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Thread: Rule of Law in Iraq & Afghanistan

  1. #61
    Council Member Polarbear1605's Avatar
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    Default Your Back!...?

    LawVol: Gald to see you are safe and sound. To steal a line from the movie “The Last Samurai”…I truly enjoy our “conversations”.

    Quote Originally Posted by LawVol View Post
    because I'm headed out to one of the provinces shortly.

    The COIN mission dictates that LoW and RoL apply simultaneously in that, as I've previously indicated, LoW in a subset of RoL.
    Nope …yes, we have to use the LOW and pursue the ROL…but all military operations are governed by the LOW. On the battlefield there is no subset.

    I really like the “Bob’s World” solution; it is (IMO) thought out, different and viable. Let’s assume Bob’s Striker BDE scenario for a sec (I do like it). I would envision the BDE driving into the village (just to let any hidden bad guys in the vill know that the good guys are here) or not (it would be up to the Joint Task Force Law commander), the BDE sets up a perimeter around the ville…everything inside the vill is ROL and everything inclusive of the perimeter and out is LOW. Coordination Point is designated on the perimeter on the main road to the vill … police chief, judge, or gov official meet there with the BDE commander and agree that everything inside the perimeter is LOW and everything outside the perimeter ROL. Further coordination: BDE states that any ROL incident or situation will be brought to the judge and passed to his police at this coordination point; and if a LOW incident occurs in the vill; ie – an undetected or hidden insurgent cell that your police can’t handle attacks you, my troops will enter the vill to do their thing (that you need done) under the LOW. The two players shake hands and each goes to work on their side of the street.
    FM 2-24
    (1-160) “…insurgents are constrained by neither the law of war nor the bounds of human decency.”
    (2-24) Human decency and the law of war require land forces to assist the population in their AO’s.”
    (D12) “When insurgency occurs during occupation, the law of war includes rules governing situations in which the military forces of one state occupy the territory of another.”

    Last comment on the separation of the LOW and the ROL (and LawVol, I do think that in many ways we are saying the same thing but differently). After 9/11, the president was faced with a decision to apply either the LOW or the ROL to this terrorist incident and the Global War on Terrorism (AQ). Yes, neither fit well; generally speaking, the LOW applied to states and nations not terrorist organizations; the ROL does not extend outside the territorial limits of the US. The Pres, however, had to made a decision, either or. The president picked LOW and then his administration started to build an apparatus (procedures) that attempted to fill those gaps in the LOW applied to the war on terrorism. If they are not two very different things why did the President have to choose? If you get the chance read “New Wars, New Laws? Applying the Laws of War in the 21 Century Conflicts” by David Wippman & Matthew Evangelista. The book is a compilation of papers and speeches…generally; there is no discussion or debate that the LOW and the ROL are different or separate.

    Quote Originally Posted by LawVol View Post
    In other words, complying with LoW demonstrates some aspect of RoL.
    Yep…agree as does implementing the ROL when it is ready, using the LOW.

    Quote Originally Posted by LawVol View Post
    I think he is disturbed by the over-legalization of the battlefield to the extent that it places lives in danger.
    Absolutely, and reputations and the legal rights of our Soldiers and Marines at the expense of politics.

    Quote Originally Posted by LawVol View Post
    In other words, to the extent that ROE jeopardizes American lives, blame politicians and commanders not lawyers.
    I understand my tone can be ruff, but don’t recall blaming lawyers. I do blamed commanders, specifically generals regularly.
    Generals also state the bright shiny dogma that ROL and WOL are the same. In fact, they constantly exchange the terms as they fill their sound bits with the buzz words. Different subject, but this joint article by Generals Krulak and Hoar (and I think highly of both officers), starts with the LOW arguments and then concludes with ROL bright shiny dogma. http://www.federaljack.com/?p=11123 In reality, the Bush administration was attempting to draw the line (in our favor) in a LOW definition that is wide open. The definition is wide open because when we sit down at the “let’s decide what the laws of war should say” table, the opposition is sitting there across from us and they ain’t going to vote yes on any wording that puts them on report.

    Ok next up…why do we not prosecute insurgents for war crimes? We are back to Questions 1, 2 and 3.
    Quote Originally Posted by Polarbear1605 View Post
    …1) how many Afghans, Taliban, and/or insurgents have been brought to trial for killing US service men and women? 2) Another question, if this is working so well why have Afghan casualties gone up significantly each year since and inclusive of 2008?...3) By not applying the laws of war to the insurgents you are undermining your own strategy and efforts. Another question: How many spies have been prosecuted or are there none in Afghanistan?

  2. #62
    Council Member Polarbear1605's Avatar
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    Default Scale Issues

    Quote Originally Posted by jmm99 View Post
    Perhaps, a Beneficiarius to pin on your pelt:



    in recognition of your devotion to Roman military law.

    Cheers,

    Mike
    Hey, I like it but photo does not have a scale reference...will that beneficiarius thingy fit on my lapel?

  3. #63
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    Default Responses to questions

    from Carl
    Isn't most of this implicit in the original scenario?
    Not "implicit" to me when I wrote it. The Interwebs admittedly lack for expressive clarity. Don't read into what I write too much beyond the black and white. It was not until I watched the reruns years later that I realized that Hamilton Burger meant "hamburger" (to Perry Mason).

    Which (thankfully) moves us to:

    from fmr11a

    - Are the individuals part of a declared hostile force? (in 2007, in Iraq, our JAG told us that we could not conduct missions with the intent to "kill or capture" suspected members of AQI because they were no longer a "declared hostile force." Instead, we had to go with the intent of "capture," though we were free to kill in self-defense).

    - What is your mission?

    - What is the commander's intent?

