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Thread: Law and the Long War

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    Default Law and the Long War

    I just started reading a book on legal issues surrounding our operations since 9/11. There is a brief vignette in the introduction. I would be interested in reactions from the board to this tale of interrogation because I think it is useful to consider as we ponder legal foundations for our actions against non-state actors or proxies.

    For those who already read the book or otherwise recognize the vignette and know the punch-line (which I will reveal later), please do not give it away, yet. I'm curious to see reactions from those who are unfamiliar with it.

    Here is an edited excerpt...
    "The terrorist mastermind had slipped through their fingers before, and American forces were not about to let it happen again... Unable to track him down, they managed instead to locate and detain his wife... For several days, they interrogated her at an air base, but she repeatedly insisted that he was dead. Finally, they tried a new tactic. They noisily put a plane on a nearby runway, its engines running. As the commanding officer later recalled: 'We then informed [her] that the plane was there to take her three sons to [a repressive country nearby] unless she told us where her husband was... If she did not do this then she would have ten minutes to say goodbye to her sons...' Having threatened, in essence, to kill her sons - for nobody doubted what the secret police would do to them when they arrived at their destination - the interrogators got the information they wanted. And they got their man, disguised as a farm laborer, that evening."
    - Benjamin Wittes, "Law and the Long War," page 1.
    Do you think this technique is moral or ethical or otherwise sound practice? Why or why not?
    Do you have an opinion on the legality of this technique (whether it is or should be legal, etc)?
    Again, if you already read the book or know the punch-line, please refrain from commenting until others weigh in. I'm curious to see reactions. For those who do not know the punch-line - don't worry, this isn't a game of gotcha.

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    Quote Originally Posted by Schmedlap View Post
    Do you think this technique is moral or ethical or otherwise sound practice?
    Yes.

    Why or why not?
    I don't understand how it's any different than other forms of deception and trickery that are commonly used in warfare.

    Do you have an opinion on the legality of this technique (whether it is or should be legal, etc)?
    I think it's legal; courts have ruled that deception and trickery are legal to use in a criminal investigation.

    You can bluff in the interrogation room. You can use props. You can claim to have information that you don't have. You can double team and tag team using the age old "good cop, bad cop." If you were interrogating an illegal alien you could even mention the possiblity for deportation for the subject or the subject's family. Duress is permitted up to a point - different cops have different opinions about it's usefulness but it is permitted.

    And this is in policing. Am I to believe this shouldn't be allowed in warfare?
    Last edited by Rifleman; 07-11-2009 at 03:30 AM.
    "Pick up a rifle and you change instantly from a subject to a citizen." - Jeff Cooper

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    Default What if - to up the ante a bit ....

    1. The extraordinary rendition to a third party, more than willing to torture and kill the three sons, is a reality. The interrogators' friend has both the means and intent to render (pun intended) the sons and carry out the threat.

    or to up the ante even a bit more ...

    2. The interrogators are made of stronger stuff and don't need a third party to do their work. They are able and willing to carry out the threat themselves.

    and, finally, if the threat does not work ...

    3. The interrogators execute the threat by successively torturing and then killing each of the three sons.

    Do these altered facts change the answers ?

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    Council Member Ken White's Avatar
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    Talking My effort not to be first was successful...

    STARTS:Written 2040 CDT, 10 Jul 09 but I'm not going to be the first to post...

    Here's the unedited reponse.
    Do you think this technique is moral or ethical or otherwise sound practice? Why or why not?
    Marginally moral, not enough information to form a total moral evaluation. Regardless, it is not sound practice and I would not do it for the very practical reason that no one man is ever likely to be that importan as this action would almost certainly be disclosed. IOW, don't do it, probable result is not worth the potential downstream hassle.
    Do you have an opinion on the legality of this technique (whether it is or should be legal, etc).
    I do not think it should be illegal -- there are too many unenforceable laws about, we don't need one more. It should however IMO be discouraged or regulatorily prohibited for the reasons I stated above. If the punch line is what I suspect, I'll still go with the decision above. :ENDS

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    Default jmm99,

    Ooooo, you lawyer you. Instead of answering you start cross examination.

    I've got some thoughts but I'm going to sit tight for a couple of days. I'm curious to see what others say.
    Last edited by Rifleman; 07-11-2009 at 05:22 AM.
    "Pick up a rifle and you change instantly from a subject to a citizen." - Jeff Cooper

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    Quote Originally Posted by Ken White View Post
    STARTS:Written 2040 CDT, 10 Jul 09 but I'm not going to be the first to post...
    Well, even if I get torn to shreds, at least I saved our Regimental Sergeant Major.

