Law and the Long War

[Ken White]

.......carrying a Winchester M1200 with 00 buckshot......how can you shoot to wound with something like that

and the ricochets * will scatter widely, increasing the possibility of a leg or lower body and thus (maybe) no fatal wound. **

That's serious and it works (Do not try this at home ).

What's even more serious is that 'shoot to wound' should never be a directive or an order. Never. Like Slap said "you can't recall bullets." JMM is also correct in that such an order is pure Court fodder and little else. ***

* Provided it's hardstand or firm ground, don't work in red clay mud...

** He said, as he belatedly applied a tourniquet to stop the flow from a single pellet nick in the Femoral...

*** The good news is that BS (Before Slap) the Guards carried M1s with 16 rounds and it was understood that if they fired, it was to kill. One I'm aware of, 1963, some off duty Coscom troop trying to scuff some food, apparently to sell, got shot by a sentry from the '04, miscreant died and the shooter got charged with a violation of Article 118, was tried under a lesser included offense of Negligent Homicide, Article 134, and was found not guilty simply because he was not negligent (but mostly to make sure the family of the deceased couldn't later come after the shooter). Then the PoS (Period of Slap) and shotguns replaced M1s, later, AS (After Slap) they went to night sticks and a radio -- no way to even wound, really, just call for the MPs (who are always trigger happy... ).

[slapout9]

Then the PoS (Period of Slap) and shotguns replaced M1s, later, AS (After Slap) they went to night sticks and a radio -- no way to even wound, really, just call for the MPs (who are always trigger happy... ).[/I]

Ken,You got me remebering...we were told to shoot below the waist....it was on our post orders covered in combat acetate and they literally hung around our neck as I remember. Also the switch to nightsticks my actually have happened before I left. Some guy from Charlie or Alpha Co. 2/504 actually shot somebody and he ended up paralyzed(bullet through or near the spine-technically below the waist???) but survived the shooting. No charges were filed because it was a good shoot per our orders but it resulted in a policy change. When I left I think the only shotgun post we had was Division Finance...some people still got paid in cash after payday Formation.....explain that to the young'uns.

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Back to Civil Disturbance training, we used real CS during our training and would have used it in a real deployment to. I may be wrong but I don't think the Army can use CS anymore on regular civilians. We had a Ring Foil device for our M-16's also, never got to try it out on anybody.....but I wanted to I liked Riot Control training I made the suggestion that we should have an Expert Riot Control Badge as you can see this never happened along with a bunch of others...except one finally did make it 30 years later.

[Rifleman]

None of that was necessary when guarding the 2nd Brigade motor pool. Coscom pukes knew the 325th Airborne Infantry Regiment - The Falcon Regiment - was on duty. They wouldn't dare confront a Falcon! Musta been the threat of talons, huh? They looked elsewhere, hence the incidents with the demons in baggy britches.

I can't wait for the replies.

[Ken White]

I like Gliders and one son was a White Chicken. Er, Falcon. So you get slack from me.

[slapout9]

None of that was necessary when guarding the 2nd Brigade motor pool. Coscom pukes knew the 325th Airborne Infantry Regiment - The Falcon Regiment - was on duty. They wouldn't dare confront a Falcon! Musta been the threat of talons, huh? They looked elsewhere, hence the incidents with the demons in baggy britches.

I can't wait for the replies.

Rifleman,thats right we only guarding the important stuff....we didn't sweat the small sheet



Ken, you ever know a Sgt. Charlie Brown ? looked like Alice Cooper with short hair.

[Ken White]

Ken, you ever know a Sgt. Charlie Brown ? looked like Alice Cooper with short hair.

scary...

[Uboat509]

Ken,You got me remebering...we were told to shoot below the waist....it was on our post orders covered in combat acetate and they literally hung around our neck as I remember.

There is a school of thought in the SOF community that shots to the pelvic girdle are preferable. The idea is that the pelvic girdle is highly vascularized, unarmored and even small caliber wounds (.223) can destabilize the pelvis and drop the target. It is generally presented as an alternative to the failure drill (two to the chest and one to the head). It has its adherents but it never really has had a lot of support.

SFC W

[Schmedlap]

There is a school of thought in the SOF community that shots to the pelvic girdle are preferable.

Preferable for what? It doesn't seem like it eliminates the threat - at least not immediately. I would think that the target might be able to squeeze off a round or two while he bleeds to death or even to manage a last burst of strength to get up and do more. These guys continued to fight after taking 7.62 rounds in the abdomen and hip.

I guess it could be preferable to shooting in the chest if the enemy has body armor. We generally trained on cardiothoracic, head, and pelvic girdle, but that was also the order of preference.

[slapout9]

Uboat509, I believe there is a limited place for shoot to wound as in some SWAT and Sniper operations, other than that it is a bad policy and bad law. At one time the pelvic girdle theory was in some LE circles and it died a fast and deserved death.

[Schmedlap]

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.

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.

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.

Someone correct me if I am wrong, but this seems to be the crux of the issue.

Does an al-Qaeda operative derive his protections from the LOAC? If so, can he surrender these rights by disregarding the LOAC?

