Harvard Law ? .....

COL Jessep.jpg

You can't handle the truth!

Seriously, it was BG Martins' call as to how he wanted to coat the pill. I didn't go to Harvard; and I can't put myself in his shoes. I'd have no illusions about converting most of Michigan Law's faculty.

In terms of substance, I was pleased with some points, and not totally satisfied with others, in what he calls his "working definition" (thanks for using that term, General) (emphasis added):

My working definition of the rule of law is that it is a principle of governance which holds that all entities in society, public and private, including the state itself, and including coalition partners from whom the state has sought assistance, are accountable to laws. The rule of law in the society concerned increases in proportion to which the laws are made by a legislature or by some process representative of the people’s interest, enforced by police and security forces that themselves follow the law, and interpreted, elaborated, and applied by judges who are evenhanded, honest, and independent.
I'd suggest that the state cannot be held to the law unless the "rule of law" exists (as I've suggested in my "working definition") - rules ordained and established by the People (who have sovereignty over the state).

If the state ordains and imposes the rules from above, the state is not subject to the law because it can change the rules to favor it. In GO's terms, "all animals are equal" morphs to "all animals are equal, but some animals are more equal than others."

That being said, Mark Martins clearly recognizes the relationship of "rule of law" and the People, when he says:

The rule of law in the society concerned increases in proportion to which the laws are made by a legislature or by some process representative of the people’s interest ....
Obviously, I agree with that. But, having said that, I'd suggest that in "regime change" situations "rule by law" (at least initially) is simply what must exist. Astan is a classic case of "rule by law", starting with the Bonn Agreement, etc.

The "working definition" also goes beyond the Astan national law (whether called "rule by law" or "rule of law") ....

... and including coalition partners from whom the state has sought assistance, are accountable to laws ...
which brings in International Law and the domestic laws of the various partners. And, since an armed conflict is on-going, the Laws of War come into play where appropriate.

Now, let me make something clear: Mark Martins is perfectly capable of discussing all of these areas of law in depth, especially the Laws of War (LOAC, IHL) as applied to ROEs and RUFs. His 1994 article is a classic, Major Mark S. Martins, "Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering," Military Law Review, Volume 143 (Winter 1994).

I suppose his problem in becoming too technical at Harvard Law was that most people there would not have understood what the He££ he was talkiing about - Sure, Jack Goldsmith and probably some others; but the average civilian lawyer or law professor is as familiar with International Law and its subset the Laws of War (LOAC, IHL) as with the Roman Rite of Exorcism.

The following section did not really set out the issues I feel important, with respect to the subject matter area discussed:

Acting upon reports of excessive force or crime (Iraq & Afghanistan)

A third example — and this one is representative of incidents that have confronted commanders in Iraq and Afghanistan: on rare occasions we have received reports alleging use of excessive force against civilians or maltreatment of detainees, either at the point of capture during operations or while held in a facility under U.S. control.

The decision-making process in these rare situations — and I am pleased to be able to say that they have been rare, even as we have faced some who have hidden themselves among civilians and who have sought to mount attacks while in detention — the decision-making process in these rare situations has been governed foremost by law and by our investigative and military justice system. The law requires prompt reporting and investigation of all potential violations and, if the evidence points to it, the prosecution of violators. In these situations, our deployed judge advocates take a lead role. But commanders making decisions in these situations also must incorporate comprehensive non-legal measures to prevent future violations and to eliminate factors that might have contributed to the reported incident. These measures may include immediate instructions through the chain of command, training of guards and interrogators, improvement of facilities, invitations to the International Committee of the Red Cross and others to conduct assessments, discussions with and visits by mullahs and Imams and local council members, and so on. Take the case of a so-called escalation-of-force incident in which troops employ the rules of engagement to, with escalating force, warn an approaching vehicle to slow at a checkpoint and end up tragically claiming the life of a civilian. To help prevent such incidents, non-legal measures may include improvements to traffic control points such as physical barriers, clearly understandable warning signs, better lighting, and refinements to procedures.
In fact, it largely ducks the legal issues.

The principal issue is the interface and transitions between the Rule of Law (whatever your "working definition", non-military law) and the Laws of War (LOAC, IHL). As stated by Da Bear, the ideal is a seamless RIP between RoL and LoW.

What I'm seeing (others may have a different perception) is that UCMJ prosecutions appear to be enforcing RoL; and, at least in choice of the charging articles, are RIFing LoW as a co-equal legal system in combat situations.

Yeh, there still is the Rule 916(c) Justification Defense:

(c) Justification. A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful.
and the 916(d) Obedience Defense:

(d) Obedience to orders. It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.
but those are not emphasized (look at the relatively few appellate cases dealing with those defenses).

Again, though, we are getting into subject matter that would seem incredibly arcane to those at Harvard Law. I doubt many there read Defend Our Marines - that is unfortunate, but a reality.

Regards

Mike