Law and the Long War

[davidbfpo]

(taken from) The job of our combat troops is to reduce the threat not prepare for a trial.

Sometimes combat troops do have to prepare for a trial, from a UK perspective in Northern Ireland the Army did adjust to preparing for a trial, perhaps not in the early days. Towards the end the Army down to soldier level were very forensically aware and that information gathering through intelligence could become evidence. Others can comment on Malaya and other insurgencies which predate my horizon.

Now a long time ago, how about the deployment of US troops in the USA, during the rioting in Detroit and elsewhere? Was preparation for criminal trials excluded?

davidbfpo

[jmm99]

from David
Now a long time ago, how about the deployment of US troops in the USA, during the rioting in Detroit and elsewhere? Was preparation for criminal trials excluded?

Ken White can tell you the story from a military and police standpoint, since he was on the professional team that went in and managed to bring some order to chaos.

My experience was post-Ken's (by a couple of weeks), as part of the editorial team from Michigan Law Review that investigated and wrote up a report on the legal aspects - which I don't think is online.

Very simply, Detroit in its legal aspects (particularly, perservation of evidence) was well beyond "Fugged up".

[Ken White]

But the actual operation was straightforward and non problematical for us (if not for the Detroit P.D. or the poor Michigan National Guard). The only round fired in my Brigade was a harmless accidental discharge. We did throw some CS Grenades which dispersed the crowd of protesters intended but which also wafted into the City Jail. The prisoners, of course, not having masks...

Both at Little Rock, putting kids in school in 1957 and Detroit keeping kids out of jail in 1967 there were minor incidents that resulted in criminal charges before Federal Magistrates or Courts and in both State Courts. There were remarkably few detentions and most were simple and clearcut. In both cases, dues to the extremely short notice deployment, there was no preparation of the troops and no added training; everyone just acted with decency and common sense and there were no difficulties. People did have to testify in court. In Little Rock we stayed and to my knowledge all trials completed before we left. Detroit we left almost as abruptly as we arrived and witnesses were going back and forth for months afterward.

Later, in preparation for deployment to Washington DC for some anticipated riots, classes were given to the entire Division, all three Brigades -- most by civilian police officers, local North Carolina and from DC, some by JA Officers -- on arrest (of civilians not done by the US Army), detention (we do that, turn 'em over to civil authorities), evidence collection, witness statements, the whole forensic bit -- mile wide and an inch deep due to time constraints. In the event, a couple of other Brigades went but we didn't get to use the training. Fortunately, we went to Viet Nam instead.

[slapout9]

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.

Emphasis was added by me.

Now that is what I am talking about....everything in these fugged up wars should be geared to give us and our allies an advantage.....on every front political,economic,legal,social,intelligence,milit ary and anything else you can think of.

No power should ever be given to an enemy if it is possible to stop it!

[LawVol]

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.

I'm curious as to where in international law one can find the category "illegal combatant?" I only know of two categories: combatant and non-combatant, although differing terms are sometimes used (e.g. civilian for non-combatant). I aks this not to be coy, but to illustrate a point. Applying Hague to modern times, and in light of Geneva, one can conclude that Hague Article 44 (quoted above) would apply to combatants rather than just a belligerant army.

Given the choice of applying a combatant and non-combatant status to terrorists/guerillas/insurgents or whatever the nom de jure is, I think combatant would apply. Of course, this might also mean giving them POW status once captured, but I don't really see a major problem with this. As courts-martial in our own country shows, combatants can be tried for the commission of crimes in war (i.e. war crimes). But I digress.

Contrary to the thought that this amounts to nothing lore than simple legal nit-picking, it goes to the heart of determining legality. If I don't ask the questions, you get useless legal advice in the form of the seemingly standard legal response "it depends." In the scenario offered, possible differences with criminal law is the detained person's freedom to leave, the right to an attorney, the right to remain silent, etc. Since the scenario, IMO, should not involve criminal law, she would not necessaily have any of these rights, but would in a criminal law context. In other words, if she was merely a witness, she'd be allowed to leave. If she was a suspect and therefore actually being detaining, a Mirands warning would come into play, something I pretty sure battlefield interrogators do not want to do (maybe I'm wrong though since I've not worked with any).

Under the law of armed conflict, different rules come into play but, as a result, you're constrained in what you can do. There are provisions in international law that proscribe the torture of civilians (which the wife and sons are) and this threatening to do so indicates a willingness on the part of the US to ignore international law. Of course, some would say we're already doing this given the torture stuff in the news of late, but I'm only talking about torture vis-a-vis civilians. As a JAG (or any lawyer for that matter), my advice is not limited solely to the legal questions but should also consider the interplay between the legal issues and policy, strategy, etc. In the present case, this also means advising with that in mind. Thus, offering to violate international law is not something that should be taken lightly in light of the our need for coalition partners or at least have some folks quietly acquiesce.

