PDA

View Full Version : Gitmo and the lawyers!



davidbfpo
03-09-2007, 02:02 PM
Check this story on WSJ:

http://www.opinionjournal.com/editorial/feature.html?id=110009758

Kuwaiti GITMO prisoners and their release - after a legal and PR campaign.

davidbfpo

LawVol
03-09-2007, 02:51 PM
Although the "PR" campaign discussed inthis article is quite extensive, it is actually nothing new. Attorneys do this all the time. Think about trial footage you see on TV. Usually, the defendant is dressed in a nice suit and, if he speaks, he does so in a relatively articulate manner. You won't see him in his gang-banger clothes or using the lingo he normally resorts to. Perception is reality. Even in trial, jurors are often swayed by intangible factors. A male attorney may be able to get away with being agressive while a female attorney doing the same thing is simply being a bitch. The fact is that people are swayed by emotion and attorneys will look to that. As a prosecutor, I do it. I choose words carefully and based on the meaning I want to convey. These guys are simply doing the same thing to a greater degree.

The problem here, is that the US government gave them the opportunity to do this. Whether you believe we should fight this war using the criminal court system or not is irrelevant. We are doing it. In a war that could possibly have no end, we must have some method of closure with respect to individual detainees. The world public will not permit us to simply lock them up forever without some form of trial. We are already seeing the backlash from keeping them this long without a trial.

We lost valuable time and created an opportunity for this "PR" campaign by trying to create a new system to try these guys when we already had one in place. We should have used the Uniform Code of Military Justice and courts-martial as the method of trial. It has procedures that account for all the constitutional protections afforded in civilian courts and allows us to handle classified information. It can also accomodate the use of civilian attorneys. Moreover, we already have plenty of attorneys trained in this system that are available as prosecutors and defense attorneys.

By creating an entirely new system, we've opened the door for criticism and given an appearance that we've stacked the deck. I know some of the guys that have worked in and concerns about this system and I trust their opinion. There is something wrong. If we're going to try them, it has to be a fair trail. If all you want to do is hang them, then do it; but don't try to justify it with some pretense of due process.

Stan
03-09-2007, 03:15 PM
Julia Tarver, an attorney representing several detainees at Guantanamo Bay.


"The level of hopelessness in the camp has reached a point where our clients are literally vowing they have no other choice but to die. The treatment they are receiving from the guards and the medical staff at Guantanamo is very, very disturbing. What we've learned is that in some sort of ill-advised attempt to stop the hunger strike, the guards and the medical staff are using intervention, medical intervention, to actually inflict forms of torture on our clients. They claim that in order to preserve life at the base they are inserting tubes into the clients' noses that go down into their stomachs, and they're able to be fed that way. But the problem is the clients have told us horrific stories repeatedly, from different clients, about how these same tubes are being forcibly inserted in by riot guards, how they're taken from one detainee and inserted into the next detainee with no sanitization, with the bile and the blood still on the tube from the previous detainee.

More on the story: Torture, Suicide and Imprisonment: A Look Back at Five Years of Guantanamo

http://www.democracynow.org/article.pl?sid=07/01/11/1536252

LawVol
03-09-2007, 03:23 PM
I'm just not buying this type of argument. The Gitmo facility is surely the most inspected and observed penal-type facility in the world. The Red Cross is there often. I personally know attorneys that have been deployed there and the care these guys receive is better than our guys get at Walter Reed. The cells are completely clean. They have 3 hots a day, time to pray, exercise, etc. In fact, many of the detainees have actually gained weight while there. A few have actually asked to stay when they were released.

As for the involuntary feeding tubes, what would they say if we just let the guys die of starvation? Could you imagine the rancor?

Jedburgh
03-09-2007, 04:35 PM
It was almost two years ago that there was a sudden flurry of articles in military professional pubs voicing second thoughts about the effectiveness of Gitmo. With the shift we've had in Congress, and presidential elections rushing fast upon us, I believe there's a lot more pointed discussion of the issue coming....

...here's some of the older material:

From Joint Forces Quarterly: Guantanamo Bay: Undermining the Global War on Terrorism (http://www.ndu.edu/inss/Press/jfq_pages/editions/i39/i39_essaywin_03.pdf)

...In addition to undermining the rule of law, the consequence of the policy at Guantanamo has been to fuel global anti-Americanism, which undermines U.S. influence and effectiveness, degrades the domestic support base, and denies the United States the moral high ground it needs to promote international human rights. It appears that these costs have far outweighed the operational benefits that the detainee operations have generated...
From Parameters: Six Floors of Detainee Operations in the Post 9/11 World (http://carlisle-www.army.mil/usawc/Parameters/05autumn/ayres.pdf)

...There is good reason for the international community to agree upon more understandable and more stringent measures against unlawful combatants and terrorists in order to deter hostile forces from adopting such tactics. But we must not legitimize inhumane measures and debase ourselves by adopting anything like the tactics of the common enemies of mankind...
From Military Review: Defining Success at Guantanamo Bay: By What Measure? (http://usacac.leavenworth.army.mil/CAC/milreview/download/English/JulAug05/norwitz.pdf)

...Success in the struggle against terrorism will be measured in generations. When future strategists look back on the early years of this decade, they will not judge Camp Delta on the relative value of intelligence reports but on humanitarian issues, how detainees were treated, the legitimacy of the trial process, whether laws reflected evolving definitions of “combatants”, and how detainees were ultimately dealt with when America dismantled terrorist groups. As we discover what the law will not allow, serious action to define what is permissible will follow. Justice—evidenced by whether criminal defendants were successfully defended or prosecuted, acquitted or convicted, fairly sentenced and safely incarcerated or repatriated—will be the enduring legacy of America’s actions at Guantanamo...

zenpundit
03-09-2007, 06:02 PM
Part of the problem is that the Bush administration has been in no great hurry to mete out justice, military or otherwise. Consider the speed with which the German and German-American saboteurs in the Ex Parte Quirin case were caught, given a military trial ( by special tribunal if I recall), sentenced, had an appellate review by SCOTUS and then duly executed. Now consider Khalid Sheikh Mohammed, who is just now, perhaps, facing the initial steps in applying military justice.

Yes, in the wake of 9/11 there were overriding intelligence concerns with interrogating ranking members of al Qaida in American custody but five years? That speaks to an avoidance of justice as a policy with the unwelcome necessity of meting out death sentences to some of the illegal combatants and acquitting and/or paroling others. The inability of senior administration officials to settle differences of policy, authority and jurisdiction between the Departments of Justice, Defense, State and the CIA are also visible in the cases of Hamdi, Moussaoui and Padilla.

A streamlined, very tough but impartial and constitutional system to try illegal combatants for breaking the laws of war is very " doable" - if the political will exists to carry it out.

120mm
03-09-2007, 07:49 PM
"Lack of political will" is the correct phrase for most of the last 5 1/2 years of "war". And the end result appears to be no different by Bush and Co. "wussing out" on certain critical issues.

Culpeper
06-03-2007, 08:00 PM
June 3, 2007
A Legal Debate in Guantánamo on Boy Fighters
By WILLIAM GLABERSON (http://www.nytimes.com/2007/06/03/us/03gitmo.html?ei=5065&en=f01058c331ba869d&ex=1181534400&partner=MYWAY&pagewanted=print)


The facts of Omar Ahmed Khadr’s case are grim. The shrapnel from the grenade he is accused of throwing ripped through the skull of Sgt. First Class Christopher J. Speer, who was 28 when he died.

To American military prosecutors, Mr. Khadr is a committed Al Qaeda operative, spy and killer who must be held accountable for killing Sergeant Speer in 2002 and for other bloody acts he committed in Afghanistan.

But there is one fact that may not fit easily into the government’s portrait of Mr. Khadr: He was 15 at the time.

120mm
06-04-2007, 07:17 AM
At the age of 13, the German enclave where I grew up in Northwest Iowa declared me "a man". I could shave, I owned 20 head of cattle, 3 horses and a couple hundred pigs. I could drive a truck, owned guns and I sat with the other "men" and drank beer. (Interestingly, driving the truck and drinking beer in these circumstances was perfectly legal at the time, in Iowa.)

While I still lived with my parents, and went to school, I was treated as an adult by the other adults in my community.

Bottom line, you'll see why I don't see a problem with treating this former 15 year old as an "adult" combatant. The question is; why is it taking so long to categorize these guys as legal/illegal combatants and then dealing with them?

goesh
06-05-2007, 12:50 PM
Yup, if you can do the crime, you can do the time. I hear ya' 120mm - at age 12 I was doing a man's work on a tractor and my older brother at age 10 was doing a man's work in the fields. there were alot of 17 yr olds in Viet Nam in the early years and I have ancestors that were fighting Indians as young teens and had engaged the Brits in one battle each before the age of 18.

slapout9
06-05-2007, 02:40 PM
The process to charge a juvenile as an adult is pretty straight forward in Alabama it is just a due process thing. Why it takes so long in Gitmo is a very good question. LawVol this is your territory what's up with that?

LawVol
06-11-2007, 04:42 PM
I can't help you on that one Slapout. I'm only qualified to offer opinions on the law and I'm not sure if what they are doing down there qualifies as law. Rather than simply use the UCMJ for trying these guys, they've created something else that has alot of people concerned. The information sharing isn't done very well; you are in the dark unless you're involved with the process. I do know a guy that I respect alot that resigned his position there and is leaving the service. It seems a little strange coming from the same country that wants to spread law and order while wearing the white hat. But I digress...

Nice avatar by the way!

slapout9
06-11-2007, 05:39 PM
LawVol, thanks anyway.....Idea ask General Dunlap about this.

