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Old 01-06-2007, 07:54 AM   #61
Dale F. Saran
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Bryan - I don't know if it's a sub rosa discussion of Iraq. My points were intellectual, practical, and personal. I agree "this" (Iraq) is not "that" (WWII). But when you cite to international legal norms and principles and say "the law says we cannot do this" and when Barry says "hey, maybe we ought to reexamine the premises underlying that law because maybe we ought to have some things on the table that today we don't" I have to give that some serious consideration. We resort to historical examples to ask "if the law says we cannot do this" then "why did we do it during WWII and it was okay then?" What's different?
It's the Socratic method from law school, brother, remember? We question and poke to try to understand the "real" principle and tease out where it ends and how far it can be stretched.
I referred to air and bombing because that discussion has been around for a long time and I've been on all sides of it - as an aviator, on the ground, and as a lawyer. Why is it murder for a guy to shoot ONE person but it's merely "tactical air campaign" when thousands are smoked. Is there a "tactical air campaign" exception to international law? (I'm only partly yanking your chain.) That's what I'm getting at - does this have some reference to current events - sure, but I'm not debating whether we should have gone into Iraq or not - I think we're beyond that discussion. But Barry has offered a reasonable question about the conduct of war and the law and morality of doing it (both generally and specifically, I thiink.)
I only noted I am involved with these questions very concretely (really, I'm not looking for any help on my case). I only wanted to point out that these academic discussions have very real actors and where the laws of war get "grayish" it obviously bears asking how efficacious and useful and real they are - or correct, either morally or legally. What some Navy LCdr, who is working on the Law of Military Ops powerpoint for the Senior Officer Course, thinks (we teach that here) bears very directly on events on the ground.
So, when I ask about Dresden, it is only because I am thinking, "if fire-bombing Dresden was allowable, why wouldn't having a platoon of snipers in Dresden at the same time picking off people have been allowable" - assuming it would have had the same moral impact we wanted. Or laying waste to it with artillery? Or tanks? Or car bombs? Does it change as we get closer? It would have cost far fewer lives and as the DC sniper killings illustrate - two guys can paralize a city.
I suppose I am trying to make a point that LtCol Dave Grossman makes in his book "On Killing" - perhaps our law is more offended by the single grunt killing individuals point blank rather than a guy playing videogame bomb-dropping from his B-52 or B-29, or B-1, simply because we have an innate understanding of the qualitiative emotional difference that it takes to kill someone from close up. Thus, maybe our discussions of international norms and such high principles are not so fixed as we say, because we seem to violate when the ends suit us without prosecution - a la Dresden, Sherman's March to the Sea, etc. - on the strategic level. If you cannot harmonize those decision within the principles you say are immutable, well, you've got a logical problem. And if that is true, then Barry's point is much more important than you're giving it credit for - and perhaps even humane in the long run. Maybe it even gets us more quickly out of war and to peace, where we can live more civilized under the law.
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Old 01-06-2007, 08:00 AM   #62
Elliot Royce
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Interjecting again, for anyone who says that the only thing we need to win in Iraq is to let our troops do anything we want, I would point to the German experience in the Balkans during WW II. They were effectively in the middle of a guerrilla civil war and in spite of using every method -- brutal and otherwise -- were unable to effectively pacify the region. Even if we leave aside the negative consequences of emulating the Nazis, I doubt their methods would work in any event.
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Old 01-06-2007, 08:28 AM   #63
Barry Cooper
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Let's take this tack. Let's compare war to free market economics. People who heavily favor free markets tend to favor relative deregulation. Now, it is a documentable fact that abuses will occur, but that on balance overall wealth production will increase.

Quotes like this make me very nervous: "What you are advocating is leaving all decisions to the subjective moral judgment of the guy on the scene with faith on your part that he will use good moral judgment and progress down the path of brutality only as far as necessary to achieve the assigned objective."

If we invert that, what you seem to be saying it you lack faith in that same guy. The fact of the matter is that "guy" is out there right now, making decisions. And what he is likely thinking is not just "how do I engage and kill the enemy", but "how hard am I willing to fight with the threat of jail time hanging over my head?"

We have two knowledgable attorneys here. Let me ask this: how many war crimes were prosecuted in the Civil War? How many, if any, soldiers put in jail? Maybe that is too early. How about in the Phillipines insurrection? Latin America in the 20's and 30's? WW2? Korea?

