Lawfare - Theory & Practice

[jmm99]

by whatever (), the LWOT (presumably the Legal War On Terror) can be accessed at FP's mainpage - nearer bottom under "The Latest from FP" (same place as Bob Haddick's SWJ weekly feed to FP); but it also has its own section, THE LWOT (presently, 4 articles). The latest article is The LWOT: The “Al Qaeda Seven” Revealed; Supreme Court Hears Foreign Torture Trial.

This appears to be more a news item feed than a legal analysis blog. Of course, you can then follow up the news item to get (eventually) to the meat of the situation.

And, from one of the news items, a cheerful note from the UK via the Telegraph, Guantanamo: £30m torture case bill for taxpayers:

Compensation claims lodged against the Government by six former Guantanamo Bay detainees are likely to cost the taxpayer more than £30 million in legal bills, The Daily Telegraph has learnt.

By Gordon Rayner, Chief Reporter
Published: 7:30AM GMT 01 Mar 2010

Binyam Mohamed, who is at the centre of a row over Britain’s alleged complicity in torture, and five other men are each suing MI5 and MI6, claiming the security services were complicit in their alleged torture in custody.

They could be awarded between £200,000 and £500,000 each if they win their cases, but spiralling legal bills will dwarf any damages awards, as the joint action by the men is currently expected to take seven years to work its way through the courts.

Sources close to the case have disclosed that 75 lawyers have been hired by the Government to sift through hundreds of thousands of classified documents relating to the detainees’ arrests and treatment.

It will take up to five years for the Government to prepare its defence, at a predicted cost of £20m, and because all six of the former detainees are being given legal aid to fight for compensation, their own lawyers’ fees and court costs are expected to add another £10m.

A source within Whitehall told The Daily Telegraph that £30m was “a conservative estimate” for the final cost of the case. ... (more in story)

Who says Lawfare does not pay ?

Regards

Mike

[Boondoggle]

http://www.longwarjournal.org/archiv...eda_senten.php

There's a lawfare lesson in there: Don't get caught doing anything that lends itself to a (fairly) straightforward criminal case. Here, Siddiqui picks up a rifle and shoots a soldier. If she doesn't do that, they either have to send her to Gitmo or try her based on her participation in various plots which brings all sorts of side effects that we've been trying to avoid (CIA, potential torture of witnesses, methods etc...) If I'm AQ I make it SOP that when I'm caught, take the fight to us through the courts, not with your hands.

And this is probably appropriate for this thread, been following for a few weeks, I might start commenting occasionally on their blog here since they're not taking comments (they're scared of the mud):

http://www.lawfareblog.com/

[Bob's World]

Rather than looking at the law as simply one more LOO or weapon for defeating the threat; I believe there are more practical applications for legal approaches to mitigate the conditions that give rise to and empower these non-state threats.

One primary application is that of "Sanctuary." High time we evolved from the tired, and entirely incomplete cliché of "ungoverned spaces" and evolved to a more sophisticated and complete understanding of what truly provides sanctuary to these groups.

First, all insurgents and terrorists are by definition outlaws, so they have their first sanctuary right there. One is not constrained by the law once they opt to live and act outside it.

Second, being "non-state" actors they are also outside the rules and tools designed for the control of proper state behavior. We must develop new legal approaches that deny this 'sanctuary from consequences' much more effectively than current approaches.

Another critical component to sanctuary is the support of poorly governed populaces. Understanding what aspect of governmental actions contribute most significantly to such perceptions and then crafting and enforcing laws aimed at the governments that create these conditions we nick away at their sanctuary even more.

Next we need better laws for allowing short-notice, short-duration punitive raids to deal with critical nodes of networked terror organizations. There must be checks and balances, and full communicaitons and transparency behind the scenes (to the degree possible); but we can't keep rubbing other peoples faces in it when we decide we want to pop into their country to whack somebody.

This is just one area, but for me, if lawfare is just another rocket to shoot at the insurgent himself, it not much value added. I would expect lawyers to be a bit more clever and devious in their approaches...

[jmm99]

Benjamin Wittes (legal media background), Jack Goldsmith (legal academic) and Robert Chesney (legal academic) won't let you play with them; thereby curtailing your mud wrestling practice ?

Plan A: Why don't you and Polarbear kidnap them and take them out into the boonies for a condensed version of TBS ? I'm sure that in no time at all the two of you could knock off some of the polish and reduce them to more rough-edged versions of their present selves.

Plan B: your posting comments and links to their blog in this thread, would be most welcome.

-------------------
A lot of the BS in this area can be blamed on too many justices writing opinions. Back in 2004, SCOTUS decided Hamdi v Rumsfeld. That, of course, was a decision in result only with 4 separate views being offered.

First, the plurality opinion (4 justices):

Justice O'Connor wrote a plurality opinion representing the Court's judgment, which was joined by Chief Justice Rehnquist and Justices Breyer and Kennedy. O'Connor wrote that although Congress had expressly authorized the detention of unlawful combatants in its Authorization for Use of Military Force (AUMF) passed after 9/11, due process required that Hamdi have a meaningful opportunity to challenge his detention. However, Justice O'Connor used the three-prong test of Mathews v. Eldridge to limit the due process to be received. This required notice of the charges and an opportunity to be heard, though because of the burden upon the Executive of ongoing military conflict, normal procedural protections such as placing the burden of proof on the government or the ban on hearsay need not apply. O'Connor suggested the Department of Defense create fact-finding tribunals similar to the AR 190-8 to determine whether a detainee merited continued detention as an enemy combatant. The United States Department of Defense created Combatant Status Review Tribunals in response, modeling them after the AR 190-8. O'Connor did not write at length on Hamdi's right to an attorney, because by the time the Court rendered its decision, Hamdi had already been granted access to one. However, O'Connor did write that Hamdi "unquestionably has the right to access to counsel in connection with the proceedings on remand." The plurality held that judges need not be involved in reviewing these cases, rather only an impartial decision maker was required.

