Archive for the 'Lawfare' Category

Lawyers in the Battle Space

BY Herschel Smith
7 years ago

Two and a half years ago, I wrote God in the Battle Space.  I cited the example of Lt. Col. Jason Bohm as exemplary of the kind of interaction with the population that engenders trust.  There is another presence in the battle space – that of lawyers.  To be sure, no one intends for there to be any deleterious affects from the presence of law school graduates in the battle space.  But equally as sure, their presence has complicated things.

MARJAH, Afghanistan—As Capt. Anthony Zinni monitored a live video feed from a Predator drone circling overhead, he spotted four men planting a booby trap in the middle of the road here.

For Capt. Zinni, one of the officers responsible for approving airstrikes in the nine-day-old battle for Marjah, it seemed like an easy call: The men were digging a hole alongside a road where a Marine supply convoy was scheduled to pass within hours. But just as he was about to give the order to strike, Capt. Zinni spotted even-smaller white figures on the video running along the path south of the canal.

Children. Maybe 50 feet from the men planting the booby trap. “It’s not a good shot,” Capt. Zinni said, ordering the Predator drone to delay the strike. “It’s not a good shot.”

The 45 minutes that followed help illustrate why it is taking coalition forces so long to secure this hotly contested part of Afghanistan …

When Capt. Zinni spotted the four men planting the booby trap on the afternoon of Feb. 17, the first thing he did was call his lawyer.

“Judge!” he yelled.

Capt. Matthew Andrew, judge advocate for 1st Battalion, 6th Marine Regiment, advises the battalion about when it is legal to order the airstrikes. He examined the figures on the video feed closely. “I think you got it,” Capt. Andrew said, giving the OK for the strike.

Capt. Zinni, 35 years old, grew up among Marines—his father is retired Gen. Anthony C. Zinni, former commander of all U.S. forces in the Middle East—and always seemed destined for the Corps.

The Marines watch almost constant video feeds from unmanned aircraft, including Predators armed with Hellfire missiles and piloted remotely by crews at an Air Force base near Las Vegas. The suspected insurgents were digging on a road that ran along the north bank of a wide canal, part of an elaborate irrigation system built with U.S. aid money in the 1950s.

Knowing that the Marine convoy was due to pass over the spot in a couple of hours added pressure to the decision about whether to strike.

Once Capt. Zinni spotted the children and called off the strike, Capt. Andrew loitered behind the Marines at the monitors, pondering the situation. “We have to separate the insurgents from the people,” he said. “If we just bomb the hell out of everything, we’ll have a hard time doing that.” But the Marjah battlefield was constantly changing, with insurgents and civilians often in close proximity.

“If we can ensure there aren’t any kids around, you have a good shot,” he told Capt. Zinni.

On a cot nearby, Lance Cpl. José Guzman-Berrios, a 19-year-old from Carolina, Puerto Rico, was monitoring chat messages pouring in from the Predator mission commander in Nevada. “Children are out of view 30 meters down the road walking west,” Lance Cpl. Guzman-Berrios read aloud.

Even though the children were out of view, the battalion operations officer, Maj. John Harris, worried they could be hit by the airstrike, erasing whatever goodwill the Marines were accumulating by ousting the Taliban. “The last thing I want to do is kill kids,” he said. “Once it’s confirmed there are no friendlies, it’s approved.”

The children, however, soon walked back into view on the screens, pacing along the path south of the canal.

Capt. Andrew suggested that a show-of-force—a loud, low pass by a helicopter or jet—might scare the men into bolting for the compound, or, at least, interrupt their work. “Or they might go into a field, and we may be able to kill them,” Maj. Harris added.

Capt. Zinni had seen this scenario before in Marjah. Insurgents using women and children for cover as they moved weapons or crossed open spaces into fighting positions in buildings. In this case, the captain was certain that the children were acting—either by their own volition or under coercion—as shields for the men planting the bomb.

The way the Taliban see it, he thought, they’d win either way: The Americans might hold their fire and allow them to plant a bomb unmolested. Or the Americans might kill a few civilians, a propaganda victory for an insurgent force increasingly adept at using the media to spread its message.

“We’re not going to be able to hit this,” Capt. Zinni concluded. He ordered the Predator pilot to keep an eye on the men. Maybe they’d lead the Marines back to their commander’s position. Or maybe they’d make a mistake and leave through an area clear of civilians.

Then came a chat message from the Predator mission commander in Las Vegas: “There are no more civilians in the area. Three people in the road at this time.”

“No children?” Maj. Harris said. “Strike ‘em.”

Capt. Alex Ramthun, a 31-year-old Harrier jump-jet pilot in charge of talking to the Predator pilot, passed him the order: “Strike approved, strike approved, strike approved.”

But the children returned. “Two children on the opposite side of the canal, approximately 15 meters,” came the message from Las Vegas.

The pilot aborted the attack run and continued to circle.