Jedburgh
07-26-2007, 01:01 PM
CTC, 25 Jul 07: An Assessment of 516 Combatant Status Review Tribunal (CSRT) Unclassified Summaries (http://www.ctc.usma.edu/CTC-CSRT-Report-072407.pdf)

...Between July 2004 and March 2005, the Department of Defense (DoD) conducted Combatant Status Review Tribunals (CSRT’s) for 558 detainees being held at U.S. Naval Base Guantanamo Bay, Cuba (GTMO). The DoD’s objective in conducting this tribunal process was to determine whether those detainees continued to warrant the ‘enemy combatant’ designation through a non-adversarial, administrative status review process.

In early 2005 3 DoD (the Office for the Administrative Review of the Detention of Enemy Combatants) released 517 CSRT (pronounced “see-cert”) unclassified summaries.4 These unclassified summaries, prepared in advance of the actual hearings, informed the detainees about the unclassified basis for their detention as enemy combatants. Of the 517 unclassified records, one of those records is a duplicate, which brings the total of CSRT unclassified summaries to 516. The DoD posted those 517 unclassified summaries (including the one duplicate) on its public website in response to a Freedom of Information Act (FOIA) request.

In 2007, the Office of Detainee Affairs in the Office of the Secretary of Defense, asked faculty at the Combating Terrorism Center (CTC) at West Point to review information recorded in the 516 CSRT unclassified summaries (hereinafter referred to as “CSRT records”) and provide an objective assessment of this information.

After querying the 516 CSRT unclassified summaries, the CTC found that 73% of the unclassified summaries meet the CTC’s highest threshold of a ‘demonstrated threat’ as an enemy combatant. The CTC established two other categories with four discrete proxy characteristics in each (‘potential threat’ and ‘associated threat’) in order to help assess whether the information in these records indicated these individuals posed or potentially posed a threat as an enemy combatant. The CTC found that six of the publicly available CSRT unclassified summaries contained no evidence that fit any of the CTC’s twelve threat variables....
Complete 39 page report at the link, plus:

Annex A - Assessment of the Seton Hall Report Findings (http://www.ctc.usma.edu/CTC-CSRT-ANNEX-A.pdf)

Jedburgh
07-27-2007, 09:32 PM
26 Jul 07 HASC testimony on Upholding the Principle of Habeas Corpus for Detainees:

Stephen Oleskey, Counsel for Six Guantanamo Detainees (http://armedservices.house.gov/pdfs/FC072607/Olesky_Testimony072607.pdf)

David Keene, American Conservative Union (http://armedservices.house.gov/pdfs/FC072607/Keene_Testimony072607.pdf)

Patrick Philbin, Former Associate Deputy Attorney General (http://armedservices.house.gov/pdfs/FC072607/Philbin_Testimony072607.pdf)

LTC Stephen Abraham USAR (http://armedservices.house.gov/pdfs/FC072607/Abraham_Testimony072607.pdf)

Daniel Dell’Orto, Principal Deputy General Counsel, DoD (http://armedservices.house.gov/pdfs/FC072607/DellOrto_Testimony072607.pdf)

Greg Katsas, Principle Deputy Associate Attorney General, DoJ (http://armedservices.house.gov/pdfs/FC072607/Katsas_Testimony072607.pdf)

Hownowcow
09-09-2007, 02:28 PM
It was almost two years ago that there was a sudden flurry of articles in military professional pubs voicing second thoughts about the effectiveness of Gitmo. With the shift we've had in Congress, and presidential elections rushing fast upon us, I believe there's a lot more pointed discussion of the issue coming....


You are absolutely right in your prediction that more is coming on this. I just returned from St. Louis and the "press sheet inspection" for the October issue of Joint Force Quarterly. On page 117 is a piece by Kyle Teamey that deals with detainees and counterinsurgency (this is already on our website). There will be three more articles on this issue in the January edition, one of which makes a case that is quite contrary to the 3rd place student essay that you cited from JFQ #39. In fact, Colonel Jim Terry's piece: "Habeas Corpus and the Detention of Enemy Combatants in the Global War on Terror (http://www.ndu.edu/inss/Press/jfq_pages/editions/i48/8.pdf)" capably deconstructs the emotional arguments against the GTMO detention facility.

Sarajevo071
11-23-2007, 04:08 PM
Guantanamo operating manual posted on Internet

The U.S. military's operating manual for the Guantanamo prison camp has been posted on the Internet, providing a glimpse of the broad rules and tiniest minutia for detaining suspected terrorists.

The 238-page manual, "Standard Operating Procedures for Camp Delta," is dated March 27, 2003, and signed by Army Maj. Gen. Geoffrey Miller, who was then the commander of the prison that still holds about 300 al Qaeda and Taliban suspects.

It appears to be an authentic copy of the rules as they existed at the time at the U.S. naval base in Cuba, a spokesman for the Guantanamo detention operation, Lt. Col. Ed Bush, said on Wednesday.

It says incoming prisoners are to be held in near-isolation for the first two weeks to foster dependence on interrogators and "enhance and exploit the disorientation and disorganization felt by a newly arrived detainee in the interrogation process."

Styrofoam cups must be confiscated if prisoners have written on them, apparently because prisoners have used cups to pass notes to other captives. "If the cup is damaged or destroyed, the detainee will be disciplined for destruction of government property," the rules say.
...


more here:
http://www.reuters.com/article/internetNews/idUSN1424207020071114

kehenry1
11-24-2007, 03:38 AM
Does this coincide with Yee's appearance on Syrian TV?


http://hotair.com/archives/2007/11/20/video-james-yee-says-korans-were-desecrated-at-gitmo/

Jedburgh
05-28-2008, 12:44 PM
DoJ OIG, May 08: A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan and Iraq (http://www.usdoj.gov/oig/special/s0805/final.pdf)

....Our report found that after FBI agents in GTMO and other military zones were confronted with interrogators from other agencies who used more aggressive interrogation techniques than the techniques that the FBI had employed successfully for many years, the FBI decided that it would not participate in joint interrogations of detainees with other agencies in which techniques not allowed by the FBI were used....
Note the careful verbiage. Complete 438 page report (with redactions) available at the link.

Jedburgh
06-10-2008, 07:15 PM
HRW, 9 Jun 08: Locked Up Alone: Detention Conditions and Mental Health at Guantanamo (http://hrw.org/reports/2008/us0608/us0608webwcover.pdf)

Approximately 270 prisoners remain at Guantanamo, most of whom have been in US custody for more than six years without ever being charged with a crime. Some 185 of them—including many of the several dozen individuals already cleared for release or transfer—are now being housed in prison facilities akin to and in some respects more restrictive than many “supermax” prisons in the United States.

Such detainees at Guantanamo spend 22 hours a day alone in small cells with little or no natural light or fresh air. They are allowed out only two hours a day (often at night) to exercise in small outdoor pens. Except for the occasional visit by an attorney or a representative of the International Committee of the Red Cross (ICRC), they have little human interaction with anyone other than interrogators and prison staff. For many detainees, isolated confinement is not a time-limited punishment for a disciplinary infraction, but something they have faced day in, day out, for months and years.

None of the prisoners currently held at Guantanamo has ever been allowed a visit from a family member, and most of them have never been allowed even to make a single phone call home during the six-plus years they have been detained. Detainees receive virtually no educational or rehabilitative programming to help them pass the time.

The US government is quick to say that most prisoners at Guantanamo are not technically in solitary confinement because they can yell at each other through the gaps underneath their cell doors; they can talk to one another during recreation time; and they are allowed periodic ICRC and lawyer visits. The reality, nonetheless, is that these men live in extreme social isolation, cut off from family and friends, and even, to a large extent, from each other. They spend most of their days alone in totally enclosed cells, with no educational and vocational outlets, and little more than the Koran and a single book to occupy their minds—something that is of little use to those that are illiterate. As is to be expected, the conditions at Guantanamo have reportedly caused the mental health of many prisoners to deteriorate, as a number of the cases in this report suggest.

As officials at Guantanamo point out, some detainees pose significant security risks, and detainee management is easier when detainees are locked in their cells 22-plus hours a day. But such extreme and prolonged isolation violates international legal obligations, and can aggravate desperate behavior, potentially creating worse security problems over time. Should detainee mental health problems mount, as the limited available evidence suggests is already happening, the practice will also complicate ongoing efforts to resettle or repatriate many of these men.
Complete 59 page report at the link.

selil
06-11-2008, 03:02 AM
Sorry Jedburgh I haven't read the entire report, but just from what you posted the conditions at Guantanomo would not meet US prison or jail standards. The only places that 22 hour lock down or special confinement is allowed for prolonged periods of time are at SuperMax in Canon City Colorado and the various Special Offender Centers. Each has their own methods of dealing with it. Inmate violence on the outside is NOT a concern unless the inmate has made specific and relevant threats upon incarceration. Most state and national standards also require judicial review at some point for that kind of lock down on pre-trial detainees. Most people have little to no understanding that what happens on the outside of a prison compound has little relevance on the inside. Both for the good and the bad. Unless you've worked in SuperMax or SOCs it is doubtful many people can understand the special breed of insanity that lock down breeds. This kind of lock down takes special training for the corrections personnel. Insanity inside a prison is literally infectious. I hope they are 3-4ing, or rapid rotating personnel.

Jedburgh
07-03-2008, 02:46 PM
IHT, 2 Jul 08: China Inspired Interrogations at Guantánamo (http://www.iht.com/articles/2008/07/02/america/02detain.php)

The military trainers who came to Guantánamo Bay in December 2002 based an entire interrogation class on a chart showing the effects of "coercive management techniques" for possible use on prisoners, including "sleep deprivation," "prolonged constraint," and "exposure."

What the trainers did not say, and may not have known, was that their chart had been copied verbatim from a 1957 Air Force study of Chinese Communist techniques used during the Korean War to obtain confessions, many of them false, from American prisoners.