    Do I get a meritorious award for that?
    "Pick up a rifle and you change instantly from a subject to a citizen." - Jeff Cooper

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    Council Member Ken White's Avatar
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    Default Got no awards to pass out but you do get

    14,000 Attaboys!!!

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    I don't think it's immoral, but OPSEC prevents me from commenting further.
    "The status quo is not sustainable. All of DoD needs to be placed in a large bag and thoroughly shaken. Bureaucracy and micromanagement kill."
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    Yes it is moral..... and yes it is legal.....and plea bargaining is nothing but a mild form of coercion and I don't have a problem with that either. My only problem is I don't understand what the problem is...what's the big deal...we should have been doing things like this from the very beginning....again I don't see what the big deal is.

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    Council Member LawVol's Avatar
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    What is your basis for detaining the wife? Assuming, of course, that you have actionable intel to indicatethat the husband is in fact a terrorist, what is her status? From the limited facts given, it would appear that she has no connection to the doings of her terrorist husband (being married to him simply isn't enough unless you're willing to subjet our wives to the same rules).

    Next, what is the status of the two sons? Assuming from the limited facts given that they are also unconnected to the father's doings, they would also appear to be civilians. What would be your basis for detaining them? What would be your basis for (supposedly) facilitating the torture of them? What the scenario appears to advocate is the torture of civilians for the purpose of possibly obtaining information from a third party.

    This leads intot he next question: what will be done if she refuses to provide the information? If the sons are not then sent away, word gets out and our credibility with respect to this type of threat is done. If the sons are sent away, again what is the basis for doing so? Again, assuming from the limited facts that they are civilians, the scenario stretches much further than a "collateral damage" scenario (although I really can't stand that term). Here, you aren't simply attacking a valid military target wherein the military value outweighes that damage to civilians; you're actually targeting civilians. This is what the terrorists do. Are we really willing to slide this far down the slope? If so, what does this say about our legitmacy? What does it say to the civlian community in the AOR that we're trying to win over.

    No, I don't see this as legal for the simple fact that the legal question must be examined in light of taking the threat to its logical conclusion. This means examining it as done above, IMO.

    Now, substitute the wife for a known terrorist and threaten him/her with torture and we, possibly, have a different situation. Philip Bobbit, in a book I'm reading now, argues that in today's informationized world, the information a terrorist holds is akin to his weapon and until he surrenders that "weapon" he may still be engaged, so to speak. I like this argument but its needs more exploration.

    Of course, the above is a legal analysis constrained by the limited facts available (don't you love lawyers? - there's a reason we do this), you also asked about the morality of this scenario. I do not viewed morality and legality as always synonymous. Law is law but morality may differ depending upon the person(s) involved. So, as to morality, the issue is really moot except when considered in light of overall legitimacy. To what extent does morality factor into legitimacy? Who's morality is in play? Can legitimacy be obtained when a given plan of action is legal but possibly not moral?
    -john bellflower

    Rule of Law in Afghanistan

    "You must, therefore know that there are two means of fighting: one according to the laws, the other with force; the first way is proper to man, the second to beasts; but because the first, in many cases, is not sufficient, it becomes necessary to have recourse to the second." -- Niccolo Machiavelli (from The Prince)

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    LawVol asked some good questions. I'm hoping for some responses to his post, since he seems to be the dissenter, before I post the punch-line.

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    Quote Originally Posted by LawVol View Post
    What is your basis for detaining the wife? Assuming, of course, that you have actionable intel to indicatethat the husband is in fact a terrorist, what is her status? From the limited facts given, it would appear that she has no connection to the doings of her terrorist husband (being married to him simply isn't enough unless you're willing to subjet our wives to the same rules).

    Next, what is the status of the two sons? Assuming from the limited facts given that they are also unconnected to the father's doings, they would also appear to be civilians. What would be your basis for detaining them? What would be your basis for (supposedly) facilitating the torture of them? What the scenario appears to advocate is the torture of civilians for the purpose of possibly obtaining information from a third party.