“It’s not worth the risk,” agreed Capt. Zinni. “They’re doing this on purpose. Wait for them to go out in a field.”

Capt. Ramthun relayed Capt. Zinni’s decision to the Predator pilot. “Shot is no longer authorized,” he said.

That evening, the scheduled Marine supply convoy rambled down the dirt road. Warned of the booby trap, the vehicles stopped short of the spot where the men were seen digging. The Marines removed a buried triggering device, set to detonate the explosives when a vehicle passed. As is often the case, the Taliban had been working in shifts, with one team responsible for digging the hole and planting the trigger, and another team detailed to bury and connect the homemade explosives.

On Friday, the Marines spotted three men digging on the same road. This time there were no civilians around.

A Marine attack helicopter blasted them with cannon fire.

Let’s be specific.  No one wants to see children die.  It might have been the case that had Captain Zinni been free to call in air strikes without the approval of the JAG and staff officers, the call would have been timely enough to have been pulled off without noncombatant casualties.

But what we learn in this example has little to do with the the rules of engagement or the protection of the population.  This is unchanged.  What we learn is that there is an every increasing degree of control over calls made in the battle space.

I have a friend who has a theory, and I believe this theory to be substantially correct.  The value, worth or viability of a document, call, decision or judgment is inversely proportional to the number of signatures on that document, or people agreeing to the action.

We train lower ranking field grade officers to make these decisions, we give them the rules, and we send them into the battle space on our behalf.  They need God at their side to help with moral decision-making.  Lawyers are no replacement for God, and our officers most certainly do not need lawyers second guessing or approving their decisions.


Detention Policy in Afghanistan: Micromanaging the Military

Micromanaging the Campaign in Afghanistan II

Micromanaging the Campaign in Afghanistan

Kill the Enemy

BY Herschel Smith
7 years, 9 months ago

Ralph Peters:

We made one great mistake regarding Guantanamo: No terrorist should have made it that far. All but a handful of those grotesquely romanticized prisoners should have been killed on the battlefield.

The few kept alive for their intelligence value should have been interrogated secretly, then executed.

Terrorists don’t have legal rights or human rights. By committing or abetting acts of terror against the innocent, they place themselves outside of humanity’s borders. They must be hunted as man-killing animals.

And, as a side benefit, dead terrorists don’t pose legal quandaries.

Captured terrorists, on the other hand, are always a liability. Last week, President Obama revealed his utter failure to comprehend these butchers when he characterized Guantanamo as a terrorist recruiting tool.

Gitmo wasn’t any such thing. Not the real Gitmo. The Guantanamo Obama believes in is a fiction of the global media. With rare, brief exceptions, Gitmo inmates have been treated far better than US citizens in our federal prisons.

But the reality of Gitmo was irrelevant — the left needed us to be evil, to “reveal” ourselves as the moral equivalent of the terrorists. So they made up their Gitmo myths.

Really, Ralph.  Can’t you just give me a little while to craft my own views without having you surreptitiously undercut me by publishing my prose first?  Honestly, I was very nearly about to craft such a commentary, but framed about prisons in counterinsurgency and criminal prosecutions of pirates.

Ralph launches his diatribe from the framework of Gitmo, and while I concur exactly with his views, I also advocate such an approach to reducing the number of prisons necessary in counterinsurgency operations.  Certainly, there are local “accidental guerrillas” (as they are called by Kilcullen) who we need to identify and attempt to sway, rehabilitate or otherwise turn to our advantage.

But as for the hard core, ideologically motivated fighters, rather than overcrowd the local prisons with bad actors who will only be released into the population to continue their activities, it is better that they be killed on the field of battle.  In many ways, their surrender is the worst of all options.  Their surrender means countless lawyer-hours, evidence-gathering, constabulary work, judicial work, prison construction, attempted rehabilitation, and ultimately release to conduct the same activities again.

The same goes for pirates, who even throughout history have been able to escape justice by claiming forced conscription.  Finally, we have better things to do with our money and lawyers’ time than to chase the legalities of piracy in order to stamp out the practice.  Better to kill the pirates on the high seas.  When it reaches the point that we are capturing the pirates rather than killing them, or sending SEALs to save hostages, it has gone too far.  The focus of the fight is misplaced.

Pirates? Call the Marines … Er, the Lawyers

BY Herschel Smith
8 years, 2 months ago

Pirates?  Call the U.S. Marines … er, the lawyers.

Piracy off Somalia’s coast has plagued shipping companies for years, but the number and boldness of attacks has increased in recent months. While that has given fits to shipowners, cruise operators and navies, it also has kept a relatively obscure set of lawyers busy.

London’s Holman Fenwick has received more work as pirate attacks have increased off Somalia, where a French Navy frigate patrolled Saturday.

Among the most prominent is London maritime firm Holman Fenwick Willan. Partner Toby Stephens says lawyers at the firm have been awakened “at all hours” by ship owners calling the firm’s 24-hour hot line. “They’re often quite panicked, and understandably so,” he says.

