Archive for April, 2010

Oath Keepers, Emergency Powers, & Constitutional Interpretation

Posted in Law on 20100417 by Avenging Sword

So I looked a bit into that “Oath Keepers” organization Truth Excavator keeps mentioning, and came across a page containing, I assume, a decent summation of their ideas regarding the Constitution.  While I know their general raison d’etre is to promote adherence to the Constitution generally, my SWAG is that they’d be rather unpleased if the parties they wished to persuade (i.e., law enforcement & military) were based upon plausible theories of constitutional interpretation with which the Oath Keepers themselves disagree.  As such, it seems worthwhile to consider what exactly the Oath Keepers mean by “upholding the Constitution.”  Presumably, the Oath Keepers proffer their “Declaration of Orders We Will Not Obey” as an example of correct constitutional interpretation.  So let’s consider some of the implications of this “Declaration.”

“1. We will NOT obey any order to disarm the American people.”

This would’ve made it rather difficult to suppress the Great Rebellion of 1861-1865 (sometimes known as the “American Civil War”).  Kinda hard to fight rebels if you’re not allowed to disarm them.  The same would apply to any future armed insurrection occurring on American soil, if said insurrection happened to draw American citizens to its cause.

“2. We will NOT obey any order to conduct warrantless searches of the American people, their homes, vehicles, papers, or effects — such as warrantless house-to house searches for weapons or persons.”

Civil War history isn’t my strong suit, but I wouldn’t be surprised if the Union Army occasionally cleared houses in Confederate territory during their combat operations.  I presume that, when dealing w/ any future insurrection, the Oath Keepers would require the military to get court orders prior to entering houses or other domiciles from which they were taking fire.

“3. We will NOT obey any order to detain American citizens as “unlawful enemy combatants” or to subject them to trial by military tribunal.”

In that case, we’d better hope that any future insurrection is a stand-up war like the Civil War, and not a Maoist-style insurgency.  Because if it’s the latter, the “combatants” will almost certainly be “unlawful,” since guerrillas inherently violate the laws of war by not wearing uniforms & failing to bearing arms openly.  ISTM detaining people we know to be insurgents is part & parcel of competent counterinsurgency.

Of course, I suppose we could simply employ targeted killing instead.  We might lose valuable intelligence that way, but at least we’d neutralize some insurgents.

“4. We will NOT obey orders to impose martial law or a “state of emergency” on a state, or to enter with force into a state, without the express consent and invitation of that state’s legislature and governor.”

Another order that would’ve made things difficult on Lincoln & company.  Kinda hard to resist state secession backed by armed force, when you’re prohibited from responding in kind.  No need for a seceding state to raise an army; simply raise a handful of troops – enough to blow away any intruding FBI, ATF, or the like – and then have its government steadfastly deny permission for US military entry into said state.

“5. We will NOT obey orders to invade and subjugate any state that asserts its sovereignty and declares the national government to be in violation of the compact by which that state entered the Union.”

Yet another order that would’ve made things difficult on Lincoln & company.  By effectively arrogating final say over constitutional questions to state governments, it would’ve basically rendered secession constitutional.

“6. We will NOT obey any order to blockade American cities, thus turning them into giant concentration camps.”

In that case, we’d better hope we never get hit by a really contagious disease.  “[B]lockad[ing] American cities” might, in such a scenario, be necessary IOT prevent said disease from spreading to uninfected areas.

“7. We will NOT obey any order to force American citizens into any form of detention camps under any pretext.”

See response to #3.  I guess the Oath Keepers would also have disapproved of detaining Confederate POWs during the Civil War.

“8. We will NOT obey orders to assist or support the use of any foreign troops on U.S. soil against the American people to “keep the peace” or to “maintain control” during any emergency, or under any other pretext. We will consider such use of foreign troops against our people to be an invasion and an act of war.”

So let’s say American policymakers got hit with a revelation soon after sending troops to Vietnam, and decided to bring over some British veterans of the Malayan Emergency, to give our troops advice & training on how to conduct a proper counterinsurgency campaign.  I guess we would’ve needed to conduct all such training at our overseas military bases?

Or, to directly respond to the Oath Keepers’ implications:  Do they really believe that anarchy is preferable to the preference of nasty foreign troops upon sacred American soil?

I assume the Oath Keepers would also have rejected French assistance during the American Revolution; and would’ve opposed Baron von Steuben’s help in retraining of the Continental Army.  Ditto the use of such assistance against Loyalist forces had it been necessary.

“9. We will NOT obey any orders to confiscate the property of the American people, including food and other essential supplies, under any emergency pretext whatsoever.”

Most glaringly, #9 would’ve mandated noncooperation with the Emancipation Proclamation.  (Sorry to say, slaves really were legally recognized as property prior to at least 1861.)  I guess the Oath Keepers also would’ve opposed the First & Second Confiscations Acts during the Civil War.  And in the future, any insurgent seeking to rebel against the American government would be well-advised to acquire arms as his personal property, so as to render himself immune from disarmament by Oath-Keeping law-enforcement or troops.

