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Old 01-05-2007, 03:14 AM   #41
Aushion Chatman
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Neal,

Get it...you can talk generalities, but I still think it's unfair to lump all warriors from any nation or time into the same group if you're going to deem them mindless...I know you didn't outright say "mindless" but that's how it came out.

Again the bottom line for the original question, soldiers should and do have concern/opinions on politics and morals...the article that's been posted in this thread about that 1st LT proves that.

Unfortunately things break down when you have for lack of a more fitting term coming to my mind "dissent" in your troops. That's a huge morale killer.

Barry,

You and Bryan are having a classic one here...but I will say that I believe there is rage involved with gun play. Less personal, still a human's life.
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Old 01-05-2007, 07:03 AM   #42
Barry Cooper
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Bryan,

I think we're in agreement that the rules of war, as they've developed, are pragmatic in the sense that not following them tends to create MORE violence, not less. However, according to my understanding of history, the last large scale counter-insurgency that we won was in the Phillipines, and Pershing was not gentle, nor did he follow classic rules of conduct.

Here is a link, the first I've posted in a while, so hopefully I do this correctly. It describes the manner of execution of a number of Islamic Terrorists, and I would not show it to my kids, but would not think it would be a problem at work.

http://mysite.verizon.net/jialpert/P...s/Pershing.htm

It is no doubt the case that civizations are built on the basis of shared, enforced laws. Laws are in fact vehicles for liberty, in that they restrain others who would restrict our liberties.

At the same time, we need to recognize the limits of what law can do, and its' proper place. Any time you have extremely chaotic situations, no law can have any effective force until approximate order is brought about by any means necessary.

In my understanding, Lincoln suspended the writ of habeas corpus during the Civil War, which in my understanding effectively meant that Union troops or authorized police personnel could snatch essentially anybody off the street, and their families wouldn't have any idea what happened or where they were. That happened here, in this country.

Was the value of law increased in So. Vietnam or decreased in the transition from the chaos of war, to the "peace" of defeat? If we establish a criterion for our actions of "increasing the net value of law in a region", then there may be cases where that goal necessitates short term decreases in law.

As in everything, success matters. If you argue that the end justifies the means, then you need to accomplish the end, or your argument is nullified. If you argue that no end can justify certain means, then it is essential that the outcome not be worse than the means you rejected, or else, in my view, you are morally complicit in that outcome, if the means that were rejected could have made a substantial contribution to a different outcome. That is really the question here, and I can't claim to know the answer.

I will say that any time we abandon allies, and they are killed, we bear a responsibility. We have on a number of occasions in the last half century abandoned allies to fates we would never have accepted for Americans on American soil.

I went back and read an account of My Lai, and realized I had forgotten a number of details. The only thing I can say is that--over and above the obvious fact that that slaughter was morally reprehensible--is that it was militarily incompetent. It moved us farther from our goal, not closer.

As I stated above, I think in general, strictly from a military perspective, our rules of engagement support victory in the field. Sun Tzu wrote about this.

At the same time, I have to say I'm just very uncomfortable with notions of absolute law in war, particularly when those laws are being interpreted and at least theoretically enforced by other nations. Law is at all times subjective. We have evolved procedures for reducing the role of individual bias, but no human can remove the condition of being human from their judgements. I have been studying the decision of the Supreme Court over the last 60 years or so, and it honestly surprised me how far they have deviated from constitutionally supportable opinions. And they are American. I can only guess what law as practiced by nations with axes to grind would look like.

I think if we have to have a principle as to how soldiers should approach orders, then it should be they should follow legal orders. If the orders are illegal, they should do whatever the rules indicate they should do in that circumstance, which as indicated above appears to be to follow them, then report the violation to superior officers. If it were me, and I thought the orders wrong, I would refuse to follow them. However, I would also accept the consequences, which might include court-martial or even death.