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.

I'd be very interested in hearing any thoughts you may have on how we might go about doing this. I have an interest in this as well and recently explored the issue in my LLM thesis. Unfortunately, for our purposes here, the thesis was pretty much limited to space law issues but I may be broadening its scope.

[jmm99]

These are just some thoughts.

1. Legal actions vs funding sources - basically following the Alien Property Custodian process of WWII. Since these are civil actions, you can engage in discovery - almost limitless discovery. Yes, they can take the 5th, but that will eventually lead to a judgment against them.

2. Right now, there are a number of civil actions brought vs the USG and/or officials. Defense tactics have largely involved motions to dismiss (failure to state a claim, etc.), where the facts alleged are assumed to be true for purposes of the motion. So, bad publicity - Mr X was tortured Y times, etc., etc. Again, full discovery is available - again maybe multiple 5th assertions with the same result as #1.

3. Getting ahead of the enemy's agitprop machine - Schmedlap's talked about this in Lawfare (a "bumper sticker" term we are probably stuck with) - punch this and the following posts (including a few LawVols). PS - LawVol; in the linked post, Schmedlap asked some questions that are AF stuff - if within your areas of expertise and whether something you can talk about here ?

4. Long term strategic lawfare - which LawVol mentioned here. We just avoided being snookered on the 1977 Additional Protocals to the GCs. Since the 80s, some of those concepts have been sneaking in the back door via "customary international law". It's really amazing how much of that punditry is based on a mid-80s conference speech by a DoS Deputy Legal Advisor (a new source of law-making ! ).

The point is that we should revisit the Laws of War with the goal of adopting as positive law those principles which are to our advantage - and which fit our operational considerations. And, I am not talking John Yoo et al stuff.

[jmm99]

I don't like the term because, with respect to detainees, it confuses the law of detention with criminal law. I.e., if the guy is an "illegal combatant", then shouldn't he be prosecuted before a judicial court (given Miranda warnings, etc.). Instead, I look at the provisions under which people can be detained:

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").

However, there is a long Wiki (with many refs) which everyone can read and escape my lecturing on it - "Unlawful combatant". The 2003 opinion of Knut Dörmann, Legal Advisor at the Legal Division of the International Committee of the Red Cross, is here.

A more useful terminology is the juxtaposition of "regular combatants" and "irregular combatants", where various factual tests can be applied and related to the operational context. E.g., in the context of pseudo operations, see here, here, here, here and here for references and comment.

Now, all of this having been said and read, I don't find much guidance in the punditry on these issues - especially in what was written before the SCOTUS decisions from Hamdan (2006) to date.

The law in this area, for US lawyers, is what is under development in the DC District and Circuit courts. Unless you are familiar with those cases, you cannot present any sort of intelligent legal argument.

[goesh]

I see nothing immoral about this scenario and it slides the reader down a slippery slope towards the ICC/Hague, where both entities would without hesitation trump the US Consitution with vigor IMO. The world is not one village where enlightened men have created a gold standard of morals and law to be enforced by fallible men. First, the species must necessarily kill one another from time to time and that is a hard nut for some to crack despite the evidence of recorded history and the literal sea of blood that has been shed over the centuries. Secondly, the apalling impotency of powerful nation states to directly intervene during times of real genocide, i.e. Rwanda, Darfur, Cambodia, Columbia, the Congo, etc leaves this scenario essentially a parlor game where but a privliged few get to participate and fallible men of action are forced to stand idle. Said nation states are packed to the hilt with Law and Morality.

[jmm99]

While the 1968 MLR article is not on line, the 1967 initial report is here (part 4 of a 9 part series; the rest dealing with other aspects of this "civil disorder"). About 6,000 persons were detained by Detroit PD and Mich National Guard, and slightly over 3,000 of the 6,000 prisoners had a “previous arrest” record. The judicial system was unable to handle the overload.

A common view after things had settled down was that, in most of these cases, it would have been better to simply issue summones, instead of detaining people. Most of the persons detained were held under misdemeanor or curfew violation charges. From what Ken writes, his unit followed a limited detention policy.

[Boondoggle]

Just catching up.

But saw this while taking a lunch break and thought to post it here:

http://www.foreignpolicy.com/article...icence_to_kill

License to Kill
When I advised the Israel Defense Forces, here's how we decided if targeted kills were legal -- or not.

BY AMOS N. GUIORA | JULY 13, 2009


Short but very intersting read. He is a graduate of the law school at Case Western Reserve interestingly enough. Great perspective on these issues he brings to the table.

http://www.law.utah.edu/profiles/?PersonID=6581

[slapout9]

While the 1968 MLR article is not on line, the 1967 initial report is here (part 4 of a 9 part series; the rest dealing with other aspects of this "civil disorder"). About 6,000 persons were detained by Detroit PD and Mich National Guard, and slightly over 3,000 of the 6,000 prisoners had a “previous arrest” record. The judicial system was unable to handle the overload.