“10. We will NOT obey any orders which infringe on the right of the people to free speech, to peaceably assemble, and to petition their government for a redress of grievances.”

This is the only one I can kinda agree with, given my sympathy for Sagan’s notion that “real patriots ask questions.”  And while I also realize that in a republic such as ours, public opinion is the center of gravity in pretty much any war, I’m not sure resurrection of seditious libel would be a good way of opposing enemy progress on that front.

[Update:  as correctly noted in comments, foreign assistance in military training is irrelevant to #8.  I have edited the post to reflect this.]

Some Context For That Wikileaks Video

Posted in Mil on 20100407 by Avenging Sword

After watching that video Truth Excavator linked to below, I got to wondering about context (which appears to be sorely lacking in said video).  Fortunately, it appears the incident in question was investigated – twice – by the Army, who were courteous enough to write down the results of said investigations.  Since the documents in question are large PDFs (9 MB total) at a difficult-to-remember URL (HT Steve & Wings Over Iraq), I figured I’d reproduce & post their text here.

My thoughts after reading these:

1. There were US troops in the vicinity, who had been taking fire.  A group of men, at least some of them definitely armed, gathers at the corner of a building near said troops.  One of those men points what appears to be an RPG around said corner, and aims it at a nearby Humvee.  (It turns out the man was a journalist, and the “RPG” was actually a camera.)  In context, it makes sense that the pilots thought the targeted individuals were about to fire on friendly troops.

2. Troops dispatched to investigate did discover several weapons among the bodies. By my count, there were 3 RPG launchers, 2 AK/AKMs, & an RPG round. See p. 3, pars. 6(g) & 6(j) of the 2nd BCT 15-6 investigation report.  At least based upon these reports, it doesn’t sound like that crowd was all that innocent; rather, it appears the reporters really were tagging along w/ insurgents.

3. Re. the van shoot-up: From p. 4, par. 9 of the 2nd BCT 15-6 report:

…the Apache pilots thought the van was to be used as a means of escape for the wounded insurgents. The van arrives as if on cue, and is immediately joined by two military-aged males who appear from the nearby courtyard. The children are never seen, while the driver slides open a door and then retakes his seat while two other males attempt to load the first insurgent into the vehicle. It is unknown what, if any, connection the van had to the insurgent activity.

Following are the memoranda giving the results of both the AR 15-6 investigations by both the 1st Air Cavalry Brigade, and the 2nd Brigade Combat Team.

[Notes:  I OCR’ed both of these; I tried to catch all the resultant misspellings, etc., but I may have missed some.  All bold, italics, etc., in the following text was in the originals, except as subsequently indicated.  I have taken the liberty of inserted bracketed page #’s to denote the start of each page.  In addition, I’ve inserted the word CENSORED in areas of the text where stuff was, well, censored.  Note that such censorship extended to more than words & phrases; e.g., in the “Recommendations” section of each memorandum, the size of the omission suggests the censorship of several sentences, or maybe even an entire paragraph or two.]

1st Air Cavalry Brigade AR 15-6 Memorandum

[Page 1]

MEMORANDUM FOR Commander, 1st Air Cavalry Brigade, 1st Cavalry Division (Multi-National Division – Baghdad), Camp Taji, Iraq, APO AE 09378

SUBJECT: Findings and Recommendations Pursuant to AR 15-6 Investigation into Conditions

Surrounding the Possible Death of Two Reuters Reporters during an Engagement on 12 July

2007 by Crazyhorse 18 and 19 in the New Baghdad District of Baghdad, Iraq (Zone 30)

1. Purpose. The purpose of this memorandum is to outline findings and recommendations pursuant to the aforementioned investigation with emphasis on decision making between aircrew members and communications between the attack weapons team (AWT) and the 2-2 ID (Strike) unit in contact.

2. Summary.

a. On 12 July 2007, the AWT, call sign Crazyhorse 18 and 19, began their mission window at 0630 hours. Tasked to conduct escort, armed reconnaissance patrols, counter-TED and counter mortar operations over Baghdad from 0930 through 1330 hours, the team departed Camp Taji at 0924 hours and began conducting task in accordance with their planned scheme of maneuver. After escorting a team of UH-60s to COP Callahan and harmonizing their 30mrn cannons in Zone 101, the AWT was redirected to support troops in contact in Baghdad Security Zone 30. Soldiers from 2-16 IN were conducting operations in support of OPERATION ILAAJ (CURE) in the Mualameen Muhallah of Tisa Nisan District, East Baghdad. At 0953 hours, the AWT arrived on station and began operations in support of B/1-26 IN.

b. Upon arriving on station, sporadic attacks on friendly forces continued. The AWT conducted local security operations and initiated a reconnaissance effort to find, report, and destray hostile forces engaging our brothers on the ground. At 1019 hours, Crazyhorse 19 (trail aircraft) identified personnel with weapons (AK-47s and a RPG), both held and slung over the shoulder, in the vicinity of an open area East of the friendly unit’s position and approximately one city block away. Having positively identified personnel with weapons, the AWT initiated an engagement sequence.