Aushion,

Yes, I'm probably making an artificial distinction. It's one that theoretically could apply, but likely fails constantly in the real world.
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Old 01-05-2007, 07:58 AM   #43
Dale F. Saran
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Gents,
Mssrs Cooper and Veis, specifically, I want to say thank you both for your thoughts. They help me. I am currently an instructor at the Naval Justice School in Newport. I was recalled to active duty and stashed here to defend some of the cases you mention. So, for me, this is more than an academic exercise - it bears very directly on my client(s)' liberty and life. Bryan, the points Barry makes are more compelling than I think you have given them credit for, although your post is an excellent answer to the problems, although perhaps more academic, while barry's points I think are pragmatic (in other words, if I read correctly, I think he would agree w/ you in principle). Let me add something very concrete that may liven up the debate:
In Iraq, during the battle for Fallujah, the ROE were changed. We created a legal fiction (I believe) - we surrounded the city and said "all good people, please leave." And the refugees streamed out. Then we said: "anyone who stays is a bad guy." And the ROE were changed to reflect this - i.e. it became, in the parlance of a previous war, a "free fire zone" (mostly). I was also a Cobra pilot early in my career and we still have FFAs - the Fire Support Coordinator puts them on the overlay and we go in there like the vengeance of god with Hellfire, 20mm, and 2.75" FFARs and lay waste to anything that moves. BUt do we really believe that only bad guys stayed and all the helpless, infirm, and others left?
So, what happens to a LCpl who was in Fallujah for that action and then comes back for his 2nd or third deployment and he is now asked to be a cop, rather than a messenger of death? What happens, as Barry points out, when the local populace is providing aid and comfort to the IED planters? Are they not legitimate targets? Add one more thing to the mix - everyone knows we schwacked Abu Musab Al-Zarqawi. The video clips we all saw show he doesn't even know how to handle a weapon. I doubt he himself ever was an actual terrorist trigger-puller. He certainly directed, aided, abetted, etc.
He was also not alone at the time. Someone made the deicsion that was acceptable "collateral damage". I do not believe charges were ever considered. Why is it that a squad of Marines, soldiers, Team Guys, or whomever, who grab a suspected terrorist, now are "murderers". Is it because they didn't have the political sanction of the Prez? Units are operating waaayyy out front and alone with nothing more than a LT making the calls. If the LT says "get that dude" (and I make no claims that is what happened in this case or any of them - I'm simply asking the question) how does the young Marine know whether that order is "lawful" or "unlawful" or "moral" or "immoral"? And if he guesses wrong either way, he faces jail time.
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Old 01-05-2007, 08:03 AM   #44
Dale F. Saran
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Barry, you beat me to post. I have to run now, but I look forward to this discussion. Neal, I don't think you went over the line and I appreciated the start. You always start interesting threads, even the dangerous ones. I for one enjoy that about this community. I get my fitness and philosophy fix all together.
David and Lynne will keep us on the right side of the line, I am certain.
Have to run and file something in one of these cases and then teach, my regards to you all. I look forward to reading what you have to say.

Semper Fidelis,
Dale
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Old 01-05-2007, 08:37 AM   #45
Elliot Royce
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Well, no one can say that Crossfitters are all body and no brain. I, for one, am impressed with the thoughtful information contributed in the second half of the posts. Opinion is interesting, but more useful with supporting arguments and real life experience as Barry, Bryan and Dale have done.
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Old 01-05-2007, 09:00 AM   #46
Blair Robert Lowe
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Hey Lynn, I only remembered 2 of the 3 points of linking urls. I, actually remembered the subject matter when I saw a post of yours delineating the 3 points of posting urls. It seems there is an editing time limit. That and the 3 points are groggy in my mind waking up. Guess, I'm gonna have to go look those up somewhere.
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Old 01-05-2007, 11:33 AM   #47
Aushion Chatman
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So Barry you're a subjectivist? I don't feel that all law is subjective. Although this is such a basic tenet to our make-up as humans we won't ever convince each other otherwise. Because I feel like this eventually will lead to a religious-type conversation I should stop there.

But I do feel there are unsubjective laws that make sense, but do agree that some laws are subjective (due to the way they are stated) or just plan bad law, which doesn't matter if it's subjective or not, it's just wrong.

I'm probably just not smart enough, but I don't understand why the judicial system is set up to "interpret" the laws. This is the biggest thing that throws my thoughts that laws aren't subjective right in my face. How can anything be black and white if it needs to be interpreted? I don't think that's a failure of the nature of law, but a generic lamentable piece of being a human generated system.

