Gitmo and the lawyers!

[Ken White]

What commands ? The context of JW's example suggested a group of good guys acting independently in fact - thus, no assumption of "legalisms" or ROEs for that matter.

Not so, he gave no context, you assumed that -- and it's incorrect.

So, good guys decide what to do individually or do what their commander tells them.

The 'good guys' will determine what to do individually only so much as the situation allows, if the ROE governing contacts say capture, the commander on the ground will almost certainly follow the rules. However, if Joe decides that a given person he sees had been seen before, he may ignore his commanders desires and the ROE -- IF he thinks he can get away with it. That is far from an unknown phenomenon.

Aside from capture (detention), accepting surrender and leave in place is another (lots of variations here if you have an imagination - which you do).

Thank you for the acknowledgment of my imagination; an accolade from the cretaor of the Chimps...

I see - OK to kill them (#3), but not disable them (BTW a necessary wounding assuming your team cannot detain prisoners). More humane to kill than to maim. Perhaps true to a majority of Americans.

Correct in my observation and experience -- not in my imagination; yours is the one that went to maiming.

Nope, won't let you cop out so easily

Watch it. I'm not trying to cop out of anything.

- BTW: agreed that there is a lot of slack in a firefight & so, a surrender is a risky proposition until the situation becomes stable. I'm assuming a stable situation after the firefight, where the choice has to be premeditated and deliberate.

There you go with the ass u me bit again. That is very unlikely to occur, the chances of detection are too great and penalties for doing that are too severe. If it occurs, it will be in the heat of a firefight or not at all.

(omitted as unnecessary)... let's simplify this. Mission (one person team) is to get from point A to B. AQ retread (one person) fights and surrenders. Your (or my) choice is (1) detain AQ as captive, bring AQ back to A and abort mission; or possibly leave him in place in some way so he won't screw up you getting to B; or (2) disable him so he probably won't screw up you getting to B; or (3) kill AQ so he will not screw up you getting to B (and also correcting the screwup in someone releasing him in the first place). Add to it: no Operational Law Handbooks, ROEs, etc. - in short, only White's Law (or McCarthy's Law) applies.

I strongly doubt anyone can say what they'd do in your hypothetical situation; you say "'one person team" and if that means an individual operating alone (improbable but possible) then none can accurately say what they would do in a situation until they're in that situation, there are simply too many variables.

I don't think that situation is that simple - and probably has no correct answer. However, your move ...

It never is; few do; and I'm not moving anywhere.

What is your factual basis for the assertion that the book is fiction. Since I'm a Dalton Fury neutral, I stand to be educated by facts. If the man is "not factually accurate" (he says the book is fact), I'd like to hear the facts.

My factual basis is that he could not tell everything that occurred in the book due to the classification of the actions involved, that his was not the only unit that had that mission and thus that his book may be mostly fact -- but cannot be totally so. I used the word 'fiction' simply to point out that his book, like many others will ALWAYS leave out some things and will be a one person view of what occurred and thus not all encompassing. Memoirs and "I was there" books are seldom totally factual, they cannot be for a variety of reasons, thus there's always an element of fiction or "I think what happened was...' I can also say that I hear among his former compatriots there are mixed emotions about that specific book

...I would add that our troopers see even less reciprocity where American detainees in AQ hands are beheaded, mutilated, etc.

Based on what I hear, they seem to be very much aware of that; the word is that avoiding capture is paramount...

Trying to figure why you read me wrong.

It's an imperfect medium for communication; my excessive wordiness is an attempt to add clarity in view of the lack of expression and context due to the medium; even that frequently doesn't work as this exchange shows -- as one of my kids says, the internet doesn't do nuance...

[jmm99]

Thank you for the acknowledgment of my imagination; an accolade from the creator of the Chimps...

Nope, I can't claim credit for invention of the Chimps and the Gorilla. That credit belongs to this guy, whose post #70 (13 Nov 2008) can be found here; and who said:

That does not mean that we need to continue our current approaches and 'strategies.' No one messes with 600 pound Gorillas -- unless the gorilla proves himself so utterly lacking in agility that he can be annoyed to distraction if not defeated by a young chimpanzee...

