U.S. troops face Afghan enemy too young to kill

[Ken White]

Originally Posted by subrosa

The argument that child soldiers are not only a third world problem cannot be made by showing pictures of European children from a century ago.

The pictures were to show two things. That not only the economically deprived rather anyone who is desperate will employ younger than the norm fighters and that said fighters were using rifles before there was an AK.

Consider the straits all the combatant nations were in a the time of the pictures. Desperately short of manpower...

The point was not that it was a "third world problem." There was absolutely no intent to pose the 'argument' you suggest. Indeed, IMO, it is not even a problem except in the minds of those who are foolishly determined to make it problematic. There's a large body of modern thought that holds those underage (whatever that means) should not or cannot be held to the same standard as 'adults.' That is insane. 'Child Soldiers' is, as I said, often a misnomer and 'young killer's is a far better appellation.

While the third world / economically deprived aspect is currently prevalent the pictures also illustrate that given the right (or wrong...) circumstances, the west likely will go back to doing what it has done before and what is done all over the world, using all available people power in a pinch.

The real issue and my only point in posting in this thread is that everyone should realize that regardless of genesis and / or age ethnicity, economic circumstances or whatever, they are still dangerous and still combatants. Period.

[subrosa]

kenwhite you said-

(1) Armed kids are not an African or third world only problem.

when i read that and then looked at the pictures- i thought that these pictures are not representative of the modern day western society. and that the pictures do not support the point above because if anything the kids look deprived (but cute). i guess the pictures were in reference to the kids with guns prior to the proliferation of ak47 comment someone made- my bad.

i totally agree with your main point that little boys to old men have been fighting perennially regardless of caste or creed, and specially agree that they should be treated like adults in a combat scenario.

[Harttm]

Much has been written on the use of child soldiers in combat. Most of the recent information available has been collected by International Organizations, GOs, NGOs, and the academic researchers. P.W. Singer published "Children at War," (2005) which goes into great detail on the subject from a military perspective. Singer provides some insight into dynamics associated with western militaries confronting child combatants. He does cite OP BARRAS, in which the estimates of West Side Boys casualties ranged from 25-150 killed in action. The highly trained British force had 70 wounded and one killed in action.

Singer identifies that western militaries are hesitant to engage children and offers some approaches to prepare for these inevitable engagements.

[Backwards Observer]

Originally Posted by Bob's World

...it is not uncommon to find an Afghan father who has one son in the Afghan National Police and another in the Taliban. This is a survival strategy, as one never knows who will prevail, and by having a son in both camps the family will likely weather the storm.

Along similar lines, I heard a story about a family where one son took off to become a Kuomintang enforcer with the Green Gang in Shanghai. His younger brother subsequently left to join the Communists, mainly because he thought his older brother was a jerk.

Then the Japanese came and the family was doubly screwed.

[JMA]

Originally Posted by Polarbear1605

hear, hear!

Is it true what they say that the US have more lawyers in Afghanistan than helicopters?

[Bob's World]

Originally Posted by JMA

Is it true what they say that the US have more lawyers in Afghanistan than helicopters?

...I'm not ready to laugh about it yet

(though for all my frustrations on this topic with said legad, over all she did a tremendous job and was a great lady (also a good inch taller than me and a trained boxer, so I was always sure to either mind my manners or at least pay attention to if I had room to take a quick step back or not)).

The fact is that the law is a mess for these things, and she was merely representing that mess.

Another example, I got into a discussion on my belief that we were better served by employing legal terms, such as "reasonable suspicion" and "probable cause" to drive engagements over the current vague "Positive ID" that is leading to so many inappropriate engagements under the current ROE and Tactical Directives. "Impossible" "That would imply law enforcement rather than war, and while we are authorized to wage war in Afghanistan, we are not authorized to conduct law enforcement." "We would have to leave if this were a law enforcement matter."


Really??? Perhaps that is something we should seriously consider. I am resolved that insurgency is a civil emergency and should be addressed as such, with local civil authorities in clear lead, and any military involvement being brought in under the same auspices that we do for any other MSCA event. HN military first, and any foreign military behind and subordinate to that of the HN.

"Sorry, we'd really like to stay and help you with this mess, but the only proper way to do that is illegal, so we'll be going now..."