    Also, how could rule of law "apply"? Isn't rule of a law a characterization of how a legal system is used, rather than a system that can be applied?
    Going backwards, "Rule of Law" and "Laws of War" (as often used above by me and others) are shorthand for two systems of law. Most simplistically, "Rule of Law" = the national non-military, civilian legal system, which is in effect in Peacetime, and in times of armed conflict in "pacified" areas. Whereas, "Laws of War" = a military legal system, a subset of International Law and a subset of national additions, which is in effect in areas of armed conflict.

    That being said: "rule of law" (as opposed to "rule by law") can be a characterization of how a legal system is used. But, to do that, you have to spell out a "working definition" - as I have done; as Mark Martins did in his speech.

    As to the middle two questions, - What is your mission? - What is the commander's intent?. My set of questions (in A follow-up) was an attempt to suggest those areas of discussion; and that certain legal answers should be known to (and findable by) non-legal types (HT: Peter Newell, link cited by me here).

    The first question "Are the individuals part of a declared hostile force?" is theoretically crucial since it expands the hunting license beyond the always-in-play "defense of self and others" rules of the open-source SROEs. Combatant members (those who are "part of") a "declared hostile force" (you'll find this additive feature in the unclassifed SROEs) are subject to "kill or capture" (regardless of hostile threat; at any time, at any place), given a "positive ID".

    The last is the practical problem. If you only learn that "Joe" is a combatant of a "declared hostile force" because he is shooting at you or is planting an IED, the expanded hunting license adds little. You (about Iraq) and Custis about both Iraq and Astan), for example, could better comment on the practical implications of limiting the scope of the 2001 AUMF at the tactical level. Based on what Jon has written in several places, the more restrictive rules did not impede his unit as a practical matter.

    Finally, I find much to agree with (as a practical matter; what "should or should not be" gets into endless circularity) in this (emphasis added):

    fmr11a

    My view is that our military forces are the only units with the adequate size, resources, and structure to perform the mission-essential task of connecting the central government to the lowest political units. They should be focused upon that task and it will likely need to occur by way of acting as a third-party mediator. As a caveat, I would add that task organizing as a military-civilian type task force at the BN level would be ideal if we have sufficient civilian personnel with the relevant skill/experience. Security operations should be supporting tasks. Security operations should be driven by specific considerations on the ground, not necessarily done as preliminary operations that are assumed to "shape" the battlefield for political reconciliation.
    Since this is one of my interests (discussed in various places with Wilf), I'd be interested in the "relevant skill/experience" you suggest for the civilian personnel at the Bn level - as well as, what decisions are "military", what decisions are "political", who decides "tiebreak" ? - the whole ball of wax, as you wish.

    Some "military-civilian dialog" (in a "Small Wars" context):

    Liberius: [Liberius and Razin are debating whether or not to allow Zhivago's release] I command this unit!

    Razin [Poltical Commisar]: We command jointly! The Party Bulletin expressly states...

    Liberius: Bah!
    [knocks bulletin out of Razin's hands]

    Liberius: I could have you taken out and shot!

    Razin: And could you have The Party taken out and shot? Understand this: as the military struggle draws to a close, the political struggle intensifies. In the hour of victory, the military will have served its purpose - and all men will be judged POLITICALLY - regardless of their military record! Meanwhile, there are still White units in this area - the Doctor stays
    Regards

    Mike

    PS: How to avoid law school "mental abuse" ? In my limited experience, none of the I Law and Comp Law guys were student burners. The Procedure guys were substantively different, with the Criminal Procedure guys being the worst at burning students. My general defensive measure was to sit in the front row at the far left (to the prof's right side) and not arouse the prof's "primeval genetic uncontrolled reaction to spotting potential prey" (HT Bear). Also, have side jobs (dealing with Real World Law) and cut as many classes of student burners (and of boring professors) as you can.

    That didn't prevent all interchanges; but it limited them. And once, I got really lucky - or "How I burned Jerry in Advanced Criminal Procedure". Anyway, the practice of law is what it's all about - and one can look back on law school as primarily a course in a different library science, some mental abuse, and some decent conversations with profs and other students.
    Last edited by jmm99; 05-01-2011 at 08:31 PM.

  4. #64
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    Default You can't handle the truth about ...

    Beneficiarius placement - but since you asked ....

    This also ties in with fmr11a's military-civilian team idea - seriously.

    Here is as much as you need to know about the grade of Beneficiarius (also a standard and an insignia of the Beneficiarius):

    In the principate, the term came to be used for a specific grade of officer within the military staff (officium) attached to each equestrian officer of an auxiliary unit; each camp prefect; each legionary tribune and legionary legate; each provincial procurator and other equestrian officials within a province and each provincial governor.
    In short, they were of the Roman Professional Soldiers (or Marines in the smaller Roman Navy), who had come through the ranks to centurion or super-centurion grades.

    The Roman officers, for whom they served, whether their social class was senatorial (Caesar) or equestrian (Pilate), were trained in rhetoric and served as often as magistrates than as soldiers. In short, they were trained and served as lawyers. Some were gifted military amateurs; some were definitely not gifted military amateurs.

    The Beneficiarii, like other centurion super grades, functioned as a link between the lawyers (the top dog officers) and the professional military. A Beneficiarii of the governor's staff had a lot of clout (he could draw a circle in the sand with his belt insignia - and say: "I am Rome. Cross the line if you dare."):

    Whatever duties they carried out away from the provincial capital they did so as the representative of the governor. This explains the number of miniature “beneficiarius lance” badges found on military sites in Northern Europe. These would have been attached to leather belts or strap ends and showed that the person was an official of the governor and operating on his behalf independently of any other military officer.
    Since a bear wears no belt, I can only see it being pinned to the obvious male appendage - sort of a pizzle stick, I suppose.

    Cheers

    Mike
    Last edited by jmm99; 05-01-2011 at 08:28 PM.

