Rule of Law in Iraq & Afghanistan

[jmm99]

First, why this fails logically:

from BW
While I appreciate the nuance you lay out of "Rule of" vs "Rule by"; but if one needs a lawyer to explain even the name of a legal concept, it is a flawed conceptual name.

Lawyers (if they are able) should explain legal concepts and their names. I don't ask the guy who stayed at the Holiday Inn Express to explain medical terms; I ask my doctor.

That does not end the process because many lawyers can't explain legal concepts or their names worth diddly - and may not know the history of the concept and the reasons for it (which go back to Social Norms).

So, non-lawyers also shape these names and concepts - Marc Tyrrell, as just one example, can explain "rule of law" and "rule by law" (as I am using them here) better than I can in terms of population group dynamics. However, boiled down to their basics (as I am using them): "rule of law" is a "bubble up from the base" phenom; and "rule by law" is an "imposed from the top" phenom. Those basics require no "lawyerly" sophistry to present or understand.

Still keeping with the Lawyer Jones theme, what are more legal than the terms, "justice", "democracy" and "self-determination" ? But, moving aside from that, those terms are indeterminate. For example, someone like Maududi uses the same or equivalent terms (in English translations) to describe his Jihadist "state". The terms, "justice", "democracy" and "self-determination", are lovely words; but they mean very different things to different people.

For example, if a group of rebels bases their revolt on the terms "justice", "democracy" and "self-determination", are we to support them automatically. Sometimes, your arguments seem to say just that - other times, they do not - leaving this reader confused as to what your policy really is.

In a post or posts long ago, either Tyrrell or John T. Fishel (or both) suggested using "working definitions" - strictly for purposes of comnunications. I'm always open to that; but both sides have to agree that a "working definition" is just that - not a final, definitive agreement.

---------------------------------
To Carl:

from Carl

Rule of Law: all are subject to and must abide by.

Rule by Law: some are subject to and must abide by.

I'd say that like such (using incredible lawyerly sophistry ):

Rule of Law: We all are subject to and must abide by our rules because we established and ordained them.

Rule by Law: You all are subject to and must abide by my rules because I said so.

First example - Carl and Mike (the only members of the population group) have to agree on the rules that will govern them.

Second example - Mike tells Carl what to do.

Hey, I wouldn't let you rule me - If you tried that, I'd exercise my right to insurge based on "justice", "democracy" and "self-determination".

I suppose I should have said this to begin with and reduced the Bravo Sierra (in Finnglish - Pullsit; that's for Stan if he sees this).

So, what is the best system - Ex 1 or Ex 2 ?

BTW: Google gives 12,500,000 hits for "rule of law" - There are many, many definitions that do not agree with what I've presented here - and don't agree with each other !! This ain't the Quest for the Holy Grail.

Regards

Mike

[carl]

I'd say that like such (using incredible lawyerly sophistry ):

Rule of Law: We all are subject to and must abide by our rules because we established and ordained them.

Rule by Law: You all are subject to and must abide by my rules because I said so.

No Mike, that's not sophistry. That fine tuning the thought to give it greater clarity and precision. Sophistry would be "I am part of you and you are part of me, we are interconnected by longstanding ties of history, culture and social diversity. We cannot be separated because our diversity unites us therefore my rules are our rules; and since for you to contravene your rules would be contrary to nature if you did that I would naturally slap you up the side of the head since that is what you really want me to do."

Hey, I wouldn't let you rule me - If you tried that, I'd exercise my right to insurge based on "justice", "democracy" and "self-determination".

If you insurged I'd have my nephew ambush you at night while you were walking to your insurge venue; or I'd build you a school so you'd like me, or maybe both depending.

[Bob's World]

(Somehow I know Mike is double billing someone for this...probably me)

I like the distinction as you explain it in "of" vs. "by"; I just don't think 99.5% of those who hear, use, or are expected to employ the term will recognize the difference. This is such a critical aspect of stability and good governance I'd hate to see the battle lost in the nuance of a 2-letter word.

KISS to me is "Justice"; and that is how one feels about how the law is appled to them; not a nuance of how one applies the law to others. Key is to get the implementers to assess their effectiveness from the perspective of the aggrieved populace that should be the focus of the engagement where insurgency exists; or the populace as a whole where one is seeking to prevent insurgency from ever manifesting to dangerous levels in the first place.

I think your concept is both brilliant and clever, and yes, that is a compliment; I just prefer brilliant and simple. (I really like Einstein's thinking on understanding vs knowledge; and the imporance of simplicity). Simple is just so damn hard, it is what I aspire to.

