Henry County, Georgia recently welcomed home Staff Sgt. John Beale, who was killed two weeks ago in Afghanistan. Last Thursday, the citizens of his home and neigboring counties lined up along the side of the street along the procession to pay their respects.
The first video was put together by State Rep. Steve Davis, who represents most of Henry County in the Georgia General Assembly:
You can see other street views of the procession below:
He certainly wouldn’t be happy, that’s for sure. Germany’s top soldier isn’t happy with his troops either. Speaking about German soldier complaints about their deployments he said:
“We cannot guarantee soldiers that they will have an all-round feel-good experience,” said General Wolfgang Schneiderhan.
“We have to tell a professional soldier who complains about his third tour of overseas duty that he has to get a grip — this is his profession,” said General Schneiderhan.
“Perhaps the problem is down to the general tendency in society to delegate responsibility to someone else, or perhaps it is the stress associated with change,” he told several hundred army officers and politicians at an official reception.
Ah, social welfare – it does change a culture, doesn’t it? And although the Germans have been a part of the ISAF in Afghanistan since 2001, other members of the NATO team have voiced dissatisfaction with their performance. That may be because they are participating (I hesitate to use the word “fighting”) with one hand tied behind their back:
German Medevac helicopters have to be back at base by dusk. German Tornado aircraft are restricted to unarmed reconnaissance. Der Spiegel magazine highlighted the case recently of a Taleban commander — nicknamed the Baghlan Bomber because of his role in blowing up a sugar factory in that northwestern province — who was cornered by the KSK German special service unit but allowed to escape; under the terms of engagement imposed by Parliament the KSK are not authorised to kill unless they are under attack.
So since they don’t fight at night (unless they’re willing to do it without medevac support), what do they do? Well, they drink. Forget cultural sensitivity, the German force of 3,500 goes through 90,000 bottles of wine and 1.7 million pints of beer a year:
The reports of soldiers’ complaints made to parliament by Reinhold Robbe, the ombudsman, paint a picture of a force that is concentrating more on its own wellbeing than on the peace-keeping mission.
The diet is heavy on carbohydrates, low on fruit and a higher proportion of soldiers are overweight than in the civilian population of Germany. Mr Robbe admitted that too many soldiers had a “passive lifestyle”. In short the soldiers are fat, they drink too much and spend a great deal of time moaning.
Truly signs of a very unhealthy force in more ways than one. And this is one of our primary NATO allies? And we wonder why Afghanistan is going so swimmingly?
An interesting discussion broke out in the comment section of the Miranda post, which I’m hoping will continue. The primary issue (and I’m simplifying here) centers around just how detainees caught on a battlefield should be handled if they don’t fit the established parameters of soldiers under the Geneva Conventions. Although there appears to be agreement that reading detainees Miranda rights is a step (or three) too far, there is also wide agreement that we should be skeptical about allowing our government so much latitude as to hold anyone indefinitely. I think closing the gap on those parameters is the challenge to be met, but I don’t think it is possible to do so without understanding how war differs from law enforcement.
Clausewitz defined war as “continuation of policy with other means.” The crux of his definition is that “war” is simply a tactic used to further political goals. War is not waged as end in itself, but as a means towards other ends which, for whatever reason, could not be accomplished through non-violent tactics. There are always exceptions, of course, but certainly a rational state will not expend blood and treasure when the same goals can be accomplished without. Even an irrational state, with irrational goals, will not waste such resources if it understands that it does not have to.
The other tools in the box for continuing policy include diplomacy and capitulation. Once those are deemed exhausted or unacceptable (as the case may be) then the tool of war is likely to appear. In other words, if agreement cannot be reached between erstwhile enemies, and surrender by one side or the other is not acceptable, then actual battle will be necessary to decide whose policy will be continued. At that point all manner of understanding between the parties is dead and only victory or a credible threat thereof will allow the discarded tools to once again be used in the construction of policy.