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    Default My take ("on the record") on Krulak-Hoar

    Here it is, at Hi Fuchs.

    Note that, by making the Army Manual the standard for both military and non-military agencies, the effect was to move part of our Laws of War into our Rule of Law. Krulak-Hoar probably could have stated it more precisely.

    We also have had discussions about the UCMJ moving our Rule of Law into our Laws of War.

    Regards

    Mike

    PS: I expect I may be a bit spotty in replying to posts here or elsewhere at SWC for the next few weeks - may be, may be not.
    Last edited by jmm99; 05-01-2011 at 09:26 PM.

  6. #66
    Council Member LawVol's Avatar
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    Your Back!...?
    Yep, my trip was cut short due to flight restrictions so I had to catch whatever was available out of there or risk a long-term stay with short-term supplies. On watching the news this morning, I now know why. It was still a productive trip and I learned a bit about Pahtu vs Hazara views of RoL.

    LawVol, I do think that in many ways we are saying the same thing but differently
    I'm beginning to see this as well. I did come across an example on my short trip that illustrates, I think, both of our positions. It seems there is some frustration among a particular battle space owner because of the conflict between RoL and LoW (his characterization as relayed to me). He doesn't like the fact that his troops sometimes have to do warrant ops (serving warrants and all that entails) as he'd rather just kill them. Given proper PID, I can't say I'd disagree but then again I don't make the rules or generate the mission. However, some of the spec ops folks actually like the warrant ops because they find that on showing a village elder official paperwork, they often are able to take custody without shooting. These differing experiences, however, are likely a result of differing conditions. What works in one place may not work in another (this is why a ground-level view is crucial for policy-level folks).

    I understand my tone can be ruff, but don’t recall blaming lawyers.
    I meant this as more of a general statement rather than an indictment of anything you said specifically. Thanks for the book suggestion; I'll check it out.
    -john bellflower

    Rule of Law in Afghanistan

    "You must, therefore know that there are two means of fighting: one according to the laws, the other with force; the first way is proper to man, the second to beasts; but because the first, in many cases, is not sufficient, it becomes necessary to have recourse to the second." -- Niccolo Machiavelli (from The Prince)

  7. #67
    Council Member Surferbeetle's Avatar
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    Default

    Mike,

    So many interesting things, so little time...

    The rule of law assessments by my legal beagle CA brothers & sisters were always very interesting.

    Wonder if this is applicable, helpful, correct?

    Guiding Principles for Stabilization and Reconstruction, Section 7 Rule of Law

    Regards,

    Steve
    Last edited by davidbfpo; 03-07-2012 at 11:10 AM. Reason: Copied here from another thread
    Sapere Aude

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    Default Surf's up - here

    Hey Steve,

    Your question:

    The rule of law assessments by my legal beagle CA brothers & sisters were always very interesting.

    Wonder if this is applicable, helpful, correct?

    Guiding Principles for Stabilization and Reconstruction, Section 7 Rule of Law
    seems better placed here than in "War Crimes".

    Once LawVol decompresses from Afghanistan, I'd hope he'd join in the discussion. Of course, Polarbear1605 is always decompressed when it comes to "Rule of Law".

    I will take a crack at answering your question re: USIP; but not tonight.

    In the meantime, take a look at LawVol's closing blog post, Closing Thoughts (17 Feb 2012). As to the "rule of law", I found these paragraphs by John to be most compelling:

    Davis is not, however, completely wrong from my perspective. His conclusion that the results (real, imagined, or expected) are not worth the effort is accurate from my own perspective. While Davis toured with combat units, I toured with development folks working in the area of rule of law. Thus, our views become complimentary in that counterinsurgency doctrine places great importance on the development of rule of law, as it is the glue that allows hard won combat victories to mature into sustainable civil society. The issues of rule of law are every bit as complicated as the tribal and enemy dynamics described above. However, some are of our own making.

    Americans have a tendency to throw money at problems in the belief that money can fix everything. Combine this with a myopic view of rule of law and the effort here becomes stagnant. Afghanistan is a poverty-stricken country with little hope of matching the influx of coalition money in the near future. Given the history of warfare here, Afghans are more likely to think in the short term than in the long term. This dictates that Afghan powerbrokers will look to absorb as much money from the coalition as possible before the coalition leaves (having an end date certainly provides incentive for this conduct). Thus, Afghan officials within the rule of law sector constantly ask for infrastructure and financial support for personnel. This is accomplished with little thought to sustainability. In other words, how will this infrastructure and personnel be paid for when the coalitions leaves? This strategy, however, does lead to a perception of success since supporters can point to the number of courthouses built, judges hired, and bad guys prosecuted without any in-depth thought to the long term sustainability of the effort. Unlike Davis, I do not see lies here – I see misperception.

    Our approach to rule of law is also, generally speaking, too focused on criminal law. This, I believe, stems from the fact that criminal law is viewed as “sexy” by lawyer and layman alike. After all, Hollywood doesn’t make television shows about contract law, do they? However, when one is trying to build a sustainable government, it is necessary to generate revenue to pay for that government’s operations. Contract law fosters security of business contracts, which increases foreign investment. Customs regulations assist in the generation of tax revenue. Transportation law allows the efficient movement of people and cargo so that business can flourish. Lawyers and judges trained to settle land disputes (a huge issue here) allow for resort to courts rather than to violence. Sure criminal law is important, but not to the exclusion of civil law or the relegation of it to almost an afterthought.