Bob

(And yes, Carl, as a former prosecutor I appreciate fully that prisons and jails are full of "innocent" men. But trust me, very few do not know exactly what laws they broke and know that if they were held to account for all their sins they would never see the light of freedom again. For that matter, most of us would be in there with them if all of our sins were counted as well.) You know what justice is, as does everyone. It varies between people and culture, but we all know it when we see it.

[carl]

Bob:

You say

(And yes, Carl, as a former prosecutor I appreciate fully that prisons and jails are full of "innocent" men. But trust me, very few do not know exactly what laws they broke and know that if they were held to account for all their sins they would never see the light of freedom again. For that matter, most of us would be in there with them if all of our sins were counted as well.) You know what justice is, as does everyone. It varies between people and culture, but we all know it when we see it.

and you also say

From everything I hear and read about the US Corrections system it raises a very high alert as to a fading perception of justice among critical populaces from which insurgency could emerge. We have rule of law though.

So on the one hand you say, the hoods know that they broke the law and imply they don't feel they are victims of an injustice but on the other hand you seem to say the hoods broke the law but are feeling they have been unjustly treated.

I am confused.

[Bob's World]

My point was not to confuse you. My point was that even in America we need to never lose sight of how important perceptions of justice are to maintaining a stable populace; and that we are drifting toward instability because we are not focusing on ensuring we have justice in how we apply the rule of law across the populace.

[carl]

But it has been my experience that hoods almost always feel they are unjustly treated. Prisons are filled with hoods. So it is to be expected that prison populations feel things are unjust. They are not a representative of how the law is perceived as just across society.

As to your point that we just know what is just. It is 1859 and I am a slave catcher enforcing the fugitive slave law. I know in my heart that my actions are just. The fugitive slave knows in his heart that his flight to freedom is just.

How are these positions reconciled?

[jmm99]

I'll nail Jones next and double b!££ the he££ out of him (since he raised the issue).

First Point

Here is why you are a friend, even though at times you and I may espouse different policies - no Pullsit here:

Sophistry would be "I am part of you and you are part of me, we are interconnected by longstanding ties of history, culture and social diversity. We cannot be separated because our diversity unites us therefore my rules are our rules; and since for you to contravene your rules would be contrary to nature if you did that I would naturally slap you up the side of the head since that is what you really want me to do."

Besides you are nuts enough to put aircraft into very, very lousy landing fields; take out Hankooki Pu$$!; and are one of my three "Stallion" all-around pilots (excluding military jet jockeys) - the other two have Italian ancestry (you ?).

Second Point

If you insurged, I would neutralize you - not a dodge (neutralize = kill, detain or convert). But, the emphasis depends on the governance.

In example #1 - my "rule of law", a constitutional process exists for change (majority rule for "ordinary stuff"; 2/3 or 3/4 for extraordinary). So, the probabilities of an insurgency are lessened in what I see as a "true democracy" (as I have defined "Rule of Law"). Note that a "Rule of Law Democracy" might be quite nasty as to the minority that refuses to accept the "constitutional rule of law" - including the death penalty. That all depends on that group's accepted Social Norms. But, the thrust of "neutralize" would likely be to convert, detain, kill in that priority order.

In example #2 - my "rule by law", I (as dictator) have some choices. Based on the probabilities (and given my resource capabilities), my better choices in priority order are kill, detain, convert. None are excluded; but I as dictator want to completely control the situation and every aspect. You and I have not lived under that - kowalskil has - please read his autobio (yup; he's an old ba$tard like Ken - and I'm getting there - live with it).

My point is that "true democracies" (using my construct of the "Rule of Law") and "true autocracies" (using my construct of the "Rule by Law" and applying it without pity) are not as likely to be insurged - opinions differ as to what their respective probabilities are. The governments that are "in between" get butchered on a much more regular basis.

So, if a "Rule of Law", I'm going to do my most to convert Carl. If a "Rule by Law", putting Carl alongside the long-tail in his avatar would be a high choice.

That's a long bunch of Bravo Sierra (hi Stan ) to confirm your second point.

Cheers

Mike

[Bob's World]

Ok, I need to read Mike's post in detail before I reply to it. For Carl:

The United States has less than 5 percent of the world's population. But it has almost a quarter of the world's prisoners.

46% of those are African American.


Carl you counter actually makes my point. As I study the history of insurgency, rarely does the counterinsurgent recognize the perceptions of the insurgent, but rather relys on his own legality and upon the facts he uses to rationalize his actions.

Law and facts just don't matter much in COIN. Justice and perceptions are everything. The persective that matters on both of those is that of the insurgent segment of the populace.