c. Maintaining contact with the threat and knowledgeable of friendly locations, the AWT maneuvered to engage. On the downwind leg of a racetrack pattern, Crazyhorse 18’s copilot/gunner (lead aircraft- front seat) perceived an escalation of the immediate threat to our ground troops afier observing an individual peering around a building, preparing to fire an RPG at a friendly HMMWV positioned at the end of the block. Crazyhorse 18’s pilot (lead aircraft – back seat) viewed the copilot/gunner’s TADS imagery and confirmed his assessment after quickly looking outside the aircraft and acquiring the threat without optics. Seconds later,

[Page 2]

Crazyhorse 19 (trail aircraft) observed the same individual. At this point, the individual was in a crouched, firing position with his weapon pointed towards friendly troops. Having observed a hostile act, the team continued to transition for the attack. At 1021 hours, the AWT engaged approximately 8 military-age-males eliminating the immediate threat to friendly ground forces less than 200 meters away.

d. Following the cngagement, Crazyhorse 18 and 19 remained on station overwatching the engagement area and conducting reconnaissance along the ground patrol’s ingress route. At 1026 hours and along with the ground patrol’s entry into the engagement area, a black van arrived to retrieve one of the wounded insurgents. Crazyhorse 18 requested immediate clearance to engage the van, received it, and completely disabled the vehicle within seconds. The R/1-26 IN patrol continued to the engagement area to assess and exploit the scene and immediately established a cordon. The AWT remained on station conducting reconnaissance in search of insurgents still firing on friendly ground forces.

3. Findings.

a. The AWT was on a directed mission; conducted the appropriate check-in with ground elements in contact; and received an adequate situation report describing the current status and disposition of forces on the ground. At this point, the AWT began to develop the situation in concert with the ground element in contact and maintained positive identification of friendly locations throughout the supported period. As the situation developed, the AWT exercised sound judgment and discrimination during attempts to acquire insurgents, or moreover, to identify personnel engaged in hostile or threatening activities against our brothers on the ground.

b. The AWT accurately assessed that the criteria to find and terminate the threat to friendly forces were met in accordance with the law of armed conflict and rules of engagement. Fundamental to all engagements is the principle of military necessity. This was clearly established and supported by the friendly forces inherent right to self defense and the ground commander’s obligation to ensure all necessary means were employed to defend or protect his Soldiers from hostile acts. In this case, the AWT was employed to destroy insurgents attempting to kill friendly forces. The attack weapons team:

(1). Positively Identified the Treat: The AWT, with reasonable certainty, identified military aged males both in a location and with weapons consistent with reports of hostile acts conducted against friendly forces. While observing this group of individuals, the AWT satisfied all requirements to initiate an engagement.

(2). Established hostile intent: Hostile intent was exhibited by armed insurgents peering around the corner of a home to monitor the movement or activities of friendly forces and

[Page 3]

confirmed by the presence of those personnel carrying an RPG and AK-47s. These weapon systems were reported in the initial check-in as the type used to engage friendly forces.

(3). Conducted collateral damage assessment: The AWT accurately assessed that using the 30mm cannon was proportionally appropriate to omit the threat while reducing the probability of excessive damage to surrounding structures, vehicles and real property in the area

(4). Received clearance of fires: Having already identified through voice communications. physical markings and ultimately visual recognition of friendly positions, the AWT again requested and received clearance from the ground unit that there were no Friendly forces in the engagement area.

c. Only after an extensive review of the AWT’s gun-camera video and with knowledge of the two missing media personnel, is it reasonable to deduce that two of the individuals intermixed among the insurgents located in the engagement area may have been reporters. There was neither reason nor probability to assume that neutral media personnel were embedded with enemy forces. It is worth noting the fact that insurgent groups often video and photograph friendly activity and insurgent attacks against friendly forces for use in training videos and for use as propaganda to exploit or highlight their capabilities. The aircrews erroneously identified the cameras as weapons due to presentation (slung over shoulder with the body of the object resting at the back, rear of the torso) and association (personnel colocated with others having RPGs and AK-47s).

4. Recommendations.

CENSORED

[Page 4]

CENSORED

5.  The point of contact for this investigation is the undersigned at: Phone – CENSORED (SVOIP) or CENSORED (DSN); email – CENSORED or CENSORED

CENSORED

LTC, AV

Deputy Brigade Commander

1st Air Cavalry Brigade AR 15-6 Memorandum

[Page 1]

MEMORANDUM FOR Commander, 2nd Infantry Brigade Combat Team, 2nd Infantry Division

(MND-B), Baghdad, Iraq

SUBJECT: 15-6 Investigation of’ Civilian Casualties Resulting from an Engagement on 12 July

2007 in the New Baghdad District of Baghdad, Iraq

1. The purpose of this memorandum is to detail the findings and recommendations of my 15-6 investigation into the presence of noncombatants during an engagement that occurred on the morning of 12 July, 2007 in Zone 30, Mualameen Muhallah, of Tisa Nisan District, East Baghdad, as part of OPERA’I’ION ILAAJ (CURE).

