Good post, jmm, just a couple of quick questions which will show my ignorance:
1. Are you sure that "Handbook on the Law of Naval Operations" applied to this mission? Does the law follow the people (SEALs) or does the location of action determine the governing law?
2. I'm lazy. Could you throw up the definitions of "lawful combatant" and and "unlawful combatant" as used in the AUMF?
Hear, hear! Jmm99
I can’t tell you how much I agree with the need for this discussion. I understand, to a certain degree, why politicians blur the line between the Rules of Law and the Laws of War. My biggest issue with the “blurring’ is that our generals and admirals now follow the same practice. Again, I ain’t no lawyer; just a military mind at work here.
JMM99 has pointed out that under the Laws of War “combatants” have the legal right to kill one another; seen, unseen; planned, unplanned; in this room or in a room on the other side of the world. The only thing that changes that is when they throw their hands in the air and yell I surrender, I give up, I quit, or I want to go see Disney World Orlando. The laws are designed that way to not only allow combatants to legally kill each other out of military necessity but also, if you happened to be a combatant, provide for your self-defense (defense for country is impliedj/k).
Now, I am not trying to muddy the waters further but... When I first heard about this operation, it all made sense that Navy Seals were following their ROE or Laws of War. I thought that the CIA and the NCA were following the same model we used in the 2001 invasion of Afghanistan. The command structure was President to General Franks, Combat Commander Central Command, to CIA forces deployed to Combat Commander Central Command. The operation was conducted under Frank's Combat Command Authority…remember that authority cannot be delegated. Using the Combat Command made it war and therefore the Laws of Wars were in effect.
”Combat Command - Nontransferable command authority established by title 10 ("Armed Forces"), United States Code, section 164, exercised only by commanders of unified or specified combatant commands unless otherwise directed by the President or the Secretary of Defense. Combatant command (command authority) cannot be delegated and is the authority of a combatant commander to perform those functions of command over assigned forces involving organizing and employing commands and forces, assigning tasks, designating objectives, and giving authoritative direction over all aspects of military operations, joint training, and logistics necessary to accomplish the missions assigned to the command. Combatant command (command authority) should be exercised through the commanders of subordinate organizations. Normally this authority is exercised through subordinate joint force commanders and Service and/or functional component commanders. Combatant command (command authority) provides full authority to organize and employ commands and forces as the combatant commander considers necessary to accomplish assigned missions. Operational control is inherent in combatant command (command authority). Also called COCOM.”
Now it seems that the chain of command to the kill Osama mission was President, to CIA, to Joint Special Operations Command (Adm McRaven), to Navy Seal Team under title 50. Title 50? What in blazing blue balls of flame is that? (That is a rhetorical question for all you lawyers out there). I am reading title 50 now, you are going to have to give me a day or two on that I am having trouble on the repealed chapter concerning “INTERFERENCE WITH HOMING PIGEONS OWNED BY UNITED STATES”. Yep!...it is marked repealed but it is there.
So the question still stands; why do we blur the line between Laws of War and Rule of Law?
Last edited by Polarbear1605; 05-05-2011 at 07:28 PM.
Yes, I am also ignorant - of many things
Thank you for the kind words. In answer to your questions.
In default of having the actual "mission order" (more than one document, I'd expect; and a bunch of annexes) and the subsidiary "commander's guidance and intent", we of lower pay grades have to be satisfied with what we can reach: Laws of War as accepted by the US; 2001 AUMF as interpreted (primarily by the DC Circuit); JCS SROEs (the unclassified open-source); and the respective service handbooks on Operational Law (Navy being as good as any under the present circumstances).from sw
1. Are you sure that "Handbook on the Law of Naval Operations" applied to this mission? Does the law follow the people (SEALs) or does the location of action determine the governing law?
I'm not lazy, but I am busy. So, negat. I'm not asking for "sir, I'll find out, sir"; but I do request the "I'll find out" from you.from sw
2. I'm lazy. Could you throw up the definitions of "lawful combatant" and and "unlawful combatant" as used in the AUMF?
I've many posts dealing with the AUMF and its relevance to "kill or capture" missions - all of the Gitmo detainments are based on the same basic legal analysis. Start with this post in War Crimes, Gitmo Update, and read through all the court opinions I cite, as you move to the end of the page.
