Crimes, War Crimes and the War on Terror

[rjorr]

The online blog "Opinio Juris" has a good post today regarding the decision to try KSM and some others in federal court. It does, in my mind, a good job of refuting the notion that the criminal process is somehow a threat to US security. Others have addressed the subject in more detail, but this author does about a good a job as I've seen in a short piece.

http://opiniojuris.org/2009/11/17/do...pinio+Juris%29

[jmm99]

by Crocker and Yoo, I concluded both were a waste of my time, other than the comment by Howard Gilbert (4th response).

That at least shows situational awareness of the different rules applicable based on a detainee's status; and the parameters of nationality and territorial jurisdiction.

So, here is the comment:

A person has or does not have Constitutional rights based on his legal status. He does not lose these rights based on the type or severity of the crime of which he is accused. He cannot be stripped of these rights by the type of court in which he is tried. Someone who lacks constitutional rights will still get normal judicial due process in a trial and may call witnesses and be represented by a lawyer of his choice.

While sloppy thinking may be endemic to the debate, one hopes the judge will sort things out. “Terrorists” have no more or fewer rights than bank robbers, but a non-citizen captured and held overseas and then tried for some sort of extraterritorial murder is not entitled to certain procedural rules (with regard to things that happened in foreign countries) that would apply to a resident accused of a murder in the US.

One may believe that civilian courts would be more likely than military courts to make the mistake of attributing Constitutional rights to someone who is not entitled to them. This is a valid criticism of some judges, but it is not a problem with the court system. On the other hand, military judges know they are dealing with enemy soldiers captured outside the US and are unlikely to make certain mistakes.

KSM is entitled to all the protections of due process, but he is not a citizen or legal resident and is not entitled to constitutional protections. For example, when papers and computer disks were seized by the Pakistani police during his arrest there was no US search warrant because no US court had jurisdiction over Pakistan. Those papers and files cannot be excluded, because the Fourth Amendment did not apply to his capture.

Although statements made due to torture can be excluded, there is no requirement to read Miranda rights to someone who, at the time of capture, is not protected by the Fifth and Sixth Amendments. Judges should be smart enough to not exclude, for example, un-coerced statements made by enemy soldiers after capture, even though the same statements might be excluded if made by un-Mirandized citizens after a criminal arrest.

There are judges who are smart enough to apply the law correctly, and some who are not. Unfortunately, the system does not have a procedure to guarantee that a trial like this is assigned to the most able judge.

QED.

----------------
rjorr: An introduction with some background would be helpful - perhaps, here.

Regards

Mike

[Sergeant T]

Two thoughts come to mind in reading through Gilbert's comment. First, at what point in his detention do the 5th and 6th Amendment kick in? I'm willing to bet his lawyers will spend some quality time with this issue. Second, Gilbert says the 4th Amendment doesn't apply to items seized at his capture. While that's true it doesn't mean they're going to be admissible in court either. At least from what I recall of my ConLaw classes many years ago. I'd love to be wrong about that.

[jmm99]

The reach of the Constitution hinges on two primary factors: (1) nationality jurisdiction (e.g., US citizens and usually legal resident aliens); and (2) territorial jurisdiction (i.e., what geography is "incorporated" into the US).

Here are some study aids:

The Insular Cases - Wiki. In effect, the Supreme Court held that full constitutional rights did not automatically extend to all areas under American control.

The Insular Cases - Dan MacMeekin. Very nice summary discussion of each case, with links to the Find Law case reports.

United States v. Verdugo-Urquidez - Wiki. To date, the authority of this case seems unimpaired. The controversy, if any, has been with respect to "relaxation" of 4th, 5th and 6th Amendment rights within CONUS because of GWOT.

That domestic focus seems part of an ongoing effort by John Yoo et al to prove that their domestic-focused memos re: GWOT were correct, as in this piece from Volokh, A Response to Delahunty’s “The Fourth Amendment Goes to War” (26 Oct 2009).

There we also find a comment by Howard Gilbert (the guy gets around):

Soldiers are not trained in police procedures or law. When deployed in a military operation, they do not obtain or even think about warrants.