[carl]

Mike:

Nice explication of why the in between places have more than their share of insurgencies.

[jmm99]

we need a Retainer Contract - I will charge you (a double bill - you wish !!!).

We'll start with what I've charged Polarbear1605 and John T. Fishel. Since you retired a grade higher than them, that's a double-up. Now, since you are also a lawyer in a prior life, that's a triple-up. Since you come from the Pacific NW, that should be another bump. But, I am Merciful and Compassionate.

You can check with the Great White One and the ES Wonder to determine the mammoth proportions of your bill - it will be huge.

And, if we can't resolve that, I will call in the SNCOIC to settle the affair and make both of us talk to the crickets - which would be true justice.

What We Will Fight About

We will fight about legal and legal history issues, national security policy issues, the interface between civilian policy and military strategy. We will attempt to develop "working definitions". We will prefer communicating with each other - and forego isolated conversations with the crickets.

What I Won't Question, But Will Check You

In your military area (SF and SOF), I'm not about to contradict you. You have provided me with huge insights on direct action and the concept of AQ's use of unconventional warfare (affiliated groups, which should not be the primary target).

In fact, you set me off on looking at Giap and Vietnam in a way that is contrary to what you say, but accords with what I thought - he won in Vietnam; we won in Southeast Asia (that's a History Argument ).

----------------------
But then, I even check Custis - my standard on the Corps' current strategy and tactics. Won't contradict him, but I'll send him a PM to ask "why ?".

This post is probably too long and personal (maybe better a PM; but that was my choice, right or wrong).

The problem is that I like you - and we've had too many arguments which should have gone to the crickets - at least, for me.

You remind me of another serving Quaker (this guy, counsel to LTG Peers and the My Lai Inquiry - a man I was privileged to know and work under).

Best Regards

Mike

PS (added) - Carl and BW should talk to each other - skip the crickets and me - try a PM and find that each of you has more in common than not in common. If not, go see the bugs.

[Stan]

Hei Mikko !
I admire your constraint and use of the phonetic alphabet to express your views

That's a long bunch of Bravo Sierra (hi Stan ) to confirm your second point.

Cheers

Mike

[jmm99]

Harvard Law ? .....

COL Jessep.jpg

You can't handle the truth!

Seriously, it was BG Martins' call as to how he wanted to coat the pill. I didn't go to Harvard; and I can't put myself in his shoes. I'd have no illusions about converting most of Michigan Law's faculty.

In terms of substance, I was pleased with some points, and not totally satisfied with others, in what he calls his "working definition" (thanks for using that term, General) (emphasis added):

My working definition of the rule of law is that it is a principle of governance which holds that all entities in society, public and private, including the state itself, and including coalition partners from whom the state has sought assistance, are accountable to laws. The rule of law in the society concerned increases in proportion to which the laws are made by a legislature or by some process representative of the people’s interest, enforced by police and security forces that themselves follow the law, and interpreted, elaborated, and applied by judges who are evenhanded, honest, and independent.

I'd suggest that the state cannot be held to the law unless the "rule of law" exists (as I've suggested in my "working definition") - rules ordained and established by the People (who have sovereignty over the state).

If the state ordains and imposes the rules from above, the state is not subject to the law because it can change the rules to favor it. In GO's terms, "all animals are equal" morphs to "all animals are equal, but some animals are more equal than others."

That being said, Mark Martins clearly recognizes the relationship of "rule of law" and the People, when he says:

The rule of law in the society concerned increases in proportion to which the laws are made by a legislature or by some process representative of the people’s interest ....

Obviously, I agree with that. But, having said that, I'd suggest that in "regime change" situations "rule by law" (at least initially) is simply what must exist. Astan is a classic case of "rule by law", starting with the Bonn Agreement, etc.

The "working definition" also goes beyond the Astan national law (whether called "rule by law" or "rule of law") ....

... and including coalition partners from whom the state has sought assistance, are accountable to laws ...

which brings in International Law and the domestic laws of the various partners. And, since an armed conflict is on-going, the Laws of War come into play where appropriate.

Now, let me make something clear: Mark Martins is perfectly capable of discussing all of these areas of law in depth, especially the Laws of War (LOAC, IHL) as applied to ROEs and RUFs. His 1994 article is a classic, Major Mark S. Martins, "Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering," Military Law Review, Volume 143 (Winter 1994).

I suppose his problem in becoming too technical at Harvard Law was that most people there would not have understood what the He££ he was talkiing about - Sure, Jack Goldsmith and probably some others; but the average civilian lawyer or law professor is as familiar with International Law and its subset the Laws of War (LOAC, IHL) as with the Roman Rite of Exorcism.