2. The appointing authority (Colonel CENSORED 2BCT Commander) directed me to issue findings and recommendations covering the following areas of inquiry:

a. Describe the nature of the injuries of two local national children discovered by 2- 16th Infantry Battalion. Make a recommendation whether any condolence or claims payment is warranted.

b. Assess whether Mr. Namir Noor-Eldeen or Mr. Saeed Chmagh (Employees of Reuters News Corporation), were killed during the hostile fire engagement based on all available evidence.

c. Assess any relevant issues, including the use of force, by members of 2nd Brigade Combat Team. If you come into any evidence concerning the conduct of other individuals, refer the matter to your legal advisor.

3. 1 began the investigation by contacting MAJ CENSORED (2-1 6 IN S3) and arranging to interview the Bravo Company, 2-1 6 Infantry soldiers who first arrived at the scene at the engagement after the helicopter engagement. Once these interviews were completed, I reviewed the gun-camera tapes from the 1st Cavalry Division’s Apache Helicopters that were in direct support of the ground maneuver elements for OPERATION ILAAJ, the clearance of Zone 30 in the Mualameen Muhallah of Tisa Nisan (New Baghdad).

4. From the witness statements and the Apache gun-camera film (Screen Print Exhibit A), I determined that the engagement in which the Iraqi children were injured and the two Reuters News employees were killed began at 1020 hours (local Baghdad time, Zulu +4), at grid coordinates CENSORED. The Bravo Company 2- 16 soldiers were within 100 meters of the location of a group of armed insurgents and two individuals carrying cameras when Apache helicopters engaged the insurgents with 30mm gunfire. The engagement concluded with the evacuation of casualties at 1041 hours.

[Page 2]

5. Bravo Company 2-16 Infantry had been under sporadic small arms and rocket-propelled grenade fire since OPERATION ILAAJ began at dawn on the morning of the 12th of July. The company had the mission of clearing their sector and looking for weapons caches. Two Apache helicopters from the 1st Cavalry Division’s Aviation Brigade (call signs “Crazyhorse 18” and “Crazyhorse 19”) were in direct support to the ground maneuver force and were monitoring the Bravo Company radio frequency.

6. The following sequence of events is derived from a review of the gun-camera film. The gin camera film was a video burned onto a compact disc which I received from my legal advisor. The video provided me an accurate timeline of cvcnts and allowed me to corroborate or deny other eye witness testimony received into evidence. However, it must be noted that details which are readily apparent when viewed on a large video monitor are not necessarily apparent to the Apache pilots during a live-fire engagement. First of all, the pilots are viewing the scene on a much smaller screen than I had for my review. Secondly, a pilot’s primary concern is with flying his helicopter and the safety of his aircraft. Third, the pilots are continuously tracking the movement of friendly forces in order to prevent fratricide. Fourth, since Bravo Company had been in near continuous contact since dawn, the pilots were looking primarily for armed insurgents. Lastly, there was no information leading anyone to believe or even suspect that noncombatants were in the area. Although useful, an analysis of the engagement captured on the video is beyond the scope of my investigation and the subject of a collateral investigation. The digits appearing before the exhibit are the time derived from the Apache video footage. 0619:37 is 0600 hours, 19 minutes, and 37 seconds, Greenwich Mean or ZULU ‘rime. Baghdad local time is 4 hours later.

a. 0619:37 Z (Exhibit A Photo). As the Apaches orbit counterclockwise, eleven military-aged males dressed in Western-style pants and shirts, are seen walking northward toward a wall vicCENSORED Two individuals can be seen carrying cameras with large telephoto lenses slung from their right shoulders. While two other males can be seen carrying an RPG launcher and an AKM. The cameras could be easily mistaken for slung AK-47 or AKM rifles, especially since neither cameraman is wearing anything that identifies him as media or press.

b. 0620:07 Z (Exhibit B Photo). Two individuals are seen openly displaying an RPG and an AKM, while a third individual carries what appears to be an RPG round. The rest of the military-aged males are obscured by the building in the foreground.

c. 0620:34 Z (Exhibit C Photo). One of the cameramen is seen peering from behind the wall looking west toward the approaching Bravo Company soldiers. The voice on the gun tape mistakenly identifies the long telephoto lens as an RPG.

d. 0620:38 Z (Exhibit D). The cameraman raises the camera to sight through the viewfinder and his action appears prompts one of the pilots to remark “He’s getting ready to fire.” Photos later recovered from the camera show a US Army HMMWV sitting at an intersection, less than 100 meters away from the camera. The digital time/date stamp on the photo indicates that these photos were the ones taken as the cameraman peered from behind the wall (Exhibit R). Due to the furtive nature of his movements, the cameraman gave every appearance of preparing to fire an RPG on US soldiers.