It is the responsibility of the national command to not deploy soldiers in a police operation. The military is therefore not exempt from the Fourth Amendment, but it is a matter of Monday morning quarterbacking. If a judge finds months later that the circumstances were not a proper military operation and a warrant was required, then the person whose rights were violated has a cause of action against the US.

In that sense, you have to reverse the logic. It is not that warrants are not required for a military operation, but rather than when warrants are required, it is not a legitimate military operation and should have been conducted by the police.

The most likely scenario in the current conflict is not Gettysburg, but Mumbai. A commando raid by an enemy unit arriving in fast rubber boats launched from a ship off the East Coast. Although local police might respond, it would be legitimate to also use military forces. Once committed to such a battle, soldiers can enter any building, detain people, and use such force as is necessary to accomplish the mission. If they happen to stumble into your basement filled with pot plants, that is probably not admissible as evidence in any criminal case.

Now you may say there are exigent circumstances. That provides a rationale in current legal terms for the activity. However, you are trying to apply legal language to a situation where that law does not apply. The military, once legitimately deployed in defense of the US against an external invader, do not require warrants ever, their actions are inherently reasonable, and the Fourth Amendment is silent about such activity. In the history of the US, no military unit has ever obtained a warrant for anything. A warrant is authority from the Article III branch of government to do something. The Article III branch has no authority that is required or even helpful to military operations, which operate solely under Article II authority.

There is no case law because previous generations have understood this principle. Since the Civil War, one might look for incidents in the New Mexico raids by Poncho Villa, or the martial law in Hawaii after Pearl Harbor. However, there are not a lot of examples of actual attacks by a foreign force inside the US, so you have to use some logic to guess the outcome when an issue has never been litigated.

Generally, this works for me; but specific facts must be provided before engaging in reasoned analysis. In absence of specific facts, the discussion degenerates to "going to perdition in a handbasket", "sliding down the slippery slope" and all the rest of the catch phrases used in current political spin.

In summary, the "Insular Cases" answer many 4th, 5th and 6th Amendment issues, which will not differ substantially whether the case is tried in a Federal court or before a military commission.

There is a difference between judges. For example, in the Gitmo habeas cases, the judges who were more knowledgeable about intelligence matters and AQ (e.g., from having served on the FISA court), in my opinion, authored more thoughtful and relevant opinions. And that was so, whether they held for or against the detainees.

Unfortunately, many who attempt to discourse on these issues have not really studied transnational violent non-state actors (e.g., AQ) in terms of their strategies, operations and tactics. These TVNSAs are not equivalent to your average domestic bank robber or murderer.

Hint: those legal discoursers should be required to participate across the board in SWC forums before being allowed to speak.

[davidbfpo]

Nothing results in more disclosures of government intelligence than civilian trials,’’ writes former federal prosecutor Andrew C. McCarthy. “They are a banquet of information, not just at the discovery stage but in the trial process itself, where witnesses - intelligence sources - must expose themselves and their secrets.

McCarthy should know. He was the prosecutor of Omar Abdel Rahman, the “blind sheikh’’ put on trial after the 1993 World Trade Center bombing. Though Rahman was eventually convicted and is serving a life sentence, the government was required to supply defense lawyers with sensitive intelligence details, including a list of 200 potential co-conspirators - people the government knew about, but didn’t have enough evidence to charge. Within days, those names had found their way to Sudan and were in the possession of bin Laden, an intelligence windfall that immeasurably aided his jihad against the United States.

From:http://www.boston.com/bostonglobe/ed...day-newsletter

[davidbfpo]

MI5 and MI6 have been given permission to hold hearings behind closed doors into their alleged complicity in the treatment of seven former detainees in Guantanamo Bay.

A High Court judge ruled there was no reason in law why closed hearings should not be used in the damages case, even though it had never been used in such a case before.

The judge said the "closed material" procedure entitled the defendants not to disclose matters to the claimants or their lawyers where disclosure would be contrary to the interests of national security, the international relations of the UK or in any other circumstances where it was likely to harm the public interest.

From:http://www.telegraph.co.uk/news/6600...nto-abuse.html

[jmm99]

I'm never sure how to handle the suggestions of fellow lawyer and McCarthy, Andy. His suggestion of a civilian National Security Court to handle "war crimes" cases (similar to the FISA courts with TVNSA-savvy judges) seems to me a good one, even though there is no possibility that it will be adopted by the present administration and Congress.

