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jmm99
06-27-2009, 01:42 AM
OK, we are building it - and you are supposed to post here. You do not have to be a lawyer.

This is not a Charlie Dunlap thread; but he started writing about this topic in 2001. Let's start with two shorter articles; and end with his law review article from 2001.

Lawfare amid warfare (http://www.washingtontimes.com/news/2007/aug/03/lawfare-amid-warfare/) 2007 (Wash Times)

Lawfare: A Decisive Element of 21st-Century Conflicts? (http://www.ndu.edu/inss/Press/jfq_pages/editions/i54/12.pdf) 2009 (JFQ)

Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts (http://www.duke.edu/~pfeaver/dunlap.pdf) 2001 (Duke)

Lawfare, in concept, is earlier - and was predicted in effect by the JAG School in 1959 - suggested as part of "Unrestricted Warfare" in 1999 as part of a larger concept - see links in this post (http://council.smallwarsjournal.com/showpost.php?p=72342&postcount=4).

Adoption of the 1977 Additional Protocal I to the GCs seems the earliest example of Lawfare at its highest level. See Rex A. Childers (http://www.ohiolink.edu/etd/send-pdf.cgi/Childers%20Rex%20A.pdf?acc_num=bgsu1214247432), THE RATIONALITY OF NONCONFORMITY: THE UNITED STATES DECISION TO REFUSE RATIFICATION OF PROTOCOL I ADDITIONAL TO THE GENEVA CONVENTIONS OF 1949 (2008), which discusses this example of Lawfare from the standpoint of national strategies.

Probably all the textbooks you need to get started.

Ready. Shoot. Aim. :D

slapout9
06-27-2009, 04:37 AM
Tattoo this on the inside of your skull!

From page 4 of the 2001 document.


Lawfare describes a method of warfare where law is used as a means of
realizing a military objective.16 Though at first blush one might assume lawfare would
result in less suffering in war (and sometimes it does17), in practice it too often produces
behaviors that jeopardize the protection of the truly innocent. There are many
dimensions to lawfare, but the one ever more frequently embraced by U.S. opponents is
a cynical manipulation of the rule of law and the humanitarian values it represents.
Rather seeking battlefield victories, per se, challengers try to destroy the will to fight by
undermining the public support that is indispensable when democracies like the U.S.
conduct military interventions. A principle way of bringing about that end is to make it
appear that the U.S. is waging war in violation of the letter or spirit of LOAC.

jmm99
06-27-2009, 05:18 AM
add this one from Boondoggle in this post (http://council.smallwarsjournal.com/showpost.php?p=75371&postcount=31):


As an aside, after reading this, I wonder if there will be a time where terrorists will send some of their ilk to US law schools to become their own "mob" attorneys. There are clearly some seams to pick here and a lawyer could help them. With the admin's recent decision to emphasize the courts, this may be an unintended consequence, and a new weapon to be "acquired" by terror organizations. If the mob and drug cartels can do it, so can they now that they may end up in the courts.

Schmedlap
07-03-2009, 12:11 AM
OK, we are building it - and you are supposed to post here. You do not have to be a lawyer.

This is not a Charlie Dunlap thread; but he started writing about this topic in 2001. Let's start with two shorter articles; and end with his law review article from 2001.

Lawfare amid warfare (http://www.washingtontimes.com/news/2007/aug/03/lawfare-amid-warfare/) 2007 (Wash Times)

Lawfare: A Decisive Element of 21st-Century Conflicts? (http://www.ndu.edu/inss/Press/jfq_pages/editions/i54/12.pdf) 2009 (JFQ)

Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts (http://www.duke.edu/%7Epfeaver/dunlap.pdf) 2001 (Duke)

I read the Dunlap pieces in chronological order. I have a few questions.

1. Dunlap asserts arguendo that landmines could be used in a creative manner, quoted below. How realistic is this?

"In my opinion the objective of neutralizing a WMD capability might be more safely undertaken simply by dousing the installation with hundreds if not thousands of highly sophisticated landmines. Rendering it unusable until it can be brought under control by friendly forces would seem to be in keeping with humanitarian values." – page 13 2. He suggests a similar approach to rendering an airfield unusable by the enemy. Has this ever been seriously considered?

"... shower the runway with a variety of landmines that make it impossible for aircraft to land or takeoff." – page 13 3. He gives an example of a use of cluster munitions. Is this how we actually have used them?

"... where an enemy places military equipment such as an anti-aircraft system on something like a dam, cluster munitions can attack the site without risking the catastrophic destruction of the dam itself." – page 144. Lastly, he states that banning cluster munitions will influence how the enemy arrays his forces.

"... banning cluster munitions invites adversaries to wage lawfare by placing military objects on or near facilities whose destruction by other weapons (e.g., high explosives) puts civilians and their property at risk." – page 14Has this ever occurred? Do we suspect that any enemy has places weapons in this manner due to a belief that we would not use cluster munitions? I don’t understand why the enemy would expect us to use cluster munitions on such targets but not GPS-guided missiles. The assertion by Dunlap seems counterintuitive to me.

One comment. In his 2009 piece in Joint Forces Quarterly, Dunlap gives a lot of attention to documenting operations in order to combat the "lawfare" claims that will be made by our adversaries. I was anticipating some emphasis on decisions regarding whether or not an operation should even be attempted when the likelihood of such claims seem very likely and very damaging. It seemed odd that he made no such mention of this consideration. Did I miss it?

jmm99
07-03-2009, 01:59 AM
and obviously not my department - operational TTP. It would be nice if MG Dunlap were on deck here. Have we ever had a post by a flag officer at SWC ?

In any event, any AF types (or anyone else) knowledgeable about these operational questions ?

----------------------
As to the final comment:


One comment. In his 2009 piece in Joint Forces Quarterly, Dunlap gives a lot of attention to documenting operations in order to combat the "lawfare" claims that will be made by our adversaries. I was anticipating some emphasis on decisions regarding whether or not an operation should even be attempted when the likelihood of such claims seem very likely and very damaging.

my 2 cents on pre-event planning is that we should look at legalities, morals and ethics before getting involved in situations - and, where they are brain busters we should agonize before acting. If you are talking about agonizing after the fact, my position is that is closing the door after the horse has escaped. At best, that is a lesson learned.

Predicting the fallout from Infofare and Lawfare is even less certain than the risks of the military operation itself - they are added to those risks. Going too far - and becoming risk averse because of potential Infofare and Lawfare problems could be very much self-defeating.

Schmedlap
07-03-2009, 02:16 AM
I was thinking along the lines of something like this...

We are about to conduct an operation, but we see via satellite imagery that the enemy has placed his weapons in and around mosques, schools, hospitals, orphanages, etc. We hold a big news conference, show off the photos, and declare that, "the enemy has violated the LOAC by deliberately placing his weapons in areas that are intended to put civilians in unnecessary danger. In light of this moral and ethical quandary, we have chosen to stand down our forces. The enemy is clearly in violation of international law, but we nonetheless cannot rely upon our moral superior position as justification to attack when we know that it will result in civilian casualties. We value human life and rule of law more than short-term tactical victories."

Good message, imo.

jmm99
07-03-2009, 02:42 AM
there is promise for your future as an infantry officer. :) :D Or as an information specialist :(


We are about to conduct an operation, but we see via satellite imagery that the enemy has placed his weapons in and around mosques, schools, hospitals, orphanages, etc. We hold a big news conference, show off the photos, and declare that, "the enemy has violated the LOAC by deliberately placing his weapons in areas that are intended to put civilians in unnecessary danger. In light of this moral and ethical quandary, we have chosen to stand down our forces. The enemy is clearly in violation of international law, but we nonetheless cannot rely upon our moral superior position as justification to attack when we know that it will result in civilian casualties. We value human life and rule of law more than short-term tactical victories."

That's the easy one. What if the operation is an absolute military necessity ?

What is your announcement then - if you have to clear the village ?

Schmedlap
07-03-2009, 03:41 AM
That's the easy one. What if the operation is an absolute military necessity ?

What is your announcement then - if you have to clear the village ?
Then, imo, it's about timing. Instead of trying to "get ahead of the news cycle" after the fact (which, by definition, is too late), you hold the press conference as the operation kicks off. "This is what is occurring now. This is the most recent satellite imagery that we have. In order to mitigate this clear violation of the LOAC, these are the measures that we have taken. We will continue to update you as the operation unfolds." Ideally, the spokesperson would also take a moment to flip off any reporters from al-Reuters and challenge them, "try to spin that into another baseless allegation, you POS."

jmm99
07-03-2009, 04:21 AM
Then, imo, it's about timing. Instead of trying to "get ahead of the news cycle" after the fact (which, by definition, is too late), you hold the press conference as the operation kicks off. "This is what is occurring now. This is the most recent satellite imagery that we have. In order to mitigate this clear violation of the LOAC, these are the measures that we have taken. We will continue to update you as the operation unfolds."

from an Infofare and Lawfare standpoint (those two are joined at the hip), but I think there could be some rebuttal from an OpSec standpoint. There always is a potential Infofare and Lawfare vs OpSec debate.

Probably, some sort of a generalized Infofare and Lawfare campaign should be planned and implemented ahead of any operations clearing villages - and even in a peace enforcement operation those situations will occur.

A perception problem comes from the publication of a zero civilian casualities goal (see thread on Astan ROE Change). Once that policy is tatted into people's skulls, any civilian casualties become a breach of faith by the US.

Schmedlap
07-03-2009, 04:52 AM
from an Infofare and Lawfare standpoint (those two are joined at the hip), but I think there could be some rebuttal from an OpSec standpoint. There always is a potential Infofare and Lawfare vs OpSec debate.
Once the operation is underway, I think the OPSEC concern is negligible, most of the time, other than the threat of attacking the force during exfil. But that threat already exists during any significant operation due to the early warning systems that the enemy generally has in place (if it doesn't tip-off the target, it at least alerts operatives in the surrounding vicinity).

jmm99
07-03-2009, 05:30 AM
on evaluating OpSec in terms of operations.

