Capture, Detain and COIN: merged thread

[Bob's World]

There is no good answer, and to continue to try to "control" this process only mires us more deeply into it.

To be a soldier is not a crime. When a war is over, POWs are released.

Ok, you say, but this is a different type of warfare, where both parties are not states, and these guys are by definition breaking the law when they take up arms to challenge the state. All very true.

But consider US law on this topic: "But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

Key words are "right" and "duty." Under the law, a right is something that cannot be taken away; and a duty is something that one must do. In this case that right and that duty are to rise up in insurgency.

The US is probably the only nation in the world that would dare to incorporate such an inflammable piece of populace empowering language into the fabric of its doctrine, but we did and it in large part defines what we stand for as a people and a nation.

I don't make this stuff up, its right there at the heart of our Declaration of Independence. While I cannot speak for how we will deal with the problem of detainees, I for one would release them all today before I would compromise that document. My preference though, is to allow the Host Nations to resolve this based on their own laws.

Similarly, I would not be so arrogant as to tell them what those laws should be or how they should interpret them to achieve a result favorable to me as a foreigner, because:
"...it is the Right of the People ...to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

The defense of these ideals, and others like them, are why I put on a uniform every day, and there is no detainee in the world worth compromising them over.

[wm]

But consider US law on this topic: "But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

Key words are "right" and "duty." Under the law, a right is something that cannot be taken away; and a duty is something that one must do. In this case that right and that duty are to rise up in insurgency.
. . .

The defense of these ideals, and others like them, are why I put on a uniform every day, and there is no detainee in the world worth compromising them over.

Maybe I'm picking nits, but the last time I checked, the Declaration of Independence was not US Law. Also I think that rights and duties, as used in the Declaration, are moral, not legal, concepts. However, I concur that the ideals the Declaration espouses are noble and ought to constrain how the US conducts itself vis-a-vis other nations, whether viable or failing. I hate to think of the US as being lumped in the same category as HRH George III of England and his ministers.

[Bob's World]

Some days I think we have grown up and become our parents. I would hate to think that that is as inevitable for nation as it is for a man.

[wm]

Some days I think we have grown up and become our parents. I would hate to think that that is as inevitable for nation as it is for a man.

Nations, as was pointed out long ago by Thomas Hobbes in Leviathan, are artificial persons, just as corporations are. We can and do make judgments about them just as we do about our neighbors and the folks we see on the nightly news or American Idol. Maybe we rush to judgment in doing so, but that, I suispect, is part of who and what we are as finitely rational beings who are also creatures of need.

[Bob's World]

Maybe I'm picking nits, but the last time I checked, the Declaration of Independence was not US Law.

You may be right, but we probably talk way too much these days about "the rule of law." The fact is that the rule of law, or blackletter law, has never been adequate in providing justice. I had a contracts professor who was as brilliant as he was ecentric, and his area of specialty was "Equity," or the common law. Concepts such as "good faith" and "fair dealing" are central to the concept of equity; and are a hedge against black letter law that at times leaves little room for "justice" in its pursuit cleancut right and wrong.

http://en.wikipedia.org/wiki/Equity_(law)

So, though I may be completely wrong on this, I am very comfortable in taking the positon that our "law" is the totality of many things; and just as legislation is defined by both regulations and case law, so to do items like our declaration and even the uncodified express intent of lawmakers and judges contribute to the laws of this land.

"rule of law" is a good soundbite, but it leaves a lot on the cutting room floor.

[wm]

So, though I may be completely wrong on this, I am very comfortable in taking the positon that our "law" is the totality of many things; and just as legislation is defined by both regulations and case law, so to do items like our declaration and even the uncodified express intent of lawmakers and judges contribute to the laws of this land.

"rule of law" is a good soundbite, but it leaves a lot on the cutting room floor.

Who we are as a nation (our national character if you will) is much more about things like thevalues expressed in the Declaration and how we treat each other. It is much less about the laws we pass or the legislators and judge's intent in their passage and rulings. For example, I think that only after sunset is it illegal to beat one's wife in Georgia (don't want those screams disturbing the neighbors' repose). Regardless of what this law says, we tend to think these days that good folks in America just don't beat their spouses--that's national character and has nothing to do with what the law says or was intended to say. I'd add that SCOTUS rulings tend to be about national character, but not always.

[Ken White]

Finally answered himself.

"what is the cause of this and what steps are we as a force taking to expedite these hearings?
. . .
While most Americans sleep ignorant (intentionally or not) there is a nagging voice in my head that asks why can't we move this along, whether using Iraqi standards of justice our our own.
. . .
The question still remains - what system or processes are in place to facilitate this occurring?

the answer:

Turning it completely to the HN is likely not going to be a success as I would define it (conviction of the defendant), and therefore to me cannot be a viable COA. ... Again, I don't suspect that we will find resolution here.

True, not likely to be a success -- but the only real option we have ever had. As for right to a hearing, etc. -- true under US law and and general practice but not really appropriate for a combat area, it's in the 'too hard' and 'negative return for effort expended' boxes. IOW, it would be nice but realistically it would turn into a legal and political bucket of worms that would satisfy no one.

[Jason Port]

So thanks to all responding to the initial question which as Ken points out, I likely answered part of myself. I was just trying to find some ground truth.

On the other hand, this debate is worthwhile. As was pointed out we have a few "controlling" documents here -

- the Geneva Convention, which governs the rule of war, and which I would suggest has an outdated definition of soldier in the current unconventional fight.

- Hobbes' definition of a nation - or frankly any definition, which defines it not in the context of borders but rather in the context of associated people, whether tribal, religious, or even more loosely as organizations. The Pashtun tribe of Afghanistan and Pakistan are more united than most countries could hope.

- Our laws - within which I would include the Declaration of Independence, our Constitution, or even our regulations for civil and criminal laws. These govern what is right and wrong and what happens when someone violates our code – and further, as WM points out, should act as our guide in defining to what standard of behavior we should hold ourselves.

- The laws of the HN – Naturally, crimes committed in the HN are under the jurisdiction of the HN, but the spirit of the definitions of nation by Hobbes, and of soldier in the Geneva Convention must be examined in this context to determine whether the act is criminal or simply a “military” response to the force of another’s aggression. Fortunately, in nations like Iraq, where their code of laws is 5-10 times older than our own and where the burden of proof is lower, and punishments higher, mean that criminals are punished more severely.

Unfortunately, any two of the four of the above will naturally conflict, in the context of the counter insurgency. Our laws, the laws of Iraq, or A-stan, the belief that a nation is only made of borders, and the belief that the Geneva Convention is still a representation of warfare after 60 years bring the conclusion that we need to re-look at the governance of the SASO/COIN environment, especially in post-conventional conflict.

Again, this is purely philosophical, because when a war is over, and soldiers are returned to their parent nation, they don’t continue their vendetta – they shake off the dirt and attempt to leave the grudge at home. In the case of the insurgent, this is not the case. Surrender by AQ will only serve to create splinter groups and further inspire more acts of terror.

[Ken White]

...In the case of the insurgent, this is not the case. Surrender by AQ will only serve to create splinter groups and further inspire more acts of terror.

Lot of former insurgents all over the world have shaken it off and settled down with only occasional lip service to old grudges.

Recall that AQ is itself a splinter group that will further splinter many ways, it's an amorphous collection of folks who come, sign on -- and die or go or hang around. Some will commit more terrorist acts, some will not. Terror has been a technique for thousands of years, it's always been with us. It surges and recedes, almost cyclically. It isn't going away but it will get down to a bearable level.

As they say -- this too will pass