Lawfare - Theory & Practice

[Bob's World]

Mike,

You are correct that the law poses little constraint on this guy. It can't deter him, and it can't retaliate in a way that deters other guys like him in the future. But he is not "at state" for that period in time, because that infers not that he has state-like power, but that he is held to state-like restraints on action. He isn't, and that's what makes him scary.

The only thing a state can really do is:

A. Take these guys serious. They can get to you like never before, and they can come at you with state-like power like never before.

B. Design your long-term foreign policy globally to be implemented in a manner that reduces the motivation and the causation for the numbers of such individuals to expand and also feel compelled to attack you to achieve their ends.

This is why I say the "Friendly Dictator" is an obsolete concept that we need to retire from our quiver of foreign policy arrows. Consider a country like, say, Libya.

Col Q isn't the most good governance focused guy out there. The top Libyan insurgent group that is trying to take him down is the Libyan Islamic Fighting Group (LIFG). These guys are built around a core of former foreign fighters who fought with the Muj in Afghanistan against the Soviets. As Libya was one of the top sources of foreign fighters for Iraq, I suspect many of those had LIFG linkages as well. Their goals are purely nationalist. They don't think Libya is as true to the principles of Islam as it should be under COL Q, and find his government to be "corrupt and oppressive" according to Wikipedia. I suspect that if I drilled into the facts of the matter and could sit down and talk with these guys I would find that they question the legitimacy in their eyes of Qadaffi to rule, that they feel they have no legal, trusted, or certain means to make changes to government; and that most likely the segment of society they draw from feels it is treated with disrespect in some major ways as a matter of status, and quite possibly that they feel that the rule of law as applied to them is unjust. This is Causation. This is what creates the conditions of insurgency within this populace. The LIFG is just a symptom, a group that emerged within those conditions caused by the government to challenge the government.

Now Qadaffi comes to the U.S. and says "Hey, I have AQ in my country. These LIFG guys are AQ and I will help you in the GWOT to defeat AQ is you help me defeat the LIFG/AQ threat here."

OK, yes, AQ is conducting UW in Libya and is targeting LIFG and there is some affiliation there. But AQ is still AQ with its Regional/Global agenda and LIFG is still LIFG with its nationalist agenda. A non-state UW movement meets a nationalist revolutionary insurgency movement.

Now, if the U.S. desperate for allies in the GWOT sees a golden opportunity to bring a Muslim government on board as part of the coalition against AQ (hey, this makes us look better in not being "anti-Muslim", right?) what have we actually done?

Well, what we have done is given these guys motivation to attack the US. They already had causation to exist, and that was nationalist. Their leadership is not a big fan of AQ, but then we come along and make a decision that validates AQ's sales pitch.

So the logical choice of making an ally of Qadaffi and then conducting capacity building with him to leverage his security forces more effectively in the war against AQ in North Africa actually makes the likelihood of terrorist attacks on the US greater. We piled Motivation on top of Causation because we did not properly understand the nature of the insurgency in Libya or the Nature of AQ and their UW operations either one. Pure, Intel-driven, threat-centric lunacy.

Smarter approach is to out-compete AQ for influence with the LIFG. Conduct UW ourselves with them, but promoting non-violent approaches to changing governance that historically are far more successful than violent approaches. This puts the Charlie Bravo on AQ who is peddling violence and hate and could give a rip about Libyan nationalism. At the same time we go to Qadaffi and say we can help him neutralize the LIFG. But he needs to change. We mediate talks between him and the insurgent leadership. Perhaps this is the time for his much more moderate son to step up as leader. What carrots can we put on the table to entice that option? What about LIFG, they raise some good points, what can Libya do to reasonably meet some of these concerns? etc. Taking this approach we REDUCE motivation to attack us, and also help immunize Libya to AQ's UW influence and more effectively accomplish what we hoped to do by helping Qadaffi just put the beat-down on his own populace approach.

How does lawfare come in? Well, there is this problem with Libyan rule of law being perceived as unjust. A focus on promoting Justice (rather than the current misguided promotion of ROL). There also is this matter of the populace not having legal means to affect change of governance. Another good place for the lawyers to help contract mechanisms that make sense in this culture and that are acceptable to all, and that can actually work.

This is the indirect approach for getting at your guy with the WMD. If you do this right with Libya odds are this guy does not come from Libya. He could, but the pool is much smaller as we have had a positive role in reducing both Causation (reducing the conditions of insurgency) and Motivation (not making the US clearly a part of the problem that must be reduced in order to have success at home).