However, as to his short article, Holder's Hidden Agenda, cont'd, in Andy's Corner at NRO (13 Nov 2009), with this substantive conclusion:

Nothing results in more disclosures of government intelligence than civilian trials. They are a banquet of information, not just at the discovery stage but in the trial process itself, where witnesses — intelligence sources — must expose themselves and their secrets.

I have to say: Not necessarily so. The DC habeas proceedings are civilian, where classified evidence has been protected - although some judges there have not been adept at that (e.g., writing public opinions that have to be so redacted as to become unintelligible). Of course, the sealed full opinions (and all the classified evidence) are filed and available for appellate review. The old intel pros among the judges write two opinions, one a shortened non-classified version; the other a full classified version. In short, our knowledge of TVNSAs and procedures to protect classified evidence have advanced since the Rahman trial.

That having been said, Andy makes a valid point with this, subject to the caveat above:

So: We are now going to have a trial that never had to happen for defendants who have no defense. And when defendants have no defense for their own actions, there is only one thing for their lawyers to do: put the government on trial in hopes of getting the jury (and the media) spun up over government errors, abuses and incompetence. That is what is going to happen in the trial of KSM et al. It will be a soapbox for al-Qaeda's case against America. Since that will be their "defense," the defendants will demand every bit of information they can get about interrogations, renditions, secret prisons, undercover operations targeting Muslims and mosques, etc., and — depending on what judge catches the case — they are likely to be given a lot of it. The administration will be able to claim that the judge, not the administration, is responsible for the exposure of our defense secrets. And the circus will be played out for all to see — in the middle of the war. It will provide endless fodder for the transnational Left to press its case that actions taken in America's defense are violations of international law that must be addressed by foreign courts. And the intelligence bounty will make our enemies more efficient at killing us.

So, a lot depends on the judge trying the case. If the judge is protective of classified evidence and if the DoJ aggressively asserts its rights as to classified evidence, that issue will not be a problem. However, the huge media coverage, and the "evidence" already open-source as to extraordinary renditions, enhanced interrogations and secret prisons, would still result in the media circus that Andy describes. As I said above: "So, let the Games begin as they surely will."

Keeping these cases within reasonable bounds depends not only on the judge keeping firm control over the case (a "Judge Ito" would be a nightmare); but also DoJ having a firm resolve to limit the charges and evidence. In that context, Andy suggests this (his lede paragraph):

This summer, I theorized that Attorney General Eric Holder — and his boss — had a hidden agenda in ordering a re-investigation of the CIA for six-year-old alleged interrogation excesses that had already been scrutinized by non-partisan DOJ prosecutors who had found no basis for prosecution. The continuing investigations of Bush-era counterterrorism policies (i.e., the policies that kept us safe from more domestic terror attacks), coupled with the Holder Justice Department's obsession to disclose classified national-defense information from that period, enable Holder to give the hard Left the "reckoning" that he and Obama promised during the 2008 campaign. It would be too politically explosive for Obama/Holder to do the dirty work of charging Bush administration officials; but as new revelations from investigations and declassifications are churned out, Leftist lawyers use them to urge European and international tribunals to bring "torture" and "war crimes" indictments. Thus, administration cooperation gives Obama's base the reckoning it demands but Obama gets to deny responsibility for any actual prosecutions.

Would a US President and AG do something like this, which would stand a good probability of getting good people killed, and which would stand a good chance of ripping this country apart ? I'd prefer to think not - and I'll leave it at that.

The old adage up here is not to walk across the ice covering the Misery River cuz there's a lot of thin spots you can't see. Good way to get yourself drowned (almost happened to my dad, who knew that river better than anyone). This unnecessary change in venue seems to carry the same risk, even positing the very best motives on the part of the Obama administration.

PS: the UK trial judge's decision is interesting and timely. We'll have to see how it holds up on appeal. Thank you, David, for both links.

[jmm99]

From the New York Times:

Charges Detail Road to Terror for 20 in U.S.
By ANDREA ELLIOTT
Published: November 23, 2009

Federal officials on Monday unsealed terrorism-related charges against men they say were key actors in a recruitment effort that led roughly 20 young Americans to join a violent insurgent group in Somalia with ties to Al Qaeda.