[jmm99]

is exactly what you describe:

from you
Another example, I got into a discussion on my belief that we were better served by employing legal terms, such as "reasonable suspicion" and "probable cause" to drive engagements over the current vague "Positive ID" that is leading to so many inappropriate engagements under the current ROE and Tactical Directives. "Impossible" "That would imply law enforcement rather than war, and while we are authorized to wage war in Afghanistan, we are not authorized to conduct law enforcement." "We would have to leave if this were a law enforcement matter."

One of the "magic" terms in the PID definitions is a "reasonable certainty".

Now I know what a "certainty" is (probability = 1.0000....); but what is a "reasonable certainty" ? Do we have such a thing as an "unreasonable certainty" - apparently so, else "reasonable certainty" has no juxtaposition.

The term "reasonable certainty" is in fact lifted from civil litigation - as in: "Doctor, do you have an opinion within a degree of reasonable medical certainty." That phrase has neither a legal nor a medical meaning - and to find out, object to the question and voir dire both the lawyer and the doctor for supporting authorities. The doc will say I thought that's a legal term; the lawyer will say I thought that's a medical term - and both will be wrong.

Without due respect for your pugulist distaff LEGAD, her presentations cited by you lack "rigour" (as the Wilf might say). But, that's what happens when her masters attempt to satisfy multiple sets of conflicting LOACs.

The result in fact raises the bar over what would be allowed under a correct law enforcement approach (the paradigm you want), or a correct Laws of War approach (my take - aka the White Bear Construct).

Now, JMA, you may now proceed with your barrister and/or solicitor jokes.

Regards

Mike

[jmm99]

Here is the answer (re: "reasonable certainty") from one of the cases that the Bear and I have followed:

LA Times, IRAQ: To shoot or not to shoot is the question, July 2, 2008

In the end, the criminal case against Marine sniper Sgt. Johnny Winnick may boil down to the simplest but yet most confounding question facing troops in Iraq: When can a Marine or soldier use deadly force against a suspected insurgent?

It's a question not even supposed experts can agree on. During the preliminary hearing completed Wednesday, a Marine lieutenant testified that he asked two majors - one a lawyer, the other a battalion executive officer - and got contradictory explanations.

Winnick is charged with manslaughter and assault for killing two Syrians and wounding two others.

Winnick says he opened fire because he believed the men were planting a roadside bomb, but no bomb was found. His superiors say he lacked the "positive identification" and "reasonable certainty'' needed to squeeze the trigger.

But what do those terms mean, particularly for snipers whose job is to kill the enemy from ambush at long range?

Winnick's attorney, Gary Myers, tried to get one of Winnick's fellow snipers to define "reasonable certainty." The young Marine said that, well, reasonable certainty means being reasonably certain.

"This is all words," said an exasperated Myers.

An officer testified that reasonable certainty means being "85% certain." Another said it means being "pretty damn sure."

A Pentagon expert called by Myers disagreed with the "85% certain" rule. He thinks young troops are being given confusing and contradictory guidelines by their superiors. He's written about his concerns in a tome titled ''Combat Self-Defense: How to Save America's Warriors From Risk-Adverse Commanders and Their Lawyers."

So, definition means the difference between a criminal indictment or a valor citation.

LEGADs can spout all they want about international law and international relations; but responsibility 1 should be to the rifleman at the tip of the spear.

Regards

Mike

[jmm99]

My last post touts Dave Bolgiano's book. This one covers his Strategy Research Report at the War College, Bolgiano, Training America's Strategic Corporals (2008), a short 30-page summary of key ROE points and training methodology.

Here are two key points. The first is a declared hostile force, where PID is material (a status determination):

There are two – sometimes distinct – manners by which a military member can lawfully employ deadly force: (1) subject to a target being declared hostile by competent authority or (2) in response to a demonstrated hostile intent or hostile act (intended to inflict death or serious bodily injury to self or friendly forces).

Against a declared hostile, once PID is established, then there is no legal obligation to detain, capture or otherwise take less intrusive means. By way of example, a Soldier could walk into a barracks room filled with sleeping enemy combatants who have been declared hostile and shoot them. There is no legal obligation to wake them, capture them or make it a “fair” fight. By direct analogy, if a tactical operations center can lawfully drop a 2,000 lb laser-guided bomb on that barracks room (subject to collateral damage and proportionality analysis), then it is axiomatic that a lone Soldier could kill them with his M-4. For some reason, however, when some judge advocates and commanders review these close-in killing situations, they mistakenly analyze them under a self-defense methodology as set forth below.