Would like to hear from more of them in this thread. Lawfare is much more operational and informational than legal.

slapout9
07-03-2009, 06:21 AM
We need to find Charlie Dunlap.....get his email and send him SWC Draft notice.....nah send him a subpoena:wry:

jmm99
07-03-2009, 12:56 PM
Major General Charles J. Dunlap, Jr., USAF, is Deputy Judge Advocate General, Headquarters U.S. Air Force - official bio (http://www.af.mil/information/bios/bio.asp?bioID=5293).

Sam Liles knows him. Anyone else ?

Because of his position, he might well be unlikely to post here. It would be nice though to get his views directly.

Schmedlap could get his questions answered.

LawVol
07-04-2009, 01:04 AM
I was thinking along the lines of something like this...

We are about to conduct an operation, but we see via satellite imagery that the enemy has placed his weapons in and around mosques, schools, hospitals, orphanages, etc. We hold a big news conference, show off the photos, and declare that, "the enemy has violated the LOAC by deliberately placing his weapons in areas that are intended to put civilians in unnecessary danger. In light of this moral and ethical quandary, we have chosen to stand down our forces. The enemy is clearly in violation of international law, but we nonetheless cannot rely upon our moral superior position as justification to attack when we know that it will result in civilian casualties. We value human life and rule of law more than short-term tactical victories."

Good message, imo.

One use of lawfare by our opponents is to manipulate the perception of our adherence to law to attack our legitimacy. This supports their battlefield objective of having us withdraw since they cannot, typically, defeat us militarily. By calling off the operation in the circmstances presented above, we hand them their victory.

Getting ahead of the news cycle (i.e. part of the friction) is the key since we cannot necessarily prevent their use of lawfare. Our deficiency in combatting this form of "tactical" or "operational" lawfare is our inability to win the infowar. Alot of AQ media vis-a-vis lawfare goes unanswered.

Perhaps a method of combatting this is to bifurcate the legal and the moral/ethical. Law and morality are not inherently identical. For example, the death penalty is legal in most of the US, but may not be moral in some people's eyes. In looking at your scenario above, and accounting for issues of proportionality, attacking a target despite civilian casualties can be lawful. A focus on law rather than morality (which may differ according to culture, etc.) may assist in our fight. Of course, this may not really be feasible since everyone does not have the ability to coldly consider law in light of some of its consequences. I'd be interested in hearing thoughts on this.

LawVol
07-04-2009, 01:54 AM
Much, but not all, of the discussion on lawfare centers on its use at the tactical or operational level. The typical scenario is something like AQI sniping from a school, we return fire killing civilians, AQI then publicizes the civilian casualties. Although this tacticial or operational use of lawfare can have strategic implications, its actual use is confined to the battlefield and thus either tactical or operational.

Lawfare, however, can be used at the strategic level. Two examples: (1) the Brussels Act of 1890 sought to ban the sale, by its European signatories, of breech-loading weapons in equatorial Africa. This had the strategic effect of maintaining, at least for awhile, the European firepower advantage. (2) China has recently increased its activity within its exclusive economic zone to preclude US surveillance missions in an effort to assert its claim of some form of expanded jursidiction within that area. This attempt at redefining international law serves the strategic purpose, if ultimately successful, of extending its defensive perimeter (I think they call it the "string of pearls" strategy).

As this is something I have just begun exploring, I'd be interested in hearing thoughts on this topic or in reading anything related that some of you may have come across.

Schmedlap
07-04-2009, 01:59 AM
By calling off the operation in the circmstances presented above, we hand them their victory.
I can't really think of any one operation that we've done in the past 8 years that was so important that it would have significantly changed things had we opted to stand down. On the other hand, we get our balls stomped on a regular basis in the media. I was just suggesting that in some situations like this, it might be to our advantage to attack them with information, rather than bombs.


In looking at your scenario above, and accounting for issues of proportionality, attacking a target despite civilian casualties can be lawful. A focus on law rather than morality (which may differ according to culture, etc.) may assist in our fight. Of course, this may not really be feasible since everyone does not have the ability to coldly consider law in light of some of its consequences. I'd be interested in hearing thoughts on this.
I agree. I wasn't suggesting that a scenario such as the one I proposed would legally require us to stand down. In regard to law and morality, I think our laws and morality are the outer bounds within which we must confine our actions. Other laws and the morals of appropriate target audiences are the more restrictive bounds within which we may choose to confine certain operations.

jmm99
07-04-2009, 04:02 AM
1977 Additional Protocal I to the GCs and the Childers thesis cited in my OP #1 is certainly the modern classic example. Written from the standpoint of international politics - politfare at its best hardball.

from its Abstract


On December 12, 1977, the U.S. signed a treaty offered through the ICRC entitled Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. This treaty drastically altered the relationship between individual behavior in warfare and combatant status. For the United States, the impact of domestic political tensions, the fresh and painful experience in Vietnam, and a continued emphasis on Détente all played parts in the decision to participate in the conference and sign the treaty. Signature during the Carter administration would not be followed by ratification, and would be rejected by subsequent administrations. Was this decision, continued through every administration to date, a simple outcome of a “rogue” nation exercising its sovereign right based upon its own ability to wage war, or is there more to the story? In this thesis, a new analysis of the political processes and environment surrounding the final treaty’s outcomes is offered. The global tensions between superpowers are examined, emphasizing the United States response, in the context of its perceptions of the treaty’s requirements. A broader coalition of actors, both state and non-state, would ultimately hold the key to the treaty’s significance to conventional warfare.

The Global South engaged the issue of lawful behavior in war with a distinct set of outcomes in mind. Their ability to gain agency, build effective coalitions addressing inequities in the asymmetry of warfare that had historically disadvantaged them, and then alter the outcomes of international humanitarian law through democratic practices, are placed in the context of rational choice theory. The logical and methodical approach used by these actors to deconstruct the central premise of conventional warfare distinctions between combatants and noncombatants, consistently the hallmark of advancing improvements in international humanitarian law, resulted in a treaty reversing advancements in civilian protections through a new set of dangerous behaviors made allowable for a new category of privileged combatants (organized resistance movements). The United States’ options were limited, and a new and regressive standard for conventional warfare was instituted.

jmm99
07-21-2009, 02:19 AM
and about irregular combatants and non-combatants, I've read - well written and researched.

Richard D. Rosen (Associate Professor of Law and Director, Center for Military Law & Policy, Texas Tech University School of Law; Colonel, U.S. Army, ret.), Targeting Enemy Forces in the War on Terror: Preserving Civilian Immunity, Vanderbilt Journal of Transnational Law, Volume 42, Number 3: May 2009.

It can be downloaded (as of today) by going to the current index (http://law.vanderbilt.edu/publications/journal-of-transnational-law/index.aspx). That will probably end when it goes into the archives (http://law.vanderbilt.edu/publications/journal-of-transnational-law/archives/index.aspx). This is a direct link (http://law.vanderbilt.edu/publications/journal-of-transnational-law/download.aspx?id=3953) (now).


ABSTRACT

Protocol I to the Geneva Conventions of 1949 and the interpretation given to it by many in the international community (e.g., UN, NGOs, media) provide perverse incentives to terrorist and insurgent groups to shield their military activities behind civilians and their property. In other words, the law governing targeting is fundamentally defective; it allows terrorist and insurgent groups to gain strategic and tactical advantages through their own noncompliance with the law and their adversaries’ observance of it. The consequence has been increasing noncompliance with the law and growing civilian casualties. This Article proposes structural changes to the law governing targeting and attitudinal changes by those who interpret it to ensure that civilians receive adequate security from armed attack.

and, from the body (p.8):


In short, Protocol I provides a powerful incentive for insurgents and terrorist organizations to rely on their enemies’ observance of the law of war. It creates a “win-win-win” situation for such groups: either their adversaries avoid striking them altogether out of fear of causing civilian casualties (win); or they attack them, cause civilian casualties, and suffer international condemnation (win); or they forego air power and artillery and attack using ground troops, thereby incurring much greater casualties and the loss of their public’s support for the conflict (win).

I love it when a COL agrees with me :)

So, COL Rosen, if you (or one of your friends willing to act as messenger) see this, please come to SWC and join the choir. We'd love to have you - and I'll try to keep smarta$$ remarks to a minimum. ;)

davidbfpo
03-05-2010, 11:21 PM
Foreign Policy and the New America Foundation bring you a new weekly brief on the legal war on terror. You can read it on foreignpolicy.com or get it delivered directly to your inbox -- just sign up here:http://visitor.constantcontact.com/manage/optin/ea?v=001aQrkMZOJR3XJFq5Zsz0tQA%3D%3D

Schmedlap
03-06-2010, 05:51 PM
The more that I think about this topic, the more that I think it is just Americans whining about more difficult security challenges. It sounds very similar to complaints of "criminals getting acquitted on minor technicalities" or "criminals hiding behind the law." I think those complaints are better directed at the lawyers who failed to get the prosecution or the evidence gatherers who were not meticulous enough. We can say that it shouldn't be so difficult, but that presupposes that "we know he did it" before the trial goes forth. On the issue of trying terrorists, we can also say that it should not be so difficult, but that presupposes that wars will always be fought fairly and on our terms. Welcome to the 21st century.

On the specific issue of terrorists, I wonder if perhaps it is time for a "minimum contacts" test to assert Constitutional protections. Put the burden on the prosecution to demonstrate no "minimum contacts" with this country.

If a strong case can be made that you only came here to blow stuff up and it is demonstrated that you are not a citizen and you are here on a temporary visa (or cannot produce any documentation at all), then we notify your countr(y/ies) of citizenship. Then...