    This leads intot he next question: what will be done if she refuses to provide the information? If the sons are not then sent away, word gets out and our credibility with respect to this type of threat is done. If the sons are sent away, again what is the basis for doing so? Again, assuming from the limited facts that they are civilians, the scenario stretches much further than a "collateral damage" scenario (although I really can't stand that term). Here, you aren't simply attacking a valid military target wherein the military value outweighes that damage to civilians; you're actually targeting civilians. This is what the terrorists do. Are we really willing to slide this far down the slope? If so, what does this say about our legitmacy? What does it say to the civlian community in the AOR that we're trying to win over.

    No, I don't see this as legal for the simple fact that the legal question must be examined in light of taking the threat to its logical conclusion. This means examining it as done above, IMO.

    Now, substitute the wife for a known terrorist and threaten him/her with torture and we, possibly, have a different situation. Philip Bobbit, in a book I'm reading now, argues that in today's informationized world, the information a terrorist holds is akin to his weapon and until he surrenders that "weapon" he may still be engaged, so to speak. I like this argument but its needs more exploration.

    Of course, the above is a legal analysis constrained by the limited facts available (don't you love lawyers? - there's a reason we do this), you also asked about the morality of this scenario. I do not viewed morality and legality as always synonymous. Law is law but morality may differ depending upon the person(s) involved. So, as to morality, the issue is really moot except when considered in light of overall legitimacy. To what extent does morality factor into legitimacy? Who's morality is in play? Can legitimacy be obtained when a given plan of action is legal but possibly not moral?
    Lawvol, most of your points are interesting but they require "assumption of facts not in evidence"...so I don't think it is related to the situation that was posted, so based upon what was posted it was moral and legal and it succeeded as it was planned.

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    I think LawVol's question "what will be done if she refuses to provide the information?" speaks to whether it is sound policy. Ditto the hypo of "If the sons are not then sent away..."

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    Quote Originally Posted by slapout9 View Post
    Lawvol, most of your points are interesting but they require "assumption of facts not in evidence"...so I don't think it is related to the situation that was posted, so based upon what was posted it was moral and legal and it succeeded as it was planned.
    Slap, I have to respectfully disagree. My point is exactly the opposite. There are not enough facts to make a conclusive recommendation as to legality. Since the scenario indicated a terrorist connection with respect to the husband and did not do so with respect to the others, I made a safe (I believe) assumption that the others were not terrorists or thought to be since that wasn't indicated.

    In my line of work, it is fairly rare for a question presented to include all of the relevant facts since a recitation is nearly always filtered by the reciter's biases. That's why lawyers always ask so many questions and often caveat answers.

    I believe my questions are related to the issue at hand since they go directly to whether the actions are legal. If the answer to the first question suggests no legal basis for holding the wife, then everything that happens after is tainted by that fact. Moreover, the fact that the scenario had a successful result is irrelevant in determining legality. I'm not quite sure my commanders would be comfortable with legal advice that turned on the success of their tactics.
    -john bellflower

    Rule of Law in Afghanistan

    "You must, therefore know that there are two means of fighting: one according to the laws, the other with force; the first way is proper to man, the second to beasts; but because the first, in many cases, is not sufficient, it becomes necessary to have recourse to the second." -- Niccolo Machiavelli (from The Prince)

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    Default I agree with LawVol.

    If she was picked up solely because she was the wife and not for another act in her own right, that would be a no-no. Given no legal basis for custody of the wife or kids, all that follows would be illegal -- my comment that it "should not be illegal" was aimed specifically at the threat aspect and was to the effect that existing laws were adequate, thus no new laws were needed. However, I did not make that clear, so that's a lick on me...

    None of that has any effect on my 'don't do it, it'll cost you later.' Still not enough info for me to make my moral judgment...

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    Default The apple that fell from the tree ....

    Does the "Fruit of the Poisonous Tree" extend as far as this:

    from LawVol
    If the answer to the first question suggests no legal basis for holding the wife, then everything that happens after is tainted by that fact.
    ....
    from Ken
    Given no legal basis for custody of the wife or kids, all that follows would be illegal.
    and, if so, on what authorities (legal) or reasoning (non-legal) are these sweeping assertions based ?

    Does the hypothetical involve a criminal case where evidence is offered which was derived from the interrogation ?

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    Council Member Ron Humphrey's Avatar
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    Question Really interested in seeing the punchline

    But as others alluded to the problem I have with this is very simply left to a couple of variables.

