Rule of Law in Iraq & Afghanistan

[LawVol]

So, following this construct and positing a separate mission in each block, we could have mission 1 governed by RoL, mission 2 governed by LoW; but can we have mission 3 governed by both RoL and LoW at the same time ?

In short, yes. PolarBear presents compelling examples of mission 1 and mission 2 (I'll address these is a moment), but predictably avoids answering missions 3 since he does not believe it possible to combine LoW and RoL. Fair enough, but I disagree.

I can only assume from Mike's scenario that the individuals referred to are unarmed since weapons are not mentioned and the tenor of the scenario does not indicate the presence of weapons. This, IMO, fundamentally changes the nature of the problem and demonstrates how LoW and RoL are blended. Notice the scenario says intel indicates the individuals are AQ. Not to disparage the fine abilities of our intel community, but this is not the "beyond reasonable doubt" standard used in criminal court, but more akin to a "reasonable suspicion" used by police in the field. Just as cops can take limited action based on "reasonable suspicion" so to can troops take limited action based on intel. In the present case, both LoW and ROE would counsel against the action suggested by PolarBear. A shoot first, ask questions later mentality can lead to war crimes and/or political circumstances not desired by the command authority (e.g. Abu Ghraib, comparisons to "kill teams," etc.). But this does not mean that action cannot be taken (lest you think I'd give these guys a pass).

Given the intel, investigation (I do not use this term in a law enforcement capacity, but simply mean check it out) is indeed permitted. Moreover, in conducting this investigation, troops are permitted to take appropriate safety measures as indicated by their ROE and are subject to LoW.* Assuming that, upon approach, these individuals take up arms, then return fire, etc. is authorized. But, assuming they have no weapons, they are simply taken into custody, interrogated, and turned over to the Afghan national security justice system. This means they get sent to the DFIB, a detainee review board is conducted, and, ultimately, they are tried for crimes. Carl's response to the scenario is akin to what I envision here.

Now, the Gitmo scenario enters into play, but I must admit of limited knowledge here. I know what would have happened in the past, but am unclear how the Obama Administration is currently handling this. I think Obama has said no new prisoners are to be sent there, but I'm unsure. In the past, the plan was to send them to Gitmo and, ultimately, try them in a military tribunal, which because of recent Supreme Court decisions is a blend of LoW and US Constitution law (i.e. RoL).

There is a possibility that LoW is being mistaken for something it is not in this conversation. LoW establishes limitations on combatant conduct in the field in an effort to protect civilians and limit the destructiveness of war. Of course, one can argue whether this is really even possible or desirable, but it is what it is. Again, assuming no weapons, there is no authorization to engage as no concrete threat exists.

Now, assume weapons are present (this way I won't be accused of parsing facts to support my argument). IMO, nothing really changes. Even though the individuals are entering a residential compound and, say, not actively engaging our forces, they are still declared hostile forces and can be engaged (this is actually an ROE issue and ROE may have changed since I last worked with it). If the individuals fight back and are killed, so be it. However, if one surrenders, he must be taken into custody and processed as I indicated above.

I view LoW as a subset of RoL. The essence of RoL is that the law applies to all, especially the government. Through adherence to LoW by both US and GIROA forces, we demonstrate and strengthen RoL. Thus, I don't see the two as conflicting. There may also be a misunderstanding of RoL and criminal law as applied by law enforcement. These are too neither synonymous nor conflicting. Like LoW, criminal law, and its procedural aspects, are a subset of RoL. RoL is not limited to simply engaging in a criminal investigation (although a properly conducted criminal investigation and trial is indeed evidence of RoL); RoL is much broader.

Inter arma silent leges: in time of war the law is silent

A final note: If this statement were true, then LoW would remain silent as well. You have argued that law (i.e. LoW) not only refrains from remaining silent, but that it actually controls. Thus, your conclusion is not supported by your premises. Mike has it right that law is "relaxed." I only point this out because reliance on phrases such as this could pose issues for our people in the field and I see it as part of my job to protect them through accurate explanation of law.

*I purposely avoid describing any tactics involved in conducting the investigation and/or "clearing" the house as this is outside my lane and one who gets too far outside his lane often does nothing but demonstrate ignorance on the topic at hand. Although I do have some familiarity in this area, I prefer to leave this to the experts here.