1) no foreign state is willing to intervene on your behalf, then you fall under jurisdiction of the military tribunals.

2) if a country in which you have citizenship is willing to intervene, or if your country asks another country to do so on its behalf, then you are detained, like any nonresident criminal suspect, and your processing through the legal system is suspended until arrangements can be made for your return to your home country.

This would mean that a terrorist from a country with poor relations with us might get returned. Say, for example, some terrorist from a state that doesn't like us shows up, attempts a terror attack, we capture him, and his country of nationality says, "we want him back" and we know that he will return to a hero's welcome. So what? He still gets questioned and still gets detained for a long period of time while the legal haggling occurs. In the meantime, he gets no miranda rights and no access to a lawyer. If his country of nationality says "we don't want him" and he gets tried in our legal system, then only evidence that can pass muster of our rules of evidence gets admitted. That, too, could result in a "known terrorist" being acquitted and deported. So what? Look how many Gitmo detainees have returned to being terrorist operatives. Have we all spontaneously combusted as a result?

jmm99
03-06-2010, 09:15 PM
by whatever (;)), the LWOT (presumably the Legal War On Terror) can be accessed at FP's mainpage (http://www.foreignpolicy.com/) - nearer bottom under "The Latest from FP" (same place as Bob Haddick's SWJ weekly feed to FP); but it also has its own section, THE LWOT (http://www.foreignpolicy.com/category/section/the_lwot) (presently, 4 articles). The latest article is The LWOT: The “Al Qaeda Seven” Revealed; Supreme Court Hears Foreign Torture Trial (http://www.foreignpolicy.com/articles/2010/03/04/the_lwot_the_al_qaeda_seven_revealed_supreme_court _hears_foreign_torture_trial).

This appears to be more a news item feed than a legal analysis blog. Of course, you can then follow up the news item to get (eventually) to the meat of the situation.

And, from one of the news items, a cheerful note from the UK via the Telegraph, Guantanamo: £30m torture case bill for taxpayers (http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/7337809/Guantanamo-30m-torture-case-bill-for-taxpayers.html):


Compensation claims lodged against the Government by six former Guantanamo Bay detainees are likely to cost the taxpayer more than £30 million in legal bills, The Daily Telegraph has learnt.

By Gordon Rayner, Chief Reporter
Published: 7:30AM GMT 01 Mar 2010

Binyam Mohamed, who is at the centre of a row over Britain’s alleged complicity in torture, and five other men are each suing MI5 and MI6, claiming the security services were complicit in their alleged torture in custody.

They could be awarded between £200,000 and £500,000 each if they win their cases, but spiralling legal bills will dwarf any damages awards, as the joint action by the men is currently expected to take seven years to work its way through the courts.

Sources close to the case have disclosed that 75 lawyers have been hired by the Government to sift through hundreds of thousands of classified documents relating to the detainees’ arrests and treatment.

It will take up to five years for the Government to prepare its defence, at a predicted cost of £20m, and because all six of the former detainees are being given legal aid to fight for compensation, their own lawyers’ fees and court costs are expected to add another £10m.

A source within Whitehall told The Daily Telegraph that £30m was “a conservative estimate” for the final cost of the case. ... (more in story)

Who says Lawfare does not pay ? :D

Regards

Mike

Boondoggle
09-27-2010, 01:06 PM
http://www.longwarjournal.org/archives/2010/09/lady_al_qaeda_senten.php

There's a lawfare lesson in there: Don't get caught doing anything that lends itself to a (fairly) straightforward criminal case. Here, Siddiqui picks up a rifle and shoots a soldier. If she doesn't do that, they either have to send her to Gitmo or try her based on her participation in various plots which brings all sorts of side effects that we've been trying to avoid (CIA, potential torture of witnesses, methods etc...) If I'm AQ I make it SOP that when I'm caught, take the fight to us through the courts, not with your hands.

And this is probably appropriate for this thread, been following for a few weeks, I might start commenting occasionally on their blog here since they're not taking comments (they're scared of the mud):

http://www.lawfareblog.com/

Bob's World
09-27-2010, 02:09 PM
Rather than looking at the law as simply one more LOO or weapon for defeating the threat; I believe there are more practical applications for legal approaches to mitigate the conditions that give rise to and empower these non-state threats.

One primary application is that of "Sanctuary." High time we evolved from the tired, and entirely incomplete cliché of "ungoverned spaces" and evolved to a more sophisticated and complete understanding of what truly provides sanctuary to these groups.

First, all insurgents and terrorists are by definition outlaws, so they have their first sanctuary right there. One is not constrained by the law once they opt to live and act outside it.

Second, being "non-state" actors they are also outside the rules and tools designed for the control of proper state behavior. We must develop new legal approaches that deny this 'sanctuary from consequences' much more effectively than current approaches.

Another critical component to sanctuary is the support of poorly governed populaces. Understanding what aspect of governmental actions contribute most significantly to such perceptions and then crafting and enforcing laws aimed at the governments that create these conditions we nick away at their sanctuary even more.

Next we need better laws for allowing short-notice, short-duration punitive raids to deal with critical nodes of networked terror organizations. There must be checks and balances, and full communicaitons and transparency behind the scenes (to the degree possible); but we can't keep rubbing other peoples faces in it when we decide we want to pop into their country to whack somebody.

This is just one area, but for me, if lawfare is just another rocket to shoot at the insurgent himself, it not much value added. I would expect lawyers to be a bit more clever and devious in their approaches...

jmm99
09-27-2010, 05:22 PM
Benjamin Wittes (legal media background), Jack Goldsmith (legal academic) and Robert Chesney (legal academic) won't let you play with them; thereby curtailing your mud wrestling practice ? ;)

Plan A: Why don't you and Polarbear kidnap them and take them out into the boonies for a condensed version of TBS ? I'm sure that in no time at all the two of you could knock off some of the polish and reduce them to more rough-edged versions of their present selves. :)

Plan B: your posting comments and links to their blog in this thread, would be most welcome.

-------------------
A lot of the BS in this area can be blamed on too many justices writing opinions. Back in 2004, SCOTUS decided Hamdi v Rumsfeld (http://en.wikipedia.org/wiki/Hamdi_v._Rumsfeld). That, of course, was a decision in result only with 4 separate views being offered.

First, the plurality opinion (4 justices):


Justice O'Connor wrote a plurality opinion representing the Court's judgment, which was joined by Chief Justice Rehnquist and Justices Breyer and Kennedy. O'Connor wrote that although Congress had expressly authorized the detention of unlawful combatants in its Authorization for Use of Military Force (AUMF) passed after 9/11, due process required that Hamdi have a meaningful opportunity to challenge his detention. However, Justice O'Connor used the three-prong test of Mathews v. Eldridge to limit the due process to be received. This required notice of the charges and an opportunity to be heard, though because of the burden upon the Executive of ongoing military conflict, normal procedural protections such as placing the burden of proof on the government or the ban on hearsay need not apply. O'Connor suggested the Department of Defense create fact-finding tribunals similar to the AR 190-8 to determine whether a detainee merited continued detention as an enemy combatant. The United States Department of Defense created Combatant Status Review Tribunals in response, modeling them after the AR 190-8. O'Connor did not write at length on Hamdi's right to an attorney, because by the time the Court rendered its decision, Hamdi had already been granted access to one. However, O'Connor did write that Hamdi "unquestionably has the right to access to counsel in connection with the proceedings on remand." The plurality held that judges need not be involved in reviewing these cases, rather only an impartial decision maker was required.

In retrospect, this solution looks pretty good - to me. At the least, it is logically consistent and could be implemented in practice with minimal adverse consequences to detention. In effect, this is a Common Article 3 (of the 1949 GCs) solution, where detention is the default remedy - military commissions and civilian courts are add-ons, which can be useful in certain cases.

Second, we have the concur-dissent opinion (2 justices):


Justice David Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality's judgment that due process protections must be available for Hamdi to challenge his status and detention, providing a majority for that part of the ruling. However, they dissented from the plurality's ruling that AUMF established Congressional authorization for the detention of unlawful combatants.

In effect, this opinion requires a law enforcement approach to the problem of detained TVNSAs (Transnational Violent Non-State Actors) - you can kill them under the AUMF and the Laws of War, but you can detain them only under the Rule of Law.

Third, we have the Let Him Go or Suspend Habeas dissent (2 justices):


Justice Antonin Scalia's dissent, joined by Justice John Paul Stevens, went the furthest in restricting the Executive power of detention. Scalia asserted that based on historical precedent, the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus, or Hamdi must be tried under normal criminal law. Scalia wrote that the plurality, though well meaning, had no basis in law for trying to establish new procedures that would be applicable in a challenge to Hamdi's detention—it was only the job of the Court to declare it unconstitutional and order his release or proper arrest, rather than to invent an acceptable process for detention.

This was truly an Odd Couple since the result is pure law enforcement (which was Stevens' posiiton throughout). I suppose Scalia thought Congress would suspend habeas (it did) and Stevens thought it would not.

Fourth, we have the Unlimited Executive Power dissent (1 justice):


Justice Clarence Thomas was the only justice who sided entirely with the executive branch and the Fourth Circuit's ruling, based on his view of the security interests at stake and the President's broad war-making powers. Thomas wrote that the Court's rationale would also require due process rights for bombing targets: "Because a decision to bomb a particular target might extinguish life interests, the plurality’s analysis seems to require notice to potential targets." Thomas also wrote that Congress intended that the AUMF authorized such detentions.

In effect, John Yoo's constitutional views received only one vote.

The DC District and Circuit have tried to make some sense of the this hash and the hash in later SCOTUS cases. Meanwhile, the USG (and the two major political parties) have created their own hash made up of variant combinations of the Laws of War and the Rule of Law.

