Law and the Long War

[jmm99]

this ....

from Ken
99 USC-White, of course. Why do you ask?

although, I prefer 99a USC-McCarthy (superceding amendment).

OK, chasing the "Fruit of the Poisonous Tree" is illusory here cuz it does not apply unless the statements are offered into evidence (e.g., UCMJ provision cited by Ken).

What could apply are the declaratory US legislation regarding the scope of Common Article 3, the separate War Crimes and Anti-Torture statutes, and other provisions of the UCMJ - as to all that, we've been there and done that in "War Crimes" and other threads (the Search button is your friend).

As Ken correctly states:

.... 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.

Even the original hypothetical (construed as a pure ruse - i.e., no intent or ability to carry out the threat) runs afoul of the prohibition against employing a death threat (against the detainee and/or his family).

So, legally (that is, if I am advising the interrogator as my personal client - which is not quite the position of a JAG officer) the original scenario is questionable. My enhanced scenarios are more so. Witness the court martial of the CPT and his 1SG (thread - A War's Impossible Mission).

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True, if you assume (accept without evidence) ....

from LawVol
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.

but, the issues under Common Article 3 are not so simple as making a distinction between those who bear arms and "civilians". The question of who is a member of the infrastructure (the underground cadre) and subject to CA 3 detention is not settled by automatic reference to GC IV for everyone not caught with an AK or grenade in hand.

----------------------
This scenario reminds me of something biblical (or Koranic) I once read - canonical or non-canonical, I can't remember. Anyway, the punchline belongs to Schmedlap.

[Schmedlap]

Okay, here's the punch line. First, the original scenario...

"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."

The scenario actually happened, but the facts were significantly different. The actual fact pattern is printed below, with the changes in bold to reflect what actually happened...

"Rudolph Hoess, the commandant of Auschwitz had slipped through their fingers before, and British 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 train on some nearby tracks, its engine running. As the commanding officer later recalled: 'We then informed [her] that the train 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."

A few things stick out about this in my mind.
- The concentration camps had been liberated. Rudolph Hoess posed no further threat.
- The war was over. That is generally when prisoners are released, not continued to be hunted down.
- Hoess was sought in order to stand trial at Nuremberg, not to prevent him from continuing hostilities.
- His wife was detained and coerced with the threat of her sons being mistreated.

Today, on the other hand...
- We suspect that certain Gitmo detainees are still threats.
- The war is not over, so prisoners would, by historical precedent, be expected to remain in custody.
- Gitmo prisoners are held, in part, to prevent them from continuing hostilities.
- Interrogations that have drawn criticism in this decade have been...
- - those applied to the actual terrorist, not a family member
- - applied in order to obtain information about existing/continuing threats, not to obtain a witness for a court hearing
- - applied while hostilities are ongoing

[Greyhawk]

The case of Cpt Roger Hill (mentioned briefly by jmm99)
http://www.washingtonpost.com/wp-dyn...121203291.html

Short version:

Afghanistan - Hill had detainees he had to release. Before doing so he took three outside and fired a weapon into the ground some distance from where they stood.

Those remaining inside were told their three comrades had been shot. Would they be willing to share information to avoid the same fate?

Jump to the end: General (Under Honorable Conditions) discharge. (Respectfully correcting jmm: short of court martial, the threat of which was sufficient to compel the bargain. Is there an "irony" emoticon...?)

There are layers of complexity (the full story would make a fine case study and an outstanding feature film - I don't mean that in a negative way) but I offer this as stark a contrast to your original post - and support for what I believe is at least part of your point - "times have changed".

Hypothetical argument: I suspect even today a jury of twelve random Americans would have difficulty reaching a "guilty" verdict in Hill's case, while a Court Martial panel would do so rapidly and unanimously.

Disclosure: I've discussed this topic with Roger Hill.

[Tom Odom]

Okay, here's the punch line. First, the original scenario...

The scenario actually happened, but the facts were significantly different. The actual fact pattern is printed below, with the changes in bold to reflect what actually happened...

A few things stick out about this in my mind.
- The concentration camps had been liberated. Rudolph Hoess posed no further threat.
- The war was over. That is generally when prisoners are released, not continued to be hunted down.
- Hoess was sought in order to stand trial at Nuremberg, not to prevent him from continuing hostilities.
- His wife was detained and coerced with the threat of her sons being mistreated.