In the absence of war, there is general agreement as to how competing parties will conduct themselves in the pursuit of their policies. Citizens may vote, senators may argue, special interests may agitate, and whole nations may barter. The agreements may deal with how citizens deal with one another, how governments deal with their citizens, or how violations of the agreements are handled (i.e. law enforcement). In the modern world those general agreements are reduced to treaties, constitutions, rules, regulations and the like, all of which may be considered law. The policies themselves may also be enacted into law, but without some understanding as to the mechanisms for peacefully deciding which policy will be followed, then war is the only tool available. A rule of law, which is only useful where there is broad agreement on it, obviates the need to use war to advance policy. All of the foregoing are the hallmarks of a civil society that depends on pursuing policies through peaceful tactics. To turn Clauswitz’s definition around, law is the continuation of war by other means.
To be sure, transgressors of law will be dealt with at times in violent ways, but there is at least a tacit agreement to the law’s authority to do so where the violator is operating from within the society and generally partaking of its benefits. If enough transgressors get together then the agreements have broken down, and civil war or revolution may occur. Therefore, war can be understood as the tactic that is used when the law has ceased to be of use. More simply, war is the absence of law.
Given the above, which is nothing more than a condensed version of my personal views on the subject, it is difficult for me to understand how legal concepts can be introduced into war. Opposing factions may agree with one another to fight under particular rules of engagement, or to treat enemy prisoners a certain way, but when those rules are broken there is no legitimate authority to enforce them. The Geneva Conventions represent a more elaborate attempt to impose limits on warfare, but even those were never intended to apply to non-signatories except in very limited circumstances (pre-Hamdan anyway). More importantly, it seems obviously ludicrous to apply laws outside such limited agreement to any of the parties involved in battle, because there would be no battle if such laws were being adhered to in the first place.
So while any number of parties may agree amongst themselves to fight under self-imposed rules, that does not give any of them authority to impose those rules on others. Furthermore, except where explicitly agreed to otherwise, such rules would not govern war between a party to such an agreement and a non-party. To look at it another way, if Mike Tyson and Evander Holyfield agree to fight under certain sanctioned rules, that does not mean that either fighter must adhere to the same rules if attacked by a third party on the way home from the match.
Accordingly, in a world of asymmetrical warfare, the basic principle that “war is the absence of law” seems to apply. In this context, the very idea of approaching war with terrorists in foreign countries under a rubric of law intended to govern domestic life appears absurdly out of place. Treating detainees captured on the battlefield to the luxury of legal niceties intended to protect the very citizens those terrorists seek to harm defies all logic. And pretending that reading any of them Miranda rights will do anything more than hamper our ability to defeat these cretins is an exercise in serious delusion. In short, law is a manifestation of the agreements underlying a peaceful community, and war is the means of protecting those agreements from those who seek to subvert them.
When considering just where the line should be drawn then, between reading enemies their “rights” and allowing the government to detain them indefinitely, I think it’s useful to understand that we are not really talking about a “rule of law.” Instead, we are talking about how best to utilize the tactic of war in furthering our policy of not allowing crazed radicals to murder our citizens. While I find great merit in placing the government (i.e. our instrument of war) on a firm leash, I don’t think it is at all useful to conflate the means by which we protect ourselves from an overbearing government with the means by which the government protects us from enemies bent on our destruction.
This simply can’t be right, can it? That the Obama administration secretly directed the military to Mirandize combatants and terrorists when captured? Surely this is just crazy talk:
… the Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan, according a senior Republican on the House Intelligence Committee. “The administration has decided to change the focus to law enforcement. Here’s the problem. You have foreign fighters who are targeting US troops today – foreign fighters who go to another country to kill Americans. We capture them…and they’re reading them their rights – Mirandizing these foreign fighters,” says Representative Mike Rogers, who recently met with military, intelligence and law enforcement officials on a fact-finding trip to Afghanistan.
Rogers, a former FBI special agent and U.S. Army officer, says the Obama administration has not briefed Congress on the new policy. “I was a little surprised to find it taking place when I showed up because we hadn’t been briefed on it, I didn’t know about it. We’re still trying to get to the bottom of it, but it is clearly a part of this new global justice initiative.”
