Tuesday, February 12, 2013

Well that's an odd turn...

Not the childish asking if I'm obtuse part... it's not as common from Gene, but it happens. I mean his willingness to take up the Rumsfeld/Bush line on how critical uniforms are for treating soldiers like soldiers:
"Jesus, are you being deliberately obtuse? If some guy is out in a Confederate (or German or whatever) uniform shooting at our tropps we can pretty much assume he is an enemy combatant. But some guy who wears no uniform, does no fighting and of whom it is merely *alleged* that he channels some funds to Al Qaeda?"
Now is it harder to identify non-uniformed soldiers? Of course it is. That's why we don't just rely on allegations - we investigate and use intelligence. This standard of putting uniformed soldiers in a separate class sets a dangerous precedent, I think. That's precisely what the Bush administration invoked to deny Geneva protections to captured terrorists. They weren't criminals on American soil... they weren't uniformed soldiers, so they decided they could arbitrarily make up the rules!

Gene isn't proposing this here, but I think the convenient invocation of "now they're soldiers, now they're not" - soldiers when Bush puts them into Guantanamo, not soldiers when Obama tries to fight them - is troubling. It seems to me that al Qaeda and Taliban members are clearly soldiers in a war with the United States. They are harder to identify requiring necessary precautions. If you disagree we really shouldn't be sending the military in, period. If you agree then we should not be questioning whether the military has the authority to use lethal force against them. But we can't make these determinations arbitrarily.

This is what Tom Pfanner, editor in chief of the International Review of the Red Cross, had to say about the subject of uniforms in the war on terror in 2004, immediately after criticizing the Bush administration for taking Gene's position that a uniform is the critical factor in separating combatants from non-combatants (emphasis is mine):
"This is not the place to establish whether the Taliban soldiers failed to wear uniforms or other distinctive signs recognizable at a distance and whether they did or did not distinguish themselves from the civilian population. Suffice it to say that in practical terms the distinction between the Taliban forces and civilian Afghans does not seem to have been a general problem for the players engaged in the military confrontation between the United States and Afghanistan, even though the problem did arise occasionally and certainly more and more frequently after the dissolution of the Taliban forces. On the other hand, the Taliban forces certainly were not standard armed forces and did not wear clothing that resembled traditional military uniforms. From a standpoint of humanitarian law, and for the sake of the civilian population, it is the overall requirement of distinction between military and civilian which is important, and not a rather formal element that can, however, greatly facilitate the distinction."
Gene talks about "channeling some funds". Has anyone been targeted just for raising funds (targeted, not prosecuted - certainly fundraising for terrorists merits prosecution)? That does not seem possible to construe as a combatant to me and in that particular case I would be on his side. But of course that has nothing to do with the case of al Awlaki or anyone else I'm aware of (please let me know if there are cases in the comment section so I can specifically identify my opposition to those strikes). Certainly some of these guys were probably also fund-raisers, but fund-raising in addition to playing an operational role doesn't quite get you off the hook! If it did, the SS would have held bake sales as they made their way through Poland.

The ambiguity of these questions reinforces why habeas corpus rights and compliance with the Geneva conventions for prisoners of war are so important (how we deal with a domestic affiliate that the FBI picks up and conclusively links to al Qaeda is something I'll leave to the lawyers - I honestly don't know whether they ought to fall under Geneva or our criminal law). Of course it is tough when your enemy doesn't wear uniforms, and you want to have as many safety valves on that process as you can.

But to make the leap of saying that these sorts of irregular forces are not enemy forces is first and foremost unjustified, but it also opens the door to their arbitrary treatment, as we see with people who want to treat them like soldiers when Bush is president but like something else when Obama is. Irregular forces are, well, they're irregular. But they're still enemy forces.

If we aren't prepared to deal with that we shouldn't be at war. If we genuinely think these guys all should be tried criminally and have a judge rule on their fate rather than a general, we shouldn't be at war. We shouldn't be applying the fifth amendment arbitrarily to citizens but not non-citizens and we shouldn't migrate around with how we classify them.


  1. At this point you ought to be asking yourself what is the history and the original reasoning behind the whole uniform vs. no uniform distinction? As I am sure you are aware it is part of a set of conventions (both as a matter of treaty and as the result of custom) associated the concept of jus in bello. However, these legal restraints are invariably used by the victors of any conflict to prosecute the vanquished far more often than merit out punishments to the former for the obvious reason that a victor can never really be counted on to be a neutral party (the aftermath of WWII is a fine example of this - consider the explicit decision to forgo any discussion of Allied war crimes during the Nuremberg trials for example). Similarly there are prolly instances in the current so-called War on Terror where "coalition forces" have not worn their uniforms (one can think of elite units engaged in operations behind enemy lines where that might be the case - Allied personnel did similar for example during WWII in the Balkans, in France, etc.). Indeed, one could very well make a strong case that the actions associated with killing bin Laden were illegal acts by the U.S. government - yet no one will ever be prosecuted for such.