The second is self defense, where PID is not material but hostile acts or threats thereof are very material (a situational determination):

In matters of individual or unit self-defense, as spelled out in the unclassified portions of the Standing Rules of Engagement (SROE) and Standing Rules for the Use of Force (SRUF) for U.S. Forces [30], service members possess an inherent right of self-defense predicated solely on a reasonable response to a demonstrated hostile intent or hostile act (intended to inflict death or serious bodily injury to self or friendly forces). In self-defense situations, PID is irrelevant and proportionality is rarely an issue. Soldiers need to understand that they can use reasonable force to quell such a threat until that threat is over.

30. CJCSI 3121.01B (13 June 2005)

And, emphasizing the right of self-defense in several other quotes:

First, Understand the Law: Self-Defense

11. Oracle Homeland Security Solutions, “Leveraging Information Technology to Secure America” (2003), quoting Sir Winston Churchill.

and:

As recently stated by Major General Gary L. Harrell, [37] USA (Ret.), former Deputy Commanding General, US Army Special Operations Command,

37. Major General Harrell made these comments in 2006 in a video-taped interview for the Navy’s Center for Security Forces as it was developing its own Judgment-based Engagement Training for its Riverine Forces. General Harrell formerly commanded Special Operations Command Central during OEF and OIF, 1st Special Forces Operational Detachment-Delta (Delta Force), and at the Company, Troop, and Squadron level commands at that unit.

Too often, commanders and judge advocates with little or no true CQC experience, attempt to substitute their own notions of reasonableness for the warrior on the scene.

The Supreme Court of the United States [38] has consistently recognized this as folly for our domestic police forces,

38 Graham v. Connor, 490 U.S. 386 (1989).

This is nothing new under the sun in US law - in fact, it is US law (FM 27-10 is still doctrinal).

Calm reflection and legal analysis cannot be imposed in the face of a raised dagger or an AK muzzle.

cont. - next post

Regards

Mike

[jmm99]

So, what factors have led to what has become a "confusing mess" to some SJAs and LEGADs ?

Frankly, part of the problem lies in international coalitions and organizations. For example, this gem focusing on the Congo:

On such fundamental concerns as self-defense, America may enter into short or long-term alliances, but must never submit to the will of the collective international masses when discerning what constitutes a justifiable act of self-defense. This is because collective thought might reflect collective ignorance as evidenced by the restrictions imposed by the United Nations (UN) that have plagued General Bipin Rawat, an Indian officer who commands UN forces in Democratic Republic of Congo:

26. David Blair, “UN commander says hands are tied in Congo,” The Daily Telegraph, London, November 17, 2008.

A second - and probably more deadly example of "collective thought" or "collective ignorance" in the long run - has been the presumptive criminalization of Soldiers and Marines who shoot hostile combatants:

For years now, nearly every line of duty shooting incident in Iraq has been subject to an often criminally-focused investigation whereby sworn statements are taken and service members are questioned without the benefit of legal counsel, psychologists, or even chaplains. While it is necessary to ensure that service members follow the rules and use force appropriately, the perception and reality is that continually subjecting our forces to the wrong legal standard and improperly-focused investigations inevitably results in hesitation and mistrust.

The following October 2007 communiqué from a young Army noncommissioned officer in Iraq highlights this folly:

31. Undisclosed noncommissioned officer (NCO) e-mail to the author, October 12, 2007. The NCO’s duties included providing squad-level escort duties to civilian members of diverse interagency task forces in the Iraqi theater.

and:

The frustration with the tactical – legal – policy interface is highlighted by the following account from an infantry battalion commander recently returned from Iraq:

33 Colonel Ben Corell, USA, US Army War College Class of 2009, Seminar 4, interview by author, 15 Oct 2008.

The upshot is, at the least, missed military advantages; at the worst, dead Marines or Soldiers:

Sniper teams in Iraq or Afghanistan performing counter IED missions may engage persons conducting overt hostile acts (such as actively emplacing an IED in a roadway surface) or persons demonstrating hostile intent (a lookout using a cell phone while communicating the approach of coalition forces), both clear examples of using force in self-defense. That same team may also be employed to engage a designated hostile force or enemy combatant, and may engage without regard as to whether that hostile force presents an imminent threat. This concept extends to fleeing subjects previously identified as hostile by adjacent friendly forces.