A common view after things had settled down was that, in most of these cases, it would have been better to simply issue summones, instead of detaining people. Most of the persons detained were held under misdemeanor or curfew violation charges. From what Ken writes, his unit followed a limited detention policy.

During my time 72-75 in the 82nd, every summer we lived and breathed Civil Disturbance training and there were some deployments and potential real,real close deployments. I am trying to find the Civil Disturbance card we were issued by DOD and had to carry on our person. This may take awhile I do remember when we were IRC (Initial Ready Company) they put what was called a stop lock on our M-16's, this is a device inserted into the weapon by the armorer that prevented the selector switch from being placed on full automatic as that was forbidden in all anticipated caes in which we would deploy. More later.

[Ken White]

From what Ken writes, his unit followed a limited detention policy.

we turned them over the Cops or the MiArNG and our Engineer Company helped them build detention and processing pens in a location under the stands in one of the sports Stadiums IIRC. Best I can recall we only picked 20-some odd. Think the Bde from the 101st might have picked up some but doubt they detained many, they arrived a day later and left a day earlier. Been a while...

Little Rock was a different game initially, we had a slew of US Marshalls until it was obvious that Faubus was going to cooperate. The city of Little Rock did cooperate rather grudgingly...

[Schmedlap]

Sometimes combat troops do have to prepare for a trial, from a UK perspective in Northern Ireland the Army did adjust to preparing for a trial, perhaps not in the early days. Towards the end the Army down to soldier level were very forensically aware and that information gathering through intelligence could become evidence. Others can comment on Malaya and other insurgencies which predate my horizon.

As early as 2005, my Soldiers were being shuttled via helicopter to a court room in Baghdad to testify against individuals whom we captured. Also in 2005, part of our SOPs following detention of an individual was to photograph him, photograph his weapons/ammo/etc, photograph him with the weapon, photograph the surrounding area, and immediately draft sworn statements by at least three individuals - including at least one by an NCO and, if an officer was involved, from an officer as well. All of this was done for the specific purpose of these items being entered into evidence if the individual went on trail, after being handed over from our Brigade Internment Facility to an Iraqi facility.

Those steps were implemented as part of our procedures because the feedback that we got from earlier trials were that the Iraqi judges wanted to see this evidence. Toward the end of the deployment, we got more feedback from judges, stating that some of our evidence was unnecessary, since it was so overly exhaustive, so we were able to scale it back a little.

In 2007, some of the "metrics" tracked by my task force included the rate at which individuals whom we captured were convicted in court. It was over 90%, in large part because of the focus on collecting evidence and documenting it in a court-friendly way. I would also add that whether or not we had enough information on an individual often was a determining factor for when, or whether, we launched a mission to grab him.

[Greyhawk]

Took me a while to realize why some of this discussion sounded familiar.

You may remember some grumbles surrounding this story last year, a few folks were convinced President Bush was going to somehow use this "Brigade" thing to control the country and perpetuate his power...

http://www.armytimes.com/news/2008/0...eland_090708w/

It is very different than NG deployment, but shouldn't have been all that startling in the wake of Katrina lessons learned.

Don't know what the status (or future) of this plan any more.

I also recall some grumbles when AD guys were recently seen 'directing traffic' in the streets of Dothan in the wake of a killing spree.

[Ken White]

...It is very different than NG deployment, but shouldn't have been all that startling in the wake of Katrina lessons learned.

that the news media are totally incompetent and that a dysfunctional city government plus a Governor playing party politics instead of asking for help (a lesson also learned in Florida after Hurricane Andrew) can mess up the works considerably. One can add that FEMA is fouled up -- no news there, they've always been. Patronage and political favor operations usually are.

Having lived through half a dozen Hurricanes and worked on the Army response to five both while in and as a DAC, the Katrina response was really pretty good. Better than Andrew, for sure. Helicopters launched from Eglin and Pensacola less than 45 minutes after the eye passed NOLA, the 1st Army stock and people, prepositioned at Camp Shelby, MS had to be moved when Katrina shifted east a bit but they were still in town in less than 12 hours. The USS Bataan even followed the eye upriver by a few hours...

[jmm99]

Boondoggle

Prof. Guiora was LTC Guiora in the IDF's JAG Corps for nearly 20 years, so he knows whereof he speaks - also authored some other intelligent articles on LOAC issues. The US probably has more room to work in this area than the Israelis - The Israeli basic organic law (and the status of Gaza and the West Bank) place certain limitations on targeted kills. However, just because you have a hunting license, doesn't mean you kill everything in the woods. The difficult factual question is positive ID of the target. The legal issues revolve on how far to go down the infrastructure chain. At some point, the rules change from military to law enforcement (at least that is the current conventional wisdom).