The recycled chart is the latest and most vivid evidence of the way Communist interrogation methods that the United States long described as torture became the basis for interrogations both by the military at the base at Guantánamo Bay, Cuba, and by the Central Intelligence Agency.....
I take odds with the author's statement that the SERE program became a source of interrogation methods for the Army. I will caveat that by stating that I did have issues in the past with interrogators who had spent time working out at the RTL needing strong mentorship and focused training to ensure that the line remained stark and clear between methods used with those going through the RTL and methods that we use with prisoners and detainees. It would not surprise me that a former RTL interrogator had used such methods operationally - but that occurence is ultimately a leadership failure at the unit level. The article's implication that the Army - as an institution - adopted such methods is patently false.

Here's the '57 study referred to in the article:

Communist Attempts to Elicit False Confessions from Air Force Prisoners of War (http://www.pubmedcentral.nih.gov/picrender.fcgi?artid=1806204&blobtype=pdf)

....As a social scientist, I find of singular interest one result of the studies which we and other groups have recently made of Communist attempts to extort "confessions". It is that the finding of our studies whlich should be greeted as most ne-w and spectacular is the finding that essentially there was nothing new or spectacular about the events we studied. \We found, as did other studies such as those of Hinkle and Wolff (http://www.pubmedcentral.nih.gov/picrender.fcgi?artid=1806200&blobtype=pdf) that human behavior could be manipulated within a certain range by controlled environments. We found that the Chinese Communists used methods of coercing behavior from our men in their hands which Communists of other countries had employed for decades and Which police and inquisitors had employed for centuries. The Chinese interrogators succeeded or failed to influence the behavior of their victims roughly to the extent that the skill and persistence of the personnel they employed nmatched those of practitioners in other places and times.....

Jedburgh
09-17-2008, 10:26 PM
CSIS, 15 Sep 08: Closing Guantánamo: From Bumper Sticker to Blueprint (http://www.csis.org/media/csis/pubs/080905_mendelson_guantanamo_web.pdf)

George W. Bush, Barack Obama, and John McCain all agree that the United States ought to close Guantánamo. But how can we expand a position that has been little more than a bumper sticker—"Close Guantánamo!"—and turn it into a blueprint for real policy change? This report outlines an answer to this question.It will likely fall to the next administration to carry out this new policy. The challenges are considerable, and there is no "silver bullet." In fact, there are only imperfect options. That said, Sarah Mendelson and the CSIS Working Group on Guantánamo and Detention Policy have concluded that the costs of keeping Guantánamo open far outweigh the costs of closing it. They recommend that the process of closing Guantánamo should be achieved through a policy called R2T2:

- Review
- Release/Transfer
- Try

During his first week in office, the next president should announce the date for closure of Guantánamo as a detention facility in conjunction with announcing the establishment of a new policy. Implementation of this new policy would be charged to a blue-ribbon panel of eminent Americans tasked to review the files on all remaining Guantánamo detainees. The duties of the panel would include categorizing all detainees to be released or transferred to the custody of another government or, alternatively, to be held for prosecution in the U.S. criminal justice system, whose record in international terrorism cases far outshines that of the Guantánamo military commissions. Since 2001, the U.S. criminal justice system has convicted 145 terrorist suspects, whereas the military commissions, thus far, have only convicted two. Overall, this straightforward policy—R2T2 —can help restore our reputation as a country that is built on and embraces the rule of law.
Complete 31-page paper at the link.

jmm99
09-18-2008, 01:09 AM
from CSIS
They recommend that the process of closing Guantánamo should be achieved through a policy called R2T2 ... Review ... Release ... Transfer ... Try.
...
Implementation of this new policy would be charged to a blue-ribbon panel of eminent Americans tasked to review the files on all remaining Guantánamo detainees. ...

Got news for CSIS - we already have "a blue-ribbon panel of eminent Americans" working on the problem. We call them the Federal judges of the DC District and DC Circuit.

And, unlike a "Gitmo Commission", the present "blue-ribbon panels" have the authority to order compliance with their policy of "R2T2" - including putting offenders into the prisons of their choice.

PS: The next president should simply order DoJ and DoD to get with it and clean up these cases. We are dealing with roughly 400 cases at issue - not a large number.

davidbfpo
01-13-2009, 10:07 PM
Amongst our recent news was the report that the USA, as part of the close Guantanamo Bay, sought the help of Australia and the UK, to absorb some of those released. Sensible to a degree if nationals or past residents; none were. Australia declined and so had Tony Blair when PM. Gordon Brown's view was unclear.

So I like some of the thoughts here (http://council.smallwarsjournal.com/showthread.php?t=2643), send the detainees back to where they were detained, which I understood to be mainly Afghanistan.

davidbfpo

Ken White
01-13-2009, 11:24 PM
So I like some of the thoughts here, send the detainees back to where they were detained, which I understood to be mainly Afghanistan.never have been removed.

However, they were. No sense crying about it, it's done. Now we're stuck with people who cannot be tried for violation of US Law because making war against any nation outside that nation is not illegal. We could just release them -- and will release many who have IMO been held pretty much by, for and as Schmedlap says -- and as cover for those who should not be released because they are a threat and a significant one at that. They're prisoners of war in a new kind of war the Geneva Conventions -- and most nation's laws -- do not consider.

So we release Ali and he goes back to irregular warfare. So what, you say?

So he kills one American who happens to be one's nephew... Or one German who happens to be a diplomat and thus antagonizes the Germans. Contemplate what the effect would be were he to be far more effective and pull off a real coup of an operation...

We'd be roundly excoriated for releasing him.

Regardless, there is no easy solution; even the NYT admits that (LINK) (http://www.nytimes.com/2009/01/13/us/politics/13gitmo.html?_r=1&hp). They're going to be held somewhere without a trial for a while...

Ken White
01-14-2009, 01:46 AM
Check this Reuter's article (LINK). (http://www.reuters.com/article/worldNews/idUSTRE50C5JX20090113)

jmm99
01-14-2009, 03:21 AM
The Obama administration will find this a harder nut to crack than can be done by a generalized EO which will sound good in principle. The problem will come in reducing the principle - "Close Gitmo !!!" - to practice.

Closing Gitmo will not solve the problem - nor sending them "somewhere". As to that, sending them back to Astan and Bagram is as good a temporary solution as any. Temporary - cuz that is the next dinner plate coming up the dumb waiter, as I reported here (http://council.smallwarsjournal.com/showthread.php?t=4921&page=9), at posts ## 161 & 163.

Two separate questions concern these detainees; and the others who will surely come into our hands in the future.

1. Their status under the GCs as ratified by the US. The Federal courts who have looked at this question have generally found (across the spectrum) that Common Article 3 of the GCs determines their status. In short, the Taliban, AQ and associated detainees are not PW/POWs under GC III, or civilians under GC IV. The arguments hinge on what treatment should be given detainees with this CA 3 status - and how long the detention can last.

2. Criminal charges against those detainees under US law. First off, the statement that "making war against any nation outside that nation is not illegal" is simply not correct. It is correct to state that a lawful combatant can make war against any nation anywhere so long as that lawful combatant accepts and applies the laws of war.

Here, we again have two kinds of possible criminal charges.

2a. Criminal charges against detainee armed combatants who have Common Article 3 status - that is, armed combatants of a non-state actor (even if a "Power" in the armed conflict) which has not accepted and applied the GCs in its treatment of detainees, etc. In the olden days, they could be tried by a summary military board of field officers and even executed. CA 3 simply requires that they be tried by "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

2b. Criminal charges based on US Anti-Terrorist, Anti-Torture and War Crimes statutes. Those charges have nothing to do with Common Article 3 status, but hinge on whether the crime is committed by or against a US national.

Admittedly, the Bush administration has made a hash of explaining all this to the public - and, for that matter, in trying some of those cases competently. I await the practical solutions to be adopted by the Obama administrtation - a wait of 6 months to a year before we see a "field manual" would not surprise me.

At that point in time, some Bush Bashers will undoubtedly support the Obama "manual" - even if it resembles the Bush "manual" in all material respects. Ain't partisan politics wonderful ?

-------------------------

Some arguments have been made that the 1977 Additional Protocals I and II should be applied to CA 3 situations. Those were adopted by many countries in the heat of "surges" for anti-colonialism and wars of national liberation. The US did not ratify those protocals - nor were they ratified by India, Pakistan, Afghanistan, Iran and Iraq - which cover the present areas of interest.

PS: As I finished this, a Cheney bashing segment on this topic came on. The two media pundits either know nothing about the GCs and US criminal law; or, are simply mendacious.

Ken White
01-14-2009, 04:03 AM
...First off, the statement that "making war against any nation outside that nation is not illegal" is simply not correct. It is correct to state that a lawful combatant can make war against any nation anywhere so long as that lawful combatant accepts and applies the laws of war.Can you cite the statute from any nation that makes the actions of a foreign combatant who does abide by the 'laws' of war (I'd say there are none other than those each nation passes to govern its own conduct but we can save that argument for another time) criminal if said war is on the individuals own or another nations territory?
2a. Criminal charges against detainee armed combatants who have Common Article 3 status...

2b. Criminal charges based on US Anti-Terrorist, Anti-Torture and War Crimes statutes. Those charges have nothing to do with Common Article 3 status, but hinge on whether the crime is committed by or against a US national.If neither of those apply and the individual was detained on a field of battle by another belligerent and we assumed control for whatever reason, what then?

Or if the individual was captured in or as a result of combat action by US troops but no CA 3 status or criminal action other than engaging in combat is alleged?

Seems to me that the statement ""making war against any nation outside that nation is not illegal"" is not so much incorrect as it just offends the lawyerly sensibilities... :wry:
...I await the practical solutions to be adopted by the Obama administrtation - a wait of 6 months to a year before we see a "field manual" would not surprise me.Heh. A wait of over eight years on this score will not surprise me...
Some arguments have been made that the 1977 Additional Protocals I and II should be applied to CA 3 situations. Those were adopted by many countries in the heat of "surges" for anti-colonialism and wars of national liberation. The US did not ratify those protocals - nor were they ratified by India, Pakistan, Afghanistan, Iran and Iraq - which cover the present areas of interest.As we both know, they don't apply and the issue of unlawful combatants in accordance with the Third Convention is not a settled fact regardless of the ICY for the Former Yugoslavia decision based on the 1958 commentaries...;)

jmm99
01-14-2009, 06:03 AM
.... making war against any nation outside that nation is not illegal.

does not offend my "lawyerly sensibilities" - nor any other of my sensibilities (assuming I have any).