Today, on the other hand...
- We suspect that certain Gitmo detainees are still threats.
- The war is not over, so prisoners would, by historical precedent, be expected to remain in custody.
- Gitmo prisoners are held, in part, to prevent them from continuing hostilities.
- Interrogations that have drawn criticism in this decade have been...
- - those applied to the actual terrorist, not a family member
- - applied in order to obtain information about existing/continuing threats, not to obtain a witness for a court hearing
- - applied while hostilities are ongoing

Adding to your theme:

As you read combat diaries and even published accounts of WWII as the news of the death camps spread, taking of prisoners decreased inside Germany. One account entitled GI Diary, simply had an entry that noted, "the boys aren't taking any prisoners today". And of course as Airborne, Commando, Ranger, etc were to be shot out of hand per Hitler's orders, SS often recieved similar treatment. Malmedy certainly added fuel to that fire...

Fast forward 1945 to 1995 when in the aftermath of the genocide in Rwanda, the new government and military were trying to stabilize the country, hunt down the killers, and put them in prison. I was continually amazed at the restraint--and yes it slipped in cases like the camp clearing at Kibeho in April that year--shown in operations like Iwawa Island that November when the new army took prisoners.

So, yes, times do change and so do acceptable standards...

Tom

[Schmedlap]

Thus far into the book (about 80 pages), the author gives a good explanation of poor decisions made, not as to what types of powers to use, but rather how to assert those powers.

It is quite possible that the former administration could have gotten Congressional authorization for everything that it wanted to do. Given the murky gray legal area in which those actions fell, there was a concern over whether to ask permission and imply that the authority did not exist or to go ahead and do it to reaffirm that the authority did exist. Unfortunately, the administration chose the latter. In response, when their actions were challenged, the Court had no statute to support the actions of the administration and it filled the void with its decisions.

The questions of whether certain interrogations, wiretaps, or other actions are legal or moral may be wholly irrelevant to whether they make sound policy. The real question is - how do you go about doing it? Do you seek authority first? Or do you go ahead and assume that you have authority (whether the law is on your side or not) and hope nobody challenges you? If you choose the latter and exacerbate that bad decision by choosing to remain silent in the face of your critics, then you not only set yourself up for political suicide, but you also help your political adversaries to create the political climate that existed for the last four years and led to the demonization of President Bush, VP Cheney, Rumsfeld, and others - far disproportionate to any real or imagined misdeeds that they may have committed.

[Rifleman]

A lot of the argument against the scenario had to do with why the wife was detained. Let's remember that the basis for investigative detention is reasonable suspicion and not probable cause. Do we suspect that the wife is guilty of something?

I found something from Title 18 US Code that might be relevant. It's called Misprision of felony and it's often overlooked by cops and lawyers who operate under state statutes. It reads:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

Questions: 1) Does that change anything if the wife was being detained within US federal jurisdiction and questioned about a crime that her husband commited within US federal jurisdiction? 2) Does spousal testimonial privilage have to be considered here?

[jmm99]

About 75 links appear on Googling - "roger hill" "article 32", of which, here are three: What Happened? (by Puckett & Faraj, attorneys); Interrogating Army 'justice' (Wash Times op-ed by Andy O'Meara, Tom McInerney and Paul Vallely); and Help Captain Roger Hill (by his wife).

[Greyhawk]

The man himself tells his story (audio) here http://www.mudvillegazette.com/031566.html

My site, but (besides his voice) a of couple details therein probably not available elsewhere. I suppose the disclaimer "I'm not an attorney, was not compensated, have no first-hand experience and limited prior knowledge, and apologize for linking myself" is in order.

Here's more - various written accounts from Hill
http://www.bouhammer.com/2009/05/exc...his-own-words/

[davidbfpo]

Rifleman,

I suspect that the British soldiers action was influenced by the Common law offence of Assisting an Offender (incorporated into statute in 1967) and the wife's refusal to help may have enabled her arrest. Post-VE day the situation in Germany was hardly normal and some form of emergency or military law was available.

Since 1967 additional offences have appeared in statute regarding terrorism notably e.g. failing to report etc.