Regards

Mike

stanleywinthrop
09-27-2010, 05:27 PM
http://www.longwarjournal.org/archives/2010/09/lady_al_qaeda_senten.php

There's a lawfare lesson in there: Don't get caught doing anything that lends itself to a (fairly) straightforward criminal case. Here, Siddiqui picks up a rifle and shoots a soldier. If she doesn't do that, they either have to send her to Gitmo or try her based on her participation in various plots which brings all sorts of side effects that we've been trying to avoid (CIA, potential torture of witnesses, methods etc...) If I'm AQ I make it SOP that when I'm caught, take the fight to us through the courts, not with your hands.

And this is probably appropriate for this thread, been following for a few weeks, I might start commenting occasionally on their blog here since they're not taking comments (they're scared of the mud):

http://www.lawfareblog.com/

I see your point here and I agree from a metaphysical standpoint. However it seems that jihadists just don't do a good job of seeing that there are often better ways to fight your enemy than simply trying to kill them. Case in point- Maj. Hasan- he could have done far more damage to our cause in A-stan if he'd gone mole and deployed. No disrespect to our fallen in TX, but many more could have died in Hasan cued ambushes.

jmm99
09-27-2010, 05:55 PM
on the following general points:


from BW
First, all insurgents and terrorists are by definition outlaws, so they have their first sanctuary right there. One is not constrained by the law once they opt to live and act outside it.

Second, being "non-state" actors they are also outside the rules and tools designed for the control of proper state behavior. ....

Another critical component to sanctuary is the support of poorly governed populaces. ...

Next we need better laws for allowing short-notice, short-duration punitive raids to deal with critical nodes of networked terror organizations. ...

Now, if you could provide me some content - that is, what laws you propose.

I'm most interested in your 1st, 2nd and 4th points.

The third point seems difficult (to me); e.g., you say (emphasis added):


Understanding what aspect of governmental actions contribute most significantly to such perceptions and then crafting and enforcing laws aimed at the governments that create these conditions we nick away at their sanctuary even more.

Once upon a time, we did deal with those of "bad governance" (as we defined it) by "clever" and "devious" approaches, where perhaps 130 (or less) operatives were involved in a country (some even were lawyers). Those approaches made for bad press - the purges starting with Ramparts' exposé of the CIA ties to the National Student Association, labor organizations and academia in the later 1960s (links here (http://www.cia-on-campus.org/)).

So, today, we are much more "aboveboard" in dealing with "bad governance" (as we define it) and send 130K troops to rectify the situation.

Feel free to post some proposed laws - reduction of ideas to practice, clever and devious accepted.

Regards

Mike

Boondoggle
09-28-2010, 01:14 PM
TBS was a summer of fun, but maybe they could crawl through the Quigley with me in February just for old times sake. :D

I struggle with how judges can approach the AUMF (which granted I probably haven't read in a few years now so my memory is quite groggy) and not think it authorizes the detention of both lawful and other combatants. Conducting war by different means is still just that, war. And the Scalia - Stevens pairing was certainly interesting.

Now as for following through on having a "neutral decisionmaker" not necessarily a judge, I'm sure we'll eventually see something... and that something will be run up the legal flagpole for review in short order, but the military justice system should be able to readily adapt to that. It actually makes sense, probably by carving someone out of the regular chain of command and giving them that job, the harder question would be who would be the appeal authority for that initial decision.

Bob's World
09-28-2010, 03:08 PM
Mike,

Working on a paper that explores this currently. Whether one looks at this as denying sanctuary or as deterring non-state actors the lines blur. But the hard fact is that the rules for states and those that operate within the reach of the law don't apply, so it calls for complex approaches that balance encouragement and discouragement across a range of state and non-state actors so as to build a proper mix that prevents without provoking; or that does not get so focused on encouraging or discouraging one group so that one loses sight of the provocative effects this is having on others.

At the center of this work is a chart or worksheet. It currently has 8 categories of actor across the middle. Four types of states on the left (nuclear, non-nuclear, failing and criminal) then four types of empowered non-state actors that live and operate within those four types of states ( Quasi-state [Hamas, Hezbollah], non-state[AQ, Taliban], insurgent populace [pashtuns] and Dissident individuals [McVeigh,etc]) These are all just examples.

For any particular problem one will have a mix of four types of states and within them a mix of the four types of empowered actors. One must take them all into account as they plan their engagement. Going up from this lineup are three degrees of encouragement. Level one is "Promote"; Level two is "Enable"; and Level three is "Enhance." Each denotes a greater degree of involvement with ones engagement. Going down from the lineup are three degrees of discouragement. Level one is "Deter"; Level two is "Preclude"; and level three is "Preempt." Again, each level denotes a greater degree of involvement.

Looking just at AFPAK you have a non-nuclear failing state and a nuclear failing state at the core. Afghanistan is arguably also trending toward being a criminal state. Within these there are a mix of non-state actors, insurgent populaces and dissident individuals. No one simple two-diemensional approach can balance this complex mix of actors. To over discourage AQ with a heavy scheme of Preempt and Preclude in Pakistan must be balanced by Promote-Enable-Enhance with Pakistan. But then also with some Deter and perhaps Promote with India to address the inbalance created there. Then over to Afghanistan where one must give them some encouragement to allow themselves to be used as a base to go after AQ; etc, etc.

The spreadsheet isn't perfect, but helps to visualize all of the actors and how ones engagement may be causing unintended provocative consequences that must be mitigated as well.

How then, to apply lawfare to this? Currently those outside the law have all the advantages, so perhaps something as simple as a waiver for states to act outside the law as well in certain circumstances. Again, it is about balance. Such waivers must allow effective opertations, but not at the same time compromise principles that weaken the moral authority of the state structure.

The spreadsheet also recognizes that as one goes from left to right, from nuclear state over to dissident individual one also shifts from where the same act is an act of war for one, and a criminal act for another. In the middle is a wide greyzone. it's a work in progress.

Step one is to understand that sanctuary is NOT "ungoverned space" but more accurately:

"Updated: Insurgencies take sanctuary in some combination of legal status, the support of a poorly governed populace, and some favorable combination of terrain and vegetation. Functional sanctuary associated with such status or support is more powerful than physical sanctuary provided by a particular place.

• Explained: The old adage of “ungoverned space” is not wrong, it is just incomplete and focuses on the wrong aspect of what actually provides the insurgent sanctuary. If ungoverned space were such terrific sanctuary, al Qaeda would be in Antarctica. The regions they prefer are more accurately described as self-governed spaces; removed from the reach of much of formal governance, but certainly governed all the same. Al Qaeda’s primary sanctuary, however, comes from their legal status. Being outside the law they are not constrained by the law. Similarly, being unencumbered by a state they are immune to the controls of statecraft. Al Qaeda also borrows the legal protection that the sovereign borders of host states (willing, knowing, or otherwise) provide where convenient. The sanctuary offered by a poorly governed populace cannot be overstated. It is the people who live in a space who support and protect such movements, and not the space itself. This is why “space” is largely fungible so long as the sanctuaries of legal status and poorly governed populaces are available. Consider Robin Hood and the famous sanctuary provided by Sherwood Forest. If the Sheriff had denied the forest in some way, the true sanctuary of being outside the law and protected and supported by a poorly governed populace would have remained in effect. Robin and his Merry Men would have just moved to a new forest.
Similarly, if the sanctuary of a specific place such as Afghanistan or Pakistan, (or Somalia, or Yemen, etc) is physically denied, al Qaeda would simply move to a new country. Denial of ungoverned spaces is a false argument that focuses on the wrong aspect of an effective sanctuary."

jmm99
09-28-2010, 07:41 PM
I'm glad you said this (not for the first time, IIRC):


from BW
No one simple two-diemensional approach can balance this complex mix of actors.

It looks to me like you have at least a three-dimensional system, requiring a three dimensional graph (x, y, z). One axis is the type of state; another is the bad-a$$ actors; and the third is the "encouragement-discouragement" index.

Inserting the level of violence (crudely, at the extremes, a state of pure peace and a state of pure war) adds a fourth dimension. The level of violence is not a straight line from 0% to 100%; there would be peaks, valleys and discontinuities.

This sounds something like quantum mechanics, which makes some sense because you are attempting to picture an open, complex system in two or three dimensional terms. In attempting to come up with a unified theory, are you not running into the same sort of problems that arise from applying effects based operational theory to an open, complex system (as opposed to a closed, complex system, where the variables can often be defined and controlled at least to a useable extent) ?

As an example (albeit extreme and unlikely to happen): if I, as a dissident individual, get ahold of a 100 megaton device and delivery system, and have a few minutes of lead time to launch, I am a nuclear state for all practical purposes.

Not saying you should scrap your efforts; but, in attempting to simplify complexity, it is too easy to simply become simplistic. ;)

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

from BW
How then, to apply lawfare to this? Currently those outside the law have all the advantages, so perhaps something as simple as a waiver for states to act outside the law as well in certain circumstances. Again, it is about balance. Such waivers must allow effective opertations, but not at the same time compromise principles that weaken the moral authority of the state structure.

Not "outside" the law for states, but under new laws (whether statutory and/or common) that fit within the general framework of existing law and allow states to meet new challenges.

E.g., those judges who read the 2001 AUMF realistically and developed detainment law around the sparse wording in the AUMF and Common Article 3 of the GCs.

The law is quite adaptable if it is permitted to adapt, as Boon points out in his last post. Of course, you will always have the problem of judges, and others as well, who refuse to adapt.

Put them all through The Quigley - or the Sturgeon Sloughs (http://www.panoramio.com/photo/39447427). :D

Regards

Mike

PS: Bob, agree with your geographical example of AQ picking up stakes and moving - that is, that geographical location does not define the "base". And, to bring in some word play, AQ can translate to "The Base"; AQ does special ops (unconventional warfare) vs us; and a SF base is not defined by geographical location. That should be an easy sell at Socom.