That's where we are. If I weighed 600 pounds, I'd stay out of the Chimps cage but if one got close to me, I'd just kill him. Other than that, I'd leave them alone if they left me alone. Some of them -- not most -- would be likely to respond by standing off at a distance and throwing whatever came to hand. Not a prob; I can throw also -- and bigger stuff, harder -- and should be willing to prove that to them at the slightest provocation. They'll soon quit...

I liked this zoo example then and still do - gets down to the basic equation, without evasion and escape.

As to the rest of your "Counter factual?", I'll be back after a little bit of simian contemplation.

[jmm99]

always too many variables - in real life.

My factual basis is that he could not tell everything that occurred in the book due to the classification of the actions involved, that his was not the only unit that had that mission and thus that his book may be mostly fact -- but cannot be totally so. I used the word 'fiction' simply to point out that his book, like many others will ALWAYS leave out some things and will be a one person view of what occurred and thus not all encompassing. Memoirs and "I was there" books are seldom totally factual, they cannot be for a variety of reasons, thus there's always an element of fiction or "I think what happened was...'

Totally agreed. BTW: "fiction" IMO is a bad word (sound bite) in this situation, since some would read it as a charge of fabrication and lying on the author's part. Perhaps, "factually incomplete" or "context incomplete" would be better - nuff said, since I don't like semantic arguments.

So, what do we do when the context is incomplete and there are too many variables - I suggest that applies to all real life situations ? Thus,

1. Freeze like a deer in the headlights - "Oh, I just don't have enough facts. There are just so many variables. Oh God, what shall I do ?" Not a good place for complex planning.

2. Jump right or jump left. One or both options may be wrong - you still may be dead. Perhaps better if you'd a thunk out some options (simplified hypotheticals) ahead of time and practiced them. Anyway, not a time and place to re-invent the wheel.

-----------------------
and I agree with your kid:

It's an imperfect medium for communication; my excessive wordiness is an attempt to add clarity in view of the lack of expression and context due to the medium; even that frequently doesn't work as this exchange shows -- as one of my kids says, the internet doesn't do nuance...

We could get to the point(s) much better and quicker if we were sitting on your back porch with beers and bourbons - "candy is dandy, but liquor is quicker". Not on my back porch, cuz we's a heading for 200" right quickly. Have to eat something and blow snow.

PS: No problem with your "excessive wordines" cuz I don't think it's excessive. But, you certainly are a master of verbal escape and evasion - not a bad thing BTW. Working backwards from the bottom to the top of your post - "I shall return".

[Ken White]

Nope, I can't claim credit for invention of the Chimps and the Gorilla. That credit belongs to this guy, whose post #70 (13 Nov 2008) can be found here; and who said...

a simple one shot metaphor may be credited for the invention thereof but it doesn't seem to me that it equals in imagination the adoption and multiple uses??? LINK, Many, many LINKS -- I suppose one could argue that for hours on end...

[Ken White]

..you certainly are a master of verbal escape and evasion - not a bad thing BTW.

Attorneys. Sort of a learn by doing thing...

If anyone wants a straight answer from me, all they have to do is ask a straight question. Attempts to tap dance on the head of a pin OTOH will usually draw a broadly similar response. I really prefer straight talk as opposed to dazzling with footwork but am prepared to play either way. Always remember, snark draws snark as they say...

[jmm99]

I have many friends who are ... Attorneys. Sort of a learn by doing thing...

I like that one also.

This also seems a factually accurate statement (unfortunately based only on what you write - neither one of us can accurately assess the realities that attach to the other one - an Internet defect).

I really prefer straight talk as opposed to dazzling with footwork but am prepared to play either way.

Also accurate:

... but it doesn't seem to me that it equals in imagination the adoption and multiple uses???

Which can be a strength or a weakness. Usually a strength for me, but sometimes running with the ball ends up in getting clobbered.

Snow !!

[Ken White]

Snow !!

But please, please, keep it up there. It's 29°F here now and that's enough winter wonderland stuff, thank you...

[reed11b]

But please, please, keep it up there. It's 29°F here now and that's enough winter wonderland stuff, thank you...

