COIN comes home to assist policing

[jmm99]

The monograph is certainly on point in suggesting that a closer educational relationship should exist between SOFs and LEAs. I'd say that, where the outcome hinges on the quality of local governance, seeking guidance from those in the civil and criminal justice system is simply logical.

Where the author (a non-lawyer) jumps the track (to some extent) is in the section "Criminalization of Terrorism" (pp. 72-75), particularly in citing LTC Mike Hoffman's 2005 article, Rescuing the Law of War: A Way Forward in an Era of Global Terrorism; and then not following up on how LTC Hoffman's 2005 recommendations were treated in terms of what US courts have held since then.

Thus, the author says:

The issue of how to deal with terrorism is not new, nor is the debate concerning whether terrorist acts constitute war or a crime.[192] The lines are certainly blurred when terrorist actions are embedded in a war zone and constitute a basic tactic employed by the adversary. Since 9/11 and the inception of the GWOT, the debate has intensified with serious concerns about how to deal with perpetrators. A review of terrorists’ prosecutions by Michael Hoffman in Parameters noted, “Terrorists are gaining an astonishing legal edge over the U.S.” The rights and privileges they are now afforded exceed those of enemy soldiers or even insurgents in civil conflicts.[193] The implications for SOF are significant as they, like law enforcement officers, are often the people who are executing operations that bring them into direct contact with the terrorists and must then meet legal challenges. Hoffman indicated that this trend would increase.

No doubt that Hoffman wrote what was quoted; but Hoffman (vice the Rule of Law trend he saw in 2005) recommended instead a Laws of War approach (snip from his 2005 Parameters article):

A Way Forward

The judicial branch of government is the one least qualified to apply the laws of war and determine national security policy, but these issues are undeniably generating crucial legal questions, and the courts consider it their duty to move with rapidity when urgent issues come before them. Though an incremental approach to these issues by the executive and legislative branches reflects their appreciation of the complexities involved, this leaves a gap that the courts are quickly filling.

32/33

When applied against post-9/11 challenges, earlier American state practice arguably can be used to support either a pragmatic law-of-war approach or an utterly impractical law-enforcement approach. In the absence of a firm law-of-war framework, the courts are furnishing their own answers. There is simply no time to spare if the executive and legislative branches want to weigh in with alternative answers. The following two principles offer a way forward.

• Terrorist warfare represents a form of unlawful belligerency that sovereign states can meet by adapting customary rules of war.

Not all warfare is necessarily covered by the Geneva Conventions, and where it isn’t, the customary law of war should apply. The 9/11 Commission observed that such rules can form the basis for an operational response to terrorism.[24] The executive branch needs to establish clear, firm guidelines for the application of the customary rules of war in operations against unlawful belligerents. Legal issues will arise that haven’t been foreseen, but that’s inherent to all military operations and they will have to be addressed as they arise. There is little time, however, to build a complete customary law-of-war framework ad hoc, and relying upon the judicial branch to sort out uncertainties in the rules of war is not an option.

• The customary laws of war, when adapted for conflict with unlawful belligerents, must always incorporate rules of humanitarian restraint.

Any set of customary rules of war adapted for this purpose will have to include rules for humanitarian protection of civilians and military captives. There simply is no getting around this. While certain rules found in the Geneva Conventions may not be appropriate or obligatory when dealing with terrorist organizations (e.g., the rule limiting the scope of questions that prisoners of war are obligated to answer[25]) there are still lines that can’t be crossed.

The US courts involved in the Gitmo cases (SCOTUS, DC Circuit and DC District) have applied the Laws of War - primarily developing Common Article 3 - since 2005. Those courts generally have followed Hoffman's advice.

So, if an SOF trooper is proceeding against terrorists under US law, he is not subject to LE rules - unless (1) the ROE/RUF have been tightened to incorporate LE rules (e.g., if EU-NATO rules are being used in an ISAF context); or (2) if a SOFA (or other HN agreement) requires the local Rule of Law to apply (as in Iraq, and in Astan under some circumstances).

The exceptions to the application of the Laws of War are not something imposed by US courts. They have been imposed by political, diplomatic and military considerations (e.g., "best practices COIN"). That conglomeration of the Rule of Law and Laws of War has led to a much stickier quagmire than COL Alexander describes in his monograph.

More directly to the use of police (including paramilitary police) in "COIN" is this JSOU monograph by Joseph D. Celeski, Policing and Law Enforcement in COIN — the Thick Blue Line (2009).

A snip indicating his perspective agrees with mine:

7. Conclusions

The primary frontline COIN force is often the police, not the military. The primary COIN objective is to enable local institutions. Therefore, supporting the police is essential.

The ability to prevent an outbreak of insurgent activities rests on the perceived legitimacy of the government to provide its citizens security, rule of law, and a better way of life within some type of moral framework acceptable to the culture. When effective, police and law enforcement institutions can control just about any level of criminality and violence to a level acceptable to the populace. If the violence emanates from the armed actions of insurgents, police and law enforcement retain the capabilities to manage the situation at an acceptable level—that is, if the government correctly identifies the origins of the violence as insurgent in nature. If policing efforts cannot contain the insurgent threat, then they must either be reinforced or the government must choose to inject military might to defeat the insurgency.

Whether the government chooses a course of action to reinforce policing measures or deploy its military, maintaining the rule of law will remain paramount throughout the crisis to buttress legitimacy. In order to prevent a protracted conflict, which is a central component of insurgent strategy, combined military and paramilitary policing efforts, while simultaneously continuing community policing, are often the best method to defeat the enemy and return society to a level of law enforcement reasonable to control societal violence.

The police and law enforcement sectors are key enablers for the COIN practitioner. The police and law enforcement organizations often outnumber the personnel in the military, are closest to the problem, and are normally the first responders to insurgent violence. Conversely, a low level of perceived legitimacy on the part of the populace towards its law enforcement institutions, often due to corruption and ineptness within the police, can almost guarantee that the COIN effort will become more difficult in achieving its objectives.

COL Celeski's article seems more practical (IMO).

Regards

Mike