My guess is it's not until we get to Vietnam that we start seeing those prosecutions in any major way. Not coincidentally, that's also the first war in America history that by general consensus we lost. Technically, the South Vietnamese lost it, but they lost us. Because we left. We left because our soldiers were "baby killers", and because many were arguing it was just a war of national freedom. And it was expensive and a lot of people died.

Now, do you think there were no atrocities in those previous wars? Dale brings up a number of examples, but let me alter their context slightly.

It could be, and has been argued that in Vietnam we did the right thing in leaving. We never should have been there, we did the best we could, and particularly since there seemed to be a generalized collapse of morale and sense of mission, we were averting future atrocities, and ending current atrocities, by leaving.

I really like symbolic logic, so I'm going to oversimplify this point a bit, in the interest in expressing my view as clearly as I can. This view can be summarized as "we left Vietnam because it was the right thing to do." Many people were relieved, not just that our troops were out of harms way, but that the violence IN WHICH WE TOOK PART was over, and the moral ambiguity associated with that was gone. The "baby killers" were home, where they couldn't hurt anybody.

Now, in WW2, we won. During the course of achieving that victory, we some of the things Dale referenced above, and the necessity and morality of those actions has been debated ever since. Hiroshima. Dresden. And as far as that goes, both of those cases are simply well known examples of much larger offensives. We killed more people in firebombing attacks on mainland Japan than were killed in our nuclear attacks. We killed a LOT of Germans in other raids. The overwhelming bulk of our bombs missed. Dresden was simply an INTENTIONAL attack on a civilian target. Civilians were getting killed everywhere. Sort of like what happened in the Blitz.

In my view, it is infinitely better to win a war, then discuss the ethics of what was done to win, than to start with ethics, and risk the sacrifice of victory.

There have been a virtually unending number of negative psychological, and geopolitical consequences accruing from the loss in Vietnam. In absolute numbers that war doesn't even approach the amount of death and destruction that accrued from any other of the major conflicts of the 20th Century.

But it gave us Lt. Calley. Rather than placing him within a larger context of war, and the fact that in any sizable army there will be bad apples, the popular imagination of many has demonized the active, military exercise of military power abroad in any context. Many were saying that Iraq would be "another Vietnam" before we even invaded.

I've said this many times, but we did not lose in Vietnam. We forfeited. And we forfeited in no small measure due to ethical concerns. When the Norths invasion of the South created 1.3 million refugees--many of whom came here--and dislocated through collectivism another millions, that was in no small measure our fault.

And if you think about it, if we had persisted with our logic of resisting Communist take-overs of even small nations, had we been in position, we could have prevented the genocide in Cambodia--the "killing fields"--which would have been right both ethically, and geopolitically.

Speaking more generally, a principle disease of our times, in my view, is the stance of ironic detachment. It is really the stance that developed in Europe after WW1, but waited until after the Vietnam War to make major headway here.

It is an implicit rejection of relatively simple moral values like Patriotism and loyalty, character and honor. Even the arguments you are making above are being made from a legal perspective. Being enforcable, law is relatively impervious to irony, but law is still a human creation.

I call myself a hybrid rationalist, because I do have absolute values, but I don't overlay a rigid template on their content in advance.

Let's take a simple example.

Good intentions, bad outcome.

Bad intentions, good outcome.

Which is better and why? Let's assume for the sake of argument that we can agree on good and bad. Let's simplify it greatly, and say

Obedient to law, unsuccessful.

Not obedient to law, successful.

Which is better? We won in Germany with questionable methods. For the sake of this argument, let's say that Hiroshima and Dresden were both illegal. This is a moral, not a legal question.
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Old 01-06-2007, 12:20 PM   #64
Bryan Veis
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"Bryan - I don't know if it's a sub rosa discussion of Iraq. My points were intellectual, practical, and personal. I agree "this" (Iraq) is not "that" (WWII). But when you cite to international legal norms and principles and say "the law says we cannot do this" and when Barry says "hey, maybe we ought to reexamine the premises underlying that law because maybe we ought to have some things on the table that today we don't" I have to give that some serious consideration. We resort to historical examples to ask "if the law says we cannot do this" then "why did we do it during WWII and it was okay then?" What's different?"

Dale, we resort to historical examples when they illuminate present problems. I don't think, that Dresden, for example, does anything to illuminate present problems. First of all, I don't think there is a consensus; second, assuming, arguendo, that Dresden was acceptable, I don't think it tells us much about any of the situations we are likely to face today, i.e., I don't think analyzing the legality or morality of Dresden tells us anything about, say, the sniper-team example you posit.