    The complexities of the situation here, and our seeming inability to address them, lead me to a pessimistic (although I think realistic is a more accurate term, but that’s my perception) view of the sustainability of this effort. Applying this to the questions I asked in the first paragraph regarding my contribution also results in a cynical outlook. As I do not think this endeavor to be sustainable (indeed I see civil war on the horizon) I cannot say I’ve made a difference. The men and women that reduced Al Qaeda to a shadow of its former self made the difference here, which, incidentally, was the original political objective of this war. Conversely, I have learned a lot, although I’m not sure that what I learned was actually intended. Unintended learning, though, is sometimes the best kind of learning. For that knowledge, at least, I am thankful.
    A virtual shell of beer is raised to you, John. Welcome Home.

    Regards

    Mike

  9. #69
    Council Member Surferbeetle's Avatar
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    Quote Originally Posted by jmm99 View Post
    Hey Steve,

    Your question:

    seems better placed here than in "War Crimes".

    Once LawVol decompresses from Afghanistan, I'd hope he'd join in the discussion. Of course, Polarbear1605 is always decompressed when it comes to "Rule of Law".

    I will take a crack at answering your question re: USIP; but not tonight.

    In the meantime, take a look at LawVol's closing blog post, Closing Thoughts (17 Feb 2012). As to the "rule of law", I found these paragraphs by John to be most compelling:

    A virtual shell of beer is raised to you, John. Welcome Home.

    Regards

    Mike
    Mike,

    Greatly appreciate it, whenever you get to it. Lots of things going on in the world of late.

    By the way i also use that framework to look at/measure our own/western institutions and practices.

    John/LawVol,

    Welcome home, job well done.

    Take care,

    Steve
    Sapere Aude

  10. #70
    Council Member Polarbear1605's Avatar
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    Default hmmm...is that a gaunlet at my feet?

    Quote Originally Posted by jmm99 View Post
    Hey Steve,

    Once LawVol decompresses from Afghanistan, I'd hope he'd join in the discussion. Of course, Polarbear1605 is always decompressed when it comes to "Rule of Law".


    Mike
    You know the bear never misses a chance to charge a windmill...and probably should not pass this one up but I do need to read the reference...remember, what drove Don Quixote mad was reading besides I would never describe myself as compressed...concerned and a bit fanatical is better.
    "If you want a new idea, look in an old book"

  11. #71
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    Default Bear: Neither gauntlet nor pugil stick ...



    My plan was to answer Steve's question by commenting on the USIP monograph in general; and on its Rule of Law section in particular.

    I do have some initial thoughts - without commentary now.

    In Guiding Principles for Stabilization and Reconstruction (Glossary), one finds the following definitions, which provide some boundaries for the scope of "Stabilization and Reconstruction":

    Stabilization
    Ending or preventing the recurrence of violent conflict and creating the conditions for normal economic activity and nonviolent politics. (UK Stabilisation Unit, “Helping Countries Recover From Violent Conflict.”)

    Violent Conflict [defined by USIP]
    A clash of political interests between organized groups characterized by a sustained and large-scale use of force.

    Peace Enforcement
    Coercive action undertaken with the authorization of the United Nations Security Council to maintain or restore international peace and security in situations where the Security Council has determined the existence of a threat to the peace, breach of the peace, or act of aggression. (UN DPKO, “Peacekeeping Operations Principles and Guidelines.”)

    Peacekeeping
    Action undertaken to preserve peace, however fragile, where fighting has been halted and to assist in implementing agreements achieved by the peacemakers. (UNDPKO, “Peacekeeping Operations Principles and Guidelines.”)

    Peacebuilding
    Measures aimed at reducing the risk of lapsing or relapsing into conflict, by strengthening national capacities for conflict management and laying the foundations for sustainable peace. (UN DPKO, “Peacekeeping Operations Principles and Guidelines.”)

    Disarmament, Demobilization, and Reintegration (DDR)
    A process that contributes to security and stability in a stabilization and reconstruction context by removing weapons from the hands of combatants, taking the combatants out of military structures, and helping them to integrate socially and economically into society by finding civilian livelihoods. (United Nations, Integrated DDR Standard.)

    Reconstruction
    The process of rebuilding degraded, damaged, or destroyed political, socioeconomic, and physical infrastructure of a country or territory to create the foundation for long-term development. (United States Army, Field Manual 3-07: Stability Operations.)

    Development
    Long-term efforts aimed at bringing improvements in the economic, political, and social status, environmental stability, and the quality of life for all segments of the population. (DRAFT UK CAWG, Inter-Departmental Glossary of Planning Terminology.)
    These are not modest boundaries even if one reads them conservatively.

    The scope of the Stabilization and Reconstruction concept is established by its summaries of End States:

    2.1 End States

    Below is a summary description of each end state, framed according to the perception of the host nation population, as they will be the final arbiters of whether peace has been achieved.

    • Safe and Secure Environment
    Ability of the people to conduct their daily lives without fear of systematic or large-scale violence.

    • Rule of Law
    Ability of the people to have equal access to just laws and a trusted system of justice that holds all persons accountable, protects their human rights and ensures their safety and security.

    • Stable Governance
    Ability of the people to share, access or compete for power through nonviolent political processes and to enjoy the collective benefits and services of the state.

    • Sustainable Economy
    Ability of the people to pursue opportunities for livelihoods within a system of economic governance bound by law.

    • Social Well-Being
    Ability of the people to be free from want of basic needs and to coexist peacefully in communities with opportunities for advancement.
    and Key Principles:

    3.1 What are the key cross-cutting principles in an S&R environment?

    • Host nation ownership and capacity means that the affected country must drive its own development needs and priorities even if transitional authority is in the hands of outsiders. Ownership requires capacity, which often needs tremendous strengthening in S&R environments.

    • Political primacy means that a political settlement is the cornerstone of a sustainable peace. Every decision and every action has an impact on the possibility of forging political agreement.

    • Legitimacy has three facets: the degree to which the host nation population accepts the mission and its mandate or the government and its actions; the degree to which the government is accountable to its people; and the degree to which regional neighbors and the broader international community accept the mission mandate and the host nation government.