[Page 3]

e. 0621:07 Z (Exhibit E Photo). As the Apache continues his orbit and clears the buildings he gains a clear view of the insurgents. Both cameramen are visible within a very tight circle of armed insurgents. An RPG launcher and an AKM are also visible at this point and all military-aged males are clustered within a two-meter radius. The Apache engages seconds later, apparently killing eight of the nine military-aged males.

f. 0626:03 Z (Exhibit F Photo). As ground forces approach the engagement area, A black van with white paint on the roof'(erroneous1y reported as both a white van and a bongo truck) arrives. Two military-aged males and the vehicle’s driver then attempt to load one of the wounded insurgents into the van. The Apache pilot requests permission to engage the van in order to prevent the escape of the insurgents. Bushmaster 7 responds “This is Bushmaster 7, Roger, engage.” The Apaches engage disabling the van seconds later.

g. 0631:53 Z (Exhibit G Photo). The first elements of Bravo Company, 2-16 Infantry arrive on scene and begin to secure the area. They discover two RPGs and an AK-47 or AKM among the group of insurgents clustered near the wall. They also discovered two Canon EOS digital cameras with large telephoto lenses attached in the immediate vicinity of the bodies. The Soldiers gathered the two Canon digital cameras at the site as evidence for analysis. Two of the Military-aged males are still alive and the soldiers on scene render first aid and call for a medic.

h. 0639:44 Z (Exhibit N Photo). Bravo Company soldiers searching the van find an Iraqi girl approximately four years old with penetrating wounds to her torso, and evacuate her to FOB LOYALTY.

i. 0641:11 Z (Exhibit I Photo). Another Bravo Company soldier finds that an Iraqi male approximately eight years old is still alive after sustaining several penetrating wounds to various parts of his body, and evacuates that child as well. Both children were evacuated to FOB LOYALTY and then to 28th CSH on 12 July. Both children were then transferred to Medical City, an Iraqi controlled treatment facility, on 13 July 2007.

j. (Exhibits J-P Statements). As Bravo Company secured the scene, they continued to take small arms tire and were not able to conduct a detailed sensitive site exploitation of the engagement area. Pictures taken at the time (Exhibit P), reveal one of the digital cameras with a sand-colored telephoto lens attached as well as an AK/AKM and an additional RPG launcher with a loaded round still in it. The body lying closest to the camera had an RPG round underneath it (later destroyed by EOD). Not one of the soldiers present recalled seeing any indications of either media/press badges or photographers’ vests to indicate that noncombatants were on scene. Bravo Company soldiers remained on scene until Iraqi Security Forces arrived to take charge of the bodies and weapons. The two digital cameras were turned in for analysis when Bravo Company elements returned to FOB RUSIMYAH later that afternoon.

k. By the late afternoon of 12 July, Iraqi Security Forces had recovered the press identification badges from the bodies of the Reuters employees and returned them to Reuters. I was unable to determine exactly where and when the identification was returned, and inquiries to Reuters have not yet been answered. By the afternoon of July 12th, Reuters was running the

[Page 4]

story that two of their personnel had been killed on assignment in Baghdad in an engagement with US Forces (Exhibit S).

7. The Document Exploitation Team at FOB RUSTIMYAH conducted an examination of the media cards in the cameras and extracted hundreds of photos from each. Of significance are photos of MG Lynch taken at a press conference on 24 June, 2007, indicating that the photographer had press credentials in order to gain access to the Coalition Press Information Center (CPIC), in Baghdad’s Green Zone (Exhibit R). Additional photos from one of the Canon digital cameras recovered on site (see Exhibit Q) show a male who appears to be Namir Noor- Eldeen based on the fact he is wearing an identical shirt to the one shown in the Reuters article (Exhibit S).

8. Conclusions

a. I havc nothing which conclusively identifies the bodies of the two Reuters affiliates. The ground forces were still receiving small arms fire and did not have sufficient time or personnel to photograph or search the bodies for identification. Once Iraqi Security Forces arrived, that tasked was assumed by the lraqi Police.

b. I know that two military-aged males are seen carrying cameras which match the description of the CANON EOS cameras carried by Mr. Noor-Aldeen. Those cameras were recovered at the scene by soldiers from Bravo Company 2- 16 TN, and the images recovered from their media cards showed images consistent with professional photographers and images which appear to be of Mr. Noor Aldeen himself.

c. I conclude that the two Reuters affiliates were in the company of the armed insurgents who had bccn firing on members of Bravo Company, 2-16 Infantry, at the time of the engagement, as Bravo Company and Iraqi Security Forces attempted to clear Zone 30 as part of OPERA’I’ION ILAAJ on the morning of 12 July, 2007. The preponderance of the evidence leads me to conclude that Mr. Namir Noor-Eldeen and Mr. Saeed Chmagh were killed on 12 July during the engagement by Apache helicopters.

d. I conclude that the presence of the Reuters employees was not known to any of the US Forces operating in the area that morning. The cameramen made no effort to visibly display their status as press or media representatives and their familiar behavior with, and close proximity to, the armed insurgents and their furtive attempts to photograph the Coalition Ground Forces made them appear as hostile combatants to the Apaches that engaged them. Furthermore,  the mere fact that two individuals carried cameras instead of weapons would not indicate that they were noncombatants as the enemy commonly employ cameramen to film and photograph their attacks on Coalition Forces.