Then, after understanding the Laws of War as decided by the DC Circuit, do an SWC Advanced Search on AUMF (as key word) and jmm99 (as member). I got 77 posts just now.
You'll learn nothing if I feed you a bowl of Pablum (my baby food; it's awful). My purpose here is not to display my own knowledge (such as it is or is not), but to educate others. Do some work.
Now, I have to run and have a PM conversation with a friend.
Regards
Mike
Hey pal, you may be a pretty smart guy, but apparently you have trouble understanding my simple question. I was asking for a defintition, not a dissertation on the "AUMF and it's relation to 'kill or capture missions'", or the "law of wars" as decided by the DC circuit (as if the DC Circuit has somehow become the ultimate arbiter on internationally accepted law of war). I'm not sure what reading through "all the court opinions I cite" would do either, for if there is a simple accepted definition for what I asked they would all agree and reading them all would be repititious. However, I bet most do not even address what I asked. In fact THE COMMANDER’SOriginally Posted by jmm99
HANDBOOK ON THE LAW OF NAVAL OPERATIONS EDITION JULY 2007 provides a simple and direct definition for lawful and unlawful combatants which does not require analysis of the "AUMF and it's relation to 'kill or capture missions'" nor, "the "law of wars" as decided by the DC circuit" or "all the court opinions I cite":
So disregard my question. Enjoy your PM.5.4.1.1 Lawful Enemy Combatants
Lawful enemy combatants include members of the regular armed forces of a State party to the conflict; militia, volunteer corps, and organized resistance movements belonging to a State party to the conflict, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the laws of war; and members of regular armed forces who profess allegiance to a government or an authority not recognized by the detaining power. Lawful combatants are entitled to combatant immunity—that is, they cannot be prosecuted for their lawful military actions prior to capture.
Lawful combatants also include civilians who take part in a levee en masse. A levee en masse is a spontaneous uprising by the citizens of a nonoccupied territory who take up arms to resist an invading force without having time to form themselves into regular armed units. Combatant immunity for a levee en masse ends once the invading forces have occupied the territory.
5.4.1.2 Unlawful Enemy Combatants
Unlawful enemy combatants are persons not entitled to combatant immunity, who engage in acts against the United States or its coalition partners in violation of the laws and customs of war during armed conflict.
Last edited by davidbfpo; 05-06-2011 at 08:21 AM. Reason: Tidy up quote spacing
Hey Bear, follow the Yellow Brick Road
From my link in the first post, On the Legality of Killing UBL Even If He Was Unarmed (and On the Title 50 Issue) - sneaky old ba$tard that I am, I hyperlinked in the OP the first half of the title, which I discussed in the OP - you will find:
Moving on to the post cited, Further Thoughts on Congressional Oversight, the UBL Operation, and the Title 10/Title 50 Issue:Finally, apropos of my post exploring whether the UBL operation was conducted under Title 10 or Title 50 authorities, Panetta was quite clear that it was a Title 50 operation notwithstanding JSOC’s role in actually executing the attack:
LEON PANETTA: Since this was what’s called a “title 50″ operation, which is a covert operation, and it comes directly from the president of the United States who made the decision to conduct this operation in a covert way, that direction goes to me. And then, I am, you know, the person who then commands the mission.
But having said that, I have to tell you that the real commander was Adm. McRaven because he was on site, and he was actually in charge of the military operation that went in and got bin Laden.
Some specific statutes cited, etc. - basically War Powers and Congressional Oversight. You are an inquisitive bear, aren't you ? That's good.Yesterday I posted some initial thoughts on whether the UBL operation constituted a “covert action” for statutory purposes. If so, the operation would require a presidential finding and notificiation to the SSCI and HPSCI. I argued that the operation was not a covert action, on the alternative theories that the operation was not intended to be denied and that in any event it constituted a “traditional military activity” (TMA being an explicit exception to the covert action definition).....
----------------------------
Side issue
I'm getting tired wearing a dress uniform, carrying around a slung 63" 1728 Charlesville fusil.
