The Army Capstone Concept: the Army wants your comments

[jmm99]

I agree with this as general governmental capstone policy:

from Slap
And in my opinion it's greatest flaw. The difference between good and bad, civilized or uncivilized is the law. Since we are supposed to be about supporting the rule of law it would only make since to start there, even if you choose to ignore it in some circumstances, the beginning should be the law. The concept of law is what makes us different from all other living entities on the planet.

but I think there might be some resistence here to leading off with the Rule of Law - not to the concept of law, but to the concept of lawyers running the show.

However, ignoring the basic concepts of law that should be known to all generals does lead to some odd expressions when considered in a legal light. An example is this one (p.3 of Capstone Concept):

Future leaders and their organizations must have the capability to think in terms of friendly (partners and allies), the enemy, and the people, and possess the flexibility to secure populations while simultaneously attacking or defending to defeat enemy organizations.

which appears in other places as well. The triangle - friendly, enemy & people - is pretty much standard COIN terminology; but it is too simplistic in addressing the present and future security environments.

My thoughts are tentative and arise from looking at the Bagram habeas cases, presently on appeal to the DC Circut; but more particularly at the opinion of Bob Jackson[*] in Johnson v. Eisentrager, 339 U.S. 763 (1950) (Google cache - justia's website seems down at present).

1. A nonresident enemy alien has no access to our courts in wartime. Pp. 339 U. S. 768-777.

(a) Our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and nonresident enemy aliens who at all times have remained with, and adhered to, enemy governments. P. 339 U. S. 769.

(b) In extending certain constitutional protections to resident aliens, this Court has been careful to point out that it was the aliens' presence within its territorial jurisdiction that gave the Judiciary power to act. P. 339 U. S. 771.

(c) Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to wartime security. P. 339 U. S. 774.

(d) A resident enemy alien is constitutionally subject to summary arrest, internment, and deportation whenever a "declared war" exists. Courts will entertain his plea for freedom from executive custody only to ascertain the existence of a state of war and Page 339 U. S. 764 whether he is an alien enemy. Once these jurisdictional facts have been determined, courts will not inquire into any other issue as to his internment. P. 339 U. S. 775.

(e) A nonresident enemy alien, especially one who has remained in the service of the enemy, does not have even this qualified access to our courts.

If habeas rights are allowed at Bagram, the Johnson case will have to overruled by SCOTUS (it is difficult to see how it can be factually distinguished).

The Johnson case hinged on Justice Jackson's analysis of habeas corpus in terms of the status of the person (e.g., US citizen - habeas always available if the citizen is in US custody anywhere, unless the writ is constitutionally suspended). The issue in Johnson dealt with non-citizens (aliens who were nationals of another country, detained in another country - specifically, Germans who fought on with the Japanese in China, were tried by military commissions and then transferred to a German prison leased by the US).

In considering that particular case, Justice Jackson had to consider both the status of nations and the status of people in wartime situations. As to nations, we had allies, neutrals and enemies. In the simpler times of WWII, the status of a person followed the status of that person's nation vice the US as a belligerent in the war.

So, in the case of an alleged alien of an enemy nation in US custody, the issues on habeas (if it were allowed at all) boiled down to (1) was war declared (today a state of armed conflict pursuant to an AUMF would suffice); and (2) was the person an enemy alien. The latter issue could be somewhat complicated by the person claiming to be a US citizen, an allied national, a neutral national or a "stateless person". However, such questions can be usually answered by introducing fairly simple proofs. If the person were found to be an enemy alien, that person (whether civilian or military) could be detained for the duration of the conflict based on that status alone.

What does all this have to do with the military ? What Justice Jackson was doing in Johnson was defining the enemy (both the nation and its nationals), and distinguishing them from the non-enemy. From those basics (the principles of definition and distinction) flow their applications in ROEs, RUFs, EOFs, etc.

As we move from WWII to the present, we find that the basics (the principles of definition and distinction) have to be applied not only to nations and their nationals; but also to groups and organizations to which an AUMF applies. That leads to a more complicated analysis, both legally and militarily.

Let us take Astan as an example, taking into account the fact that we are not presently at war (including armed conflicts under an AUMF) with any nation; but that we are at war (an armed conflict under an AUMF) with an organization - AQ. So, what is the status of a person, a member of AQ, who resides in Astan and is being hunted by US forces - kill or capture.

1. As an Astan national, that person's national status follows the status of his nation vice the US. Whether Astan is considered an ally or partner, it is a "friendly" nation. So, under that test, our AQ Astan national is a "friendly" who can be captured and detained (for security reasons), but cannot be killed. More broadly, all Astan nationals are "friendlies" applying the test based on their nation's status vice the US. We know that all Astan nationals are not "friendlies".

2. As a member of AQ (subject to an AUMF), our AQ Astan national has in effect the same status (vice the US) as an enemy alien in WWII. As to enemy aliens, there are two basic classifications: combatant (to whom, kill or capture applies) and non-combatant (to whom, capture and detain for the duration applies). A reasonably bright line exists between combatant and non-combatant where a state of war exists between two or more nation states. A similar bright line does not exist between combatants and non-combatants who are members of an organization such as AQ.

3. Where violent non-state actors are involved, the line becomes even fuzzier as we get into support personnel - financial backers, information "warriors", the "political infrastructure" who may never pick up an AK, etc. In fact, a good practical question is to what extent should the military effort apply to those "civilian" types.

4. The analysis gets even more muddy as we proceed into multi-national partnerships. Many (if not all) of our ISAF partners do not really accept the concept that an armed conflict (AUMF) can exist with an organization such as AQ. Those that have accepted the GC Additional Protocal I accept the concept of a "transitory combatant" - an "enemy" when holding the AK; a "friendly" when he has hidden it.

5. An additional source of friction is who has responsibilty for non-combatants in a combat environment. E.g., under traditional Hague, the defenders of a built-up area (say, a ville or hamlet) have responsibility to protect non-combatants and get them out of the combat zone. Under the more liberal interpretations of GC AP I, that responsibility is shifted to the attackers, despite the fact that they have no control over the ville or hamlet.

All of these considerations have surfaced in threads concerned with them from a military, and sometime a legal, standpoint. The present and future environments are more complicated than positing a monolithic "people", some "friendlies" (allies and partners, limited to nation states ?) and the "enemy".

Regards to all

Mike

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Justice Robert Jackson knew more of War Crimes and the Laws of War in his little finger than most any group of lawyers know collectively. Best known as a prosecutor, his best known piece of legal advice was ""any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances." That one for you, Slap.