SMALL WARS COUNCIL
Go Back   Small Wars Council > Small Wars Participants & Stakeholders > Military - Other

Military - Other Echelons away from the trigger pullers, from operational art and theater logistics to service combat development to just plain FOBbits.

Reply
 
Thread Tools Display Modes
Old 12-09-2011   #81
Entropy
Council Member
 
Entropy's Avatar
 
Join Date: Mar 2008
Posts: 1,457
Default

Quote:
Below a certain violence level, they are criminals; above that level, they are combatants (albeit probably irregular and not privileged under the GCs).
Where is the line and who draws it?
__________________
Supporting "time-limited, scope limited military actions" for 20 years.
Entropy is offline   Reply With Quote
Old 12-09-2011   #82
jmm99
Council Member
 
Join Date: May 2008
Posts: 4,021
Default I did expect this question

Quote:
from Entropy
Where is the line and who draws it?
In the absence of a One World Government (which is not one of my goals), the duly constituted government in each state decides. That means that one state could decide that the situation is an armed conflict; and another state could decide it is a criminal law situation.

The bottom line is that the decision is political - not legal (despite many in the I Law "community" who would like to be the "Deciders").

The affected Violent Non-State Actor may or may not contest the State's decision. For example, AQ has not disputed that it is engaged in an armed conflict with the US.

Regards

Mike
jmm99 is offline   Reply With Quote
Old 12-09-2011   #83
Entropy
Council Member
 
Entropy's Avatar
 
Join Date: Mar 2008
Posts: 1,457
Default

I should have been more specific - I only meant to ask about the US. Is there a legal standard or regime and if so, what is it?
__________________
Supporting "time-limited, scope limited military actions" for 20 years.
Entropy is offline   Reply With Quote
Old 12-09-2011   #84
jmm99
Council Member
 
Join Date: May 2008
Posts: 4,021
Default It's a political question ...

based on the various "War Powers" granted the President and Congress under Articles I and II. The 2001 AUMF is an example of Presidential and Congressional joint action.

Article III grants no "War Powers" to the Judiciary; but because of Presidential and Congressional actions and inactions after the 2001 AUMF, the courts have been dragged into the picture.

Regards

Mike
jmm99 is offline   Reply With Quote
Old 12-09-2011   #85
Entropy
Council Member
 
Entropy's Avatar
 
Join Date: Mar 2008
Posts: 1,457
Default

I'm not asking whether it's a political question or not. Let me explain in greater detail. You stated:

Quote:
Below a certain violence level, they are criminals; above that level, they are combatants (albeit probably irregular and not privileged under the GCs).
I have not seen that distinction made before - that a person's status as either a criminal or combatant is determined by "violence level." I understand articles I & II and the AUMF and I have a passing non-lawyer understanding of the various cases and issues - However, none of those, to my knowledge, use "violence level" as the distinguishing factor splitting combatants from criminals.

To put my question another way, where is the threshold between criminal and combatant violence, who/what has the authority to set and/or alter that threshold, and what is the basis for using "violence level" as a threshold in the first place?
__________________
Supporting "time-limited, scope limited military actions" for 20 years.
Entropy is offline   Reply With Quote
Old 12-09-2011   #86
jmm99
Council Member
 
Join Date: May 2008
Posts: 4,021
Default I'd say the questions were asked and answered....

though I'm not a lawyer anymore, but a "retired gentleman" - to steal a Victor McLaughlin line.

Supply your own definition of what is or is not an "armed conflict" if you don't want to accept my answers. The distinction based on violence level seems obvious to me; but apparently not to you. It's quite possible that I cannot help you. So be it.

Regards

Mike
jmm99 is offline   Reply With Quote
Old 12-09-2011   #87
Entropy
Council Member
 
Entropy's Avatar
 
Join Date: Mar 2008
Posts: 1,457
Default

Quote:
The distinction based on violence level seems obvious to me; but apparently not to you.
Perhaps you should read what I wrote again. I'm not questioning the legitimacy of a distinction based on violence level - actually my questions implicitly assume such distinction exists. Rather, I'm simply asking where the threshold is and who/what sets the threshold. In short, what level of violence does a person have to engage in before they're considered a combatant and not a criminal? If the distinction is to have any meaning then this threshold must be definable. The answer you've given is to suggest that "it's political." If by "political" you mean completely arbitrary or that it's the equivalent of the Justice Stewart pornography standard then I guess that does make sense logically.
__________________
Supporting "time-limited, scope limited military actions" for 20 years.
Entropy is offline   Reply With Quote
Old 12-09-2011   #88
jmm99
Council Member
 
Join Date: May 2008
Posts: 4,021
Default It comes from having been born in Michigan ...

a shared commonality with Potter Stewart:

Quote:
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
from his concurring opinion in Jacobellis v. Ohio 378 U.S. 184 (1964); or as phrased in small barnyard animal terms:

Quote:
Suppose you see a bird walking around in a farm yard. This bird has no label that says 'duck'. But the bird certainly looks like a duck. Also, he goes to the pond and you notice that he swims like a duck. Then he opens his beak and quacks like a duck. Well, by this time you have probably reached the conclusion that the bird is a duck, whether he's wearing a label or not.
Richard Cunningham Patterson Jr., while US ambassador to Guatemala (1948-1950), on how to PID a Communist.