    So let's stop pretending that the whole uniform vs. no-uniform distinction is one with heavy existential baggage - the rule in question is an effort to restrain what all combatants do for what look like fairly sound reasons, but that is all that it is. And it will not be honored by the parties to any convention when the need arises to violate it unless there is some really immediate negative downside to such; and the victors in any war will certainly not go out of their way to prosecute those on the winning side who violate such.

    1. Right, my whole point is that it does not have heavy existential baggage and should not be loaded up with that kind of baggage. You get very perverse results from that.

      I take the prosecution of war crimes extremely seriously, and while I'm obviously not privy to all of this I'd suspect we do a much better job today on that sort of thing than we used to. My grandad was a JAG officer in Vietnam and did investigate these problems there. He never told me about it for the longest time (it has come up here and there in more recent years), but my mom definitely did, and made sure I knew about the sort of professionalism in the military my grandad stood for. I could not agree with you more on restraining victorious and losing powers alike.

  2. Dan,

    Could you please start deleting low information comments, like the one above

    This dude suffers badly with confusing the familiar with the necessary. One doesn't give choices or options to an enemy. Had we told Hilter, we won't bomb your troops if they don't wear uniforms, his troops would have taken off their shirts.

    The reason why we didn't try US for war crimes after WWII is that we didn't commit any.

    On the other hand every German above the age of responsibility was a War Criminal for they all knowingly aided and assisted the Holocaust and the war against Poland and Russia.

    Our fire bombings and other attacks on civilians found ample justification in the evilness of the entire German society.

    1. I only delete offensive comments that have no substance at all. Some offensiveness with substance I usually handle with a light touch. Comments aren't deleted just because someone thinks it's wrong.

      If I did that I'd have no comments. Everyone thinks someone makes a worthless contribution to the discussion.

      Anyway I'm not sure what the big problem with the prior comment is anyway.

    2. Daniel, below someone charges that Russia committed War Crimes in WII. This charge permits a reframing of the question which will show the errors in your thinking about evil, killing with drones, etc.

      Let us just assume that the the writer actually knew about WWII and was referring to, for example, Russian treatment of Polish soldiers.

      Now, the question I would ask is this, if the events too place as most of us believe happened, was this a war crime or was this the natural result of the failure of Poland to exercise self defense, as soon a Hitler came to power in the late 20s and early 30s?

      IOW, wasn't Poland being punished for not having earlier exercised the right of self-defense.

      Let us take an example of two people who exercised self-defense and gave us the modern world: Henry VIII who did away with Thomas More and Elizabeth who offed Mary.

      These acts ended evil, avoiding long drawn out wars.

      The Polish Government in the 1920s and early 1930s should have assassinated Hitler. It failed to do such. A Henry or an Elizabeth would have. Because it failed to act in self-defense, Poland and the Polish people suffered as they should have.

      The long lesson of History is that the sooner one eliminates evil, the better. Everyone draws the wrong lessons about the 20th Century. The evils of the 20th century weren't born out of totalitarianism; they were born out of tolerance and concern for due process, or appearances.

      I will end with another example. Abraham Lincoln ordered and the Union Army carried out executions of Confederate prisoners without trials or charges. Prisoners were drawn by lot and executed in retaliation for murders of Union prisoners by Confederates. The retaliation worked.

      In sum, life is a nasty, brutal ugly affair because their is evil in the World.

    3. Alexander Hamilton,

      So, in your way of looking at things the Soviet massacre of Polish officers, etc. in the Katyn Forest was not a war crime?

      "IOW, wasn't Poland being punished for not having earlier exercised the right of self-defense."

      Frankly this sort of so-called reasoning would justify any act of hostility by any party either at a national or an individual level.

    4. Alexander Hamilton,

      "Let us take an example of two people who exercised self-defense and gave us the modern world: Henry VIII who did away with Thomas More and Elizabeth who offed Mary.

      These acts ended evil, avoiding long drawn out wars."

      What was the "evil" of Thomas More? That he was a Catholic in an English state which had been stripped of rule of its churches from Rome and instead adopted caesaropapism? And the evil of Mary? That she represented a challenge via her bloodline to Elizabeth's place on the English crown?