I think the difference during conflict/war is that people aren't going to fall back on law in the heat of the moment anyway, they're going to fall back on their values, desires, and inner-strength to intentionally do what they feel is right if they're convicted, or to do what they want to do if they are governed by personal gratifications.
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Old 01-05-2007, 12:02 PM   #48
Dale F. Saran
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Aush,
A good read for you might be some of Ronald Dworkin's stuff. he wrote one back in the 80's I think called "Law's Empire." It is a long but very worthwhile read on "interpretation". He argues, very convincingly (imo), that interpretation happens all the time, at all levels. He uses art critique as a running analogy and it's very helpful. It does not mean, however, that there is no such thing as black and white. It just means that when we get further and further from "core" black and "core" white, we're interpreting. (I don't want to go nuts with this, but we may even be interpreting at the core level.) I think the answer would be, if we can agree that we're interpreting as we move away from the core of what's written, can we agree on the rules for interpretation? THAT's where the fun begins. And that's what dworkins book is about (if I can be allowed to so badly reduce that tome to two sentences.)

Barry's and Brian's post actually reveal this conflict very nicely about the Geneva Conventions and Nuremburg. Look and see if you can spot it. For anyone who wants to debate this offline, I believe my email is on my profile.
Regards to all of you.
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Old 01-05-2007, 12:04 PM   #49
Bryan Veis
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Barry,

"However, according to my understanding of history, the last large scale counter-insurgency that we won was in the Phillipines, and Pershing was not gentle, nor did he follow classic rules of conduct."

The Marines spent a lot of time in Latin America in the 1920's and '30's. In the Phillipines, Americans did a lot of things that would be impossible today, including threatening the Islamic insurgents/terrorists/freedom fighters with execution involving pork products (and the consequent loss of a place in heaven -- just imagine how that would play on Al Jazeera). The British conducted a very successful and fairly large counterinsurgency in the jungles of Malaya in the 1950's, by the way.


"In my understanding, Lincoln suspended the writ of habeas corpus during the Civil War, which in my understanding effectively meant that Union troops or authorized police personnel could snatch essentially anybody off the street, and their families wouldn't have any idea what happened or where they were. That happened here, in this country."

He did, and you can find a good deal of discussion of the legalities of that suspension on a number of legal blogs. It comes up fairly often in discussions of various civil liberties topics related to the war on terror. There's way too much to the subject to discuss here.

"If we establish a criterion for our actions of "increasing the net value of law in a region", then there may be cases where that goal necessitates short term decreases in law."

Fair enough, but that can easily lead to the now-classic, "We had to destroy the village in order to save it" situation.

"As in everything, success matters. If you argue that the end justifies the means, then you need to accomplish the end, or your argument is nullified. If you argue that no end can justify certain means, then it is essential that the outcome not be worse than the means you rejected, or else, in my view, you are morally complicit in that outcome, if the means that were rejected could have made a substantial contribution to a different outcome. That is really the question here, and I can't claim to know the answer."

Nor can I. There are, however, a number of additional questions that have to be asked about both the means and the end: Is the end justifiable? Is the end achievable under any set of circumstances? Can this means possibly achieve the end? This discussion has morphed well beyond my original points to Neal in response to his concentration camp guard question, and I'm not sure whether this is the right place to have the discussion. It seems to be moving toward a discussion of the rights and wrongs (or wisdom or lack of it) of the present war in Iraq both in its inception and its conduct. It wasn't my intention to start that discussion here.

"I went back and read an account of My Lai, and realized I had forgotten a number of details. The only thing I can say is that--over and above the obvious fact that that slaughter was morally reprehensible--is that it was militarily incompetent. It moved us farther from our goal, not closer."

That is exactly right as to both the home front and the real front. Again, the dilemma of counterinsurgency operations.

"As I stated above, I think in general, strictly from a military perspective, our rules of engagement support victory in the field. Sun Tzu wrote about this."

I don't think it is controversial for me to agree with you and suggest that if there is no acceptable set of rules of engagement that support victory in the field, one should get off the field.

"At the same time, I have to say I'm just very uncomfortable with notions of absolute law in war, particularly when those laws are being interpreted and at least theoretically enforced by other nations. Law is at all times subjective. We have evolved procedures for reducing the role of individual bias, but no human can remove the condition of being human from their judgements. I have been studying the decision of the Supreme Court over the last 60 years or so, and it honestly surprised me how far they have deviated from constitutionally supportable opinions. And they are American. I can only guess what law as practiced by nations with axes to grind would look like."

No one said that this was easy or that there weren't gray areas. This may not be the place to get into long discussions of US constitutional law. You may, however, be interested in a legal blog that discusses these matters a great deal, www.volokh.com . It is run by a law professor from UCLA with contributions from an interesting variety of legal scholars. (Work and family safe, unless you are married to another lawyer as I am, in which case the discussions can become very dangerous to a relationship.:dunno:)

"I think if we have to have a principle as to how soldiers should approach orders, then it should be they should follow legal orders. If the orders are illegal, they should do whatever the rules indicate they should do in that circumstance, which as indicated above appears to be to follow them, then report the violation to superior officers. If it were me, and I thought the orders wrong, I would refuse to follow them. However, I would also accept the consequences, which might include court-martial or even death."