Ever since the Boumediene decision I’ve been warning that we’re turning legitimate military actions into law enforcement nightmares. No matter how badly we may want to achieve a world where transparency and the rule of law are the basis for all government action, the fact of the matter is that there are plenty of people out there who want to see the US destroyed regardless of the cost to themselves or their families. If we start dealing with these people as if they were common criminals, then we erode the very fabric that binds us as a nation. No longer does the word “jurisdiction” mean anything. Instead, we hand our enemies the keys to the castle.
Consider the following:
A lawyer who has worked on detainee issues for the U.S. government offers this rationale for the Obama administration’s approach. “If the US is mirandizing certain suspects in Afghanistan, they’re likely doing it to ensure that the treatment of the suspect and the collection of information is done in a manner that will ensure the suspect can be prosecuted in a US court at some point in the future.”
But Republicans on Capitol Hill are not happy. “When they mirandize a suspect, the first thing they do is warn them that they have the ‘right to remain silent,’” says Representative Pete Hoekstra, the ranking Republican on the House Intelligence Committee. “It would seem the last thing we want is Khalid Sheikh Mohammed or any other al-Qaeda terrorist to remain silent. Our focus should be on preventing the next attack, not giving radical jihadists a new tactic to resist interrogation–lawyering up.”
According to Mike Rogers, that is precisely what some human rights organizations are advising detainees to do. “The International Red Cross, when they go into these detention facilities, has now started telling people – ‘Take the option. You want a lawyer.’”
Rogers adds: “The problem is you take that guy at three in the morning off of a compound right outside of Kabul where he’s building bomb materials to kill US soldiers, and read him his rights by four, and the Red Cross is saying take the lawyer – you have now created quite a confusion amongst the FBI, the CIA and the United States military. And confusion is the last thing you want in a combat zone.”
Prosecution of any war, regardless of what your betters may think, is absolutely impossible in a law enforcement setting. Imagine having to “arrest” enemy soldiers instead of shooting them on sight. Or worse, think about the complications involved when a soldier shoots anyone, as compared to when a policeman is involved in a shooting. How would it work to take custody or extract intelligence from any enemy soldier if our soldiers have to apply mercurial Supreme Court precedent to each situation before risking their lives? Any cop will tell you that it’s hard enough keeping up with the norms as laid down by the high court (and interpreted by the administrators) in order to simply arrest common criminals. The idea that soldiers in the field of battle have the time or ability to “arrest” terrorists and the like, in places where English is not likely to be a common language (N.B. does that mean the military will be required to provide interpreters before apprehending anyone?) is simply ludicrous.
War is not pretty, and anyone who pretends to make it so is simply a fool. Ugly, unmentionable, outrageous and despicable things happen in war, as they do in any struggle for life. Creating an imaginary world in which there are breaks for tea and the enemy plays by the same (or any) rules is how the British lost North America. Subjecting ourselves to the vagaries or our enemy’s backwardness, by ignoring their complete denial of our moral superiority, will only serve to hasten our defeat.
For the foregoing reasons, I have to assume that Stephen Hayes is on the wrong end of some very bad information. As much as I may disagree with the Obama administration on a great many things, I have a hard time believing that they could be this naive and unconcerned about the future of our country that they would grant unprecedented gratuity to those who most wish us ill. The policies are most certainly wrong, but they can’t possibly be this misguided.
Sy Hersh, not yet ready to leave the evil cabal of Bush/Cheney alone, has concocted a real beaut this time and is peddling it on Arab TV (what other media outlet would be open to this stuff?), just in time to inflame the unwashed masses in the Middle East:
Former prime minister of Pakistan Benazir Bhutto was assassinated on the orders of the special death squad formed by former US vice-president Dick Cheney, which had already killed the Lebanese Prime Minister Rafique Al Hariri and the army chief of that country.
The squad was headed by General Stanley McChrystal, the newly-appointed commander of US army in Afghanistan. It was disclosed by reputed US journalist Seymour Hersh while talking to an Arab TV in an interview.
Hersh said former US vice-president Cheney was the chief of the Joint Special Operation Command and he clear the way for the US by exterminating opponents through the unit and the CIA. General Stanley was the in-charge of the unit.