Schmedlap

Outstanding. Another piece of evidence to silence the whiners' claim that combat units cannot collect adequate evidence, or handle detainees properly. Whether that is the highest and best use of their time is another issue; but, in the absence of specialized, gendarmerie-type units, who else will do it ?

Greyhawk

I never thought Pres. Bush would play the Man on the White Horse bit. But the John Yoo & Company opinions on "inherent presidential" powers in domestic, internal matters provided conspiracy theorists with great fodder.

The reality of an "on-call federal response force for natural or manmade emergencies and disasters, including terrorist attacks" seems connected to Joint Publication 3-40, Combating Weapons of Mass Destruction (10 June 2009), as one possible use.

Some of the issues are outlined in this seminar blurb (March 11, 2009). July article & Wiki. The Marines have had for a long time the much smaller Chemical Biological Incident Response Force (CBIRF; T.X. Hammes' unit).

[slapout9]

In the right hand corner of the card is GTA 21-2-7 December 1970 (supercedes GTA 21-2-7 January 1969)


The title is:
Special Orders For All Military Personnel In Civil Disturbance Operations

There are 8 of them and I will paraphrase them below.

1-carry out your duties in a military manner and present a proper military appearance.

2-have regard for the human rights of all persons. be as nice as possible to civilians. do not mistreat anyone or withhold medical attention. do not destroy property unnecessarily.

3-use only the minimum amount of force to accomplish the mission or defend yourself. when under control of an officer load and fire your weapon only on command. when no officer is present load and fire to defend your self or others or designated property that is vital to public health and safety or to prevent the escape of persons that are a threat to public safety. not authorized to use firearms against suspects for misdemeanor offenses.

4-shoot to wound not to kill.

5-when possible let police arrest the offenders however when police are not present it is your duty and you have the authority to make arrest. transport them ASAP to proper detention facilities. help police protect evidence and fill out reports.

6-allow properly identified media all access so long as they do not interfere with your mission.

7-do not talk about this operation to civilians refer them to your commanding officer.

8-become familiar with these special orders and carry this card with you at all times when engaged in civil disturbance operations.

------------------------------------------------

Used to have a copy of the Riot Act.....the Proclamation that would be read through a bull horn ordering them to disperse before we started to disperse them. It is lost somewhere.

Almost went to the presidential conventions in 72....almost went to Wounded Knee after the Indians shot some FBI agents we had boarded the aircraft on that one. There was one other one but I can't remember it.

Of course there was the time when General Krosen (Division Commander) threatened to deploy the 1st Brigade against the 3rd Brigade on a 4th of July weekend... seems several cases of artillery simulators fell into insurgent custody and were being deployed all around Ft. Bragg.......the AO seemed to be concentrated in the on post officer housing area Just seemed like good Airborne training to me.

[Rifleman]

4-shoot to wound not to kill.

Not acceptable in police operations these days. You do not attempt to use something intended to be lethal force as a less lethal option. There are never "shoot to kill" or "shoot to wound" directives in police operations. If you are shooting it's understood that lethal force is justified and that you are intending to kill. There are other less lethal options.

It hasn't always been this way. I won't take up space listing examples of when "shoot to wound" directives have backfired, just know that they have.

I have no doubt you know that Slap, I'm just mentioning it for other readers.

[slapout9]

Not acceptable in police operations these days. You do not attempt to use something intended to be lethal force as a less lethal option. There are never "shoot to kill" or "shoot to wound" directives in police operations. If you are shooting it's understood that lethal force is justified and that you are intending to kill. There are other less lethal options.

It hasn't always been this way. I won't take up space listing examples of when "shoot to wound" directives have backfired, just know that they have.

I have no doubt you know that Slap, I'm just mentioning it for other readers.

Rifleman, I almost put that one in quotes because it was and is a bad policy. Deadly force is not something that should be trifled with in any way...you can't recall bullets. This same policy was in place when we pulled guard duty at the Main Post Stockade.......carrying a Winchester M1200 with 00 buckshot......how can you shoot to wound with something like that

[jmm99]

Amen. A problem with "shoot to wound" as a policy (besides the practical problem of placing a "wounding shot" in a stress situation) is that it gives ammunition to lawyers to make the argument (citing the policy) that a "wounding shot" should have been used, etc., etc.

My own little mantra is - Armed ? Hostile ? Center of Mass. I shot to stop the situation. In line with Michigan law, especially in home invasion situations, where there is a presumption in favor of the home owner. However you want to express it, the focus is on the threat and how it was ended.