9. As to the presence of the children in the black van, it is obvious from the radio transmissions on the gun-camera tapes that the Apache pilots thought the van was to be used as a means of escape for the wounded insurgents. The van arrives as if on cue, and is immediately joined by two military-aged males who appear from the nearby courtyard. The children are never seen, while the driver slides open a door and then retakes his seat while two other males attempt to

[Page 5]

load the first insurgent into the vehicle. It is unknown what, if any, connection the van had to the insurgent activity.

10, Recommendations. My recommendations to reduce the likelihood of similar casualties in the future are as follows:

CENSORED

11.  POC for this investigation is the undersigned at VOIP phone CENSORED or SIPR email CENSORED

CENSORED

MAJ, IO

Investigating Officer

Unlawful Combatants Before 9/11

Posted in Law on 20100402 by Avenging Sword

On occasion, I’ve heard it mentioned that the category of “unlawful combatants” – employed of late by the Bush Administration when categorizing & detaining captured terrorists (real or alleged) – is a novel, post-9/11 invention concocted by said Administration.  AFAIK, this position is incorrect.  Having nothing better to do this Good Friday evening, I did some text searching, and came across the many pre-9/11 uses of “unlawful combatant” I’ve reproduced below.  It would appear, therefore, that the term “unlawful combatants”, and the concept it denotes, far predates Bush, 9/11, and indeed Al Qaeda. 

The earliest uses of “unlawful combatant” that I came across was the Supreme Court decision in the so-called “Nazi saboteur case,” Ex Parte Quirin:[1] 

By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.[2]

Soon after that decision was announced, law reviews carried articles discussing it.  For example: 

There is an important distinction which is decisive in this case, and it concerns lawful and unlawful combatants.  Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces.  Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.[3] 

The term was next used in reference to discussions of guerrilla forces: 

… At the outset it must be noted that the term “guerrilla”…is used…to include both lawful and unlawful combatants.  ….

Illegal guerilla or irregular warfare may be divided into two principal classes…second, where it is conducted by individuals or small band, which do not conduct their operations according to the laws of war. … Under the 4th clause of Article 1 of the Hague Regulations, these irregulars are unlawful combatants….[4]

Again: 

The legal status of persons listed consequent a state of war or armed conflict of non-international or international character are as follows: 

(a) Military persons – are combatants and are subject to treatment as POW if captured.

(j) Rebels and insurrectionists, armed or seditious bands – are non-privileged or unlawful combatants.  They may be subject to trial for criminal acts.  It is to these persons that common Article 3 of the 1949 Geneva Conventions concerning conflicts not of an international character is applicable.[5]

And again: 

… Article 5 of Geneva Convention III, 1949, provides that only a competent tribunal may determine the status of persons accused of being unlawful combatants.[6]

And again: 

In the view of the Tribunal the status of a partisan should be judged on the basis of the Hague Regulations: if their conditions are fulfilled, there exists a lawful combatant, in other cases an unlawful combatant.  The Tribunal found that the partisans in question had, as a rule, acted as “unlawful belligerents”.  They did not have the right to the status of prisoner of war.  They were, in other words, “franc-tireurs”, and as such could be executed, but however, only after trial and judgement.[7] 

And again: 

… The Prisoners of War Convention is not applicable to a resistance fighter who does not fulfill these conditions [of having a chain of command, fixed distinctive sign, carrying arms openly, & obeying the laws of war] and this probably applies to the majority of guerrilla fighters.  Such an “unlawful” combatant can thus not qualify for treatment as prisoner of war….[8] 

And again: 

Unlawful combatants are those individuals not authorized to take a direct part in hostilities but who do so.  The term also refers to otherwise authorized combatants who fail to comply with requirements for fixed, distinctive signs and noncombatants who improperly used their protected status as a shield to engage in hostilities.[9] 

The term was also used to refer to pirates & others using armed force for private gain: 

… Pirates at sea and marauders on land, acting for personal purposes or private gain, have always been unlawful combatants.[10] 

It also surfaced in discussions of mercenaries: 

… The restraint or elimination of the unprivileged combatant in order to make it impossible for him to further fight the detaining power appears to be the primary reason for declaring individuals unprivileges or unlawful combatants.[11] 

Again: 

Making a distinction between privileged and non-privileged belligerents serves to determine whether belligerents are entitled to combatant status from which derives the right to Prisoner of War (P.O.W.) status, or, as unlawful combatants, are deprived of the protection guaranteed by the laws of war.[12] 

The term also crops up in a 1985 discussion of POW status: 

Lawful combatants are those who, belonging to a lawful armed group, have the individual right to participate in hostilities and are, therefore, entitled to combatant status as individuals.  In case of capture they are entitled to prisoner-of-war status which carries with it immunity from prosecution for the mere participation in hostilities or the performance of acts of war, such as killing or destruction of property.  Conversely, unlawful combatants are those who have no right to participate in hostilities, such as persons belonging to unlawful armed groups, or individuals fighting on their own.  Unlawful combatants are also previously lawful combatants who have lost their status as such because of particular activities.  Only lawful combatants are entitled to prisoner-of-war status.[13] 

