The Rules - Engaging HVTs & OBL

[jmm99]

The legal positions (definitely plural) are described in Pakistan's Sovereignty and the Killing of Osama Bin Laden, by Ashley S. Deeks, referenced in my post #21 above.

My own analysis starts with a first proposition that India, Pstan, Astan and the US are all 1949 Geneva states; have not accepted 1977 AP I and AP II in toto; and accept the Hague regulations. My second proposition is that a 1949 Geneva nation may engage in an armed conflict with a non-state actor (a "Power" in the conflict, which has an option to accept and apply 1949 Geneva under Common Article 2 and generally will come under Common Article 3).

The third proposition is that the Hague regulations impose duties on a neutral state, Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. The Hague, 18 October 1907:

Art. 2. Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power.

Art. 3. Belligerents are likewise forbidden to:

(a) Erect on the territory of a neutral Power a wireless telegraphy station or other apparatus forthe purpose of communicating with belligerent forces on land or sea

(b) Use any installation of this kind established by them before the war on the territory of a neutral Power for purely military purposes, and which has not been opened for the service of public messages.

Art. 4. Corps of combatants cannot be formed nor recruiting agencies opened on the territory of a neutral Power to assist the belligerents.

Art. 5. A neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory.

From that obligation of the neutral Power, follows the conclusion found in our FM 27-10, The Law of Land Warfare:

520. Effect of Failure to Prevent Violation of Neutrality by Belligerent Troops

Should the neutral State be unable, or fail for any reason, to prevent violations of its neutrality by the troops of one belligerent entering or passing through its territory, the other belligerent may be justified in attacking the enemy forces on this territory.

Of course, simply because you have a hunting license does not mean you should kill everything in the forest.

The real question is not legality, but the likely response - diplomatic protest vice nuclear warhead.

Regards

Mike

[LawVol]

Well said, Mike. Sometimes the legal part can be quite simple. Nearly ten years of inability or unwillingness on the part of Pakistan to deal with AQ led to this result.

[jmm99]

Although directly aimed at "capture-detention" situations, this "e-book", The Emerging Law of Detention 2.0: The Guantánamo Habeas Cases as Lawmaking, also "informs" our HVT topic, as well as "kill or capture" missions in general. Pdf download of entire book.

Regards

Mike

[Ray]

Mike.

Thanks.

It was helpful.

[jmm99]

The question at the head of Bob Haddick's SWJ column today.

Damned straight ! Fire mission !:



I'll fire the touchhole to blast forth the Lima Bravo Sierra - or, as pictured, the Lima Foxtrot Sierra.

Seriously, I question any suggestion that AG Holder and LA Koh should embark on a lengthy defense of the legal justification for the OBL mission and result. Both of them, before they moved from the private sector to the Obama administration, were dead set against primary reliance on using the Laws of War against "terrs". At some point, they will get wobbly knees.

Ken Anderson, Should John Brennan or Eric Holder Simply Have Quoted Harold Koh?, and UN Special Rapporteurs Demand Information to Justify OBL Killing, and What Holder Should Have Said and Koh Should Say (long version); and John Bellinger, Bin Laden Killing: the Legal Basis (very short version) do a vastly better job because they are writing what they have written before.

Bob asks another question: "The SEALs did their job. Will the lawyers now do theirs?" The jobs are not remotely comparable. That being said, the small legal contingent at SWC is trying. Is our readership getting it ? I can't tell without feedback.

Regards

Mike

[Ken White]

Seriously, I question any suggestion that AG Holder and LA Koh should embark on a lengthy defense of the legal justification for the OBL mission and result...At some point, they will get wobbly knees.

...very much agree with that...

Is our readership getting it ? I can't tell without feedback.

... think I do -- and I very much appreciate the effort that goes into it.

[jmm99]

I do want feedback. However, it would help if I spelled out the type of feedback that I think would be helpful to this topic - in general, as applied to future "kill or capture" missions.

Primo: The following are questions for non-lawyers. The number of lawyers around here are less than two handfuls of fingers.

Here's the primary question:

What standard(s) of "proof" should be used by an operator in a "kill or capture" mission ?

The standard of "proof" could be different for a "kill" vice a "capture".

First, some "working definitions".

As to the "Facts" ("Proof"):

Facts of the Event - all "evidence" (what a non-lawyer would take as material and credible) known to the operator before and during the event.

Facts of the Case - all evidence admitted in a subsequent proceeding to investigate or determine the event's legality.

In terms of the operator, the Facts of the Event should be the primary test since that is what he knew at the scene. The operator cannot be blamed for what he did not know (such as after-acquired evidence), or what is excluded by the Rules of Evidence. However, after-acquired exculpatory evidence should be considered - if afterwards, there is a "Case".

As to the Standards of Proof (as argued in Gitmo capture-detention cases - in my "more formal" Lima Bravo Sierra terms - OK, a concession to Stan ):

1. Preponderence of the evidence - "advance the ball to the 50 yard line + a nose"

2. Clear and Convincing Evidence - "advance the ball to usually successful field goal range."

3. Beyond a Reasonable Doubt - "advance the ball to the red zone or first and goal."

The higher standards (2 & 3) have been argued by detainees in the Gitmo habeas cases; and have been rejected by the DC Circuit in a number of cases. The standard used by that court has been "1. Preponderence of the evidence" (i.e., it is more likely than not that the captive-detainee was a "bad guy").

Note that, if "preponderence" is not met, it is more likely than not that the target is NOT a "bad guy".

The DC Circuit has suggested that a different, less restrictive standard might apply in capture-detention cases. Perhaps, some sort of "reasonable suspicion" standard might be developed - say, advancing the ball to somewhere between the 20 and 50 yard lines. In short, capture, detain and investigate (to reach or not reach the "preponderence standard"). Consider that possibility in your analysis.