Bob's World
09-28-2010, 11:03 PM
Does one become a "state" if they possess, as an individual, a 100 Megaton device and the will and skill to employ it.

This often comes up. My short answer is "No, and welcome to the crux of what is frustrating the crap out of states these days."

The problem is that in today's globalized environment many non-state actors can act in very state-like ways; yet they are outside the ability of our state-based systems to either effectively deter or punish them. THIS is sanctuary. This is what we must deny AQ and others like them.

I was in an exercise that involved an individual employing a WMD device and then running to an allied nation and and taking sanctuary in a region of that state where it was largely self-governing and the populace was sympathetic to the motivations of this actor. Higher HQ demanded that we put a COA on the table to essentially retaliate in kind on the piece of dirt that we were pretty sure this guy was hiding on.

So, our only "reasonable" response was to conduct a massive act of war against an allied state and its populace because some individual had attacked us with WMD and was now hiding there?

Ok, this was a "third world" ally. But what if he was hiding in London? Still pull the trigger? What if he was hiding in Washington DC or New York? Still pull the trigger? What if hiding in some state we don't get along with?

The fact is, that if you wouldn't do it in your own backyard, you shouldn't do it in anyone else's either. That is the slippery slope that we jumped on with the GWOT and have been rocketing down ever since.

No, you must address such acts as criminal. To do otherwise is to create more harm in the response than was created in the initial attack. It is to play right into the hands of your attacker who intended quite likely for you to over react in that way.

So how to then "deter" such an attack? One has to back up and look at the big picture and longer windows of time than on does with traditional state on state deterrence. One has to balance HOW one acts so as to be less apt to provoke such individuals to act. Granted there will always be the one-off's of the McVeigh ilk. Not much one can do to deter them. But we can do effective deterrence on groups that draw their support from broader segments of the populace in these various communities around the world.

This doesn't mean go around walking on eggshells and not make anyone mad, it means being fair in our firmness. Coming out of the Cold War the US stopped having to be "fair" because no one could do anything about it. We became more and more bully-like in our responses and engagements. Look at how we went from bombing no one, to conducting the Libya raid in the late 80s under Reagan and how serious that single event was, to dropping bombs at virtual random under Clinton, to invading countries at random under Bush, etc. We're out of control. Time to reel it back in. Everyone knows how tough we are, we don't have to go around stuffing countries in lockers to prove it. Every act to preclude or preempt some bad actor out there had 2nd and 3rd order effects to motivate and provoke previously relatively harmless non-state actors to want to do us harm. We can no longer just ignore those guys, they can and will hurt us.

We need to constrain ourselves. We need to look at a much more complex mix of states and actors within states and balance our actions more effectively. A lot of the big guys in the pentagon are still doing simple math. A +B =C. That just doesn't cut it anymore.

Ken White
09-29-2010, 12:54 AM
I'm with you up to here:
...Coming out of the Cold War the US stopped having to be "fair" because no one could do anything about it. We became more and more bully-like in our responses and engagements. Look at how we went from bombing no one, to conducting the Libya raid in the late 80s under Reagan and how serious that single event was, to dropping bombs at virtual random under Clinton, to invading countries at random under Bush, etc. We're out of control. Time to reel it back in. but there I think there are nuances you're probably aware of but are just not citing. Don't know...

Things you cite happened but I think they were less a case of throwing weight around but rather of responding to the actions of others in the only seemingly available way that wasn't too risky...

IOW, the errors were not errors of egregious bullying, they were failures in imagination, will -- and capability. I suggest that latter contributed strongly to the former. We found out in 1972 that Islamist terrorism was going international. We discovered in 1975 that a bunch of fourth rate pirates could board and seize a US Ship and there was little we could do about it without demonstrating major tactical incompetence. In the November 1979 to April 1980 period we discovered that we did not have the processes, systems, equipment, properly trained people or knowledges to deal with a world that was changing more rapidly than we were able to comprehend. We got a major world change in 1989 and another harbinger in 1990. To all those stimuli, we did not respond or (As you noted) responded very poorly -- until 2001. Thirty wasted years, five Administrations, both parties, untold numbers of Secs, Asst Secs and Flag Officers...

Not because we're stupid but because of bureaucracy and domestic politics that focus on the here and now, on party primacy and our attempts -- futilely -- to ignore the rest of the world. The events you cite occurred because domestic politics seemed to require action and our capacity for action was severely constrained to available capabilities.

Efforts to enhance strategic raid capability and strategic direct action (not the same thing...), stealthy means of ingress and egress, throwaway equipment and a dozen other things were all constrained or refused by a lack of will and avoidance of risk. Many knew what was required, some tried to obtain the proper tools -- and the system rigorously denied achieving the necessary capability and flexibility to operate in a world, that as you often state, communicates quite differently today. Efforts to respond to the provocations you cite were forced into the modes they assumed by lack of viable options, not by a desire to bully. Had we really wanted to bully, we could have done a far more convincing job.

Thus I strongly suggest -- yet again -- that failure to consider the US polity and electoral process; The battle between the Parties that consumes Washington; the bureaucratic inertia through all agencies of the USG; the culture of risk avoidance as the real culprits cause some to attack the wrong targets. We aren't bullies; quite the opposite. We're inflexible, ill equipped, marginally trained blunderers. The only saving grace is that -- so far -- the bad guys have been even less competent than we are.
We need to constrain ourselves. We need to look at a much more complex mix of states and actors within states and balance our actions more effectively. A lot of the big guys in the pentagon are still doing simple math. A +B =C. That just doesn't cut it anymore.Thus you're correct in that last; however, the problem is more pervasive than in just the Pentagon; our actions are currently constrained by capabilities and domestic concerns. We have the ability to expand the capabilities in many directions and that is easily achievable, all it take is a little foresight and will. Until that is done and until the domestic political processes -- to include those by Uniformed persons in Arlington County and throughout the world... -- are reformed or bypassed, we will be constrained to using the wrong tools at the wrong times and in the wrong places. The problem is not that we should constrain ourselves, the problem is that we HAVE constrained ourselves and deliberately limited our options in an effort to be nice -- until we're provoked. Then we have had and will have no choice but to get out the sledge hammer because we refuse to train and pay Cabinet makers or buy Cabinet Maker's Hammers.

Don't attack the wrong symptom, that won't fix the problem.

jmm99
09-29-2010, 01:15 AM
for the mindset of JMM.

The problem proposed by the mindset of others:


from BW
I was in an exercise that involved an individual employing a WMD device and then running to an allied nation and and taking sanctuary in a region of that state where it was largely self-governing and the populace was sympathetic to the motivations of this actor. Higher HQ demanded that we put a COA on the table to essentially retaliate in kind on the piece of dirt that we were pretty sure this guy was hiding on.

I'm positing that "Higher Hq" was primarily threat-oriented. OK, JMM can play that game.

The threat has two facets: (1) the 100 megaton device and delivery system; and (2) the disaffected individual (JMM in my hypo).

Retaliation will not work on the device-system because it's already gone and blown (and it can't be deterred by threatened retaliation because it has no mind).

JMM has a mind and can be deterred by threatened retaliation if he is afraid to die, or if he will not allow the "sympathetic populace" to die.

If JMM is not afraid to die and willing to let the "sympathetic populace" die, the threat of retaliation is meaningless. My purpose has been fulfilled when I turn the launch key. That is a simple game of Chicken, whether played by a state or by an individual.

To prevent 100 megaton damage to your country, you have to bet on what JMM will or will not do - he (or the nation-state or group that he symbolizes) is the only relevant target in what is essentially a MAD scenario.

BTW, the "sympathetic populace" is not directly material to solution of that problem since in my hypo I've built in adequate time to launch. The "sympathetic populace" can't stop me even if they wanted to.

The "sympathetic populace" is certainly guilty of allowing me to get into a position to launch. So, if "Higher Hq" wants retribution, reprobation and specific deterrence against them, then turning their little chunk of real estate into glass will accomplish those ends.

Whether "making glass" will result in general deterrence of other "sympathetic populaces" in the future seems speculative to me. As in the criminal justice arena, I'd suspect it may deter some and not others. As in the criminal justice arena, I'd suspect that COA will not deter future "JMMs" who have made up their minds as to their COAs.

In reality, if an expended WMD can be traced back to a specific piece of real estate, that region can expect WMD retaliation from the US, France or Russia (as I understand what their leaders have said at various times).

I think all of this is moving far off the point of what law can and can't do. Pass a law against the game of Chicken ? Only works if all the prospective players obey the law.

Regards

Mike

Bob's World
09-29-2010, 08:46 AM
Mike,

You are correct that the law poses little constraint on this guy. It can't deter him, and it can't retaliate in a way that deters other guys like him in the future. But he is not "at state" for that period in time, because that infers not that he has state-like power, but that he is held to state-like restraints on action. He isn't, and that's what makes him scary.

The only thing a state can really do is:

A. Take these guys serious. They can get to you like never before, and they can come at you with state-like power like never before.

B. Design your long-term foreign policy globally to be implemented in a manner that reduces the motivation and the causation for the numbers of such individuals to expand and also feel compelled to attack you to achieve their ends.

This is why I say the "Friendly Dictator" is an obsolete concept that we need to retire from our quiver of foreign policy arrows. Consider a country like, say, Libya.