Perhaps, a new avatar of my Troupe de la Marine in the more normal uniform of the Great Lakes - and more "carbined" fusil.
What think thee, Great White Bear (and anyone else) - still a .69 cal. ball.
Regards
Mike
Yes, I will gladly do this ....
"Pal", I'll leave that on the shelf where it belongs.from sw
So disregard my question....
No regards
Mike
Pardon my ignorance but,
As a civilian with limited knowledge of USAF doctrine and international law I'm having trouble understanding where the argument comes from on the Bin Laden apologist side. I was under the impression that as the leader of an organization who had formally declared war on the US, Bin Laden was a legitimate target of any military action that did not violate the Geneva Convention. Does this mean that they would consider it illegal for a spec ops squad to take out any enemy commander in times of war unless you give the poor bastard a chance to surrender? I appreciate your patience in advance.
Mike,
Too busy to read through all your great material at the moment, but I am having a hard time stomaching the so called moral/ethical debate on killing a mass murderer. This guy told the world he would never be captured alive (expectation he'll resist in any possible), and there were rumors he would always wear a suicide vest (doubt he actually had the conviction to do that), so any reasonable operator should assume that his hands are not up in the air and clearly exposing his palms he may be trying detonate a suicide vest or reach for a weapon based on his own rhetoric.
Then you have the greater good argument (maybe not a viable legal argument, but clearly one based on common sense), which is if he was captured we could reasonably expect his followers to try to take numerous hostages and demand his release.
The UN is pushing garbage as usual and after being a lukewarm supporter for years, maybe it is time we greatly reduce our funding to the UN. They don't stand up against real evil in the world, but will attempt to generate legal action and other punishment (indirectly) against the U.S. because we put up with their crap, while our enemies tell them where to get off. We're making ourselves a soft target for the UN, and it is time we toughen our stance.
Any clown that wants to come to the rescue of UBL under the guise of rule of law doesn't need to be a position where he has a credible voice in influencing American policy. 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.
Happy to outline this
Your first sentence correctly summarizes the USG legal position as it has been formally presented. Some Obama administration personnel get off that message because they have trouble seeing anything but a "law enforcement" image (i.e., force is limited to defense of self or others in response to a hostile act or threat).from An Outsider (hey, Canucks aren't outsiders to me)
I was under the impression that as the leader of an organization who had formally declared war on the US, Bin Laden was a legitimate target of any military action that did not violate the Geneva Convention. Does this mean that they would consider it illegal for a spec ops squad to take out any enemy commander in times of war unless you give the poor bastard a chance to surrender?
The answer to your second sentence (and question) is "yes"; many folks take the position that response to Transnational Violent Non-State Actors (such as AQ) must be via "law enforcement" rules (capture primary, with kill reserved only for defense of self or others).
The second position is very prevalent in Academia and in many EU countries. An example in US Academia is Mary Ellen O’Connell, the Robert and Marion Short Chair in Law and Research Professor of International Dispute Resolution - Kroc Institute. She is a Vice President at the American Society of International Law and the author of author of The Choice of Law Against Terrorism, 4 J. NAT. SEC. L. & POL’Y 2010. Full pdf at One-Click Download.
Actually, she and I agree on the bolded sentence; except Ms O'Connell has a very limited view of "armed conflict conditions". This is just one example of why, in law, you can't agree automatically to what looks like a good principle. By their works, you will know them.Abstract:
The Obama administration has continued to apply the wartime paradigm first developed by the Bush administration after 9/11 to respond to terrorism. In cases of trials before military commissions, indefinite detention, and targeted killing, the U.S. has continued to claim wartime privileges even with respect to persons and situations far from any battlefield. This article argues that both administrations have made a basic error in the choice of law. Wartime privileges may be claimed when armed conflict conditions prevail as defined by international law. These privileges are not triggered by declarations or policy preferences.
