Matters Blackwater (Merged thread)

[jmm99]

I guess the next question is why these types of arguments have not been made to date? We seem to have significant gaps in both the Laws of War and Rules of Law when it comes to the war on terrorism. In a lot of ways I thing the troops are the ones paying the price for those gaps.

and is not a legal question at its core; but rather a structural problem in lending assistence to an already-established HN government - or to one which we have established.

Your last sentence is totally on target; and has been true since Vietnam and Korea before it.

The problem is that there are two things going on at once:

1. A war (whatever its intensity; an "armed conflict" in GC terms) is on-going - and demands a military solution (whether hard, soft or in-between) with Unity of Command - realized to some extent in Korea, not in Vietnam. In that arena, the Laws of War are generally applicable - and do provide some guidance and structure.

2. A political contest is also on-going, where the ball is flipped back and forth; with factions in the HN political set-up; with one or more HN insurgent groups; with the US (with all its agencies and its own external and internal politics) having its own agenda(s); and also allies, non-violent adversaries and international organizations.

IMO: determining what Rule of Law should apply best in that mess is practically impossible on any consistent basis because there are too many conflicting "rules of law" and political interests.

I suppose one solution is the Roman model, where the top officers in each legion had legal, judicial and legislative experience, both domestic and foreign. Their military experience was only a part of their whole. As we know, the legion's military experience primarily rested in its centurions - culminating in the primus pilus. His boss, the legionary legate, whether in a Roman province or in an assisted HN, had both COCOM and LEGCOM (made that acronym up) in his legion's area of responsibility. Thus, there was Unity of Command in both the military and legal (political) arenas.

IMO: The present-day US is not about to adopt the Roman model. The present-day structural problem is beyond the capabilities of those who are constitutionally tasked to solve it. Therefore, the solutions (except in simpler cases) will be kludges - probably with blowback in some areas.

Perhaps, when in Rome do as the Romans did; otherwise, stay out of Rome.