In retrospect, this solution looks pretty good - to me. At the least, it is logically consistent and could be implemented in practice with minimal adverse consequences to detention. In effect, this is a Common Article 3 (of the 1949 GCs) solution, where detention is the default remedy - military commissions and civilian courts are add-ons, which can be useful in certain cases.

Second, we have the concur-dissent opinion (2 justices):

Justice David Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality's judgment that due process protections must be available for Hamdi to challenge his status and detention, providing a majority for that part of the ruling. However, they dissented from the plurality's ruling that AUMF established Congressional authorization for the detention of unlawful combatants.

In effect, this opinion requires a law enforcement approach to the problem of detained TVNSAs (Transnational Violent Non-State Actors) - you can kill them under the AUMF and the Laws of War, but you can detain them only under the Rule of Law.

Third, we have the Let Him Go or Suspend Habeas dissent (2 justices):

Justice Antonin Scalia's dissent, joined by Justice John Paul Stevens, went the furthest in restricting the Executive power of detention. Scalia asserted that based on historical precedent, the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus, or Hamdi must be tried under normal criminal law. Scalia wrote that the plurality, though well meaning, had no basis in law for trying to establish new procedures that would be applicable in a challenge to Hamdi's detention—it was only the job of the Court to declare it unconstitutional and order his release or proper arrest, rather than to invent an acceptable process for detention.

This was truly an Odd Couple since the result is pure law enforcement (which was Stevens' posiiton throughout). I suppose Scalia thought Congress would suspend habeas (it did) and Stevens thought it would not.

Fourth, we have the Unlimited Executive Power dissent (1 justice):

Justice Clarence Thomas was the only justice who sided entirely with the executive branch and the Fourth Circuit's ruling, based on his view of the security interests at stake and the President's broad war-making powers. Thomas wrote that the Court's rationale would also require due process rights for bombing targets: "Because a decision to bomb a particular target might extinguish life interests, the plurality’s analysis seems to require notice to potential targets." Thomas also wrote that Congress intended that the AUMF authorized such detentions.

In effect, John Yoo's constitutional views received only one vote.

The DC District and Circuit have tried to make some sense of the this hash and the hash in later SCOTUS cases. Meanwhile, the USG (and the two major political parties) have created their own hash made up of variant combinations of the Laws of War and the Rule of Law.

Regards

Mike

[stanleywinthrop]

http://www.longwarjournal.org/archiv...eda_senten.php

There's a lawfare lesson in there: Don't get caught doing anything that lends itself to a (fairly) straightforward criminal case. Here, Siddiqui picks up a rifle and shoots a soldier. If she doesn't do that, they either have to send her to Gitmo or try her based on her participation in various plots which brings all sorts of side effects that we've been trying to avoid (CIA, potential torture of witnesses, methods etc...) If I'm AQ I make it SOP that when I'm caught, take the fight to us through the courts, not with your hands.

And this is probably appropriate for this thread, been following for a few weeks, I might start commenting occasionally on their blog here since they're not taking comments (they're scared of the mud):

http://www.lawfareblog.com/

I see your point here and I agree from a metaphysical standpoint. However it seems that jihadists just don't do a good job of seeing that there are often better ways to fight your enemy than simply trying to kill them. Case in point- Maj. Hasan- he could have done far more damage to our cause in A-stan if he'd gone mole and deployed. No disrespect to our fallen in TX, but many more could have died in Hasan cued ambushes.

[jmm99]

on the following general points:

from BW
First, all insurgents and terrorists are by definition outlaws, so they have their first sanctuary right there. One is not constrained by the law once they opt to live and act outside it.

Second, being "non-state" actors they are also outside the rules and tools designed for the control of proper state behavior. ....

Another critical component to sanctuary is the support of poorly governed populaces. ...

Next we need better laws for allowing short-notice, short-duration punitive raids to deal with critical nodes of networked terror organizations. ...

Now, if you could provide me some content - that is, what laws you propose.

I'm most interested in your 1st, 2nd and 4th points.

The third point seems difficult (to me); e.g., you say (emphasis added):

Understanding what aspect of governmental actions contribute most significantly to such perceptions and then crafting and enforcing laws aimed at the governments that create these conditions we nick away at their sanctuary even more.

Once upon a time, we did deal with those of "bad governance" (as we defined it) by "clever" and "devious" approaches, where perhaps 130 (or less) operatives were involved in a country (some even were lawyers). Those approaches made for bad press - the purges starting with Ramparts' exposé of the CIA ties to the National Student Association, labor organizations and academia in the later 1960s (links here).

So, today, we are much more "aboveboard" in dealing with "bad governance" (as we define it) and send 130K troops to rectify the situation.

Feel free to post some proposed laws - reduction of ideas to practice, clever and devious accepted.

Regards

Mike

[Boondoggle]

TBS was a summer of fun, but maybe they could crawl through the Quigley with me in February just for old times sake.

I struggle with how judges can approach the AUMF (which granted I probably haven't read in a few years now so my memory is quite groggy) and not think it authorizes the detention of both lawful and other combatants. Conducting war by different means is still just that, war. And the Scalia - Stevens pairing was certainly interesting.