That is, essentially, what every US serviceman and -woman is taught to do. Admittedly, however, it is easier said than done.

Dale,

"Mssrs Cooper and Veis, specifically, I want to say thank you both for your thoughts. They help me. I am currently an instructor at the Naval Justice School in Newport. I was recalled to active duty and stashed here to defend some of the cases you mention. So, for me, this is more than an academic exercise - it bears very directly on my client(s)' liberty and life. Bryan, the points Barry makes are more compelling than I think you have given them credit for, although your post is an excellent answer to the problems, although perhaps more academic, while barry's points I think are pragmatic (in other words, if I read correctly, I think he would agree w/ you in principle)."

First, you're welcome. Then: Ah, lovely Newport -- I went through OCS there back in the '70's before they decided to send all OC's to the tropics with the brownshoes. It was just wonderful standing in the rain in February in a not very waterproof raincoat that dated back to 1948 and wool working blues that stank to high heaven when wet. I'm certain that it's changed some, but I recall with some fondness stuffed quahogs, the Paradise Lunch, Captain Jack's, and, of course, The Datum (the JO club at the time -- is it still there?).

Interestingly (or not:msn-wink:) we had both Saudi and Iranian trainees going through with us. We all liked the Iranians a lot better than the Saudis; even though they were already commissioned, they lived in our barracks, wore OC uni's, and went through all our training with us, but the Saudis insisted in living in the BOQ and living the high life (as best one can in Newport). To be fair, there were a couple nice guys in the Saudi contingent, but overall not so much. I often wonder how the Iranian officers fared after the Shah was overthrown.

I don't view this as an academic matter at all, contrary to the impression I seem to have given. I do think that we often fail to look through the Clausewitzian lens at war as the continuation of politics by other means; we overlook the longterm consequences of short-term expedience. This is, and will continue to be, a particularly vexing problem in the age of instantaneous communications. I sympathize with you and your clients. It is easier to have these discussions than it is to make decisions when someone is shooting at you.

At the same time, it is important to realize that what we have here is a battle in the larger war for hearts and minds. What happens in Fallujah reverberates throughout the Islamic world and beyond. There are a lot of things that would be expedient, but they still may not be in our longterm interest. We can win the battle and still lose the war.

As to the particulars of the Geneva Conventions and their applications, I think that there are at least two overarching issues. First, internally, when we start unilaterally carving out exceptions for ourselves, it is easier to move down that slippery slope with each new exception. (It is also, by the way, specifically forbidden for a high contracting party to absolve itself of its Geneva Convention obligations, unless, presumably, it withdraws completely from the Conventions in accordance with their withdrawal provisions.) Second, regardless of our (US) present economic and military power, we still have only roughly five percent of the world's population. When the pool of potential adversaries (Muslims generally) is IIRC 1.8 billion as against our 300 million or so, it might be prudent to consider at least, how our actions are going to play in Peoria, Pakistan (sorry, I really like alliteration) before we undertake them. We're already up to our in alligators -- do we want to make the swamp bigger? In some cases, that is exactly what has happened, for example, the Abu Ghraib photos. In that case, it was rogue behavior, but in others it seems to have come from the top. These are all judgment calls, but exercising judgment requires knowledge and consideration of facts. Wars of attrition generally favor the side with the greatest population.

"Let me add something very concrete that may liven up the debate: In Iraq, during the battle for Fallujah, the ROE were changed. We created a legal fiction (I believe) - we surrounded the city and said "all good people, please leave." And the refugees streamed out. Then we said: "anyone who stays is a bad guy." And the ROE were changed to reflect this - i.e. it became, in the parlance of a previous war, a "free fire zone" (mostly). I was also a Cobra pilot early in my career and we still have FFAs - the Fire Support Coordinator puts them on the overlay and we go in there like the vengeance of god with Hellfire, 20mm, and 2.75" FFARs and lay waste to anything that moves. BUt do we really believe that only bad guys stayed and all the helpless, infirm, and others left?"