One might prefer a more "exact", "legal" definition of, say, "obscenity" - so, here is one:

Quote:
1.whether the average person, applying contemporary community standards (not national standards, as some prior tests required), would find that the work, taken as a whole, appeals to the prurient interest;

2.whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and

3.whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Miller v. California, 413 U.S. 15 (1973)

Is this test better than Stewart's "know it when I see it" or Cunningham's "like a duck" ? Five justices (Burger, White, Blackmun, Powell, Rehnquist) thought so; but four (Douglas, Brennan, Stewart, Marshall) did not.

Thus, answering your final question:

Quote:
from Entropy
If by "political" you mean completely arbitrary or that it's the equivalent of the Justice Stewart pornography standard then I guess that does make sense logically
The process (in the US, and elsewhere, for that matter), for determining whether one is "at war", "engaged in hostilities", "involved in the use or threat of the use of armed force" or "engaged in an armed conflict", is not "completely arbitrary". Each person who has an opinion as to a specific situation can usually provide reasons for that opinion.

I'd say the situation (cf., also in defining "insurgency" and "counterinsurgency"), particularly with these "Not Real Wars" (which are very real to the people directly involved in them), is more akin to this:

Quote:
Once upon a time there was a certain raja who called to his servant and said, "Come, good fellow, go and gather together in one place all the men of Savatthi who were born blind... and show them an elephant." ''Very good, sire," replied the servant, and he did as he was told.

He said to the blind men assembled there, "Here is an elephant," and to one man he presented the head of the elephant, to another its ears, to another a tusk, to another the trunk, the foot, back, tail, and tuft of the tail, saying to each one that that was the elephant.

When the blind men had felt the elephant, the raja went to each of them and said to each, "Well, blind man, have you seen the elephant? Tell me, what sort of thing is an elephant?"

Thereupon the men who were presented with the head answered, "Sire, an elephant is like a pot." And the men who had observed the ear replied, "An elephant is like a winnowing basket.'" Those who had been presented with a tusk said it was a ploughshare. Those who knew only the trunk said it was a plough; others said the body was a grainery; the foot, a pillar; the back, a mortar; the tail, a pestle, the tuft of the tail, a brush.

Then they began to quarrel, shouting, "Yes it is!" "No, it is not!" "An elephant is not that!" "Yes, it's like that!" and so on, till they came to blows over the matter.
...
O how they cling and wrangle, some who claim
For preacher and monk the honored name!
For, quarreling, each to his view they cling.
Such folk see only one side of a thing.


Udana 68-69. Note that the term "elephant" was expressed from the gitgo; the problem was in defining that "large beast" more exactly.

The Lieber Code, the Hague Conventions, the Geneva Conventions, the Kellogg–Briand Pact (aka "The General Treaty for the Renunciation of War"), and the UN Charter have all confronted the elephant. From them, no bright-line definition for "war" emerges.

Saint Carl recognized the problem:

Quote:
I shall not begin by expounding a pedantic, literary definition of war, but go straight to the heart of the matter, to the duel. War is nothing but a duel on a larger scale.
On War (Howard & Paret), p.83.

He did not provide a direct answer as to when "the smaller scale duel" becomes "the larger scale war".

A duel involves force (violence), but may or may not be criminal depending on the country and the times. At what point does the aggregate violence go beyond a duel and amount to war ? That is my "political question".

Jean Pictet's Commentary on Convention (III) relative to the Treatment of Prisoners of War, Article 2 (which introduced the concept of "armed conflict" as being broader than "war") expresses a very low bar for when an "armed conflict" comes into being:

Quote:
It remains to ascertain what is meant by "armed conflict". The substitution of this much more general expression for the word "war" was deliberate. It is possible to argue almost endlessly about the legal definition of "war". A State which uses arms to commit a hostile act against another State can always maintain that it is not making war, but merely engaging in a police action, or acting in legitimate self-defence. The expression "armed conflict" makes such arguments less easy.

Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous are the participating forces; it suffices for the armed forces of one Power to have captured adversaries falling within the scope of Article 4. Even if there has been no fighting, the fact that persons covered by the Convention are detained is sufficient for its application. The number of persons captured in such circumstances is, of course, immaterial.

The Convention provides only for the case of one of the Parties denying the existence of a state of war. What would the position be, it may be wondered, if both the Parties to an armed conflict were to deny the existence of a state of war? Even in that event it would not appear that they could, by tacit agreement, prevent the Conventions from applying. It must not be forgotten that the Conventions have been drawn up first and foremost to protect individuals, and not to serve State interests. Even if the existence of a state of war is disputed, Article 3 can be applied.
Common Article 3 applies to an armed conflict that is "not of an international character" - which is the basis for the 2001 AUMF.

To repeat Pictet:

Quote:
Even if there has been no fighting, the fact that persons covered by the Convention are detained is sufficient for its application. The number of persons captured in such circumstances is, of course, immaterial.
Thus, in his view, the Convention applies even in a non-lethal "cross-border incident". When Common Article 3 (and Additional Protocol II, for those states acceding to it) come into play is a more difficult question.

In conclusion, my "political question" is no better regarded as a "legal question". In our real world, the question (no matter how regarded) is still subject to the "elephant test".

Regards

Mike

Last edited by jmm99; 12-09-2011 at 05:44 PM.
jmm99 is offline   Reply With Quote
Old 12-10-2011   #89
jmm99
Council Member
 
Join Date: May 2008
Posts: 4,021
Default The Kosovo Border Incident

On 31 March 1999, Yugoslav forces captured three U.S. soldiers conducting a security patrol along the border between the FRY and the former Yugoslav Republic of Macedonia (FYROM). That took place one week after the first bombs were released in Operation Allied Force.

The initial statements by NATO, Pres. Clinton, SecDef Cohen and DoS's Jamie Ruben were confusing at best, and potentially dangerous to the welfare of the three soldiers at worst.

Ken Bacon from DoD cleared the air by declaring that the situation was ruled by the Laws of War (LOAC), and that the three soldiers were PWs under GC III. They were released about a month later via diplomatic efforts.

The CLAMO Lessons Learned from this incident is attached below as a pdf snip, Kosovo Lesson - PW.pdf.

The DoD has consistently taken the position that the Laws of War (LOAC) are the primary rules for all military operations, even for operations that involve no armed conflict. At that, they go beyond Jean Pictet. Clearly his opinion as to cross-border incidents has been accepted in US practice (e.g., Kosovo).

One must keep in mind that while DoD doctrine favors the Laws of War, the Standing Rules of Engagement (in their default "defense of self and others" configuration) are generally restrictive and parallel the US law enforcement rules (and Tennessee v Garner).

Regards

Mike
Attached Files
File Type: pdf Kosovo Lesson - PWs.pdf (61.1 KB, 148 views)

Last edited by jmm99; 12-10-2011 at 12:35 AM.
jmm99 is offline   Reply With Quote
Old 12-22-2011   #90
jmm99
Council Member
 
Join Date: May 2008
Posts: 4,021
Default Ali Musa Daqduq - A Lesson Learned ??

A basic rule is that once you've accepted surrender of an enemy combatant, you do not kill him. Based on the allegations proffered, Ali Musa Daqduq acted contrary to that rule. Here are the articles discussing the basic background:

Daqduq Transferred to Iraq (Bobby Chesney, Lawfare):

Quote:
For further background: those who are interested in getting a better grasp on how we evolved over time from the conventional detention operations accompanying the invasion phase of the war, through to the hybrid detention-or-prosecution system of the middle period, and on to the transfer-to-Iraq-only phase of the post-2008 period, might want to read my article on the topic (Iraq and the Military Detention Debate: Firsthand Perspectives from the Other War, 2003-2010).
U.S. Transfers Its Last Prisoner in Iraq to Iraqi Custody (Charlie Savage, NYT):

Quote:
WASHINGTON — The Obama administration turned over the last remaining prisoner in American custody in Iraq to the Iraqi government on Friday, a move expected to unleash a political backlash inside the United States even as the American military draws closer to completing its exit.

The prisoner, Ali Musa Daqduq, from Lebanon, is suspected of being a Hezbollah operative and is accused of helping to orchestrate a raid in January 2007 by Shiite militants who wore American-style uniforms and carried forged identity cards. They killed five American soldiers in Karbala, Iraq — one in the raid, and four others who were kidnapped and their bodies later dumped by a road.
Hezbollah prisoner held by Iraq faces minor charge (Abdul-Zahra, AP):

Quote:
BAGHDAD (AP) — A Lebanese Hezbollah commander allegedly responsible for killing four U.S. soldiers in Iraq will be prosecuted for a lesser charge of illegal entry with a forged passport, Iraqi officials said Saturday.