Col Q isn't the most good governance focused guy out there. The top Libyan insurgent group that is trying to take him down is the Libyan Islamic Fighting Group (LIFG). These guys are built around a core of former foreign fighters who fought with the Muj in Afghanistan against the Soviets. As Libya was one of the top sources of foreign fighters for Iraq, I suspect many of those had LIFG linkages as well. Their goals are purely nationalist. They don't think Libya is as true to the principles of Islam as it should be under COL Q, and find his government to be "corrupt and oppressive" according to Wikipedia. I suspect that if I drilled into the facts of the matter and could sit down and talk with these guys I would find that they question the legitimacy in their eyes of Qadaffi to rule, that they feel they have no legal, trusted, or certain means to make changes to government; and that most likely the segment of society they draw from feels it is treated with disrespect in some major ways as a matter of status, and quite possibly that they feel that the rule of law as applied to them is unjust. This is Causation. This is what creates the conditions of insurgency within this populace. The LIFG is just a symptom, a group that emerged within those conditions caused by the government to challenge the government.

Now Qadaffi comes to the U.S. and says "Hey, I have AQ in my country. These LIFG guys are AQ and I will help you in the GWOT to defeat AQ is you help me defeat the LIFG/AQ threat here."

OK, yes, AQ is conducting UW in Libya and is targeting LIFG and there is some affiliation there. But AQ is still AQ with its Regional/Global agenda and LIFG is still LIFG with its nationalist agenda. A non-state UW movement meets a nationalist revolutionary insurgency movement.

Now, if the U.S. desperate for allies in the GWOT sees a golden opportunity to bring a Muslim government on board as part of the coalition against AQ (hey, this makes us look better in not being "anti-Muslim", right?) what have we actually done?

Well, what we have done is given these guys motivation to attack the US. They already had causation to exist, and that was nationalist. Their leadership is not a big fan of AQ, but then we come along and make a decision that validates AQ's sales pitch.

So the logical choice of making an ally of Qadaffi and then conducting capacity building with him to leverage his security forces more effectively in the war against AQ in North Africa actually makes the likelihood of terrorist attacks on the US greater. We piled Motivation on top of Causation because we did not properly understand the nature of the insurgency in Libya or the Nature of AQ and their UW operations either one. Pure, Intel-driven, threat-centric lunacy.

Smarter approach is to out-compete AQ for influence with the LIFG. Conduct UW ourselves with them, but promoting non-violent approaches to changing governance that historically are far more successful than violent approaches. This puts the Charlie Bravo on AQ who is peddling violence and hate and could give a rip about Libyan nationalism. At the same time we go to Qadaffi and say we can help him neutralize the LIFG. But he needs to change. We mediate talks between him and the insurgent leadership. Perhaps this is the time for his much more moderate son to step up as leader. What carrots can we put on the table to entice that option? What about LIFG, they raise some good points, what can Libya do to reasonably meet some of these concerns? etc. Taking this approach we REDUCE motivation to attack us, and also help immunize Libya to AQ's UW influence and more effectively accomplish what we hoped to do by helping Qadaffi just put the beat-down on his own populace approach.

How does lawfare come in? Well, there is this problem with Libyan rule of law being perceived as unjust. A focus on promoting Justice (rather than the current misguided promotion of ROL). There also is this matter of the populace not having legal means to affect change of governance. Another good place for the lawyers to help contract mechanisms that make sense in this culture and that are acceptable to all, and that can actually work.

This is the indirect approach for getting at your guy with the WMD. If you do this right with Libya odds are this guy does not come from Libya. He could, but the pool is much smaller as we have had a positive role in reducing both Causation (reducing the conditions of insurgency) and Motivation (not making the US clearly a part of the problem that must be reduced in order to have success at home).

Repeat this approach across the area where AQ is operating as necessary until they become moot for lack of target audience (as we continue to CT the hell out of them and the carefully selected nodes of their UW network, not confusing the insurgencies they leverage for actually being AQ just because they ordered the t-shirt).

I suspect the lawyers have the same problem that the development crowd has. They bring great tools to the table, they bring great people to the table, but they have been handed an incredibly flawed picture of what the problem is by the Intel guys and they really don't understand insurgency and only have what the COIN guys have told them to go off of. But the Intel guys don't really understand WHY this threat exists, just WHO it is. And the COIN guys don't really understand WHY there is insurgency, just what various states have done over time to counter insurgency.

Once we redefine the problem more accurately, I believe we find more appropriate and effective ways to apply the law toward addressing it.

Bob's World
09-29-2010, 09:14 AM
As a tag on, Libya is also a great example of a state with "effective" governance (decent standard of living, high literacy, decent infrastructure, etc) but incredibly "poor governance" as I define in my insurgency model as well (Lack of governmental legitimacy from the populace, perceptions of injustice, disrespect, and lack of hope in terms of legal, trusted and certain means to affect change. It is poor governance that creates what I call the "conditions of insurgency" within a populace. How and who exploits those conditions is another matter. The key is to address the conditions, and to understand that the conditions are ALWAYs caused by the government, and assessed as perceived by the affected populace.

Consider this short blurb, also based on quick wiki-research, regarding civil rights in Libya:

Human rights
Main article: Human rights in Libya
According to the U.S. Department of State’s annual human rights report for 2007, Libya’s authoritarian regime continued to have a poor record in the area of human rights.[53] Some of the numerous and serious abuses on the part of the government include poor prison conditions, arbitrary arrest and prisoners held incommunicado, and political prisoners held for many years without charge or trial. The judiciary is controlled by the government, and there is no right to a fair public trial. Libyans do not have the right to change their government. Freedom of speech, press, assembly, association, and religion are restricted. Independent human rights organizations are prohibited. Ethnic and tribal minorities suffer discrimination, and the state continues to restrict the labor rights of foreign jobs.

In 2005 Freedom House rated political rights in Libya as "7" (1 representing the most free and 7 the least free rating), civil liberties as "7" and gave it the freedom rating of "Not Free".


(This describes an almost classic case of "Poor Governance" and predictably, has created conditions of insurgency in this country. Insurgent groups have emerged to address these conditions, and AQ has come in to target and exploit all of the above.)

jmm99
09-29-2010, 03:57 PM
While I like playing bad guys, I have to get back to real life as a good guy and get some non-virtual work done.

Looking at the LIFG Wiki (http://en.wikipedia.org/wiki/Libyan_Islamic_Fighting_Group), I noticed this in the first paragraph (emphasis added):


The Libyan Fighting Group (LIFG) also known as Al-Jama’a al-Islamiyyah al-Muqatilah bi-Libya is the most powerful radical faction waging Jihad in Libya against Colonel Moammar al-Qadhafi. Shortly after the 9-11 attacks, LIFG was banned worldwide (as an affiliate of al-Qaeda) by the UN 1267 Committee.

Going to the United Nations Security Council Committee 1267 (http://en.wikipedia.org/wiki/United_Nations_Security_Council_Committee_1267), we find:


The United Nations Security Council Committee 1267, also known as the Al-Qaeda and Taliban Sanctions Committee, was established by the United Nations Security Council on 15 October 1999, pursuant to UN Security Council Resolution 1267 concerning al-Qaeda and the Taliban and associated individuals and entities.

The committee has established and maintains a consolidated list which serves as the foundation for the implementation and enforcement of sanctions against Al-Qaeda and the Taliban. The list currently contains nearly 500 names and is split into four sections covering (1) individuals and (2) entities associated with the Taliban, and (3) individuals and (4) entities associated with al-Qaeda. The resolutions have all been adopted under Chapter VII of the United Nations Charter and require all member states to: "freeze the assets of, prevent the entry into or transit through their territories by, and prevent the direct or indirect supply, sale and transfer of arms and military equipment to any individual or entity associated with Al-Qaeda, Osama bin Laden and/or the Taliban as designated by the Committee".

Now, my point in quoting this is NOT that it squelches Bob Jones. My point is that all of this goes well beyond some isolated "Intel guys" deciding who enemies, neutrals and friends are.

Have to run.

Regards

Mike

Dayuhan
09-30-2010, 12:17 AM
Smarter approach is to out-compete AQ for influence with the LIFG. Conduct UW ourselves with them, but promoting non-violent approaches to changing governance that historically are far more successful than violent approaches. This puts the Charlie Bravo on AQ who is peddling violence and hate and could give a rip about Libyan nationalism. At the same time we go to Qadaffi and say we can help him neutralize the LIFG. But he needs to change. We mediate talks between him and the insurgent leadership. Perhaps this is the time for his much more moderate son to step up as leader. What carrots can we put on the table to entice that option? What about LIFG, they raise some good points, what can Libya do to reasonably meet some of these concerns? etc. Taking this approach we REDUCE motivation to attack us, and also help immunize Libya to AQ's UW influence and more effectively accomplish what we hoped to do by helping Qadaffi just put the beat-down on his own populace approach.

How does lawfare come in? Well, there is this problem with Libyan rule of law being perceived as unjust. A focus on promoting Justice (rather than the current misguided promotion of ROL). There also is this matter of the populace not having legal means to affect change of governance. Another good place for the lawyers to help contract mechanisms that make sense in this culture and that are acceptable to all, and that can actually work.


This sounds like a recipe for overt and gratuitous intervention in the internal affairs of another country, and I suspect that despite the noble intention, the outcome would be that we would simultaneously and drastically antagonize the government, the populace, and the LIFG, none of whom asked us or want us to get involved. AQ could sit back and salivate.

Unconventional Warfare is still warfare, and conducting warfare of any sort against another state is not something to be taken lightly. It's also not something that's going to stay secret, and when the word hits the street (very quickly) the potential for unintended consequences is enormous.

If you're talking about Libya, it's important to note that th LIFG has never achieved much popular support: LIFG leaders have been quoted plaintively lamenting the lack of engagement from the populace. This is a fairly common pattern among Arab populaces, who are only too happy to cheer on, support, and join AQ and affiliates if they are fighting jihad against foreign occupiers in faraway lands, but generally have no special interest in being ruled by them.