Repeat this approach across the area where AQ is operating as necessary until they become moot for lack of target audience (as we continue to CT the hell out of them and the carefully selected nodes of their UW network, not confusing the insurgencies they leverage for actually being AQ just because they ordered the t-shirt).

I suspect the lawyers have the same problem that the development crowd has. They bring great tools to the table, they bring great people to the table, but they have been handed an incredibly flawed picture of what the problem is by the Intel guys and they really don't understand insurgency and only have what the COIN guys have told them to go off of. But the Intel guys don't really understand WHY this threat exists, just WHO it is. And the COIN guys don't really understand WHY there is insurgency, just what various states have done over time to counter insurgency.

Once we redefine the problem more accurately, I believe we find more appropriate and effective ways to apply the law toward addressing it.

[Bob's World]

As a tag on, Libya is also a great example of a state with "effective" governance (decent standard of living, high literacy, decent infrastructure, etc) but incredibly "poor governance" as I define in my insurgency model as well (Lack of governmental legitimacy from the populace, perceptions of injustice, disrespect, and lack of hope in terms of legal, trusted and certain means to affect change. It is poor governance that creates what I call the "conditions of insurgency" within a populace. How and who exploits those conditions is another matter. The key is to address the conditions, and to understand that the conditions are ALWAYs caused by the government, and assessed as perceived by the affected populace.

Consider this short blurb, also based on quick wiki-research, regarding civil rights in Libya:

Human rights
Main article: Human rights in Libya
According to the U.S. Department of State’s annual human rights report for 2007, Libya’s authoritarian regime continued to have a poor record in the area of human rights.[53] Some of the numerous and serious abuses on the part of the government include poor prison conditions, arbitrary arrest and prisoners held incommunicado, and political prisoners held for many years without charge or trial. The judiciary is controlled by the government, and there is no right to a fair public trial. Libyans do not have the right to change their government. Freedom of speech, press, assembly, association, and religion are restricted. Independent human rights organizations are prohibited. Ethnic and tribal minorities suffer discrimination, and the state continues to restrict the labor rights of foreign jobs.

In 2005 Freedom House rated political rights in Libya as "7" (1 representing the most free and 7 the least free rating), civil liberties as "7" and gave it the freedom rating of "Not Free".

(This describes an almost classic case of "Poor Governance" and predictably, has created conditions of insurgency in this country. Insurgent groups have emerged to address these conditions, and AQ has come in to target and exploit all of the above.)

[jmm99]

While I like playing bad guys, I have to get back to real life as a good guy and get some non-virtual work done.

Looking at the LIFG Wiki, I noticed this in the first paragraph (emphasis added):

The Libyan Fighting Group (LIFG) also known as Al-Jama’a al-Islamiyyah al-Muqatilah bi-Libya is the most powerful radical faction waging Jihad in Libya against Colonel Moammar al-Qadhafi. Shortly after the 9-11 attacks, LIFG was banned worldwide (as an affiliate of al-Qaeda) by the UN 1267 Committee.

Going to the United Nations Security Council Committee 1267, we find:

The United Nations Security Council Committee 1267, also known as the Al-Qaeda and Taliban Sanctions Committee, was established by the United Nations Security Council on 15 October 1999, pursuant to UN Security Council Resolution 1267 concerning al-Qaeda and the Taliban and associated individuals and entities.

The committee has established and maintains a consolidated list which serves as the foundation for the implementation and enforcement of sanctions against Al-Qaeda and the Taliban. The list currently contains nearly 500 names and is split into four sections covering (1) individuals and (2) entities associated with the Taliban, and (3) individuals and (4) entities associated with al-Qaeda. The resolutions have all been adopted under Chapter VII of the United Nations Charter and require all member states to: "freeze the assets of, prevent the entry into or transit through their territories by, and prevent the direct or indirect supply, sale and transfer of arms and military equipment to any individual or entity associated with Al-Qaeda, Osama bin Laden and/or the Taliban as designated by the Committee".

Now, my point in quoting this is NOT that it squelches Bob Jones. My point is that all of this goes well beyond some isolated "Intel guys" deciding who enemies, neutrals and friends are.

Have to run.

Regards

Mike

[Bob's World]

"Now, my point in quoting this is NOT that it squelches Bob Jones. My point is that all of this goes well beyond some isolated "Intel guys" deciding who enemies, neutrals and friends are."