I am not a lawyer and Schmedlap's example is set in 1945, before my arrival.

davidbfpo

[slapout9]

Rifleman,

I suspect that the British soldiers action was influenced by the Common law offence of Assisting an Offender (incorporated into statute in 1967) and the wife's refusal to help may have enabled her arrest. Post-VE day the situation in Germany was hardly normal and some form of emergency or military law was available.

Since 1967 additional offences have appeared in statute regarding terrorism notably e.g. failing to report etc.

I am not a lawyer and Schmedlap's example is set in 1945, before my arrival.

davidbfpo

Not sure of the statute but sounds like giving aid and comfort to the enemy, which is certainly grounds for detention.

At the state level as far as LE the statutes concerning aiding and abedding a fugitive, would be grounds for detention. I would also look at taking her into protective custody because she may be a material witness to the planning of major felonies or acts of war. Then probably the most overlooked......Conspiracy Laws....... most states have them....which is the reason that many Conspiracies are very real



Here is one of the most brillant legal minds I know.....shows the entire legal mind thinking process where it concerns danger.
http://www.youtube.com/watch?v=fjsGRDeOS0I

[LawVol]

Despite the scenario's origination in an ttempt to arrest Nazi war criminals, my opinion remains unchanged with respect to the application of today's lawof armed conflict. However, the Geneva Conventions were signed in 1949, after WWII. At that time, the Hague Convention of 1907 was applicable and Article 44 states that "A belligerent is forbidden to force the inhabitants of territory occupied by it to furnish information about the army of the other belligerent, or about its means of defense." Assuming that the Nazi regime had surrendered and thus its army effectively disbanded, the applicability of this provision is in doubt. If it did apply, then the scenario would be unlawful since Hoess was a member of the Nazi Army (right?) and the wife was being asked to provide information about him. Assuming the inapplicability of the provision, the laws of Germany (to the extent they do not violate international law) would apply and I can't speak to that.

There were some references to various criminal laws, including a cite to US code. However, the scenario is not cut from US federal criminal law. It is an intenrational law, specifically the law of armed conflict, issue. I don't believe we can mix the two. For one reason, we cannot expect our troops to be versed in criminal law and search & seizure jurisprudence in the manner a cop would be. Moreover, I think over reliance on criminal law ties our hands. The job of our combat troops is to reduce the threat not prepare for a trial. Sure, trial can be had, but it must be done in the context of a war crimes trial rather than normal criminal law where the standards can be much different.

Using Schmedlap's scenario with some slight changes, the differing results can be seen. Let's assume for the sake of argument that criminal law applies and that there is no basis for holding or detaining the wife. Let's further assume that she provided incriminatory evidence (i.e. "the smoking gun") rather than simply his location. In that case, the fruit of the poisonous tree doctrine might apply thereby rendering any evidence unuseable. However, applying the law of armed conflict may go the to weight of the evidence rather than the admissibility of it. Of course, much would depend upon the facts and I'm being very broad here, but merely trying to make a point rather than present a treatise.

[slapout9]

"A belligerent is forbidden to force the inhabitants of territory occupied by it to furnish information about the army of the other belligerent, or about its means of defense."

Lawvol,What about the fact that they are not a Belligerent Army.....they were declared Illegal combatants....hence they were and are not entitled to any protection under the law...except to be executed as spies.

[Schmedlap]

What about the fact that they are not a Belligerent Army.....they were declared Illegal combatants....hence they were and are not entitled to any protection under the law...except to be executed as spies.

Is it a question of what protections they have? Or is it a question of what legal powers we have?

[slapout9]

Is it a question of what protections they have? Or is it a question of what legal powers we have?

Schmedlap take a shot at both.

[jmm99]

The rules for handling detainees are quite explicit. E.g., FM 3-21.8, The Infantry Rifle Platoon and Squad (28 March 2007) 6-15 to 6-18; FM 3-21.10, The Infantry Rifle Company (27 July 2006) 11-89 to 11-96; FM 3-21.20, The Infantry Battalion (13 December 2006) 10-300 to 10-312, to wit:

"All persons captured, personnel detained or retained by U.S. Armed Forces during the course of military operations, are considered “detained” persons until their status is determined by higher military and civilian authorities." In the interim, they are treated as EPWs (treated as, not classified as). The use of the generic classification of "detained persons" at the platoon to battalion levels reflects the complexity of final classification (primarily factual and evidentiary).