It was eventually applied in a discussion of terrorism…in 1988: 

Most terrorist groups do not carry out their activities in conformance with the definition of legal combatant, thereby rendering the captured terrorist an unlawful combatant.  But this does not mean that the Geneva Convention cannot apply, only that it is within the discretion of the detaining nation as to whether to abide by the Convention in connection with the terrorist’s detention.[14] 

Again: 

[U]nlawful combatants, such as those who during war secretly and witout uniform cross military lines in order to kill or destroy property, are not entitled to be treated as prisoners of war.  But they are still subject to trial and punishment by military tribunal.  Applying these classifications to terrorists, most would be deemed unlawful combatants.  Thus the crimes for which they may be tried need not be classified as war crimes.[15]  

A 1991 article noted one downside of “unlawful combatant” status for those so designated: 

[T]he killing of lawful combatants in violation of the laws and customs of war would, in most circumstances, constitute a war crime; the killing of unlawful combatants, such as members of resistance groups not complying with the requirements of lawful belligerency, might not.[16]

A 1996 article contained the following paragraph under the heading, “C.  Unlawful Combatants”: 

Another manner in which terrorism violates the laws of war-even if directed toward military personnel or installations-relates to certain requirements promulgated by international law for the outward identification of combatants. In violation of those requirements, the perpetrators of the recent terrorist attacks were neither members of a duly constituted and organized national military force, wearing uniforms or other distinctive insignia, nor bearing arms openly.[17]

Another article published that year employed the term in relation to MOOTW: 

Military operations other than war frequently present scenarios in which United States forces encounter persons who do not qualify for legal status as prisoners of war. In Panama, Somalia, and Haiti, for example, persons captured after having committed hostile acts against United States forces were not entitled to legal status as prisoners of war. … In Somalia, for example, United States forces were confronted by armed civilians who fought with impunity as unlawful combatants.[18]

Another MOOTW-related article employed the synonym, “unlawful belligerent”: 

The final source of support for the proposition that the law of war includes a “force protection” principle is derived from the traditional prohibition against “unlawful belligerents.” During past conflicts, states have used this prohibition as the basis to prosecute and punish enemy nationals, not qualifying as members of the enemy armed forces, who attempted to take or took hostile acts against the state or its armed forces. The classic example of an “unlawful belligerent” is the enemy saboteur who, without qualifying for status as a combatant, infiltrates friendly areas with intent to cause harm to the force. International law has long recognized the right of a state to punish these individuals as unlawful belligerents.[19]

The term was also used in relation to civilian contractors working with military forces: 

Civilian employees who remain in theater or mobilize with deploying forces are somewhat unique and raise interesting issues that challenge this traditional distinction between combatants and noncombatants. Although they may be legally present in a theater of operations in support of combat operations, they are not entitled to fire weapons at the enemy like a combatant. If they do, they may be treated as an unlawful combatant or an “unprivileged belligerent” under the laws of war. …. They may be issued small arms to protect themselves from enemy violations of the laws of war, but may not violently resist capture by the enemy. …[I]f captured, [they] are entitled to prisoner of war status like a combatant under Article 4A(4) of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War.[20]

Another example anticipates Gary Solis’ usage[21] of the term by a decade: 

Once civilian technicians or contractors become involved as “operators” in “combat operations”, they risk being characterized as “unlawful combatants” under international law. This has a number of consequences, including the possibility that, if captured these civilians can be tried and punished for their hostile acts, to include the same things for which a uniformed combatant would have immunity. It is very doubtful that many of these “surrogate warriors” are cognizant of their new status or comprehend the ramifications of it.[22]

The last pre-9/11 example I could find echoed the first: 

…[A] final important category, “unlawful combatants” applies to those non-combatants and civilians who are unauthorized to engage in hostilities, but do so nonetheless. These individuals lose the protection they would otherwise enjoy under the laws of war. As the 1977 Protocol (I) to the Geneva Convention recognizes, unlawful combatants do not lose all humanitarian protections,203 but they are not accorded “prisoner of war” status if captured, and they face lawful penal consequences by the foreign belligerent State for their unlawful participation in the conflict.[23]

It’s worth comparing the above usages with the following excerpt from a recent article co-authored by John Yoo on the topic of “unlawful combatants”: 

