Capture, Detain and COIN: merged thread

[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.

[Jason Port]

So thanks to all responding to the initial question which as Ken points out, I likely answered part of myself. I was just trying to find some ground truth.

On the other hand, this debate is worthwhile. As was pointed out we have a few "controlling" documents here -

- the Geneva Convention, which governs the rule of war, and which I would suggest has an outdated definition of soldier in the current unconventional fight.

- Hobbes' definition of a nation - or frankly any definition, which defines it not in the context of borders but rather in the context of associated people, whether tribal, religious, or even more loosely as organizations. The Pashtun tribe of Afghanistan and Pakistan are more united than most countries could hope.

- Our laws - within which I would include the Declaration of Independence, our Constitution, or even our regulations for civil and criminal laws. These govern what is right and wrong and what happens when someone violates our code – and further, as WM points out, should act as our guide in defining to what standard of behavior we should hold ourselves.

- The laws of the HN – Naturally, crimes committed in the HN are under the jurisdiction of the HN, but the spirit of the definitions of nation by Hobbes, and of soldier in the Geneva Convention must be examined in this context to determine whether the act is criminal or simply a “military” response to the force of another’s aggression. Fortunately, in nations like Iraq, where their code of laws is 5-10 times older than our own and where the burden of proof is lower, and punishments higher, mean that criminals are punished more severely.

Unfortunately, any two of the four of the above will naturally conflict, in the context of the counter insurgency. Our laws, the laws of Iraq, or A-stan, the belief that a nation is only made of borders, and the belief that the Geneva Convention is still a representation of warfare after 60 years bring the conclusion that we need to re-look at the governance of the SASO/COIN environment, especially in post-conventional conflict.

Again, this is purely philosophical, because when a war is over, and soldiers are returned to their parent nation, they don’t continue their vendetta – they shake off the dirt and attempt to leave the grudge at home. In the case of the insurgent, this is not the case. Surrender by AQ will only serve to create splinter groups and further inspire more acts of terror.

[Ken White]

...In the case of the insurgent, this is not the case. Surrender by AQ will only serve to create splinter groups and further inspire more acts of terror.

Lot of former insurgents all over the world have shaken it off and settled down with only occasional lip service to old grudges.

Recall that AQ is itself a splinter group that will further splinter many ways, it's an amorphous collection of folks who come, sign on -- and die or go or hang around. Some will commit more terrorist acts, some will not. Terror has been a technique for thousands of years, it's always been with us. It surges and recedes, almost cyclically. It isn't going away but it will get down to a bearable level.

As they say -- this too will pass

[jmm99]

the SOFA, linked here, tells us what we have to do - subpara 4 is most material.

Article 22
Detention

1. No detention or arrest may be carried out by the United States Forces (except with respect to detention or arrest of members of the United States Forces and of the civilian component) except through an Iraqi decision issued in accordance with Iraqi law and pursuant to Article 4.

2. In the event the United States Forces detain or arrest persons as authorized by this Agreement or Iraqi law, such persons must be handed over to competent Iraqi authorities within 24 hours from the time of their detention or arrest.

3. The Iraqi authorities may request assistance from the United States Forces in detaining or arresting wanted individuals.

4. Upon entry into force of this Agreement, the United States Forces shall provide to the Government of Iraq available information on all detainees who are being held by them. Competent Iraqi authorities shall issue arrest warrants for persons who are wanted by them. The United States Forces shall act in full and effective coordination with the Government of Iraq to turn over custody of such wanted detainees to Iraqi authorities pursuant to a valid Iraqi arrest warrant and shall release all the remaining detainees in a safe and orderly manner, unless otherwise requested by the Government of Iraq and in accordance with Article 4 of this Agreement.

5. The United States Forces may not search houses or other real estate properties except by order of an Iraqi judicial warrant and in full coordination with the Government of Iraq, except in the case of actual combat operations conducted pursuant to Article 4.

I don't see any other law which is material to the specific question.

PS: for the two other lawyers here (and any such others of that ilk that happen upon this), they might consider the distinction between what is relevant (in terms of both but for and proximate causation) and what is material - a narrower scope of inquiry addressed to the practical application expressed in the specific question (which also saves bytes).

[Bob's World]

PS: for the two other lawyers here (and any such others of that ilk that happen upon this), they might consider the distinction between what is relevant (in terms of both but for and proximate causation) and what is material - a narrower scope of inquiry addressed to the practical application expressed in the specific question (which also saves bytes).

...however, anytime I get a chance to link current thinking on foreign policy in general, and the "Long War" in particular back to how we should be thinking based upon our founding principles as a nation I take the conversation in that direction!

(Personally I see this whole detainee issue as just one of dozens of related issues that could all have been avoided if we would just stop trying to control everything on our terms, and instead get back into the role of being an example of what self-determined, popular power can achieve, and help shape an environment that allows other populaces to craft their own destinies.)