Perhaps you should move up here to Alaska, Ken. It is currently 43 degrees here in Anchorage.
Reed

[Steve Blair]

In the 50s here in Montana. We'll take your snow and cold, Ken.

[Ken White]

I know where this (LINK) was before it got there...

Or something like that.

[jmm99]

2F, 162" fallen (as of yesterday) w/ 4"" overnite, 34" of ground cover - a lovely sunny day. And as you can see from this, our trail element is now over St. Louis as the column heads SSE - Hi, Ken.

Back to the main topic later tonite. Had to stop at office to check email, get some $, etc. My paralegal is stuck in SEA for a couple of weeks - poor dear . Too hot for me there.

[jmm99]

I obviously have not been communicating my design and intent here. Let me start by taking a few steps back.

Most questions I address here are interpreted by me to be asking the first question below - even though I realize that the other two questions often lurk in the background.

1. What is the law here ?

2. Is it a good law ?

3. What should the law be ?

What you usually get is my best shot at what the law is - realizing that reasonable people can disagree even as to that basic question. That answer usually doesn't address the other two questions - I may think the law (which I have spent many bytes to explain) is lousy - and that the law should be something else. You could substitute "ROE, SOP, order" for "law" and the process is the same.

It is easy enough to gripe about question 2 ("good, bad, in between"); but it is much harder to answer question 3. To do that you have to stick your neck out and assert your new proposition. Of course, we can simply stay with what we have - leave the law as it is and live with it. Judging from comments about micro-managing JAG officers (and agreements with those comments), there is a disconnect between the law as it is and the people it must serve - the troops in the field.

If you address question 3 "What should the law be ?", you must think outside of the box. That requires hypotheticals - and, yes, assumptions (despite Felix's "ass u me" argument in the Odd Couple episode) to eliminate variables and reduce the initial discussion to a very basic situation(s).

After you have a tentative solution at that stage, facts and variables are added to the mix and the process repeats itself - until you come up with something that you think will work. It may not work in practice - my thought is that a law is but a theory until it is applied in practice. If it doesn't work in practice, go back to the development process.

-------------------------------
Now, so happens I agree with this (that is, your comment):

JMM
... let's simplify this. Mission (one person team) is to get from point A to B. AQ retread (one person) fights and surrenders. Your (or my) choice is (1) detain AQ as captive, bring AQ back to A and abort mission; or possibly leave him in place in some way so he won't screw up you getting to B; or (2) disable him so he probably won't screw up you getting to B; or (3) kill AQ so he will not screw up you getting to B (and also correcting the screwup in someone releasing him in the first place). Add to it: no Operational Law Handbooks, ROEs, etc. - in short, only White's Law (or McCarthy's Law) applies.

Ken
I strongly doubt anyone can say what they'd do in your hypothetical situation; you say "'one person team" and if that means an individual operating alone (improbable but possible) then none can accurately say what they would do in a situation until they're in that situation, there are simply too many variables.

But, here is my problem with my agreement. The law (ROE, whatever) must cover this situation - despite the obvious problem that how an individual might or might not actually act is not a given. I suppose the "law" could be no rules at all - that solves one problem and leaves it entirely up to individual to re-invent the wheel as he sees fit. I really have no problem with that kind of non-law, if it works in practice.

If we move beyond a non-law (that is, absolute individual chioice), then we have to see what individuals think they would do in the hypothetical situation - realizing that it all might be a WAG - and develop our best shot at a rule that might work.

--------------------------------------
You do present some comments that may be the best solution - a form of escape and evasion, which is not necessarily a bad thing.

Ken
The 'good guys' will determine what to do individually only so much as the situation allows, if the ROE governing contacts say capture, the commander on the ground will almost certainly follow the rules. However, if Joe decides that a given person he sees had been seen before, he may ignore his commanders desires and the ROE -- IF he thinks he can get away with it. That is far from an unknown phenomenon.
.....
That is very unlikely to occur, the chances of detection are too great and penalties for doing that are too severe. If it occurs, it will be in the heat of a firefight or not at all.

My problem with that ROE is that it requires people to turn on and off like a light bulb.

Not really satisfied with this presentation either - maybe I should stick with the Operational Law Handbook.

