Capture, Detain and COIN: merged thread

[Bob's World]

If we allow the HN to perform the HN role, we (The US) do not have to concern ourselves over proving anything. Not in our lane. As to oversight, I believe this is one function the UN could perform reasonably well to ensure that global sensitivities are not abused in the process, and it is best that this does not become an American operation.

One key to remember is that insurgents, by definition, are a part of the populace. Key to an enduring resolution to any insurgency is for the HN government involved in the insurgency to address their failures that gave rise to the insurgency in the first place, and to sort through those members of the populace that participated and adjudicate their disposition. Most should be returned to assist in being part of the larger solution. Some will indeed need to face harsh legal consequences for their actions, but again, this is not something that an outside nation, no matter how deeply they have embroiled themselves in the problem, needs to concern themselves over.

As to the larger question of why 40% of the foreign fighters in Iraq are Saudi Citizens, 20% Libyan, and 20% Algerian (per open source); these guys really need to be sent home, or perhaps granted asylum as many are probably insurgents at home.

I guess my point is, that if you have a confused understanding of the overall nature of the problem, then you are likely to come up with confused (ie, ineffective) ways for addressing it.

Fact is, that if Saudi insurgents believe that Phase 1 to a successful insurgency at home is to go abroad to attack the US in an effort to break the support of the US to keeping that Saudi government in power; you have to ask yourself if we have the right relationship / policies in place as to the US and the Kingdom.

To simply ascribe the GWOT to Bin Laden being some sort of Pied Piper with a magic ideological "flute" that makes otherwise satisfied Muslim citizens from a broad cross-section of the Middle East to mindlessly follow him is naive at best.

We can wrestle with the symptoms of this problem until we deplete our wealth, strength, and credibility as a nation. History is full of examples of how others have fallen into this trap (Greece, Rome, Great Britain, etc). Or, we can assess the situation with honesty and humility and change the focus of our engagement to addressing the causes. My vote is for the later.

This dilemma over what to do with detainees is rooted firmly in the former.

[Jason Port]

One key to remember is that insurgents, by definition, are a part of the populace.

As to the larger question of why 40% of the foreign fighters in Iraq are Saudi Citizens, 20% Libyan, and 20% Algerian (per open source); these guys really need to be sent home, or perhaps granted asylum as many are probably insurgents at home.

I pulled these two out of the larger, as again, I am most concerned with the disposition of the detained today. It would seem that we have a conundrum. We rightfully invade a nation and then commit to developing it back into a sovereign nation. While we are there, we make a bit of a mess while solving many of the nation's other woes.

The insurgent, as you point out above is not necessarily a member of the larger populace. Syrians, Libyans, et al, were found all throughout Iraq in the insurgency. While they would have been considered enemy combatants under force on force operations, we find ourselves treating them more as criminals. These criminals, in turn require disposition.

Turning it completely to the HN is likely not going to be a success as I would define it (conviction of the defendant), and therefore to me cannot be a viable COA. In turn, UN oversight is likely not possible given the fact that some detained were so detained on the basis of US classified data (I suspect, no personal knowledge). Further, I am not crazy about UN oversight as it strikes our credibility. Again, I don't suspect that we will find resolution here.

[Bob's World]

There is no good answer, and to continue to try to "control" this process only mires us more deeply into it.

To be a soldier is not a crime. When a war is over, POWs are released.

Ok, you say, but this is a different type of warfare, where both parties are not states, and these guys are by definition breaking the law when they take up arms to challenge the state. All very true.

But consider US law on this topic: "But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

Key words are "right" and "duty." Under the law, a right is something that cannot be taken away; and a duty is something that one must do. In this case that right and that duty are to rise up in insurgency.

The US is probably the only nation in the world that would dare to incorporate such an inflammable piece of populace empowering language into the fabric of its doctrine, but we did and it in large part defines what we stand for as a people and a nation.

I don't make this stuff up, its right there at the heart of our Declaration of Independence. While I cannot speak for how we will deal with the problem of detainees, I for one would release them all today before I would compromise that document. My preference though, is to allow the Host Nations to resolve this based on their own laws.