Over the past three months, the rise in piracy has kept about a half-dozen lawyers at Holman Fenwick working nearly full-time for clients with potentially dozens of lives and tens of millions of dollars at stake in hijackings. To some degree, the work has helped Holman Fenwick offset other maritime practices hurt by the global economic slowdown.

Through the end of last month, the waters off Somalia had been the site of 96 pirate attacks this year, 40 of which had led to pirates boarding a ship, taking control and demanding a ransom, according to the International Maritime Bureau in London. World-wide there were 83 reported pirate attacks in the third quarter, up from 53 and 63 in the first and second quarters, respectively, the bureau says. In recent months, pirates have broadened their targets to include bigger vessels, including oil tankers and, so far unsuccessfully, cruise ships. In most cases ransom demands have been in the $1 million-$2 million range. But lawyers say hijackers have demanded as much as $25 million for the release of the Sirius Star, a Saudi oil tanker captured 450 miles off the Somali coast carrying cargo valued at more than $100 million.

On Tuesday several cruise-ship operators said they would shift or cancel tours or reroute passengers by plane to avoid the Gulf of Aden off Somalia. Also, the European Union said it would station armed guards on cargo ships in the area.

Mr. Stephens says his firm is working on “over a dozen” of the roughly 20 Somalia-area attacks in which the ships haven’t been freed.

“This year we’ve seen a definite uptick in piracy work,” says James Huckle, who is in charge of business development for the firm.

Business in Holman Fenwick’s casualty practice, usually dealing with shipping collisions, and its ship-financing practice have slipped as the world economy has slowed. Mr. Huckle says piracy cases have helped “counterbalance” that downturn but he is unable to provide specific figures.

Stephen Askins, a maritime lawyer at London’s Ince & Co. says he is handling “a few” piracy cases, but that Holman Fenwick “is really leading the way” in representing shipowners in piracy matters.

Piracy expertise at Holman Fenwick, which was founded in 1883, grew out of the firm’s history representing clients following shipwrecks and collisions. The firm represented the salvage companies that cleaned up after the oil tanker Prestige broke up off the coast of Spain in 2002. The firm also represents the owners and insurers of the MSC Napoli, a container ship severely damaged in an English Channel storm last year. In addition to about 290 lawyers, the firm employs about 30 nonlawyer experts, such as former ship captains, marine engineers and naval architects.

A firm’s initial role after a hijacking often is to ease a client’s fears. “No one’s been hurt, and the ransoms have so far been small enough for shipowners to pay,” says Duncan McDonald, a lawyer at London-based Stephenson Harwood. His firm represents owners of two ships hijacked and released earlier this year.

Then, a firm moves to determining where a ship is registered and the location of the hijacking. These factors affect the laws that will govern the case and the haggling over liability that often follows. A U.N. resolution passed in June allows a navy to enter Somalia’s territorial waters to repress an attack.

Shipowners and insurance underwriters are reluctant to speak publicly about their hijacking situations. But the managing director of a large insurance syndicate in London says that when a ship partly underwritten by his firm was hijacked several weeks ago, his first question to lawyers at Holman Fenwick was whether the payment of ransom was even legal. It was under U.K. law, Mr. Stephens says, which typically applies because that’s where insurance underwriters are usually based. If a ransom payment is illegal, the firm might have to negotiate with the country exercising jurisdiction.

The insurance-syndicate executive says the negotiations, which are continuing, have been stressful. “I know we’re in good hands…but there are still times when you feel like you have no control at all,” he says.

“The lawyer’s pen and the swashbluckling pirate’s sword met with a mighty crash as all the children heard and watched the brave battle ensue” … actually, scratch that.  We’re only on good hands if the Marines are killing pirates.  The Captain’s Journal has made it known what needs to be done.

TCJ has weighed in saying:

This is easy. We tell the LOAC and ROE lawyers that they’re special and that they should go to their rooms and write high-sounding platitudes about compassion in war so that they’re out of the way, we land the Marines on the ship, and we kill every last pirate. Then we hunt down his domiciles in Somali and destroy them, and then we find his financiers and buyers and kill them. Regardless of the unfortunate potential loss of Ukrainian or Russian civilian life upon assaulting the ship, this weaponry and ordnance should never have been shipped in this part of the world without escort (and perhaps it shouldn’t have been shipped even with escort). Negotiations will only serve to confirm the pirates in their methods. It’s killing time. It’s time to turn the United States Marines loose.

Ralph Peters has weighed in saying:

Piracy must be exterminated. Pirates aren’t folk heroes or champions of the oppressed. They’re terrorists and violent criminals whose ransom demands start at a million bucks. And they’re not impressed by the prospect of trials in a velvet-gloved Western court. The response to piracy must be the same as it was when the British brought an end to the profession’s “golden age:” Sink them or board them, kill them or hang them.