Some commanders have been reluctant to authorize the shooting of insurgents clearly emplacing IEDs in roadways late at night. They have prevented the targeting of insurgents conducting probes of friendly positions; and, have also failed to authorize the kinetic engagement of clearly identified hostile vehicles speeding away from a mortar “point of origin” as they “were not a threat at the time of acquisition.” [34]

This last point is important to clarify; some less tactically aware judge advocates and commanders have opined that “fleeing hostile actors can’t be engaged.” To so state ignores both the tactical concept of pursuit as well as the hard reality that such a fleeing subject continues to be a threat. To put it even more bluntly: nothing in the law allows a hostile actor to fire a weapon at coalition forces, then drop the weapon and flee without fear of being targeted and killed.

The upshot may be to place Soldiers and Marines in a less safe position than a cop on the homefront:

Even in civilian law enforcement settings, such fleeing hostile actors are well-recognized as a continuing threat that may be engaged. [35]

[JMM: see also, Tennessee v. Garner, 471 U.S. 1 (1985)]

Added to a failure to recognize well-established self-defense and community-defense concepts from the civilian world, is a misguided attempt to make war more humane - and to give awards for "humanitarian conduct" (an idea which apparently came out of CLAMO):

Some well-intentioned but ill-informed judge advocates have recently opined that

36. United States Army’s Center for Law and Military Operations (CLAMO) e-mail message to deployed legal offices, January 16, 2008.

The intent of this guidance – to save innocent civilian lives – is admirable, but the end result of incorrectly trying to apply the strategic concept of “minimum force” to a tactical situation is to unnecessarily expose military forces to imminent threat of death or serious bodily injury. Recognizing that missions are often ambiguous and dangerous enough, neither good tactics nor the law require one surrender the right and responsibility to exercise individual and collective self-defense.

And so it goes in the battle against one strain of "collective thought"-"collective ignorance"; perhaps better defined as "trained indifference" to the fate of the individual Marine or Soldier.

Regards

Mike

[davidbfpo]

jmm99,

Two interesting posts for the "armchair" observer. One question, in the US military do the lawyers have to serve in a front line role before a posting to legal adviser etc?

I know British officers who were to serve in the Imperial Indian Army did a year with a British unit and have a vaguer recollection that USMC pilots do a year as a squad leader. Not the same, but the principle is the same - see for yourself beforehand.

[jmm99]

Nice to see some trans-Atlantic input and a good question:

from you
One question, in the US military do the lawyers have to serve in a front line role before a posting to legal adviser etc?

Generally NO, with one exception. We'll cover the three major services first.

Judge Advocate General's Corps, United States Army

Army Judge Advocate Qualifications

Prior to entry into the JAG Corps, all Army Judge Advocates must have graduated from an ABA-accredited law school and be admitted to practice law by the highest court of a state or federal district. While some Judge Advocates have prior enlisted or commissioned experience, most are direct commissioned and have no prior military training or experience.

Initial entry training into the JAG Corps is composed of three phases:

12 day military orientation course at Fort Lee, Virginia
10½ week Judge Advocate Officer Basic Course (JAOBC) at The Judge Advocate General's Legal Center and School (TJAGLCS)
6 week Direct Commissioned Officer (DCO) Course at Fort Benning, Georgia.

Judge Advocate General's Corps, U.S. Navy; and Navy Justice School:

In 1967, Congress decided to establish the Judge Advocate General's Corps within the Department of the Navy. The legislation was signed into law by President Lyndon B. Johnson on December 8, 1967, and ensured Navy lawyers' status as staff officers within the Navy, similar to physicians and chaplains.
.....
The Naval Justice School (NJS) is an educational institution of the United States Navy whose mission is to instruct Navy, Marine Corps, and Coast Guard officers and enlisted personnel in the fundamental principles of military justice, civil and administrative law, and procedure. In addition to being licensed attorneys in any state or territory of the U.S., all attorneys in the Judge Advocate General's Corps must undergo training either in this institution, or in in the complementary institutions of the U.S. Army and the U.S. Air Force, allowing them to act as trial or defense counsel at military courts-martial.