My objection is that it is overbroad; and it allows the bad guys to hide among the good guys (lawful armed combatants who commit no atrocities and have combatant immunity - even when we kill each other).

You recognize that distinction when you ask for a statute that makes criminal "the actions of a foreign combatant who does abide by the laws of war". Obviously, there is no such statute or convention because that statement is the same in substance as what I said:


It is correct to state that a lawful combatant can make war against any nation anywhere so long as that lawful combatant accepts and applies the laws of war.

The defining "statute" is Common Article 2 of the GCs which makes the conventions applicable to the High Signatory Parties involved in an armed conflict (somewhat broader in scope than a war under Hague); but also to a "Power" involved in that armed conflict - if that "Power" accepts and applies the conventions (e.g., North and South Korea during the Korean War, although practice did not always conform to principle). If that is the case, that Power's armed combatants are lawful and fall into GC III (as PW/POWs) and its civilian adherents into GC IV (as protected civilians).

Now, what of a Power to an armed conflict that does not accept and apply the GCs to its own military actions and its own detainees - even in the minimalist view that the GCs must only be applied (giving an implied acceptance) ? Very simply, its armed combatants are not lawful combatants to which the PW/POW provisions of GC III apply. That is so even if an individual armed combatant of that non-complying Power himself otherwise complies with the "laws of wars" as we understand them.

And, its civilian adherents are not entitled to the protected civilian provisions of GC IV. That is the price that one pays for adherence to a Power that does not apply the GCs. So, do these combatants and civilians have any rights ?

The answer is affirmative - under Common Article 3 of all the GCs, which applies to any non-state actor ("Power") which does not apply the GCs.

Those provisions, which recognize detention of both combatant and civilian adherents of a non-complying Power, require a trial before a competent tribunal before execution, etc. Similar provisions are in the main body of GC III (if a CA 3 detainee claims PW/POW status) and GC IV (if a CA 3 detainee claims protected civilian status). The last two claims are what the DC habeas cases are all about.

We have not charged AQ detainees with the crime of being unlawful armed combatants (which is allowed under CA 3). Gary Berntsen feels they should be charged and executed if convicted - for which, there are some older precedents under the "common law of war" ("We shoot partisans, don't we ?"). I happen to disagree cuz I don't like "common law crimes".

What is not in dispute is that CA 3 allows detention of persons subject to its protection. I can see no limit on duration of detention - until the end of the armed conflict with the non-complying Power to which the person adheres. A large group of apologists disagree with me and demand that CA 3 people have to charged with a crime or released.

-------------------------------
As to your questions:


If neither of those apply [no criminal charges and not an armed combatant] and the individual was detained on a field of battle by another belligerent and we assumed control for whatever reason, what then?

The only valid reason for detention would be the civilian's adherence to the non-complying Power (e.g., to AQ). The DoJ claimed this as to the Uighurs and got smacked on the facts. I suppose this ground for detention could be useful where the person is a member of the non-combatant infrastructure of the non-complying Power - and you could prove that. Otherwise, he's a protected civilian under GC IV.


Or if the individual was captured in or as a result of combat action by US troops but no CA 3 status or criminal action other than engaging in combat is alleged ?

Since you exclude CA 3 status, the combatant cannot be a adherent of the non-complying Power (e.g., Taliban). A wayward Pakistani ISI advisor, perhaps ? Since Pakistan is a High Signatory Party to GC III, I suppose he would be a PW/POW under GC III. Interesting case hypothetical.

Were you thinking back to your mispent youth as an advisor ? Again, practice did not accord with theory - (e.g., Dan Pitzer, Nick Rowe and Rocky Versace - not a hypothetical).

You keep me up too late.

Ken White
01-14-2009, 06:35 AM
My objection is that it is overbroad...Penalty of being old... ;)
and it allows the bad guys to hide among the good guys (lawful armed combatants who commit no atrocities and have combatant immunity - even when we kill each other).Always a possibility and I have little doubt that a few have so hidden in most wars but on balance, most get caught at it or killed. It all works out.
... Obviously, there is no such statute or convention because that statement is the same in substance as what I said:Huh. That's funny -- I thought that's what I said -- that what you said was what I said. More or less... :D
We have not charged AQ detainees with the crime of being unlawful armed combatants (which is allowed under CA 3). ... I happen to disagree cuz I don't like "common law crimes".

What is not in dispute is that CA 3 allows detention of persons subject to its protection. I can see no limit on duration of detention - until the end of the armed conflict with the non-complying Power to which the person adheres. A large group of apologists disagree with me and demand that CA 3 people have to charged with a crime or released.I agree with you and not Berntsen or the apologists...
...The DoJ claimed this as to the Uighurs and got smacked on the facts.Dumb cliam by DoJ.
I suppose this ground for detention could be useful where the person is a member of the non-combatant infrastructure of the non-complying Power - and you could prove that. Otherwise, he's a protected civilian under GC IV.That's what I thought and the issue then becomes that he got picked up as a possible fighter -- wrong place at the wrong time -- and it could be exceedingly difficult to prove he was NOT a civilian entitled to GC IV. So either you determine he is such and let him go or you're sure that he was in fact a fighter but you may not be able to prove that so you just hang onto him -- particularly if you think he might return to his old ways...
Since you exclude CA 3 status, the combatant cannot be a adherent of the non-complying Power (e.g., Taliban). A wayward Pakistani ISI advisor, perhaps ? Since Pakistan is a High Signatory Party to GC III, I suppose he would be a PW/POW under GC III. Interesting case hypothetical.Do I exclude it or can I just not -- or don't wanta -- prove it??? :wry:

wm
01-14-2009, 02:43 PM
A former military prosecutor said in a declaration filed in federal court yesterday that the system of handling evidence against detainees at Guantanamo Bay is so chaotic that it is impossible to prepare a fair and successful prosecution.
This is the lead sentence from a story here (http://ebird.osd.mil/ebfiles/e20090114649888.html).

So, could one option be to release all the detainees because the control of evidence has been so botched that the possibility of fair trial no longer exists? The US then just brings all the detainees back to where they were first detained and releases them.

(An interesting twist on the old "catch and release" program:
Announcer: Well, detainees, thank you for playing "Lock Up the Terrorist." Johnny, please tell the contestants, our studio audience, and the folks at home, about the lovely parting gifts we have for them. )

jmm99
01-14-2009, 06:40 PM
The WP article is here (http://www.washingtonpost.com/wp-dyn/content/article/2009/01/13/AR2009011302888_pf.html). This case and other cases with much the same problems have been posted in "War Crimes". I'll try to get back to this later this afternoon or tonite - and see if I can link to the original declaration.

jmm99
01-14-2009, 09:55 PM
The WP article, and another Gitmo article here (http://www.antiwar.com/ips/fisher.php?articleid=14059) (with a slant), deal with the Jawad and Khadr cases - both involving alleged grenade tossers.

Posts on the Jawad case are here (http://council.smallwarsjournal.com/showthread.php?p=54811&highlight=jawad#post54811) (#63), and here (http://council.smallwarsjournal.com/showthread.php?p=59238&highlight=jawad#post59238) (##121 & 124).

Posts on the Khadr case are here (http://council.smallwarsjournal.com/showthread.php?p=54883&highlight=khadr#post54883) (#62), and here (http://council.smallwarsjournal.com/showthread.php?p=60814&highlight=khadr#post60814) (#147)

Since this thread is about lawyers and Gitmo, we may as well start with some of the lawyers. The first thing we have is a tom cat p...ssing match between LTC (ret) Darrel Vandeveld and COL Lawrence Morris. That may or may not have anything to do with the merits. One thing sure - those two are not about to agree on anything.

We also have MAJ David Frakt (defense for Jawad) who has elected to try the case in the media. That is his right - since he is not under a gag order. I wouldn't chose to do that, but that is a matter of taste, not ethics. Watched the MAJ on TV last nite and was not that impressed (purely IMO).

The only lawyer I personally know who is involved in one of the Gitmo cases is Mike Cooper, pro bono defense for one Adel El Ouerghi (http://en.wikipedia.org/wiki/Abdul_Bin_Mohammed_Bin_Abess_Ourgy), an alleged "Tora Bora boy" with some Tunisian problems. Mike is older than I and younger than Ken.

Mike has chosen the quiet approach (via diplomacy through DoS Legal Advisor's Office) to find a new home for his client. Mike's suggestion to the court is here (http://docs.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2008mc00442/131990/22/0.pdf). No merits decision yet that I could find. If diplomacy doesn't work, then Mike has reserved the habeas route.

----------------------------
These two grenade cases (like many others) involve two separate issues:

1. Whether and how long the detainees should be detained, which is a CA 3 question.

2. Whether the detainees are guilty of criminal charges (murder and attempted murder), which is a Federal statutory question.

The media mixes these two issues with reckless abandon - and so do defense counsel since the criminal charges require a higher standard of proof and the evidence (that which exists) is weaker.

The problem of missing and undisclosed evidence is a valid gripe (IMO), which has been discussed in a number of "War Crimes" posts.

------------------------------------
Sending them all back to Bagram - and starting from square one - has some merit. Release for all - no; release for those against whom there is no probable cause to find them armed combatants or AQ adherents - yes.

Only problem with that is that the DC District has hold orders on all of the habeas detainees - limited to Gitmo. The Federal judges will eventually (within this year) decide which detainees should be held and which should be released. Those hearings are solely on the lawfulness of detention, not what crimes may or may not have been committed.