With eight new suspects charged Monday, the authorities have implicated 14 people in the case, one of the most extensive domestic terrorism investigations since the Sept. 11 attacks. Some of them have been arrested; others are at large, including several believed to be still fighting with the Somali group, Al Shabab.

The case represents the largest group of American citizens suspected of joining an extremist movement affiliated with Al Qaeda, senior officials said. Many of the recruits had come to America as young refugees fleeing a brutal civil war, only to settle in a gang-ridden enclave of Minneapolis.

The men named on Monday face federal charges including perjury, providing material support to a terrorist organization and conspiring to kill, maim, kidnap or injure people outside the United States.

Law enforcement officials are concerned that the recruits, who hold American passports, could be commissioned to return to the United States to carry out attacks here, though so far there is no evidence of such plots. .....

Here are the key court records underlying the NYT story:

Mahamud Said Omar Indictment (pdf)

Ahmed Omar, et al Indictment (pdf)

Faarax and Isse Complaint (pdf)

A prior Minneapolis case has been reported here (5-21-09), Mohammed Warsame, a Canadian-Somali, pleaded guilty in Federal District Court.

[davidbfpo]

From The Guardian:http://www.guardian.co.uk/uk/2009/no...files-evidence and a slightly longer report
:http://www.guardian.co.uk/uk/2009/no...ian-pilot-case

British prosecutors failed to disclose crucial evidence to the courts in the aftermath of the September 11 terrorist attacks in a case that resulted in an innocent pilot being jailed for five months, previously unseen documents reveal.

[Bill Moore]

I need help, my wife jumped in on my butt last night about how stupid it is to trial the 9/11 master mind and associates in NYC in a civilian court, then drilled me with several questions I couldn't answer.

1. Why haven't we trialed these criminals already in a military tribunal?

2. Do foreigners who have commited crimes in the U.S. (plotting the mass murder of our citizens) have any rights by our laws? What are they?

3. What is the advantage (if any) of trialing these self-admitted criminals in the civilian system over the military system?

4. Assuming these are prisoners of war, what is their status after the war ends? Was 9/11 a crime or a war crime?

I want to avoid the political left versus right issues to the extent possible unless they're relevant and stick to the law and the interpretation of the law to the extent possible. Look forward to your comments.

[davidbfpo]

I need help, my wife jumped in on my butt last night about how stupid it is to trial the 9/11 master mind and associates in NYC in a civilian court, then drilled me with several questions I couldn't answer.

Bill,

I am sure JMM will add his far more professional lawyers opinion, with more facts than this "across the pond" observer.

1. Why haven't we trialed these criminals already in a military tribunal?

IIRC the Bush admin intended to use military tribunals and the Obama admin changed the policy. Military tribunals are seen by outsiders as ineffective, notably in legitimacy, plus access to a fair trial and a mass of procedural issues.

2. Do foreigners who have commited crimes in the U.S. (plotting the mass murder of our citizens) have any rights by our laws? What are they?

I doubt if US criminal law, even for mass murder, distinguishes between a US citizen and a non-US citizen. Equality before the law surely?

3. What is the advantage (if any) of trialing these self-admitted criminals in the civilian system over the military system?

Legitimacy outside the USA, not sure about within the USA. I'm not sure if they are 'self-admitted criminals', note KSM was waterboarded many, many times and as discussed here any of that material maybe excluded if the prosecution introduces it. A significant marker that the GWOT has ended, with the use of the civilian criminal courts.

4. Assuming these are prisoners of war, what is their status after the war ends? Was 9/11 a crime or a war crime?

I'm not sure if they are POW, IIRC the USA has not given them that status. If the war ends they remain POW till released; look at the various lengths of time German WW2 POW served and more recently the Pakistani POW after the 1971 war over Bangladesh. 9/11 clearly was a crime.

Bill's caveat

I want to avoid the political left versus right issues to the extent possible unless they're relevant and stick to the law and the interpretation of the law to the extent possible. Look forward to your comments.

[davidbfpo]

A bizarre story. Met Police stop Lord West, the ex-RN Admiral and now Minister for Security, in Whitehall-Westmnster; oh yes he is white and grey haired so fits the "profile":http://www.telegraph.co.uk/news/ukne...iling-row.html

Has this happened to any members of Congress or the Executive?