Judge Advocate General's Corps, U.S. Air Force; and The Official Website of Judge Advocate General - Programs:

How can I become an Air Force Judge Advocate?

Accession Programs

Each year, approximately 100-120 attorneys are selected as Air Force Judge Advocates through several different accession programs. A general description of each program follows. Select the program you would like to review.

Applicant Status - Available Programs

Civilian Attorney or 3rd Year Law Student - Direct Appointment Program (DAP)

2nd Year Law Student - One-Year College Program (OYCP)

1st Year Law Student - Graduate Law Program (GLP)

ROTC Student - Educational Delay Program

Active Duty Air Force Officers - Funded Legal Education Program (FLEP); Excess Leave Program (ELP)

Past Active Duty Officer with a Law Degree - Recall to Active Duty

Current Air Force Active Duty Officer with a Law Degree - Intraservice Transfer

Current Sister Service Active Duty Officer with a Law Degree - Interservice Transfer

AF Reserve & Guard Opportunities - Other Programs

Each service has variants on these programs; but the bottom lines for Army, Navy and Air Force are judge advocates are staff officers, line officer experience is not required, and grade is generally higher than that of a line officer with the same in-service longevity.

Now, for the exception, United States Marine Corps Judge Advocate Division:

The Judge Advocate Division is the United States Marine Corps's legal arm, and is subordinate to the Judge Advocate General of the Navy. The head of the Division is the Staff Judge Advocate (SJA) to the Commandant of the Marine Corps (CMC). Military attorneys (or judge advocates) in the Marine Corps work under the supervision of the SJA to the CMC to advise Marine commanders regarding legal issues including the laws of war, and to prosecute and defend courts-martial. Marine Corps lawyers are line officers, unlike their counterparts in the United States Navy and Army, which means they can fill any officer billet in the Fleet Marine Force.
....
Marine Corps judge advocates, or JAs, are licensed attorneys who are also officers in the Marine Corps. Each JA is a line officer in the Marine Corps, and goes through the same initial training as any other Marine officer. Upon graduation from TBS [The Basic School], the Marine attends Naval Justice School where they are instructed in the fundamental principles of military justice, civil and administrative law, and procedure, with practical application of those principles to the problems inevitably arising within every command, in order to assist in the attainment of a high standard of legal practice and administration of the naval justice and naval disciplinary systems, as well as the naval civil and administrative law system. Upon graduation from the school, the Marine is designated as a Judge Advocate (MOS 4402) and will begin their tour in the Fleet Marine Force as an attorney.

As line officers, Marine JAs can and occasionally do serve in non-legal assignments, including the command of combat units.

The bottom line is that every Marine is a rifleman (and I refuse to say "rifleperson").

Hope this helps to explain the basic US approach to military lawyers and the one exception.

Regards

Mike

[JMA]

Originally Posted by Harttm

Much has been written on the use of child soldiers in combat. Most of the recent information available has been collected by International Organizations, GOs, NGOs, and the academic researchers. P.W. Singer published "Children at War," (2005) which goes into great detail on the subject from a military perspective. Singer provides some insight into dynamics associated with western militaries confronting child combatants. He does cite OP BARRAS, in which the estimates of West Side Boys casualties ranged from 25-150 killed in action. The highly trained British force had 70 wounded and one killed in action.

Singer identifies that western militaries are hesitant to engage children and offers some approaches to prepare for these inevitable engagements.

The Brit casualties were 1 KIA and 12 WIA. I don't believe that there was any hesitancy to engage the WSBs as the other camp across the river, Magbeni, was a free fire zone. The concern at Gberi Bana was for the hostages. It took 20 mins to secure the hostages yet the contact went on for 4 hours. The lesson learned from this op was how a first class op successful in the first 20 mins can drag on with resultant casualties due to the lack of initial and sustained airborne fire support (CAS).

25-150 kills on the WSBs side? Lets try to deconstruct that figure. It means 25 confirmed kills as evidenced by bodies found/seen/recovered. Where the 150 comes from is open to speculation.

[AdamG]

Originally Posted by Ken White

They'd better treat them all as real ones. A twelve year old can kill you just as dead as can his Father. Lot of foolish angst over 'child soldiers' for no good reason.

