Capture, Detain and COIN: merged thread

[jmm99]

for your consideration:

Memorandum of Understanding between Afghanistan and the United States on Afghanization of Special Operations on Afghan Soil.

Memorandum of Understanding between the Islamic Republic of Afghanistan and the United States of America on Transfer of U.S. Detention Facilities in Afghan Territory to Afghanistan.

Lest we forget:



First Lieutenant Ben Hall, MTU Class of 2005 and former Cadet Battalion Commander, was killed in action on 31 July 2007 in Afghanistan while fighting with the 2nd Battalion, 503rd Infantry Regiment (Airborne), 173rd Airborne Brigade Combat Team, against Taliban forces on the Afghanistan-Pakistan border.

Regards

Mike

[Bob's World]

Mike,

Thanks for posting these. This is so long over due. To this point we have held Afghan Sovereignty in complete disregard, demonstrating through our actions the hollowness of our own words when we toss about terms like "Legitmacy" "Sovereignty" "Justice" and "Respect."

Any government elevated into power by an external nation or other source of power is presumptively illegitmate, regardless of any holdings of any offical legal bodies to the contrary. Legality and legitimacy are not the same thing. In our pursuit of effective and efficient defeat of the Revolutionary and Resistance insurgencies in Afghanistan we have to this point placed the very perceptions of the non-Northern Alliance populaces of Afghanistan that are critical for stability far behind what we saw as reasonably necessary authorities and activities to defeat the insurgent threat.

This is what happens when one comes to see their intervention as being "COIN." The host nation, as sovereign, conducts COIN. The intervening party assisting such a government is conducting FID, and fundamental to FID is the subjugation of ones actions to the sovereignty of that host nation. To do other wise is to make a joke of the very government one seeks to support. It places what one needs to be tactically successful secondary to what one needs in order to be strategically successful.

If this were an American colony and all we needed to do was suppress the insurgent fighters so that our puppet government could get on with serving our interests over those of the nation they run for us, then suppression of this nature is good enough. Though that is what the bulk of our COIN doctrine is based upon, that is not our mission in Afghanistan, and that is not "good enough." This is a big step toward getting right with the people of Afghanistan. GIRoA may well fall, but if they fall it will be because they did not deserve to stand. Either way, Afghanistan is finally on a path toward earning true sovereignty and legitimacy in the eyes of not only their own populace, but the entire world,

Now, I do not know if a Northern Alliance judge issuing a warrant in a Kabul court is going to mean F-all to a Pashtun living in the mountains of Uruzgan Province, or the suburbs of Kandahar. We may be applying an American solution to solve an American problem. I suspect a more recognized forum would be a local shura with village, tribal and religious leaders, who then go as a body to the home in question and ask for the offending citizen of their community, backed by appropriate Afghan security forces. One won't likely find very many guys still at home in such an approach, but that in of itself is a metric of how powerful the insurgency to the current government is in much of the country.

We must learn that it is far better to achieve horrible results doing things right than it is to achieve tremendous results doing things wrong. This is a big step in the right direction, but we are losing control of the situation and effectiveness is out the window. Perfect. For those who are thinking, "we may as well pack up and go home," you are not far wrong.

[jmm99]

My primary foci in this "capture-detain" thread and in its sibling "kill" thread have been on US-owned Title 10 - Title 50 direct actions against HVTs (AQ officers being the type cases). We shall see whether the two 2012 MOUs will impact those particular DAs - e.g., a DA against an AQ officer at a target location in Astan, or a DA launched from Astan soil against an AQ officer located in Pakistan.

What I may not have mentioned here or elsewhere is that Afghanistan has acceded (10 Nov 2009) to the 1977 Additional Protocols I and II of the 1949 Geneva Conventions (link and link). In short, that placed Astan on the same legal playing field as ISAF (UN, EU, NATO), but on a footing different from that of the US (non-accession to APs I & II). AP II is fully cited in Section 1.4 (page 2) of the Special Operations MOU; and in Section 1.2 (page 1) of the Detention Facilities MOU.