Now as for following through on having a "neutral decisionmaker" not necessarily a judge, I'm sure we'll eventually see something... and that something will be run up the legal flagpole for review in short order, but the military justice system should be able to readily adapt to that. It actually makes sense, probably by carving someone out of the regular chain of command and giving them that job, the harder question would be who would be the appeal authority for that initial decision.

[Bob's World]

Mike,

Working on a paper that explores this currently. Whether one looks at this as denying sanctuary or as deterring non-state actors the lines blur. But the hard fact is that the rules for states and those that operate within the reach of the law don't apply, so it calls for complex approaches that balance encouragement and discouragement across a range of state and non-state actors so as to build a proper mix that prevents without provoking; or that does not get so focused on encouraging or discouraging one group so that one loses sight of the provocative effects this is having on others.

At the center of this work is a chart or worksheet. It currently has 8 categories of actor across the middle. Four types of states on the left (nuclear, non-nuclear, failing and criminal) then four types of empowered non-state actors that live and operate within those four types of states ( Quasi-state [Hamas, Hezbollah], non-state[AQ, Taliban], insurgent populace [pashtuns] and Dissident individuals [McVeigh,etc]) These are all just examples.

For any particular problem one will have a mix of four types of states and within them a mix of the four types of empowered actors. One must take them all into account as they plan their engagement. Going up from this lineup are three degrees of encouragement. Level one is "Promote"; Level two is "Enable"; and Level three is "Enhance." Each denotes a greater degree of involvement with ones engagement. Going down from the lineup are three degrees of discouragement. Level one is "Deter"; Level two is "Preclude"; and level three is "Preempt." Again, each level denotes a greater degree of involvement.

Looking just at AFPAK you have a non-nuclear failing state and a nuclear failing state at the core. Afghanistan is arguably also trending toward being a criminal state. Within these there are a mix of non-state actors, insurgent populaces and dissident individuals. No one simple two-diemensional approach can balance this complex mix of actors. To over discourage AQ with a heavy scheme of Preempt and Preclude in Pakistan must be balanced by Promote-Enable-Enhance with Pakistan. But then also with some Deter and perhaps Promote with India to address the inbalance created there. Then over to Afghanistan where one must give them some encouragement to allow themselves to be used as a base to go after AQ; etc, etc.

The spreadsheet isn't perfect, but helps to visualize all of the actors and how ones engagement may be causing unintended provocative consequences that must be mitigated as well.

How then, to apply lawfare to this? Currently those outside the law have all the advantages, so perhaps something as simple as a waiver for states to act outside the law as well in certain circumstances. Again, it is about balance. Such waivers must allow effective opertations, but not at the same time compromise principles that weaken the moral authority of the state structure.

The spreadsheet also recognizes that as one goes from left to right, from nuclear state over to dissident individual one also shifts from where the same act is an act of war for one, and a criminal act for another. In the middle is a wide greyzone. it's a work in progress.

Step one is to understand that sanctuary is NOT "ungoverned space" but more accurately:

"Updated: Insurgencies take sanctuary in some combination of legal status, the support of a poorly governed populace, and some favorable combination of terrain and vegetation. Functional sanctuary associated with such status or support is more powerful than physical sanctuary provided by a particular place.

• Explained: The old adage of “ungoverned space” is not wrong, it is just incomplete and focuses on the wrong aspect of what actually provides the insurgent sanctuary. If ungoverned space were such terrific sanctuary, al Qaeda would be in Antarctica. The regions they prefer are more accurately described as self-governed spaces; removed from the reach of much of formal governance, but certainly governed all the same. Al Qaeda’s primary sanctuary, however, comes from their legal status. Being outside the law they are not constrained by the law. Similarly, being unencumbered by a state they are immune to the controls of statecraft. Al Qaeda also borrows the legal protection that the sovereign borders of host states (willing, knowing, or otherwise) provide where convenient. The sanctuary offered by a poorly governed populace cannot be overstated. It is the people who live in a space who support and protect such movements, and not the space itself. This is why “space” is largely fungible so long as the sanctuaries of legal status and poorly governed populaces are available. Consider Robin Hood and the famous sanctuary provided by Sherwood Forest. If the Sheriff had denied the forest in some way, the true sanctuary of being outside the law and protected and supported by a poorly governed populace would have remained in effect. Robin and his Merry Men would have just moved to a new forest.
Similarly, if the sanctuary of a specific place such as Afghanistan or Pakistan, (or Somalia, or Yemen, etc) is physically denied, al Qaeda would simply move to a new country. Denial of ungoverned spaces is a false argument that focuses on the wrong aspect of an effective sanctuary."

[jmm99]

I'm glad you said this (not for the first time, IIRC):

from BW
No one simple two-diemensional approach can balance this complex mix of actors.

It looks to me like you have at least a three-dimensional system, requiring a three dimensional graph (x, y, z). One axis is the type of state; another is the bad-a$$ actors; and the third is the "encouragement-discouragement" index.

Inserting the level of violence (crudely, at the extremes, a state of pure peace and a state of pure war) adds a fourth dimension. The level of violence is not a straight line from 0% to 100%; there would be peaks, valleys and discontinuities.

This sounds something like quantum mechanics, which makes some sense because you are attempting to picture an open, complex system in two or three dimensional terms. In attempting to come up with a unified theory, are you not running into the same sort of problems that arise from applying effects based operational theory to an open, complex system (as opposed to a closed, complex system, where the variables can often be defined and controlled at least to a useable extent) ?