      Well, the murder of Thomas More did not end the religious turmoil in the British isles; indeed, all the efforts to tamp down on such by English monarchs after Henry VIII broke with the Catholic Church came to naught in the 1640s with the English Civil War (which took up the entirity of the British isles and lead to mass slaughters throughout them), and of course in killing Mary all Elizabeth did was to secure Mary's Stuart heir to the throne instead (with all the issues associated with Stuart rule - including the English Civil War, the interregnum, the religious intolerance and constant societal tension of Charles II's reign, James II's abdication and the warfare that followed it in Ireland which has negative repercussions that we still live with today, etc. - that accompanied that).

    5. What happened to "Don't feed the troll." ?

  3. "If we aren't prepared to deal with that we shouldn't be at war."

    People are rarely prepared to deal with the full repercussions of warfare; and very rarely are they willing to admit that warfare is a cockpit where "control" is difficult to impossible to master.

    Consider the number of people who were for the Iraq war until they saw how control of the day to day facts on the ground slipped out of the hands of the U.S. military (so much so in fact that bribery on the scale of what the Romans used to engage in with the Germanic tribes and the Arabs was how much of the enemy was kept at bay by the end of the affair). By 2005-2006 so many supporters were saying "Well, I didn't mean this."

    Similarly with Libya the supporters of that effort did not mean for those events to lead to a nasty conflict in Mali, but it did. They also prolly didn't anticipate the expunge Libya of its Christian minority, but that's in fact what is happening. Dame fortune cannot be controlled in war.

    1. re: "People are rarely prepared to deal with the full repercussions of warfare;"

      Agreed, myself included. Ergo, we should probably be waging a lot less war than we do!

      I need to find out more on Libya. It's not like we instigated that after all. Speaking from a position of relative ignorance, admittedly, I suspect there would have been regional spillovers if we did not get involved. It always comes down to counter-factuals, and I'm not sure the absence of conflict elsewhere is a good counter-factual in this case. The administration (I should really say the president, because many in the administration disagreed) seems to be taking a very judicious approach to Libya and Syria.

    2. "judicious approach to Libya and Syria"

      Certainly with respect to Syria the President appears to be cautious. The US may already have overstepped in Libya.

      (On the question of uniforms - maybe someone could remind me of what uniforms the Viet Cong wore. :-) )

    3. This comment has been removed by the author.

    4. Nevertheless, whatever one thinks of the counter-factuals, the current conflict in Mali is deeply indebted to American intervention in Mali. Those are really the only facts that count and as I stated those who pushed for the President's unconstitutional intervention in Libya would not have countenanced claims of potential spillover effects from their efforts (just as those who supported the war in Iraq rejected arguments that said war would lead to closer relationship between Iraq and Iran).


      The administration stepped off the pedal with regards to Libya when it realized that the situation was somewhat more sticky than it anticipated. I'm guessing that there were a lot of discussions early on about how they could topple the head of the regime quickly - even back when the mission was merely part of the duty to protect doctrine - and the situation would resolve itself rather quickly with minimal bloodshed. You really don't hear the administration talking about Libya anymore at all in the sorts of terms it did back in 2010 because they realize a lot has gone sideways there and they prolly aren't willing to draw attention to that.

      As for Syria, who really wants to be involved in a civil war whose death toll is quickly approaching 100k? Particularly as non-state belligerents pour into the country to support either the regime or the rebels?

    5. Oh, and the Viet Cong wore green fatigues with no insignia.

    6. @Libertarian Standard Bearer

      Just to be clear about where I stand:
      1) Iraq was a huge mistake and possibly a war crime
      2) Afghanistan was legal and justified but poorly thought out and poorly executed. Given that the US is in Afghanistan the use of drones is as justified as the use of long range sniper rifles.
      3) Libya was probably a mistake - the US was blinded by the desire to get Gaddafi
      4) The war on terror generally, to the extent we know what has been done, has been poorly planned and executed at enormous financial and reputational cost.

  4. "The reason why we didn't try US for war crimes after WWII is that we didn't commit any."

    Well, whether the U.S. committed any or not, other Allied powers did - including the U.S.S.R. Note how I used the term "Allied," not U.S., Allied.

  5. If there was ever any doubt that "Alexander Hamilton" is a parody account, this thread should seal it.

    I recall Curtil LeMay saying that he would have been tried for war crimes had he not won.

  6. Daniel, above we have some low information commenter who is pathetically disingenuous. I did not say that the Poles were punished for not exercising self defense. I said the natural result of their failure to do such had consequences. Their failure to act, when then could have affected their own destiny, naturally lead to the events that followed.

    Thomas More burned heretics. Henry the VIII appropriately dealt with such intolerance with the only tool that effectively deals with intolerance and that is: intolerance. So it is with drones. They are a tool for dealing, intolerantly, with intolerance.

    Now for me, Henry was justified on an even narrower ground. I have no doubt that the Bard's plays would never have been written nor presented, had More had his way.