Similarly, I would not be so arrogant as to tell them what those laws should be or how they should interpret them to achieve a result favorable to me as a foreigner, because:
"...it is the Right of the People ...to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

The defense of these ideals, and others like them, are why I put on a uniform every day, and there is no detainee in the world worth compromising them over.

[wm]

But consider US law on this topic: "But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

Key words are "right" and "duty." Under the law, a right is something that cannot be taken away; and a duty is something that one must do. In this case that right and that duty are to rise up in insurgency.
. . .

The defense of these ideals, and others like them, are why I put on a uniform every day, and there is no detainee in the world worth compromising them over.

Maybe I'm picking nits, but the last time I checked, the Declaration of Independence was not US Law. Also I think that rights and duties, as used in the Declaration, are moral, not legal, concepts. However, I concur that the ideals the Declaration espouses are noble and ought to constrain how the US conducts itself vis-a-vis other nations, whether viable or failing. I hate to think of the US as being lumped in the same category as HRH George III of England and his ministers.

[Bob's World]

Some days I think we have grown up and become our parents. I would hate to think that that is as inevitable for nation as it is for a man.

[wm]

Some days I think we have grown up and become our parents. I would hate to think that that is as inevitable for nation as it is for a man.

Nations, as was pointed out long ago by Thomas Hobbes in Leviathan, are artificial persons, just as corporations are. We can and do make judgments about them just as we do about our neighbors and the folks we see on the nightly news or American Idol. Maybe we rush to judgment in doing so, but that, I suispect, is part of who and what we are as finitely rational beings who are also creatures of need.

[Bob's World]

Maybe I'm picking nits, but the last time I checked, the Declaration of Independence was not US Law.

You may be right, but we probably talk way too much these days about "the rule of law." The fact is that the rule of law, or blackletter law, has never been adequate in providing justice. I had a contracts professor who was as brilliant as he was ecentric, and his area of specialty was "Equity," or the common law. Concepts such as "good faith" and "fair dealing" are central to the concept of equity; and are a hedge against black letter law that at times leaves little room for "justice" in its pursuit cleancut right and wrong.

http://en.wikipedia.org/wiki/Equity_(law)

So, though I may be completely wrong on this, I am very comfortable in taking the positon that our "law" is the totality of many things; and just as legislation is defined by both regulations and case law, so to do items like our declaration and even the uncodified express intent of lawmakers and judges contribute to the laws of this land.

"rule of law" is a good soundbite, but it leaves a lot on the cutting room floor.

[wm]

So, though I may be completely wrong on this, I am very comfortable in taking the positon that our "law" is the totality of many things; and just as legislation is defined by both regulations and case law, so to do items like our declaration and even the uncodified express intent of lawmakers and judges contribute to the laws of this land.

"rule of law" is a good soundbite, but it leaves a lot on the cutting room floor.

Who we are as a nation (our national character if you will) is much more about things like thevalues expressed in the Declaration and how we treat each other. It is much less about the laws we pass or the legislators and judge's intent in their passage and rulings. For example, I think that only after sunset is it illegal to beat one's wife in Georgia (don't want those screams disturbing the neighbors' repose). Regardless of what this law says, we tend to think these days that good folks in America just don't beat their spouses--that's national character and has nothing to do with what the law says or was intended to say. I'd add that SCOTUS rulings tend to be about national character, but not always.

[Ken White]

Finally answered himself.

"what is the cause of this and what steps are we as a force taking to expedite these hearings?
. . .
While most Americans sleep ignorant (intentionally or not) there is a nagging voice in my head that asks why can't we move this along, whether using Iraqi standards of justice our our own.
. . .
The question still remains - what system or processes are in place to facilitate this occurring?

the answer:

Turning it completely to the HN is likely not going to be a success as I would define it (conviction of the defendant), and therefore to me cannot be a viable COA. ... Again, I don't suspect that we will find resolution here.

True, not likely to be a success -- but the only real option we have ever had. As for right to a hearing, etc. -- true under US law and and general practice but not really appropriate for a combat area, it's in the 'too hard' and 'negative return for effort expended' boxes. IOW, it would be nice but realistically it would turn into a legal and political bucket of worms that would satisfy no one.