U.S. troops face Afghan enemy too young to kill

[Polarbear1605]

I cannot resist weighing in here. I think it is time for Commander’s to start pushing back on their lawyers regarding ROEs and the Laws of War. They need to push back based on the individual Soldier and Marine’s right to self-defense. They also need to push back on the fact that the Laws of War state that military necessity is determined by the “field commander”. Another process that might teach lawyers about the Laws of War is to have them start charging for violations of the Laws of War instead of the Rules of Law.
I can’t wait for the responses on this one…it’s one of those spider fly thingys.

[JMA]

I cannot resist weighing in here. I think it is time for Commander’s to start pushing back on their lawyers regarding ROEs and the Laws of War. They need to push back based on the individual Soldier and Marine’s right to self-defense. They also need to push back on the fact that the Laws of War state that military necessity is determined by the “field commander”. Another process that might teach lawyers about the Laws of War is to have them start charging for violations of the Laws of War instead of the Rules of Law.
I can’t wait for the responses on this one…it’s one of those spider fly thingys.

One has to give the Taliban ten out of ten for seeing and exploiting the weaknesses in the ROE caused by the sensitivities towards negative media exposure. Don't blame the lawyers, blame the idiot generals that allowed them in in the first place.

[Polarbear1605]

one has to give the taliban ten out of ten for seeing and exploiting the weaknesses in the roe caused by the sensitivities towards negative media exposure. Don't blame the lawyers, blame the idiot generals that allowed them in in the first place.

hear, hear!

[JMA]

hear, hear!

Is it true what they say that the US have more lawyers in Afghanistan than helicopters?

[Bob's World]

Is it true what they say that the US have more lawyers in Afghanistan than helicopters?

...I'm not ready to laugh about it yet

(though for all my frustrations on this topic with said legad, over all she did a tremendous job and was a great lady (also a good inch taller than me and a trained boxer, so I was always sure to either mind my manners or at least pay attention to if I had room to take a quick step back or not)).

The fact is that the law is a mess for these things, and she was merely representing that mess.

Another example, I got into a discussion on my belief that we were better served by employing legal terms, such as "reasonable suspicion" and "probable cause" to drive engagements over the current vague "Positive ID" that is leading to so many inappropriate engagements under the current ROE and Tactical Directives. "Impossible" "That would imply law enforcement rather than war, and while we are authorized to wage war in Afghanistan, we are not authorized to conduct law enforcement." "We would have to leave if this were a law enforcement matter."


Really??? Perhaps that is something we should seriously consider. I am resolved that insurgency is a civil emergency and should be addressed as such, with local civil authorities in clear lead, and any military involvement being brought in under the same auspices that we do for any other MSCA event. HN military first, and any foreign military behind and subordinate to that of the HN.

"Sorry, we'd really like to stay and help you with this mess, but the only proper way to do that is illegal, so we'll be going now..."

[jmm99]

is exactly what you describe:

from you
Another example, I got into a discussion on my belief that we were better served by employing legal terms, such as "reasonable suspicion" and "probable cause" to drive engagements over the current vague "Positive ID" that is leading to so many inappropriate engagements under the current ROE and Tactical Directives. "Impossible" "That would imply law enforcement rather than war, and while we are authorized to wage war in Afghanistan, we are not authorized to conduct law enforcement." "We would have to leave if this were a law enforcement matter."

One of the "magic" terms in the PID definitions is a "reasonable certainty".

Now I know what a "certainty" is (probability = 1.0000....); but what is a "reasonable certainty" ? Do we have such a thing as an "unreasonable certainty" - apparently so, else "reasonable certainty" has no juxtaposition.

The term "reasonable certainty" is in fact lifted from civil litigation - as in: "Doctor, do you have an opinion within a degree of reasonable medical certainty." That phrase has neither a legal nor a medical meaning - and to find out, object to the question and voir dire both the lawyer and the doctor for supporting authorities. The doc will say I thought that's a legal term; the lawyer will say I thought that's a medical term - and both will be wrong.

Without due respect for your pugulist distaff LEGAD, her presentations cited by you lack "rigour" (as the Wilf might say). But, that's what happens when her masters attempt to satisfy multiple sets of conflicting LOACs.

The result in fact raises the bar over what would be allowed under a correct law enforcement approach (the paradigm you want), or a correct Laws of War approach (my take - aka the White Bear Construct).

Now, JMA, you may now proceed with your barrister and/or solicitor jokes.

Regards

Mike

[jmm99]

Here is the answer (re: "reasonable certainty") from one of the cases that the Bear and I have followed:

LA Times, IRAQ: To shoot or not to shoot is the question, July 2, 2008

In the end, the criminal case against Marine sniper Sgt. Johnny Winnick may boil down to the simplest but yet most confounding question facing troops in Iraq: When can a Marine or soldier use deadly force against a suspected insurgent?

It's a question not even supposed experts can agree on. During the preliminary hearing completed Wednesday, a Marine lieutenant testified that he asked two majors - one a lawyer, the other a battalion executive officer - and got contradictory explanations.

Winnick is charged with manslaughter and assault for killing two Syrians and wounding two others.

Winnick says he opened fire because he believed the men were planting a roadside bomb, but no bomb was found. His superiors say he lacked the "positive identification" and "reasonable certainty'' needed to squeeze the trigger.

But what do those terms mean, particularly for snipers whose job is to kill the enemy from ambush at long range?

Winnick's attorney, Gary Myers, tried to get one of Winnick's fellow snipers to define "reasonable certainty." The young Marine said that, well, reasonable certainty means being reasonably certain.

"This is all words," said an exasperated Myers.

An officer testified that reasonable certainty means being "85% certain." Another said it means being "pretty damn sure."

A Pentagon expert called by Myers disagreed with the "85% certain" rule. He thinks young troops are being given confusing and contradictory guidelines by their superiors. He's written about his concerns in a tome titled ''Combat Self-Defense: How to Save America's Warriors From Risk-Adverse Commanders and Their Lawyers."

So, definition means the difference between a criminal indictment or a valor citation.

LEGADs can spout all they want about international law and international relations; but responsibility 1 should be to the rifleman at the tip of the spear.

Regards

Mike

[jmm99]

thought you'd find it hard to resist this topic.

I'd say look not only to generals, but to a confluence of politicians and generals who set the legal policy. The SJAs can influence it to some extent, but are still instruments of the national command policy.

Realistically, what could you and I do in Astan given the policies in place ? But, if the policy was to go back to FM 27-10 and implement its doctrines as written, I'd expect we could do more than just gnaw at ankles.

Best,

Mike