It's also important to note that when a populace sees a government being challenged and criticized by the US, the tendency is for that populace to rally behind the government, even if it's lousy and unpopular. Our intervention is not going to be seen, ever, as support for the populace: it's going to be seen as a self-seeking scheme to gain control. When the US criticizes a government it's not seen as us standing up for the populace, it's seen as disrespect for nation, culture, and tradition, and it's likely to accomplish the result opposite from that we intended.

The notion that intervention in the internal affairs of other countries is good policy as long as it pursues goals that we see as "good" may sound noble, but I suspect at the end of the day it's a recipe for disaster. It might be better to mind our own business for a change, and to stay out of the affairs of others unless we are directly and severely threatened.

Bob's World
09-30-2010, 02:11 PM
"Now, my point in quoting this is NOT that it squelches Bob Jones. My point is that all of this goes well beyond some isolated "Intel guys" deciding who enemies, neutrals and friends are."


The Intel guys develop the list, the ops guys approve the lists, the lawyers cast the list into a status that allows the desired engagement within the current laws.

My point is that these lists enable dangerous perspectives and engagement and prevent much that could be far more effective. And yes, they are driven by a very threat-centric Intel community that is probably over reacting after having the full blame of 9/11 dropped on their heads as "a failure of Intel." While Intel could have been better, 9/11 is much more accurately cast as a "failure of policy." I pick on the Intel community because they deserve it, but I'll also defend them as being dedicated professionals who were unfairly blamed for allowing 9/11 to happen. They do what they do very well. My criticism is that they need to evolve in what they do and apply their considerable talents to that.

This is ripe ground for the lawfare crowd. How do we get away from legal lists that constrain as much as they enable? How do we create new laws for dealing with this problem of empowered actors who operate outside the state construct?

Bob's World
09-30-2010, 02:27 PM
Dayuhan

Certainly doing nothing is always an option, and probably more often than we would like admit, the best one. It means relinquishing control of outcomes though, and that makes us nervous.

What I offer is an alternative to current perspectives on engagement. One based in recognizing that it is governments that cause insurgency, and not insurgents that cause insurgency. I see no need to reinforce positions rooted in list-driven CT; capacity building of security forces for governments widely recognized as despotic; or nation building among the populaces of those same governments. Those COAs already have plenty of supporters and Cheerleaders.

All engagement is not however inherently bad. It is possible to help people to get to a better place through wise, tailored engagement that never forgets where we fit into the equation as an outside party.

Maybe it is ok to shoot missiles at a nationalist insurgent group that associates with AQ but not ok to talk to them and see if we can't offer them a better alternative. Maybe building the capacity of governments with questionable records on civil rights to better go out and "enforce the rule of law" against insurgent organizations within their populace who also happen to associate with AQ is the smartest way to "defeat terrorism." Maybe, and I am not saying that you think it is, but many do. I disagree. I think we can engage smarter. I also believe that smart engagement is better than doing nothing at all.

jmm99
09-30-2010, 04:11 PM
Looking to the webpages for that agency, we find the index with multi-links and a brief explanation of it:


The Security Council Committee established pursuant to resolution 1267 (1999) on 15 October 1999 is also known as "the Al-Qaida and Taliban Sanctions Committee".

The sanctions regime has been modified and strengthened by subsequent resolutions, including resolutions 1333 (2000), 1390 (2002), 1455 (2003), 1526 (2004), 1617 (2005), 1735 (2006), 1822 (2008) and 1904 (2009) so that the sanctions measures now apply to designated individuals and entities associated with Al-Qaida, Usama bin Laden and/or the Taliban wherever located. The names of the targeted individuals and entities are placed on the Consolidated List. Narrative summaries of reasons for listing of the individuals, groups, undertakings and entities included in the Consolidated List (where available) can be found at the following URL: http://www.un.org/sc/committees/1267/narrative.shtml.

The above-mentioned resolutions have all been adopted under Chapter VII of the United Nations Charter and require all States to take the following measures in connection with any individual or entity associated with Al-Qaida, Usama bin Laden and/or the Taliban as designated by the Committee:

•freeze without delay the funds and other financial assets or economic resources of designated individuals and entities [assets freeze],

•prevent the entry into or transit through their territories by designated individuals [travel ban], and

•prevent the direct or indirect supply, sale and transfer from their territories or by their nationals outside their territories, or using their flag vessels or aircraft, of arms and related materiel of all types, spare parts, and technical advice, assistance, or training related to military activities, to designated individuals and entities [arms embargo].

The current Chairman of the Committee, for the period ending 31 December 2010, is His Excellency Mr. Thomas Mayr-Harting (Austria). The two Vice-Chairs for 2010 are Brazil and Russian Federation. This website contains general information on the work of the Committee as well as a latest news section. The Committee has guidelines for the conduct of its work. You can also find fact sheets providing basic information on the listing and de-listing procedures as well as on the exemptions to the assets freeze and from the travel ban. The Committee publishes annual reports of its activities and the Chairman of the Committee briefs the Security Council regularly. ..... (more at site).

If you meant this to describe the workings of the 1267 Committee (which I doubt):


from BW
The Intel guys develop the list, the ops guys approve the lists, the lawyers cast the list into a status that allows the desired engagement within the current laws.

it does not correctly describe the scope of the agency or its listing process. Many (probably a majority of) nations involved take the law enforcement approach to counter-terrorism.

Regards

Mike

PS:

1. Speak very softly.

2. Carry a very large stick.

3. Stay out of neighborhoods where you don't belong.

Bob's World
09-30-2010, 05:11 PM
Ok, all well and good, but what does any of that activity do toward resolving the problems that actually create the conditions that give rise to such individuals and organizations?

I always bring this back to our own experience as I believe most Americans can empathize with other Americans better than they can with others; and also because what we are primarily taliking about are American approaches that are presumably cast within a context of the American ethos that was shaped back in the 1700s.

Imagine if the edict you cite was published by the British Government in response to the insurgency in the American Colonies?

You have a populace that already questions the legitimacy of its government, finds the rule of law as applied to them to be unjust, believes with good reason that they are treated as second class citizens simply because they were born in the colonies; and don't believe that they have any legal recourse to effectively resolve their concerns.

So in response an edict is published to render them outlaws for daring to stand up to tyranny, and bannishing them from all form of legal enterprise. How does this help?

This my biggest beef with my fellow lawyers. They think the rule of law is more important than justice under the law. Do we send people to places like Afghanistan to create justice? No, we send them there to help enforce the rule of law. It is not the same thing.

I have said it before, I will say it again: Rule of Law without Justice is Tyranny. Is enforcing tyranny the "big stick"? If so, don't drop the soap, because any populace subjected to such legally enforced tyranny is apt to find creative places to lodge said "big sticks."

This is why America recognized the Right and the Duty of a populace to rise up in insurgency when faced with what they perceived to be despotic governance when all legal means fell short.

Lawfare needs to focus on identifying and creating such legal means for populace to act out short of insurgency.

Lawfare needs to focus on the enhancement of perceptions of Justice rather than the enhancements of the mechanics of the rule of law.

Dayuhan
10-01-2010, 06:33 AM
Certainly doing nothing is always an option, and probably more often than we would like admit, the best one. It means relinquishing control of outcomes though, and that makes us nervous.

On this we agree. We also desperately need to accept that in most cases our ability to influence the internal affairs of other countries is quite limited.


What I offer is an alternative to current perspectives on engagement. One based in recognizing that it is governments that cause insurgency, and not insurgents that cause insurgency.

This is in most cases true, though as with any blanket statement there will be exceptions and variations on the rule. It would be an important issue if insurgency were our problem. However, except where we have created insurgencies by removing governments and trying to model their successors according to our preference, we don’t have an insurgency problem. Except for the insurgencies we created, there isn’t an insurgency on the planet that would require a significant US combat commitment, or where a significant US combat commitment would be desirable.

We need to keep in mind that AQ – our enemy – is not an insurgency, and doesn’t truly thrive on insurgency unless that insurgency is directed against a foreign invader in Muslim territory. AQ has only flourished when foreign intervention has been present, which is why they were so desperate to provoke the US into direct military engagement in the Muslim world. They have endured where they have had sympathetic governments: under the Taliban in Afghanistan and to some extent in the Sudan. They have established presences where government has been absent or ineffectual, as in Somalia or Yemen. Their attempts to marshal insurgency against established governments have done very badly, not because those governments are popular or good, but because populaces generally have not seen government by AQ or their ilk as an acceptable alternative.


All engagement is not however inherently bad. It is possible to help people to get to a better place through wise, tailored engagement that never forgets where we fit into the equation as an outside party.

I’d rather say “where or whether we fit into the equation”. The example you gave above represents to me a fairly obvious case of inserting ourselves into an equation where we have no reasonable place: we cannot run around conducting UW against governments because we don’t approve of the way they handle relations with their populaces.

We also have to remember that in many of the cases involved, government, populace, and insurgents all view us on a fundamental level as a dangerous, acquisitive power that is fundamentally hostile toward people of their religion and/or ethnicity and is bent on gaining control over their land and resources. Whether or not this perception is accurate is irrelevant, it exists and as long as it exists our intervention is going to be rejected by all parties no matter how good our intentions are… and we all know where the road paved with good intentions leads. Our ability to fit into these equations is directly related to the perception the affected populace has of us, and that generally isn't very positive these days. We may be able to improve that erception, but it will require many years and we aren't going to do it by forcing ourselves onto other people's problems.


I always bring this back to our own experience as I believe most Americans can empathize with other Americans better than they can with others; and also because what we are primarily taliking about are American approaches that are presumably cast within a context of the American ethos that was shaped back in the 1700s.

If we proposed to intervene in the America of the 1700s, this would be very useful. The environments in which we propose to intervene are unique and something other than 1700s America, and while the solutions we developed for ourselves worked very well for us, the degree to which they are appropriate to other people’s problems may be limited… and our right to impose solutions on other people’s problems is even more limited.