Lt. Col. P at OpFor has weighed in saying:

Kill all of the pirates.

Seriously. Why do we allow a handful of khat-addled assholes to dominate one of the world’s most important sea lanes? We, the western powers, have sufficient naval units in the area to take care of the problem in very quick order. What we lack is the will. We apply an idiotically high standard of judicial due process to a situation that doesn’t lend itself well to a judicial solution. Anyone who has dealt with Somalis can tell you that they laugh at western legalisms, and what they perceive as western weaknesses. And then they redouble their violent efforts to take what they want from you. They do react very well to a boot on their necks, and a gun to their heads. Then they tend to wise up quickly.

Here’s how it needs to be done. Oil tanker sends distress call, takes evasive actions insofar as it is capable. (Or better yet, armed men aboard oil tanker defend by fire.) Coalition forces despatch (sic) vessels and boarding parties. Pirates who survive ensuing gun battle are lined up by the rail and shot in the head, then dumped overboard. Pirate boats are burned. If their bases or villages on the coast can be identified, said bases are raided and destroyed. No fuss no muss, no ransom, no hostages, no skyrocketing costs.

So who has the trust?  The lawyers or U.S. Marines?  Should we pay ransom or kill the pirates?  We have a poll where the reader can weigh in on this question.

Adventures in ROE: Waiting on the Lawyers

BY Herschel Smith
8 years, 4 months ago

In Prosecution of U.S. Troops Under Iraq SOFA we broadly outlined some problems we have with the draft Status of Forces Agreement awaiting Iraqi parliament approval.  Review of the draft SOFA raises even more questions and forces the conclusion that things could very well be worse than first suspected.  A few examples are in order, followed by a review of international lawyer hand-wringing over Somalian pirates.

Article 3 [1] sets the context for review of the agreement: “All members of the U.S. armed forces and civilian members must follow Iraqi laws, customs, traditions, and agreements while conducting military operations in accordance to this agreement. They must also avoid any activities that do not agree with the text and spirit of this agreement. It is the responsibility of the U.S. to take all necessary measures to ensure this.”

Moving ahead in the document, Article 12 [9] says “The U.S. authorities submit, in accordance to paragraphs 1 and 2 of this article, a declaration explaining whether the alleged crime occurred while suspects where off duty or on duty. In case the Iraqi authorities think the conditions require such a decision to be reviewed or changed, the two sides discuss that through the joint committee, and the U.S. authorities takes into consideration all the conditions, events and any (sic) other information
submitted by the Iraqi authorities that might have an effect on changing the U.S. authorities (sic) decision.”

It should be fairly straight forward, shouldn’t it, to ascertain whether a Soldier or Marine is actively performing approved operations?  But the Kabuki dance is being done for the reason that by intent it isn’t really that simple.  There are the standing rules of engagement, theater-specific rules of engagement, and then unit-specific rules laid out by unit lawyers.  It’s this last category where the rubber meets the road, so to speak.

The Mental Health Advisory Team (MHAT) IV, Operation Iraqi Freedom 05-07, Final Report, 17 November 2006, Office of the Surgeon, Multi-National Force Iraq, and Office of the Surgeon General, United States Army Medical Command, outlines examples of problems that have come up on the level of application of the ROE:

More than one third of all Soldiers and Marines continue to report being in threatening situations where they were unable to respond due to Rules of Engagement (ROE).  In interviews, Soldiers reported that Iraqis would throw gasoline-filled bottles (i.e., Molotov Cocktails) at their vehicles, yet they were prohibited from responding with force for nearly a month until the ROE were changed.  Soldiers also reported they are still not allowed to respond with force when Iraqis drop large chunks of concrete blocks from second story buildings or overpasses on them when they drive by.  Every groups of Soldiers and Marines interviewed reported that they felt the existing ROE tied their hands, preventing them from doing what needed to be done to win the war (pages 13 – 14).

The lawyers know that the real power of the ROE lies in how they are applied.  If, for example, a unit has completed operations and is headed back to the FOB, and a vehicle takes chunks of concrete through the windshield killing the driver, when the son of a high profile Parliamentarian dies in the subsequent small arms fire because the unit feels under threat, the time will have come to invoke the clause where Iraqi authorities attempt to change the U.S. decision on who has authority over the actions of that unit.  Soldiers and Marines have seen stranger things, and that, at the hands of their own lawyers.  In fact, one of the most poweful and effective tactics that has been used by U.S. forces – patrols, entering houses, the “knock and talk” – is patently prohibited in Article 22 [5], and agreed to by U.S. lawyers.

U.S. forces are not permitted to search houses and other properties without a court
warrant, unless there was an active combat operation in accordance to article four, and in
coordinating with the specialized Iraqi authorities.

Turning to the Gulf of Aden, the U.S. Navy is absolutely hand-tied and impotent because lawyers across the globe can’t agree to how to treat pirates (h/t War News Updates).