[Ken White]

I understand and agree with the first section of your comment

-------------------------------... But, here is my problem with my agreement. The law (ROE, whatever) must cover this situation - despite the obvious problem that how an individual might or might not actually act is not a given. I suppose the "law" could be no rules at all - that solves one problem and leaves it entirely up to individual to re-invent the wheel as he sees fit. I really have no problem with that kind of non-law, if it works in practice.

The 'law' does cover it -- be it local ROE, the UCMJ, no matter. Legally and regulatorily what must be done is clear. My point is all that not withstanding, no one can tell what they might do in a specific situation until they are in that situation and know what they do of the ramifications. My perception is that most would do what was right but one cannot reliably say everyone will do what's right. One can say "I know what I would do" and then find out that one can or would do something totally surprising. The law is not relevant; it is a consideration but it may-- just may -- be ignored. Survival and and revenge are powerful instincts; mere laziness is not but some few folks don't need much convincing to take the seeming easy way if they think they can without adverse effects on themselves. In a line of work where life is essentially cheap, a different outlook is prevalent to that we can enjoy while we're at home...

If we move beyond a non-law (that is, absolute individual chioice), then we have to see what individuals think they would do in the hypothetical situation - realizing that it all might be a WAG - and develop our best shot at a rule that might work.

Militarily, we're unlikely to ever have a 'non-law' situation so that becomes a non-issue.

You do present some comments that may be the best solution - a form of escape and evasion, which is not necessarily a bad thing.:

"That is very unlikely to occur, the chances of detection are too great and penalties for doing that are too severe. If it occurs, it will be in the heat of a firefight or not at all."

That may be escape and evasion to you but it was what I meant from the beginning. I thought it would be totally obvious to all that any unit indiscipline along that line was quite unlikely (to say the least; everyone is aware of the ROE emphasis, the Haditha myth and charade and other such things) and that any decision to arbitrarily shoot people instead of detaining them in this day and age would have to be an individual and not easily discovered decision. Guess I should've made that clear; Joe is very pragmatic, he doesn't look favorably upon catching the same people over and over but he also doesn't think they're worth a lot of jail time for him. Joe will do what he can get away with and no more.

Let me add, the number of Joes (and they aren't all Privates...) who will take that attitude vary by unit quality. In a good unit, few or none will do that; in one poorly lead, the number who will attempt to bend the rules, any and all rules, goes up. As I said elsewhere, half the units in the army are by definition not as good as the other half...

My problem with that ROE is that it requires people to turn on and off like a light bulb.

Heh. The ROE are the easy part, no matter how dumb they can sometimes be. Combat itself requires people to turn on and off like a light bulb; all day, every day there's a possibility of contact -- and at an unbelievably high rate during contacts. That's what causes most the stress casualties and much of the PTSD. Most people can do it if they have to, a few cannot, quite a few others take to it like a duck to water and it rarely if ever becomes a problem to them.

Most of 'em also obey the rules, even when they can get away with not doing so. My point was only that not everyone can be relied upon to do that and I thought most should and would know the system is tight enough to keep even most of those few honest -- but there's absolutely no way to keep everyone totally honest all the time...

I think you're trying to make the illogical (warfare) into something logical (law). Hard to do...

[jmm99]

I think you're trying too hard, perhaps?

but, not to do this:

I think you're trying to make the illogical (warfare) into something logical (law).

but this: to make law ("something logical"[*]) into something from the illogical (warfare).

[*] Holmes said something along the lines that the life of law is not logic, but experience. In short, if law does not reflect what folks actually do, it fails.

Perhaps, the answer lies here:

... that attitude [will] vary by unit quality. In a good unit, few or none will do that; in one poorly lead, the number who will attempt to bend the rules, any and all rules, goes up.

Thinking aloud, but placing more discretion in the field commander to set the rules, based on the "totality of circumstances" as viewed by him and subject only to some very general guidelines, might do some good. The good units will follow those rules; the poor units are not going to follow the rules set by the gods above anyway.

---------------------------
Why is this so (that is why do folks turn on and off) ?

Combat itself requires people to turn on and off like a light bulb

This is a serious question because the failure of folks to turn off was the primary reason Grotius got into the "laws of war" - which started with more of a suggestion than a commandant - you shouldn't slaughter captives.