Seymour also said that Rafiq Al Hariri and the Lebanese army chief were murdered for not safeguarding the US interests and refusing US setting up military bases in Lebanon. Ariel Sharon, the then prime minister of Israel, was also a key man in the plot.
A number of websites around the world are suspecting the same unit for killing of Benazir Bhutto because in an interview with Al-Jazeera TV on November 2, 2007, she had mentioned the assassination of Usama Bin Laden, Seymour said. According to BB, Umar Saeed Sheikh murdered Usama, but her words were washed out from the David Frosts report, he said.
Got that? Bhutto was killed at Cheney’s behest (he apparently was the secret chief of the JSOC) by Gen. McChrystal and the boys (McChrystal soon to be the commander in Afghanistan headed the “squad”) because Bhutto blurted out that bin Laden was dead and that, unfortunately for her, undermined the given reason for the US being in A’stan.
Wow. How this guy gets even the coverage he does (The Nation and Arab TV) amazes me. At least The Nation jabbed Hersh with the “reputed journalist” tag. Arab TV, though, will eat it up with a spoon.
There was no “nicety” to this very public change of commanders in Afghanistan. In command for only 11 months, Gen. David McKiernan has been fired. In his place will be LTG Stanley A. McChrystal. Secretary Gates made it clear:
“Our mission there requires new thinking and new approaches by our military leaders,” said Defense Secretary Robert M. Gates at a news conference this afternoon announcing General McKiernan’s dismissal.
Gates tried to smooth it over a bit (generals and admirals don’t like to be handled like this):
Mr. Gates and Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, offered few reasons for General McKiernan’s ouster beyond generalities that “fresh eyes” were needed. “Nothing went wrong and there was nothing specific,” Mr. Gates said. It was simply his conviction, he added, “that a new approach was probably in our best interest.”
The media will give you the boilerplate on McChrystal’s career including his recent stint as commander of the Joint Special Operations Command who ran all special operations in Iraq (and his part in the Pat Tillman investigation which wasn’t quite as sterling).
But there’s more to it than just the fact that he commanded JSOC in Iraq. As abu muqawama points out, there was a big improvement in JSOC after McChrystal took command and how that impressed a certain other commander:
I do know that many policy-makers and journalists think that McChrystal’s work as the head of the super-secret Joint Special Operations Command was the untold success story of the Surge and the greater war on terror campaigns. I also know that McChrystal and David Petraeus forged a close working relationship in Iraq in 2007 and have much respect for one another. (Prior to 2007, the relations between the direct-action special operations task force and the overall command in Iraq were strained at best.)
So my guess is that Gen. Petraeus had a hand in McKiernan’s new status as “former commander”. Apparently he wasn’t seeing in McKiernan the type of thinking Petraeus feels is necessary to win in Afganistan. He may see in McChrystal the type of outside-the-box thinking he feels is necessary to turn the effort around there.
I do not know if the war in Afghanistan is winnable. But I do know that Stan McChrystal is an automatic starter in anyone’s line-up.
Frankly, I’m pleased with the move. Time will tell if it pans out, but it shows me a seriousness about the war in Afghanistan that I wasn’t sure existed within this administration. This isn’t a half-hearted move. Tip of the cap to the Obama administration for doing what I believe is necessary to move the war forward in a positive manner. Credit where credit is due and all of that.
Earlier in the week I pointed out that the Obama administration was defending their assumed right to continue the wiretaps they so roundly condemned when the Bush administration did them.
And, of course, we all remember the consistent condemnation by candidate Obama of Guantanamo Bay and the denial of habeas to prisoners there as a horrible denial of rights.
Of course that was then and this is now, and it appears what was considered a principled stand now appears nothing more than election year rhetoric.
The Obama administration said Friday that it would appeal a district court ruling that granted some military prisoners in Afghanistan the right to file lawsuits seeking their release. The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight.
But that was a mortal sin when BushHitler was in charge, wasn’t it?