As an example (albeit extreme and unlikely to happen): if I, as a dissident individual, get ahold of a 100 megaton device and delivery system, and have a few minutes of lead time to launch, I am a nuclear state for all practical purposes.

Not saying you should scrap your efforts; but, in attempting to simplify complexity, it is too easy to simply become simplistic.

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

from BW
How then, to apply lawfare to this? Currently those outside the law have all the advantages, so perhaps something as simple as a waiver for states to act outside the law as well in certain circumstances. Again, it is about balance. Such waivers must allow effective opertations, but not at the same time compromise principles that weaken the moral authority of the state structure.

Not "outside" the law for states, but under new laws (whether statutory and/or common) that fit within the general framework of existing law and allow states to meet new challenges.

E.g., those judges who read the 2001 AUMF realistically and developed detainment law around the sparse wording in the AUMF and Common Article 3 of the GCs.

The law is quite adaptable if it is permitted to adapt, as Boon points out in his last post. Of course, you will always have the problem of judges, and others as well, who refuse to adapt.

Put them all through The Quigley - or the Sturgeon Sloughs.

Regards

Mike

PS: Bob, agree with your geographical example of AQ picking up stakes and moving - that is, that geographical location does not define the "base". And, to bring in some word play, AQ can translate to "The Base"; AQ does special ops (unconventional warfare) vs us; and a SF base is not defined by geographical location. That should be an easy sell at Socom.

[Bob's World]

Does one become a "state" if they possess, as an individual, a 100 Megaton device and the will and skill to employ it.

This often comes up. My short answer is "No, and welcome to the crux of what is frustrating the crap out of states these days."

The problem is that in today's globalized environment many non-state actors can act in very state-like ways; yet they are outside the ability of our state-based systems to either effectively deter or punish them. THIS is sanctuary. This is what we must deny AQ and others like them.

I was in an exercise that involved an individual employing a WMD device and then running to an allied nation and and taking sanctuary in a region of that state where it was largely self-governing and the populace was sympathetic to the motivations of this actor. Higher HQ demanded that we put a COA on the table to essentially retaliate in kind on the piece of dirt that we were pretty sure this guy was hiding on.

So, our only "reasonable" response was to conduct a massive act of war against an allied state and its populace because some individual had attacked us with WMD and was now hiding there?

Ok, this was a "third world" ally. But what if he was hiding in London? Still pull the trigger? What if he was hiding in Washington DC or New York? Still pull the trigger? What if hiding in some state we don't get along with?

The fact is, that if you wouldn't do it in your own backyard, you shouldn't do it in anyone else's either. That is the slippery slope that we jumped on with the GWOT and have been rocketing down ever since.

No, you must address such acts as criminal. To do otherwise is to create more harm in the response than was created in the initial attack. It is to play right into the hands of your attacker who intended quite likely for you to over react in that way.

So how to then "deter" such an attack? One has to back up and look at the big picture and longer windows of time than on does with traditional state on state deterrence. One has to balance HOW one acts so as to be less apt to provoke such individuals to act. Granted there will always be the one-off's of the McVeigh ilk. Not much one can do to deter them. But we can do effective deterrence on groups that draw their support from broader segments of the populace in these various communities around the world.

This doesn't mean go around walking on eggshells and not make anyone mad, it means being fair in our firmness. Coming out of the Cold War the US stopped having to be "fair" because no one could do anything about it. We became more and more bully-like in our responses and engagements. Look at how we went from bombing no one, to conducting the Libya raid in the late 80s under Reagan and how serious that single event was, to dropping bombs at virtual random under Clinton, to invading countries at random under Bush, etc. We're out of control. Time to reel it back in. Everyone knows how tough we are, we don't have to go around stuffing countries in lockers to prove it. Every act to preclude or preempt some bad actor out there had 2nd and 3rd order effects to motivate and provoke previously relatively harmless non-state actors to want to do us harm. We can no longer just ignore those guys, they can and will hurt us.

We need to constrain ourselves. We need to look at a much more complex mix of states and actors within states and balance our actions more effectively. A lot of the big guys in the pentagon are still doing simple math. A +B =C. That just doesn't cut it anymore.

[Ken White]

I'm with you up to here:

...Coming out of the Cold War the US stopped having to be "fair" because no one could do anything about it. We became more and more bully-like in our responses and engagements. Look at how we went from bombing no one, to conducting the Libya raid in the late 80s under Reagan and how serious that single event was, to dropping bombs at virtual random under Clinton, to invading countries at random under Bush, etc. We're out of control. Time to reel it back in.

but there I think there are nuances you're probably aware of but are just not citing. Don't know...

Things you cite happened but I think they were less a case of throwing weight around but rather of responding to the actions of others in the only seemingly available way that wasn't too risky...

IOW, the errors were not errors of egregious bullying, they were failures in imagination, will -- and capability. I suggest that latter contributed strongly to the former. We found out in 1972 that Islamist terrorism was going international. We discovered in 1975 that a bunch of fourth rate pirates could board and seize a US Ship and there was little we could do about it without demonstrating major tactical incompetence. In the November 1979 to April 1980 period we discovered that we did not have the processes, systems, equipment, properly trained people or knowledges to deal with a world that was changing more rapidly than we were able to comprehend. We got a major world change in 1989 and another harbinger in 1990. To all those stimuli, we did not respond or (As you noted) responded very poorly -- until 2001. Thirty wasted years, five Administrations, both parties, untold numbers of Secs, Asst Secs and Flag Officers...