So, this issue (detainees, etc.) goes back to the basics.

[Ken White]

Thinking aloud, but placing more discretion in the field commander to set the rules, based on the "totality of circumstances" as viewed by him and subject only to some very general guidelines, might do some good. The good units will follow those rules; the poor units are not going to follow the rules set by the gods above anyway.

You're absolutely correct in my view; the only flaw in your logic is that it will not take care of the (I think very few) outliers. Unfortunately, in this overly litigous and law enamored (not a slam on practicing lawyers; rather one on non practicing lawyers who are legislators and pass stupid laws to convince voters they are 'doing something'...) society, the Army which is only a reflection of the society from which it comes is too highly centralized and distrustful of its own people to do that. We should do it, realize there will ALWAYS be outliers -- and punish those who do wrong; instead, in a futile effort to preclude outliers, we punish everyone with a stifling set of more and more incomprehensible rules. All we do is confuse the Troops and create more outliers due to conflicts between rules...

Shame; because your idea would work...

Why is this so (that is why do folks turn on and off) . . . This is a serious question because the failure of folks to turn off was the primary reason Grotius got into the "laws of war" - which started with more of a suggestion than a commandant - you shouldn't slaughter captives.

So, this issue (detainees, etc.) goes back to the basics.

Goes back to that little factor that many foolish psychologists wrongly say does not exist -- human nature.

People can be confoundedly difficult.

[jmm99]

"....human nature. People can be confoundedly difficult."

after 40 years of dealing (professionally) with the critters.

I should have asked the "turn on, turn off" question more clearly. The "turn on" part has to do with perception of a "danger signal" - correct or amplify if I am off base.

The "turn off" part is what I was getting at. Do most[*] folks turn off killing because (feel free to add to the list):

1. They perceive the danger is past.

2. They are stopped by "postive law" [**], which says "stop killing now".

3. Their "animal" (psychotic) state becomes a "humane" (sane) state.

Assuming that my theory - that operational law must correspond to what is a reality in the field (law serves the soldier; the soldier does not serve the law) - is in force [***], what turns folks off killing will shape how the law is stated.

Your thoughts on this basic question.

------------------------
[*] The reason for "most" is that we are looking for something that will fit a majority of cases. Outliers (like the poor in spirit or units) will always be with us - and can be handled by addenda, exceptions, etc. Have to establish the baseline first.

[**] I am using "postive law" very broadly - not only the "laws of war" (statutes, GCs, UCMJ), but also ROEs and orders (which I realize in doctrine are part of the military operational complex).

[***] I read your comments on the difficulties in selling this - agreed; but first you have to have something to sell. Also agree that the Armed Forces reflect society - and so do lawyers (all those bad "trial lawyers" would disappear quickly if there were few clients who wanted to bring the cases on).

[Ken White]

Seriously.

All three factors or conditions you cite and dozens more are at play and everyone reacts to different stimuli in different ways. What to you may be a reasonably normal situation requiring little or no action may be to me a matter of great urgency requiring immediate departure for safer climes while to Eward Phukabosky, SSgt, USMC it is an incitement to attack, single handedly. What to SGT X may be a minor skirmish may be to LT Y a major engagement while CPT Z is barely aware of the event. LTC AA may be totally oblivious to it and order an action that may be a success or a disaster...

Add to that the fact that the human conscience or concern for right and wrong is (a) infinitely variable between persons; and (b) is very much attuned to the survival instinct -- people one would not think of killing normally can be rapid roadkill without blinking if one feels really threatened and you are, I think, going to have great difficulty having the law serve the soldier; I think it's pretty much going to have to serve society, imperfect as that may be and the soldier is going to have to do his best to comply. Most do that pretty well...

[jmm99]

with any of this.

D. All of the above. ... people one would not think of killing normally can be rapid roadkill without blinking if one feels really threatened ...

What I am looking for is language (a hypothetical "rule of law") that would separate the firefight situation (which you exemplify well in your examples), where there is combatant immunity, from the stable situation afterwards, where that immunity is gone.