The Intel guys develop the list, the ops guys approve the lists, the lawyers cast the list into a status that allows the desired engagement within the current laws.

My point is that these lists enable dangerous perspectives and engagement and prevent much that could be far more effective. And yes, they are driven by a very threat-centric Intel community that is probably over reacting after having the full blame of 9/11 dropped on their heads as "a failure of Intel." While Intel could have been better, 9/11 is much more accurately cast as a "failure of policy." I pick on the Intel community because they deserve it, but I'll also defend them as being dedicated professionals who were unfairly blamed for allowing 9/11 to happen. They do what they do very well. My criticism is that they need to evolve in what they do and apply their considerable talents to that.

This is ripe ground for the lawfare crowd. How do we get away from legal lists that constrain as much as they enable? How do we create new laws for dealing with this problem of empowered actors who operate outside the state construct?

[Bob's World]

Dayuhan

Certainly doing nothing is always an option, and probably more often than we would like admit, the best one. It means relinquishing control of outcomes though, and that makes us nervous.

What I offer is an alternative to current perspectives on engagement. One based in recognizing that it is governments that cause insurgency, and not insurgents that cause insurgency. I see no need to reinforce positions rooted in list-driven CT; capacity building of security forces for governments widely recognized as despotic; or nation building among the populaces of those same governments. Those COAs already have plenty of supporters and Cheerleaders.

All engagement is not however inherently bad. It is possible to help people to get to a better place through wise, tailored engagement that never forgets where we fit into the equation as an outside party.

Maybe it is ok to shoot missiles at a nationalist insurgent group that associates with AQ but not ok to talk to them and see if we can't offer them a better alternative. Maybe building the capacity of governments with questionable records on civil rights to better go out and "enforce the rule of law" against insurgent organizations within their populace who also happen to associate with AQ is the smartest way to "defeat terrorism." Maybe, and I am not saying that you think it is, but many do. I disagree. I think we can engage smarter. I also believe that smart engagement is better than doing nothing at all.

[jmm99]

Looking to the webpages for that agency, we find the index with multi-links and a brief explanation of it:

The Security Council Committee established pursuant to resolution 1267 (1999) on 15 October 1999 is also known as "the Al-Qaida and Taliban Sanctions Committee".

The sanctions regime has been modified and strengthened by subsequent resolutions, including resolutions 1333 (2000), 1390 (2002), 1455 (2003), 1526 (2004), 1617 (2005), 1735 (2006), 1822 (2008) and 1904 (2009) so that the sanctions measures now apply to designated individuals and entities associated with Al-Qaida, Usama bin Laden and/or the Taliban wherever located. The names of the targeted individuals and entities are placed on the Consolidated List. Narrative summaries of reasons for listing of the individuals, groups, undertakings and entities included in the Consolidated List (where available) can be found at the following URL: http://www.un.org/sc/committees/1267/narrative.shtml.

The above-mentioned resolutions have all been adopted under Chapter VII of the United Nations Charter and require all States to take the following measures in connection with any individual or entity associated with Al-Qaida, Usama bin Laden and/or the Taliban as designated by the Committee:

•freeze without delay the funds and other financial assets or economic resources of designated individuals and entities [assets freeze],

•prevent the entry into or transit through their territories by designated individuals [travel ban], and

•prevent the direct or indirect supply, sale and transfer from their territories or by their nationals outside their territories, or using their flag vessels or aircraft, of arms and related materiel of all types, spare parts, and technical advice, assistance, or training related to military activities, to designated individuals and entities [arms embargo].

The current Chairman of the Committee, for the period ending 31 December 2010, is His Excellency Mr. Thomas Mayr-Harting (Austria). The two Vice-Chairs for 2010 are Brazil and Russian Federation. This website contains general information on the work of the Committee as well as a latest news section. The Committee has guidelines for the conduct of its work. You can also find fact sheets providing basic information on the listing and de-listing procedures as well as on the exemptions to the assets freeze and from the travel ban. The Committee publishes annual reports of its activities and the Chairman of the Committee briefs the Security Council regularly. ..... (more at site).

If you meant this to describe the workings of the 1267 Committee (which I doubt):

from BW
The Intel guys develop the list, the ops guys approve the lists, the lawyers cast the list into a status that allows the desired engagement within the current laws.

it does not correctly describe the scope of the agency or its listing process. Many (probably a majority of) nations involved take the law enforcement approach to counter-terrorism.