Not because we're stupid but because of bureaucracy and domestic politics that focus on the here and now, on party primacy and our attempts -- futilely -- to ignore the rest of the world. The events you cite occurred because domestic politics seemed to require action and our capacity for action was severely constrained to available capabilities.

Efforts to enhance strategic raid capability and strategic direct action (not the same thing...), stealthy means of ingress and egress, throwaway equipment and a dozen other things were all constrained or refused by a lack of will and avoidance of risk. Many knew what was required, some tried to obtain the proper tools -- and the system rigorously denied achieving the necessary capability and flexibility to operate in a world, that as you often state, communicates quite differently today. Efforts to respond to the provocations you cite were forced into the modes they assumed by lack of viable options, not by a desire to bully. Had we really wanted to bully, we could have done a far more convincing job.

Thus I strongly suggest -- yet again -- that failure to consider the US polity and electoral process; The battle between the Parties that consumes Washington; the bureaucratic inertia through all agencies of the USG; the culture of risk avoidance as the real culprits cause some to attack the wrong targets. We aren't bullies; quite the opposite. We're inflexible, ill equipped, marginally trained blunderers. The only saving grace is that -- so far -- the bad guys have been even less competent than we are.

We need to constrain ourselves. We need to look at a much more complex mix of states and actors within states and balance our actions more effectively. A lot of the big guys in the pentagon are still doing simple math. A +B =C. That just doesn't cut it anymore.

Thus you're correct in that last; however, the problem is more pervasive than in just the Pentagon; our actions are currently constrained by capabilities and domestic concerns. We have the ability to expand the capabilities in many directions and that is easily achievable, all it take is a little foresight and will. Until that is done and until the domestic political processes -- to include those by Uniformed persons in Arlington County and throughout the world... -- are reformed or bypassed, we will be constrained to using the wrong tools at the wrong times and in the wrong places. The problem is not that we should constrain ourselves, the problem is that we HAVE constrained ourselves and deliberately limited our options in an effort to be nice -- until we're provoked. Then we have had and will have no choice but to get out the sledge hammer because we refuse to train and pay Cabinet makers or buy Cabinet Maker's Hammers.

Don't attack the wrong symptom, that won't fix the problem.

[jmm99]

for the mindset of JMM.

The problem proposed by the mindset of others:

from BW
I was in an exercise that involved an individual employing a WMD device and then running to an allied nation and and taking sanctuary in a region of that state where it was largely self-governing and the populace was sympathetic to the motivations of this actor. Higher HQ demanded that we put a COA on the table to essentially retaliate in kind on the piece of dirt that we were pretty sure this guy was hiding on.

I'm positing that "Higher Hq" was primarily threat-oriented. OK, JMM can play that game.

The threat has two facets: (1) the 100 megaton device and delivery system; and (2) the disaffected individual (JMM in my hypo).

Retaliation will not work on the device-system because it's already gone and blown (and it can't be deterred by threatened retaliation because it has no mind).

JMM has a mind and can be deterred by threatened retaliation if he is afraid to die, or if he will not allow the "sympathetic populace" to die.

If JMM is not afraid to die and willing to let the "sympathetic populace" die, the threat of retaliation is meaningless. My purpose has been fulfilled when I turn the launch key. That is a simple game of Chicken, whether played by a state or by an individual.

To prevent 100 megaton damage to your country, you have to bet on what JMM will or will not do - he (or the nation-state or group that he symbolizes) is the only relevant target in what is essentially a MAD scenario.

BTW, the "sympathetic populace" is not directly material to solution of that problem since in my hypo I've built in adequate time to launch. The "sympathetic populace" can't stop me even if they wanted to.

The "sympathetic populace" is certainly guilty of allowing me to get into a position to launch. So, if "Higher Hq" wants retribution, reprobation and specific deterrence against them, then turning their little chunk of real estate into glass will accomplish those ends.

Whether "making glass" will result in general deterrence of other "sympathetic populaces" in the future seems speculative to me. As in the criminal justice arena, I'd suspect it may deter some and not others. As in the criminal justice arena, I'd suspect that COA will not deter future "JMMs" who have made up their minds as to their COAs.

In reality, if an expended WMD can be traced back to a specific piece of real estate, that region can expect WMD retaliation from the US, France or Russia (as I understand what their leaders have said at various times).

I think all of this is moving far off the point of what law can and can't do. Pass a law against the game of Chicken ? Only works if all the prospective players obey the law.

Regards

Mike

[Bob's World]

Mike,

You are correct that the law poses little constraint on this guy. It can't deter him, and it can't retaliate in a way that deters other guys like him in the future. But he is not "at state" for that period in time, because that infers not that he has state-like power, but that he is held to state-like restraints on action. He isn't, and that's what makes him scary.

The only thing a state can really do is:

A. Take these guys serious. They can get to you like never before, and they can come at you with state-like power like never before.

B. Design your long-term foreign policy globally to be implemented in a manner that reduces the motivation and the causation for the numbers of such individuals to expand and also feel compelled to attack you to achieve their ends.

This is why I say the "Friendly Dictator" is an obsolete concept that we need to retire from our quiver of foreign policy arrows. Consider a country like, say, Libya.

