simplicity
Given the borderline ad hominem attack, I see now that my response offended you. This was certainly not my intent. My “legal 101 lecture” was not intended as such, but merely a means of establishing the foundation from which I speak. It prevents arguments over how “is” should be defined ala Bill Clinton. That being said, it certainly seems as if you relish an excuse to “drop the other shoe.” I, on the other hand, am simply looking for intellectual debate and, possibly, an opportunity to broaden my knowledge base. While we may certainly disagree, I would hope that we do so as gentlemen since vitriolic responses are beneath us. While I believe that my initial responses are quite consistent with current COIN doctrine, I have elaborated below in an effort to address the concerns you perceived. All citations are to FM 3-24.
There can be no dividing line between the law of war and rule of law in a COIN environment. The kinetic part of COIN is not conducted in a vacuum and the population does not remain static while the military conducts its operations. The population affects and is effected by military operations. Thus, both the law of war and rule of law must be simultaneously applied.
Your desire to bifurcate a COIN environment into that controlled by the law of war and that controlled by rule of law is directly contrary to the doctrine you suggest I ignored. FM 3-24 (I’ll use this one since it is currently in effect, although I do like the MCSWM too) indicates that COIN is a combination of offensive, defensive and stability operations with the proportion of effort devoted to each changing over time depending on the situation on the ground (1-106). In Afghanistan, the effort is, at best, equally divided between offensive and stability operations – I would argue, however, that the effort probably tilts in favor of stability given our transition strategy. This is why there cannot be a solid division between Law of War and Rule of Law as you suggest. For example, in Helmand and Kunar provinces (arguably the most kinetically active in the country right now) both the military and the State Department have rule of law advisors in place. Thus, offensive operations (to which the law of war applies) are occurring simultaneously with rule of law efforts.
This strategy is necessary because our current COIN doctrine establishes its necessity. The population within a COIN environment is typically distinguishable as a small minority in favor of the insurgents, a small minority in favor of the government, and the bulk ambivalent or waiting to see who wins before casting their lot (1-108). With this target population (i.e. the ambivalent), governmental legitimacy is paramount (1-113 to 1-120). Indeed, “a COIN effort cannot achieve lasting success without the [host nation] government achieving legitimacy” (1-120). A major factor in achieving this legitimacy is the rule of law (1-119). Thus, we learn (according to the doctrine you mention) that offensive operations (i.e. law of war) are simply not enough; the rule of law must be implemented.
“Establishing the rule of law is a key goal and end state in COIN” (D-38). Thus, offensive operations without rule of law are counterproductive to the COIN effort. This doctrine doesn’t indicate that rule of law is a goal after COIN, but rather in or during COIN. Again, there is no separation. Our doctrine emphasizes this by stating: “counterinsurgents may need to undertake a significant role in the reconstruction of the HN judicial system in order to establish legal procedures and systems to deal with captured insurgents and common criminals.” Thus, while the law of war does indeed play a role in targeting insurgents, the rule of law is also applicable during COIN.
Here, I think you put words in my mouth or seek to assign a belief to me that I simply do not hold. While most military leaders are indeed quite capable of handling any issue that arises, I believe it to be at cross-purposes when the US military attempts to implement host nation law. After all, our doctrine states that host nation legitimacy is the goal. How can that goal be achieved if Americans are implementing the law? How can a target population possibly view the local government as legitimate if the US military implements its law?In that situation all you got is the Laws of War or (and you use the politically incorrect word) marshal law. To assume our military leaders at all levels cannot resolve these types of issues in war zone smacks of distrust.
On a final note, I don’t believe I ever used the term martial law as I do not see its applicability to Afghanistan (at least from the perspective of US application and maintenance of martial law). According to the MCSWM (13-3 (b) and (c)), martial law is a form of military rule that must be declared by Congress or the President. This has not been done for reasons mentioned in the next paragraph of the MCSWM. The distinction between the two are important because the emphasis is on real government versus temporary authority in the absence of the real government. In Afghanistan, as you know, there is a real government that exercises sovereignty. While this governmental authority is tenuous in certain provinces, it nonetheless exists. Thus, martial law must be declared by it and not the US government. Furthermore, given our COIN doctrine, it must be exercised by Afghans and not Americans.
Originally Posted by jmm99
, I think I deserve a medal for coming into this discussion with all you lawyers). In my opinion, the LOW and ROL cannot exist together on the battlefield because not only are they based on different principles but also different decisions makers play their roles very differently. 
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