Grant you that there will also be a gray area between the two - which is what your examples convey to me. I recognize the drafting issue, but I also think of the doggie who has to do his best to comply with a legal rule [what is it ?] that is not expressed in clear language that recognizes that guy's reality.

Since CJCSI 3121.01B (and its spawn) are mostly off-limits, I'm left with reading such as this and this. So, add a few law books to the body armor and the rest of the load. All this is legalistic tic-tac-toe in an operational setting.

-----------------------
Yup, "serve the soldier" seems a lost concept. But, Admiralty Law, which also serves society, does a pretty good job of serving the merchant marine sailor - both as to rights and obligations. So, it is possible to serve both the larger and smaller (included) interests.

PS Was going too fast and forgot this, which may be important.

... to comply. Most do that pretty well...

What are they complying with ? Perhaps that will solve my problem.

[Ken White]

provide most of the norms of behavior before, during and after a combat engagement. That's why initial training to thoroughly inculcate and embed the basics is so critical. Simply, people will do what they are trained to do -- and will not do things they are trained not to do. In combat, training and instinct take over.

To add other rules, the US has typically given theater or operation specific ROE (or UOF) training and issued ROE cheat sheets or pocket card. When we went to Little Rock, we got a two page UOF guideline direct from the JAG of the whole US of A Army + Division guidance + Arkansas Military District (MG Edwin Walker, Commanding ) guidance; when 11 years later, the Brigade I was in went to Detroit, we didn't get any UOF/ROE guidance other than verbal due to lack of time. No problems either way. In Korea, there were no ROE for all practical purposes, in Viet Nam, everyone got a pocket card. Other places, generally no rules or only a couple of quick verbals, i.e. Try to avoid killing civilians...

A letter sized sheet will be given general compliance, a pocket card gets a little better compliance but the bed rock is the training. Training based on best practice and what is legal is given and is generally adequate.

With respect to use of force (In the US) and the rules of engagement (in a combat area -- nominally overseas but not impossible in the US in some situations); the UOF would get throughly briefed and probably have a pocket card issued. Compliance would be, I believe pretty close to 100% -- with the caveat that the law enforcement like requirement to incapacitate (that's a really dumb law, BTW, says this Father of two Cops...) will cause difficulties from a training and thus a compliance standpoint -- shoot to kill in combat, shoot to wound in domestic situations, that's a hefty shift...

UOF compliance will be good because the troops realize that what they're doing is different and that fellow US citizens are involved. That restraint would lessen were the fellow citizens attempt to employ firearms. ROE compliance lessens a bit due to usually the non-US character of the opponents and due to the fact that others are generally shooting at us...

ROE compliance, OTOH is probably going to hover at ±99% in an Iraq * like situation, ±97% in Afghanistan and at about 90% in most more intense combat situations -- that is due partly to practical difficulties in compliance (i.e. opponents in civilian clothes firing from amidst a group of innocent civilians, firing errors, weapon malfunctions and human error mostly) and partly due to the fact that more intense combat lessens overall concern for human life and the inclination to be totally legal and very careful is lessened; the more intense, the more it is lessened.

* In early 2003, that compliance was probably around 90% or a little better due to more intense combat, less well trained troops and other factors. Compliance ramped up that and each succeeding year as the ROE got more restrictive, training improved and the intensity of conflict lessened.

[jmm99]

is truly amazing. Your explanation fits right into what I've been doing for the last two hours - starting here and reading through to the end. Dated stuff, but now I know the critter with whom we're dealing.

Quick reaction was what mentally challenged "general's son" decided to adopt a "legislative" (aka legalistic) methodology in developing a military operational program.

Looks like the training works - and, on that one, I'll take your word for it. But, it seems to complicate a simpler world - Hague, the GCs and old FM27-10 are not that complex.

What is revolting to me is that, in some (many?) instances, I have as good (and maybe better) self-defense rights as some trooper in what is in reality a war zone (yup, I know, it's "peacekeeping", "crisis management" or a "stability operation").

Anyway, this system looks as poured into concrete as the various systems and structures driven by the defense appropriations process. As an old lawyer once told me re: the Internal Revenue Code and Regulations - don't approach them with logic because there ain't none.