Ali Musa Daqduq was the last American prisoner in Iraq and was handed over to Iraqi authorities on Friday.

On Saturday, two Iraqi officials said Daqduq will be prosecuted for illegal entry with a forged passport — the only Iraqi charge against him. The charge generally carries a sentence of just over five years in prison. But the officials say an investigative judge will consider U.S. allegations against him. The officials spoke on condition of anonymity because of the sensitivity of the matter.
Now cometh the attributions of fault - why did the deer escape the hunter ? Broadly, says Bobby Chesney at Lawfare, The Daqduq Mess: Apportion Blame Widely (most all of which involve "political questions"). However, a narrower approach is taken by David Glazier (CDR USN, Ret.), Past and Future Prosecution Options for Daqduq (Lawfare, guest post). His life experience is material:

Quote:
Before attending law school, Glazier served twenty-one years as a US Navy surface warfare officer. In that capacity, he commanded the USS George Philip, served as the Seventh Fleet staff officer responsible for the US Navy-Japan relationship, the Pacific Fleet officer responsible for the US Navy-PRC relationship, and participated in UN sanctions enforcement against Yugoslavia and Haiti.
His comments (largely of a practical nature) are well considered (JMM: the four headings are mine]:

[War Crimes are Subject to UCMJ Courts-Martial]

Quote:
I think the analysis of who bears the blame for “the Daqduq mess” overlooks perhaps the most culpable parties – senior U.S. military commanders in Iraq and their staff judge advocates. If it is true that the U.S. had evidence that Daqduq was responsible for actual war crimes — the killing of captured American soldiers – and had physical custody of him, why was he not simply tried for those offenses by a general court-martial sitting in Iraq? Senior military commanders established as general court-martial convening authorities had the necessary statutory authority given that law of war violations are specifically placed within the jurisdiction of general courts-martial by UCMJ article 18 (10 U.S.C. § 818). U.S. forces conducted 95 general and special courts-martial of American personnel in Iraq in 2008-2009, so the necessary assets were available in that theater to do so. Regardless of how the Iraqi insurgency was characterized at the time of these events – international or non-international armed conflict – killing captured individuals constitutes the war crime of murder and should have been validly subject to U.S. trial either on the basis of the victims being American or under the universal jurisdiction generally recognized for war crimes.
["Routine" Combat Killing is Not a War Crime; though It Can Be Murder]

Quote:
Ironically the U.S. could probably not have made similar claims with respect to the “routine” killing of American service personnel by improvised explosive devices (IEDs) or in actual combat with Iraqi insurgents. If such killings were unlawful, it would only be because the perpetrators were not lawful combatants, in which case they would be denied belligerent immunity and subject to prosecution under ordinary domestic law for their conduct. But with the transfer of governing authority from the Coalition Provisional Authority to the new Iraqi government in mid-2004, U.S. military tribunals lost whatever domestic law authority they might have exercised as occupation law courts up until that time. Daqduq thus presented a unique situation and the staff judge advocates who failed to recognize this and advise their commanders accordingly missed a significant opportunity to see justice done for their fellow soldiers.
[Military Commission Trials Have Statutory Limitations]

Quote:
I do not believe that the position reportedly endorsed by the Obama administration, trying to bring Daqduq to the United States (or even the conservatives’ preference of Guantánamo) for a military commission trial was legally sound. The Supreme Court has specifically held that convening a military commission is a command function and has only upheld trials convened by responsible commanders during the period of hostilities. (See, e.g., the 1946 Yama$hita decision, 327 U.S. 1 at 10-12.) It is unclear whether the implicit Military Commissions Act provision for a civilian appointee with no command authority to convene these trials will withstand judicial scrutiny; this is just one of the many potential issues with these trials that will undoubtedly require years of litigation to fully resolve if trials resume there in earnest. What is of more concern with respect to Daqduq is that the American withdrawal from Iraq logically terminates that conflict for purposes of legitimate U.S. military law of war jurisdiction, so a military trial anywhere at this point would be extremely problematic.
[The War Crimes Act of 1996 Applies - US District Court Jurisdiction]

Quote:
There is still a possible solution to this mess, however. The killing of captive Americans clearly violates the War Crimes Act of 1996 (18 U.S.C. § 2441) and can thus be prosecuted in regular Article III courts. It seems clear that Iraq’s primary concern over the past few years has been to reassert its status as a fully sovereign nation and insist on U.S. respect for its legal capacity. The United States should publicly demonstrate respect for Iraqi sovereignty by formally indicting Daqduq in the federal system and then requesting his transfer for prosecution under the 1934 U.S.-Iraq extradition treaty. Given Iraq’s obligation under international law to cooperate in the repression of war crimes, it then has the incentive to demonstrate its standing as a responsible sovereign state by approving the transfer.
Both Polarbear1605 and Yours Truly have made the point in various SWC posts that we (US) should be prosecuting enemy combatants (whether deemed regular or irregular) for war crimes when that opportunity presents itself.

