MAJ Smith, I was dead wrong in misquoting you.
Perhaps, that was my "inner voice" speaking.
Based on the facts as I know them, I will call it "gross professional negligence" on an institutional level by more than one general officer. Nice not to be concerned about "conduct unbecoming" there
Of course, it I hauled off with something like that involving SCOTUS, I guess I could get in trouble - assuming they would care (doubtful, too small a fishy).
Usually, I'm better at "cross-checking" facts. A lesson learned again :o
Methodology - Defining Terms
This sounds like a good start;
Quote:
john t fishel
Now, we political (and other social) scientists have a solution for such semantic discrepancies. It is called "operational definition." Essentially, we define (or redefine) a word the way we want to use it and say to our interlocutors that if you want to talk to me about the subject of that word you had better be using my definition of it.
except I would amend the last clause to read: "...if you want to talk to me about the subject of that word, we had better be using our definition of it." Mutuality, reciprocity, all that good stuff.
Since this is a military site, you can propose as substitutes for anything below whatever military terms that are equivalent and which make sense.
Literature Pecking Order
Since we are discussing a literature search, I'll start with some classifying types from the more specific to the more general (using some military literature, rather than legal literature, as examples):
1. Small case studies (how I characterized MAJ Smith's article, since its tactical events involved a limited area and timeframe in Iraq) - the Battle of Ap Bac.
2. Large case studies - Krepinevich’s The Army & Summers' On Strategy
3. Gigantic case studies (made that one up) - Asprey's War in the Shadows.
Note there is a difference in the authority of these sources (those in ## 2 & 3 are secondary authorities, which are at least one step removed from the original event - e.g., the Battle of Ap Bac).
While secondary authorities can be legal precedents, they are presumptively weaker than an original precedent - because of obvious factors, such as editorial bias, errors in reporting the original, etc. So, if we say Asprey has this to say about Ap Bac (but not much, pp. 1138-1139), one should ask "What is the rest of the story ?" - more on that below. Another note is that secondary authorities may include quotes from original sources; but you are always better to have the original source.
Another factor enters into the equation, which is related to the primacy or non-primacy of authority; and that is - each case is unique. There is no such thing as a precedent that is directly on point with the current case. Of course, some precedents are very close to, others are further removed from, the current case. So, context, context, context.
Precedents
A precedent is a thing or event. A precedent is not a principle, not a doctrine and not a rule of decision - although all of those abstract concepts may be derived from a precedent, more often they are derived from a series of related precedents.
Those who are familar with "War Crimes" know that a flock of habeas cases inhabit the DC courtrooms - most of which have filings citing Ex Parte Milligan as a precedent. We can go back to that opinion, look at its facts (context), and review its precedents - and so on, with each of them. We also could find some secondary authorities (e.g., Holmes Devise History of SCOTUS) which refer us to documents (media accounts, correspondence, etc.) outside of the purely judicial record (more context).
Now, taking up Ap Bac, Nagl's Learning briefly covers it (pp.133-134). He cites Vann's 91-page after action report. Now, I can't put the Battle of Ap Bac into my backyard - wouldn't it be something to have a sci-fi device that would re-create any battle as it actually occured. Barring that, I would want Vann's report, all other reports, maps, etc. In short, as close as possible to the original record of that event (context again).
Which is where we end going directly backwards in time - battles don't cite prior battles as precedents. However, military historians do something akin to that. So, we may be able to go further backwards by going forward to works which discuss Ap Bac. And, in any event, we can find what others opine as to that battle (e.g., Palmer's Summons, pt.1, ch.6).
Shepardizing
Shepardizing ("crosschecking" was a fudge term - although descriptive) is essential to the trial and appellate lawyer. Shepard’s® Citations Service has its sales pitch here.
The original idea of Shepard's was to look forward in time from a case opinion and index every later case and secondary authority which cited that case. Given computer databasing, the service expanded to have some backwards in time capability, largely based on legal issue identification, keywords, etc.
The bottom line is that a gigantic amount of legal information is available. The problem is the time available to analyze the information. There are a host of specialized databases that cover specific factual and legal situations, both editorially and linked to the original sources. So, put in the CD and hit the right keywords.
Other Stuff
The abstracts developed from precedents - whether called principles, doctrines, rules of decision, blackletter law - are tougher than the precedents.
E.g., blackletter law (so called because it traditionally was the bolded heading to a section) is followed by a brief description of the major precedents supporting the blackletter - and then all of the exceptions to the blackletter. So, context, context, context.
For you academics, you might have access to a old book, Charles A. Miller, The Supreme Court and the Uses of History (1969), written by an historian-political science guy, it offers a different (not necesarily better) approach than that taken by lawyers writing on the same topic. In his Intro, he makes some of the same points as John makes.
Brief Note to COL Gentile
Quote:
from you
JMM: My only comment to your excellent post is that what you say Niel's article lacked was a "crosschecking" which he corrected that problem later in his article by noting that when he returned from Iraq the second time he had read other classic coin authors like Galula, Thompson, Kitson, etc. That may satisfy your needs as a lawyer but not me for a historian trying to understand the past to help and inform me with the present.
I believe my comments above begin to explain what satisfies me as a lawyer. If you want to see what satisfies and dissatisfies me in a particular context, please feel free to browse the "War Crimes" thread. For an example of how I approach research, visit the "Defending Hamdan" thread. All of those posts are kind of rough (scarcely MI Law Review standards), but the substance is there.
Just to return to MAJ Smith for a moment. You know better than I that we have to deal with the situation in front of us, not the situation we would wish to have. Frankly, I do not know whether he took Krepinevich’s opinions (which is one thing), or took tactical examples described by Krepinevich (which is quite another thing), or both.
If we lived in a perfect world, he could have "shepardized" both. He did not have the resources (and lacked the knowledge at that time) to do that. Perhaps, he is blessed with natural intuition - and that explains the subsequent successes. I don't know him, except for his posts and avatar. Can't comment on the relevance of geographical and timeframe distances to applicability of a prior military precedent to a current military situation. That is a matter between you two serving officers.
I think I'm the guilty one...
Quote:
Originally Posted by
Cavguy
I didn't use "criminal negligence", however, I did use "gross professional negligence"
Quote:
Originally Posted by
jmm99
MAJ Smith, I was dead wrong in misquoting you...Perhaps, that was my "inner voice" speaking.
I believe I have said on more than one occasion that the failure of the Army to embed the Doctrine, to organize train and equip for post attack occupation and for the possibility of FID or COIN operations was a major failure by the senior leadership of the Army for over 28 years, (1975-2003) and that that omission was borderline criminal malfeasance -- and I probably left out the 'borderline' on occasion. I have also said that concentration on the threat of the USSR from 1975 until 1990 was correct but need not have totally excluded 'small wars' (and, for part of the time, it was partially included) -- but failure to adapt to an obviously changed world from 1990 until 2003 was inexcusable IMO.
I have also occasionally cited senior miscreants by name and have excoriated DoD and previous administrations for not pressing the issue. I wouldn't say all that were I still serving; I'm not so I have said it and will say it again.
I believe it extremely important that the Army not forget and not repeat that error.