Col Q isn't the most good governance focused guy out there. The top Libyan insurgent group that is trying to take him down is the Libyan Islamic Fighting Group (LIFG). These guys are built around a core of former foreign fighters who fought with the Muj in Afghanistan against the Soviets. As Libya was one of the top sources of foreign fighters for Iraq, I suspect many of those had LIFG linkages as well. Their goals are purely nationalist. They don't think Libya is as true to the principles of Islam as it should be under COL Q, and find his government to be "corrupt and oppressive" according to Wikipedia. I suspect that if I drilled into the facts of the matter and could sit down and talk with these guys I would find that they question the legitimacy in their eyes of Qadaffi to rule, that they feel they have no legal, trusted, or certain means to make changes to government; and that most likely the segment of society they draw from feels it is treated with disrespect in some major ways as a matter of status, and quite possibly that they feel that the rule of law as applied to them is unjust. This is Causation. This is what creates the conditions of insurgency within this populace. The LIFG is just a symptom, a group that emerged within those conditions caused by the government to challenge the government.

Now Qadaffi comes to the U.S. and says "Hey, I have AQ in my country. These LIFG guys are AQ and I will help you in the GWOT to defeat AQ is you help me defeat the LIFG/AQ threat here."

OK, yes, AQ is conducting UW in Libya and is targeting LIFG and there is some affiliation there. But AQ is still AQ with its Regional/Global agenda and LIFG is still LIFG with its nationalist agenda. A non-state UW movement meets a nationalist revolutionary insurgency movement.

Now, if the U.S. desperate for allies in the GWOT sees a golden opportunity to bring a Muslim government on board as part of the coalition against AQ (hey, this makes us look better in not being "anti-Muslim", right?) what have we actually done?

Well, what we have done is given these guys motivation to attack the US. They already had causation to exist, and that was nationalist. Their leadership is not a big fan of AQ, but then we come along and make a decision that validates AQ's sales pitch.

So the logical choice of making an ally of Qadaffi and then conducting capacity building with him to leverage his security forces more effectively in the war against AQ in North Africa actually makes the likelihood of terrorist attacks on the US greater. We piled Motivation on top of Causation because we did not properly understand the nature of the insurgency in Libya or the Nature of AQ and their UW operations either one. Pure, Intel-driven, threat-centric lunacy.

Smarter approach is to out-compete AQ for influence with the LIFG. Conduct UW ourselves with them, but promoting non-violent approaches to changing governance that historically are far more successful than violent approaches. This puts the Charlie Bravo on AQ who is peddling violence and hate and could give a rip about Libyan nationalism. At the same time we go to Qadaffi and say we can help him neutralize the LIFG. But he needs to change. We mediate talks between him and the insurgent leadership. Perhaps this is the time for his much more moderate son to step up as leader. What carrots can we put on the table to entice that option? What about LIFG, they raise some good points, what can Libya do to reasonably meet some of these concerns? etc. Taking this approach we REDUCE motivation to attack us, and also help immunize Libya to AQ's UW influence and more effectively accomplish what we hoped to do by helping Qadaffi just put the beat-down on his own populace approach.

How does lawfare come in? Well, there is this problem with Libyan rule of law being perceived as unjust. A focus on promoting Justice (rather than the current misguided promotion of ROL). There also is this matter of the populace not having legal means to affect change of governance. Another good place for the lawyers to help contract mechanisms that make sense in this culture and that are acceptable to all, and that can actually work.

This is the indirect approach for getting at your guy with the WMD. If you do this right with Libya odds are this guy does not come from Libya. He could, but the pool is much smaller as we have had a positive role in reducing both Causation (reducing the conditions of insurgency) and Motivation (not making the US clearly a part of the problem that must be reduced in order to have success at home).

Repeat this approach across the area where AQ is operating as necessary until they become moot for lack of target audience (as we continue to CT the hell out of them and the carefully selected nodes of their UW network, not confusing the insurgencies they leverage for actually being AQ just because they ordered the t-shirt).

I suspect the lawyers have the same problem that the development crowd has. They bring great tools to the table, they bring great people to the table, but they have been handed an incredibly flawed picture of what the problem is by the Intel guys and they really don't understand insurgency and only have what the COIN guys have told them to go off of. But the Intel guys don't really understand WHY this threat exists, just WHO it is. And the COIN guys don't really understand WHY there is insurgency, just what various states have done over time to counter insurgency.

Once we redefine the problem more accurately, I believe we find more appropriate and effective ways to apply the law toward addressing it.

[Bob's World]

As a tag on, Libya is also a great example of a state with "effective" governance (decent standard of living, high literacy, decent infrastructure, etc) but incredibly "poor governance" as I define in my insurgency model as well (Lack of governmental legitimacy from the populace, perceptions of injustice, disrespect, and lack of hope in terms of legal, trusted and certain means to affect change. It is poor governance that creates what I call the "conditions of insurgency" within a populace. How and who exploits those conditions is another matter. The key is to address the conditions, and to understand that the conditions are ALWAYs caused by the government, and assessed as perceived by the affected populace.

Consider this short blurb, also based on quick wiki-research, regarding civil rights in Libya:

Human rights
Main article: Human rights in Libya
According to the U.S. Department of State’s annual human rights report for 2007, Libya’s authoritarian regime continued to have a poor record in the area of human rights.[53] Some of the numerous and serious abuses on the part of the government include poor prison conditions, arbitrary arrest and prisoners held incommunicado, and political prisoners held for many years without charge or trial. The judiciary is controlled by the government, and there is no right to a fair public trial. Libyans do not have the right to change their government. Freedom of speech, press, assembly, association, and religion are restricted. Independent human rights organizations are prohibited. Ethnic and tribal minorities suffer discrimination, and the state continues to restrict the labor rights of foreign jobs.