    • Unity of effort begins with a shared understanding of the environment. It refers to cooperation toward common objectives over the short and long term, even when the participants come from many different organizations with diverse operating cultures.

    • Security is a cross-cutting prerequisite for peace. The lack of security is what prompts an S&R mission to begin with. Security creates the enabling environment for development.

    • Conflict transformation guides the strategy to transform resolution of conflict from violent to peaceful means. It requires reducing drivers of conflict and strengthening mitigators across political, security, rule of law, economic, and social spheres, while building host nation capacity to manage political and economic competition through peaceful means.

    • Regional engagement entails encouraging the host nation, its neighboring countries, and other key states in the region to partner in promoting both the host nation’s and the region’s security and economic and political development. It has three components: comprehensive regional diplomacy, a shared regional vision, and cooperation.
    To me, this looks like a comprehensive state-building program which has its legal bases in the UN Charter and Conventions; International Human Rights Law; and, to a lesser extent, International Humanitarian Law (which goes beyond the Laws of War [LOAC] accepted by the US).

    In any event, in considering the value of "Stabilization and Reconstruction", one has to view the concept in terms of - Where am I ? Who am I ? Why am I here ? Who owns me ?

    Regards

    Mike

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    Default A Military Alternative

    This is a total sidebar to the USIP article. I've kicked around in my head the idea of writing up "Civil Affairs for Knuckle-dragging Neanderthals" (among whom I place myself in answer to the question "Who am I ?" ).

    The idea would be to look back at the origins and development of Civil Affairs in the context of its doctrine before the Kennedy Administration and Vietnam (when "COIN" became ...), as evidenced by:

    1940 USMC Small Wars Manual.pdf
    1940 FM 27-5 Military Government.pdf
    1943 FM 27-5 (OpNav 50E-3) Military Government & Civil Affairs.pdf
    1947 FM 27-5 (OPNAV P22-1115) Civil Affairs - Military Government (op '56).pdf
    1954 FM 41-15 Civil Affairs Military Government Units.pdf
    1957 FM 41-10 Civil Affairs - Military Government Operations.pdf * intended for use in conjunction with FM 27-5 and FM 41-15.
    1958 FM 41-5 (OPNAV P 21-1 AFM 110-7 NAVMC 2500) Joint Manual for Civil Affairs - Military Government.pdf *This manual supersedes FM 27-5/OPNAV P 22-115,14 October 1947, including C 1, 19 June 1956.
    and the close link between these doctrinal publications and the Laws of War publications:

    1914 FM 27-10 Rules of Land Warfare.pdf
    1934 FM 27-10 Rules of Land Warfare.pdf
    1940 FM 27-10 Law of Land Warfare (up '44).pdf
    1944 Ann Arbor JAG School, Law of Belligerent Occupation.pdf
    1956 FM 27-10 Law of Land Warfare (up '76).pdf
    Those "law books" owe their principal ancestry to the 1863 Lieber Code (G.O. 100), of course.

    While these ancient Civil Affairs manuals are heavily law-based, they are not overly legalistic - and are short. The 1940 Military Government manual uses 23 pages to cover the substantive subject matter !! The 1940 Small Wars Manual is more verbose (about 100 pages, starting at Chapter XI).

    Line officers then seem to have been much more law oriented than at present. Tony Waller (no law degree) was an adept courtroom examiner and arguer. A number of Marine generals (serving in WWII and after, some into the Vietnam Era) had law degrees - which did not contaminate their line officer service.

    General Clifton B. Cates, 19th Commandant of the Marine Corps, was a 1916 University of Tennessee law school graduate. He retired from the Marine Corps in 1953.

    General Earl E. Anderson was a lieutenant colonel when he graduated from George Washington University's school of law (as law review editor-in-chief) in 1952. For the next 12 years he mixed legal and aviation duties then, until his retirement in 1975, was an aviator and a senior staff officer.

    Lieutenant General Walter W. Wensinger was a 1917 University of Michigan law school graduate before joining the Marine Corps and, other than duty in the Office of the Navy JAG for three years, was a career infantry officer.

    General Merrill B. Twining, a 1932 graduate of George Washington University's law school, was a career infantry officer.

    Lieutenant General George C. Axtell was a career aviator who graduated from George Washington University's law school as a major in 1952.

    Lieutenant General Herbert L. Beckington, an artillery and infantry officer, graduated from Catholic University law school in 1953, as a major.

    Major General Avery R. Kier was a 1927 graduate of Kansas City School of Law, but was a career aviator.

    Brigadier General James Snedeker, an infantry officer, was a 1940 law school graduate who represented the Marine Corps and the naval service on numerous boards and committees relating to military law, and was the first Marine to hold the billet of Deputy Judge Advocate General of the Navy.

    In an earlier era, General Holland M. Smith, who retired in 1946, was a graduate of the University of Alabama's law school, and practiced, briefly, before entering the Marine Corps.
    From 1989 Solis, Marines and Military Law in Vietnam - Trial by Fire 01.pdf; and Holland Smith tells his own story, 1948 Holland Smith, Coral & Brass.pdf

    On the other hand, that Neanderthal Manual would take a lot of time.

    Regards

    Mike
    Last edited by jmm99; 03-07-2012 at 11:19 PM.

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    Quote Originally Posted by jmm99 View Post

    From 1989 Solis, Marines and Military Law in Vietnam - Trial by Fire 01.pdf; and Holland Smith tells his own story, 1948 Holland Smith, Coral & Brass.pdf

    On the other hand, that Neanderthal Manual would take a lot of time.