[Bill Moore]

http://www.michigandaily.com/content...urity?page=0,0

This one is old, but it has happened since. I personally think it is the new normal and while people have a right to get upset, the reality is that security personnel have to profile when they're checking hundreds of people a day.

[jmm99]

to the questions from Bill's butt-jumping spouse re: the 9/11 KSM Five (love it ). The last question my wife raised about AQ (some years ago now) was "why haven't we killed them yet ?" (by direct actions).

Anyway, to the "law" (run a "KSM" search of this thread and you will find a number of related posts):

1. Why haven't we tried these criminals already in a military tribunal?

The MCA trials were held up by the various court decisions and amendments to the MCA, which roughly takes us through 2006. The DoD screwed around a bit in 2007 and early 2008 getting Gitmo in shape for the trials. By fall 2008, the KSM Five were into pre-trial hearings. KSM took an active role as his own counsel (not a US lawyer, but he has a US engineering degree), KSM: "We are your enemy"....., moving to disqualify the military judge (Ralph Kohlmann, COL, USMC, who retired shortly after, Two Gitmo Updates - Stop and Start). COL Kohlmann's planned retirement did not throw a monkey-wrench in the cases.

In Dec 2008, KSM himself came up with the idea of pleading guilty, KSM and 4 others to plead guilty. That plan was held up by two issues initially (mental capacity of two defendants, and the legal question of whether the death penalty could be imposed under the MCA pursuant to a guilty plea). Those weren't resolved because the Obama administration stayed the MCA trials (not without some reaction from the military judges). In March 2009 (despite the Obama stay, or maybe because of it), the KSM Five in effect admitted guilt for 9/11, KSM's Islamic Response. That document, BTW, is a pretty good summary of the AQ Laws of War and presents the argument that the defendants are AQ combatants (cf., Fort Hood ?).

2. Do foreigners who have commited crimes in the U.S. (plotting the mass murder of our citizens) have any rights by our laws? What are they?

Yes.

First they have their rights as Common Article 3 detainees if they are captured or have surrended. That is a separate question from criminal trials whether before a military or civilian court. Many people confuse GC detention and criminal charges, including both presidents Bush II and Obama. They both should have read the FMs and other doctrinal works published by their military subordinates before pontificating.

Anyway, the constitutional rights depend on How far does the Constitution reach ?; and statutory rights also differ to some extent under the MCA and the US Code. In theory, the procedural rights should not differ that much (covered to some extent in the last couple of pages of this thread); but a lot depends on the judge, Perhaps, Andy, perhaps ...

3. What is the advantage (if any) of trying these self-admitted criminals in the civilian system over the military system?

None if I were a prosecutor. See also, Perhaps, Andy, perhaps ...; and draw your own conclusions.

4. Assuming these are prisoners of war, what is their status after the war ends? Was 9/11 a crime or a war crime?

They are not EPW, but Common Article 3 detainees ("irregular combatants", pure and simple). That status should not be affected by the trial result; but, after Hamdan served his sentence imposed by the military jury, he was released. The idea has been floated that, by pursuing criminal charges, the continued detention is waived. That is wrong based on the result in Noriega, where both GC detention and criminal confinement were held concurrent, until both ran their course.

9/11 a crime or war crime ?

Obviously, they will be tried under the Terrorism Act (which is not really a "war crimes" act, although it comes close). Since "irregular combatants" are not accorded combatant immunity under the traditional laws of war, they (even if considered Soldiers of Allah, as they claim) could also be charged under both Federal and state laws (regular old murder, etc.).

Since all of the targets could be claimed as strategic targets (I suppose you could argue lack of proportionality as to the Towers, thus making them something of a "war crime" - do we want to go there ?), the unconventional use of airliners as cruise missiles in and of itself would not be a "war crime". But, the taking hostage of the crews and passengers and their eventual deaths certainly were "war crimes".

We have to be a bit careful here in defining "war crimes", lest we make "war crimes" out of some of our own unconventional warfare operations - we have employed and will employ irregular combatants. Consider that.

Don't know if this will help. There are many complex issues here, which are not going to be made easier by the Foley Square trials.