"It's the Socratic method from law school, brother, remember? We question and poke to try to understand the "real" principle and tease out where it ends and how far it can be stretched.
I referred to air and bombing because that discussion has been around for a long time and I've been on all sides of it - as an aviator, on the ground, and as a lawyer. Why is it murder for a guy to shoot ONE person but it's merely "tactical air campaign" when thousands are smoked. Is there a "tactical air campaign" exception to international law? (I'm only partly yanking your chain.) That's what I'm getting at - does this have some reference to current events - sure, but I'm not debating whether we should have gone into Iraq or not - I think we're beyond that discussion."


What is the difference between Dresden and tactical air? Probably an element of discrimination in targeting. If you are providing efficient tac air, you're not wasting munitions on noncombatants. (Collateral casualties are presumably, then, really "collateral" and not part of the discussion.) Laying waste to an entire city (at least without 1907 Hague siege & bombardment warnings strikes me as different. (Dresden, by the way, also seems to have violated the religious-cultural destruction provisions of 1907 Hague.) Sure, at some point, tac air becomes strategic bombardment becomes indiscriminate area bombing. What is it that you think we get out of discussing that? (I'm a litigator -- I like general principles, but I'm most concerned with how they apply to the case before me.)

"But Barry has offered a reasonable question about the conduct of war and the law and morality of doing it (both generally and specifically, I thiink.)"

Barry asks fair questions. First of all, should a soldier be concerned with the morality of his actions? I think there is common agreement that he should. But that doesn't answer the question, "Whose morality?" That, I think, is where the law of war comes in. In the field, under stress and under fire, or in some situation room, isolated from other influences, one can rationalize anything as necessary and efficient to achieve an objective if one believes strongly enough in the objective. The various conventions sought to ameliorate at least the most severe consequences of that. It is certainly efficient to feed an army with what is closest at hand, but pillage is prohibited, for example. The laws of war do reflect general moral judgements among the signatories to the various conventions. (There is, however, a big vacuum to deal with when attempting to apply the standards to actions by nonsignatories; I don't think that we have space here to discuss that (and I also actually have a real job that requires me to do actual work from time to time).)

"I only noted I am involved with these questions very concretely (really, I'm not looking for any help on my case). I only wanted to point out that these academic discussions have very real actors and where the laws of war get "grayish" it obviously bears asking how efficacious and useful and real they are - or correct, either morally or legally. What some Navy LCdr, who is working on the Law of Military Ops powerpoint for the Senior Officer Course, thinks (we teach that here) bears very directly on events on the ground."

I appreciate very much that your tutelage of senior officers can have real world consequences.

"So, when I ask about Dresden, it is only because I am thinking, "if fire-bombing Dresden was allowable, why wouldn't having a platoon of snipers in Dresden at the same time picking off people have been allowable" - assuming it would have had the same moral impact we wanted. Or laying waste to it with artillery? Or tanks? Or car bombs? Does it change as we get closer? It would have cost far fewer lives and as the DC sniper killings illustrate - two guys can paralize a city."

As you already know, snipers (or "skirmishers" as they were known in the Civil War) have always been controversial. There's something "sneaky," "ungentlemanly," "unseemly," or "unfair" about their use. It's one of those dirty things that used to make generals uncomfortable, so that sniper training was often shut down between wars and other soldiers looked on them as some kind of sociopaths. I suppose there is an association of sniping with assassination. It seems, in any event, to be a special case -- everyone uses them, nobody likes them. At this point, I think their use is generally acceptable, at least as long as their targeting is acceptable. I do think that your team of snipers example is unrealistic -- in terms of an entire city, they are an inconvenience, not a threat. (I live in Virginia and work in DC; I frequent the Home Depot where one sniper victim was killed. While a few people, encouraged by the media, went into full panic mode, most of us simply went on with our lives, and the LE community did its job very well.)

"I suppose I am trying to make a point that LtCol Dave Grossman makes in his book "On Killing" - perhaps our law is more offended by the single grunt killing individuals point blank rather than a guy playing videogame bomb-dropping from his B-52 or B-29, or B-1, simply because we have an innate understanding of the qualitiative emotional difference that it takes to kill someone from close up."