    Regards

    Mike
    Yep, reading Gary Solis's Military Law In Viernam: Trial by Fire now. It covers from 1965 until we got out. I am struck by the few number of "war crimes" court martials and how little publicity they got. There is also an interesting court martial of a Sgt that shot and killed a USO singer as she sang. The Sgt got 20 years and was released after 2 years and 9 days when his appeal court ordered a retrial that fell apart because evidence had been lost.
    "If you want a new idea, look in an old book"

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    Default Yup, Solis is a great read

    Technically, the killing of a civilian in South Vietnam could not be a war crime. The victim was a resident of an allied nation, protected by the laws of Vietnam. So, the charge would be some version of homicide (murder, manslaughter, negligent homicide), with a probable 916 (Justification) defense. A Retro Haditha or Back to the Future, which you know well.

    Now, if the shootee were an enemy combatant (NVA or VC Main Force), perhaps protected by the Geneva Convention in full (GCs III) or Common Article 3, there would be no crime at all - unless the shootee was shot after capture (which could be prosecuted as a war crime).

    One problem in Vietnam (which was solely for GVN and USG political reasons) was treatment of the VCI (Viet Cong Infrastructure) as civilians. Let's take our friendly VC political cadre associated with a VC company. In reality, that cadre would usually hold a grade one step higher than his military counterpart ("civilian" control of the military ); and would personally dabble in selective violence if needed.

    If the VCI cadre was killed by, say, a PRU (Provincial Reconnaissance Unit), he was technically a civilian under South Vietnamese law. On the other hand, our Civil Affairs officers were legitimate military targets. In terms of functional equivalence, the VCI cadre had more military clout than the US CA officer.

    Vietnam mucked up things in a number of areas.

    Regards

    Mike

    PS: For those interested in the OSO shooting, it's at Part 7, pp.2-4 pdf. Basic facts - not contested:

    On 2O July 1969 a USO show was in progress in the Staff and Officers' Club at the 1st Force Reconnaissance Company's base camp. Miss Catherine Anne Warnes, singer for the Australian musical group, "Sweethearts on Parade," stepped back from the microphone after singing the show's final song, just as there was a muffled shot. The 20-year old Australian fell to the floor, dead.
    ...
    By 2100 the Staff and Officers' Club was filled with Marines anxious to hear the band and the attractive singer in the pink miniskirt. The 1st Force Reconnaissance Company commander, Major Roger E. Simmons, sat about eight feet from the stage. ... Later investigation revealed that the killer had fired one .22-caliber round from behind a jeep that was parked 35 yards from the Staff and Officers' club. The bullet cut through the club's screen wall, entered Miss Warnes' left side, pierced her aorta, and exited her right side, killing her almost instantly.

    Was Major Simmons the intended target? Newspapers speculated that Miss Warnes had stepped into the line of fire ("Was Girl's Killer Gunning for Maj?" read one headline), but Major Simmons thought not. It was not an issue at trial, although a straight line could be drawn from the major's position to Miss Warnes to the jeep from behind which the fatal round was fired.
    I conned myself just now into ordering a used hardcover of Solis' Son Thang: An American War Crime, whose title is a misnomer in light of what I wrote above (Son Thang was not a "war crime").
    Last edited by jmm99; 03-08-2012 at 04:39 AM.

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    Well if you read Son Thang by Gary Solis...then you also need to read Honor Restored by Denzil D. Garrison. Mr Solis writes Son Thang from the prosecuter's point of view. Honor Restored is written by a member of the defense team. There is also a third book Blue's Bastards by Randy Herrod the defendent. Blue's Bastards has my favorite line...reportedly it came from a colonel, the senior member of the court martial board, immediately after the court martial: "I'm not going to tell you how we voted, but I'll tell you this: if we send the little sons of bitches out there, then we sure as hell have to take care of them." You also get a better feel for Ollie North's involvement in the court martial from Garrison's book. James Webb also pops up in this story.
    Last edited by Polarbear1605; 03-10-2012 at 01:00 AM.
    "If you want a new idea, look in an old book"

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    Default Got it

    Like-new hardcover of Son Thang (just under $8 inc. shipping) showed up in my mailbox this noon. It was the property of the Kiel, Wisc. Public Library (no one took it out); and sold by a used book-dealer from near Green Bay. A fluke in parcel post delivery - their loss, my gain.

    Anyway, I got through the first two chapters (which includes some of Ollie North and Jim Webb, +s to me); but I have to go back to the hamlet aerial and get the geography and timeline down. Son Thang was not My Lai; but it wasn't Haditha either.

    And, yes, after 45 pages, I saw Gary Solis sitting at the prosecution table - e.g., his description of the carnage caused by military munitions (p.45). As a defense counsel, you try to keep out the blood and guts photos; but often that is not possible. To get exclusion, you probably have to stipulate points that the prosecution would otherwise have to prove. As Tony Waller did by pleading Guilty to most of the Specification, but Not Guilty to the Charge and to the rest of the Specification.

    Bottom line: Gary Solis would be a formidible opponent (smart guy and good writer).

    OK: I followed your tactical advice - books ordered (under $10 inc. shipping)

    Something hits me in the gut wrong about a spCM (Herrod's "delayed transition" from 3/3 to 1/7) for a guy who twice went out for a wounded Marine (the same guy, who happened to be Ollie North) and is up for a Silver Star.

    Regards

    Mike

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    Default Back to the USIP & "Rule of Law"

    I could rip at Section 7 and rewrite many paragraphs. That would take a lot of time, which I'd rather devote to my Neanderthal Manual.

    I did find three sections that stood out to me as being positive (even though written in something of a UNese dialect) - and worthy of some thought since they are principles.

    First,

    7.4.2 Act only with an understanding of the local context.

    A proper rule of law assessment is vital because assistance should be designed in relation to the context rather than universal templates. A multidisciplinary team comprising both host nation and international actors, that covers both urban and rural areas, is optimal [JMM: is mandatory]. Consult the users of the system as well as justice institutions.

