Lawfare - Theory & Practice

[Boondoggle]

http://www.longwarjournal.org/archiv...eda_senten.php

There's a lawfare lesson in there: Don't get caught doing anything that lends itself to a (fairly) straightforward criminal case. Here, Siddiqui picks up a rifle and shoots a soldier. If she doesn't do that, they either have to send her to Gitmo or try her based on her participation in various plots which brings all sorts of side effects that we've been trying to avoid (CIA, potential torture of witnesses, methods etc...) If I'm AQ I make it SOP that when I'm caught, take the fight to us through the courts, not with your hands.

And this is probably appropriate for this thread, been following for a few weeks, I might start commenting occasionally on their blog here since they're not taking comments (they're scared of the mud):

http://www.lawfareblog.com/

[Bob's World]

Rather than looking at the law as simply one more LOO or weapon for defeating the threat; I believe there are more practical applications for legal approaches to mitigate the conditions that give rise to and empower these non-state threats.

One primary application is that of "Sanctuary." High time we evolved from the tired, and entirely incomplete cliché of "ungoverned spaces" and evolved to a more sophisticated and complete understanding of what truly provides sanctuary to these groups.

First, all insurgents and terrorists are by definition outlaws, so they have their first sanctuary right there. One is not constrained by the law once they opt to live and act outside it.

Second, being "non-state" actors they are also outside the rules and tools designed for the control of proper state behavior. We must develop new legal approaches that deny this 'sanctuary from consequences' much more effectively than current approaches.

Another critical component to sanctuary is the support of poorly governed populaces. Understanding what aspect of governmental actions contribute most significantly to such perceptions and then crafting and enforcing laws aimed at the governments that create these conditions we nick away at their sanctuary even more.

Next we need better laws for allowing short-notice, short-duration punitive raids to deal with critical nodes of networked terror organizations. There must be checks and balances, and full communicaitons and transparency behind the scenes (to the degree possible); but we can't keep rubbing other peoples faces in it when we decide we want to pop into their country to whack somebody.

This is just one area, but for me, if lawfare is just another rocket to shoot at the insurgent himself, it not much value added. I would expect lawyers to be a bit more clever and devious in their approaches...

[jmm99]

Benjamin Wittes (legal media background), Jack Goldsmith (legal academic) and Robert Chesney (legal academic) won't let you play with them; thereby curtailing your mud wrestling practice ?

Plan A: Why don't you and Polarbear kidnap them and take them out into the boonies for a condensed version of TBS ? I'm sure that in no time at all the two of you could knock off some of the polish and reduce them to more rough-edged versions of their present selves.

Plan B: your posting comments and links to their blog in this thread, would be most welcome.

-------------------
A lot of the BS in this area can be blamed on too many justices writing opinions. Back in 2004, SCOTUS decided Hamdi v Rumsfeld. That, of course, was a decision in result only with 4 separate views being offered.

First, the plurality opinion (4 justices):

Justice O'Connor wrote a plurality opinion representing the Court's judgment, which was joined by Chief Justice Rehnquist and Justices Breyer and Kennedy. O'Connor wrote that although Congress had expressly authorized the detention of unlawful combatants in its Authorization for Use of Military Force (AUMF) passed after 9/11, due process required that Hamdi have a meaningful opportunity to challenge his detention. However, Justice O'Connor used the three-prong test of Mathews v. Eldridge to limit the due process to be received. This required notice of the charges and an opportunity to be heard, though because of the burden upon the Executive of ongoing military conflict, normal procedural protections such as placing the burden of proof on the government or the ban on hearsay need not apply. O'Connor suggested the Department of Defense create fact-finding tribunals similar to the AR 190-8 to determine whether a detainee merited continued detention as an enemy combatant. The United States Department of Defense created Combatant Status Review Tribunals in response, modeling them after the AR 190-8. O'Connor did not write at length on Hamdi's right to an attorney, because by the time the Court rendered its decision, Hamdi had already been granted access to one. However, O'Connor did write that Hamdi "unquestionably has the right to access to counsel in connection with the proceedings on remand." The plurality held that judges need not be involved in reviewing these cases, rather only an impartial decision maker was required.