The commander of a NATO task force on its way to tackle piracy off the coast of Somalia has said he still does not know what the rules are for taking on the high-seas bandits.

U.S. Admiral Mark Fitzgerald said while he was aware of where the pirates were operating, there was little he could do militarily to stop them and that guidelines on how to take them on — including whether to shoot — were still in the works.

“You know, I don’t think we’ve gotten the rules of engagement yet from NATO,” Fitzgerald told reporters on Monday during a briefing on U.S. naval operations in Europe and Africa.

“That’s all still being debated in the North Atlantic Council. All we’ve been told is to prepare a plan to go down there. So (the rules) are going to have to be debated.”

Six NATO members have contributed ships, including destroyers and frigates, to a special anti-piracy task force following a request from the United Nations.

The NATO group passed through the Suez Canal last week on its way to the Horn of Africa, where piracy has surged this year, with more than 30 ships seized and ransoms estimated at $18-$30 million have been paid to free hostages.

There are already naval assets from Britain, the United States and Russia in the region, but the area is so vast — more than 2.5 million square miles — that it is almost impossible for the pirates to be stopped unless they are caught red-handed.

“From a military standpoint, we certainly are limited by what we can do,” said Fitzgerald. “How do you prove a guy’s a pirate before he actually attacks a ship?

“We have a problem from the military side at sea because we can’t be omnipresent in the space, and the pirates operate at an advantage because … they don’t announce they’re a pirate until they attack a ship.”

Security specialists say there is a window of only about 15 minutes for a navy ship to respond to a distress call and get to another ship that’s being hijacked. Once pirates are on board, there’s little, legally, that can be done.

“You’ve got a very short window, a short time span, from the point where they decide to board a ship and (actually) board it. If you’re not right there, there’s not much you can do, and once the ship is taken hostage, then….”

The Danish navy learnt to its cost last month what can happen if you do seize suspected pirates.

They captured 10 people, but after holding them for six days aboard a Danish ship, the suspects were set free and put ashore in Somalia because the legal conditions surrounding their detention were unclear.

Denmark’s Defence Ministry said Danish law did not allow for prosecution of the men before a Danish court. The ministry said it had explored the possibility of handing them over to other countries but that was also not feasible.

A senior British naval commander admitted last week that it was essentially a legal minefield trying to take on the pirates, and urged commercial ships operating in the region to hire their own private security companies to deal with the threat.

Admiral Fitzgerald said the Danish experience showed how weak the impetus was going to be to capture pirates. Instead he said his task force would focus on escorting World Food Programme ships trying to deliver aid to Somalia.

The Captain’s Journal has weighed in saying:

This is easy. We tell the LOAC and ROE lawyers that they’re special and that they should go to their rooms and write high-sounding platitudes about compassion in war so that they’re out of the way, we land the Marines on the ship, and we kill every last pirate. Then we hunt down his domiciles in Somali and destroy them, and then we find his financiers and buyers and kill them. Regardless of the unfortunate potential loss of Ukrainian or Russian civilian life upon assaulting the ship, this weaponry and ordnance should never have been shipped in this part of the world without escort (and perhaps it shouldn’t have been shipped even with escort).  Negotiations will only serve to confirm the pirates in their methods. It’s killing time. It’s time to turn the United States Marines loose.

Ralph Peters has weighed in saying:

Piracy must be exterminated. Pirates aren’t folk heroes or champions of the oppressed. They’re terrorists and violent criminals whose ransom demands start at a million bucks. And they’re not impressed by the prospect of trials in a velvet-gloved Western court.  The response to piracy must be the same as it was when the British brought an end to the profession’s “golden age:” Sink them or board them, kill them or hang them.

Lt. Col. P at OpFor has weighed in saying:

Kill all of the pirates.

Seriously. Why do we allow a handful of khat-addled assholes to dominate one of the world’s most important sea lanes? We, the western powers, have sufficient naval units in the area to take care of the problem in very quick order. What we lack is the will. We apply an idiotically high standard of judicial due process to a situation that doesn’t lend itself well to a judicial solution. Anyone who has dealt with Somalis can tell you that they laugh at western legalisms, and what they perceive as western weaknesses. And then they redouble their violent efforts to take what they want from you. They do react very well to a boot on their necks, and a gun to their heads. Then they tend to wise up quickly.

Here’s how it needs to be done. Oil tanker sends distress call, takes evasive actions insofar as it is capable. (Or better yet, armed men aboard oil tanker defend by fire.) Coalition forces despatch (sic) vessels and boarding parties. Pirates who survive ensuing gun battle are lined up by the rail and shot in the head, then dumped overboard. Pirate boats are burned. If their bases or villages on the coast can be identified, said bases are raided and destroyed. No fuss no muss, no ransom, no hostages, no skyrocketing costs.

Apparently, the lawyers don’t think like we do.  But for the time being, the lawyers are setting the agenda.