Again, the standard of proof need not be the same for "kill" and for "capture".

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Here is why a Standard of Proof, consistent with reasonable military conduct employed by the operator, is important. It is so Neal Puckett or someone else can assert a Rule 916 Justification Defense in the operator's court-martial.

How to Keep Military Personnel from Going to Jail for Doing the Right Thing: Jurisdiction, ROE & the Rules of Deadly Force, Lieutenant Colonel W. A. Stafford, United States Marine Corps, Assistant Staff Judge Advocate, United States Southern Command, Miami, Florida (NOVEMBER 2000 20 THE ARMY LAWYER • DA PAM 27-50-336)

In addition to the defenses of self-defense and defense of others, military criminal law allows defenses of “legal duty” and “obedience to orders” as justification for homicide and assault.[194] However, to meet the justification of “legal duty,” the duty must be “legal” and “imposed by statute, regulation, or order.”[195] Similarly, the defense of “obedience to orders” fails if the accused subjectively or objectively knew the orders were unlawful.[196] Consequently, if the Standing ROE or Rules of Deadly Force are not grounded in law, a serviceperson could be held liable under the Uniform Code of Military Justice for exceeding the law.[197]

194. MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 916(c)-(e) [hereinafter MCM]. Under military law, homicide and assault are justified in self-defense and defense of another based on a reasonable apprehension that death or grievous bodily harm is “about to be inflicted” wrongfully. See id. R.C.M. 916(e).

195. Id. R.C.M. 916(c), discussion. “A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful . . . . The duty may be imposed by statute, regulation, or order.” Id. (emphasis added).

196. Id. R.C.M. 916(d). “It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.” Id.

197. If a killing or assault under the ROE or Rules of Deadly Force is unlawful, and the defenses of self-defense, defense of others, legal duty, or obedience to orders do not apply, a military member could be found guilty of murder or assault. See UCMJ arts. 118(b), 128; MCM, supra note 194, R.C.M. 916(c)-(e). Under the UCMJ, the elements of murder with “[i]ntent to kill or inflict great bodily harm” are: “(a) That a certain named or described person is dead; (b) That the death resulted from the act or omission of the accused; (c) That the killing was unlawful; and (d) That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon a person.” UCMJ art. 118(b)(2). The elements of “[a]ssault consummated by a battery” are “(a) That the accused did bodily harm to a certain person; and (b) That the bodily harm was done with unlawful force or violence.” Id. art. 128(b)(2). Murder with intent to kill or inflict great bodily harm carries “such punishment other than death as a court-martial may direct,” including life imprisonment, a dishonorable discharge (for enlisted) or dismissal (for officers), and forfeiture of all pay and allowances. Id. art. 118(e). Assault carries a maximum punishment of dishonorable discharge, total forfeitures, and ten years confinement (for “[a]ssault in which grievous bodily harm is intentionally inflicted . . . with a loaded firearm”). Id. art. 128(e).

I don't know "why" many of these guys who write about combat rules are USMC; but they are (Mark Martins, of course, being a very notable exception).

Opinions about a specific event can differ, PBS, Rules of Engagement (eight interviews with Bing West, Josh White, Gen. James Conway, Neal Puckett, Lt. Col. David Bolgiano, Tim McGirk, Lucian Read, Gary Solis) - Full interview with Gen. Conway. Da Bear will have comments on this aspect of Kilo Coy.

My conclusion is that it is the job of the superior military officers (not their lawyers) to bring clarity to the rules. Lawyers can draft clear rules only when their superiors submit clear intent and guidance. To be blunt: A lawyer who is given free rein by his client (who then abdicates the scene) has a fool for a client.

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Now, our short case study - where clarity in spelling out the ROEs was not a military virtue (in the Corps, no less ).

IRAQ: To shoot or not to shoot is the question, July 2, 2008 (LA Times):

In the end, the criminal case against Marine sniper Sgt. Johnny Winnick (pictured) may boil down to the simplest but yet most confounding question facing troops in Iraq: When can a Marine or soldier use deadly force against a suspected insurgent?

It's a question not even supposed experts can agree on. During the preliminary hearing completed Wednesday, a Marine lieutenant testified that he asked two majors — one a lawyer, the other a battalion executive officer — and got contradictory explanations.

Winnick is charged with manslaughter and assault for killing two Syrians and wounding two others.

Winnick says he opened fire because he believed the men were planting a roadside bomb, but no bomb was found. His superiors say he lacked the "positive identification" and "reasonable certainty'' needed to squeeze the trigger.

But what do those terms mean, particularly for snipers whose job is to kill the enemy from ambush at long range?

Winnick's attorney, Gary Myers, tried to get one of Winnick's fellow snipers to define "reasonable certainty." The young Marine said that, well, reasonable certainty means being reasonably certain.

"This is all words," said an exasperated Myers.

An officer testified that reasonable certainty means being "85% certain." Another said it means being "pretty damn sure."

A Pentagon expert [JMM: David Bolgiano] called by Myers disagreed with the "85% certain" rule. He thinks young troops are being given confusing and contradictory guidelines by their superiors. He's written about his concerns in a tome titled "Combat Self-Defense: How to Save America's Warriors From Risk-Adverse Commanders and Their Lawyers."

What Standard(s) of "Proof" (expressed in your terms; not necessarily in "legal terms") would you like to see in "kill or capture" missions. E.g., you might suggest one standard for "kill" and another for "capture".

This question (IMO) is probably best answered by those with combat experience of one kind or the other; although as Jedburgh long ago advised me - let the thread go where the thread goes.

Regards

Mike