I'm a big fan of Dr. Grossman; his insights are brilliant. I use things I have learned from On Killing when I teach self-defense classes to explain to students why they have such a hard time striking back and why they have to condition their minds to dehumanize their attacker. I agree that it is certainly easier to order or carry out the deaths of faceless masses than to stick a bayonet in a guy, even when you know that he wants to do the same to you.

"Thus, maybe our discussions of international norms and such high principles are not so fixed as we say, because we seem to violate when the ends suit us without prosecution - a la Dresden, Sherman's March to the Sea, etc. - on the strategic level."

Lack of prosecution does not necessarily make anything either "legal" or "moral," as we both know all too well. But your example of Sherman does bring another point to mind. You can find people in the South today, generations later, who still despise the name "Sherman." (To be fair, though, most of the looting by Union soldiers violated Sherman's order to his troops; you won't find a lot Southerners who believe that, though.) In my own family, I recall my grandmother's utter hatred for Germans, not because of World War II and the Nazis -- because Bismark forcibly annexed the provinces of Schleswig and Holstein from Denmark in 1870.

I suggest that in most cases, it is in our own self-interest to follow the laws of war as best we can. Unless one is willing to engage in genocide, the survivors of any war are likely to pass on their views of its conduct to succeeding generations. We are in Iraq to stabilize the country and, hopefully, to pass control over to a democratic and somewhat friendly government. It is in our interest to have some kind of good relations going forward. War is messy, but it seems to me that we should be treading somewhat carefully to avoid creating additional enemies. That's why what might appear as just being a little rough may have significant longterm consequences, not to mention providing grist for the enemy propaganda mill.

"If you cannot harmonize those decision within the principles you say are immutable, well, you've got a logical problem. And if that is true, then Barry's point is much more important than you're giving it credit for - and perhaps even humane in the long run. Maybe it even gets us more quickly out of war and to peace, where we can live more civilized under the law."

World War I was the "War to End All Wars." It didn't. I'm not so sure that I can accept the premise that a quick fix that violates my "immutable principles"*/ can, in fact, provide more than short-term relief. We need to be looking at the potential effect of actions in this war on what may happen in the next one.

*/ (Yeah, I know, only a lawyer would put a footnote in a post like this -- and a long one at that.) If I could find immutable principles in something like the law and morality of war, I wouldn't be toiling where I am -- I would have written a best-selling book and become a law professor and a well-paid talking head for CNN. I'm more than willing to accept that there can be no absolutes where survival is at stake. I do think, though, that a lot of public discourse in this area overstates the immediacy and magnitude of various threats and the efficacy of proposed solutions to them. (FWIW, I was in my office across the street from the Old Executive Office building on 9/11. Not being very smart, I went to work after seeing the smoke from the Pentagon and the mass of White House and OEOB workers already starting to evacuate. My wife thought I was a real dumbass that day for getting out of the car. The point, if there is one, being that I hope I don't have to hear about my inability to comprehend that "it's a different world now" -- it's not, we've just become aware of threats we didn't think about much before.)

"War is a continuation of politics by other means" not an end in itself; let's not forget the [international] politics part. As the saying goes, "when the only tool you've got is a hammer, every problem looks like a nail."

Barry,

"Let's take this tack. Let's compare war to free market economics. People who heavily favor free markets tend to favor relative deregulation. Now, it is a documentable fact that abuses will occur, but that on balance overall wealth production will increase."

If you want to argue in economic terms, then "total war" is essentially a struggle for monopoly power. Every society that has some kind of rule of law also has some kind of market regulation, if only some general prohibition on fraud. The society has to determine whether increase wealth production is its only or most important goal; I wouldn't presume that it is in all cases. Moreover, regulation can improve capital allocation, as, for example, the relative transparency of US securities markets and financial statements as compared to other countries'.

"Quotes like this make me very nervous: "What you are advocating is leaving all decisions to the subjective moral judgment of the guy on the scene with faith on your part that he will use good moral judgment and progress down the path of brutality only as far as necessary to achieve the assigned objective."

"If we invert that, what you seem to be saying it you lack faith in that same guy. The fact of the matter is that "guy" is out there right now, making decisions. And what he is likely thinking is not just "how do I engage and kill the enemy", but "how hard am I willing to fight with the threat of jail time hanging over my head?" "


Much as I sympathize with that guy, it makes me even more nervous to think that we might send people out with no guidelines as to what we expect. That was, by the way, one of the chief reasons for Japanese brutality toward American POW's in WW II -- the common soldier, for a number of cultural reasons, had no moral compass to guide his treatment of POW's (and internees). It's not just the survival of the guy holding the weapon that is at stake, it's also the international reputation of his country. The country is held responsible, even if the soldier isn't. You have to have some kind of standards, the question what they will be.