In 2005 Freedom House rated political rights in Libya as "7" (1 representing the most free and 7 the least free rating), civil liberties as "7" and gave it the freedom rating of "Not Free".

(This describes an almost classic case of "Poor Governance" and predictably, has created conditions of insurgency in this country. Insurgent groups have emerged to address these conditions, and AQ has come in to target and exploit all of the above.)

[jmm99]

While I like playing bad guys, I have to get back to real life as a good guy and get some non-virtual work done.

Looking at the LIFG Wiki, I noticed this in the first paragraph (emphasis added):

The Libyan Fighting Group (LIFG) also known as Al-Jama’a al-Islamiyyah al-Muqatilah bi-Libya is the most powerful radical faction waging Jihad in Libya against Colonel Moammar al-Qadhafi. Shortly after the 9-11 attacks, LIFG was banned worldwide (as an affiliate of al-Qaeda) by the UN 1267 Committee.

Going to the United Nations Security Council Committee 1267, we find:

The United Nations Security Council Committee 1267, also known as the Al-Qaeda and Taliban Sanctions Committee, was established by the United Nations Security Council on 15 October 1999, pursuant to UN Security Council Resolution 1267 concerning al-Qaeda and the Taliban and associated individuals and entities.

The committee has established and maintains a consolidated list which serves as the foundation for the implementation and enforcement of sanctions against Al-Qaeda and the Taliban. The list currently contains nearly 500 names and is split into four sections covering (1) individuals and (2) entities associated with the Taliban, and (3) individuals and (4) entities associated with al-Qaeda. The resolutions have all been adopted under Chapter VII of the United Nations Charter and require all member states to: "freeze the assets of, prevent the entry into or transit through their territories by, and prevent the direct or indirect supply, sale and transfer of arms and military equipment to any individual or entity associated with Al-Qaeda, Osama bin Laden and/or the Taliban as designated by the Committee".

Now, my point in quoting this is NOT that it squelches Bob Jones. My point is that all of this goes well beyond some isolated "Intel guys" deciding who enemies, neutrals and friends are.

Have to run.

Regards

Mike

[Dayuhan]

Smarter approach is to out-compete AQ for influence with the LIFG. Conduct UW ourselves with them, but promoting non-violent approaches to changing governance that historically are far more successful than violent approaches. This puts the Charlie Bravo on AQ who is peddling violence and hate and could give a rip about Libyan nationalism. At the same time we go to Qadaffi and say we can help him neutralize the LIFG. But he needs to change. We mediate talks between him and the insurgent leadership. Perhaps this is the time for his much more moderate son to step up as leader. What carrots can we put on the table to entice that option? What about LIFG, they raise some good points, what can Libya do to reasonably meet some of these concerns? etc. Taking this approach we REDUCE motivation to attack us, and also help immunize Libya to AQ's UW influence and more effectively accomplish what we hoped to do by helping Qadaffi just put the beat-down on his own populace approach.

How does lawfare come in? Well, there is this problem with Libyan rule of law being perceived as unjust. A focus on promoting Justice (rather than the current misguided promotion of ROL). There also is this matter of the populace not having legal means to affect change of governance. Another good place for the lawyers to help contract mechanisms that make sense in this culture and that are acceptable to all, and that can actually work.

This sounds like a recipe for overt and gratuitous intervention in the internal affairs of another country, and I suspect that despite the noble intention, the outcome would be that we would simultaneously and drastically antagonize the government, the populace, and the LIFG, none of whom asked us or want us to get involved. AQ could sit back and salivate.

Unconventional Warfare is still warfare, and conducting warfare of any sort against another state is not something to be taken lightly. It's also not something that's going to stay secret, and when the word hits the street (very quickly) the potential for unintended consequences is enormous.

If you're talking about Libya, it's important to note that th LIFG has never achieved much popular support: LIFG leaders have been quoted plaintively lamenting the lack of engagement from the populace. This is a fairly common pattern among Arab populaces, who are only too happy to cheer on, support, and join AQ and affiliates if they are fighting jihad against foreign occupiers in faraway lands, but generally have no special interest in being ruled by them.

It's also important to note that when a populace sees a government being challenged and criticized by the US, the tendency is for that populace to rally behind the government, even if it's lousy and unpopular. Our intervention is not going to be seen, ever, as support for the populace: it's going to be seen as a self-seeking scheme to gain control. When the US criticizes a government it's not seen as us standing up for the populace, it's seen as disrespect for nation, culture, and tradition, and it's likely to accomplish the result opposite from that we intended.

The notion that intervention in the internal affairs of other countries is good policy as long as it pursues goals that we see as "good" may sound noble, but I suspect at the end of the day it's a recipe for disaster. It might be better to mind our own business for a change, and to stay out of the affairs of others unless we are directly and severely threatened.

[Bob's World]

"Now, my point in quoting this is NOT that it squelches Bob Jones. My point is that all of this goes well beyond some isolated "Intel guys" deciding who enemies, neutrals and friends are."


The Intel guys develop the list, the ops guys approve the lists, the lawyers cast the list into a status that allows the desired engagement within the current laws.

My point is that these lists enable dangerous perspectives and engagement and prevent much that could be far more effective. And yes, they are driven by a very threat-centric Intel community that is probably over reacting after having the full blame of 9/11 dropped on their heads as "a failure of Intel." While Intel could have been better, 9/11 is much more accurately cast as a "failure of policy." I pick on the Intel community because they deserve it, but I'll also defend them as being dedicated professionals who were unfairly blamed for allowing 9/11 to happen. They do what they do very well. My criticism is that they need to evolve in what they do and apply their considerable talents to that.

