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Schmedlap
07-11-2009, 12:59 AM
I just started reading a book on legal issues surrounding our operations since 9/11. There is a brief vignette in the introduction. I would be interested in reactions from the board to this tale of interrogation because I think it is useful to consider as we ponder legal foundations for our actions against non-state actors or proxies.

For those who already read the book or otherwise recognize the vignette and know the punch-line (which I will reveal later), please do not give it away, yet. I'm curious to see reactions from those who are unfamiliar with it.

Here is an edited excerpt...

"The terrorist mastermind had slipped through their fingers before, and American forces were not about to let it happen again... Unable to track him down, they managed instead to locate and detain his wife... For several days, they interrogated her at an air base, but she repeatedly insisted that he was dead. Finally, they tried a new tactic. They noisily put a plane on a nearby runway, its engines running. As the commanding officer later recalled: 'We then informed [her] that the plane was there to take her three sons to [a repressive country nearby] unless she told us where her husband was... If she did not do this then she would have ten minutes to say goodbye to her sons...' Having threatened, in essence, to kill her sons - for nobody doubted what the secret police would do to them when they arrived at their destination - the interrogators got the information they wanted. And they got their man, disguised as a farm laborer, that evening."
- Benjamin Wittes, "Law and the Long War," page 1.Do you think this technique is moral or ethical or otherwise sound practice? Why or why not?
Do you have an opinion on the legality of this technique (whether it is or should be legal, etc)?
Again, if you already read the book or know the punch-line, please refrain from commenting until others weigh in. I'm curious to see reactions. For those who do not know the punch-line - don't worry, this isn't a game of gotcha.

Rifleman
07-11-2009, 03:00 AM
Do you think this technique is moral or ethical or otherwise sound practice?

Yes.


Why or why not?

I don't understand how it's any different than other forms of deception and trickery that are commonly used in warfare.


Do you have an opinion on the legality of this technique (whether it is or should be legal, etc)?


I think it's legal; courts have ruled that deception and trickery are legal to use in a criminal investigation.

You can bluff in the interrogation room. You can use props. You can claim to have information that you don't have. You can double team and tag team using the age old "good cop, bad cop." If you were interrogating an illegal alien you could even mention the possiblity for deportation for the subject or the subject's family. Duress is permitted up to a point - different cops have different opinions about it's usefulness but it is permitted.

And this is in policing. Am I to believe this shouldn't be allowed in warfare?

jmm99
07-11-2009, 04:03 AM
1. The extraordinary rendition to a third party, more than willing to torture and kill the three sons, is a reality. The interrogators' friend has both the means and intent to render (pun intended) the sons and carry out the threat.

or to up the ante even a bit more ...

2. The interrogators are made of stronger stuff and don't need a third party to do their work. They are able and willing to carry out the threat themselves.

and, finally, if the threat does not work ...

3. The interrogators execute the threat by successively torturing and then killing each of the three sons.

Do these altered facts change the answers ?

Ken White
07-11-2009, 05:14 AM
STARTS:Written 2040 CDT, 10 Jul 09 but I'm not going to be the first to post... :D

Here's the unedited reponse.
Do you think this technique is moral or ethical or otherwise sound practice? Why or why not?Marginally moral, not enough information to form a total moral evaluation. Regardless, it is not sound practice and I would not do it for the very practical reason that no one man is ever likely to be that importan as this action would almost certainly be disclosed. IOW, don't do it, probable result is not worth the potential downstream hassle.
Do you have an opinion on the legality of this technique (whether it is or should be legal, etc).I do not think it should be illegal -- there are too many unenforceable laws about, we don't need one more. It should however IMO be discouraged or regulatorily prohibited for the reasons I stated above. If the punch line is what I suspect, I'll still go with the decision above. :D :ENDS

Rifleman
07-11-2009, 05:19 AM
Ooooo, you lawyer you. Instead of answering you start cross examination. :p

I've got some thoughts but I'm going to sit tight for a couple of days. I'm curious to see what others say. ;)

Rifleman
07-11-2009, 05:28 AM
STARTS:Written 2040 CDT, 10 Jul 09 but I'm not going to be the first to post... :D


Well, even if I get torn to shreds, at least I saved our Regimental Sergeant Major. :o

Do I get a meritorious award for that? :wry:

Ken White
07-11-2009, 05:44 AM
14,000 Attaboys!!! ;)

IntelTrooper
07-11-2009, 06:17 AM
I don't think it's immoral, but OPSEC prevents me from commenting further.

slapout9
07-12-2009, 12:03 AM
Yes it is moral..... and yes it is legal.....and plea bargaining is nothing but a mild form of coercion and I don't have a problem with that either. My only problem is I don't understand what the problem is...what's the big deal...we should have been doing things like this from the very beginning....again I don't see what the big deal is.:confused:

LawVol
07-12-2009, 12:47 AM
What is your basis for detaining the wife? Assuming, of course, that you have actionable intel to indicatethat the husband is in fact a terrorist, what is her status? From the limited facts given, it would appear that she has no connection to the doings of her terrorist husband (being married to him simply isn't enough unless you're willing to subjet our wives to the same rules).

Next, what is the status of the two sons? Assuming from the limited facts given that they are also unconnected to the father's doings, they would also appear to be civilians. What would be your basis for detaining them? What would be your basis for (supposedly) facilitating the torture of them? What the scenario appears to advocate is the torture of civilians for the purpose of possibly obtaining information from a third party.

This leads intot he next question: what will be done if she refuses to provide the information? If the sons are not then sent away, word gets out and our credibility with respect to this type of threat is done. If the sons are sent away, again what is the basis for doing so? Again, assuming from the limited facts that they are civilians, the scenario stretches much further than a "collateral damage" scenario (although I really can't stand that term). Here, you aren't simply attacking a valid military target wherein the military value outweighes that damage to civilians; you're actually targeting civilians. This is what the terrorists do. Are we really willing to slide this far down the slope? If so, what does this say about our legitmacy? What does it say to the civlian community in the AOR that we're trying to win over.

No, I don't see this as legal for the simple fact that the legal question must be examined in light of taking the threat to its logical conclusion. This means examining it as done above, IMO.

Now, substitute the wife for a known terrorist and threaten him/her with torture and we, possibly, have a different situation. Philip Bobbit, in a book I'm reading now, argues that in today's informationized world, the information a terrorist holds is akin to his weapon and until he surrenders that "weapon" he may still be engaged, so to speak. I like this argument but its needs more exploration.

Of course, the above is a legal analysis constrained by the limited facts available (don't you love lawyers? - there's a reason we do this), you also asked about the morality of this scenario. I do not viewed morality and legality as always synonymous. Law is law but morality may differ depending upon the person(s) involved. So, as to morality, the issue is really moot except when considered in light of overall legitimacy. To what extent does morality factor into legitimacy? Who's morality is in play? Can legitimacy be obtained when a given plan of action is legal but possibly not moral?

Schmedlap
07-12-2009, 04:24 AM
LawVol asked some good questions. I'm hoping for some responses to his post, since he seems to be the dissenter, before I post the punch-line.

slapout9
07-12-2009, 09:38 PM
What is your basis for detaining the wife? Assuming, of course, that you have actionable intel to indicatethat the husband is in fact a terrorist, what is her status? From the limited facts given, it would appear that she has no connection to the doings of her terrorist husband (being married to him simply isn't enough unless you're willing to subjet our wives to the same rules).

Next, what is the status of the two sons? Assuming from the limited facts given that they are also unconnected to the father's doings, they would also appear to be civilians. What would be your basis for detaining them? What would be your basis for (supposedly) facilitating the torture of them? What the scenario appears to advocate is the torture of civilians for the purpose of possibly obtaining information from a third party.

This leads intot he next question: what will be done if she refuses to provide the information? If the sons are not then sent away, word gets out and our credibility with respect to this type of threat is done. If the sons are sent away, again what is the basis for doing so? Again, assuming from the limited facts that they are civilians, the scenario stretches much further than a "collateral damage" scenario (although I really can't stand that term). Here, you aren't simply attacking a valid military target wherein the military value outweighes that damage to civilians; you're actually targeting civilians. This is what the terrorists do. Are we really willing to slide this far down the slope? If so, what does this say about our legitmacy? What does it say to the civlian community in the AOR that we're trying to win over.

No, I don't see this as legal for the simple fact that the legal question must be examined in light of taking the threat to its logical conclusion. This means examining it as done above, IMO.

Now, substitute the wife for a known terrorist and threaten him/her with torture and we, possibly, have a different situation. Philip Bobbit, in a book I'm reading now, argues that in today's informationized world, the information a terrorist holds is akin to his weapon and until he surrenders that "weapon" he may still be engaged, so to speak. I like this argument but its needs more exploration.

Of course, the above is a legal analysis constrained by the limited facts available (don't you love lawyers? - there's a reason we do this), you also asked about the morality of this scenario. I do not viewed morality and legality as always synonymous. Law is law but morality may differ depending upon the person(s) involved. So, as to morality, the issue is really moot except when considered in light of overall legitimacy. To what extent does morality factor into legitimacy? Who's morality is in play? Can legitimacy be obtained when a given plan of action is legal but possibly not moral?

Lawvol, most of your points are interesting but they require "assumption of facts not in evidence"...so I don't think it is related to the situation that was posted, so based upon what was posted it was moral and legal and it succeeded as it was planned.

Schmedlap
07-12-2009, 11:32 PM
I think LawVol's question "what will be done if she refuses to provide the information?" speaks to whether it is sound policy. Ditto the hypo of "If the sons are not then sent away..."

LawVol
07-13-2009, 01:00 AM
Lawvol, most of your points are interesting but they require "assumption of facts not in evidence"...so I don't think it is related to the situation that was posted, so based upon what was posted it was moral and legal and it succeeded as it was planned.