In retrospect, this solution looks pretty good - to me. At the least, it is logically consistent and could be implemented in practice with minimal adverse consequences to detention. In effect, this is a Common Article 3 (of the 1949 GCs) solution, where detention is the default remedy - military commissions and civilian courts are add-ons, which can be useful in certain cases.

Second, we have the concur-dissent opinion (2 justices):

Justice David Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality's judgment that due process protections must be available for Hamdi to challenge his status and detention, providing a majority for that part of the ruling. However, they dissented from the plurality's ruling that AUMF established Congressional authorization for the detention of unlawful combatants.

In effect, this opinion requires a law enforcement approach to the problem of detained TVNSAs (Transnational Violent Non-State Actors) - you can kill them under the AUMF and the Laws of War, but you can detain them only under the Rule of Law.

Third, we have the Let Him Go or Suspend Habeas dissent (2 justices):

Justice Antonin Scalia's dissent, joined by Justice John Paul Stevens, went the furthest in restricting the Executive power of detention. Scalia asserted that based on historical precedent, the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus, or Hamdi must be tried under normal criminal law. Scalia wrote that the plurality, though well meaning, had no basis in law for trying to establish new procedures that would be applicable in a challenge to Hamdi's detention—it was only the job of the Court to declare it unconstitutional and order his release or proper arrest, rather than to invent an acceptable process for detention.

This was truly an Odd Couple since the result is pure law enforcement (which was Stevens' posiiton throughout). I suppose Scalia thought Congress would suspend habeas (it did) and Stevens thought it would not.

Fourth, we have the Unlimited Executive Power dissent (1 justice):

Justice Clarence Thomas was the only justice who sided entirely with the executive branch and the Fourth Circuit's ruling, based on his view of the security interests at stake and the President's broad war-making powers. Thomas wrote that the Court's rationale would also require due process rights for bombing targets: "Because a decision to bomb a particular target might extinguish life interests, the plurality’s analysis seems to require notice to potential targets." Thomas also wrote that Congress intended that the AUMF authorized such detentions.

In effect, John Yoo's constitutional views received only one vote.

The DC District and Circuit have tried to make some sense of the this hash and the hash in later SCOTUS cases. Meanwhile, the USG (and the two major political parties) have created their own hash made up of variant combinations of the Laws of War and the Rule of Law.

Regards

Mike

[jmm99]

on the following general points:

from BW
First, all insurgents and terrorists are by definition outlaws, so they have their first sanctuary right there. One is not constrained by the law once they opt to live and act outside it.

Second, being "non-state" actors they are also outside the rules and tools designed for the control of proper state behavior. ....

Another critical component to sanctuary is the support of poorly governed populaces. ...

Next we need better laws for allowing short-notice, short-duration punitive raids to deal with critical nodes of networked terror organizations. ...

Now, if you could provide me some content - that is, what laws you propose.

I'm most interested in your 1st, 2nd and 4th points.

The third point seems difficult (to me); e.g., you say (emphasis added):

Understanding what aspect of governmental actions contribute most significantly to such perceptions and then crafting and enforcing laws aimed at the governments that create these conditions we nick away at their sanctuary even more.

Once upon a time, we did deal with those of "bad governance" (as we defined it) by "clever" and "devious" approaches, where perhaps 130 (or less) operatives were involved in a country (some even were lawyers). Those approaches made for bad press - the purges starting with Ramparts' exposé of the CIA ties to the National Student Association, labor organizations and academia in the later 1960s (links here).

So, today, we are much more "aboveboard" in dealing with "bad governance" (as we define it) and send 130K troops to rectify the situation.

Feel free to post some proposed laws - reduction of ideas to practice, clever and devious accepted.

Regards

Mike

[Boondoggle]

TBS was a summer of fun, but maybe they could crawl through the Quigley with me in February just for old times sake.

I struggle with how judges can approach the AUMF (which granted I probably haven't read in a few years now so my memory is quite groggy) and not think it authorizes the detention of both lawful and other combatants. Conducting war by different means is still just that, war. And the Scalia - Stevens pairing was certainly interesting.