U.S. Troop Immunity Barrier to Iraq Status of Forces Agreement

BY Herschel Smith
8 years, 5 months ago

The Status of Forces Agreement (SOFA) between the U.S. and Iraq had been in the works for some time now, and there is one remaining hurdle. It’s a big one, and it’s very important for the sanctity of certain core legal principles in American jurisprudence. It has to do with the immunity of U.S. soldiers.

Legal protection for U.S. troops in Iraq is the most difficult issue still to be settled in U.S.-Iraqi talks on a new security pact, a senior Iraqi official said on Wednesday.

Deputy Prime Minister Barham Salih told Reuters in an interview that Baghdad was awaiting a response from the United States on a number of questions and proposals Iraq had put forward regarding immunity and some other outstanding issues.

“(Immunity) is probably the most contentious issue,” Salih said. “There is a history to it. It is very sensitive.”

There have been a number of high-profile incidents involving American soldiers killing or abusing Iraqis since the U.S.-led invasion that toppled Saddam Hussein in 2003.

Iraqis were horrified by photos in 2004 of U.S. soldiers abusing Iraqi detainees at the Abu Ghraib prison.

In 2005, U.S. Marines were accused of killing 24 civilians in Haditha, west of Baghdad. Most Marines charged in a U.S. military court have had their cases dismissed or been acquitted.

Abu Ghraib was an isolated incident, and the events surrounding Haditha have thus far proven that the Marines were entirely within their rights and rules of engagement in the room clearing operations that fateful day. Continuing:

Iraqi officials say such incidents have colored bilateral talks aimed at striking a deal to govern the U.S. troop presence here after a U.N. mandate expires at the year’s end.

Prime Minister Nuri al-Maliki has vowed that no foreigners will receive “absolute” immunity, and said last month that “the sanctity of Iraqi blood must be respected.”

Indeed! No foreigners will received absolute immunity! The U.S. always has the right to try U.S. servicemen under the appropriate laws, but if Maliki’s statement means that Iraq retains some sort of sovereignty over a Soldier’s or Marine’s legal status, such that the U.S. is not empowered to find innocence if appropriate (i.e., Iraq is granted veto over decisions in U.S. courts or given the right to their own court proceedings which must be respected by the U.S.), then The Captain’s Journal questions whether that is a legal arrangement. The U.S. constitution is a guarantor of the rights of all U.S. citizens whether Iraq wants a say or not.  No treaty trumps the U.S. constitution.  It reigns supreme over American laws and citizens.

But there is an even more pragmatic issue regarding jurisprudence. The societies are so different as to be incomparable, leaving one to question whether it is even possible for an American to have a “fair” trial in Iraq. To mention one, recall TCJ article Iraq: Land of Lies and Deceit, in which cited a Hawaii Reporter article on the nature of witness-bearing in Iraq as it had to do with the Haditha case. It is lengthy but very important.

A British case which speaks directly to the credibility of tribal witnesses and to the Islamic tribal tradition of “blood money” collapsed November 3, 2005. On trial were seven British soldiers charged with murder stemming from a May, 2003 incident in Ferkah, Iraq. All charges were dismissed after it became clear that the key witnesses were lying in order to gain “blood money”. The BBC describes the collapse of the trial as follows:

“…it has become clear to everyone involved as the trial has progressed that the main Iraqi witnesses had colluded to exaggerate and lie about the incident.”

Three women had admitted lying about being assaulted by British soldiers and one witness had told the court that Mr. Abdullah’s family encouraged others to tell lies, Judge Blackett said.

Witnesses some distance from the scene “could not possibly have seen what they said they saw”, he added.

And Iraqi court witnesses had used the case to seek “compensation to what were patently exaggerated claims”, he said.

One witness at the court martial, Samira Rishek, a Marsh-Arab who had claimed to have been brutally beaten by the soldiers while she was pregnant, admitted to the court it was a “wicked lie”.

The court heard that Mrs. Rishek, along with other witnesses, was paid $100 a day to give evidence at the trial and that she only agreed to give evidence after being told she would be paid.

BBC correspondent Paul Adams said there was an “underlying sense” that some of the witnesses were “out to try and get something for themselves”.

A number of questions were going to be asked about why the trial had been mounted, he added.

Roger Brice, solicitor for defendant Pte Samuel May told BBC News there had never been a case to answer.

“What the judge has done today is stop the case when the prosecution have concluded… there was never a case for any of the defendants to answer.

“He summed up the fact that the evidence as it came out in these last two months has been one of acknowledged lies.”

Why all the lies for a paltry $100 per day? It makes sense for a tribal person who believes that the blood money system is the way of the world. A February 2, 2004 BBC article explains the workings of the blood money system in a case involving only Iraqis:

On the side of a road in a ramshackle tent tribal elders have gathered for a court case, but it is not an ordinary law court, it’s a tribal court. The case defies logic – one brother has killed another, but the tribe they belonged to is blaming a rival tribe for the killing.