    Who's being interrogated

    Why

    What will be done in relation to that why

    And most importantly by whom /how

    If the reason isn't tied to the who your interrogating then regardless the validity of your concerns (there's a whole lot of consequences in regards to the population your dealing with)

    Better be a whole lot more to the why then simply (they might know)
    Because the actions about to be taken in reponse to any information obtained and the whos performing those actions will have a lot to deal with should something be wrong anywhere in the process

    Finally if the who is a US soldier theres a whole lot of long term issues with the whole idea of being able to temporarily detach themselves from those things they regard as proper within the context of their own lives and if you get it wrong you may well not know it till their home and all hell is breaking loose.

    Just my thoughts (uninformed by any practical application)
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    Council Member LawVol's Avatar
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    Quote Originally Posted by jmm99 View Post
    Does the "Fruit of the Poisonous Tree" extend as far as this:



    and, if so, on what authorities (legal) or reasoning (non-legal) are these sweeping assertions based ?

    Does the hypothetical involve a criminal case where evidence is offered which was derived from the interrogation ?
    While there is certainly a criminal law analogy to be drawn here I've tried to stay away from it as I do not see criminal law and the law of war as necessarily synonymous. While there are similarities, I think we get into trouble if we treat Long War legal issues solely within a criminal law context. Here's my train of thought:

    Operating under an assumption, given the limited facts, that the wife and sons are civilians they are accorded protected status under international law. Once this status has been determined, they cannot be held and, thus, their continued detention becomes illegal. Since you are holding them against their will, the questioning of them also becomes illegal as there is no legal provision for doing so.

    Even if the questioning is somehow rendered legal, the fact that the detention is not legal taints the process in that it tells the world that we do not respect the protected status of civilians. This, in turn, diminishes support for our actions, provides the enemy with a pretty good recruiting tool, and runs counter to the "hearts and minds" campaign.

    I'd be interested in hearing arguments as to the legality of this scenario, however.
    -john bellflower

    Rule of Law in Afghanistan

    "You must, therefore know that there are two means of fighting: one according to the laws, the other with force; the first way is proper to man, the second to beasts; but because the first, in many cases, is not sufficient, it becomes necessary to have recourse to the second." -- Niccolo Machiavelli (from The Prince)

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    Council Member Ken White's Avatar
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    Talking 99 USC-White, of course. Why do you ask?

    Quote Originally Posted by jmm99 View Post
    and, if so, on what authorities (legal) or reasoning (non-legal) are these sweeping assertions based ?
    Given the hypothetical, no reason was shown for the custody of the Wife. If it's only due to the fact that she's the spouse and hasn't been picked up for her own actions, intimidation is a misdemeanor most places and in some a felony if weapon is used or harm results. Last time I heard, anyway. That could well apply even if her custody was not solely due to the relationship; intimidation is intimidation. Then there's this:

    ""Uniform Code of Military Justice art. 31(d), 10 U.S.C. § 831(d) (2000) (“No statement obtained . . . through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against [the accused] in a trial by courtmartial.”).""

    We dunno whether the interrogator is military or not...

    What we do know is that there is a distinct possibility a Court Martial could rule that coercion was used. Even if the Court Martial does not, the Civil suit by Wife or Terrorist Husband after release from Elba or a fifth Cousin 14 years later may so rule.

    Since I'm me and I can't visualize a situation where I'd be interrogating unless I was in the millinery, that was my rationale...
    Does the hypothetical involve a criminal case where evidence is offered which was derived from the interrogation ?
    Not stated.

    But in this day it certainly could...

    None of which affects me because it would be, IMO, stupid and I'm not going to do it based on the information thus far given -- mostly so I don't get cross flogged by you and John over one sorry Dude who is unlikely to hold the fate of the free world in his hands (or, if he does, that should have been stated)...

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    Council Member slapout9's Avatar
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    Quote Originally Posted by LawVol View Post
    Slap, I have to respectfully disagree. My point is exactly the opposite. There are not enough facts to make a conclusive recommendation as to legality. Since the scenario indicated a terrorist connection with respect to the husband and did not do so with respect to the others, I made a safe (I believe) assumption that the others were not terrorists or thought to be since that wasn't indicated.

    Lawvol, I never read anything about anybody trying to prosecute anybody, this was a bluff operation trying to get information. It is pretty much standard police procedure to interview relatives that would have information about other relatives and they could certainly be detained (they were not arrested) based upon that at least for a short period of time because of the exigent circumstances situation. These are not run of the mill street criminals. But again I point out that prosecution was not the objective...information was and that gives you a lot of room manuver.

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