That process will continue unless DoJ decides to fold on all of the cases. If these decisions pile up, the Obama administration may simply decide to let the Federal judges decide the detention issue.

jmm99
01-15-2009, 06:38 PM
in the El Gharani case, which is here (http://council.smallwarsjournal.com/showthread.php?p=64380#post64380) (post #165), illustrates many points raised in prior posts above.

If the other Federal judges would move with his diligence over the next 6 months, these Gitmo cases could be cleaned as to the issue of detention.

That would still leave the questions of where and how long to detain - as well as the question of what crimes (if any) should be charged against those whose detentions are found valid. Those questions must be addressed by the Obama administration in specific terms.

J Wolfsberger
01-15-2009, 08:36 PM
Suppose we simply release them to wherever. Over the following few years, a few will initiate lawsuits, some will try to build useful lives, and so on. Some will almost certainly pop up again in terrorist or insurgent actions. After the first couple of incidents where the good guys take casualties from recycled bad guys, what is the likely response of the good guys when presented with the opportunity to take a prisoner?

Second question concerns potential trial rules. Are we going to see these people released because nobody read them their Miranda rights? Will they be released because the troops were too busy fighting to properly gather evidence? Will they be released because we sent troops instead of cops, lawyers and public defenders?

I'm also confused about just exactly what has gone on. These people were captured on the battlefield. They went through the tribunals, I thought, to determine a. whether they were engaged in acts of war and b. whether they were "protected persons" as defined by the GC. If the answers were no or yes, I thought they were released. I also thought that if there was too much uncertainty, they were released, which led to our guys meeting some of them on the field of battle again. Did I miss, or misunderstand, something? Haven't we been following the GC by determining their status? Aren't the people still in Gitmo the ones who were determined a. to have been engaged in acts of war and b. to be unprotected persons under the definitions of the GC?

Ken White
01-15-2009, 10:04 PM
At least, I don't think they are. I'd be willing to bet a bunch of money that the first 'hypothetical' has occurred, is occurring and will continue to do so due to the "catch and release" policies. Joe is not stupid...

Policy makers sometimes let their idealism or urge to please get in the way of their common sense.

For the second, I don't doubt it'll get that bad in some courts.

For the last, mostly true, I think but there are a few of questionable status who are the cause a lot of friction due to trials by media, adverse publicity and / or some curious actions by DoJ -- most caused, I'm sure by some Intel Agency worried about releasing too much info in an Unclas forum.

However, I think I totally understand your logic and agree...

jmm99
01-16-2009, 04:45 AM
[3] I'm also confused about just exactly what has gone on. ...

I'll keep this short. The basic problem was that CSRT review was flawed (not so much as it was written, but in how it was run and staffed). The net result was that no one had any confidence that all the bad guys were really bad guys. That was exemplified in the two completed MCA trials, where the military judges re-determined (before the merits hearings) the detainee's status as an "enemy combatant" ("unlawful combatant"). It also has been proved by the 6-3 release score in the habeas cases decided by Judge Leon (not a liberal by any test).

The simple issue of a detainee's status (EC or not) is not rocket science, since it is really a question of whether there is probable cause (50% + a nose) to hold. That question is decided by Federal and state magistrates (lower level judges) in 100s of cases every day. Ken hits on part of the problem (secrecy) which was as much DoD and Bush WH policies as intel. As the Federal court cases prove, classified information is not a valid issue. It has been handled without problems to the US in many detainee cases.

In any event, the DoJ (not the detainees and not the courts) took the initiative to scrap the CSRT process - and the DC Circuit in Bismullah agreed with DoJ, as reported here (http://council.smallwarsjournal.com/showthread.php?p=64380#post64380) (#164). So, EC status will have to be re-determined in each of the habeas cases - as Judge Leon is doing.

--------------------------

[2] ... Are we going to see these people released because nobody read them their Miranda rights? Will they be released because the troops were too busy fighting to properly gather evidence? Will they be released because we sent troops instead of cops, lawyers and public defenders?

As to Miranda - definite "No release" under present MCA rules. If torture (defined in MCA) or "totality of circumstances" proves the unreliability of a statement, the statement must be excluded. But, that does not release the detainee if other evidence proves EC status. See how Judge Leon (link in #35 above) went through the charges and evidence item by item. He was more than willing to remand the detainee to custody if the DoJ could win on only one item. It couldn't make a preponderence on any item.

What I'm seeing in these cases, is that the field investigations were fine. The problems have been loss of evidence (e.g., chain of custody) which was properly collected by troops in the field; and the failure to follow up the leads suggested in that evidence. Those failures were DoD and DoJ failures (in part caused by transfer of detainees and evidence between commands and agencies). IMO that is the main reason for secrecy in these cases - call it CYA. In this area, our troops can walk and chew gum at the same time (without added cops, lawyers and public defenders). The same can't be said for DoD and DoJ.

------------------------------

[1] Suppose we simply release them to wherever. Over the following few years, a few will initiate lawsuits, some will try to build useful lives, and so on. Some will almost certainly pop up again in terrorist or insurgent actions. After the first couple of incidents where the good guys take casualties from recycled bad guys, what is the likely response of the good guys when presented with the opportunity to take a prisoner?

IMO (not a legal analysis) -

The good guys will (1) adopt their own release policy (detention or a form of release); (2) render the detainees hors de combat (any of Indian ancestry out there still adept at hamstringing ?); or (3) kill the detainees. All according to the situation and the commander.

Here is one view from MAJ "Fury". Context: Some AQ surrendered at Tota Bora. A group of them, escorted by Ali's muhj, ran into MSS Grinch (a composite Delta-SBS force of about two dozen).


Upon seeing the American commandos, the muhj became nervous, clearly not wanting the boys near their prisoners. A rumor had spread after the laughable surrender deal a few days earlier that the Americans would kill all prisoners in cold blood. In a war zone, that wasn't necessarily a bad reputation to have.

The "Grinch boys" and their attached Arab linguist did get near the AQ prisoners and engaged in a brief photo op and debriefing, including one AQ who responded to a question about UBL by saying: "I could tell any Muslim brother where Sheik Usama is; and they wouldn't tell you."


Every nervous muhj guard present during this exchange thought the next action would be an American commando putting a .45-caliber hard ball into the prisoner's smart-ass mouth. But we are more civilized than our terrorist adversaries, a characteristic seen as a sign of weakness by al Qaeda's ilk, and let them live. In a war zone with these people, such compassion isn't such a good reputation to have.

Dalton Fury, Kill Bin Laden (2008), pp.269-270, which is available here (http://www.amazon.com/Kill-Bin-Laden-Commanders-Account/dp/0312384394) (a good book for JAG officers to consider in advising go and no-go).

I will keep blowing my trumpet that "a law of war" must be based on actual reciprocity in practice. Otherwise, it will not work.

The Obama administration would do well to remember that when it makes the "new rules" in this and other areas (e.g., targeted killings).

Ken White
01-16-2009, 05:41 AM
...IMO (not a legal analysis) -

The good guys will (1) adopt their own release policy (detention or a form of release); (2) render the detainees hors de combat (any of Indian ancestry out there still adept at hamstringing ?); or (3) kill the detainees. All according to the situation and the commander.I believe that (1) would be precluded by the commands; (2) Is highly unlikely. Most Americans do not go in for torture, mutiliation or unnecessary wounding; to be sure, some do but they're a minority (3) but most will kill someone in a heartbeat -- and what the commanders says or wants may or may not have an impact; most firefights are not very well organized...
Dalton Fury, Kill Bin Laden (2008), pp.269-270, which is available here (http://www.amazon.com/Kill-Bin-Laden-Commanders-Account/dp/0312384394) (a good book for JAG officers to consider in advising go and no-go).I disagree. Fiction is not a good guide for lawyers...
I will keep blowing my trumpet that "a law of war" must be based on actual reciprocity in practice. Otherwise, it will not work.I do not disagree with you on "a law of war" but would remind you that Ali or Joe do not always heed the laws or their bosses; sometimes they think for themselves and do what makes sense to them. Americans in particular are very much into independent action and making decisions. They also tend to be selfish and to dislike excessive or unnecessary work, so catching the same guy three times in three months doesn't seem to them to be really smart...
The Obama administration would do well to remember that when it makes the "new rules" in this and other areas (e.g., targeted killings).I'm unsure what you mean by targeted killings. if you mean the attacking with direct action groups -- or Hellfires from predators -- of so-called 'high value targets' or the leaders of insurgent or opposition groups, I suspect you'll be disappointed. That's a technique that's as old as warfare and it works...

jmm99
01-16-2009, 07:13 AM
... (1) would be precluded by the commands

What commands ? The context of JW's example suggested a group of good guys acting independently in fact - thus, no assumption of "legalisms" or ROEs for that matter. So, good guys decide what to do individually or do what their commander tells them. Aside from capture (detention), accepting surrender and leave in place is another (lots of variations here if you have an imagination - which you do).


(2) Is highly unlikely. Most Americans do not go in for torture, mutiliation or unnecessary wounding; to be sure, some do but they're a minority

I see - OK to kill them (#3), but not disable them (BTW a necessary wounding assuming your team cannot detain prisoners). More humane to kill than to maim. Perhaps true to a majority of Americans.


(3) but most will kill someone in a heartbeat -- and what the commanders says or wants may or may not have an impact; most firefights are not very well organized...

Nope, won't let you cop out so easily - BTW: agreed that there is a lot of slack in a firefight & so, a surrender is a risky proposition until the situation becomes stable. I'm assuming a stable situation after the firefight, where the choice has to be premeditated and deliberate.

Hell, let's simplify this. Mission (one person team) is to get from point A to B. AQ retread (one person) fights and surrenders. Your (or my) choice is (1) detain AQ as captive, bring AQ back to A and abort mission; or possibly leave him in place in some way so he won't screw up you getting to B; or (2) disable him so he probably won't screw up you getting to B; or (3) kill AQ so he will not screw up you getting to B (and also correcting the screwup in someone releasing him in the first place). Add to it: no Operational Law Handbooks, ROEs, etc. - in short, only White's Law (or McCarthy's Law) applies.

