The Rules - Engaging HVTs & OBL

[jmm99]

Thanks for the kind words ("great materials").

I tune out others' moral and ethical debate about what should have been done to Bin Laden. My own moral and ethical beliefs about that were formed within the two weeks after 9/11 - since then I've had no internal debate. The limits imposed by my beliefs are well outside of any legal constraints that are likely to be developed.

I do react when I hear the term "assassination" used (as on CNN last nite by Piers Morgan) and allowed to stand without refutation. I conclude that few have read Hays Parks memo on "assassinations" (Peacetime) vs "targeted killing" (Wartime).

Amen on this:

from Bill Moore
As soon as we find the leads to his associates I hope the helicopters and SOF roll to kill them off also. We don't need lawyers at this point, we need leadership that recognizes we're at war and takes the appropriate action. We would have lost WWII if we followed the rules we're supposed to follow now.

The rules in the Navy Handbook are not that much different from the rules of WWII ETO, taught to me when I was about 8 by this guy (war is hell; but it should be subject to a code):



Then, I got a little close to his personal experiences (the non-funny ones). So, he gave me his copy of his unit history (a little bit here) and told me to read it. Which I did; and still do - learning about many brave and honorable men.

Of course, they fought the Wehrmacht and Waffen SS, regular forces in conventional warfare. But, I believe those WWII rules can be applied to unconventional warfare against irregular forces - making appropriate adjustments for the lack of reciprocity and commission of war crimes by those irregular components. Following a code is for our long term benefit; but that code cannot be a self-imposed suicide pact.

My conclusion (and perhaps I'm Pollyanna) is that we have the legal rules (the wartime rules) and the capabilities to engage successfully under those rules. The real issue is whether there is a will to engage under those rules.

But first, I think that a lot of people have to learn what wartime rules mean. We have forgotten how to wage a war under those rules.

Nice to see you posting in one of my threads - keep busy, you old Dinosaur.

Regards

Mike

[An Outsider]

It seems to me from reading Ms. McConnell's article that her argument for engaging OBL under the rules of law enforcement appears to be that he was away from a "battle zone". That seems to be a dangerous precedent to be setting in terms of international law relevant to transnational terrorism. This is saying that armed insurgencies or terrorist groups can, at will, change the set of rules under which they can be engaged by the state actors they fight simply by changing locations or hiding for a while. This would only reinforce the tactical advantage insurgent and terrorist groups have in hit-and-run tactics and erode the strategic advantage government has in having the rule of law on their side.

Why should non-state actors be immune from fighting under the rules of warfare when they openly declare war on states? Since they have no scruples in breaking both the rules of war and civilian law, why should we bend over backwards to grant them legal immunity from reciprocity after murdering thousands of innocent civilians? To limit our rules of engagement so as to increase the enemy's advantage is, in my view, not only misguided political correctness, it is counterproductive to our counter-terrorism efforts.

On a related note, this is making waves this morning:
http://www.express.co.uk/posts/view/...d-were-unarmed

According to the defence official’s account, the first Seal team came under small-arms fire from a guest house as they entered the compound. The commandos returned fire, killing Bin Laden’s courier Ahmed al-Kuwaiti and the courier’s wife, who died in the crossfire.

The Seals were never fired on again. As they entered the main residence, they saw a man standing in the dark with one hand behind his back. Fearing he was hiding a weapon, they shot and killed the lone man, who turned out to be unarmed. However, as they moved through the house, they noticed several stashes of weapons. The team then climbed a staircase, where they ran into one of Bin Laden’s sons rushing down. They killed the son, who was also unarmed.

On the third floor, the Seals threw open the door to Bin Laden’s bedroom. One of his wives rushed towards the commando in the door, who shot her in the leg. Without hesitation, the same commando turned his gun on Bin Laden, standing in what appeared to be pyjamas, and fired two quick shots, one to the chest and one to the head.

This really caught my attention. If a combatant is unarmed and in a private residence, but intel indicates that he is likely armed and once inside the compound the squad encounters small arms fire, is it really that surprising that transnational terrorists would be considered armed and dangerous and that the SEALs would react accordingly? Furthermore, if they were going in shooting all that moved (as a lot of liberal commentators seem to insinuate), why would they shoot one of OBL's wife in the leg? What that tells me is that even in the heat of a firefight, they were very professional in trying to keep collateral damage to a minimum.

Just some thoughts. Feel free to let me know if I'm talking out of my ass

(and the name is not so much meant to be about my nationality as my status as a civilian )

[jmm99]

I'll not post in response to your latest post; nor will I post in response to any other post you make at SWC.

[jmm99]

Hello Toronto,

As to the tactical situation, I think the facts will keep changing for the simple fact that the media's sources are X steps removed from the original sources, the Seal operators. Of course, we are unlikely to see their after-action reports themselves; but, a week or two from now, may find us with firmer facts - or with a huge media circus as to what the facts "are" (with parsing of the word "are" ).

Comments about tactics should be reserved to them "that's been there, done that" - e.g, Bill Moore and Polarbear1605 just in this immediate thread; but there is a Bn or so here at SWC that have dealt with residential buildings in one way or the other.