Are our legal powers derived from the LOAC? Or are our powers derived from our Constitution and those powers limited on the international stage by treaties that we are a party to?

If an operative surrenders his protections, does this mean that our powers are expanded and we may handle that individual in a manner inconsistent with the LOAC? Let's say that the answer is no. For the sake of argument, assert that the LOAC does not govern our actions on an individual-by-individual or organization-by-organization basis. It governs our actions in war, period. But that begs the question: Does the LOAC create protections or does it simply put restraints on the actors, or both? Does it say, "X force may not be exerted against individual Y" or does it say, "Z actor may not exert X force, period" or both?

My hunch is that it is both. In other words, it is sometimes redundant. If individual Y surrenders his protections, he nonetheless enjoys the benefits of those protections because of the redundancy of the LOAC, which continues to restrain Z actor. This seems problematic to me. Suppose in the US there is a criminal law against shooting people and a civil law giving recourse to someone who gets shot. Now suppose a guy essentially waives his right to protection from the criminal law by shooting up a shopping mall. But imagine that there is some gap in the civil law that still allows him to collect damages from the off-duty cop who guns him down. That seems to be the situation with the LOAC. Khalid Sheikh Mohammed is a known turd who arguably surrenders his protections under the LOAC. Our boys grab him, but remain subject to LOAC constraints upon their actions. In effect, the turd continues to enjoy the protections of the LOAC even though he surrendered those protections.

[Uboat509]

Preferable for what? It doesn't seem like it eliminates the threat - at least not immediately. I would think that the target might be able to squeeze off a round or two while he bleeds to death or even to manage a last burst of strength to get up and do more. These guys continued to fight after taking 7.62 rounds in the abdomen and hip.

I never said it was a popular theory. It as some merit. The pelvic girdle is larger and and less mobile than the head and is thus an easier target. Plus if you do actually hit the pelvis you will likely destabilize it a drop the target. Plus, due to the vascularity, pelvic wounds are often non-survivable. On the negative side, as noted, these wounds are also not immediately lethal. It was discussed but there was never a whole lot of interest in it.

I guess it could be preferable to shooting in the chest if the enemy has body armor. We generally trained on cardiothoracic, head, and pelvic girdle, but that was also the order of preference.

That was pretty much the way it was, and is, for us as well.

It's interesting that you posted that article. That was my company. I was with another team up in Kirkuk when that went down.

SFC W

[slapout9]

Suppose in the US there is a criminal law against shooting people and a civil law giving recourse to someone who gets shot. Now suppose a guy essentially waives his right to protection from the criminal law by shooting up a shopping mall. But imagine that there is some gap in the civil law that still allows him to collect damages from the off-duty cop who guns him down.

That has happened!!!! and can still happen.....more than once!!!!


Where do we derive our power from is an excellent question? I don't know the final answer....maybe Lawvol or jmmm9 can comment.

When it comes to pirates the US Constitution is very specific about that, Congress has the power up to an including disposition of any property that may have been seized. Them Old Guys new how to handle stuff.....whip their ass and take their cash....this should have been our policy from 9/12 forward.

[jmm99]

Let's start with the question of "sources"

Sources of power (and sources of restrictions on power; and sources of protections against the misuse of power) in the US - scarcely rocket science (I leave state laws out of this, for the moment, but they follow a similar pattern):

1. Federal Constitution; and

2. Federal "laws".

What are those "laws" ?

1. Statutes (e.g., UCMJ)

2. Regulations (e.g., DoD Directive 5525.7, implementing interagency co-operation agreement between DoD and DoJ re: Investigation and Prosecution of Certain Crimes)

3. Rules (e.g., Rules for Courts-Martial, R.C.M.)

4. Executive Orders (e.g., 1984 EO authorizing the Manual for Courts-Martial, as subsequently amended - see App 25 of 2008 MCM).

5. Treaties ratified by the Senate (e.g., 1949 GCs, but not 1977 APs); and Executive Agreements (2 kinds: Presidential, based solely on presidential powers; and Presidential-Congressional, based on joint powers).

6. "Common law" (domestic and international). Huge areas (mostly in civil actions) incorporate domestic common law (e.g., diversity cases where the rules of decision require Federal courts to refer to state substantive statues and common law decisions); and some international non-treaty law (e.g., admiralty, international insurance, commerce and financial).

In the criminal area, incorporation is generally via statute (e.g., Article 18 UCMJ incorporating international law, or Article 134 incorporating Title 18 statutes). A general Federal criminal common law has been rejected since the War of 1812. However, the "common" laws of war can enter the UCMJ via military commissions or tribunals as an adjunct to the UCMJ (and has been such since the Civil War) - e.g., Quirin (WWII executions of Uboat special ops) and Yama####a (post-WWII execution of general for war crimes committed by others).

So also, "customary international law" can be incorporated (by whom and by what process are issues); but, despite the love of I Law pundits for "customary international law", it has not been a favored source of law for SCOTUS (so far, at least).

So, the sources are the same for powers, restrictions on powers and protections against powers misused. In short, you have to look at the entire legal environment - sound familar ?