    The problem that you have, and that the uninformed commenter has is that the path forward for Modernity is not a straight one. Evil is constantly presenting us with hard challenges and false paths. Poland, France, the World had a choice in the 1920s and 30s about the Nazis. The choice was not made and millions and millions died.

    Before you so naively think we should turn decisions over to a Court, you ought to have many sleepless nights asking, am I making the same mistake as the Poles? Whom have I condemned to the Forest?

    For many decades we have had similar choices before us about Wahhabisim, Iranians, Hezbollah, blah, blah, blah.

    Due to the handover of the Vietnam War, where we made bad judgments, we have retreated into a prolonged period of even worse ones.

    The worst is to argue that, before a drone strike, an American is to get some sort of a hearing, but not so for a Pakistani. This reaches a new height of being nuts.

    Not that my two cents matters, but we do have recent history showing us an entirely different and perhaps better path. It was Harry Truman and George Marshall and others who gave us the Truman doctrine of containment and the Marshall Plan instead of boots on the ground.

    The problem is that we have a zero tolerance policy on terrorist strikes in the United States, which is wholly irrational. Containment will likely not be perfect (the Korean War?) But, Obama could never lead us away from that policy, so we have drones, taking the war to the enemy as best we can.

    I suspect Obama has a calendar in his office that has the days until he leaves office and that foremost in his mind is his goal of no terrorist attacks on US soil during that time.

    In sum, there are consequences for bad choices and, when it comes to self-defense for modernity, the overwhelming evidence is that we have too often waited too long.

    What makes our task especially difficult are the crackpots on the right, who lack the judgment to be able to discern the national interest. Why Libya may be, but not Syria. Why Iran but not Vietnam. Why the total ambiguity of Pakistan. Why Iraqi was more madness than Vietnam.

    This is the game of Life. The great players (Washington, Caesar, Alexander, Lincoln, FDR, Churchill, Stalin. Bush I) are the giants across history. Weak players (Johnson, Madison, and Jefferson, and Bush) assure miserable failing wars. (Iraq II, Vietnam and the War of 1812).

  7. Daniel,

    I really wish I could find the articles on the topic, but about a year ago, somebody did the NPR circuit talking about how effective the military was being at targeting undergrounds financial networks which supported terrorism. Not fund-raisers mind you. Those people were effectively bankers, except doing illegal things. You know? Bankers... (I'm sorry, I couldn't resist) The idea was that those guys didn't really care about Al Qaeda's cause. They just provided financial services. So the idea was to shoot at them which raised the cost of doing business with AQ-style groups beyond the profit margin.

  8. Dear Mr. Kuehn,

    You mention in passing the Bush administration's denial of the applicability of the Geneva convention to captured Al Quaida terrorists. There is an interresting article in the Middle East Quarterly (fall 2004),"Does Human Rights Law Apply to Terrorists?", by Ted Lapkin.

    His point is that those humanitarian laws were enacted to minimize casualties in war, and applying those rules to terrorists who hide in the middle of civilians, etc. gives them an incentive just to do that, and therefore undermines the very purpose of those laws.

    As the author states more aptly :
    "Anything that obscures the distinction between combatant and noncombatant undermines the entire foundation of international humanitarian law. Any erosion in the ability to differentiate between civilians and soldiers on the battlefield inevitably would automatically place noncombatants at greater risk. If soldiers are distinctively marked or uniformed, then troops are less likely to mistake civilians for armed combatants and fire upon them. Yet, by seeking to ban detention of illegal combatants in facilities like Guantánamo Bay, this is precisely where the recommendations of the human rights industry would lead."

    The entire paper is worth reading :

    1. Thanks for the link and for visiting the blog!

      I think it's easy to take these arguments too far. It's perverse in much the same way that the arguments of people who say "if soldiers are safer because of drones we'll wage war more often". The implicit argument here is that dehumanizing people prevents them or us from doing bad things. I'm not sure I'm willing to accept that. We don't extend these protections to elicit certain behavior - we extend these protections because of what we think about human dignity.

    2. You are welcome. And thank you for taking time to reply.

      Not applying the geneva conventions is not necessary "dehumanizing people" as you wrote, and the purpose is not exactly to prevent them from doing bad things, but to deprieve them of an advantage not to abide by the rules of warfare by e.g. hiding among civilians or using Red Cross vehicles.

      By the way, I noted that the Press when taking about the Obama Memo takes great pain to distance that administration from that of W. Bush. I wonder. Waterbording doesn't lead to definitive damage like killing does. Would I prefer my innocent son being captured by Cheney and waterborded or killed by an Obama drone ? (Though with Cheney he would be deprieved of his human dignity, but with Obama he would die whith his boots on).


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