The following section did not really set out the issues I feel important, with respect to the subject matter area discussed:

Acting upon reports of excessive force or crime (Iraq & Afghanistan)

A third example — and this one is representative of incidents that have confronted commanders in Iraq and Afghanistan: on rare occasions we have received reports alleging use of excessive force against civilians or maltreatment of detainees, either at the point of capture during operations or while held in a facility under U.S. control.

The decision-making process in these rare situations — and I am pleased to be able to say that they have been rare, even as we have faced some who have hidden themselves among civilians and who have sought to mount attacks while in detention — the decision-making process in these rare situations has been governed foremost by law and by our investigative and military justice system. The law requires prompt reporting and investigation of all potential violations and, if the evidence points to it, the prosecution of violators. In these situations, our deployed judge advocates take a lead role. But commanders making decisions in these situations also must incorporate comprehensive non-legal measures to prevent future violations and to eliminate factors that might have contributed to the reported incident. These measures may include immediate instructions through the chain of command, training of guards and interrogators, improvement of facilities, invitations to the International Committee of the Red Cross and others to conduct assessments, discussions with and visits by mullahs and Imams and local council members, and so on. Take the case of a so-called escalation-of-force incident in which troops employ the rules of engagement to, with escalating force, warn an approaching vehicle to slow at a checkpoint and end up tragically claiming the life of a civilian. To help prevent such incidents, non-legal measures may include improvements to traffic control points such as physical barriers, clearly understandable warning signs, better lighting, and refinements to procedures.

In fact, it largely ducks the legal issues.

The principal issue is the interface and transitions between the Rule of Law (whatever your "working definition", non-military law) and the Laws of War (LOAC, IHL). As stated by Da Bear, the ideal is a seamless RIP between RoL and LoW.

What I'm seeing (others may have a different perception) is that UCMJ prosecutions appear to be enforcing RoL; and, at least in choice of the charging articles, are RIFing LoW as a co-equal legal system in combat situations.

Yeh, there still is the Rule 916(c) Justification Defense:

(c) Justification. A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful.

and the 916(d) Obedience Defense:

(d) Obedience to orders. It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.

but those are not emphasized (look at the relatively few appellate cases dealing with those defenses).

Again, though, we are getting into subject matter that would seem incredibly arcane to those at Harvard Law. I doubt many there read Defend Our Marines - that is unfortunate, but a reality.

Regards

Mike

[Polarbear1605]

Seriously, it was BG Martins' call as to how he wanted to coat the pill. I didn't go to Harvard; and I can't put myself in his shoes.

Yep, your right, but when a general bares his ankle I can’t help but nip at it a bit…much like my wife’s fat cats when they see a bird outside the window; their teeth chatter as a primeval genetic uncontrolled reaction to spotting potential prey.

As I read through the above posts most everyone speaks or at least implies that establishing the rule law in a counter insurgence is a complicated business. My gut than screams, well then, SIMPLIFY IT. Start with the Laws of War; because you must. The reason you must is because that is all there is. When counter insurgency forces move into insurgent controlled territory there is no rule of law. Chances are police and judges has been executed or run out and they will not return until the insurgents are gone. Our Soldiers and Marines are the only thing that can establish control and fight the armed wing of the insurgency and as long as they are fighting it has to be under the Laws of War. When the US military moves in, the armed insurgents move out and the political or shadow government goes into hiding. The insurgent decision to not take on our military forces presents a gap or opportunity to establish our intelligence apparatus/network with the mission of finding the shadow government. Again, these folks must be operating under the Laws of War.

As the insurgency forces are eliminated you can begin transitioning in police, judges, mayors, schools and whatever else is necessary, however, as long as the military forces are there it all stays under the Laws of War. When you don’t need military forces then you are ready for the Rule of Law. There must be a (and I will use these terms again for you military folks out there) "coordination point" and a formal "relief in place" between the Laws of War and the Rule of Law.

If you compare FM 3-24/MCWP 3-33 Counterinsurgency to the Marine Corps Small Wars Manual (MCSWM) (and set aside the difference in publication dates just for a few minutes), there is a marked difference that hits me with all the power of a 16oz boxing glove swung by a professional fighter. Both manuals have a healthy dose of “Intelligence” but the MCSWM has five chapters (the last five) that are almost completely missing from FM 3-24. Those five chapters speak to the frame work for establishing a military (Laws of War) controlled government and then transitioning to the Rule of Law. The MCSWM simplicity is a thing of beauty when compared to discussions, debates, frictions, lawfare, war crimes issues, etc., etc., etc., we are experiencing (first in Iraq and what seems forever) in Afghanistan.