The language used (in Section 5 of the Special Operations MOU - .pdf snip attached) seems very exclusive of direct US participation in, say, "house clearings". These two MOUs remind me of the 2008 Iraq "SOFA"; and, if so, the consequences will probably be similar.

I don't get what you mean by this:

from BW
We must learn that it is far better to achieve horrible results doing things right than it is to achieve tremendous results doing things wrong. This is a big step in the right direction, but we are losing control of the situation and effectiveness is out the window. Perfect. For those who are thinking, "we may as well pack up and go home," you are not far wrong.

- the usual "What we have here is a failure to communicate" - a mutual problem, it would seem.

Regards

Mike

[jmm99]

When it first came out a year ago, I mentioned The Emerging Law of Detention 2.0: The Guantanamo Habeas Cases as Lawmaking, by Ben Wittes and Bobby Chesney, as a useful (free) resource. At least two of the chapters have been updated since then. You can download the full monograph (1.35MB, 179pp), or individual chapters.

The introduction (link above) summarizes the monograph's methodology and scope:

This report proceeds in several parts. In the first section, we briefly describe the legal background that gave rise to these habeas corpus cases: the Supreme Courts decisions recognizing federal-court jurisdiction over Guantnamo and addressing to a limited extent the contours of a legal process for detainees adequate to satisfy constitutional concerns. We highlight in particular the extent to which the court left the key questions open, a move that in the absence of further congressional action effectively delegated the writing of the rules to the judiciary.

In the sections that follow, we examine the law as it is developing with respect to several of the most important questions concerning the governance of non-criminal, law-of-war-based detentions. In particular, we look at the judges approaches to the following questions:

the burden of proof;

the substantive scope of the governments detention power;

the question of whether a detainees relationship with an enemy organization, once established, is permanent or whether it can be vitiated by time or events;

whether the government is entitled to presumptions in favor of either the accuracy or authenticity of its evidence;

the use of hearsay evidence;

the use of evidence alleged to result from coercion; and

the governments use of a mosaic theory of evidentiary interpretation.

This term of SCOTUS, eight detainee cases have sought review. So far, review has been denied in two cases.

Regards

Mike

[jmm99]

So held, Judge Katherine Forrest (SDNY, 16 May 2012), in a 68-page opinion, as reported by the Courthouse News Service:

MANHATTAN (CN) - A federal judge granted a preliminary injunction late Wednesday to block provisions of the 2012 National Defense Authorization Act that would allow the military to indefinitely detain anyone it accuses of knowingly or unknowingly supporting terrorism.

Signed by President Barack Obama on New Year's Eve, the 565-page NDAA contains a short paragraph, in statute 1021, letting the military detain anyone it suspects "substantially supported" al-Qaida, the Taliban or "associated forces." The indefinite detention would supposedly last until "the end of hostilities."
...
Weeks after Obama signed the law, Pulitzer Prize-winning journalist Chris Hedges filed a lawsuit against its so-called "Homeland Battlefield" provisions.

Several prominent activists, scholars and politicians subsequently joined the suit, including Pentagon Papers whistle-blower Daniel Ellsberg; Massachusetts Institute of Technology professor Noam Chomsky; Icelandic parliamentarian Birgitta Jonsdottir; Kai Wargalla, an organizer from Occupy London; and Alexa O'Brien, an organizer for the New York-based activist group U.S. Day of Rage.

They call themselves the Freedom Seven.

This decision is contrary to the logic of the DC Circuit cases interpreting the AUMF; but Judge Forrest is in the 2nd Circuit and is not bound by DC Circuit precedents.

Regards

Mike

[davidbfpo]

A small number of threads (eight) found by searching on detention and jail, reviewed and merged here. New title too, thanks to JMM, 'Capture, Detain and COIN: merged thread'.

The catalyst? Creating the new thread 'It's July, time for prison break-outs'