While I agree with Glazier's practice points, I doubt that the lesson that should be learned, will be learned.

Regards

Mike

Last edited by jmm99; 12-22-2011 at 06:33 PM.
jmm99 is offline   Reply With Quote
Old 01-03-2012   #91
jmm99
Council Member
 
Join Date: May 2008
Posts: 4,021
Default Pres. Obama's Signing Statement on the NDAA

Here is the text of Pres. Obama's statement, President’s Signing Statement on National Defense Authorization Act (text and brief comment by Marty Lederman; Opinio Juris, 31 Dec 2011) [from presidential statement as to key provisions in Secs. 1021 & 1022):

Quote:
Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” Second, under section 1021(e), the bill may not be construed to affect any “existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are “captured in the course of hostilities authorized by the Authorization for Use of Military Force.” This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa’ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.

I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security. Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States. As my Administration has made clear, the only responsible way to combat the threat al-Qa’ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention. I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.
It brought on a two-part comment (by folks who are centrists on the left side of that "section" of the political spectrum) - generally favorable to the Obama administration's detention policies, though with reservations if "some bad guy" gets into power.

The NDAA: The Good, the Bad, and the Laws of War–Part I (Marty Lederman and Steve Vladeck; Opinio Juris, 31 Dec 2011); and

The NDAA: The Good, the Bad, and the Laws of War–Part II (Marty Lederman and Steve Vladeck; Opinio Juris, 31 Dec 2011).

In response, a position further left, Detention Under the NDAA and the Limits of Analogy (Kevin Jon Heller; Opinio Juris, 31 Dec 2011).

Frankly, all three of these authors are based in the premise that there is a brooding, international omnipresence in the sky - call it the Laws of War (or the Law of Armed Conflict, or International Humanitarian Law). And that, that omnipresence controls all national laws on that subject. In some countries, their national "Basic Laws" do require that result (e.g., Israel and Germany); or that result is required by very broad treaties and other interstate compacts (e.g, as in the EU generally).

In the US, the international "laws of war" become applicable only when they are adopted by the constitutionally empowered branch(es) of government, as in the following graphic:

I Law Flow 01.jpg

Given the unsettled state of international law with respect to detention (see OP in this thread) - especially in conflicts not of an international character (not between states), looking for a brooding omnipresence in the sky is a fool's mission.

Regards

Mike
jmm99 is offline   Reply With Quote
Old 02-29-2012   #92
jmm99
Council Member
 
Join Date: May 2008
Posts: 4,021
Default Presidential Policy - Sec. 1022 NDAA Waivers

President Obama's Sec. 1022 Waivers of Military Detention yesterday.

WH 1022 Fact Sheet
Presidential Policy

From the Fact Sheet:

Quote:
Specifically, as certified in the procedures issued today, the President has determined it is in the national security interests of the United States to waive the military custody requirement of Section 1022 in the following circumstances:

• When placing a foreign country’s nationals or residents in military custody will impede counterterrorism cooperation;

• When a foreign government indicates that it will not extradite or transfer suspects to the United States if the suspects may be placed in military custody;

• When an individual is a U.S. lawful permanent resident who is arrested in this country or arrested by a federal agency on the basis of conduct taking place in this country;

• When an individual has been arrested by a federal agency in the United States on charges other than terrorism offenses (unless such individual is subsequently charged with one or more terrorism offenses and held in federal custody in connection with those offenses);

• When an individual has been arrested by state or local law enforcement, pursuant to state or local authority, and is transferred to federal custody;

• When transferring an individual to military custody could interfere with efforts to secure an individual’s cooperation or confession; or

• When transferring an individual to military custody could interfere with efforts to conduct joint trials with co-defendants who are ineligible for military custody or as to whom a determination has already been made to proceed with a prosecution in a federal or state court.
Depending on how and how often these waivers are used, they could marginalize military detention and military commission trials of AQ members.
jmm99 is offline   Reply With Quote
Old 04-10-2012   #93
jmm99
Council Member
 
Join Date: May 2008
Posts: 4,021
Default Two Astan MOUs

for your consideration:

Memorandum of Understanding between Afghanistan and the United States on Afghanization of Special Operations on Afghan Soil.