"We have two knowledgable attorneys here. Let me ask this: how many war crimes were prosecuted in the Civil War? How many, if any, soldiers put in jail? Maybe that is too early. How about in the Phillipines insurrection? Latin America in the 20's and 30's? WW2? Korea?"

Believe it or not, those questions don't come up in law school. I can tell you that none of the Hague or Geneva conventions were in effect during the Civil War, so the definition of "war crimes" would have been taken from some other source. Captain Henry Wirtz, the commanding officer of the Confederate prison of war camp at Andersonville, SC was hanged after the war for the maltreatment and murder of Union POW's.

"My guess is it's not until we get to Vietnam that we start seeing those prosecutions in any major way. Not coincidentally, that's also the first war in America history that by general consensus we lost. Technically, the South Vietnamese lost it, but they lost us. Because we left. We left because our soldiers were "baby killers", and because many were arguing it was just a war of national freedom. And it was expensive and a lot of people died."

I disagree with the statement we have bolded. Those who were students in their 20's during the Vietnam era tend to assume credit for enlightening the nation as to everything that was wrong with our involvement in Vietnam. I don't think many of them voted for Nixon, though, and he was the architect of withdrawal. I think that the decision to withdraw came about because he realized that was what was desired by the parents of the soldiers those students scorned. The "Greatest Generation," which knew a bit about war, came to a consensus that they didn't want to bury more of their children. Walter Cronkite helped with that, too, when he made his announcement that he could no longer support the war.

"Now, do you think there were no atrocities in those previous wars? Dale brings up a number of examples, but let me alter their context slightly."

Irrelevant, unless you are arguing that the "atrocities" had some essential role in ending them.

"It could be, and has been argued that in Vietnam we did the right thing in leaving. We never should have been there, we did the best we could, and particularly since there seemed to be a generalized collapse of morale and sense of mission, we were averting future atrocities, and ending current atrocities, by leaving.

I really like symbolic logic, so I'm going to oversimplify this point a bit, in the interest in expressing my view as clearly as I can. This view can be summarized as "we left Vietnam because it was the right thing to do." Many people were relieved, not just that our troops were out of harms way, but that the violence IN WHICH WE TOOK PART was over, and the moral ambiguity associated with that was gone. The "baby killers" were home, where they couldn't hurt anybody.

Now, in WW2, we won. During the course of achieving that victory, we some of the things Dale referenced above, and the necessity and morality of those actions has been debated ever since. Hiroshima. Dresden. And as far as that goes, both of those cases are simply well known examples of much larger offensives. We killed more people in firebombing attacks on mainland Japan than were killed in our nuclear attacks. We killed a LOT of Germans in other raids. The overwhelming bulk of our bombs missed. Dresden was simply an INTENTIONAL attack on a civilian target. Civilians were getting killed everywhere. Sort of like what happened in the Blitz.

In my view, it is infinitely better to win a war, then discuss the ethics of what was done to win, than to start with ethics, and risk the sacrifice of victory.

There have been a virtually unending number of negative psychological, and geopolitical consequences accruing from the loss in Vietnam. In absolute numbers that war doesn't even approach the amount of death and destruction that accrued from any other of the major conflicts of the 20th Century.

But it gave us Lt. Calley. Rather than placing him within a larger context of war, and the fact that in any sizable army there will be bad apples, the popular imagination of many has demonized the active, military exercise of military power abroad in any context. Many were saying that Iraq would be "another Vietnam" before we even invaded.

I've said this many times, but we did not lose in Vietnam. We forfeited. And we forfeited in no small measure due to ethical concerns. When the Norths invasion of the South created 1.3 million refugees--many of whom came here--and dislocated through collectivism another millions, that was in no small measure our fault.

And if you think about it, if we had persisted with our logic of resisting Communist take-overs of even small nations, had we been in position, we could have prevented the genocide in Cambodia--the "killing fields"--which would have been right both ethically, and geopolitically.


At this point, I'm not sure whether we are discussing Vietnam or legal/moral behavior in war. If it is Vietnam, then it should be a whole different thread. There are way too many independent variables in your argument to address them all. I think that you assume unreasonably that the United States could have succeeded at all of them if only we had kept our backbone. Douglas MacArthur once advised that we should never again become involved in a land war in Asia. We haven't done a very good job of heeding that advice, but he, more than almost anyone, had an appreciation of the immense complexity of conducting one.