    Key questions for assessment include the following:

    • What does the formal justice system look like on paper and in practice? Can it perform basic rule of law functions?

    • What are the informal rules, traditions, and culture that underlie the system and its capacity and needs?

    • What subsystems of justice are used by the population, including non-state justice and policing?

    • What are the broader conflict-related factors, including regional influences, the security/crime situation, how human rights are being protected, the socioeconomic and political context, the cultural context, and the treatment of marginalized groups?

    • What was the role of the justice system in the conflict? Was it part of the problem or part of the solution?

    • What are the key drivers and mitigators of conflict that are affecting or could affect rule of law?
    From the People; back to the People, said Mao. In practice, Mao's movement failed in that regard. As stated, Mao's theory is the true Rule of Law; that is, the rules come in raw form from the People, are refined by the Government and sent back to the People for approval; and so on, to arrive at an acceptable product.

    Of course, you can have Rule by Law, where the rules are made by the Government's fiat. So long as the People accept those rules, you have a workable system; and can call it "Rule of Law". If a significant portion of the People does not accept them (feel they are "unjust"), you have a problem.

    Second,

    7.4.5 Recognize interdependence.

    Rule of law requires more than an exclusive focus on formal justice institutions. It is an interdependent system of many parts involving institutions that manage justice (e.g., ministries), law enforcement agencies, courts, prisons, oversight bodies, law reform agencies, and legal education institutions. The justice system also depends on interaction with non-state justice systems, non-state actors (e.g., civil society), and the general population. Progress in security, governance, economic development and social well-being are all dependent on a functioning rule of law system.
    Accepted as written.

    Third (three parts, all intertwined),

    7.5.3 Approach: Legal Framework Assessment

    Understand the existing legal framework as the first step in working toward a just one. Laws may be chaotic, meaning it is difficult to answer the question of what law applies. They may also be deficient, meaning they contain provisions that are inconsistent with human rights or are antiquated and fail to address common S&R challenges, such as property rights, human trafficking, and organized crime. In most war-torn states, the legal framework frequently exhibits signs of neglect and political manipulation, contains elements of discrimination and seldom meets the requirements of international human rights and criminal law standards. Legal framework assessment involves a comprehensive mapping of all laws and decrees - formal and informal - followed by an analysis that identifies areas that require urgent attention or longer-term treatment.

    7.5.4 Gather, catalogue, and distribute the applicable laws first.

    Reach out to legal practitioners, ministries, the courts, the police, the prison services, law schools, academics, NGOs, and legal diaspora to collect applicable laws. This will involve multiple sources of law. Identify and collect core documents including the constitution, criminal code, civil code, commercial code, civil procedure code, administrative law, citizenship law, and property law. Also, look for regulations, acts, bylaws, internal procedures (e.g., police procedures), and laws and decrees regulating the customary justice system or parallel justice systems (e.g., rebel laws). Catalogue the laws gathered and translate and share them among host nation and international colleagues.

    7.5.5 Conduct a comprehensive analysis of the applicable law.

    The laws gathered need to be analyzed to ascertain compliance with international human rights law, criminal law, civil law, and commercial law (e.g., treaties on organized crime; drug trafficking; the International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; Convention on the Rights of the Child); to assess how religion impacts the law; and to understand what problems are not addressed in the laws. One body or organization should coordinate this analysis. Have a mixed team of academics and practitioners, legal and nonlegal, who can contextualize the law as it relates to the host nation. The analysis should be carried out by both host nation and international actors, and the team should consult widely within and outside the justice system. Start the assessment early; a full assessment can take up to one or two years.
    One or two years - get real. Michigan did this in the 1960s - and was working out the kinks into the 1970s. That was under optimal conditions. I have complete agreement that this is how to do it. I also doubt it will be done.

    Exactly how these "international actors" get involved - and how involved they get - are questions not answered in what I've quoted above.

    Regards

    Mike

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    Quote Originally Posted by jmm99 View Post
    I've kicked around in my head the idea of writing up "Civil Affairs for Knuckle-dragging Neanderthals" (among whom I place myself in answer to the question "Who am I ?" ).
    You are not alone in this...

    Idealized fictional books such as A Bell for Adano are interesting, but not a real world case study of CA work.

    Instead, I wonder about either finding or chasing and assembling some case studies chronicling the deliverables of real world CA-Bubba types (and not limited to just US troopies) that were key team members of succesful reconstruction experiences: W. Edwards Deming comes to mind. This leads me to a sacralegious question; which came first, the OODA loop or the Deming Wheel/PDCA Cycle-Plan, Do, Check and Action?

    Quote Originally Posted by jmm99 View Post
    The idea would be to look back at the origins and development of Civil Affairs in the context of its doctrine before the Kennedy Administration and Vietnam (when "COIN" became ...)
    Excellent work on the references, Mike. I once held an original copy of the 1947 FM 27-5 Civil Affairs - Military Government...it easily fit into a soldiers pocket...perhaps because the approach taken was more of a performance based work specification than a prescriptive work specification....a focus on outcomes or results rather than process.

    Additional Skill Identifiers, a functional and timeless concept that i hope the Army will use again, one day, for it's CA forces. Doing so will help us get back to recruiting more 'Deming types'.

    Big Picture, I am wondering out loud about how to quantify the differences between public sector and private sector 'nation building' solutions...sustainable economies vs functional economics approaches over in the EUCOM Econ Thread...
    Sapere Aude

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    Default C A Rules. U N Drools.

    At least, that's the way it should be.

    Unfortunately, I've never held the real 1940 FM 27-5 Military Government in my hand. I've had to "make do" with the online version. That little book is really basic with its "Performance Based Specifications" (24pp.) vs. "Design Specifications" (30pp.). That's the doctrine - with "skill identifiers".