I'd also add that if GWOT has ended with respect to AQ-Taliban (since the AUMF still continues, that is not legally correct); but if, then use of drones and other direct actions involving targeted killings are of questionable legality. You'd have to ask AG Holder what he thinks about that - and about the continued vitality of the AUMF, etc. I'd like to hear the answers and whether our special operators will have their backs covered in the future. End mini rant.

Regards

Mike

[jmm99]

from David
Has this happened to any members of Congress or the Executive?

Yes; but I don't have the links or persons off the top of my noodle; but Bill got them from the 2002 article in the Michigan Daily, "Edited and managed by students at the University of Michigan since 1890", including Tom Hayden as onetime editor. The Daily offices and the SDS cubicle were not that far removed (IIRC - SDS was in one corner and YAF, Young Americans for Freedom, where I could sometimes be found, was in another corner).

[Bill Moore]

jmm99 thanks for the detailed feedback, I opened all the links and will begin my study for the Bar Exam .

The last question my wife raised about AQ (some years ago now) was "why haven't we killed them yet ?" (by direct actions).

I get this question almost daily accompanied with comments about how we're not very good, etc.

Since all of the targets could be claimed as strategic targets (I suppose you could argue lack of proportionality as to the Towers, thus making them something of a "war crime" - do we want to go there ?), the unconventional use of airliners as cruise missiles in and of itself would not be a "war crime". But, the taking hostage of the crews and passengers and their eventual deaths certainly were "war crimes".

We have to be a bit careful here in defining "war crimes", lest we make "war crimes" out of some of our own unconventional warfare operations - we have employed and will employ irregular combatants. Consider that.

Bravo! If we take this article 3 stuff too far, you're going to put some of our important capabilities in the museum, which in turn will mean more young Americans die a result of it.

I'd also add that if GWOT has ended with respect to AQ-Taliban (since the AUMF still continues, that is not legally correct); but if, then use of drones and other direct actions involving targeted killings are of questionable legality. You'd have to ask AG Holder what he thinks about that - and about the continued vitality of the AUMF, etc. I'd like to hear the answers and whether our special operators will have their backs covered in the future. End mini rant.

Don't know, but I'm very much concerned about the decisions being made now.

including Tom Hayden as onetime editor.

If I knew that I wouldn't have posted the link, I just googled Congressman being harassed in airports as a starter to find a couple of links to stories I remember, and by fluke drag up an ugly ghost from the past.

Other than that, I should be able to dual a little more effectively with the old lady tonight

[Adam L]

2. Do foreigners who have commited crimes in the U.S. (plotting the mass murder of our citizens) have any rights by our laws? What are they?

If the person(s) have committed the crime in the US and are subjected to criminal prosecution for such then they are entitled to full rights. They are defendants. If they committed the act outside of the US, it becomes very complicated. First of all, you have to be careful using the term "criminal." Before you can use that term, it must determined whether or not the action can be brought under US pervue and then determined whether it is in fact a crime. I haven’t read the statutes and/or the case law in a long time so I won’t go into this any further. Also, this is a very simplified answer to your question.

3. What is the advantage (if any) of trialing these self-admitted criminals in the civilian system over the military system?

Advantage: Saving a little face internationally and staying a little more in line with international law. (The whole issue is in a grey area. Not so much grey, as not-discussed with the exception of a few rulings by international tribunals.)

Downside: There are too many to list. Basically, I don’t know if there will be any case left after pretrial procedures.

Adam L

[jmm99]

Bonne chance with your "young lady" tonite - and with the bar exam.

Factually, the Michigan Daily was (in my era) a very good student newspaper - editorially, it was somewhat to my left. That was simply par for the course then (and probably now), proving the old adage (credits ?) : If you are not a Communist when you are 20, you have no heart. If you are still a Communist at 30, you have no brain.

What people miss about this non-kinetic area of AQ-Taliban detention and "war crimes" is that it is very much linked with kinetic areas. For example, let's take Ahmed, an AQ special operator (real bad guy who believes he is and is a combatant), sitting somewhere in Astan or Pstan.