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Protections & Questions from Schmedlap

These are answered solely on the basis of existing US law, as presented by the Obama DoJ to the Federal courts; and the latter's acceptance or modification of that presentation.

Does an al-Qaeda operative derive his protections from the LOAC?

Yes; but let's look at what his protections are before becoming an al-Qaeda operative. He is then clearly a civilian (non-combatant) under the Hague-Geneva Conventions; he also could be a US citizen, legal resident alien, unlawful resident alien or a non-resident (different protections depending on his status). Let's take the simple non-resident case (Akmed in Astan). While a civilian, he is entitled to e.g., the protections of GC IV.

If so, can he surrender these rights by disregarding the LOAC?

Yes, but only to the extent that he ceases to be a civilian. So, Ahmed becomes an "AQ operative" - what does that mean ? If he picks up an AK, no question that he is a combatant (not a "regular combatant", but an "irregular combatant" because AQ flunks Common Article 2 by not accepting or applying the GCs).

That means that under the 2001 AUMF and LOAC (if the ROE/RUFs are not more restrictive - which is a big if, about which everyone is aware), he can be killed or captured at any time and place. That kill or capture rule applies even if he is not committing a hostile act or is not exhibiting hostile intent by an overt threat. In short, he can be popped even if he has put down the AK and is taking a leisure moment at the latrine.

Now, kill or capture at any time or place is the same default rule (absent more restrictive ROE/RUFs) that we would have in a declared war against "regular combatants" (e.g., the Wehrmacht in WWII). There is a difference in the capture part of the equation.

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").

See this post for more.

But, Ahmed doesn't like AKs. However, he is more than willing to cook for the AQ fighters; transport them, their ammo, weapons and other supplies; and carry out ISR for them. Or, he happens to have some education and is one very good explosive production man (just makes them; total klutz at placing them). Or, having lived long in the "West" (or being an expat US citizen) becomes an expert in agitprop and using infofare vs the US. Or, having left the AK (well, not quite since it's still on the wall), he becomes a planner of operations - or, on an even higher level, a strategist and policy maker. Or, not being good at any of the above, becomes a financier of AQ.

Now, my readers, where do you want to draw the line between "irregular combatants" (unprotected from kills; but still having Common Article 3 protections if captured) and "civilians" (protected from kills and having full GC IV protections), in all of these variant Ahmed situations ? You tell me.

Are our legal powers derived from the LOAC? Or are our powers derived from our Constitution and those powers limited on the international stage by treaties that we are a party to?

Answered above as to sources (of powers and limitations).

If an operative surrenders his protections, does this mean that our powers are expanded and we may handle that individual in a manner inconsistent with the LOAC? Let's say that the answer is no.

If an "operative" loses his "civilian" status and becomes an "irregular combatant", our powers obviously expand in the kill or capture (any time, any place - if more restrictive ROE/RUFs are not in effect); and some tactics (e.g., pseudo ops) may be legal (wisdom is another issue). No individual, organization or war (armed conflict) may be handled in a manner inconsistent with the LOAC.

For the sake of argument, assert that the LOAC does not govern our actions on an individual-by-individual or organization-by-organization basis. It governs our actions in war, period. ....

The premise asserted just muddies the waters - LOAC create protections and put restraints on the actors. Repeat, No individual, organization or war (armed conflict) may be handled in a manner inconsistent with the LOAC.

My hunch is that it is both. In other words, it is sometimes redundant. If individual Y surrenders his protections, he nonetheless enjoys the benefits of those protections because of the redundancy of the LOAC, which continues to restrain Z actor. This seems problematic to me.

Not problematic at all. By changing his status, Y is covered by some rules which are different (cuz status changed) and some which are the same (cuz they cover regardless of status). Same for Z.

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Domestic and KSM

Suppose in the US there is a criminal law against shooting people and a civil law giving recourse to someone who gets shot. ....

The "guy" does not "waive his right to protection from the criminal law". The guy, by shooting up the mall, has changed his status from that of a non-criminal to that of a criminal - and becomes subject to the criminal law, although he still retains most of his rights as a US citizen or US resident (he loses some if convicted).

Yes, he can sue the cop that shoots him (or his family can if he's killed). That takes only a lawyer who is willing to take the case and a filing fee. If properly defended (insurance companies and municipalities have settled far too much), that case has a dismal future. Most perps have a bad record - and many things to hide. These are civil actions. So, discover the hell out of the defendant and all of his witnesses. After they have taken the 5th a few dozen or 100s of times, the case should be in shambles.

And, usually the cop (probably cops) involved have sustained physical and/or mental injuries (hire Grossman as an expert witness). So, counterclaim and continue nasty discovery regardless of what the insurer or municipality does. Cops who aggressively counter-attack will generally do better before most juries than perps.

That seems to be the situation with the LOAC. Khalid Sheikh Mohammed is a known turd ....

Same idea - change of status and different rules. You have to look at the complete legal environment - which rules apply depends on the specific context.

KSM and his friends have stated that they wish to surrender all protections and accept execution. Normally I don't suggest going with terrs' wishes, but this must be kind to man-eating tigers' week. I think that is a fine idea on KSM's part. I wonder if he would go through with it ?