Slap, I have to respectfully disagree. My point is exactly the opposite. There are not enough facts to make a conclusive recommendation as to legality. Since the scenario indicated a terrorist connection with respect to the husband and did not do so with respect to the others, I made a safe (I believe) assumption that the others were not terrorists or thought to be since that wasn't indicated.

In my line of work, it is fairly rare for a question presented to include all of the relevant facts since a recitation is nearly always filtered by the reciter's biases. That's why lawyers always ask so many questions and often caveat answers. :D

I believe my questions are related to the issue at hand since they go directly to whether the actions are legal. If the answer to the first question suggests no legal basis for holding the wife, then everything that happens after is tainted by that fact. Moreover, the fact that the scenario had a successful result is irrelevant in determining legality. I'm not quite sure my commanders would be comfortable with legal advice that turned on the success of their tactics.

Ken White
07-13-2009, 01:18 AM
If she was picked up solely because she was the wife and not for another act in her own right, that would be a no-no. Given no legal basis for custody of the wife or kids, all that follows would be illegal -- my comment that it "should not be illegal" was aimed specifically at the threat aspect and was to the effect that existing laws were adequate, thus no new laws were needed. However, I did not make that clear, so that's a lick on me... :(

None of that has any effect on my 'don't do it, it'll cost you later.' Still not enough info for me to make my moral judgment... :wry:

jmm99
07-13-2009, 01:57 AM
Does the "Fruit of the Poisonous Tree (http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree)" extend as far as this:


from LawVol
If the answer to the first question suggests no legal basis for holding the wife, then everything that happens after is tainted by that fact.
....
from Ken
Given no legal basis for custody of the wife or kids, all that follows would be illegal.

and, if so, on what authorities (legal) or reasoning (non-legal) are these sweeping assertions based ?

Does the hypothetical involve a criminal case where evidence is offered which was derived from the interrogation ?

Ron Humphrey
07-13-2009, 02:03 AM
But as others alluded to the problem I have with this is very simply left to a couple of variables.

Who's being interrogated

Why

What will be done in relation to that why

And most importantly by whom /how

If the reason isn't tied to the who your interrogating then regardless the validity of your concerns (there's a whole lot of consequences in regards to the population your dealing with)

Better be a whole lot more to the why then simply (they might know)
Because the actions about to be taken in reponse to any information obtained and the whos performing those actions will have a lot to deal with should something be wrong anywhere in the process

Finally if the who is a US soldier theres a whole lot of long term issues with the whole idea of being able to temporarily detach themselves from those things they regard as proper within the context of their own lives and if you get it wrong you may well not know it till their home and all hell is breaking loose.

Just my thoughts (uninformed by any practical application)

LawVol
07-13-2009, 02:28 AM
Does the "Fruit of the Poisonous Tree (http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree)" extend as far as this:



and, if so, on what authorities (legal) or reasoning (non-legal) are these sweeping assertions based ?

Does the hypothetical involve a criminal case where evidence is offered which was derived from the interrogation ?

While there is certainly a criminal law analogy to be drawn here I've tried to stay away from it as I do not see criminal law and the law of war as necessarily synonymous. While there are similarities, I think we get into trouble if we treat Long War legal issues solely within a criminal law context. Here's my train of thought:

Operating under an assumption, given the limited facts, that the wife and sons are civilians they are accorded protected status under international law. Once this status has been determined, they cannot be held and, thus, their continued detention becomes illegal. Since you are holding them against their will, the questioning of them also becomes illegal as there is no legal provision for doing so.

Even if the questioning is somehow rendered legal, the fact that the detention is not legal taints the process in that it tells the world that we do not respect the protected status of civilians. This, in turn, diminishes support for our actions, provides the enemy with a pretty good recruiting tool, and runs counter to the "hearts and minds" campaign.

I'd be interested in hearing arguments as to the legality of this scenario, however.

Ken White
07-13-2009, 02:52 AM
and, if so, on what authorities (legal) or reasoning (non-legal) are these sweeping assertions based ?Given the hypothetical, no reason was shown for the custody of the Wife. If it's only due to the fact that she's the spouse and hasn't been picked up for her own actions, intimidation is a misdemeanor most places and in some a felony if weapon is used or harm results. Last time I heard, anyway. That could well apply even if her custody was not solely due to the relationship; intimidation is intimidation. Then there's this:

""Uniform Code of Military Justice art. 31(d), 10 U.S.C. § 831(d) (2000) (“No statement obtained . . . through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against [the accused] in a trial by courtmartial.”).""

We dunno whether the interrogator is military or not...;)

What we do know is that there is a distinct possibility a Court Martial could rule that coercion was used. Even if the Court Martial does not, the Civil suit by Wife or Terrorist Husband after release from Elba or a fifth Cousin 14 years later may so rule.

Since I'm me and I can't visualize a situation where I'd be interrogating unless I was in the millinery, that was my rationale...:wry:
Does the hypothetical involve a criminal case where evidence is offered which was derived from the interrogation ?Not stated. :eek:

But in this day it certainly could...

None of which affects me because it would be, IMO, stupid and I'm not going to do it based on the information thus far given -- mostly so I don't get cross flogged by you and John over one sorry Dude who is unlikely to hold the fate of the free world in his hands (or, if he does, that should have been stated)... :D

slapout9
07-13-2009, 04:06 AM
Slap, I have to respectfully disagree. My point is exactly the opposite. There are not enough facts to make a conclusive recommendation as to legality. Since the scenario indicated a terrorist connection with respect to the husband and did not do so with respect to the others, I made a safe (I believe) assumption that the others were not terrorists or thought to be since that wasn't indicated.




Lawvol, I never read anything about anybody trying to prosecute anybody, this was a bluff operation trying to get information. It is pretty much standard police procedure to interview relatives that would have information about other relatives and they could certainly be detained (they were not arrested) based upon that at least for a short period of time because of the exigent circumstances situation. These are not run of the mill street criminals. But again I point out that prosecution was not the objective...information was and that gives you a lot of room manuver.

jmm99
07-13-2009, 04:12 AM
this ....


from Ken
99 USC-White, of course. Why do you ask?

although, I prefer 99a USC-McCarthy (superceding amendment). :D

OK, chasing the "Fruit of the Poisonous Tree" is illusory here cuz it does not apply unless the statements are offered into evidence (e.g., UCMJ provision cited by Ken).

What could apply are the declaratory US legislation regarding the scope of Common Article 3, the separate War Crimes and Anti-Torture statutes, and other provisions of the UCMJ - as to all that, we've been there and done that in "War Crimes" and other threads (the Search button is your friend).

As Ken correctly states:


.... intimidation is a misdemeanor most places and in some a felony if weapon is used or harm results. Last time I heard, anyway. That could well apply even if her custody was not solely due to the relationship; intimidation is intimidation.

Even the original hypothetical (construed as a pure ruse - i.e., no intent or ability to carry out the threat) runs afoul of the prohibition against employing a death threat (against the detainee and/or his family).

So, legally (that is, if I am advising the interrogator as my personal client - which is not quite the position of a JAG officer) the original scenario is questionable. My enhanced scenarios are more so. Witness the court martial of the CPT and his 1SG (thread - A War's Impossible Mission (http://council.smallwarsjournal.com/showthread.php?t=6428)).

-----------------------------
True, if you assume (accept without evidence) ....


from LawVol
Operating under an assumption, given the limited facts, that the wife and sons are civilians they are accorded protected status under international law. Once this status has been determined, they cannot be held and, thus, their continued detention becomes illegal.

but, the issues under Common Article 3 are not so simple as making a distinction between those who bear arms and "civilians". The question of who is a member of the infrastructure (the underground cadre) and subject to CA 3 detention is not settled by automatic reference to GC IV for everyone not caught with an AK or grenade in hand.

----------------------
This scenario reminds me of something biblical (or Koranic) I once read - canonical or non-canonical, I can't remember. Anyway, the punchline belongs to Schmedlap.

Schmedlap
07-13-2009, 07:44 AM
Okay, here's the punch line. First, the original scenario...


"The terrorist mastermind had slipped through their fingers before, and American forces were not about to let it happen again... Unable to track him down, they managed instead to locate and detain his wife... For several days, they interrogated her at an air base, but she repeatedly insisted that he was dead. Finally, they tried a new tactic. They noisily put a plane on a nearby runway, its engines running. As the commanding officer later recalled: 'We then informed [her] that the plane was there to take her three sons to [a repressive country nearby] unless she told us where her husband was... If she did not do this then she would have ten minutes to say goodbye to her sons...' Having threatened, in essence, to kill her sons - for nobody doubted what the secret police would do to them when they arrived at their destination - the interrogators got the information they wanted. And they got their man, disguised as a farm laborer, that evening."The scenario actually happened, but the facts were significantly different. The actual fact pattern is printed below, with the changes in bold to reflect what actually happened...


"Rudolph Hoess, the commandant of Auschwitz had slipped through their fingers before, and British forces were not about to let it happen again... Unable to track him down, they managed instead to locate and detain his wife... For several days, they interrogated her at an air base, but she repeatedly insisted that he was dead. Finally, they tried a new tactic. They noisily put a train on some nearby tracks, its engine running. As the commanding officer later recalled: 'We then informed [her] that the train was there to take her three sons to [a repressive country nearby] unless she told us where her husband was... If she did not do this then she would have ten minutes to say goodbye to her sons...' Having threatened, in essence, to kill her sons - for nobody doubted what the secret police would do to them when they arrived at their destination - the interrogators got the information they wanted. And they got their man, disguised as a farm laborer, that evening."A few things stick out about this in my mind.
- The concentration camps had been liberated. Rudolph Hoess posed no further threat.
- The war was over. That is generally when prisoners are released, not continued to be hunted down.
- Hoess was sought in order to stand trial at Nuremberg, not to prevent him from continuing hostilities.
- His wife was detained and coerced with the threat of her sons being mistreated.