Their argument is that if there had not been a feud with the other tribe, the killing would not have taken place; they are now demanding $20,000 in blood money….

At the tribal court, the discussion is heated, but not about guilt or innocence. Through a complex network of tribal support, both sides know where they stand, now it is just a matter of agreeing the money.

Eventually the price is knocked down to $4,000 and a woman, her value to be determined in later negotiations.

For many Iraqis it’s a system that works, and in a violent region recompense appears much more practical than locking someone away.

The logic in the British case and possibly in Haditha is simple: If the coalition did not have a fight with the insurgents, the deaths would not have occurred. The deaths cause a loss in the resources of the tribe. The tribe cannot file a claim with Zarqawi–he might chop their heads off–therefore it is the coalition that owes blood money. In the eyes of tribal people such as Haditha residents, this debt is owed regardless of who actually killed the 24 people in Haditha or the circumstances of those deaths. The payment of blood money is not an admission of guilt; it is a balancing of tribal obligations.

[ … ]

In Islamic and Arab traditions, blood money is the money paid by the killer or his family or clan to the family or the clan of the victim. It is unlawful for a believer to kill a believer except if it happens by accident. And he who kills a believer accidentally must free one Muslim slave and pay ‘Diyat’ to the heirs of the victim except if they forgive him. The tradition finds repeated endorsement in Islamic tradition; several instances are recorded in the Hadith, which are the acts of the Prophet Mohammad.

The Blood – Money tradition has found its way into legislation in several Islamic countries, including Saudi Arabia, Iran and Pakistan. Some of these countries also define, by lawful legislation, a hierarchy of (cash) rates for the lives of people….

Are lies being told to obtain blood money payments? Some insight comes in this response to the collapse of the British trial by Stephan Holland, a Baghdad-based US contractor.

I’ve been in Iraq for about 18 months now performing construction management. It is simply not possible for me to exaggerate the massive amounts of lies we wade through every single day. There is no way – absolutely none – to determine facts from bulls*** ….

It is not even considered lying to them; it is more akin to being clever – like keeping your cards close to your chest. And they don’t just lie to westerners. They believe that appearances–saving face–are of paramount importance. They lie to each other all the time about anything in order to leverage others on a deal or manipulate an outcome of some sort or cover up some major or minor embarrassment. It’s just how they do things, period.

I’m not trying to disparage them here. I get along great with a lot of them. But even among those that I like, if something happens (on the job) I’ll get 50 wildly different stories, every time. There’s no comparison to it in any other part of the world where I’ve worked. The lying is ubiquitous and constant.

With this understanding of how one people relates to another, how can the U.S. even consider the possibility of relinquishing sovereignty over the disposition of charges against U.S. servicemen? In our judgment, the SOFA is not so important that we must give up our rights to sovereignty over our own jurisprudence. Hopefully, this is a nonnegotiable in the process.

Warfare and Lawfare: An Unstable Alchemy

BY Herschel Smith
9 years, 6 months ago

This last week saw a significant air strike on a large Taliban gathering in Afghanistan.

The Afghan defence ministry says an air strike on a large Taliban gathering has killed dozens of rebels, with at least 30 civilians wounded and unconfirmed reports of many more killed.

The US-led coalition forces say they had conducted a “precision air strike” against two notorious Taliban commanders meeting in the rebel-controlled and remote area of Baghran district, in the southern province of Helmand.

Afghan defence ministry spokesman General Mohammed Zahir Azimi says the gathering was to execute four people on charges of cooperating with the government, and had attracted several militant leaders including top Taliban military commander Mansour Dadullah.

Mansour was the brother of top Taliban military commander Mullah Dadullah, who was killed by U.S. forces in early May of 2007.  Mansour had apparently taken over for Mullah upon his death.  The Combined Joint Task Force press release contains some interesting words concerning the strike, obviously responding to the allegations that noncombatants were killed.

Coalition forces conducted a precision air strike against two notorious Taliban commanders conducting a leadership meeting in a remote area of the Baghran district, Helmand province today.

Coalition forces gained actionable intelligence on the location of two Helmand-area Taliban commanders and monitored their movements near the village of Qaleh Chah.  During a sizable meeting of senior Taliban commanders, Coalition forces employed precision guided munitions on their location after ensuring there were no innocent Afghans in the surrounding area.  

“This operation shows that there is no safe haven for the insurgents,? said Army Maj. Chris Belcher, a Combined Joint Task Force- 82 spokesperson.  “It will take some time to determine if both targets were killed.?

But what if there had been noncombatants in the surrounding area?  Would the air strike still have been conducted?  Would the presence of a single noncombatant have cancelled the mission?  Against the backdrop of questions such as these, Major General Charles J. Dunlap, Jr., weighs in on the potential dangers of lawfare amid warfare (his Washington Times Commentary is entirely reproduced below).

