Constitutions and Counterinsurgency

[slapout9]

Most interesting article on Constitutional design as a form of Counterinsurgency. All you lawyers..get on your mark...get set ....go!



http://www.harvardlawreview.org/issu...nal_design.pdf

[Rex Brynen]

I'm frankly a bit startled that anyone can write an article that starts by saying that "Few think of counterinsurgency as linked to constitutional design." I would have thought that nearly 100% of political scientists, and nearly 100% of politicians in conflict-prone countries, see the two as intimately linked, given that the vast majority of constitutions around the world (including, I might add, those of Canada and the US) were written precisely to minimize the possibility of ethnic/religious/linguistic violence or secessionism and to assure long term political stability.

It is also a bit odd to start of citing Rory Stewart ("the author, who served as deputy governorate coordinator in Maysan province, Iraq, 'operated at a level that had nothing to do with new constitutions' ") in support of this lacunae. Not only is Rory's quote intended to highlight the disconnect between the CPA and what was happening on the ground in the provinces, but the author rather misses what is central to Rory's argument: that outsiders are typically so poorly informed, and carry too much ideological, political, and cultural baggage, to do a very good job of designing systems of governance for other people—especially when they tend do so in a hurry, and when they get up and leave eventually and don't have to live under the system they have designed.

Much of the rest of the article is fairly straightforward, and fairly sensible, although it would have been much more effective if it had addressed Rory's argument, instead of using him as an introductory straw-man.

I get a bit nervous when people feel it the need to dress perfectly obvious social science in new COIN garb just for the sake of it. (I feel like the political science version of Wilf on infantry doctrine!)

[Hacksaw]

In and out...

It will pass

[jmm99]

from Slap
All you lawyers..get on your mark...get set ....go!

and once a lowly Asst. Editor on the Michigan Law Review (1966-1968) - which is the grunt level in the law review pecking order (and didn't aspire beyond NCO level because that was enough to keep my scholarship - and I used my time to ghost-write appellate briefs for a law firm that had too many cases and not enough legal talent). So, who am I to review the august pages of Haaavaaard ?

This is a case note (short article) - so it was written by some young guy or gal who was assigned the topic and did the best he or she could.

Here are some quotes and my brief comments to the bold face.

HLR 1623
Before exploring the relationship between counterinsurgency and constitutional design, a brief review of the basic elements of insurgency and counterinsurgency is helpful. [3]
3 There are many approaches to counterinsurgency. This Note embraces the approach of recent military scholarship — that of a modern, democratic nation, devoted to human rights and the rule of law. Some prefer a more heavy-handed approach. See, e.g., Edward N. Luttwak, Dead End: Counterinsurgency Warfare as Military Malpractice, HARPER’S MAG., Feb. 2007, at 33.

Counterinsurgency is by its very nature authoritarian, even in its kinder and gentler versions. Emergency measures end up being taken (e.g., our own experience in the Civil War - have been re-reading the 3 vols from the Holmes Devise History of SCOTUS which deal with that period - habeas, etc.).

HLR 1623
Insurgency is the use of military, political, informational, and economic tools to undermine or forestall a legitimate, stable political order. [4]
4 See, e.g., THE U.S. ARMY/MARINE CORPS COUNTERINSURGENCY FIELD MANUAL
¶ 1-3 (2007) [hereinafter COUNTERINSURGENCY FIELD MANUAL]; Kilcullen, Countering Global Insurgency, supra note 1, at 603; Kilcullen, Counter-Insurgency Redux, supra note 2, at 112–14. The literature on contemporary insurgency is dynamic. This Note is limited to the major factors of insurgency relevant to constitutional design in a single state.
.....
HLR 1624
Counterinsurgency can be defined as the “military, paramilitary, political, economic, psychological, and civic actions taken by a government to defeat insurgency.” [11]
11 Id. [COUNTERINSURGENCY FIELD MANUAL] ¶ 1-2.

If the country has a legitimate, stable political order & government, etc., it has a constitution in some form. So, we are dealing with amendment, not creation.

In point of fact, the preceding quotes start off the article; but its real focus is on failing or failed states - start from scratch. Maybe there are some useful points in those sections. Really didn't have time to look at it in real depth - have a 21 Sep dropdead date on some "stuff".

And, I am not really into "nation building". My oaths are to support our Constitution, which has enough issues to keep me busy.

from Rex Brynen
Rory's argument: that outsiders are typically so poorly informed, and carry too much ideological, political, and cultural baggage, to do a very good job of designing systems of governance for other people—especially when they tend do so in a hurry, and when they get up and leave eventually and don't have to live under the system they have designed.

I'll go with Rory on that point.

from Rex Brynen
I get a bit nervous when people feel it the need to dress perfectly obvious social science in new COIN garb just for the sake of it. (I feel like the political science version of Wilf on infantry doctrine!)

Agreed - but it's the flavor of the day.

[slapout9]

So, who am I to review the august pages of Haaavaaard ?

jmm99,Rex,Hack I think all you guys did a better job then the gentleman from Massachusetts. My personal opinion is like is says the USMC small Wars manual, establish a military government to establish security and stability and then do the Constitution and election bit.

[TheCurmudgeon]

After reading the article I come away with a tangential question – Is it ever a good idea to attempt to draft a constitution while the insurgency is still a political force?

In situations where there is regime change or a failed state and you are building a constitution nearly from scratch, is it better to wait for the security situation to stabilize significantly before you try to draft a long-term document like a constitution?