Today, on the other hand...
- We suspect that certain Gitmo detainees are still threats.
- The war is not over, so prisoners would, by historical precedent, be expected to remain in custody.
- Gitmo prisoners are held, in part, to prevent them from continuing hostilities.
- Interrogations that have drawn criticism in this decade have been...
- - those applied to the actual terrorist, not a family member
- - applied in order to obtain information about existing/continuing threats, not to obtain a witness for a court hearing
- - applied while hostilities are ongoing

Greyhawk
07-13-2009, 08:41 AM
The case of Cpt Roger Hill (mentioned briefly by jmm99)
http://www.washingtonpost.com/wp-dyn/content/article/2008/12/12/AR2008121203291.html

Short version:

Afghanistan - Hill had detainees he had to release. Before doing so he took three outside and fired a weapon into the ground some distance from where they stood.

Those remaining inside were told their three comrades had been shot. Would they be willing to share information to avoid the same fate?

Jump to the end: General (Under Honorable Conditions) discharge. (Respectfully correcting jmm: short of court martial, the threat of which was sufficient to compel the bargain. Is there an "irony" emoticon...?)

There are layers of complexity (the full story would make a fine case study and an outstanding feature film - I don't mean that in a negative way) but I offer this as stark a contrast to your original post - and support for what I believe is at least part of your point - "times have changed".

Hypothetical argument: I suspect even today a jury of twelve random Americans would have difficulty reaching a "guilty" verdict in Hill's case, while a Court Martial panel would do so rapidly and unanimously.

Disclosure: I've discussed this topic with Roger Hill.

Tom Odom
07-13-2009, 09:04 AM
Okay, here's the punch line. First, the original scenario...

The scenario actually happened, but the facts were significantly different. The actual fact pattern is printed below, with the changes in bold to reflect what actually happened...

A few things stick out about this in my mind.
- The concentration camps had been liberated. Rudolph Hoess posed no further threat.
- The war was over. That is generally when prisoners are released, not continued to be hunted down.
- Hoess was sought in order to stand trial at Nuremberg, not to prevent him from continuing hostilities.
- His wife was detained and coerced with the threat of her sons being mistreated.

Today, on the other hand...
- We suspect that certain Gitmo detainees are still threats.
- The war is not over, so prisoners would, by historical precedent, be expected to remain in custody.
- Gitmo prisoners are held, in part, to prevent them from continuing hostilities.
- Interrogations that have drawn criticism in this decade have been...
- - those applied to the actual terrorist, not a family member
- - applied in order to obtain information about existing/continuing threats, not to obtain a witness for a court hearing
- - applied while hostilities are ongoing

Adding to your theme:

As you read combat diaries and even published accounts of WWII as the news of the death camps spread, taking of prisoners decreased inside Germany. One account entitled GI Diary, simply had an entry that noted, "the boys aren't taking any prisoners today". And of course as Airborne, Commando, Ranger, etc were to be shot out of hand per Hitler's orders, SS often recieved similar treatment. Malmedy certainly added fuel to that fire...

Fast forward 1945 to 1995 when in the aftermath of the genocide in Rwanda, the new government and military were trying to stabilize the country, hunt down the killers, and put them in prison. I was continually amazed at the restraint--and yes it slipped in cases like the camp clearing at Kibeho in April that year--shown in operations like Iwawa Island that November when the new army took prisoners.

So, yes, times do change and so do acceptable standards...

Tom

Schmedlap
07-13-2009, 05:31 PM
Thus far into the book (about 80 pages), the author gives a good explanation of poor decisions made, not as to what types of powers to use, but rather how to assert those powers.

It is quite possible that the former administration could have gotten Congressional authorization for everything that it wanted to do. Given the murky gray legal area in which those actions fell, there was a concern over whether to ask permission and imply that the authority did not exist or to go ahead and do it to reaffirm that the authority did exist. Unfortunately, the administration chose the latter. In response, when their actions were challenged, the Court had no statute to support the actions of the administration and it filled the void with its decisions.

The questions of whether certain interrogations, wiretaps, or other actions are legal or moral may be wholly irrelevant to whether they make sound policy. The real question is - how do you go about doing it? Do you seek authority first? Or do you go ahead and assume that you have authority (whether the law is on your side or not) and hope nobody challenges you? If you choose the latter and exacerbate that bad decision by choosing to remain silent in the face of your critics, then you not only set yourself up for political suicide, but you also help your political adversaries to create the political climate that existed for the last four years and led to the demonization of President Bush, VP Cheney, Rumsfeld, and others - far disproportionate to any real or imagined misdeeds that they may have committed.

Rifleman
07-13-2009, 08:30 PM
A lot of the argument against the scenario had to do with why the wife was detained. Let's remember that the basis for investigative detention is reasonable suspicion and not probable cause. Do we suspect that the wife is guilty of something?

I found something from Title 18 US Code that might be relevant. It's called Misprision of felony and it's often overlooked by cops and lawyers who operate under state statutes. It reads:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

Questions: 1) Does that change anything if the wife was being detained within US federal jurisdiction and questioned about a crime that her husband commited within US federal jurisdiction? 2) Does spousal testimonial privilage have to be considered here?

jmm99
07-13-2009, 08:31 PM
About 75 links appear on Googling - "roger hill" "article 32", of which, here are three: What Happened? (http://www.puckettfaraj.com/cpt-roger-hill/) (by Puckett & Faraj, attorneys); Interrogating Army 'justice' (http://www.washingtontimes.com/news/2009/feb/24/interrogating-army-justice/) (Wash Times op-ed by Andy O'Meara, Tom McInerney and Paul Vallely); and Help Captain Roger Hill (http://www.acuf.org/issues/issue127/commentshill.asp) (by his wife).

Greyhawk
07-13-2009, 08:58 PM
The man himself tells his story (audio) here http://www.mudvillegazette.com/031566.html

My site, but (besides his voice) a of couple details therein probably not available elsewhere. I suppose the disclaimer "I'm not an attorney, was not compensated, have no first-hand experience and limited prior knowledge, and apologize for linking myself" is in order.

Here's more - various written accounts from Hill
http://www.bouhammer.com/2009/05/exclusive-cpt-roger-hill-in-his-own-words/

davidbfpo
07-13-2009, 10:26 PM
Rifleman,

I suspect that the British soldiers action was influenced by the Common law offence of Assisting an Offender (incorporated into statute in 1967) and the wife's refusal to help may have enabled her arrest. Post-VE day the situation in Germany was hardly normal and some form of emergency or military law was available.

Since 1967 additional offences have appeared in statute regarding terrorism notably e.g. failing to report etc.

I am not a lawyer and Schmedlap's example is set in 1945, before my arrival.

davidbfpo

slapout9
07-14-2009, 12:02 AM
Rifleman,

I suspect that the British soldiers action was influenced by the Common law offence of Assisting an Offender (incorporated into statute in 1967) and the wife's refusal to help may have enabled her arrest. Post-VE day the situation in Germany was hardly normal and some form of emergency or military law was available.

Since 1967 additional offences have appeared in statute regarding terrorism notably e.g. failing to report etc.

I am not a lawyer and Schmedlap's example is set in 1945, before my arrival.

davidbfpo

Not sure of the statute but sounds like giving aid and comfort to the enemy, which is certainly grounds for detention.

At the state level as far as LE the statutes concerning aiding and abedding a fugitive, would be grounds for detention. I would also look at taking her into protective custody because she may be a material witness to the planning of major felonies or acts of war. Then probably the most overlooked......Conspiracy Laws....... most states have them....which is the reason that many Conspiracies are very real;)



Here is one of the most brillant legal minds I know.....shows the entire legal mind thinking process where it concerns danger.
http://www.youtube.com/watch?v=fjsGRDeOS0I

LawVol
07-14-2009, 12:36 AM
Despite the scenario's origination in an ttempt to arrest Nazi war criminals, my opinion remains unchanged with respect to the application of today's lawof armed conflict. However, the Geneva Conventions were signed in 1949, after WWII. At that time, the Hague Convention of 1907 was applicable and Article 44 states that "A belligerent is forbidden to force the inhabitants of territory occupied by it to furnish information about the army of the other belligerent, or about its means of defense." Assuming that the Nazi regime had surrendered and thus its army effectively disbanded, the applicability of this provision is in doubt. If it did apply, then the scenario would be unlawful since Hoess was a member of the Nazi Army (right?) and the wife was being asked to provide information about him. Assuming the inapplicability of the provision, the laws of Germany (to the extent they do not violate international law) would apply and I can't speak to that.

There were some references to various criminal laws, including a cite to US code. However, the scenario is not cut from US federal criminal law. It is an intenrational law, specifically the law of armed conflict, issue. I don't believe we can mix the two. For one reason, we cannot expect our troops to be versed in criminal law and search & seizure jurisprudence in the manner a cop would be. Moreover, I think over reliance on criminal law ties our hands. The job of our combat troops is to reduce the threat not prepare for a trial. Sure, trial can be had, but it must be done in the context of a war crimes trial rather than normal criminal law where the standards can be much different.

Using Schmedlap's scenario with some slight changes, the differing results can be seen. Let's assume for the sake of argument that criminal law applies and that there is no basis for holding or detaining the wife. Let's further assume that she provided incriminatory evidence (i.e. "the smoking gun") rather than simply his location. In that case, the fruit of the poisonous tree doctrine might apply thereby rendering any evidence unuseable. However, applying the law of armed conflict may go the to weight of the evidence rather than the admissibility of it. Of course, much would depend upon the facts and I'm being very broad here, but merely trying to make a point rather than present a treatise.

slapout9
07-14-2009, 03:45 AM
"A belligerent is forbidden to force the inhabitants of territory occupied by it to furnish information about the army of the other belligerent, or about its means of defense."

Lawvol,What about the fact that they are not a Belligerent Army.....they were declared Illegal combatants....hence they were and are not entitled to any protection under the law...except to be executed as spies.