From a legal standpoint (under existing statutes and treaties accepted and applied by the US), every person who is detained in an area of armed conflict must fall into one of three general classifications (there are sub-categories):

1. Persons who meet the criteria of EPWs and some other defined categories (requiring reference to and meeting the requirements of Common Article 2, and then going on to the requirements of Article 4 et seq of GC III).

2. Persons who meet the criteria of civilians and some other defined categories (requiring reference to and meeting the requirements of Common Article 2, and then going on to the requirements of Article 4 et seq of GC IV).

3. Persons not meeting the requirements of either #1 or #2 and who fall within the scope of Common Article 3 (the armed conflict not of an interenational character "mini-convention").

The third category generally applies to alleged or proved members or supporters of violent non-state actors (e.g., AQ & Taliban, and associated groups). It is possible for a violent non-state actor to meet the requirements of Common Article 2 by accepting and applying the GCs (application is the more important test). I can't think of a recent example - AQ & Taliban certainly have not.

Any detained person has a right to a hearing if that person claims either EPW status under GC III or civilian status under GC IV. The prevailing US view (JAG school solution) is that such a hearing is also required if the detaining authority has reasonable doubt about the detained person's status (e.g., if the person might be either an EPW under GC III or a civilian under GC IV).

A person detained under Common Article 3 cannot be executed or punished without a hearing. The exact requirements for future GC hearings is one of the Obama administration's agenda items, which will require Executive and Legislative consensus according to the President.

All detainees are protected by legislation more clearly defining (and IMO expanding) Common Article 3 rights, as well as the War Crimes and Anti-Torture statutes.

Interrogations are governed by the doctrinal manuals covering that speciality.

Detentions under the GC provisons have nothing to do with criminal prosecutions, whether in the Federal courts or before military commissions (where different rules apply) - as established in the cases involving Noriega.

The foregoing sums about a dozen pages of posts in the War Crimes thread. All or some of this could be changed by upcoming legislation.

-----------------
PS: Greyhawk - thanx for the links to CPT Hill direct. I believe that the CPT and 1SG were the first to be charged under the War Crimes statute (incorporated by reference into the UCMJ) - a good example of gross overcharging (IMO).

[slapout9]

That is the whole problem with guerrilla warfare....because they don't fight by the rules by the time you figure out which category they are in you may be dead or have lost the war.

[Danny]

But the context and details of the story are only marginally relevant. Debating what would have happened if she had refused to provide the information only obfuscates the point. If she had not provided the information, then the plane's engines would have been shut down, she would have known that we were bluffing, and then she would have told all ten people who would listen to her that we bluff. So what?

Other details are also only marginally relevant in my opinion. The main thrust is whether such a practice is moral and legal. I won't comment on legal except that if it is legal in policing work in the U.S. (which it is), I cannot possibly see how it could be illegal in warfare, conventional, counterinsurgency or counterterrorism.

As for the morality of the practice, I cannot see how it could be immoral. In the story we lied to the woman. So what? I can make a Biblical and moral case for lying and deception under many different circumstances, not the least of which is warfare. The enemy is not entitled to the truth. While I don't believe in situational ethics, it's also important to realize that morality is not exlusively deontological (long story, I'll be happey to elaborate in an e-mail to any interested party).

Finally, as for duress, I have no problems with causing distress to the enemy. In your story the woman may not be the enemy, but it simply must be understood by our morally preening society that warfare involves corporate accountability, and that the conduct of war unavoidably and necessarily involves harm to the land, infrastructure, and even though we try to avoid it, noncombatants. In this particular story we have not harmed the woman, only caused her emotional distress. So much the better, because if we get the information we want, we may be able to save lives of our own servicemen. To me, this story presents the clearest picture of a win-win situation. She is unharmed, and we save lives.

As for unavoidable collateral damage and harm to noncombatantct, it is a function of the nature of armed conflict. If the nation doesn't like it, they should consider this fact prior to launching a campaign rather than attempt to change the nature of the thing that they have started.