I don't really know the answer to that; I wish I did. It appears to be at least an attempt to comply with the siege and bombardment provisions of the 1907 Hague Convention and various other provisions of the Fourth Convention of 1949. At least below the command level, I think one can argue good faith reliance on orders, because unlike the concentration camp guard, this is not plainly wrong. Does a free fire zone amount to a declaration that no quarter will be given? (Prohibited by Hague 1907) Well, it is in a way, but I think not.

"So, what happens to a LCpl who was in Fallujah for that action and then comes back for his 2nd or third deployment and he is now asked to be a cop, rather than a messenger of death?" Perhaps equally important, how do we expect the local populace to react to that LCpl's presence?

"What happens, as Barry points out, when the local populace is providing aid and comfort to the IED planters? Are they not legitimate targets?"

I really shouldn't do this, but . . . The Fourth Geneva Convention (treatment of civilians) does address this:

Art. 68. Protected persons who commit an offence which is solely intended to harm the Occupying Power, but which does not constitute an attempt on the life or limb of members of the occupying forces or administration, nor a grave collective danger, nor seriously damage the property of the occupying forces or administration or the installations used by them, shall be liable to internment or simple imprisonment, provided the duration of such internment or imprisonment is proportionate to the offence committed.

Furthermore, internment or imprisonment shall, for such offences, be the only measure adopted for depriving protected persons of liberty. The courts provided for under Article 66 of the present Convention may at their discretion convert a sentence of imprisonment to one of internment for the same period.

The penal provisions promulgated by the Occupying Power in accordance with Articles 64 and 65 may impose the death penalty on a protected person only in cases where the person is guilty of espionage, of serious acts of sabotage against the military installations of the Occupying Power or of intentional offences which have caused the death of one or more persons, provided that such offences were punishable by death under the law of the occupied territory in force before the occupation began.

The death penalty may not be pronounced on a protected person unless the attention of the court has been particularly called to the fact that since the accused is not a national of the Occupying Power, he is not bound to it by any duty of allegiance.

In any case, the death penalty may not be pronounced on a protected person who was under eighteen years of age at the time of the offence.


Me again -- I think it depends on the kind of aid and comfort -- is it making sandwiches and providing blankets or running C4 between bombmakers and keeping a lookout for US patrols?

"Add one more thing to the mix - everyone knows we schwacked Abu Musab Al-Zarqawi. The video clips we all saw show he doesn't even know how to handle a weapon. I doubt he himself ever was an actual terrorist trigger-puller. He certainly directed, aided, abetted, etc. He was also not alone at the time. Someone made the deicsion that was acceptable "collateral damage". I do not believe charges were ever considered."

Interesting question, but I think the answer under the Geneva Conventions is that he was never a "protected person." He was the leader of and surrounded by an armed group engaged in hostilities. In addition, he was not a citizen of the occupied territory (Iraq) - he was Jordanian. An imperfect analogy would be mortaring a command post where the commanding officer is not wearing his pistol and can't shoot very well anyway -- war crime? I think not.

"Why is it that a squad of Marines, soldiers, Team Guys, or whomever, who grab a suspected terrorist, now are "murderers". Is it because they didn't have the political sanction of the Prez? Units are operating waaayyy out front and alone with nothing more than a LT making the calls. If the LT says "get that dude" (and I make no claims that is what happened in this case or any of them - I'm simply asking the question) how does the young Marine know whether that order is "lawful" or "unlawful" or "moral" or "immoral"? And if he guesses wrong either way, he faces jail time."

Now that sounds a lot like a very case-specific question, and I have no idea what the facts might be. If a legitimate suspect did not lay down his arms and attempted to flee or if he resisted in some way that appeared to threaten deadly harm, then I'd say there's no case against the Marines. It may be more complicated with the Lieutenant, because there is the question why the LT said "Get him." There may be any number of good or bad reasons for that decision. Good luck.

(Message edited by Porkchop on January 05, 2007)
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Old 01-05-2007, 12:40 PM   #50
Dale F. Saran
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Bryan - Thank you. Upon re-read, I hope I did not offer offense. I do not believe your thoughts are "merely academic" - they are great and thanks for the cite to Geneva. (I don't mind at all!) Newport is, to quote David Byrne, "same as it ever was."

More importantly, I believe we have thoroughly hijacked Neal's post and innocent Socratic use of the "Nazi camp guards" analogy (which as a Marine, did not offend me at all. I got what you meant. It also helps I've read your stuff before.)

So, for now, I bid you all adieu. Have to go to Gym 109 to get in my 5x5 presses!!
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