Memorandum of Understanding between the Islamic Republic of Afghanistan and the United States of America on Transfer of U.S. Detention Facilities in Afghan Territory to Afghanistan.

Lest we forget:



First Lieutenant Ben Hall, MTU Class of 2005 and former Cadet Battalion Commander, was killed in action on 31 July 2007 in Afghanistan while fighting with the 2nd Battalion, 503rd Infantry Regiment (Airborne), 173rd Airborne Brigade Combat Team, against Taliban forces on the Afghanistan-Pakistan border.

Regards

Mike
jmm99 is offline   Reply With Quote
Old 04-10-2012   #94
Bob's World
Council Member
 
Bob's World's Avatar
 
Join Date: Nov 2008
Location: Florida
Posts: 2,672
Default

Mike,

Thanks for posting these. This is so long over due. To this point we have held Afghan Sovereignty in complete disregard, demonstrating through our actions the hollowness of our own words when we toss about terms like "Legitmacy" "Sovereignty" "Justice" and "Respect."

Any government elevated into power by an external nation or other source of power is presumptively illegitmate, regardless of any holdings of any offical legal bodies to the contrary. Legality and legitimacy are not the same thing. In our pursuit of effective and efficient defeat of the Revolutionary and Resistance insurgencies in Afghanistan we have to this point placed the very perceptions of the non-Northern Alliance populaces of Afghanistan that are critical for stability far behind what we saw as reasonably necessary authorities and activities to defeat the insurgent threat.

This is what happens when one comes to see their intervention as being "COIN." The host nation, as sovereign, conducts COIN. The intervening party assisting such a government is conducting FID, and fundamental to FID is the subjugation of ones actions to the sovereignty of that host nation. To do other wise is to make a joke of the very government one seeks to support. It places what one needs to be tactically successful secondary to what one needs in order to be strategically successful.

If this were an American colony and all we needed to do was suppress the insurgent fighters so that our puppet government could get on with serving our interests over those of the nation they run for us, then suppression of this nature is good enough. Though that is what the bulk of our COIN doctrine is based upon, that is not our mission in Afghanistan, and that is not "good enough." This is a big step toward getting right with the people of Afghanistan. GIRoA may well fall, but if they fall it will be because they did not deserve to stand. Either way, Afghanistan is finally on a path toward earning true sovereignty and legitimacy in the eyes of not only their own populace, but the entire world,

Now, I do not know if a Northern Alliance judge issuing a warrant in a Kabul court is going to mean F-all to a Pashtun living in the mountains of Uruzgan Province, or the suburbs of Kandahar. We may be applying an American solution to solve an American problem. I suspect a more recognized forum would be a local shura with village, tribal and religious leaders, who then go as a body to the home in question and ask for the offending citizen of their community, backed by appropriate Afghan security forces. One won't likely find very many guys still at home in such an approach, but that in of itself is a metric of how powerful the insurgency to the current government is in much of the country.

We must learn that it is far better to achieve horrible results doing things right than it is to achieve tremendous results doing things wrong. This is a big step in the right direction, but we are losing control of the situation and effectiveness is out the window. Perfect. For those who are thinking, "we may as well pack up and go home," you are not far wrong.
__________________
Robert C. Jones
Intellectus Supra Scientia
(Understanding is more important than Knowledge)

"The modern COIN mindset is when one arrogantly goes to some foreign land and attempts to make those who live there a lesser version of one's self. The FID mindset is when one humbly goes to some foreign land and seeks first to understand, and then to help in some small way for those who live there to be the best version of their own self." Colonel Robert C. Jones, US Army Special Forces (Retired)
Bob's World is offline   Reply With Quote
Old 04-10-2012   #95
jmm99
Council Member
 
Join Date: May 2008
Posts: 4,021
Default Hi Bob:

My primary foci in this "capture-detain" thread and in its sibling "kill" thread have been on US-owned Title 10 - Title 50 direct actions against HVTs (AQ officers being the type cases). We shall see whether the two 2012 MOUs will impact those particular DAs - e.g., a DA against an AQ officer at a target location in Astan, or a DA launched from Astan soil against an AQ officer located in Pakistan.

What I may not have mentioned here or elsewhere is that Afghanistan has acceded (10 Nov 2009) to the 1977 Additional Protocols I and II of the 1949 Geneva Conventions (link and link). In short, that placed Astan on the same legal playing field as ISAF (UN, EU, NATO), but on a footing different from that of the US (non-accession to APs I & II). AP II is fully cited in Section 1.4 (page 2) of the Special Operations MOU; and in Section 1.2 (page 1) of the Detention Facilities MOU.