Regards

Mike

PS:

1. Speak very softly.

2. Carry a very large stick.

3. Stay out of neighborhoods where you don't belong.

[Bob's World]

Ok, all well and good, but what does any of that activity do toward resolving the problems that actually create the conditions that give rise to such individuals and organizations?

I always bring this back to our own experience as I believe most Americans can empathize with other Americans better than they can with others; and also because what we are primarily taliking about are American approaches that are presumably cast within a context of the American ethos that was shaped back in the 1700s.

Imagine if the edict you cite was published by the British Government in response to the insurgency in the American Colonies?

You have a populace that already questions the legitimacy of its government, finds the rule of law as applied to them to be unjust, believes with good reason that they are treated as second class citizens simply because they were born in the colonies; and don't believe that they have any legal recourse to effectively resolve their concerns.

So in response an edict is published to render them outlaws for daring to stand up to tyranny, and bannishing them from all form of legal enterprise. How does this help?

This my biggest beef with my fellow lawyers. They think the rule of law is more important than justice under the law. Do we send people to places like Afghanistan to create justice? No, we send them there to help enforce the rule of law. It is not the same thing.

I have said it before, I will say it again: Rule of Law without Justice is Tyranny. Is enforcing tyranny the "big stick"? If so, don't drop the soap, because any populace subjected to such legally enforced tyranny is apt to find creative places to lodge said "big sticks."

This is why America recognized the Right and the Duty of a populace to rise up in insurgency when faced with what they perceived to be despotic governance when all legal means fell short.

Lawfare needs to focus on identifying and creating such legal means for populace to act out short of insurgency.

Lawfare needs to focus on the enhancement of perceptions of Justice rather than the enhancements of the mechanics of the rule of law.

[Dayuhan]

Smarter approach is to out-compete AQ for influence with the LIFG. Conduct UW ourselves with them, but promoting non-violent approaches to changing governance that historically are far more successful than violent approaches. This puts the Charlie Bravo on AQ who is peddling violence and hate and could give a rip about Libyan nationalism. At the same time we go to Qadaffi and say we can help him neutralize the LIFG. But he needs to change. We mediate talks between him and the insurgent leadership. Perhaps this is the time for his much more moderate son to step up as leader. What carrots can we put on the table to entice that option? What about LIFG, they raise some good points, what can Libya do to reasonably meet some of these concerns? etc. Taking this approach we REDUCE motivation to attack us, and also help immunize Libya to AQ's UW influence and more effectively accomplish what we hoped to do by helping Qadaffi just put the beat-down on his own populace approach.

How does lawfare come in? Well, there is this problem with Libyan rule of law being perceived as unjust. A focus on promoting Justice (rather than the current misguided promotion of ROL). There also is this matter of the populace not having legal means to affect change of governance. Another good place for the lawyers to help contract mechanisms that make sense in this culture and that are acceptable to all, and that can actually work.

This sounds like a recipe for overt and gratuitous intervention in the internal affairs of another country, and I suspect that despite the noble intention, the outcome would be that we would simultaneously and drastically antagonize the government, the populace, and the LIFG, none of whom asked us or want us to get involved. AQ could sit back and salivate.

Unconventional Warfare is still warfare, and conducting warfare of any sort against another state is not something to be taken lightly. It's also not something that's going to stay secret, and when the word hits the street (very quickly) the potential for unintended consequences is enormous.

If you're talking about Libya, it's important to note that th LIFG has never achieved much popular support: LIFG leaders have been quoted plaintively lamenting the lack of engagement from the populace. This is a fairly common pattern among Arab populaces, who are only too happy to cheer on, support, and join AQ and affiliates if they are fighting jihad against foreign occupiers in faraway lands, but generally have no special interest in being ruled by them.

It's also important to note that when a populace sees a government being challenged and criticized by the US, the tendency is for that populace to rally behind the government, even if it's lousy and unpopular. Our intervention is not going to be seen, ever, as support for the populace: it's going to be seen as a self-seeking scheme to gain control. When the US criticizes a government it's not seen as us standing up for the populace, it's seen as disrespect for nation, culture, and tradition, and it's likely to accomplish the result opposite from that we intended.

The notion that intervention in the internal affairs of other countries is good policy as long as it pursues goals that we see as "good" may sound noble, but I suspect at the end of the day it's a recipe for disaster. It might be better to mind our own business for a change, and to stay out of the affairs of others unless we are directly and severely threatened.