Now as for following through on having a "neutral decisionmaker" not necessarily a judge, I'm sure we'll eventually see something... and that something will be run up the legal flagpole for review in short order, but the military justice system should be able to readily adapt to that. It actually makes sense, probably by carving someone out of the regular chain of command and giving them that job, the harder question would be who would be the appeal authority for that initial decision.

[Bob's World]

Mike,

Working on a paper that explores this currently. Whether one looks at this as denying sanctuary or as deterring non-state actors the lines blur. But the hard fact is that the rules for states and those that operate within the reach of the law don't apply, so it calls for complex approaches that balance encouragement and discouragement across a range of state and non-state actors so as to build a proper mix that prevents without provoking; or that does not get so focused on encouraging or discouraging one group so that one loses sight of the provocative effects this is having on others.

At the center of this work is a chart or worksheet. It currently has 8 categories of actor across the middle. Four types of states on the left (nuclear, non-nuclear, failing and criminal) then four types of empowered non-state actors that live and operate within those four types of states ( Quasi-state [Hamas, Hezbollah], non-state[AQ, Taliban], insurgent populace [pashtuns] and Dissident individuals [McVeigh,etc]) These are all just examples.

For any particular problem one will have a mix of four types of states and within them a mix of the four types of empowered actors. One must take them all into account as they plan their engagement. Going up from this lineup are three degrees of encouragement. Level one is "Promote"; Level two is "Enable"; and Level three is "Enhance." Each denotes a greater degree of involvement with ones engagement. Going down from the lineup are three degrees of discouragement. Level one is "Deter"; Level two is "Preclude"; and level three is "Preempt." Again, each level denotes a greater degree of involvement.

Looking just at AFPAK you have a non-nuclear failing state and a nuclear failing state at the core. Afghanistan is arguably also trending toward being a criminal state. Within these there are a mix of non-state actors, insurgent populaces and dissident individuals. No one simple two-diemensional approach can balance this complex mix of actors. To over discourage AQ with a heavy scheme of Preempt and Preclude in Pakistan must be balanced by Promote-Enable-Enhance with Pakistan. But then also with some Deter and perhaps Promote with India to address the inbalance created there. Then over to Afghanistan where one must give them some encouragement to allow themselves to be used as a base to go after AQ; etc, etc.

The spreadsheet isn't perfect, but helps to visualize all of the actors and how ones engagement may be causing unintended provocative consequences that must be mitigated as well.

How then, to apply lawfare to this? Currently those outside the law have all the advantages, so perhaps something as simple as a waiver for states to act outside the law as well in certain circumstances. Again, it is about balance. Such waivers must allow effective opertations, but not at the same time compromise principles that weaken the moral authority of the state structure.

The spreadsheet also recognizes that as one goes from left to right, from nuclear state over to dissident individual one also shifts from where the same act is an act of war for one, and a criminal act for another. In the middle is a wide greyzone. it's a work in progress.

Step one is to understand that sanctuary is NOT "ungoverned space" but more accurately:

"Updated: Insurgencies take sanctuary in some combination of legal status, the support of a poorly governed populace, and some favorable combination of terrain and vegetation. Functional sanctuary associated with such status or support is more powerful than physical sanctuary provided by a particular place.

• Explained: The old adage of “ungoverned space” is not wrong, it is just incomplete and focuses on the wrong aspect of what actually provides the insurgent sanctuary. If ungoverned space were such terrific sanctuary, al Qaeda would be in Antarctica. The regions they prefer are more accurately described as self-governed spaces; removed from the reach of much of formal governance, but certainly governed all the same. Al Qaeda’s primary sanctuary, however, comes from their legal status. Being outside the law they are not constrained by the law. Similarly, being unencumbered by a state they are immune to the controls of statecraft. Al Qaeda also borrows the legal protection that the sovereign borders of host states (willing, knowing, or otherwise) provide where convenient. The sanctuary offered by a poorly governed populace cannot be overstated. It is the people who live in a space who support and protect such movements, and not the space itself. This is why “space” is largely fungible so long as the sanctuaries of legal status and poorly governed populaces are available. Consider Robin Hood and the famous sanctuary provided by Sherwood Forest. If the Sheriff had denied the forest in some way, the true sanctuary of being outside the law and protected and supported by a poorly governed populace would have remained in effect. Robin and his Merry Men would have just moved to a new forest.
Similarly, if the sanctuary of a specific place such as Afghanistan or Pakistan, (or Somalia, or Yemen, etc) is physically denied, al Qaeda would simply move to a new country. Denial of ungoverned spaces is a false argument that focuses on the wrong aspect of an effective sanctuary."