This is ripe ground for the lawfare crowd. How do we get away from legal lists that constrain as much as they enable? How do we create new laws for dealing with this problem of empowered actors who operate outside the state construct?

[Bob's World]

Dayuhan

Certainly doing nothing is always an option, and probably more often than we would like admit, the best one. It means relinquishing control of outcomes though, and that makes us nervous.

What I offer is an alternative to current perspectives on engagement. One based in recognizing that it is governments that cause insurgency, and not insurgents that cause insurgency. I see no need to reinforce positions rooted in list-driven CT; capacity building of security forces for governments widely recognized as despotic; or nation building among the populaces of those same governments. Those COAs already have plenty of supporters and Cheerleaders.

All engagement is not however inherently bad. It is possible to help people to get to a better place through wise, tailored engagement that never forgets where we fit into the equation as an outside party.

Maybe it is ok to shoot missiles at a nationalist insurgent group that associates with AQ but not ok to talk to them and see if we can't offer them a better alternative. Maybe building the capacity of governments with questionable records on civil rights to better go out and "enforce the rule of law" against insurgent organizations within their populace who also happen to associate with AQ is the smartest way to "defeat terrorism." Maybe, and I am not saying that you think it is, but many do. I disagree. I think we can engage smarter. I also believe that smart engagement is better than doing nothing at all.

[jmm99]

Looking to the webpages for that agency, we find the index with multi-links and a brief explanation of it:

The Security Council Committee established pursuant to resolution 1267 (1999) on 15 October 1999 is also known as "the Al-Qaida and Taliban Sanctions Committee".

The sanctions regime has been modified and strengthened by subsequent resolutions, including resolutions 1333 (2000), 1390 (2002), 1455 (2003), 1526 (2004), 1617 (2005), 1735 (2006), 1822 (2008) and 1904 (2009) so that the sanctions measures now apply to designated individuals and entities associated with Al-Qaida, Usama bin Laden and/or the Taliban wherever located. The names of the targeted individuals and entities are placed on the Consolidated List. Narrative summaries of reasons for listing of the individuals, groups, undertakings and entities included in the Consolidated List (where available) can be found at the following URL: http://www.un.org/sc/committees/1267/narrative.shtml.

The above-mentioned resolutions have all been adopted under Chapter VII of the United Nations Charter and require all States to take the following measures in connection with any individual or entity associated with Al-Qaida, Usama bin Laden and/or the Taliban as designated by the Committee:

•freeze without delay the funds and other financial assets or economic resources of designated individuals and entities [assets freeze],

•prevent the entry into or transit through their territories by designated individuals [travel ban], and

•prevent the direct or indirect supply, sale and transfer from their territories or by their nationals outside their territories, or using their flag vessels or aircraft, of arms and related materiel of all types, spare parts, and technical advice, assistance, or training related to military activities, to designated individuals and entities [arms embargo].

The current Chairman of the Committee, for the period ending 31 December 2010, is His Excellency Mr. Thomas Mayr-Harting (Austria). The two Vice-Chairs for 2010 are Brazil and Russian Federation. This website contains general information on the work of the Committee as well as a latest news section. The Committee has guidelines for the conduct of its work. You can also find fact sheets providing basic information on the listing and de-listing procedures as well as on the exemptions to the assets freeze and from the travel ban. The Committee publishes annual reports of its activities and the Chairman of the Committee briefs the Security Council regularly. ..... (more at site).

If you meant this to describe the workings of the 1267 Committee (which I doubt):

from BW
The Intel guys develop the list, the ops guys approve the lists, the lawyers cast the list into a status that allows the desired engagement within the current laws.

it does not correctly describe the scope of the agency or its listing process. Many (probably a majority of) nations involved take the law enforcement approach to counter-terrorism.

Regards

Mike

PS:

1. Speak very softly.

2. Carry a very large stick.

3. Stay out of neighborhoods where you don't belong.

[Bob's World]

Ok, all well and good, but what does any of that activity do toward resolving the problems that actually create the conditions that give rise to such individuals and organizations?

I always bring this back to our own experience as I believe most Americans can empathize with other Americans better than they can with others; and also because what we are primarily taliking about are American approaches that are presumably cast within a context of the American ethos that was shaped back in the 1700s.

Imagine if the edict you cite was published by the British Government in response to the insurgency in the American Colonies?

You have a populace that already questions the legitimacy of its government, finds the rule of law as applied to them to be unjust, believes with good reason that they are treated as second class citizens simply because they were born in the colonies; and don't believe that they have any legal recourse to effectively resolve their concerns.

So in response an edict is published to render them outlaws for daring to stand up to tyranny, and bannishing them from all form of legal enterprise. How does this help?

This my biggest beef with my fellow lawyers. They think the rule of law is more important than justice under the law. Do we send people to places like Afghanistan to create justice? No, we send them there to help enforce the rule of law. It is not the same thing.

I have said it before, I will say it again: Rule of Law without Justice is Tyranny. Is enforcing tyranny the "big stick"? If so, don't drop the soap, because any populace subjected to such legally enforced tyranny is apt to find creative places to lodge said "big sticks."

This is why America recognized the Right and the Duty of a populace to rise up in insurgency when faced with what they perceived to be despotic governance when all legal means fell short.

Lawfare needs to focus on identifying and creating such legal means for populace to act out short of insurgency.

Lawfare needs to focus on the enhancement of perceptions of Justice rather than the enhancements of the mechanics of the rule of law.