Just ask Law Enforcement types about lethal feral youths on the streets of urban America. Without moral compasses, you get "Lord of the Flies" and all that goes with it.

[Ken White]

Originally Posted by AdamG

Just ask Law Enforcement types about lethal feral youths on the streets of urban America. Without moral compasses, you get "Lord of the Flies" and all that goes with it.

you get Lord of the Flies and all that goes with it.

I've got two sons that are long time Cops, one on each coast, both in major urban areas. Their concern is the 'legal' system apparently has no moral compass.

Or much sense...

[jmm99]

virtual handshakes and salutes from me. Being a coastal cop (esp. in a major urban center) takes great fortitude and dedication. Or, else you have to be as dumb as a brick; but judging from their Old Man, that seems unlikely.

The civil and criminal justice system works better in the Heartland (its major urban centers excepted). I expect there is much greater direct accountability for judges, lawyers and police in smaller communities with lesser case loads.

-------------------------------
"Lord of the Flies" is an interesting book, which frustrated the hell out of me when I first read it in the late 1950s while in high school. My problems were with Ralphie Boy vice Jack. Ralph should have taken on Jack upfront, and if needed killed him. Ralph tried to protect the Piggies of his New World by playing nice all the way. That doesn't work in an environment ruled by the Laws of War.

And no, I wasn't a Piggy back then:



more like something of a cross between Ralph and Jack, I suppose. Both had good and bad features - and to some extent can stand as metaphors for the Rule of Law (Ralph) and the Laws of War (Jack).

Regards

Mike

[Ken White]

Originally Posted by jmm99

Or, else you have to be as dumb as a brick; but judging from their Old Man, that seems unlikely.

Actually, they're smarter and better lookin' than I am -- a not all that difficult pair of feats...

The civil and criminal justice system works better in the Heartland (its major urban centers excepted). I expect there is much greater direct accountability for judges, lawyers and police in smaller communities with lesser case loads.

I'm sure you're correct. Having watched the processes actually work in rural Florida, Georgia, Kentucky, North Carolina and Virginia among other places, I continue to be totally befuddled by some case reports from all our larger cities...

The west coaster son's three year long ordeal defending what was then his Dog Section from a local Activist's flawed and failed legal assault a few years ago over the fleeing felon who got bitten in the posterior was at least a hilarious break in otherwise sad stories.

Beyond fuddlement was the east coast kid's breaking his Asp in an arrest for the third time by him of one individual with a record of seven arrests and convictions for violent acts. Now eight. He's already back on the street...

The jails are overfull, they say...

[JMA]

Originally Posted by Ken White

Actually, they're smarter and better lookin' than I am -- a not all that difficult pair of feats...I'm sure you're correct. Having watched the processes actually work in rural Florida, Georgia, Kentucky, North Carolina and Virginia among other places, I continue to be totally befuddled by some case reports from all our larger cities...

The west coaster son's three year long ordeal defending what was then his Dog Section from a local Activist's flawed and failed legal assault a few years ago over the fleeing felon who got bitten in the posterior was at least a hilarious break in otherwise sad stories.

Beyond fuddlement was the east coast kid's breaking his Asp in an arrest for the third time by him of one individual with a record of seven arrests and convictions for violent acts. Now eight. He's already back on the street...

The jails are overfull, they say...

Tell me Ken, is it really true that the police in LA are not able to handle the gangs?

[Ken White]

Originally Posted by JMA

Tell me Ken, is it really true that the police in LA are not able to handle the gangs?

Haven't been to LA in 60 years. No desire to go back. Ugly town. LA Cops then were really pretty good, though and apparently still are better than most. Very small force for the size of the population, too...

However, I suspect that like all Police everywhere, they are not really able to "handle the gangs." If gangs were not a problem worldwide, there would be far fewer police. LINK, LINK, LINK, LINK.

You ask really weird questions but I'm sure you have a point in there somewhere, no matter how obscure it may be.

[JMA]

Originally Posted by Ken White

You ask really weird questions but I'm sure you have a point in there somewhere, no matter how obscure it may be.

Well Ken, out here in the colonies we are probably cut from a different template.

I'm trying to figure out the reason why Afghanistan was allowed to develop into a narc state. So I look at Mexico and then LA (and others). The simple deduction is that if its OK so close to home then who cares about Afghanistan, right?

Then again maybe not