    You really do have to keep Neanderthal manuals simple - think the Pierre of the North comic, where the final frame shows the polarbears halfway into the igloo and Pierre saying "I really 'ate zis place !" ("hate" in French-Canucklish pron. "ate" - " 'elp, 'elp, zem polarbears 'ate me."). Beware of zem very clever and very hungry polarbears.

    OODA - without looking it up (and I haven't to write this post): Is it Observe-Orient or Orient-Observe ? So, OODA is of no value to me because of my own deficiencies in acronymics.

    For what it's worth, my built-in loop is Data-Analyze-Decide-Act. That's worked in the courtroom where you have to DADA (or DODO) in the interval between two sentences. E.g., the opposing lawyer's question and the witness' answer. It also works in less time-stressed situations (trial prep, or still longer case prep), where you can use different decision-making trees, and more sophisticated use of tempo.

    Feel free to develop Deming-type case studies and Engineering Economy models. You will lose me in the first few paragraphs. My time at Michigan Tech was in other areas (with some, I've stayed Scientific American current over 45 years).

    Regards

    Mike
    Last edited by jmm99; 03-10-2012 at 10:52 PM.

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    Default input form a knuckle-dragger

    Quote Originally Posted by jmm99 View Post
    Like-new hardcover of Son Thang (just under $8 inc. shipping) showed up in my mailbox this noon. It was the property of the Kiel, Wisc. Public Library (no one took it out); and sold by a used book-dealer from near Green Bay. A fluke in parcel post delivery - their loss, my gain.

    Bottom line: Gary Solis would be a formidable opponent (smart guy and good writer).

    OK: I followed your tactical advice - books ordered (under $10 inc. shipping)
    I know...I love that used book function! For an old book worm it is just GREAT!

    Quote Originally Posted by jmm99 View Post
    Something hits me in the gut wrong about a spCM (Herrod's "delayed transition" from 3/3 to 1/7) for a guy who twice went out for a wounded Marine (the same guy, who happened to be Ollie North) and is up for a Silver Star.

    Regards

    Mike
    Yep, I am sure if confronting Gray in a legal boxing match, he would leave marks. Gray also has another book out “The Law of Armed Conflict”… trying to read through it for some time now…I believe it is Mr. Solis’s text book…I keep putting it down to read more fun stuff.

    To me, Herrod’s SPCM for UA is also surprising but does reflect his command situation. Good combat leaders work real hard on unit cohesion and Ollie North is one great combat leader regardless of his political issues late in his career. Combat firefights/battles are also tremendous cohesion builders. If you suddenly lose your leader and your unit with a transfer to a different division the “system” support structures have been kick out from underneath you and a sudden UA problem should not be unexpected (and does need to be addressed). Unit SOPs normally set an unofficial standard that the Company CO gets the first NJP offense, the Bn CO gets the second, third offense gets the super NJP option of a summary court and that is the normal route to a SPCM.

    OODA Loops and Deming - Boyd theory was never sold as something new…at least not by its author. It was an historical analysis of sorting out and picking what works and then an assembly of those piece parts. Boyd Theory is much richer than just OODA loops. I don’t remember any references to Deming but the list is extensive. The Boyd briefs (slides) are available on line and the USMC Quantico Library now has a copy of COL Boyd delivering the audio portion of those briefs (12 hrs+). If you ever want to spend the time, let me know and I will let you know how to get your very own set Boyd CDs. I personally feel you have to have both (the slides and the audio) to understand Boyd.

    Read the reference…it is very good and I am especially impressed by the reference list. Of course, being the dedicated fighter of windmills (besides being a knuckle dragger) I have to state my criticism.
    The doc seems to rely heavily on UN and NATO references and that presents, in my opinion, a considerable flaw. I would sum up that flaw with the phase: “its fine, if you are dealing with the villages of Europe, but how does this work in a tribal content, specifically a Muslim tribal content?” In addition, I feel it is a tactical manual that ignores and glosses over some of the strategic realities. I mention that because I believe we are going to add Afghanistan to the now growing list of wars that we have won tactically but lost strategically.

    The strategic issue is which ROL do you want to implement? Ours or theirs? Especially, when theirs is culturally very different from our ROL. Either way presents us with a dilemma. Their law, for example, requires that an adulteress woman is publically stoned. In the US, we always have an opposition party. If we attempt to implement a Muslim based ROL, the opposition party (and I am convinced it makes no difference which party is in the minority) will see this as an opportunity to garner power. Another example is President Bush was politically attack for using the LOW to fight the war on terrorist; Eric Holder is being attack for trying to use the ROL. States can legally execute their own citizens, so how will the US public handle the legal and public execution of a convicted adulteress by stoning?
    Boyd Strategic Theory states that whatever works for you must also work against the enemy (Boyd’s cheng/chi theme). Clausewitz calls for a balance in the trinity of war …people, government, and the Army. “The theory that ignores any one of them or seeks to fix an arbitrary relationship between them would conflict with reality to such an extent that for this reason alone it would be totally useless.”

    Of course, my favor windmill that cocks my barber’s bowl sideways, is the separation of the ROL and the LOW. The manual does not address it and therefore, I my mind, it is flawed. It is still a good manual as long as you understand the flaws. I understand that the legal folks view them as the same thing. But as a knuckle dragger, I do not see how I can operate under both; Inter arma silent leges. I still feel that there has to be a coordination point between the two as you transition from the LOW to the ROL. If you mix them, at some point there is going to a sorting out…and the sorting always means someone is going to lose and any loss, either way, means you undermine your own strategy. I recently finished “In the Shadow of Wounded Knee” by Roger Silvestro…and like Haditha, I think it is a great example of mixing them and then sorting it out with winners and lossers demonstrating a flawed strategy.
    "If you want a new idea, look in an old book"

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