Speaking more generally, a principle disease of our times, in my view, is the stance of ironic detachment. It is really the stance that developed in Europe after WW1, but waited until after the Vietnam War to make major headway here.

It is an implicit rejection of relatively simple moral values like Patriotism and loyalty, character and honor. Even the arguments you are making above are being made from a legal perspective. Being enforcable, law is relatively impervious to irony, but law is still a human creation.


If moral values were simple, people like us would not have to discuss them to the degree we are.

I call myself a hybrid rationalist, because I do have absolute values, but I don't overlay a rigid template on their content in advance.

Let's take a simple example.

Good intentions, bad outcome.

Bad intentions, good outcome.

Which is better and why? Let's assume for the sake of argument that we can agree on good and bad. Let's simplify it greatly, and say

Obedient to law, unsuccessful.

Not obedient to law, successful.

Which is better? We won in Germany with questionable methods. For the sake of this argument, let's say that Hiroshima and Dresden were both illegal. This is a moral, not a legal question.


First of all, you have to define "success." Winning WW II? Okay, we can agree on that, winning was good. At the same time, it was an exemplar of the kind of race to the moral bottom that total war can become. That's why there was an immediate reaction in the form of the Fourth Geneva Convention -- the participants knew that another war would eventually occur, but they didn't want to see the kind of horrors they had just experienced.

In any event, we don't have a world war right now, so before you can undertake moral weighing process, you have to know what you are weighing.

Somehow, you seem to have convinced yourself that the legalities don't or shouldn't matter. That's not really a choice -- the US is a signatory to the Geneva Conventions (except for one recent protocol, I think). We are bound by them. Perhaps they aren't literally "enforceable" against the preeminent military power in the world; is that really a basis to disregard them? It took a long time to bring some semblance of order to relations among nations, it's still a bit Hobbesian, but I suggest that the alternative would be far worse.

If or when we are at the point that we have to consider the Geneva Conventions some kind of international suicide pact, I could see your position having some merit. We are not there, though. We have a small professional military fighting far from home. I, like most, am very concerned for their welfare. (I hope your remarks about patriotism, loyalty, etc. were not intended as ad hominem remarks.) What we don't have is a major international conflagration requiring mobilization of all national resources in the war effort to assure our national survival.
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Old 01-06-2007, 12:29 PM   #65
Bryan Veis
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Elliot,

I agree completely. (And you are a model of conciseness, unlike *cough* some of us. :sorry:)
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Old 01-06-2007, 12:35 PM   #66
Dale F. Saran
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Da*n! I have an article written by a man who defended a Marine in Vietnam of a very heinous crime. The article was submitted for the Naval Law Review (which someone here handles) and the article was given to me. I understand it is being reworked and resubmitted. It is called "Reflections on Murder in War" and he makes some fascinating points that you touch on, Barry. In his youth (a baby boomer in the 50's), he says, young WWII vets "might speak of the brutalizing they did of the enemy, most often the 'Japs', an easier target of fear and loathing than the Germans" but that they didn't talk much. He says of WWII: "We didn't want to examine too closely what our fighters had done in the winning of that war. You didn't ask. They didn't tell." He goes on to note that "War criminals were japanese generals..." He then brings us forward to Vietnam and makes your point about the My Lai incident. This guy was then a Marine officer defending a young PFC for murder in Vietnam.
He distinguishes this in part by participation. In WWII a nation of 140 million sent 20 mill to the field. Iraq and Vietnam can't even compare - they are fought by the few and are not wars for our very survival as a nation. So, to answer your question Barry - I don't have numbers, but I'll bet damned few prosecutions happened of Americans for atrocities, murder, etc. Given that war's scope and Vietnam's or Iraq's, that's no statistical aberration - it's something else entirely. The author of this article (Ed Fogarty, I believe) says of murders committed in war "do not disturb this peace we struggle to maintain." I have no doubt that is in part why my grandfather, still alive, an infantryman who landed at Normandy and went to Berlin, has never spoken to me of his service. Ever.
As to your very simple question, I don't think you can boil it down that simplistically. But I feel like I'm being a weasel and ducking you. I'll think and have more later.
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Old 01-06-2007, 01:06 PM   #67
Bryan Veis
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Dale,

First, I'd love to read that article. Do you have it in electronic form?