I think the truth teller is the last chapter in the MCSWM is titled “Withdraw”…the last chapter in FM 3-33 is titled “Logistics”.

[carl]

Bob:

You say knowing what justice is varies between people and cultures. Yet you also use the variance between US and world rates of incarceration to imply the US system is unjust. How can you legitimately use world rates to question the justice of US rates if the peoples and cultures of the US are very different from that of the world?

When you say 46% of the prison population is African American you are implying that that is unjust because that is less than the % of African Americans amongst Americans. From that you seem to conclude that, correct me if I misstate your position, that African Americans believe the America is unjust. It is a fact that most victims of African American hoods are African Americans and it is quite likely that the victims greatly outnumber the hoods. In view of this I think it unlikely the African American community at large views the justice of the system (shades of 60s talk) in the same light as the hoods do.

My counter could make your point. The other possibility is that you are wrong and there is nothing there.

[Bob's World]

Carl,

Is this thing on?

You want to argue facts. I feel like I am talking to a block of wood. You are not either a prisoner, nor an African American, correct? My point in wheeling out the statistics is that they indicate a potential problem. What you must do is be able to put yourself in the shoes of a member of the African American populace in general (this would help you to understand the perspective of a potential base to the inshsurgency. How the mothers, fathers, brothers and sisters feel). Then you must be able to put yourself into the shoes of an incarcerated African American (or latin American) and visualize how they might feel.

If all you can do is look at them as "hoods" you are the classic counterinsurgent. Send the navy and the army to Boston and enforrce the rule of law. We'll show em this time, by god!

[carl]

Bob:

No, if anything ever got "on" I would be at a severe disadvantage in all areas of endeavor. Wooden heads chip easy.

I observe that you use the disparity between % of prisoners of a specific race and the % of a specific race in the general population as potential evidence of some sort of malignity. I don't think that is valid. The classic argument to illustrate that is using the less than representative numbers of anglo guys in the NBA as evidence that the league is prejudiced against whites. Percentages of people in most professions or status' are the result of many factors that interact in complex ways. I learned that from reading.

Your statement about putting myself in the shoes of a hood of whatever color or race reminds me of things I used to hear frequently from hoods. They would say "You would have done the same thing!" I would think to myself "No I wouldn't have. I'm not a hood. You are."

I don't think of all the members of any race as hoods. I think of hoods as hoods. As the man said, I dislike them all equally.

[LawVol]

Wow, I miss a lot while I'm in the rack!

Bob: I understand your request for simplicity, but sometimes that just isn't possible. COIN, as you know, is complexity to the nth degree. The problem with using justice as a basis for COIN rather than rule of law (ROL) is that justice can be unevenly applied while ROL cannot. The Taliban handed out justice, a crude and often barbaric form but nonetheless still justice. Saddam did the same thing. Both, as indicated by Mike ruled by law. If you were a good muslim pashtun, you received justice under Taliban rule; if you were a Hazari Shia, not so much. If you were a sunni in the Ba'athist fold, you likely received justice, a Shia or Kurd, again not so much.

Justice is a fine concept is evenly applied. However, the only way justice is evenly applied is if ROL exists; if ROL is sovereign rather than an individual. So I agree with Bob that justice is a desired end. However, it is not the final end given what I've said above. The complexity of the issue is perhaps unavoidable and it is up to those with legal minds to simplify the concept as much as possible (the inability to simplify such concepts is a pet peeve of mine regarding lawyers; those who can't are ineffective). Mike has done an excellent job of simplifying the concept. Thsi same explanation is used in many circles here and I've found that most folks I talk to get it rather quickly.

Mike: There is a social difference among Kabulis and rural folks (and even residents of other main cities). Kabulis tend to be more western oriented, more educated, etc. Many outside Kabul look at the formal legal system as just another method of central control vice an attempt at ROL (or universal justice if you prefer). There is some truth to this accusation as some within the Kabul power structure are seeking to minimize jirga influence in the overall legal process.

A bill is currently pending in the legislative process (I believe its at the Taqnin right now) that seeks to bring jirgas into the formal system by requiring documentation, compliance with Constitutional/International law, specific requirements for jirga participants, etc. However, this is viewed as a threat by some in the power structure as they see official acknowledgement of the jirga system as weakening central control. Rural folks also see the bill as a threat by an overbearing central authority due to some of the provisions. From what I hear, however, there really isn't an issue from the rural side on documentation and related issues so this is at least an opening that can be pursued. My own opinion is that we should minimize any structural changes to the jirga system as much as possible as we bring it into the formal system. The first issue is getting it in and recognized as such. We can tweak details down the road.