Schmedlap
07-14-2009, 04:00 AM
What about the fact that they are not a Belligerent Army.....they were declared Illegal combatants....hence they were and are not entitled to any protection under the law...except to be executed as spies.

Is it a question of what protections they have? Or is it a question of what legal powers we have?

slapout9
07-14-2009, 04:26 AM
Is it a question of what protections they have? Or is it a question of what legal powers we have?

Schmedlap take a shot at both.

jmm99
07-14-2009, 06:00 AM
The rules for handling detainees are quite explicit. E.g., FM 3-21.8, The Infantry Rifle Platoon and Squad (28 March 2007) 6-15 to 6-18; FM 3-21.10, The Infantry Rifle Company (27 July 2006) 11-89 to 11-96; FM 3-21.20, The Infantry Battalion (13 December 2006) 10-300 to 10-312, to wit:

"All persons captured, personnel detained or retained by U.S. Armed Forces during the course of military operations, are considered “detained” persons until their status is determined by higher military and civilian authorities." In the interim, they are treated as EPWs (treated as, not classified as). The use of the generic classification of "detained persons" at the platoon to battalion levels reflects the complexity of final classification (primarily factual and evidentiary).

From a legal standpoint (under existing statutes and treaties accepted and applied by the US), every person who is detained in an area of armed conflict must fall into one of three general classifications (there are sub-categories):

1. Persons who meet the criteria of EPWs and some other defined categories (requiring reference to and meeting the requirements of Common Article 2, and then going on to the requirements of Article 4 et seq of GC III).

2. Persons who meet the criteria of civilians and some other defined categories (requiring reference to and meeting the requirements of Common Article 2, and then going on to the requirements of Article 4 et seq of GC IV).

3. Persons not meeting the requirements of either #1 or #2 and who fall within the scope of Common Article 3 (the armed conflict not of an interenational character "mini-convention").

The third category generally applies to alleged or proved members or supporters of violent non-state actors (e.g., AQ & Taliban, and associated groups). It is possible for a violent non-state actor to meet the requirements of Common Article 2 by accepting and applying the GCs (application is the more important test). I can't think of a recent example - AQ & Taliban certainly have not.

Any detained person has a right to a hearing if that person claims either EPW status under GC III or civilian status under GC IV. The prevailing US view (JAG school solution) is that such a hearing is also required if the detaining authority has reasonable doubt about the detained person's status (e.g., if the person might be either an EPW under GC III or a civilian under GC IV).

A person detained under Common Article 3 cannot be executed or punished without a hearing. The exact requirements for future GC hearings is one of the Obama administration's agenda items, which will require Executive and Legislative consensus according to the President.

All detainees are protected by legislation more clearly defining (and IMO expanding) Common Article 3 rights, as well as the War Crimes and Anti-Torture statutes.

Interrogations are governed by the doctrinal manuals covering that speciality.

Detentions under the GC provisons have nothing to do with criminal prosecutions, whether in the Federal courts or before military commissions (where different rules apply) - as established in the cases involving Noriega.

The foregoing sums about a dozen pages of posts in the War Crimes thread. All or some of this could be changed by upcoming legislation.

-----------------
PS: Greyhawk - thanx for the links to CPT Hill direct. I believe that the CPT and 1SG were the first to be charged under the War Crimes statute (incorporated by reference into the UCMJ) - a good example of gross overcharging (IMO).

slapout9
07-14-2009, 02:10 PM
That is the whole problem with guerrilla warfare....because they don't fight by the rules by the time you figure out which category:rolleyes: they are in you may be dead or have lost the war.

Danny
07-14-2009, 03:45 PM
But the context and details of the story are only marginally relevant. Debating what would have happened if she had refused to provide the information only obfuscates the point. If she had not provided the information, then the plane's engines would have been shut down, she would have known that we were bluffing, and then she would have told all ten people who would listen to her that we bluff. So what?

Other details are also only marginally relevant in my opinion. The main thrust is whether such a practice is moral and legal. I won't comment on legal except that if it is legal in policing work in the U.S. (which it is), I cannot possibly see how it could be illegal in warfare, conventional, counterinsurgency or counterterrorism.

As for the morality of the practice, I cannot see how it could be immoral. In the story we lied to the woman. So what? I can make a Biblical and moral case for lying and deception under many different circumstances, not the least of which is warfare. The enemy is not entitled to the truth. While I don't believe in situational ethics, it's also important to realize that morality is not exlusively deontological (long story, I'll be happey to elaborate in an e-mail to any interested party).

Finally, as for duress, I have no problems with causing distress to the enemy. In your story the woman may not be the enemy, but it simply must be understood by our morally preening society that warfare involves corporate accountability, and that the conduct of war unavoidably and necessarily involves harm to the land, infrastructure, and even though we try to avoid it, noncombatants. In this particular story we have not harmed the woman, only caused her emotional distress. So much the better, because if we get the information we want, we may be able to save lives of our own servicemen. To me, this story presents the clearest picture of a win-win situation. She is unharmed, and we save lives.

As for unavoidable collateral damage and harm to noncombatantct, it is a function of the nature of armed conflict. If the nation doesn't like it, they should consider this fact prior to launching a campaign rather than attempt to change the nature of the thing that they have started.

As one final thought, harm to noncombatants (while this is a little far afield from the subject of the post) does do harm to the overall campaign and of course should be avoided to the extent possible, while also not restricting the right of self defense. But I agree with Ken (I believe it was he who made the point) that I don't believe that anyone is this important. In general, I am no fan of the HVT campaign because I think it is largely ineffective (here I am not referring to the drone campaign in Pakistan, but the SOF raids in the middle of the night to capture mid-level Taliban commanders who will be released later anyway).

Now that I have taken the discussion too far afield, I'll sign off.

jmm99
07-14-2009, 04:56 PM
That is the whole problem with guerrilla warfare....because they don't fight by the rules by the time you figure out which category they are in you may be dead or have lost the war.

The point of the FMs is to relieve platoon, company and battalion combat personnel from classification problems (for detainees) - thus, the generic classification of "detained persons". The general idea of the FMs is to preserve evidence at the lower levels and leave interrogations and classifications for higher levels in the chain.

That being said, CPT Hill's case illustrates two real problems - (1) a breakdown at the battalion and higher levels in regard to indigenous security risk detainees and how they were handled; and (2) totally inadequate forces at the tip of the spear (his company of about 60 was eventually replaced with a force of 1200).

If you are referring to the rules regarding initial contact (kill or capture), you may have a point depending on how the local ROE/RUFs are phrased - and how well educated and trained in those rules the troops are.

Where the concepts of the SROEs and SRUFs are followed (in drafting the local rules), the problem you cite (classification by status) shouldn't occur. The SROEs and SRUFs always default to a conduct standard (a hostile act or threat on the part of the target allows proportionate self-defense on the part of the soldier).

Status classification at the contact level comes into play only where a hostile group is defined by NCA (let's say AQ). In that case (positing that there are no constraints placed on the Laws of War by local ROE/RUFs), kill or capture of one of those defined targets is allowed at any place and any time. The practical problem is identification of the status target hidden amidst the population and hitting the right person (e.g., CORDS-Phoenix in Vietnam, which detained or converted twice as many VC cadres as it killed).

I have no idea of the precise local ROE/RUFs that CPT Hill's unit was operating under (and probably they are classified). So, they may have been the problem, or at least contributed to the problem.

slapout9
07-14-2009, 06:01 PM
That being said, CPT Hill's case illustrates two real problems - (1) a breakdown at the battalion and higher levels in regard to indigenous security risk detainees and how they were handled; and (2) totally inadequate forces at the tip of the spear (his company of about 60 was eventually replaced with a force of 1200).

If you are referring to the rules regarding initial contact (kill or capture), you may have a point depending on how the local ROE/RUFs are phrased - and how well educated and trained in those rules the troops are.


Status classification at the contact level comes into play only where a hostile group is defined by NCA (let's say AQ). In that case (positing that there are no constraints placed on the Laws of War by local ROE/RUFs), kill or capture of one of those defined targets is allowed at any place and any time. The practical problem is identification of the status target hidden amidst the population and hitting the right person (e.g., CORDS-Phoenix in Vietnam, which detained or converted twice as many VC cadres as it killed).


The above items address my concerns, specifically Capt. Hill made a decision to protect Americans(the whole purpose of the flipping war in the first place) while in the middle of Enemy forces who will not follow a single rule/law/SOP that we place upon on our forces, which to me makes him completely innocent. The LAW is being used as a weapon aginst US Soldiers and they should have total immunity in Fugged up wars like this. If they can not do the job they should be removed/transferred to some support function not prosecuted.

jmm99
07-14-2009, 06:51 PM
to an ideal world, but we don't. If we did, CPT Hill would have been able to call in his partnered gendarmerie unit since indigenous security risks and interrrogation of them would be part of that unit's function. Of course, we do not have gendarmerie units. So, CPT Hill is told to Make Do; expected to say Can Do; and everyone lived happily ever after. Except they didn't.

While I won't go so far as your "total immunity", my two cents worth is that CPT Hill should have been pulled out, sent back home and given enough time to decompress, and then promoted to MAJ. That's an emotional response, I know.

As to "The LAW is being used as a weapon aginst US Soldiers", you'll find no argument against that proposition from me. What we should be exploring (and implementing) is how to use the Law as a weapon for US forces. At most, defensive measures have been employed in that area. Purely defensive measures generally don't work well in law. At some point, you have to at least mount a counter-attack.

And, yes, these wars are "Fugged up" - no doubt about that one.

davidbfpo
07-14-2009, 07:51 PM
(taken from) The job of our combat troops is to reduce the threat not prepare for a trial.