“Is warfare turning into lawfare?” When I posed that question in a 2001 essay for Harvard’s Carr Center, I was expressing concern about the increasing frequency with which international law was being used — and abused — by America’s opponents.

At the time, I was trying to focus on the exploitation of real, perceived, or even orchestrated incidents of law-of-war violations being employed as an unconventional means of confronting American military power. Make it appear that the United States is fighting in an illegal or immoral way, and the damage inflicted upon the public support the forces of a democracy need to wage war is as real as any caused by a traditional defeat.

Six years later it is clear that lawfare has become a key aspect of modern war. The abuses at Abu Ghraib and elsewhere produced effects more damaging than any imposed by our enemies by force of arms. What makes it especially maddening is that these are self-inflicted wounds; wholly preventable incidents where adherence to the rule law would have avoided the disastrous consequences that still plague America’s war-fighting effort.

Today, another form of lawfare is appearing. It too is a self-inflicted wound, and it is likewise avoidable by merely adhering to the rule of law.

Consider how reports that NATO airstrikes are causing civilian casualties are being handled by the International Security Assistance Force (ISAF) in Afghanistan. In response to queries about a report of such deaths, a spokesman insisted recently that “NATO would not fire on positions if it knew there were civilians nearby.” No doubt this assertion reflects a well-meant effort to prevent the noncombatant losses that every honorable soldier always wants to avoid. It also seems aimed at assuaging populations — both in Afghanistan and in NATO countries — who are understandably concerned when civilians are killed. Each such death is a terrible tragedy.

But this statement does not reflect the law, and in fact could put even more of the truly innocent at risk. First the law. While international law forbids, of course, the direct targeting of civilians, it does recognize that they are incidentally put at risk during otherwise legitimate attacks on combatants.

What the law does require is that the risk to noncombatants not be excessive in relation to the concrete and direct military advantage anticipated. That “military advantage” includes killing terrorists and other enemy fighters who threaten both friendly forces and bonafide civilians.

Clearly, the law calls upon commanders to make very difficult judgments, but nevertheless understands that sometimes the legitimate pursuit of military objectives will foreseeably — and inevitably — cause the deaths of noncombatants. It is important that this tenet of international law be thoroughly understood.

Of course, it is not illegal to establish a policy of “zero tolerance” of civilian casualties even though the law does not require it. Doing so, however, creates unnecessary and often counterproductive results. Among other things, the unrealistic and unachievable expectations produced stimulate a sense of betrayal when such casualties occur, and — despite all efforts — they will always occur in war.

Moreover, foreclosing an attack simply because of civilians in the area may, ironically, condemn many more innocents to be victimized in a future rampage of gunfire, improvised explosive devices or suicide bombing by the terrorists that escape. Though excessive civilian losses must always be avoided, it may very well be more humane approach to kill bad guys when the opportunity presents itself even though some civilian losses may also occur.

Establishing a paradigm of “zero tolerance” for casualties may well come back to haunt us in yet another way. Specifically, it encourages the enemy to do exactly what we do not want them to do: surround themselves with innocent civilians so as to virtually immunize themselves from attack. It creates a sanctuary that the bad guys are not entitled to enjoy, and sends them exactly the wrong message.

International law is the friend of civilized societies and the military forces they field. However, if we impose restraints as a matter of policy in a misguided attempt to “improve” upon it, we play into the hands of those who would use it to wage lawfare against us.

In Recon by Fire, I replied to reporter Brian Palmer (who used the comments section of the article to defend his reporting – as was his right), with the following words:

… from a utilitarian perspective, I am not convinced that in the end softer ROE helps to WHAM. In fact, I would claim that the fact that the ROE have prevented the proper engagement of many insurgents in homes, making homes a safe location for them, has hurt our efforts. Had the U.S. not given quarter, the insurgents would not be making use of them today (see my piece on Air Power in Small Wars).  Also note the awful, horrible situation in Basra today (see Calamity in Basra and British Rules of Engagement). The Brits have summarily made fun of and ridiculed our ROE. Ironically, Anbar is becoming pacified, while Basra has gotten progressively worse and is in the biggest mess today that it has ever seen. Those soft ROE have not worked out so well for the Brits.

In a recent report from Baghdad, Michael Totten briefly opines on the issue of security and what it means to the population.  “Few Westerners think of personal security as a human right, but if you show up in Baghdad I’ll bet you will. Personal security may, in fact, be the most important human right. Without it the others mean little. People aren’t free if they have to hide in their homes from death squads and car bombs.”

The professional counterinsurgency community famously points out the unintended consequences of inadvertent noncombatant deaths resulting from U.S. kinetic operations, i.e., that they could negatively impact winning the hearts and minds of the population.  As we have discussed here before in our coverage of rules of engagement, Dunlap turns this on its head and forces us to ponder the fact that this notion can be carried too far and have the equivalent unintended effect of lack of security, thus losing the battle for the hearts of the people.

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