As to the legal situation, let's take the Express story as a hypothetical (leaving out the wife, which needlessly complicates the story; and leaving open the possibility that the final double tap came from two operators, not a material fact anyway):

[1]... the first Seal team came under small-arms fire from a guest house as they entered the compound. The commandos returned fire, killing Bin Laden’s courier Ahmed al-Kuwaiti and the courier’s wife, who died in the crossfire.

[2] The Seals were never fired on again. As they entered the main residence, they saw a man standing in the dark with one hand behind his back. Fearing he was hiding a weapon, they shot and killed the lone man, who turned out to be unarmed. However, as they moved through the house, they noticed several stashes of weapons. The team then climbed a staircase, where they ran into one of Bin Laden’s sons rushing down. They killed the son, who was also unarmed.

[3] On the third floor, the Seals threw open the door to Bin Laden’s bedroom. ... the ... commando turned his gun on Bin Laden, standing in what appeared to be pyjamas, and fired two quick shots, one to the chest and one to the head.

Legally, this is about the same situation that I set as a hypothetical one week ago in another thread here, Basic hypothetical and (to include Astan or Pstan), A follow-up. Various comments to those posts also apply here.

Going through the three parts of the legal situation:

1. "...came under small-arms fire". Not material under broad rules[*], though it provides two reasons to shoot. The wife's death introduces the issue of "collateral damage" (a term I dislike, but that is what is used). That gets into another set of rules.

2. "The Seals were never fired on again" - not material to a declared hostile force situation, though I suppose one might say that male + nearby arms = a hostile threat. The key factual issue in a declared hostile force situation is positive ID (PID). The AQ guys don't wear uniforms and are among civilians trying to look like civilians. Which is one factor as to why more civilians have been killed since WWII than combatants.

3. OBL is a PID and can be killed unless he manages to surrender before he is shot. No requirement exists that an attacker make surrender offers.

The foregoing is a simplistic explanation. Life is more complex even under "broad rules" of war. More "restrictive rules" make life even more complex for the attacker.

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[*] Working Definitions

I use "rules" generically, including Laws of War (LoW; aka Laws of Armed Conflict, International Humanitarian Law; including various conventions and some state practices), Rules of Engagement (ROEs, includes Standing Rules of Engagement, SROEs, developed by US JCS), Rules for Use of Force (RUFs; including SRUFs), Rules for Escalation of Force (EOF).

I am using "broad rules" as shorthand for US Wartime rules (Hague + 1949 Geneva + US additions), where kill is allowed if either set of facts exist:

1. The target presents a hostile act or hostile threat and is killed in the defense of self or others; OR

2. The target is positively ID'd as a member of an armed force declared to be hostile - whether the target is then armed or otherwise hostile is not material;

and, where, the burden of making non-combatants and civilians safe is placed on the defenders of the targeted location, not on the attackers.

The rights of the attacker are limited by more "restrictive rules", as in the 2009 San Remo ROE Handbook, which I have to discuss at some point; along with some points asserted by Ms O'Connell in her more formal 2010 article.

For example, the burden of protecting non-combatants and civilians in a building could be cast on the attacker; the declared hostile force rule could be removed; and the target would have to directly participate in hostilities.

In short, under "restrictive rules", the Seal going into the OBL residence might have fewer rights in his favor than I do under Michigan law if I am confronted by a home invader.

Regards

Mike

[An Outsider]

Thanks, Mike, for your ever-direct response. Sounds to me like it's a delicate legal question that will have to be addressed sooner rather than later if we are to have clear parameters for engaging HVTs in the future. I only hope that the view that you, I, and, as far as I can tell, most of SWJ hold on the legality of such a raid prevails under international scrutiny or I despair at the future of global counter-terrorism.

Regards,

Stefan

[Entropy]

Mike,

So does the AUMF trump the indictment? Or, since the indictment still exists can the President decide which "tool" to use based on his own judgment? In other words, was the decision to try to kill UBL or arrest UBL ultimately a policy decision and not a legal decision?

[jmm99]

re: this -

from Entropy
So does the AUMF trump the indictment? Or, since the indictment still exists can the President decide which "tool" to use based on his own judgment? In other words, was the decision to try to kill UBL or arrest UBL ultimately a policy decision and not a legal decision?

except for the "extra" CIA stuff - so, this chart still holds as the current USG position (expressly affirmed as to detention by the DC Circuit in many cases; implicitly, those decision affirm the kill option under the AUMF):

TVNSA Flow Chart 2011.jpg

The red boxes are a combo CIA-DoD effort (Title 50 + Title 10) - a kill result obviously goes no further.

If a capture, with CIA as lead, the agency now has to hand off detention to either DoJ (indictment) or DoD (detention only or military commission trial). As we have seen, these folks can be bounced back and forth between DoJ and DoD. Follow the blue arrows and lines.

Ah, what a Powerpoint Ranger I would have made

Good question. The simple answer is that everything is a Presidential policy decision, with some Congressional oversight.

I'll do the opposing view later.

Regards

Mike