Sometimes combat troops do have to prepare for a trial, from a UK perspective in Northern Ireland the Army did adjust to preparing for a trial, perhaps not in the early days. Towards the end the Army down to soldier level were very forensically aware and that information gathering through intelligence could become evidence. Others can comment on Malaya and other insurgencies which predate my horizon.

Now a long time ago, how about the deployment of US troops in the USA, during the rioting in Detroit and elsewhere? Was preparation for criminal trials excluded?

davidbfpo

jmm99
07-14-2009, 08:34 PM
from David
Now a long time ago, how about the deployment of US troops in the USA, during the rioting in Detroit and elsewhere? Was preparation for criminal trials excluded?

Ken White can tell you the story from a military and police standpoint, since he was on the professional team that went in and managed to bring some order to chaos.

My experience was post-Ken's (by a couple of weeks), as part of the editorial team from Michigan Law Review that investigated and wrote up a report on the legal aspects - which I don't think is online.

Very simply, Detroit in its legal aspects (particularly, perservation of evidence) was well beyond "Fugged up".

Ken White
07-14-2009, 10:23 PM
But the actual operation was straightforward and non problematical for us (if not for the Detroit P.D. or the poor Michigan National Guard). The only round fired in my Brigade was a harmless accidental discharge. We did throw some CS Grenades which dispersed the crowd of protesters intended but which also wafted into the City Jail. The prisoners, of course, not having masks...

Both at Little Rock, putting kids in school in 1957 and Detroit keeping kids out of jail in 1967 there were minor incidents that resulted in criminal charges before Federal Magistrates or Courts and in both State Courts. There were remarkably few detentions and most were simple and clearcut. In both cases, dues to the extremely short notice deployment, there was no preparation of the troops and no added training; everyone just acted with decency and common sense and there were no difficulties. People did have to testify in court. In Little Rock we stayed and to my knowledge all trials completed before we left. Detroit we left almost as abruptly as we arrived and witnesses were going back and forth for months afterward.

Later, in preparation for deployment to Washington DC for some anticipated riots, classes were given to the entire Division, all three Brigades -- most by civilian police officers, local North Carolina and from DC, some by JA Officers -- on arrest (of civilians not done by the US Army), detention (we do that, turn 'em over to civil authorities), evidence collection, witness statements, the whole forensic bit -- mile wide and an inch deep due to time constraints. In the event, a couple of other Brigades went but we didn't get to use the training. Fortunately, we went to Viet Nam instead. :D

slapout9
07-14-2009, 11:29 PM
As to "The LAW is being used as a weapon aginst US Soldiers", you'll find no argument against that proposition from me. What we should be exploring (and implementing) is how to use the Law as a weapon for US forces. At most, defensive measures have been employed in that area. Purely defensive measures generally don't work well in law. At some point, you have to at least mount a counter-attack.



Emphasis was added by me.

Now that is what I am talking about....everything in these fugged up wars should be geared to give us and our allies an advantage.....on every front political,economic,legal,social,intelligence,milit ary and anything else you can think of.:wry:

No power should ever be given to an enemy if it is possible to stop it!

LawVol
07-15-2009, 12:15 AM
Lawvol,What about the fact that they are not a Belligerent Army.....they were declared Illegal combatants....hence they were and are not entitled to any protection under the law...except to be executed as spies.

I'm curious as to where in international law one can find the category "illegal combatant?" I only know of two categories: combatant and non-combatant, although differing terms are sometimes used (e.g. civilian for non-combatant). I aks this not to be coy, but to illustrate a point. Applying Hague to modern times, and in light of Geneva, one can conclude that Hague Article 44 (quoted above) would apply to combatants rather than just a belligerant army.

Given the choice of applying a combatant and non-combatant status to terrorists/guerillas/insurgents or whatever the nom de jure is, I think combatant would apply. Of course, this might also mean giving them POW status once captured, but I don't really see a major problem with this. As courts-martial in our own country shows, combatants can be tried for the commission of crimes in war (i.e. war crimes). But I digress.

Contrary to the thought that this amounts to nothing lore than simple legal nit-picking, it goes to the heart of determining legality. If I don't ask the questions, you get useless legal advice in the form of the seemingly standard legal response "it depends." In the scenario offered, possible differences with criminal law is the detained person's freedom to leave, the right to an attorney, the right to remain silent, etc. Since the scenario, IMO, should not involve criminal law, she would not necessaily have any of these rights, but would in a criminal law context. In other words, if she was merely a witness, she'd be allowed to leave. If she was a suspect and therefore actually being detaining, a Mirands warning would come into play, something I pretty sure battlefield interrogators do not want to do (maybe I'm wrong though since I've not worked with any).

Under the law of armed conflict, different rules come into play but, as a result, you're constrained in what you can do. There are provisions in international law that proscribe the torture of civilians (which the wife and sons are) and this threatening to do so indicates a willingness on the part of the US to ignore international law. Of course, some would say we're already doing this given the torture stuff in the news of late, but I'm only talking about torture vis-a-vis civilians. As a JAG (or any lawyer for that matter), my advice is not limited solely to the legal questions but should also consider the interplay between the legal issues and policy, strategy, etc. In the present case, this also means advising with that in mind. Thus, offering to violate international law is not something that should be taken lightly in light of the our need for coalition partners or at least have some folks quietly acquiesce.


As to "The LAW is being used as a weapon aginst US Soldiers", you'll find no argument against that proposition from me. What we should be exploring (and implementing) is how to use the Law as a weapon for US forces. At most, defensive measures have been employed in that area. Purely defensive measures generally don't work well in law. At some point, you have to at least mount a counter-attack.

I'd be very interested in hearing any thoughts you may have on how we might go about doing this. I have an interest in this as well and recently explored the issue in my LLM thesis. Unfortunately, for our purposes here, the thesis was pretty much limited to space law issues but I may be broadening its scope.

jmm99
07-15-2009, 02:41 AM
These are just some thoughts.

1. Legal actions vs funding sources - basically following the Alien Property Custodian process of WWII. Since these are civil actions, you can engage in discovery - almost limitless discovery. Yes, they can take the 5th, but that will eventually lead to a judgment against them.

2. Right now, there are a number of civil actions brought vs the USG and/or officials. Defense tactics have largely involved motions to dismiss (failure to state a claim, etc.), where the facts alleged are assumed to be true for purposes of the motion. So, bad publicity - Mr X was tortured Y times, etc., etc. Again, full discovery is available - again maybe multiple 5th assertions with the same result as #1.

3. Getting ahead of the enemy's agitprop machine - Schmedlap's talked about this in Lawfare (a "bumper sticker" term we are probably stuck with) - punch this (http://council.smallwarsjournal.com/showpost.php?p=75823&postcount=4) and the following posts (including a few LawVols). PS - LawVol; in the linked post, Schmedlap asked some questions that are AF stuff - if within your areas of expertise and whether something you can talk about here ?

4. Long term strategic lawfare - which LawVol mentioned here (http://council.smallwarsjournal.com/showpost.php?p=75935&postcount=15). We just avoided being snookered on the 1977 Additional Protocals to the GCs. Since the 80s, some of those concepts have been sneaking in the back door via "customary international law". It's really amazing how much of that punditry is based on a mid-80s conference speech by a DoS Deputy Legal Advisor (a new source of law-making ! :( ).

The point is that we should revisit the Laws of War with the goal of adopting as positive law those principles which are to our advantage - and which fit our operational considerations. And, I am not talking John Yoo et al stuff.

jmm99
07-15-2009, 03:35 AM
I don't like the term because, with respect to detainees, it confuses the law of detention with criminal law. I.e., if the guy is an "illegal combatant", then shouldn't he be prosecuted before a judicial court (given Miranda warnings, etc.). Instead, I look at the provisions under which people can be detained:

1. Persons who meet the criteria of EPWs and some other defined categories (requiring reference to and meeting the requirements of Common Article 2, and then going on to the requirements of Article 4 et seq of GC III).

2. Persons who meet the criteria of civilians and some other defined categories (requiring reference to and meeting the requirements of Common Article 2, and then going on to the requirements of Article 4 et seq of GC IV).

3. Persons not meeting the requirements of either #1 or #2 and who fall within the scope of Common Article 3 (the armed conflict not of an interenational character "mini-convention").

However, there is a long Wiki (with many refs) which everyone can read and escape my lecturing on it - "Unlawful combatant (http://en.wikipedia.org/wiki/Unlawful_combatant)". The 2003 opinion of Knut Dörmann, Legal Advisor at the Legal Division of the International Committee of the Red Cross, is here (http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5LPHBV/$File/irrc_849_Dorman.pdf).

A more useful terminology is the juxtaposition of "regular combatants" and "irregular combatants", where various factual tests can be applied and related to the operational context. E.g., in the context of pseudo operations, see here (http://council.smallwarsjournal.com/showpost.php?p=72030&postcount=13), here (http://council.smallwarsjournal.com/showpost.php?p=72045&postcount=17), here (http://council.smallwarsjournal.com/showpost.php?p=72051&postcount=18), here (http://council.smallwarsjournal.com/showpost.php?p=72093&postcount=19) and here (http://council.smallwarsjournal.com/showpost.php?p=72095&postcount=20) for references and comment.

Now, all of this having been said and read, I don't find much guidance in the punditry on these issues - especially in what was written before the SCOTUS decisions from Hamdan (2006) to date.

The law in this area, for US lawyers, is what is under development in the DC District and Circuit courts. Unless you are familiar with those cases, you cannot present any sort of intelligent legal argument.

goesh
07-15-2009, 12:27 PM
I see nothing immoral about this scenario and it slides the reader down a slippery slope towards the ICC/Hague, where both entities would without hesitation trump the US Consitution with vigor IMO. The world is not one village where enlightened men have created a gold standard of morals and law to be enforced by fallible men. First, the species must necessarily kill one another from time to time and that is a hard nut for some to crack despite the evidence of recorded history and the literal sea of blood that has been shed over the centuries. Secondly, the apalling impotency of powerful nation states to directly intervene during times of real genocide, i.e. Rwanda, Darfur, Cambodia, Columbia, the Congo, etc leaves this scenario essentially a parlor game where but a privliged few get to participate and fallible men of action are forced to stand idle. Said nation states are packed to the hilt with Law and Morality.

jmm99
07-15-2009, 04:12 PM
While the 1968 MLR article is not on line, the 1967 initial report is here (part 4 of a 9 part series (http://www.michigancitizen.com/default.asp?sourceid=&smenu=106&twindow=Default&mad=No&sdetail=4838&wpage=1&skeyword=&sidate=&ccat=&ccatm=&restate=&restatus=&reoption=&retype=&repmin=&repmax=&rebed=&rebath=&subname=&pform=&sc=1070&hn=michigancitizen&he=.com); the rest dealing with other aspects of this "civil disorder"). About 6,000 persons were detained by Detroit PD and Mich National Guard, and slightly over 3,000 of the 6,000 prisoners had a “previous arrest” record. The judicial system was unable to handle the overload.

A common view after things had settled down was that, in most of these cases, it would have been better to simply issue summones, instead of detaining people. Most of the persons detained were held under misdemeanor or curfew violation charges. From what Ken writes, his unit followed a limited detention policy.

Boondoggle
07-15-2009, 05:34 PM
Just catching up.

But saw this while taking a lunch break and thought to post it here:

http://www.foreignpolicy.com/articles/2009/07/13/licence_to_kill

License to Kill
When I advised the Israel Defense Forces, here's how we decided if targeted kills were legal -- or not.

BY AMOS N. GUIORA | JULY 13, 2009


Short but very intersting read. He is a graduate of the law school at Case Western Reserve interestingly enough. Great perspective on these issues he brings to the table.

http://www.law.utah.edu/profiles/?PersonID=6581

slapout9
07-15-2009, 07:27 PM
While the 1968 MLR article is not on line, the 1967 initial report is here (part 4 of a 9 part series (http://www.michigancitizen.com/default.asp?sourceid=&smenu=106&twindow=Default&mad=No&sdetail=4838&wpage=1&skeyword=&sidate=&ccat=&ccatm=&restate=&restatus=&reoption=&retype=&repmin=&repmax=&rebed=&rebath=&subname=&pform=&sc=1070&hn=michigancitizen&he=.com); the rest dealing with other aspects of this "civil disorder"). About 6,000 persons were detained by Detroit PD and Mich National Guard, and slightly over 3,000 of the 6,000 prisoners had a “previous arrest” record. The judicial system was unable to handle the overload.

A common view after things had settled down was that, in most of these cases, it would have been better to simply issue summones, instead of detaining people. Most of the persons detained were held under misdemeanor or curfew violation charges. From what Ken writes, his unit followed a limited detention policy.


During my time 72-75 in the 82nd, every summer we lived and breathed Civil Disturbance training and there were some deployments and potential real,real close deployments. I am trying to find the Civil Disturbance card we were issued by DOD and had to carry on our person. This may take awhile:eek: I do remember when we were IRC (Initial Ready Company) they put what was called a stop lock on our M-16's, this is a device inserted into the weapon by the armorer that prevented the selector switch from being placed on full automatic as that was forbidden in all anticipated caes in which we would deploy. More later.

Ken White
07-15-2009, 07:57 PM
From what Ken writes, his unit followed a limited detention policy.we turned them over the Cops or the MiArNG and our Engineer Company helped them build detention and processing pens in a location under the stands in one of the sports Stadiums IIRC. Best I can recall we only picked 20-some odd. Think the Bde from the 101st might have picked up some but doubt they detained many, they arrived a day later and left a day earlier. Been a while... :wry:

Little Rock was a different game initially, we had a slew of US Marshalls until it was obvious that Faubus was going to cooperate. The city of Little Rock did cooperate rather grudgingly... :wry:

Schmedlap
07-15-2009, 11:09 PM
Sometimes combat troops do have to prepare for a trial, from a UK perspective in Northern Ireland the Army did adjust to preparing for a trial, perhaps not in the early days. Towards the end the Army down to soldier level were very forensically aware and that information gathering through intelligence could become evidence. Others can comment on Malaya and other insurgencies which predate my horizon.

As early as 2005, my Soldiers were being shuttled via helicopter to a court room in Baghdad to testify against individuals whom we captured. Also in 2005, part of our SOPs following detention of an individual was to photograph him, photograph his weapons/ammo/etc, photograph him with the weapon, photograph the surrounding area, and immediately draft sworn statements by at least three individuals - including at least one by an NCO and, if an officer was involved, from an officer as well. All of this was done for the specific purpose of these items being entered into evidence if the individual went on trail, after being handed over from our Brigade Internment Facility to an Iraqi facility.

Those steps were implemented as part of our procedures because the feedback that we got from earlier trials were that the Iraqi judges wanted to see this evidence. Toward the end of the deployment, we got more feedback from judges, stating that some of our evidence was unnecessary, since it was so overly exhaustive, so we were able to scale it back a little.

In 2007, some of the "metrics" tracked by my task force included the rate at which individuals whom we captured were convicted in court. It was over 90%, in large part because of the focus on collecting evidence and documenting it in a court-friendly way. I would also add that whether or not we had enough information on an individual often was a determining factor for when, or whether, we launched a mission to grab him.

Greyhawk
07-15-2009, 11:56 PM
Took me a while to realize why some of this discussion sounded familiar.

You may remember some grumbles surrounding this story last year, a few folks were convinced President Bush was going to somehow use this "Brigade" thing to control the country and perpetuate his power...

http://www.armytimes.com/news/2008/09/army_homeland_090708w/

It is very different than NG deployment, but shouldn't have been all that startling in the wake of Katrina lessons learned.

Don't know what the status (or future) of this plan any more.

I also recall some grumbles when AD guys were recently seen 'directing traffic' in the streets of Dothan in the wake of a killing spree.

Ken White
07-16-2009, 01:40 AM
...It is very different than NG deployment, but shouldn't have been all that startling in the wake of Katrina lessons learned.that the news media are totally incompetent and that a dysfunctional city government plus a Governor playing party politics instead of asking for help (a lesson also learned in Florida after Hurricane Andrew) can mess up the works considerably. One can add that FEMA is fouled up -- no news there, they've always been. Patronage and political favor operations usually are.

Having lived through half a dozen Hurricanes and worked on the Army response to five both while in and as a DAC, the Katrina response was really pretty good. Better than Andrew, for sure. Helicopters launched from Eglin and Pensacola less than 45 minutes after the eye passed NOLA, the 1st Army stock and people, prepositioned at Camp Shelby, MS had to be moved when Katrina shifted east a bit but they were still in town in less than 12 hours. The USS Bataan even followed the eye upriver by a few hours...

jmm99
07-16-2009, 03:17 AM
Boondoggle

Prof. Guiora was LTC Guiora in the IDF's JAG Corps for nearly 20 years, so he knows whereof he speaks - also authored some other intelligent articles on LOAC issues. The US probably has more room to work in this area than the Israelis - The Israeli basic organic law (and the status of Gaza and the West Bank) place certain limitations on targeted kills. However, just because you have a hunting license, doesn't mean you kill everything in the woods. The difficult factual question is positive ID of the target. The legal issues revolve on how far to go down the infrastructure chain. At some point, the rules change from military to law enforcement (at least that is the current conventional wisdom).

Schmedlap

Outstanding. Another piece of evidence to silence the whiners' claim that combat units cannot collect adequate evidence, or handle detainees properly. Whether that is the highest and best use of their time is another issue; but, in the absence of specialized, gendarmerie-type units, who else will do it ?

Greyhawk

I never thought Pres. Bush would play the Man on the White Horse bit. But the John Yoo & Company opinions on "inherent presidential" powers in domestic, internal matters provided conspiracy theorists with great fodder.

The reality of an "on-call federal response force for natural or manmade emergencies and disasters, including terrorist attacks" seems connected to Joint Publication 3-40 (http://www.dtic.mil/doctrine/jel/new_pubs/jp3_40.pdf), Combating Weapons of Mass Destruction (10 June 2009), as one possible use.

Some of the issues are outlined in this seminar blurb (http://www.govsecinfo.com/military-and-defense.html) (March 11, 2009). July article (http://www.nationaldefensemagazine.org/archive/2009/July/Pages/SpecializedChem-BioUnittoFullyStandUpin2011.aspx) & Wiki (http://en.wikipedia.org/wiki/3rd_Infantry_Division_(United_States)). The Marines have had for a long time the much smaller Chemical Biological Incident Response Force (CBIRF; T.X. Hammes' unit).

slapout9
07-16-2009, 05:42 AM
In the right hand corner of the card is GTA 21-2-7 December 1970 (supercedes GTA 21-2-7 January 1969)


The title is:
Special Orders For All Military Personnel In Civil Disturbance Operations

There are 8 of them and I will paraphrase them below.

1-carry out your duties in a military manner and present a proper military appearance.

2-have regard for the human rights of all persons. be as nice as possible to civilians. do not mistreat anyone or withhold medical attention. do not destroy property unnecessarily.

3-use only the minimum amount of force to accomplish the mission or defend yourself. when under control of an officer load and fire your weapon only on command. when no officer is present load and fire to defend your self or others or designated property that is vital to public health and safety or to prevent the escape of persons that are a threat to public safety. not authorized to use firearms against suspects for misdemeanor offenses.

4-shoot to wound not to kill.

5-when possible let police arrest the offenders however when police are not present it is your duty and you have the authority to make arrest. transport them ASAP to proper detention facilities. help police protect evidence and fill out reports.

6-allow properly identified media all access so long as they do not interfere with your mission.

7-do not talk about this operation to civilians refer them to your commanding officer.

8-become familiar with these special orders and carry this card with you at all times when engaged in civil disturbance operations.

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

Used to have a copy of the Riot Act.....the Proclamation that would be read through a bull horn ordering them to disperse before we started to disperse them. It is lost somewhere.

Almost went to the presidential conventions in 72....almost went to Wounded Knee after the Indians shot some FBI agents we had boarded the aircraft on that one. There was one other one but I can't remember it.

Of course there was the time when General Krosen (Division Commander) threatened to deploy the 1st Brigade against the 3rd Brigade on a 4th of July weekend... seems several cases of artillery simulators fell into insurgent custody and were being deployed all around Ft. Bragg.......the AO seemed to be concentrated in the on post officer housing area:D:D Just seemed like good Airborne training to me.

Rifleman
07-16-2009, 04:01 PM
4-shoot to wound not to kill.


Not acceptable in police operations these days. You do not attempt to use something intended to be lethal force as a less lethal option. There are never "shoot to kill" or "shoot to wound" directives in police operations. If you are shooting it's understood that lethal force is justified and that you are intending to kill. There are other less lethal options.

It hasn't always been this way. I won't take up space listing examples of when "shoot to wound" directives have backfired, just know that they have.

I have no doubt you know that Slap, I'm just mentioning it for other readers.

slapout9
07-16-2009, 06:54 PM
Not acceptable in police operations these days. You do not attempt to use something intended to be lethal force as a less lethal option. There are never "shoot to kill" or "shoot to wound" directives in police operations. If you are shooting it's understood that lethal force is justified and that you are intending to kill. There are other less lethal options.

It hasn't always been this way. I won't take up space listing examples of when "shoot to wound" directives have backfired, just know that they have.

I have no doubt you know that Slap, I'm just mentioning it for other readers.

Rifleman, I almost put that one in quotes because it was and is a bad policy. Deadly force is not something that should be trifled with in any way...you can't recall bullets. This same policy was in place when we pulled guard duty at the Main Post Stockade.......carrying a Winchester M1200 with 00 buckshot......how can you shoot to wound with something like that:confused:

jmm99
07-16-2009, 07:36 PM
Amen. A problem with "shoot to wound" as a policy (besides the practical problem of placing a "wounding shot" in a stress situation) is that it gives ammunition to lawyers to make the argument (citing the policy) that a "wounding shot" should have been used, etc., etc.

My own little mantra is - Armed ? Hostile ? Center of Mass. I shot to stop the situation. In line with Michigan law, especially in home invasion situations, where there is a presumption in favor of the home owner. However you want to express it, the focus is on the threat and how it was ended.

Ken White
07-16-2009, 08:42 PM
.......carrying a Winchester M1200 with 00 buckshot......how can you shoot to wound with something like that:confused:and the ricochets * will scatter widely, increasing the possibility of a leg or lower body and thus (maybe) no fatal wound. **

That's serious and it works (Do not try this at home :D).

What's even more serious is that 'shoot to wound' should never be a directive or an order. Never. Like Slap said "you can't recall bullets." JMM is also correct in that such an order is pure Court fodder and little else. ***

* Provided it's hardstand or firm ground, don't work in red clay mud... ;)

** He said, as he belatedly applied a tourniquet to stop the flow from a single pellet nick in the Femoral...

*** The good news is that BS (Before Slap) the Guards carried M1s with 16 rounds and it was understood that if they fired, it was to kill. One I'm aware of, 1963, some off duty Coscom troop trying to scuff some food, apparently to sell, got shot by a sentry from the '04, miscreant died and the shooter got charged with a violation of Article 118, was tried under a lesser included offense of Negligent Homicide, Article 134, and was found not guilty simply because he was not negligent (but mostly to make sure the family of the deceased couldn't later come after the shooter). Then the PoS (Period of Slap) and shotguns replaced M1s, later, AS (After Slap) they went to night sticks and a radio -- no way to even wound, really, just call for the MPs (who are always trigger happy... :rolleyes:).

slapout9
07-16-2009, 11:30 PM
Then the PoS (Period of Slap) and shotguns replaced M1s, later, AS (After Slap) they went to night sticks and a radio -- no way to even wound, really, just call for the MPs (who are always trigger happy... :rolleyes:).[/I]

Ken,You got me remebering...we were told to shoot below the waist....it was on our post orders covered in combat acetate and they literally hung around our neck as I remember. Also the switch to nightsticks my actually have happened before I left. Some guy from Charlie or Alpha Co. 2/504 actually shot somebody and he ended up paralyzed(bullet through or near the spine-technically below the waist???) but survived the shooting. No charges were filed because it was a good shoot per our orders but it resulted in a policy change. When I left I think the only shotgun post we had was Division Finance...some people still got paid in cash after payday Formation.....explain that to the young'uns.

-------------------
Back to Civil Disturbance training, we used real CS during our training and would have used it in a real deployment to. I may be wrong but I don't think the Army can use CS anymore on regular civilians. We had a Ring Foil device for our M-16's also, never got to try it out on anybody.....but I wanted to:rolleyes: I liked Riot Control training:D I made the suggestion that we should have an Expert Riot Control Badge as you can see this never happened :(along with a bunch of others...except one finally did make it 30 years later.

Rifleman
07-17-2009, 02:10 AM
None of that was necessary when guarding the 2nd Brigade motor pool. Coscom pukes knew the 325th Airborne Infantry Regiment - The Falcon Regiment - was on duty. They wouldn't dare confront a Falcon! Musta been the threat of talons, huh? They looked elsewhere, hence the incidents with the demons in baggy britches. ;)

I can't wait for the replies. :rolleyes:

Ken White
07-17-2009, 02:34 AM
I like Gliders and one son was a White Chicken. Er, Falcon. So you get slack from me. :D

slapout9
07-17-2009, 06:21 AM
None of that was necessary when guarding the 2nd Brigade motor pool. Coscom pukes knew the 325th Airborne Infantry Regiment - The Falcon Regiment - was on duty. They wouldn't dare confront a Falcon! Musta been the threat of talons, huh? They looked elsewhere, hence the incidents with the demons in baggy britches. ;)

I can't wait for the replies. :rolleyes:

Rifleman,thats right we only guarding the important stuff....we didn't sweat the small sheet:wry:



Ken, you ever know a Sgt. Charlie Brown ? looked like Alice Cooper with short hair.

Ken White
07-17-2009, 02:59 PM
Ken, you ever know a Sgt. Charlie Brown ? looked like Alice Cooper with short hair.scary... :D

Uboat509
07-17-2009, 11:08 PM
Ken,You got me remebering...we were told to shoot below the waist....it was on our post orders covered in combat acetate and they literally hung around our neck as I remember.

There is a school of thought in the SOF community that shots to the pelvic girdle are preferable. The idea is that the pelvic girdle is highly vascularized, unarmored and even small caliber wounds (.223) can destabilize the pelvis and drop the target. It is generally presented as an alternative to the failure drill (two to the chest and one to the head). It has its adherents but it never really has had a lot of support.

SFC W

Schmedlap
07-17-2009, 11:33 PM
There is a school of thought in the SOF community that shots to the pelvic girdle are preferable.

Preferable for what? It doesn't seem like it eliminates the threat - at least not immediately. I would think that the target might be able to squeeze off a round or two while he bleeds to death or even to manage a last burst of strength to get up and do more. These guys continued to fight (http://www.gazette.com/articles/halbisengibbs-54030-lindsay-chaney.html) after taking 7.62 rounds in the abdomen and hip.

I guess it could be preferable to shooting in the chest if the enemy has body armor. We generally trained on cardiothoracic, head, and pelvic girdle, but that was also the order of preference.

slapout9
07-18-2009, 02:17 AM
Uboat509, I believe there is a limited place for shoot to wound as in some SWAT and Sniper operations, other than that it is a bad policy and bad law. At one time the pelvic girdle theory was in some LE circles and it died a fast and deserved death.

Schmedlap
07-18-2009, 07:04 PM
At that time, the Hague Convention of 1907 was applicable and Article 44 states that "A belligerent is forbidden to force the inhabitants of territory occupied by it to furnish information about the army of the other belligerent, or about its means of defense." Assuming that the Nazi regime had surrendered and thus its army effectively disbanded, the applicability of this provision is in doubt.


Lawvol,What about the fact that they are not a Belligerent Army.....they were declared Illegal combatants....hence they were and are not entitled to any protection under the law...except to be executed as spies.


Is it a question of what protections they have? Or is it a question of what legal powers we have?


Schmedlap take a shot at both.

Someone correct me if I am wrong, but this seems to be the crux of the issue.

Does an al-Qaeda operative derive his protections from the LOAC? If so, can he surrender these rights by disregarding the LOAC?

Are our legal powers derived from the LOAC? Or are our powers derived from our Constitution and those powers limited on the international stage by treaties that we are a party to?

If an operative surrenders his protections, does this mean that our powers are expanded and we may handle that individual in a manner inconsistent with the LOAC? Let's say that the answer is no. For the sake of argument, assert that the LOAC does not govern our actions on an individual-by-individual or organization-by-organization basis. It governs our actions in war, period. But that begs the question: Does the LOAC create protections or does it simply put restraints on the actors, or both? Does it say, "X force may not be exerted against individual Y" or does it say, "Z actor may not exert X force, period" or both?

My hunch is that it is both. In other words, it is sometimes redundant. If individual Y surrenders his protections, he nonetheless enjoys the benefits of those protections because of the redundancy of the LOAC, which continues to restrain Z actor. This seems problematic to me. Suppose in the US there is a criminal law against shooting people and a civil law giving recourse to someone who gets shot. Now suppose a guy essentially waives his right to protection from the criminal law by shooting up a shopping mall. But imagine that there is some gap in the civil law that still allows him to collect damages from the off-duty cop who guns him down. That seems to be the situation with the LOAC. Khalid Sheikh Mohammed is a known turd who arguably surrenders his protections under the LOAC. Our boys grab him, but remain subject to LOAC constraints upon their actions. In effect, the turd continues to enjoy the protections of the LOAC even though he surrendered those protections.

Uboat509
07-18-2009, 09:54 PM
Preferable for what? It doesn't seem like it eliminates the threat - at least not immediately. I would think that the target might be able to squeeze off a round or two while he bleeds to death or even to manage a last burst of strength to get up and do more. These guys continued to fight (http://www.gazette.com/articles/halbisengibbs-54030-lindsay-chaney.html) after taking 7.62 rounds in the abdomen and hip.

I never said it was a popular theory. It as some merit. The pelvic girdle is larger and and less mobile than the head and is thus an easier target. Plus if you do actually hit the pelvis you will likely destabilize it a drop the target. Plus, due to the vascularity, pelvic wounds are often non-survivable. On the negative side, as noted, these wounds are also not immediately lethal. It was discussed but there was never a whole lot of interest in it.


I guess it could be preferable to shooting in the chest if the enemy has body armor. We generally trained on cardiothoracic, head, and pelvic girdle, but that was also the order of preference.

That was pretty much the way it was, and is, for us as well.

It's interesting that you posted that article. That was my company. I was with another team up in Kirkuk when that went down.

SFC W

slapout9
07-19-2009, 12:28 AM
Suppose in the US there is a criminal law against shooting people and a civil law giving recourse to someone who gets shot. Now suppose a guy essentially waives his right to protection from the criminal law by shooting up a shopping mall. But imagine that there is some gap in the civil law that still allows him to collect damages from the off-duty cop who guns him down.

That has happened!!!! and can still happen.....more than once!!!!


Where do we derive our power from is an excellent question? I don't know the final answer....maybe Lawvol or jmmm9 can comment.

When it comes to pirates the US Constitution is very specific about that, Congress has the power up to an including disposition of any property that may have been seized.:) Them Old Guys new how to handle stuff.....whip their ass and take their cash....this should have been our policy from 9/12 forward.

jmm99
07-19-2009, 06:12 AM
Let's start with the question of "sources"

Sources of power (and sources of restrictions on power; and sources of protections against the misuse of power) in the US - scarcely rocket science (I leave state laws out of this, for the moment, but they follow a similar pattern):

1. Federal Constitution; and

2. Federal "laws".

What are those "laws" ?

1. Statutes (e.g., UCMJ)

2. Regulations (e.g., DoD Directive 5525.7, implementing interagency co-operation agreement between DoD and DoJ re: Investigation and Prosecution of Certain Crimes)

3. Rules (e.g., Rules for Courts-Martial, R.C.M.)

4. Executive Orders (e.g., 1984 EO authorizing the Manual for Courts-Martial, as subsequently amended - see App 25 of 2008 MCM).

5. Treaties ratified by the Senate (e.g., 1949 GCs, but not 1977 APs); and Executive Agreements (2 kinds: Presidential, based solely on presidential powers; and Presidential-Congressional, based on joint powers).

6. "Common law" (domestic and international). Huge areas (mostly in civil actions) incorporate domestic common law (e.g., diversity cases where the rules of decision require Federal courts to refer to state substantive statues and common law decisions); and some international non-treaty law (e.g., admiralty, international insurance, commerce and financial).

In the criminal area, incorporation is generally via statute (e.g., Article 18 UCMJ incorporating international law, or Article 134 incorporating Title 18 statutes). A general Federal criminal common law has been rejected since the War of 1812. However, the "common" laws of war can enter the UCMJ via military commissions or tribunals as an adjunct to the UCMJ (and has been such since the Civil War) - e.g., Quirin (WWII executions of Uboat special ops) and Yama####a (post-WWII execution of general for war crimes committed by others).

So also, "customary international law" can be incorporated (by whom and by what process are issues); but, despite the love of I Law pundits for "customary international law", it has not been a favored source of law for SCOTUS (so far, at least).

So, the sources are the same for powers, restrictions on powers and protections against powers misused. In short, you have to look at the entire legal environment - sound familar ?

--------------------------
Protections & Questions from Schmedlap

These are answered solely on the basis of existing US law, as presented by the Obama DoJ to the Federal courts; and the latter's acceptance or modification of that presentation.


Does an al-Qaeda operative derive his protections from the LOAC?

Yes; but let's look at what his protections are before becoming an al-Qaeda operative. He is then clearly a civilian (non-combatant) under the Hague-Geneva Conventions; he also could be a US citizen, legal resident alien, unlawful resident alien or a non-resident (different protections depending on his status). Let's take the simple non-resident case (Akmed in Astan). While a civilian, he is entitled to e.g., the protections of GC IV.


If so, can he surrender these rights by disregarding the LOAC?

Yes, but only to the extent that he ceases to be a civilian. So, Ahmed becomes an "AQ operative" - what does that mean ? If he picks up an AK, no question that he is a combatant (not a "regular combatant", but an "irregular combatant" because AQ flunks Common Article 2 by not accepting or applying the GCs).

That means that under the 2001 AUMF and LOAC (if the ROE/RUFs are not more restrictive - which is a big if, about which everyone is aware), he can be killed or captured at any time and place. That kill or capture rule applies even if he is not committing a hostile act or is not exhibiting hostile intent by an overt threat. In short, he can be popped even if he has put down the AK and is taking a leisure moment at the latrine.

Now, kill or capture at any time or place is the same default rule (absent more restrictive ROE/RUFs) that we would have in a declared war against "regular combatants" (e.g., the Wehrmacht in WWII). There is a difference in the capture part of the equation.

From a legal standpoint (under existing statutes and treaties accepted and applied by the US), every person who is detained in an area of armed conflict must fall into one of three general classifications (there are sub-categories):

1. Persons who meet the criteria of EPWs and some other defined categories (requiring reference to and meeting the requirements of Common Article 2, and then going on to the requirements of Article 4 et seq of GC III).

2. Persons who meet the criteria of civilians and some other defined categories (requiring reference to and meeting the requirements of Common Article 2, and then going on to the requirements of Article 4 et seq of GC IV).

3. Persons not meeting the requirements of either #1 or #2 and who fall within the scope of Common Article 3 (the armed conflict not of an interenational character "mini-convention").

See this post (http://council.smallwarsjournal.com/showpost.php?p=76954&postcount=35) for more.

But, Ahmed doesn't like AKs. However, he is more than willing to cook for the AQ fighters; transport them, their ammo, weapons and other supplies; and carry out ISR for them. Or, he happens to have some education and is one very good explosive production man (just makes them; total klutz at placing them). Or, having lived long in the "West" (or being an expat US citizen) becomes an expert in agitprop and using infofare vs the US. Or, having left the AK (well, not quite since it's still on the wall), he becomes a planner of operations - or, on an even higher level, a strategist and policy maker. Or, not being good at any of the above, becomes a financier of AQ.

Now, my readers, where do you want to draw the line between "irregular combatants" (unprotected from kills; but still having Common Article 3 protections if captured) and "civilians" (protected from kills and having full GC IV protections), in all of these variant Ahmed situations ? You tell me.


Are our legal powers derived from the LOAC? Or are our powers derived from our Constitution and those powers limited on the international stage by treaties that we are a party to?

Answered above as to sources (of powers and limitations).


If an operative surrenders his protections, does this mean that our powers are expanded and we may handle that individual in a manner inconsistent with the LOAC? Let's say that the answer is no.

If an "operative" loses his "civilian" status and becomes an "irregular combatant", our powers obviously expand in the kill or capture (any time, any place - if more restrictive ROE/RUFs are not in effect); and some tactics (e.g., pseudo ops) may be legal (wisdom is another issue). No individual, organization or war (armed conflict) may be handled in a manner inconsistent with the LOAC.


For the sake of argument, assert that the LOAC does not govern our actions on an individual-by-individual or organization-by-organization basis. It governs our actions in war, period. ....

The premise asserted just muddies the waters - LOAC create protections and put restraints on the actors. Repeat, No individual, organization or war (armed conflict) may be handled in a manner inconsistent with the LOAC.


My hunch is that it is both. In other words, it is sometimes redundant. If individual Y surrenders his protections, he nonetheless enjoys the benefits of those protections because of the redundancy of the LOAC, which continues to restrain Z actor. This seems problematic to me.

Not problematic at all. By changing his status, Y is covered by some rules which are different (cuz status changed) and some which are the same (cuz they cover regardless of status). Same for Z.

-----------------------------
Domestic and KSM


Suppose in the US there is a criminal law against shooting people and a civil law giving recourse to someone who gets shot. ....

The "guy" does not "waive his right to protection from the criminal law". The guy, by shooting up the mall, has changed his status from that of a non-criminal to that of a criminal - and becomes subject to the criminal law, although he still retains most of his rights as a US citizen or US resident (he loses some if convicted).

Yes, he can sue the cop that shoots him (or his family can if he's killed). That takes only a lawyer who is willing to take the case and a filing fee. If properly defended (insurance companies and municipalities have settled far too much), that case has a dismal future. Most perps have a bad record - and many things to hide. These are civil actions. So, discover the hell out of the defendant and all of his witnesses. After they have taken the 5th a few dozen or 100s of times, the case should be in shambles.

And, usually the cop (probably cops) involved have sustained physical and/or mental injuries (hire Grossman as an expert witness). So, counterclaim and continue nasty discovery regardless of what the insurer or municipality does. Cops who aggressively counter-attack will generally do better before most juries than perps.


That seems to be the situation with the LOAC. Khalid Sheikh Mohammed is a known turd ....

Same idea - change of status and different rules. You have to look at the complete legal environment - which rules apply depends on the specific context.

KSM and his friends have stated that they wish to surrender all protections and accept execution. Normally I don't suggest going with terrs' wishes, but this must be kind to man-eating tigers' week. I think that is a fine idea on KSM's part. I wonder if he would go through with it ?