Taken together, these four conditions [listed in Article 4(A)(2) of the Geneva Convention relative to the Treatment of Prisoners of War, i.e., “being commanded by a person responsible for his subordinates;” “having a fixed distinctive sign recognizable at a distance;” “carrying arms openly;” and “conducting their operations in accordance with the laws and customs of war”], aimed at facilitating the bedrock customary distinction between combatants and civilians, also establish a second fundamental distinction under customary law: the distinction between lawful and unlawful combatants. Only lawful combatants – that is, members of fighting units that comply with all four conditions – are licensed to engage in military hostilities. The customary laws of war immunize only lawful combatants from prosecution for committing acts that would otherwise be criminal under domestic or international law.”? And only those combatants who comply with the four conditions are entitled to the protections afforded to captured prisoners of war under the laws and usages of war. Indeed, denial of protected status under the laws of war has been recognized as an effective method of encouraging combatants to comply with the four conditions. Unlike lawful combatants, unlawful combatants have no right to engage in hostilities and enjoy no immunity from prosecution for their military activities, nor do they receive the protections afforded under the laws of war to captured prisoners of war. And, of course, unlawful combatants-unlike civilians, and like combatants-are vulnerable to direct attack and targeted military hostilities, as common sense would clearly dictate.[24]

 


[1] 317 U.S. 1 (1942). 

[2] Id. at 30-31. 

[3] Recent Cases, 17 TEMP. L.Q. 189, 2002 (1943). 

[4] Roger W. Barrett & Lester Nurick, Legality of Guerrila Forces under the Laws of War, 40 AM. J. INT’L L. 563, 569-570 (1946).   

[5] Fred K. Green, The Concept of War and the Concept of Combatant in Modern Conflicts, 10 MIL. L. & L. WAR REV. 267, 280 (1971); also id. at 281 (“The various categories of non-privileged or unlawful combatants may be retained within the jurisdiction for criminal trial and resulting punishment.”). 

[6] Luis Kutner, Due Process of Rebellion, 7 VAL. U.L. REV. 1, 40 (1972).  

[7] Esbjorn Rosenblad, Guerrilla Warfare and International Law, 12 MIL. L. & L. WAR REV. 91, 102 (1973). 

[8] Id. at 120.  

[9] Matt C. C. Bristol, III, CRAF: Hawks in Doves’ Clothing?, 20 A.F. L. REV. 48, 59 (1978). 

[10] Law of War Panel: Directions in the Development of the Law of War, 82 MIL. L. REV. 3, 29 (1978). 

[11] Arthur J. Armstrong, Mercenaries and Freedom Fighters: The Legal Regime of the Combatant under Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 30 JAG J. 125, 171 (1978). 

[12] Tahar Boumedra, International Regulation of the Use of Mercenaries in Armed Conflicts, 20 Mil. L. & L. War Rev. 35, 39 (1981). 

[13] Nissim Bar-Yaacov, Some Aspecets of Prisoner-of-War Status According to the Geneva Protocol I of 1977, 20 ISR. L. REV. 243, 250 (1985). 

[14] Jeannemarie Gardes, Terrorists on Trial: The Legal Dilemmas, 11 CRIM. JUST. J. 235, 258 (1988) (footnote omitted). 

[15] Id. at 259 (footnotes omitted). 

[16] Andrew J. Cunningham, To the Uttermost Ends of the Earth – The War Crimes Act and International Law, 11 LEGAL STUD. 281, 285 (1991) (footnotes omitted). 

[17] Spencer J. Crona & Neal A. Richardson, Justice for War Criminals of Invisible Armies: A New Legal and Military Approach to Terrorism, 21 OKLA. CITY U.L. REV. 349, 364 (1996) (footnotes omitted).  Interestingly, this article also advocated trying terrorists via military commission.  See id. at 366-399. 

[18] Marc L. Warren, Operational Law–A Concept Matures, 152 MIL. L. REV. 33, 58 (1996) (footnote omitted). 

[19] The Judge Advocate General’s School Faculty, TJAGSA Practice Notes, 1999 ARMY LAW. 1, 13-14 (footnotes omitted). 

[20] Deployment of Civilians in Support of Military Operations, 24 REPORTER 22, 23 (1997).  The claim that civilians captured as unlawful combatants are entitled to POW status is in apparent contradiction with the other sources cited in this post.  It’s possible that the aforementioned claim intends to reference unlawful combatants’ entitlement to the standards of treatment embodied in Common Article 3 of the Geneva Convention. 

[21] Gary Solis, CIA drone attacks produce America’s own unlawful combatants, WASH. POST,  Mar. 12, 2010, at A17, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/03/11/AR2010031103653.html (“In terms of international armed conflict, those CIA agents [who arm and pilot armed unmanned drones] are…unlawful combatants. No less than their insurgent targets, they are fighters without uniforms or insignia, directly participating in hostilities, employing armed force contrary to the laws and customs of war.”). 

[22] Charles J. Dunlap, Jr., Organized Violence and the Future of International Law: A Practitioner’s View of the Emerging Issues, 93 AM. SOC’Y. INT’L L. PROC. 6, 12 (1999) (footnotes omitted). 

[23] Robert A. Ramey, Armed Conflict on the Final Frontier: the Law of War in Space, 48 A.F. L. REV. 1, 49 (2000) (footnote omitted). 

[24] James C. Ho & John C. Yoo, The Status of Terrorists, 44 VA. J. INT’L L. 207, 221-222 (2003) (footnotes omitted).