As to OBL, The Death of bin Laden as a Turning Point, by Mary Ellen O'Connell (4 May 2011) - good statement of her position (contrary to mine). Also read the comments to her article - views at Opinio Juris vary. Her update is summed here, More from O’Connell on bin Laden Killing as Peacetime Use of Force, by Roger Alford (5 May 2011):
No, no, Ms O'Connell - not correct at all; but you believe in what you say. I believe in what I say.The use of lethal force is governed by two types of international law: the law of peace and the law of armed conflict. In peace, international law supports national legal systems when it comes to the resort to force. National systems restrict the use of force to law enforcement authorities — the police, or in special circumstances, the military (I argue here that the SEALs, who are military, kept their use of force at law enforcement levels). Unauthorized persons may resort to force in self-defense if necessary to save a life immediately. Otherwise, using force is considered a crime under international law.
Some crimes are so serious they are outlawed in international law, as well as national law, with the crime of terrorism is a prime example. As an international crime, states around the world have an obligation to suppress terrorism. But in suppressing even the most serious crimes, law enforcement agents must limit the amount of lethal force they use, and excessive force, even in anti-terrorism cases, has been ruled a violation of human rights law by both the European Court of Human Rights [ECHR] and the Inter-American Court.
The ECHR considered a case in 1995 with parallels to the bin Laden raid. In McCann v. The United Kingdom, the court found that members of the elite British SAS used excessive force when they killed IRA members in Gibraltar who were suspected of preparing a bombing. The court found that the operatives should have attempted to arrest the terrorists, instead of shooting them based on intelligence they possessed that the suspects were preparing to use explosives. If the suspects had resisted arrest or attempted to escape, authorities then would have had had the right to resort to lethal force.
This is the law that applied in bin Laden’s case. On May 2, no fighting was going on in Pakistan that would rise to the level of “armed conflict” as defined under international law; Pakistan had to suspend major military operations against militant groups in the country’s tribal areas after the floods of 2010. And despite what some commentators have argued, under international law there is no right to engage in cross-border military force based on the argument that a state is unable or unwilling to deal with the threat themselves. The correct choice of law, therefore, was peacetime law.
So, choice of law is the argument. What the law is under either choice is actually pretty clear to most folks who have studied it.
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As to the Bear's research project (Title 50), also at Opinio Juris, Was the C.I.A. Director in Charge of the Bin Laden Operation? Apparently so. Does It Matter?, by John Dehn
He does not reach a firm conclusion - work still in progress. And, he noted the importance of our topic here; but alas, did not mention SWC:[Major John C. Dehn is an Assistant Professor in the Department of Law, US Military Academy, West Point, NY. He currently teaches International Law and Constitutional and Military Law. He is writing in his personal capacity and his views do not necessarily represent the views of the Department of Defense, the US Army, or the US Military Academy. The analysis presented here stems from his academic research of publicly available sources, not from protected operational information from, or actual involvement in, aspects of this or any other military operation.]
He also cites and quotes some specific Title 50 text.The OBL operation is an example of an evolving and unique relationship between the military and the CIA that is, in my humble opinion, under-examined and under-theorized both with respect to the international and domestic legal frameworks and as an element of civil-military relations. Over at Lawfare, a recent post by Bobby Chesney raises intelligence oversight issues about the OBL operation, which seems to me only one aspect of the necessary constitutional/domestic legal analysis. Ben Wittes solicited Mary Ellen O’Connell — twice – for her views on the international legal framework applicable to the operation. Her post below seems to present an implausible view of the attack as a law-enforcement operation. Assuming it is best characterized as a military operation conducted to IHL standards, as Kevin and Michael both seem to agree, may the C.I.A. lawfully oversee it?
--------------------------------
Ah, the riddle question (as originally stated with emphasis added):
Please note and renote "as used in the AUMF".from sw
Could you throw up the definitions of "lawful combatant" and and "unlawful combatant" as used in the AUMF?
Let's look (text in Wiki). Gee, "combatant" ain't in the 2001 AUMF. How about that ?
The question often is a debating question - leading to "ain't in the 2001 AUMF; thence, can't be in the rules of situations covered by the 2001 AUMF; hence, you are guilty of war crimes."
Now, there is a link up between the 2001 AUMF (no combatant definitions)and the 2007 Navy Handbook (definitions) - 5.4.1.1 Lawful Enemy Combatants and 5.4.1.2 Unlawful Enemy Combatants. Gee, how could I have missed those sections. Oh, I didn't miss them - I just gave the cites to them, in The Rules - Engaging HVTs & OBL (the OP):
How mean of me to miss the evening feeding.5.4.1 Combatants
Combatants are persons engaged in hostilities during an armed conflict. Combatants can be lawful or unlawful.