Second, I think that part of the reason they didn't talk was a kind of remorse or guilt (nothing pejorative intended). Another part was simply a desire to forget some of the horrible things they saw. One of my uncles was a tank-mechanic-turned-medic (the ones with training as medics kept getting killed) with Patton. He was over 80 before he ever told his family that he was the first American soldier to enter one of the first satellite concentration camps that the Third Army encountered. He was "older and more mature" at the age of 35 or so, and they thought he could handle it better than the younger guys.
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Old 01-06-2007, 01:32 PM   #68
Aushion Chatman
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Barry,

Some great points...I have issue with your last few statements though.

Intentions don't boil down to laws...I think it's the other way around...and even in that case I don't think those statements mean the same thing. Bad intentions, good outcome I'd say can only come from two things (treading lightly) either Divine Intervention or Coincidence (whichever you believe in).

Not obedient to law, but successful however is something that can be calculated, planned, and executed. So I don't think those are that closely related...you could make the case that being disobedient to law is "bad intentions"...but I would argue that you can have good intentions ie looking ahead to your success outcome and still be "unlawful".

Bryan, this brings me to something you brought up in your latest post "Who's morality"...

My take is, law will be disregarded depending on the level of conviction the individual has. Like the guy who refuses to go to Iraq. So it's not that Barry has convinced himself that laws don't matter...(maybe he has), but I think it's just a truth that laws can be disregarded because your conviction or need for a particular outcome can trump written law. Then, if you're prosecuted, you deal with the consequences.
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Old 01-06-2007, 02:32 PM   #69
Bryan Veis
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Aushion,

"Bryan, this brings me to something you brought up in your latest post "Who's morality"...

My take is, law will be disregarded depending on the level of conviction the individual has. Like the guy who refuses to go to Iraq. So it's not that Barry has convinced himself that laws don't matter...(maybe he has), but I think it's just a truth that laws can be disregarded because your conviction or need for a particular outcome can trump written law. Then, if you're prosecuted, you deal with the consequences."


In isolated circumstances, that works -- kind of like Jack Bauer on "24." Desperate circumstances require desperate measures, if you will. Systematizing that is problematic, though. Some time ago a noted constitutional scholar, Alan Dershowitz, suggested that the United States should adopt legislation allowing the issuance of "torture warrants" to deal with terrorism. In the case of a "ticking time-bomb" the courts would issue such a warrant to allow the application of excruciating, but non-lethal, methods to extract information from suspected terrorists. I suppose that is the ultimate systematization. The discussions of the proposal got pretty animated.

Boiled down to its essence, the law of war as formalized in various conventions is a series of difficult-to-enforce promises that "no matter how desperate the circumstances, we won't do 'X' to your soldiers or civilians if you won't do 'X' to ours." There is, of course, a Prisoner's Dilemma" aspect to it, because the perceived route to victory might lead right through "X." Can we trust our adversary to keep that promise? Maybe it is in our best interest to break that promise first. Then again, maybe it will simply lead to reprisals, particularly if "X" does not lead to the anticipated success. If "X" is really bad, then maybe our allies will decide to withdraw their support.

Say, for example, I think we can all agree that beheading hostages is bad; certainly it violates the law of war as reflected in the currently effective international conventions. Our adversaries in Iraq do it. I can't fathom the reasons, but it is what it is. Perhaps they think that somehow a few beheadings will sap our will to fight; in reality, I think that the effect is the opposite.

Why don't we do the same then? After all, if they think it works on us, why shouldn't it work on them? We could simply grab a few folks off the street, or identify relatives of strategically important individuals and start slicing.

Would you go there? Why or why not? Practical reasons or principled reasons? Would you be willing to do it yourself? Would you be willing to order someone else to do it? Would you be willing to condone it if you didn't have anything to do with it? Would you prefer simply not finding out? (Of course, if it wasn't publicized, it probably wouldn't be very effectiv.) If we did it, would the few allies we have in Iraq react favorably? Would it lead to a further influx of foreigners or discourage them from coming?

The officer who has refused orders to go to Iraq appears to be engaging in classic "civil disobedience" a la Henry David Thoreau. He took his stand and is willing to take the consequences. We may disagree with his views, but he deserves credit for not, say, running off to Canada, as so many in my age cohort did.

