do and 1) see a lot more exceptions to rules than you typically do in Indo-European languages and 2) see pride of place in morphology rather than syntax, the foundations of the program appear a bit less stable.

There are a stock set of responses Chomskyans will make to objections. One is, “It is axiomatic that…” :rolleyes: