On Petraeus's dissertation
The common theme I see in Petraeus' dissertation and his recent speaking is a focus or specialization on the political aspects of military command. In seattle July 9th he spent more time reciting the names of people, relationships and their accomplishments than on Afghanistan, for example. (Time it.) The dissertation speaks frequently about *who* advised the President and political leaders, in various ways, in many conflicts, who those civilian leaders were, and who agreed or disagreed with whom.
In his Seattle, he talked about State and political leaders in fairly long passages but barely mentioned the name McCrystal or Odierno. There may have been operational reasons or relationship reasons for not focusing on his subordinates, but the extensive discussions of political and military figures was prominent.
The reason I mention this is, that it illustrates Petraeus and perhaps other general officers' excessive focus on things other than *why* we engage a particular war, or *alternatives* to the particular war, or its morality, legality under treaties, or its justness. Naturally, an officer's career is more successful if he focuses on the "How" rather than the "Why". I'm not even sure where one blends into the other. For example, you can hardly be excellent at answering the question "How", without a definition of the goal, and the goal in turn, is inevitably a part of the larger picture-- the whole picture of what we are trying to accomplish, in the world.
I don't think the compartmentalization, or professional specialization, among general officers is appropriate at their rank and scope of responsibilities, especially in this era of nation building (or "stability operations", or the"administrative force" described by Thomas PM Barnett.) It is frankly stupid, and I share Fallon's assessment of Petraeus as an ass kisser.
Petraeus speech in Seattle
Pakphile - the Seattle speech July 9th is at http://tvw.org and search for Petraeus.
It is also in the archives on CSPAN2.
Petraeus states many times in his dissertation that the military has adopted, since the close of the Vietnam War, a consensus that no war should be fought unless it is 1) supported by the Americn People, 2) has clear objectives that are achievable in a fairly short period of time before the country loses support, 3) the military is provided the resources and the freedom of tactics to win the war.
I (and others in the antiwar movement) have been saying for decades, they need to add several more requirements, 1) that the war ought to be lawful under both domestic law and treaties we have signed; i.e., the military should not obey illegal orders from the President, AND, 2) that the war ought to be, furthermore, a just war under some comprehensible scheme that would be discussed (http://en.wikipedia.org/wiki/Just_war)
And of course both of these new requirements imply an end to wars other than self defense of the territory that is our jurisdiction, wars for economic reasons, or so-called "national interests". Both of these would repudiate the very longrunning tradition and practice of preemptive war (containment of communiism, domino theory, or today's preemptive "GWOT")
So, I would hope that some future Petraeus will write dissertations on the Iraq Syndrome, just as the Vietnam syndrome appeared, and that we succeed in defining it, instead of the neocons or whoever their successors may be in the military and policy establishment. Because, these are the reasons we are opposed to US wars-- they are immoral and cruel, and motivated by greed. They don't reflect my moral values and I oppose them. And so does most of the world.
In the absence of a constitutional collision ...
between the Executive and Legislative Branches, the Jus ad Bellum question (whether it is or was "illegal" to go to war) will be regarded as a "political question" and the legal action will be dismissed.
Here is the bottom line in Doe v Bush (1st Cir 2003), pp. 3 & 24-25:
Quote:
Plaintiffs are active-duty members of the military, parents of military personnel, and members of the U.S. House of Representatives. [1] They filed a complaint in district court seeking a preliminary injunction to prevent the defendants, President George W. Bush and Secretary of Defense Donald Rumsfeld, from initiating a war against Iraq. They assert that such an action would violate the Constitution. The district court dismissed the suit, and plaintiffs appeal. We affirm the dismissal.
[1] The military personnel and some of the parents are proceeding under pseudonyms, pursuant to an order by the district court that is not before us. The members of the House of Representatives are John Conyers, Dennis Kucinich, Jesse Jackson, Jr., Sheila Jackson Lee, Jim McDermott, José E. Serrano, Danny K. Davis, Maurice D. Hinchey, Carolyn Kilpatrick, Pete Stark, Diane Watson, and Lynn C. Woolsey. We also acknowledge the assistance provided by amicus curiae on behalf of the plaintiffs.
....
It is true that "courts possess power to review either legislative or executive action that transgresses identifiable textual limits" on constitutional power. Nixon, 506 U.S. at 238. Questions about the structure of congressional power can be justiciable under the proper circumstances. See, e.g., Clinton, 524 U.S. at 428-36; Chadha, 462 U.S. at 941-44. But courts are rightly hesitant to second-guess the form or means by which the coequal political branches choose to exercise their textually committed constitutional powers. See Orlando, 443 F.2d at 1043. As the circumstances presented here do not warrant judicial intervention, the appropriate recourse for those who oppose war with Iraq lies with the political branches.
In short, organize and mobilize to elect antiwar candidates; but leave us (the courts) out of the political action. The position of the courts is similar to that of the military on Jus ad Bellum questions (it's not the province of the military to second guess a presidential-congressional decision to wage war).
The same doctrine of judicial restraint may or may not apply to specific Jus In Bello questions (whether an act in warfare is or was "illegal"); e.g., on the rights and duties of individuals to disobey manifestly illegal orders.
Thou hast an inquiring mind ....
which will be rewarded by some Googling. Here is a start for that task.
The basic idea to challenge a war legally (positing that the President and Congress are more or less on the same page) is to resurrect Nuremberg and Tokyo.
Those trials, besides "normal" war crimes, alleged Crimes against Peace (waging "aggressive" war) and Crimes against Humanity (genocides), as well as conspiracies to commit the basic charges. Crimes against Peace present a Jus ad Bellum question. Crimes against Humanity present a Jus in Bello issue.
There is no point in me going beyond that. And, it has been done by others (with whom, Mr Boyle will no doubt agree). As to Gulf I, Ramsey Clark did a full mock trial - A Report on United States War Crimes Against Iraq, etc. As to the current armed conflicts, you can ruminate in the Frederick K. Cox International Law Center War Crimes Research Portal.
In the latter source, you will find many links to Mr Boyle's arguments - Just War, etc.
The probabilities of any of those argumernts working on SCOTUS (in a Jus ad Bellum case) range between nil and null.
PS: looks like some of the Cox links are broken.