The problem, though, is that Barry's proposal applied real life leads to the argument that all such violations should be excused, i.e., there should be no consequences. If soldiers are telling him that (as he inferred) they need to be left alone to do their job without all those pesky rules, then that seems to imply that they seek impunity for any and all violations so long as the are related to achieving some military objective. I think that would set a very dangerous precedent. Certainly, I favor some sort of "reasonable man" test in analyzing allegations of war crimes -- what would a reasonable soldier have done in those circumstances? (For those without legal training, this is actually a pretty permissive standard. It's not intended to facilitate armchair generalship or Monday morning quarterbacking.)

Barry seems to be arguing the defense of "necessity.." In extreme situations, you may be privileged to break the law to save your own or another's life. It is important, though, that the emergency is not of your own making. If you are lost in the wilderness and break into a cabin in order to obtain food and shelter, your desperate situation would be a defense against a charge of breaking and entering or of theft of food. (Hard to imagine that it would be prosecuted in the first place.) Homicide in defense of yourself or another is another example when necessity is a defense to a charge of murder. (Assuming the facts support the defense, of course.)

It seems to me, though, that the exception swallows the rule, when we get to a level of generality or ambiguity in his description of factors such as "good intentions" and "successful result."

(Message edited by Porkchop on January 06, 2007)
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Old 01-06-2007, 03:06 PM   #70
Barry Cooper
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Bryan,

If you could become convinced that were we to massacre an entire town in Iraq, level it, and redirect the stream that passed by it in another direction, that we could achieve victory, would you support it?

As an ancillary question: if you were to become convinced that our withdrawal from Iraq would lead to the deaths of 100,000 civilians in short order--those foolish enough to trust us, and attempt to make this government work--and that the destruction of that village was the only alternative, would your opinion change?

The comparison with the Germans in the Balkans is inaccurate. We are trying to get out of Iraq, and are not stealing their natural resources. The Germans were doing the precise opposite. As you well know, we have supported several elections.

In the real world, you dont' always get to eat your cake and keep it too. Things get messy, and laws are violated. I would hazard a guess there have been atrocities in the Phillipines, Korea (one of which I'm pretty sure IS documented, although no one was ever charged), WW2 and other conflicts, which would make Lt. Calley look like the model of moderation.

How many people were in Lidice? 1,000? There are about 3,500 Iraqis dying a month now.

I will tell you how I suspect guys like Calley were handled back when we won difficult wars. Depending on how tough things were, he was either promoted because he wasn't afraid to kill people--remember, wars are about killing people-- or he was pulled into a back office, chewed out, demoted, and tasked with digging latrines.

In the case of Vietnam, because what he did was stupid, the latter case should have applied. The same should have applied in Abu Ghraib. The pictures which got most of the Arab world mad enough to pick up guns, and rush to Iraq, were months old, and those responsible had, in my understanding, already been relieved of command, and were already being investigated. I'm sure somebody won some awards for that story, whose contribution to the war was that it made things much, much worse for our soldiers, and made our job much, much harder. But it was true at one time, even if it wasn't when the story finally came out.

Those pictures convinced large sections of the Iraqi public that we were trying to destroy and humiliate them. Who in their right mind can argue that has not directly cause the deaths of both Iraqis and Americans?

You keep avoiding my direct questions with the sorts of casuistry that tend to generate lawyer jokes. I understand that you are attempting to be precise, but the net effect, from my perspective, is moral vacuity hiding within the cloak of law. I hope that is a superficial and inaccurate impression on my part.

Let me ask you some more questions:

how far are you willing to go to achieve global victory in the ongoing war on terror? would you be willing to countenance ANY breaking of laws anywhere?

Would you support unilateral actions in Iran and Syria, contrary to international law? How about Pakistan?

I will be honest. I understand the need for laws, and for consequences if the laws are broken. All the same, if I were a commander on the field, I would do absolutely everything in my power to torture the law into supporting what I wanted to do, and flat out ignore it if I had to, with the understanding that people not out fighting, who don't seem to feel the same sense of urgency with respect to winning I do, might throw me in jail, despite everything.

I really do think military life has long been like 24, at least in the field, beyond direct scrutiny. Sherman was an SOB that many thought was mentally ill. But you know what country Georgia is in, regardless of what they think of Sherman? The United States.

I don't know what the situation on the ground is, but given that we are losing on at least one front of the war, excessive concern about legalities--which I have no doubt is hardly localized to you--amounts in my view to passive aggressive resistance to the war as a whole.

Do you want us to win in Iraq? I assume the unambiguous answer is yes, or else it would obviously be provocative asking it, but I would just like to double check.
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