I don't think that situation is that simple - and probably has no correct answer. However, your move ...

----------------------

I disagree. Fiction is not a good guide for lawyers...

What is your factual basis for the assertion that the book is fiction. Since I'm a Dalton Fury neutral, I stand to be educated by facts. If the man is "not factually accurate" (he says the book is fact), I'd like to hear the facts.

------------------------

I do not disagree with you on "a law of war" but ....

We agree here - and that is what I am getting at by actual reciprocity. I would add that our troopers see even less reciprocity where American detainees in AQ hands are beheaded, mutilated, etc. The problem of AQ retreads is a smaller subset of a much larger problem caused by AQ-Taliban non-compliance with the GCs. Where there is a substantial disconnect between the law and those subject to the law, the law will fail.

-----------------------
Yup, I do


mean the attacking with direct action groups -- or Hellfires from predators -- of so-called 'high value targets' or the leaders of insurgent or opposition groups

My disappointment will be if the "new rules" outlaw those tactics. AQ has no qualms about killing our leaders - and destroying our government. Actual reciprocity in this instance supports continuation of the tactics.

Trying to figure why you read me wrong. I think it is because some people do argue that we should not kill their leaders because, if we don't do that, they won't kill our leaders. Now, if that theory worked in practice, there would also be actual reciprocity. I will start believing those apologists when beheadings, suicide bombings and a number of other things end.

Ken White
01-16-2009, 05:29 PM
What commands ? The context of JW's example suggested a group of good guys acting independently in fact - thus, no assumption of "legalisms" or ROEs for that matter.Not so, he gave no context, you assumed that -- and it's incorrect.
So, good guys decide what to do individually or do what their commander tells them.The 'good guys' will determine what to do individually only so much as the situation allows, if the ROE governing contacts say capture, the commander on the ground will almost certainly follow the rules. However, if Joe decides that a given person he sees had been seen before, he may ignore his commanders desires and the ROE -- IF he thinks he can get away with it. That is far from an unknown phenomenon.
Aside from capture (detention), accepting surrender and leave in place is another (lots of variations here if you have an imagination - which you do).Thank you for the acknowledgment of my imagination; an accolade from the cretaor of the Chimps... :D
I see - OK to kill them (#3), but not disable them (BTW a necessary wounding assuming your team cannot detain prisoners). More humane to kill than to maim. Perhaps true to a majority of Americans.Correct in my observation and experience -- not in my imagination; yours is the one that went to maiming. ;)
Nope, won't let you cop out so easilyWatch it. I'm not trying to cop out of anything.


- BTW: agreed that there is a lot of slack in a firefight & so, a surrender is a risky proposition until the situation becomes stable. I'm assuming a stable situation after the firefight, where the choice has to be premeditated and deliberate.There you go with the ass u me bit again. That is very unlikely to occur, the chances of detection are too great and penalties for doing that are too severe. If it occurs, it will be in the heat of a firefight or not at all.
(omitted as unnecessary)... let's simplify this. Mission (one person team) is to get from point A to B. AQ retread (one person) fights and surrenders. Your (or my) choice is (1) detain AQ as captive, bring AQ back to A and abort mission; or possibly leave him in place in some way so he won't screw up you getting to B; or (2) disable him so he probably won't screw up you getting to B; or (3) kill AQ so he will not screw up you getting to B (and also correcting the screwup in someone releasing him in the first place). Add to it: no Operational Law Handbooks, ROEs, etc. - in short, only White's Law (or McCarthy's Law) applies.I strongly doubt anyone can say what they'd do in your hypothetical situation; you say "'one person team" and if that means an individual operating alone (improbable but possible) then none can accurately say what they would do in a situation until they're in that situation, there are simply too many variables.
I don't think that situation is that simple - and probably has no correct answer. However, your move ...It never is; few do; and I'm not moving anywhere.
What is your factual basis for the assertion that the book is fiction. Since I'm a Dalton Fury neutral, I stand to be educated by facts. If the man is "not factually accurate" (he says the book is fact), I'd like to hear the facts.My factual basis is that he could not tell everything that occurred in the book due to the classification of the actions involved, that his was not the only unit that had that mission and thus that his book may be mostly fact -- but cannot be totally so. I used the word 'fiction' simply to point out that his book, like many others will ALWAYS leave out some things and will be a one person view of what occurred and thus not all encompassing. Memoirs and "I was there" books are seldom totally factual, they cannot be for a variety of reasons, thus there's always an element of fiction or "I think what happened was...' I can also say that I hear among his former compatriots there are mixed emotions about that specific book
...I would add that our troopers see even less reciprocity where American detainees in AQ hands are beheaded, mutilated, etc.Based on what I hear, they seem to be very much aware of that; the word is that avoiding capture is paramount...
Trying to figure why you read me wrong.It's an imperfect medium for communication; my excessive wordiness is an attempt to add clarity in view of the lack of expression and context due to the medium; even that frequently doesn't work as this exchange shows -- as one of my kids says, the internet doesn't do nuance... :wry:

jmm99
01-16-2009, 07:00 PM
Thank you for the acknowledgment of my imagination; an accolade from the creator of the Chimps...

Nope, I can't claim credit for invention of the Chimps and the Gorilla. That credit belongs to this guy, whose post #70 (13 Nov 2008) can be found here (http://council.smallwarsjournal.com/showthread.php?p=60019&highlight=chimps#post60019); and who said:


That does not mean that we need to continue our current approaches and 'strategies.' No one messes with 600 pound Gorillas -- unless the gorilla proves himself so utterly lacking in agility that he can be annoyed to distraction if not defeated by a young chimpanzee...

That's where we are. If I weighed 600 pounds, I'd stay out of the Chimps cage but if one got close to me, I'd just kill him. Other than that, I'd leave them alone if they left me alone. Some of them -- not most -- would be likely to respond by standing off at a distance and throwing whatever came to hand. Not a prob; I can throw also -- and bigger stuff, harder -- and should be willing to prove that to them at the slightest provocation. They'll soon quit...

I liked this zoo example then and still do - gets down to the basic equation, without evasion and escape.

As to the rest of your "Counter factual?", I'll be back after a little bit of simian contemplation. :D

jmm99
01-16-2009, 07:41 PM
always too many variables - in real life.


My factual basis is that he could not tell everything that occurred in the book due to the classification of the actions involved, that his was not the only unit that had that mission and thus that his book may be mostly fact -- but cannot be totally so. I used the word 'fiction' simply to point out that his book, like many others will ALWAYS leave out some things and will be a one person view of what occurred and thus not all encompassing. Memoirs and "I was there" books are seldom totally factual, they cannot be for a variety of reasons, thus there's always an element of fiction or "I think what happened was...'

Totally agreed. BTW: "fiction" IMO is a bad word (sound bite) in this situation, since some would read it as a charge of fabrication and lying on the author's part. Perhaps, "factually incomplete" or "context incomplete" would be better - nuff said, since I don't like semantic arguments.

So, what do we do when the context is incomplete and there are too many variables - I suggest that applies to all real life situations ? Thus,

1. Freeze like a deer in the headlights - "Oh, I just don't have enough facts. There are just so many variables. Oh God, what shall I do ?" Not a good place for complex planning.

2. Jump right or jump left. One or both options may be wrong - you still may be dead. Perhaps better if you'd a thunk out some options (simplified hypotheticals) ahead of time and practiced them. Anyway, not a time and place to re-invent the wheel.

-----------------------
and I agree with your kid:


It's an imperfect medium for communication; my excessive wordiness is an attempt to add clarity in view of the lack of expression and context due to the medium; even that frequently doesn't work as this exchange shows -- as one of my kids says, the internet doesn't do nuance...

We could get to the point(s) much better and quicker if we were sitting on your back porch with beers and bourbons - "candy is dandy, but liquor is quicker". Not on my back porch, cuz we's a heading for 200" right quickly. Have to eat something and blow snow. :)

PS: No problem with your "excessive wordines" cuz I don't think it's excessive. But, you certainly are a master of verbal escape and evasion - not a bad thing BTW. Working backwards from the bottom to the top of your post - "I shall return".

Ken White
01-16-2009, 07:42 PM
Nope, I can't claim credit for invention of the Chimps and the Gorilla. That credit belongs to this guy, whose post #70 (13 Nov 2008) can be found here (http://council.smallwarsjournal.com/showthread.php?p=60019&highlight=chimps#post60019); and who said...a simple one shot metaphor may be credited for the invention thereof but it doesn't seem to me that it equals in imagination the adoption and multiple uses??? LINK (http://council.smallwarsjournal.com/showpost.php?p=60050&postcount=74), Many, many LINKS (http://council.smallwarsjournal.com/search.php?searchid=957805) -- I suppose one could argue that for hours on end... :D

Ken White
01-16-2009, 07:51 PM
..you certainly are a master of verbal escape and evasion - not a bad thing BTW.Attorneys. Sort of a learn by doing thing... :D

If anyone wants a straight answer from me, all they have to do is ask a straight question. Attempts to tap dance on the head of a pin OTOH will usually draw a broadly similar response. I really prefer straight talk as opposed to dazzling with footwork but am prepared to play either way. Always remember, snark draws snark as they say... ;)

jmm99
01-16-2009, 08:11 PM
I have many friends who are ... Attorneys. Sort of a learn by doing thing...

I like that one also.

This also seems a factually accurate statement (unfortunately based only on what you write - neither one of us can accurately assess the realities that attach to the other one - an Internet defect).


I really prefer straight talk as opposed to dazzling with footwork but am prepared to play either way.

Also accurate:


... but it doesn't seem to me that it equals in imagination the adoption and multiple uses???

Which can be a strength or a weakness. Usually a strength for me, but sometimes running with the ball ends up in getting clobbered.

Snow !!