[jmm99]

I'm glad you said this (not for the first time, IIRC):

from BW
No one simple two-diemensional approach can balance this complex mix of actors.

It looks to me like you have at least a three-dimensional system, requiring a three dimensional graph (x, y, z). One axis is the type of state; another is the bad-a$$ actors; and the third is the "encouragement-discouragement" index.

Inserting the level of violence (crudely, at the extremes, a state of pure peace and a state of pure war) adds a fourth dimension. The level of violence is not a straight line from 0% to 100%; there would be peaks, valleys and discontinuities.

This sounds something like quantum mechanics, which makes some sense because you are attempting to picture an open, complex system in two or three dimensional terms. In attempting to come up with a unified theory, are you not running into the same sort of problems that arise from applying effects based operational theory to an open, complex system (as opposed to a closed, complex system, where the variables can often be defined and controlled at least to a useable extent) ?

As an example (albeit extreme and unlikely to happen): if I, as a dissident individual, get ahold of a 100 megaton device and delivery system, and have a few minutes of lead time to launch, I am a nuclear state for all practical purposes.

Not saying you should scrap your efforts; but, in attempting to simplify complexity, it is too easy to simply become simplistic.

-----------------------------

from BW
How then, to apply lawfare to this? Currently those outside the law have all the advantages, so perhaps something as simple as a waiver for states to act outside the law as well in certain circumstances. Again, it is about balance. Such waivers must allow effective opertations, but not at the same time compromise principles that weaken the moral authority of the state structure.

Not "outside" the law for states, but under new laws (whether statutory and/or common) that fit within the general framework of existing law and allow states to meet new challenges.

E.g., those judges who read the 2001 AUMF realistically and developed detainment law around the sparse wording in the AUMF and Common Article 3 of the GCs.

The law is quite adaptable if it is permitted to adapt, as Boon points out in his last post. Of course, you will always have the problem of judges, and others as well, who refuse to adapt.

Put them all through The Quigley - or the Sturgeon Sloughs.

Regards

Mike

PS: Bob, agree with your geographical example of AQ picking up stakes and moving - that is, that geographical location does not define the "base". And, to bring in some word play, AQ can translate to "The Base"; AQ does special ops (unconventional warfare) vs us; and a SF base is not defined by geographical location. That should be an easy sell at Socom.

[stanleywinthrop]

http://www.longwarjournal.org/archiv...eda_senten.php

There's a lawfare lesson in there: Don't get caught doing anything that lends itself to a (fairly) straightforward criminal case. Here, Siddiqui picks up a rifle and shoots a soldier. If she doesn't do that, they either have to send her to Gitmo or try her based on her participation in various plots which brings all sorts of side effects that we've been trying to avoid (CIA, potential torture of witnesses, methods etc...) If I'm AQ I make it SOP that when I'm caught, take the fight to us through the courts, not with your hands.

And this is probably appropriate for this thread, been following for a few weeks, I might start commenting occasionally on their blog here since they're not taking comments (they're scared of the mud):

http://www.lawfareblog.com/

I see your point here and I agree from a metaphysical standpoint. However it seems that jihadists just don't do a good job of seeing that there are often better ways to fight your enemy than simply trying to kill them. Case in point- Maj. Hasan- he could have done far more damage to our cause in A-stan if he'd gone mole and deployed. No disrespect to our fallen in TX, but many more could have died in Hasan cued ambushes.