The language used (in Section 5 of the Special Operations MOU - .pdf snip attached) seems very exclusive of direct US participation in, say, "house clearings". These two MOUs remind me of the 2008 Iraq "SOFA"; and, if so, the consequences will probably be similar.

I don't get what you mean by this:

Quote:
from BW
We must learn that it is far better to achieve horrible results doing things right than it is to achieve tremendous results doing things wrong. This is a big step in the right direction, but we are losing control of the situation and effectiveness is out the window. Perfect. For those who are thinking, "we may as well pack up and go home," you are not far wrong.
- the usual "What we have here is a failure to communicate" - a mutual problem, it would seem.

Regards

Mike
Attached Files
File Type: pdf 2012 MOU Special Ops sec 5 snip.pdf (124.4 KB, 152 views)
jmm99 is offline   Reply With Quote
Old 04-17-2012   #96
jmm99
Council Member
 
Join Date: May 2008
Posts: 4,021
Default The Emerging Law of Detention

When it first came out a year ago, I mentioned The Emerging Law of Detention 2.0: The Guantanamo Habeas Cases as Lawmaking, by Ben Wittes and Bobby Chesney, as a useful (free) resource. At least two of the chapters have been updated since then. You can download the full monograph (1.35MB, 179pp), or individual chapters.

The introduction (link above) summarizes the monograph's methodology and scope:

Quote:
This report proceeds in several parts. In the first section, we briefly describe the legal background that gave rise to these habeas corpus cases: the Supreme Courts decisions recognizing federal-court jurisdiction over Guantnamo and addressing to a limited extent the contours of a legal process for detainees adequate to satisfy constitutional concerns. We highlight in particular the extent to which the court left the key questions open, a move that in the absence of further congressional action effectively delegated the writing of the rules to the judiciary.

In the sections that follow, we examine the law as it is developing with respect to several of the most important questions concerning the governance of non-criminal, law-of-war-based detentions. In particular, we look at the judges approaches to the following questions:

the burden of proof;

the substantive scope of the governments detention power;

the question of whether a detainees relationship with an enemy organization, once established, is permanent or whether it can be vitiated by time or events;

whether the government is entitled to presumptions in favor of either the accuracy or authenticity of its evidence;

the use of hearsay evidence;

the use of evidence alleged to result from coercion; and

the governments use of a mosaic theory of evidentiary interpretation.
This term of SCOTUS, eight detainee cases have sought review. So far, review has been denied in two cases.

Regards

Mike
jmm99 is offline   Reply With Quote
Old 05-07-2012   #97
Presley Cannady
Council Member
 
Join Date: Nov 2007
Location: Boston, MA
Posts: 310
Default Why hold senior detainees at all?

From WaPo:

Quote:
KABUL — The United States has for several years been secretly releasing high-level detainees from a military prison in Afghanistan as part of negotiations with insurgent groups, a bold effort to quell violence but one that U.S. officials acknowledge poses substantial risks.

As the United States has unsuccessfully pursued a peace deal with the Taliban, the “strategic release” program has quietly served as a live diplomatic channel, allowing American officials to use prisoners as bargaining chips in restive provinces where military power has reached its limits.
We've discussed something similar on the theory that most detainees are useless rank and file--if even that much. So where do folks stand on paroling senior detainees?
__________________
PH Cannady
Correlate Systems
Presley Cannady is offline   Reply With Quote
Old 05-07-2012   #98
jmm99
Council Member
 
Join Date: May 2008
Posts: 4,021
Default A Matter of Discretion and Wisdom

Whether to "parole" a detainee ("senior" or otherwise) is a matter within the discretion of the Executive Branch, subject to Congressional action where Congress elects to take such action. As such, it is a Political Question.

Parole has been around for a long time. For a pre-9/11 look, see, 1998 Brown, Prisoner of War Parole.

In a civil war, POW questions (including parole and exchange) are complicated by the issues underlying the armed conflict. The Lieber Code of 1863 has a lengthy section (119-134) covering parole. That General Order was preceded by the 1862 Dix–Hill Cartel (Wiki and Agreement). Despite the outlines provided by these legal sources, the Chronology of the Prisoner of War Exchange and Parole Cartel amply illustrates that a "one size fits all suit" did not exist.

My view: as a general rule I'd follow Grant (snips from the Chronology link):

Quote:
April 17, 1864 Grant issues orders to Butler essentially forbidding exchanges unless and until the Confederates agree to treat black troops equally with white, and agree to compensate the U.S. for the early release from parole of the Vicksburg and Port Hudson garrisons.
...
August 18, 1864 Grant writes to Butler, "It is hard on our men held in Southern prisons not to exchange them, but it is humanity to those left in the ranks to fight our battles. Every man we hold, when released on parole or otherwise, becomes an active soldier against us at once either directly or indirectly. If we commence a system of exchange which liberates all prisoners taken, we will have to fight on until the whole South is exterminated."