Ken White
01-16-2009, 08:22 PM
Snow !!But please, please, keep it up there. It's 29°F here now and that's enough winter wonderland stuff, thank you...;)

reed11b
01-16-2009, 08:49 PM
But please, please, keep it up there. It's 29°F here now and that's enough winter wonderland stuff, thank you...;)

Perhaps you should move up here to Alaska, Ken. It is currently 43 degrees here in Anchorage.
Reed

Steve Blair
01-16-2009, 09:26 PM
In the 50s here in Montana. We'll take your snow and cold, Ken.

Ken White
01-16-2009, 09:44 PM
I know where this (LINK) (http://www.weather.com/weather/local/USWI0288?lswe=Green%20Bay,%20WI&lwsa=WeatherLocalUndeclared&from=searchbox_typeahead) was before it got there...

Or something like that. :D

jmm99
01-16-2009, 10:45 PM
2F, 162" fallen (as of yesterday) w/ 4"" overnite, 34" of ground cover - a lovely sunny day. And as you can see from this (http://www.weather.com/weather/map/49930?from=mapsubnav&ref=/weather/map/interactive/49930&mapdest=Radar_2100_Mile:MW), our trail element is now over St. Louis as the column heads SSE - Hi, Ken.

Back to the main topic later tonite. Had to stop at office to check email, get some $, etc. My paralegal is stuck in SEA for a couple of weeks - poor dear ;). Too hot for me there (http://www.weather.com/outlook/travel/businesstraveler/tenday/THXX0002?from=36hr_topnav_business).

jmm99
01-17-2009, 04:12 AM
I obviously have not been communicating my design and intent here. Let me start by taking a few steps back.

Most questions I address here are interpreted by me to be asking the first question below - even though I realize that the other two questions often lurk in the background.

1. What is the law here ?

2. Is it a good law ?

3. What should the law be ?

What you usually get is my best shot at what the law is - realizing that reasonable people can disagree even as to that basic question. That answer usually doesn't address the other two questions - I may think the law (which I have spent many bytes to explain) is lousy - and that the law should be something else. You could substitute "ROE, SOP, order" for "law" and the process is the same.

It is easy enough to gripe about question 2 ("good, bad, in between"); but it is much harder to answer question 3. To do that you have to stick your neck out and assert your new proposition. Of course, we can simply stay with what we have - leave the law as it is and live with it. Judging from comments about micro-managing JAG officers (and agreements with those comments), there is a disconnect between the law as it is and the people it must serve - the troops in the field.

If you address question 3 "What should the law be ?", you must think outside of the box. That requires hypotheticals - and, yes, assumptions (despite Felix's "ass u me" argument in the Odd Couple episode) to eliminate variables and reduce the initial discussion to a very basic situation(s).

After you have a tentative solution at that stage, facts and variables are added to the mix and the process repeats itself - until you come up with something that you think will work. It may not work in practice - my thought is that a law is but a theory until it is applied in practice. If it doesn't work in practice, go back to the development process.

-------------------------------
Now, so happens I agree with this (that is, your comment):


JMM
... let's simplify this. Mission (one person team) is to get from point A to B. AQ retread (one person) fights and surrenders. Your (or my) choice is (1) detain AQ as captive, bring AQ back to A and abort mission; or possibly leave him in place in some way so he won't screw up you getting to B; or (2) disable him so he probably won't screw up you getting to B; or (3) kill AQ so he will not screw up you getting to B (and also correcting the screwup in someone releasing him in the first place). Add to it: no Operational Law Handbooks, ROEs, etc. - in short, only White's Law (or McCarthy's Law) applies.

Ken
I strongly doubt anyone can say what they'd do in your hypothetical situation; you say "'one person team" and if that means an individual operating alone (improbable but possible) then none can accurately say what they would do in a situation until they're in that situation, there are simply too many variables.

But, here is my problem with my agreement. The law (ROE, whatever) must cover this situation - despite the obvious problem that how an individual might or might not actually act is not a given. I suppose the "law" could be no rules at all - that solves one problem and leaves it entirely up to individual to re-invent the wheel as he sees fit. I really have no problem with that kind of non-law, if it works in practice.

If we move beyond a non-law (that is, absolute individual chioice), then we have to see what individuals think they would do in the hypothetical situation - realizing that it all might be a WAG - and develop our best shot at a rule that might work.

--------------------------------------
You do present some comments that may be the best solution - a form of escape and evasion, which is not necessarily a bad thing.


Ken
The 'good guys' will determine what to do individually only so much as the situation allows, if the ROE governing contacts say capture, the commander on the ground will almost certainly follow the rules. However, if Joe decides that a given person he sees had been seen before, he may ignore his commanders desires and the ROE -- IF he thinks he can get away with it. That is far from an unknown phenomenon.
.....
That is very unlikely to occur, the chances of detection are too great and penalties for doing that are too severe. If it occurs, it will be in the heat of a firefight or not at all.

My problem with that ROE is that it requires people to turn on and off like a light bulb.

Not really satisfied with this presentation either - maybe I should stick with the Operational Law Handbook.

Ken White
01-17-2009, 05:03 AM
I understand and agree with the first section of your comment


-------------------------------... But, here is my problem with my agreement. The law (ROE, whatever) must cover this situation - despite the obvious problem that how an individual might or might not actually act is not a given. I suppose the "law" could be no rules at all - that solves one problem and leaves it entirely up to individual to re-invent the wheel as he sees fit. I really have no problem with that kind of non-law, if it works in practice.The 'law' does cover it -- be it local ROE, the UCMJ, no matter. Legally and regulatorily what must be done is clear. My point is all that not withstanding, no one can tell what they might do in a specific situation until they are in that situation and know what they do of the ramifications. My perception is that most would do what was right but one cannot reliably say everyone will do what's right. One can say "I know what I would do" and then find out that one can or would do something totally surprising. The law is not relevant; it is a consideration but it may-- just may -- be ignored. Survival and and revenge are powerful instincts; mere laziness is not but some few folks don't need much convincing to take the seeming easy way if they think they can without adverse effects on themselves. In a line of work where life is essentially cheap, a different outlook is prevalent to that we can enjoy while we're at home...
If we move beyond a non-law (that is, absolute individual chioice), then we have to see what individuals think they would do in the hypothetical situation - realizing that it all might be a WAG - and develop our best shot at a rule that might work.Militarily, we're unlikely to ever have a 'non-law' situation so that becomes a non-issue.
You do present some comments that may be the best solution - a form of escape and evasion, which is not necessarily a bad thing.:"That is very unlikely to occur, the chances of detection are too great and penalties for doing that are too severe. If it occurs, it will be in the heat of a firefight or not at all."

That may be escape and evasion to you but it was what I meant from the beginning. I thought it would be totally obvious to all that any unit indiscipline along that line was quite unlikely (to say the least; everyone is aware of the ROE emphasis, the Haditha myth and charade and other such things) and that any decision to arbitrarily shoot people instead of detaining them in this day and age would have to be an individual and not easily discovered decision. Guess I should've made that clear; Joe is very pragmatic, he doesn't look favorably upon catching the same people over and over but he also doesn't think they're worth a lot of jail time for him. Joe will do what he can get away with and no more.

Let me add, the number of Joes (and they aren't all Privates...) who will take that attitude vary by unit quality. In a good unit, few or none will do that; in one poorly lead, the number who will attempt to bend the rules, any and all rules, goes up. As I said elsewhere, half the units in the army are by definition not as good as the other half...
My problem with that ROE is that it requires people to turn on and off like a light bulb.Heh. The ROE are the easy part, no matter how dumb they can sometimes be. Combat itself requires people to turn on and off like a light bulb; all day, every day there's a possibility of contact -- and at an unbelievably high rate during contacts. That's what causes most the stress casualties and much of the PTSD. Most people can do it if they have to, a few cannot, quite a few others take to it like a duck to water and it rarely if ever becomes a problem to them.

Most of 'em also obey the rules, even when they can get away with not doing so. My point was only that not everyone can be relied upon to do that and I thought most should and would know the system is tight enough to keep even most of those few honest -- but there's absolutely no way to keep everyone totally honest all the time...

I think you're trying to make the illogical (warfare) into something logical (law). Hard to do... :wry:

jmm99
01-17-2009, 06:13 AM
I think you're trying too hard, perhaps?

but, not to do this:


I think you're trying to make the illogical (warfare) into something logical (law).

but this: to make law ("something logical" ) into something from the illogical (warfare).


Holmes said something along the lines that the life of law is not logic, but experience. In short, if law does not reflect what folks actually do, it fails.

Perhaps, the answer lies here:


... that attitude [will] vary by unit quality. In a good unit, few or none will do that; in one poorly lead, the number who will attempt to bend the rules, any and all rules, goes up.

Thinking aloud, but placing more discretion in the field commander to set the rules, based on the "totality of circumstances" as viewed by him and subject only to some very general guidelines, might do some good. The good units will follow those rules; the poor units are not going to follow the rules set by the gods above anyway.

---------------------------
Why is this so (that is why do folks turn on and off) ?


Combat itself requires people to turn on and off like a light bulb

This is a serious question because the failure of folks to turn off was the primary reason Grotius got into the "laws of war" - which started with more of a suggestion than a commandant - you shouldn't slaughter captives.

So, this issue (detainees, etc.) goes back to the basics.

Ken White
01-17-2009, 08:40 PM
Thinking aloud, but placing more discretion in the field commander to set the rules, based on the "totality of circumstances" as viewed by him and subject only to some very general guidelines, might do some good. The good units will follow those rules; the poor units are not going to follow the rules set by the gods above anyway.You're absolutely correct in my view; the only flaw in your logic is that it will not take care of the (I think very few) outliers. Unfortunately, in this overly litigous and law enamored (not a slam on practicing lawyers; rather one on non practicing lawyers who are legislators and pass stupid laws to convince voters they are 'doing something'...) society, the Army which is only a reflection of the society from which it comes is too highly centralized and distrustful of its own people to do that. We should do it, realize there will ALWAYS be outliers -- and punish those who do wrong; instead, in a futile effort to preclude outliers, we punish everyone with a stifling set of more and more incomprehensible rules. All we do is confuse the Troops and create more outliers due to conflicts between rules...