The term “enemy combatant” refers to a person engaged in hostilities against the United States or its coalition partners during an armed conflict. The term “enemy combatant” also includes both “lawful enemy combatants” and “unlawful enemy combatants.”
and:
8.2.1 Lawful Combatants
Lawful combatants (see paragraph 5.4.1.1) are subject to attack at anytime during hostilities unless they are hors de combat (see paragraph 8.2.3).
8.2.2 Unlawful Combatants
Unlawful combatants (see paragraph 5.4.1.2) who are members of forces or parties declared hostile by competent authority are subject to attack at anytime during hostilities unless they are hors de combat (see paragraph 8.2.3).
Whoever is interested in learning something can follow my leads from the AUMF (methodology in a prior post) and come up with the answers.
Regards
Mike
Hi Bill,
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:
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):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.
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
So, what happened to
?
Well thank you for showing exactly how you misinterpreted my "as originally stated with emphasis added" question. Takes a big man to admit that. Because as I "note and renote [sic] "as used in the AUMF", i still don't know how (deleted by Moderator) I suggested you "Gee, how could I have missed those sections." Further, by attempting to assign an argument which I have not made: ("The question often is a debating question - leading to "ain't in the 2001 AUMF; thence, can't be in the rules of situations covered by the 2001 AUMF; hence, you are guilty of war crimes.") (deleted by Moderator).
Last edited by davidbfpo; 05-06-2011 at 02:48 PM. Reason: Moderator at work
I like it!
Hmmm....definitely like the new uniform... not only do the leather leggings reflect adaptation to the situation but also the mockensons show the implemented of the latest stealth technology and the dash of treachery a good tactician learns in dealing with the enemy.
As for the weapon...any weapon that has a caliber of 45 or greater is always welcome.
Now in researching these Marines I fouund this:
We need to analyse this phote for a sec or two. The good sargeant was stationed at Fout Toulouse (AL assuming) in 1730. He was 44 at the time. He passed (at the fort and still on duty) in 1755 probably 68+ years old. So... stationed at the fort from 44 to 68 AND the marker is dedicated to his proliferation or as he is a "progentor" (for you Marines out there that means forefather) of ALL Fontenots on North America...quite the reputation...and we thought George Washingtom slept in a lot of places. Moral of the story...at least one fort commander realize that the speed and agility of youth is equal to or less than the experience and knowledge of (shall we say) a mature warrior. jmm99 - the pic shows there is still hope for us old guys.
From my link in the first post, On the Legality of Killing UBL Even If He Was Unarmed (and On the Title 50 Issue) - sneaky old ba$tard that I am, I hyperlinked in the OP the first half of the title, which I discussed in the OP - you will find:
Moving on to the post cited, Further Thoughts on Congressional Oversight, the UBL Operation, and the Title 10/Title 50 Issue:
Some specific statutes cited, etc. - basically War Powers and Congressional Oversight. You are an inquisitive bear, aren't you ? That's good.
----------------------------
Side issue
I'm getting tired wearing a dress uniform, carrying around a slung 63" 1728 Charlesville fusil.
Perhaps, a new avatar of my Troupe de la Marine in the more normal uniform of the Great Lakes - and more "carbined" fusil.
What think thee, Great White Bear (and anyone else) - still a .69 cal. ball.
Regards
Mike
Very briefly,
I'd suspect that 99.9% of any surveyed country would not know, and could care less about, differing views of UNC Art. 2(4). On the other hand, far more folks (over the Globe) have more definite and divergent views on "gun control" (depending on how one defines "gun control").
As to a "serious threat", I don't see Mary Ellen O'Connell as a "threat" to me in any form; and I'm sure not going to threaten her or anyone else with physical harm.
As I said, it's a "Political Struggle". As to that, some will support your political beliefs, others will oppose them; but most people on most issues are neutral or leaners.
Thus, he or she who says "if you are not for me (my beliefs), you are against me (my beliefs)", has elected to make many, many enemies.
Cheers
Mike
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