August 19, 1864 Grant writes to Union Secretary of State Seward, "We ought not to make a single exchange nor release a prisoner on any pretext whatever until the war closes. We have got to fight until the military power of the South is exhausted, and if we release or exchange prisoners captured it simply becomes a war of extermination."
...
Oct. 1, 1864 Lee proposes an exchange with Grant, but the idea founders on the question of black troops.
...
Oct. 15, 1864 Stanton places all prisoner of war issues in Grant's hands, with instructions to "take any steps that you may deem proper to effect the release and exchange of our soldiers and all loyal persons held as prisoners by the rebel authorities."
...
Jan. 21, 1865 Grant informs Stanton that he has given instructions that negotiations be re-opened with a view to resuming a general exchange.
...
Feb. 2, 1865 Grant informs Stanton that he intends to exchange about 3,000 men per week until one side or the other has no more prisoners. The Federals intend to exchange men from states such as Missouri and Kentucky first, to minimize the chances that they could be put back into their units.
but every rule has its exceptions ("METT-TC").

Regards

Mike
jmm99 is offline   Reply With Quote
Old 05-07-2012   #99
davidbfpo
Council Member
 
davidbfpo's Avatar
 
Join Date: Mar 2006
Location: UK
Posts: 8,814
Default

Presley asked:
Quote:
So where do folks stand on paroling senior detainees?
I thought that the US-run prison at Bagram AFB had been handed over to the Afghans, so this question in the Afghan context maybe academic.

There is a historical parallel in Northern Ireland, during the long-running 'Troubles' and IIRC is still in use today - as some parolees have been recalled to jail, for breaching their conditions. Before the Good Friday Agreement it is well documented, although I have no references to hand, that the para-military convicts were decisive in arguing the case for a ceasefire and making peace.

Somehow I doubt if there is the capacity, let alone the will in Afghanistan to recall parolees. So are we in fact talking about hostages?

Incidentally in both Italy and Spain, with their own internal terrorist campaigns, made extensive use of imprisonment in reaching a political solution and so curtailing the use of violence.

Further back Rhodesia at one point made use of releasing temporarily jailed nationalist leaders, including Robert Mugabe, to enable political talks and at one point released several of them - where upon they left to lead the violent struggle from neighbouring states. That seems to be a more suitable example.
__________________
davidbfpo
davidbfpo is offline   Reply With Quote
Old 05-17-2012   #100
jmm99
Council Member
 
Join Date: May 2008
Posts: 4,021
Default Detention Act Unconstitutional

So held, Judge Katherine Forrest (SDNY, 16 May 2012), in a 68-page opinion, as reported by the Courthouse News Service:

Quote:
MANHATTAN (CN) - A federal judge granted a preliminary injunction late Wednesday to block provisions of the 2012 National Defense Authorization Act that would allow the military to indefinitely detain anyone it accuses of knowingly or unknowingly supporting terrorism.

Signed by President Barack Obama on New Year's Eve, the 565-page NDAA contains a short paragraph, in statute 1021, letting the military detain anyone it suspects "substantially supported" al-Qaida, the Taliban or "associated forces." The indefinite detention would supposedly last until "the end of hostilities."
...
Weeks after Obama signed the law, Pulitzer Prize-winning journalist Chris Hedges filed a lawsuit against its so-called "Homeland Battlefield" provisions.

Several prominent activists, scholars and politicians subsequently joined the suit, including Pentagon Papers whistle-blower Daniel Ellsberg; Massachusetts Institute of Technology professor Noam Chomsky; Icelandic parliamentarian Birgitta Jonsdottir; Kai Wargalla, an organizer from Occupy London; and Alexa O'Brien, an organizer for the New York-based activist group U.S. Day of Rage.

They call themselves the Freedom Seven.
This decision is contrary to the logic of the DC Circuit cases interpreting the AUMF; but Judge Forrest is in the 2nd Circuit and is not bound by DC Circuit precedents.

Regards

Mike
jmm99 is offline   Reply With Quote
Reply

Bookmarks

Tags
capture, counter insur, counter terrorism, counterterrorism, detention, escape, imprisonment, internment, iraq, jail, libya, pakistan, terrorism

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT. The time now is 11:18 AM.


Powered by vBulletin® Version 3.8.8. ©2000 - 2015, Jelsoft Enterprises Ltd.
Registered Users are solely responsible for their messages.
Operated by, and site design © 2005-2009, Small Wars Foundation