Shame; because your idea would work...
Why is this so (that is why do folks turn on and off) . . . This is a serious question because the failure of folks to turn off was the primary reason Grotius got into the "laws of war" - which started with more of a suggestion than a commandant - you shouldn't slaughter captives.

So, this issue (detainees, etc.) goes back to the basics.Goes back to that little factor that many foolish psychologists wrongly say does not exist -- human nature.

People can be confoundedly difficult. :wry:

jmm99
01-17-2009, 09:49 PM
"....human nature. People can be confoundedly difficult."

after 40 years of dealing (professionally) with the critters.

I should have asked the "turn on, turn off" question more clearly. The "turn on" part has to do with perception of a "danger signal" - correct or amplify if I am off base.

The "turn off" part is what I was getting at. Do most folks turn off killing because (feel free to add to the list):

1. They perceive the danger is past.

2. They are stopped by "postive law" [**], which says "stop killing now".

3. Their "animal" (psychotic) state becomes a "humane" (sane) state.

Assuming that my theory - that operational law must correspond to what is a reality in the field (law serves the soldier; the soldier does not serve the law) - is in force [***], what turns folks off killing will shape how the law is stated.

Your thoughts on this basic question.

------------------------

The reason for "most" is that we are looking for something that will fit a majority of cases. Outliers (like the poor in spirit or units) will always be with us - and can be handled by addenda, exceptions, etc. Have to establish the baseline first.

[**] I am using "postive law" very broadly - not only the "laws of war" (statutes, GCs, UCMJ), but also ROEs and orders (which I realize in doctrine are part of the military operational complex).

[***] I read your comments on the difficulties in selling this - agreed; but first you have to have something to sell. Also agree that the Armed Forces reflect society - and so do lawyers (all those bad "trial lawyers" would disappear quickly if there were few clients who wanted to bring the cases on). :(

Ken White
01-17-2009, 11:44 PM
Seriously.

All three factors or conditions you cite and dozens more are at play and everyone reacts to different stimuli in different ways. What to you may be a reasonably normal situation requiring little or no action may be to me a matter of great urgency requiring immediate departure for safer climes while to Eward Phukabosky, SSgt, USMC it is an incitement to attack, single handedly. What to SGT X may be a minor skirmish may be to LT Y a major engagement while CPT Z is barely aware of the event. LTC AA may be totally oblivious to it and order an action that may be a success or a disaster...

Add to that the fact that the human conscience or concern for right and wrong is (a) infinitely variable between persons; and (b) is very much attuned to the survival instinct -- people one would not think of killing normally can be rapid roadkill without blinking if one feels really threatened and you are, I think, going to have great difficulty having the law serve the soldier; I think it's pretty much going to have to serve society, imperfect as that may be and the soldier is going to have to do his best to comply. Most do that pretty well...

jmm99
01-18-2009, 03:34 AM
with any of this.


D. All of the above. ... people one would not think of killing normally can be rapid roadkill without blinking if one feels really threatened ...

What I am looking for is language (a hypothetical "rule of law") that would separate the firefight situation (which you exemplify well in your examples), where there is combatant immunity, from the stable situation afterwards, where that immunity is gone.

Grant you that there will also be a gray area between the two - which is what your examples convey to me. I recognize the drafting issue, but I also think of the doggie who has to do his best to comply with a legal rule [what is it ?] that is not expressed in clear language that recognizes that guy's reality.

Since CJCSI 3121.01B (and its spawn) are mostly off-limits, I'm left with reading such as this (http://archive.newsmax.com/archives/articles/2005/12/5/145110.shtml) and this (http://findarticles.com/p/articles/mi_m6052/is_2007_Nov/ai_n24378031/print?tag=artBody;col1). So, add a few law books to the body armor and the rest of the load. All this is legalistic tic-tac-toe in an operational setting.

-----------------------
Yup, "serve the soldier" seems a lost concept. But, Admiralty Law, which also serves society, does a pretty good job of serving the merchant marine sailor - both as to rights and obligations. So, it is possible to serve both the larger and smaller (included) interests.

PS Was going too fast and forgot this, which may be important.


... to comply. Most do that pretty well...

What are they complying with ? Perhaps that will solve my problem.

Ken White
01-18-2009, 06:21 AM
provide most of the norms of behavior before, during and after a combat engagement. That's why initial training to thoroughly inculcate and embed the basics is so critical. Simply, people will do what they are trained to do -- and will not do things they are trained not to do. In combat, training and instinct take over.

To add other rules, the US has typically given theater or operation specific ROE (or UOF) training and issued ROE cheat sheets or pocket card. When we went to Little Rock, we got a two page UOF guideline direct from the JAG of the whole US of A Army + Division guidance + Arkansas Military District (MG Edwin Walker, Commanding :D) guidance; when 11 years later, the Brigade I was in went to Detroit, we didn't get any UOF/ROE guidance other than verbal due to lack of time. No problems either way. In Korea, there were no ROE for all practical purposes, in Viet Nam, everyone got a pocket card. Other places, generally no rules or only a couple of quick verbals, i.e. Try to avoid killing civilians...

A letter sized sheet will be given general compliance, a pocket card gets a little better compliance but the bed rock is the training. Training based on best practice and what is legal is given and is generally adequate.

With respect to use of force (In the US) and the rules of engagement (in a combat area -- nominally overseas but not impossible in the US in some situations); the UOF would get throughly briefed and probably have a pocket card issued. Compliance would be, I believe pretty close to 100% -- with the caveat that the law enforcement like requirement to incapacitate (that's a really dumb law, BTW, says this Father of two Cops...) will cause difficulties from a training and thus a compliance standpoint -- shoot to kill in combat, shoot to wound in domestic situations, that's a hefty shift...

UOF compliance will be good because the troops realize that what they're doing is different and that fellow US citizens are involved. That restraint would lessen were the fellow citizens attempt to employ firearms. ROE compliance lessens a bit due to usually the non-US character of the opponents and due to the fact that others are generally shooting at us...

ROE compliance, OTOH is probably going to hover at ±99% in an Iraq * like situation, ±97% in Afghanistan and at about 90% in most more intense combat situations -- that is due partly to practical difficulties in compliance (i.e. opponents in civilian clothes firing from amidst a group of innocent civilians, firing errors, weapon malfunctions and human error mostly) and partly due to the fact that more intense combat lessens overall concern for human life and the inclination to be totally legal and very careful is lessened; the more intense, the more it is lessened.

* In early 2003, that compliance was probably around 90% or a little better due to more intense combat, less well trained troops and other factors. Compliance ramped up that and each succeeding year as the ROE got more restrictive, training improved and the intensity of conflict lessened.

jmm99
01-18-2009, 06:57 AM
is truly amazing. Your explanation fits right into what I've been doing for the last two hours - starting here (http://www.globalsecurity.org/military/library/report/call/call_96-6_roe4wd.htm) and reading through to the end. Dated stuff, but now I know the critter with whom we're dealing.

Quick reaction was what mentally challenged "general's son" decided to adopt a "legislative" (aka legalistic) methodology in developing a military operational program.

Looks like the training works - and, on that one, I'll take your word for it. But, it seems to complicate a simpler world - Hague, the GCs and old FM27-10 are not that complex.

What is revolting to me is that, in some (many?) instances, I have as good (and maybe better) self-defense rights as some trooper in what is in reality a war zone (yup, I know, it's "peacekeeping", "crisis management" or a "stability operation").

Anyway, this system looks as poured into concrete as the various systems and structures driven by the defense appropriations process. As an old lawyer once told me re: the Internal Revenue Code and Regulations - don't approach them with logic because there ain't none.

Ken White
01-18-2009, 05:39 PM
..I've been doing for the last two hours - starting here (http://www.globalsecurity.org/military/library/report/call/call_96-6_roe4wd.htm) and reading through to the end.I started and after waiting a couple of minutes for each of the first three pages to load and reading all that mess, decided I didn't want to know...
Quick reaction was what mentally challenged "general's son" decided to adopt a "legislative" (aka legalistic) methodology in developing a military operational program.Well said... :D
Looks like the training works - and, on that one, I'll take your word for it. But, it seems to complicate a simpler world - Hague, the GCs and old FM27-10 are not that complex.It does work -- and that's because the training is (or was in my day) based on the GC and 27-10 and not on all the new foolishness.
...don't approach them with logic because there ain't none.Unfortunately true... ;)

jmm99
01-18-2009, 07:19 PM
You're a better man than I...

I'm not a better man than you - though probably more patient. Sometimes, I'm a dumb kid who needs a kick out the door to fly and explore new vistas.

Anyway, the SROE training probably gets near the same point which would be reached by correctly training under a "find, fix, kill" syllogism. Under SROE, I'd guess that a few more Alis and Omars will survive - at the cost of a few more Willies and Joes who won't (a result which revolts me). No way to test that hypothesis, I know.

In operating environments where hostiles are difficult to distinguish from non-hostiles (Vietnam to present), the "find, fix, kill" syllogism would require even more training - and discernment (right down to the Willie & Joe level). You have an infinitely better grasp of that than I - so, correct if wrong.

The basis premise of SROE (and the resultant philosophy it spawns) is that the default is defensive and passive. You are the hunted, rather than the hunter. That seems to me the wrong default for a military force because it concedes the offensive to the bad guys.

So, my default would be wartime rules, going to gendarmerie rules when the situation required them. I think I understand the basic premise of SROE; but I cannot accept it.

Just because you are a hunter doesn't mean that you kill everthing in the woods. In fact, even though "armed for bear", you might just want to observe - and talk to a coyote if you have a chance (been there, done that - a greater coup than shooting him - done that, been there - and more enlightening). Context and discernment.

Thanks for the help, in this and other places.