SWJ Blog
12-14-2011, 12:31 PM
Rethinking Revolution: Lawfare (http://smallwarsjournal.com/blog/rethinking-revolution-lawfare)

jmm99
02-06-2012, 05:29 AM
Case Western Reserve (Vol. 43, Nos. 1 & 2, 2011) has created what, in effect, is an online course in "Lawfare", which presents different issue areas and differing points of view in answer to the question: LAWFARE!:ARE AMERICA'S ENEMIES USING THE LAW AGAINST US AS A WEAPON OF WAR? (http://www.case.edu/orgs/jil/recentissue.html)

Here are the contents (each a separate .pdf) which can be reached from the link above:


Foreward: Lawfare!
Michael P. Scharf & Shannon Pagano

Is Lawfare Worth Defining? Report of the Cleveland Experts Meeting
Michael Scharf & Elizabeth Andersen, assisted by Cox Center Fellows Effy Folberg, Michael Jacobson, & Katlyn Kraus

Historical and Semiotic Origins of "Lawfare"

Historical and Semiotic Origins of "Lawfare"
Susan W. Tiefenbrun

The Curious Career of Lawfare
Wouter G. Werner

Lawfare or Strategic Communications?
Dr. Gregory P. Noone

Lawfare: A Rhetorical Analysis
Tawia Ansah

Is "Lawfare" a Useful Term?

Does Lawfare Need an Apologia?
Major General Charles J. Dunlap, Jr.

Lawfare: A War Worth Fighting
Dr. Paul R. Williams

On Legal Subterfuge and the So-Called "Lawfare"
Leila Nadya Sadat & Jing Geng

The Dangers of Lawfare
Scott Horton

Lawfare and War Crimes Tribunals

Lawfare: Where Justice Meets Peace
The Honorable Principal Judge of Uganda, Justice James Ogoola

Lawfare and the International Tribunals: A Question of Definition? A Reflection on the Creation of the "Khmer Rouge Tribunal"
Robert Petit

The Take Down: Case Studies Regarding "Lawfare" in International Criminal Justice: The West African Experience
David M. Crane

Whose Lawfare is it, Anyway?
David Scheffer

Lawfare and the Israeli-Palestine Predicament

The Gaza Strip: Israel, Its Foreign Policy, and the Goldstone Report
Milena Sterio

Illustrating Illegitimate Lawfare
Michael A. Newton

Finding Facts But Missing the Law: The Goldstone Report, Gaza, and Lawfare
Laurie R. Blank

Gaza, Goldstone, and Lawfare
William A. Schabas

Litigating the Arab-Israeli Conflict in U.S. Courts: Critiquing the Lawfare Critique
William J. Aceves

Lawfare and the War on Terror

"Lawfare" in the War on Terrorism: A Reclamation Project
Melissa A. Waters

Lawfare and Counterlawfare: The Demonization of the Gitmo Bar and other Legal Strategies in the War on Terror
David J. R. Frakt

The Value of Claiming Torture: An Analysis of al-Qaeda's Tactical Lawfare Strategy and Efforts to Fight Back
Michael J. Lebowitz

Lawfare and U.S. National Security
Professor Orde F. Kittrie

Beyond Traditional Concepts of Lawfare

Lawfare and the Definition of Aggression: What the Soviet Union and Russian Federation Can Teach Us
Christi Scott Bartman, MPA, JD, PhD

The Knight's Code, not his Lance
Jamie A. Williamson

Carl Schmitt and the Critique of Lawfare
David Luban

Issues on International Humanitarian Law and Genocide

The Legality of Reciprocity in the War Against Terrorism
Ambassador Robbie Sabel

The Status of Corporations in the Travaux Preparatoires of the Genocide Convention: The Search for Personhood
Michael J. Kelly

Frederick K. Cox International Law Center Lecture in Human Rights and Humanitarian Law

Human Rights and Humanitarian Law Conflict or Convergence
Sir Christopher Greenwood, CMG, QC

Student Note

Animals Are Property: The Violations of Soldiers' Rights to Strays in Iraq
DanaMarie Pannella

Each of these are tidbits (~ 10-20 pages).

Regards

Mike

davidbfpo
02-06-2012, 10:51 PM
A marvellous headline from The Daily Telegraph, which obscures the difficulties faced by the UK to legally deal, with a charge, trial and result; with a man who is regarded as an extremist ideologue / preacher, who officialdom regards as a risk. Note he has been in jail - without charge - for six years.

He is ostensibly awaiting deportation to Jordan, who convicted him of terrorism in absentia; some of the evidence allegedly obtained under duress / torture. The European Court of Human Rights ruled against a deportation last month.

Links:http://www.telegraph.co.uk/news/uknews/law-and-order/9064883/Qatada-back-on-the-streets-within-days.html

Details on time in jail October 2002-March 2005 and August 2005 till today:http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/9064599/Timeline-Abu-Qatadas-legal-battle-to-stay-in-Britain.html

Who is Abu Qatada? A profile:http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/9064574/Profile-Abu-Qatada.html

The shorter BBC report and details of bail conditions:http://www.bbc.co.uk/news/uk-16914401

Jedburgh
04-10-2012, 06:29 PM
Harvard National Security Journal, 10 April 2012: Offensive Lawfare and the Current Conflict (http://harvardnsj.org/wp-content/uploads/2012/04/Offensive-Lawfare-Holzer2.pdf)

The term “lawfare” has become part of the lexicon of the current global conflict and although it is defined in various ways, it is essentially a way to describe legal activities within the context of armed conflict. To date, the term has not been applied to legal activities focused on negatively impacting United States’ adversaries. This article seeks to expand the lawfare conversation and encourage a policy dialogue by weaving it together with the Army’s operational doctrine and counterinsurgency doctrine.

The United States Army’s operational concept provides a framework to conceptualize “offensive lawfare” which, in the current global counter-insurgency conflict, should be understood to include efforts to deny enemy forces sanctuary, to blunt their abuse of courts, and to use both foreign and domestic courts to better support our national security strategy. Policy discussions to improve our offensive lawfare posture should include providing support to litigants in certain domestic and foreign court actions that are deemed to be congruous with these ends. More specifically this article advocates broadening the national security policy discussion to include providing support to plaintiffs in terrorism related civil litigation domestically, to certain defendants in certain foreign criminal actions, to defendants in foreign civil litigation that is deemed to be related to the current conflict, and to plaintiffs pursuing foreign causes of action against terrorist organizations and their supporters...

Presley Cannady
04-12-2012, 07:04 AM
Harvard National Security Journal, 10 April 2012: Offensive Lawfare and the Current Conflict (http://harvardnsj.org/wp-content/uploads/2012/04/Offensive-Lawfare-Holzer2.pdf)

Just so I'm clear, today's gunslinger engages the brutality of war with the brutality of nonsense. Right?


The United States Army’s operational concept provides a framework to conceptualize...

Can't go to war without conceptualizing concepts.

SWJ Blog
05-19-2016, 08:27 PM
The Emergence of Lawfare (OUP Infographic) (http://smallwarsjournal.com/blog/the-emergence-of-lawfare-oup-infographic)

SWJ Blog
01-24-2017, 11:41 PM
'Lawfare' Could Become Trump Tool Against Adversaries (http://smallwarsjournal.com/blog/lawfare-could-become-trump-tool-against-adversaries)

Polarbear1605
05-07-2017, 04:19 PM
I was out on General Dunlap's Duke Law web site and found this article Lawfare 101 was recently posted.
http://www.armyupress.army.mil/Journals/Military-Review/English-Edition-Archives/May-June-2017/Dunlap-Lawfare-101/
Pete McGuire in his book "Law and War - An American Story" defines Strategic legalism as "the use of laws or legal arguments to further larger policy objectives, irrespective of the facts or laws." I have a couple questions and would like to see if there is any interest with the forum participants.
1. Is strategic legalism different from lawfare?
2. If not, is strategic legalism included in lawfare or is lawfare part of strategic legalism? :confused:

slapout9
05-08-2017, 06:40 PM
I was out on General Dunlap's Duke Law web site and found this article Lawfare 101 was recently posted.
http://www.armyupress.army.mil/Journals/Military-Review/English-Edition-Archives/May-June-2017/Dunlap-Lawfare-101/
Pete McGuire in his book "Law and War - An American Story" defines Strategic legalism as "the use of laws or legal arguments to further larger policy objectives, irrespective of the facts or laws." I have a couple questions and would like to see if there is any interest with the forum participants.
1. Is strategic legalism different from lawfare?
2. If not, is strategic legalism included in lawfare or is lawfare part of strategic legalism? :confused:

IMO Lawfare is the on the highest policy level possible! So it would follow that a strategic legalism is different and of a lower level. It deals more with the actual weaponization of the law. Corporations do this all the time often to the detriment of our Nation as a whole.

Also IMO General Dunlap is one of greatest undiscovered Strategist we have, If his advice were ever truly followed we would start winning so much we would get tired of it...........hint:President Trump!

davidbfpo
05-15-2017, 08:33 AM
Thanks to Polarbear1605's post a week ago for rekindling this debate I have merged in one substantial thread, with 12k views and four smaller SWJ Blog pointers. The catalyst being the next post.

davidbfpo
05-15-2017, 08:44 AM
A short blog article from Policy Exchange, a London-based "neo-con" think tank; with the full title and sub-title:
Lawfare against the Armed Forces must be on the next Government’s agenda; Combatting the judicialisation of war
Link:https://policyexchange.org.uk/lawfare-against-the-armed-forces-must-be-on-the-next-governments-agenda/
There is considerable apprehension at the way the courts have interpreted human rights and other laws. As yet no-one has taken action, as the article commends.