The 2001 AUMF declares a state of armed conflict to exist with respect to the organizations and persons responsible for 9/11. That declaration, taken together with the traditional laws of armed conflict (LOAC - to us oldsters, LOAC = the Laws of War as presented in FM 27-10, The Law of Land Warfare), provides a broad scope for kinetic actions.

BTW, everyone at SWC should have a copy of FM 27-10 at their fingertips - and be familiar with it. Another ancient publication of value to "small war" devotees is A Treatise on the Juridical Basis of the Distinction between Lawful Combatant and Unprivileged Belligerent (Army JAG School 1959). That treatise was authored by a team which linked it to the then-developing doctrine enshrined in FM 31-21, Guerrilla Warfare and Special Forces Operations (my hard copy is the 1961 rev., signed off by George Decker before Pres. Kennedy determined his early retirement). Used to be a Rapidshare link to pdf - now gone.

If you know the "stuff" in these publications, you can be reasonably smart about the traditional Laws of War applicable to "small wars". Otherwise, youse is a bit dumb. End mini digression.

Moving now to the present, we find that the Laws of War re: "small wars" and "irregular combatants" have not changed that much in their basics - although AUMFs have replaced the formal "declarations of war". Hint: search this thread for "AUMF" and you will find a number of posts.

The theory of the 2001 AUMF was beautifully presented in March 2009 by a DoJ memorandum filed in one of the DC habeas cases, DoJ Memorandum re: detention and continuation of DoJ memo ... . The bottom line from the Obama DoJ in March 2009 was this:

Moreover, the Commentary to Additional Protocol II draws a clear distinction between individuals who belong to armed forces or armed groups (who may be attacked and, a fortiori, captured at any time) and civilians (who are immune from direct attack except when directly participating in hostilities).

This nugget provides the legal basis for direct actions against AQ-Taliban combatants under the traditional Laws of War (as opposed to specific ROEs based on "best practices COIN" - a little on that below). I was asked the question: "Be interested in how you see what we do now with released Gitmo terrorist Taliban who is now commander of all Taliban terrorist operations for Kandahar Province in Afghanistan." And here is my answer.

Now, I realize our present ROEs are much more restrictive. I had a conversation not too long ago with my paralegal's nephew who is an FA O-3 with two OIF tours (calling in fires from up front and directing them from base). Smart guy who knows his ROEs - no specifics there since they are classified; but we had a brief general discussion of ROEs and the Laws of War. I posited the hypo (let's play WWII) where I am a German captain, unarmed and sitting at my desk well behind the front lines and writing a report. Can you drop a 105 in my lap ? His answer was no, you're not a hostile threat. Good answer based on current ROE policy, but very restrictive in terms of the Laws of War.

The point of this is simply that, if we remove the traditional Laws of Wars from the equation, and proceed against Ahmed, the AQ special operator, solely under "law enforcement" rules, we limit our legal kinetic options drastically.

Admittedly, transitioning between the Laws of War (military) and the Rule of Law (law enforcement) can get hairy in a "small war" context. My furry friend Polarbear1605 is one of the few here who seems concerned about the topic. Perhaps I've been remiss in not hammering home the concept that these are not solely academic legal issues, but affect how "small wars" are conducted at the tactical and operational levels.

Regards

Mike

[slapout9]

Admittedly, transitioning between the Laws of War (military) and the Rule of Law (law enforcement) can get hairy in a "small war" context. My furry friend Polarbear1605 is one of the few here who seems concerned about the topic. Perhaps I've been remiss in not hammering home the concept that these are not solely academic legal issues, but affect how "small wars" are conducted at the tactical and operational levels.
Regards

Mike

jmm99, yes you have been. This is Lawfare used against us vs. the needed appreciation on how to use it against the enemy.

[Ken White]

...If you know the "stuff" in these publications, you can be reasonably smart about the traditional Laws of War applicable to "small wars". Otherwise, youse is a bit dumb. End mini digression.

Moving now to the present, we find that the Laws of War re: "small wars" and Perhaps I've been remiss in not hammering home the concept that these are not solely academic legal issues, but affect how "small wars" are conducted at the tactical and operational levels.

I'm not sure you've been remiss but I for one have appreciated the effort. Having witnessed what lawfare has done to tie my sons hands versus the far greater freedom of action of action I had, it is something about which todays fighters need to be very aware...