As one final thought, harm to noncombatants (while this is a little far afield from the subject of the post) does do harm to the overall campaign and of course should be avoided to the extent possible, while also not restricting the right of self defense. But I agree with Ken (I believe it was he who made the point) that I don't believe that anyone is this important. In general, I am no fan of the HVT campaign because I think it is largely ineffective (here I am not referring to the drone campaign in Pakistan, but the SOF raids in the middle of the night to capture mid-level Taliban commanders who will be released later anyway).

Now that I have taken the discussion too far afield, I'll sign off.

[jmm99]

That is the whole problem with guerrilla warfare....because they don't fight by the rules by the time you figure out which category they are in you may be dead or have lost the war.

The point of the FMs is to relieve platoon, company and battalion combat personnel from classification problems (for detainees) - thus, the generic classification of "detained persons". The general idea of the FMs is to preserve evidence at the lower levels and leave interrogations and classifications for higher levels in the chain.

That being said, CPT Hill's case illustrates two real problems - (1) a breakdown at the battalion and higher levels in regard to indigenous security risk detainees and how they were handled; and (2) totally inadequate forces at the tip of the spear (his company of about 60 was eventually replaced with a force of 1200).

If you are referring to the rules regarding initial contact (kill or capture), you may have a point depending on how the local ROE/RUFs are phrased - and how well educated and trained in those rules the troops are.

Where the concepts of the SROEs and SRUFs are followed (in drafting the local rules), the problem you cite (classification by status) shouldn't occur. The SROEs and SRUFs always default to a conduct standard (a hostile act or threat on the part of the target allows proportionate self-defense on the part of the soldier).

Status classification at the contact level comes into play only where a hostile group is defined by NCA (let's say AQ). In that case (positing that there are no constraints placed on the Laws of War by local ROE/RUFs), kill or capture of one of those defined targets is allowed at any place and any time. The practical problem is identification of the status target hidden amidst the population and hitting the right person (e.g., CORDS-Phoenix in Vietnam, which detained or converted twice as many VC cadres as it killed).

I have no idea of the precise local ROE/RUFs that CPT Hill's unit was operating under (and probably they are classified). So, they may have been the problem, or at least contributed to the problem.

[slapout9]

That being said, CPT Hill's case illustrates two real problems - (1) a breakdown at the battalion and higher levels in regard to indigenous security risk detainees and how they were handled; and (2) totally inadequate forces at the tip of the spear (his company of about 60 was eventually replaced with a force of 1200).

If you are referring to the rules regarding initial contact (kill or capture), you may have a point depending on how the local ROE/RUFs are phrased - and how well educated and trained in those rules the troops are.


Status classification at the contact level comes into play only where a hostile group is defined by NCA (let's say AQ). In that case (positing that there are no constraints placed on the Laws of War by local ROE/RUFs), kill or capture of one of those defined targets is allowed at any place and any time. The practical problem is identification of the status target hidden amidst the population and hitting the right person (e.g., CORDS-Phoenix in Vietnam, which detained or converted twice as many VC cadres as it killed).

The above items address my concerns, specifically Capt. Hill made a decision to protect Americans(the whole purpose of the flipping war in the first place) while in the middle of Enemy forces who will not follow a single rule/law/SOP that we place upon on our forces, which to me makes him completely innocent. The LAW is being used as a weapon aginst US Soldiers and they should have total immunity in Fugged up wars like this. If they can not do the job they should be removed/transferred to some support function not prosecuted.

[jmm99]

to an ideal world, but we don't. If we did, CPT Hill would have been able to call in his partnered gendarmerie unit since indigenous security risks and interrrogation of them would be part of that unit's function. Of course, we do not have gendarmerie units. So, CPT Hill is told to Make Do; expected to say Can Do; and everyone lived happily ever after. Except they didn't.

While I won't go so far as your "total immunity", my two cents worth is that CPT Hill should have been pulled out, sent back home and given enough time to decompress, and then promoted to MAJ. That's an emotional response, I know.

As to "The LAW is being used as a weapon aginst US Soldiers", you'll find no argument against that proposition from me. What we should be exploring (and implementing) is how to use the Law as a weapon for US forces. At most, defensive measures have been employed in that area. Purely defensive measures generally don't work well in law. At some point, you have to at least mount a counter-attack.

And, yes, these wars are "Fugged up" - no doubt about that one.