As Insty reminds us:
Yeah, it’s as if all that talk about the evil power-grabs of the Bush Administration was just insincere electioneering. What made those power-grabs evil, in Obama’s eyes, wasn’t that they were power-grabs. It was that they were by the Bush Administration.
Reality intruded on President Obama’s magical mystery tour in Europe today as NATO ministers turned a deaf ear to his plea for more troops in Afghanistan:
Gordon Brown was the only one to offer substantial help. He offered to send several hundred extra British soldiers to provide security during the August election, but even that fell short of the thousands of combat troops that the US was hoping to prise from the Prime Minister.
Just two other allies made firm offers of troops. Belgium offered to send 35 military trainers and Spain offered 12. Mr Obama’s host, Nicolas Sarkozy, refused his request.
Of course this had all been predicted by those who’ve been watching NATO and Europe for years (which would include us here at QandO). Western Europe, which forms the bulk of NATO, for the most part has no stomach for the war in Afghanistan, heck, they barely have a stomach for their own defense. Instead of the thousands troops, Obama was sure he’d be able to charm from them he’ll see 547 to 747 more troops, most from the UK, while the US sends 21,000.
While the school girls and press may be enamored with the charm and glamor of Obama, one of the major reasons for his trip turns out to be an unsurprising failure.
A federal judge ruled on Thursday that prisoners in the war on terror can use U.S. civilian courts to challenge their detention at a military air base in Afghanistan.
U.S. District Judge John Bates turned down the United States’ motion to deny the right to three foreign detainees at Bagram Airfield in Afghanistan.
The U.S. Supreme Court ruled last year that detainees at Guantanamo Bay, Cuba, have the right to challenge their detention in court. But the government had argued that it did not apply to those in Afghanistan.
Bates said the cases were essentially the same and he quoted the Supreme Court ruling repeatedly in his judgment and applied the test created by it to each detainee. It is the first time a federal judge has applied the ruling to detainees in Afghanistan.
Similarly, extending habeas corpus rights to prisoners detained on the battlefield is an exercise in futility. Of course, that ship sailed with the ruling in Boumediene v. Bush. I’m not sure what argument the government could make that any prisoners under the control of the U.S., regardless of where they are being held, are not entitled to some sort of habeas proceeding. And since the very procedures deemed constitutionally valid by the Supreme Court in Hamdi were struck down as inadequate in Boumediene, I don’t know what options are actually left to the Obama administration other than the unsavory prospect of field executions.
Barring a contrary ruling from the Supreme Court, I think this most recent case proves the point.
But, Ed Morrissey seems to think the Bates’ decision does much more. Where he (reasonably) finds that the foregoing is an unconstitutional interjection of the judiciary into matters delegated to the Executive, Ed also seems to think that Bates’ order violates the Geneva Conventions (his bolding applied):
Not only does this violate the separation of powers in the Constitution, it actually violates the Geneva Convention. Article 84 states clearly that prisoners of any stripe shall not get tried in civil courts:
A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.
In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.
We do not try our military personnel in civil court for offenses committed in the service. Therefore, we do not have the right to try prisoners in our civil courts, either.
There are a few problems with that conclusion:
(1) The detainees are not being tried. They’re challenging their detention. Another way of putting it is that they’re the plaintiffs in such an action (habeas hearing) as opposed to the defendants (as in a trial).
(2) Civilian courts may be used under the GC where the crimes/offenses alleged are already illegal (i.e. no a bill attainder or ex post facto law) and the court procedures provide the minimum guarantees set forth in the GC (this is spelled out in the rest of Ed’s Article 84 excerpt starting with “unless”).
(3) The Boumediene decision pretty much made this ruling necessary since the SCOTUS designated anywhere under U.S. control as being “U.S. territory”, with a few exceptions. An active battlefield is one of them IIRC and the judge may have decided that Bagram AFB doesn’t qualify.
In fact, on that last point, Judge Bates specifically noted that:
… non-Afghan detainees captured outside the country and moved to Bagram for a lengthy detention should have access to the courts to prevent the United States from being able to “move detainees physically beyond the reach of the Constitution and detain them indefinitely.”
As Boumediene is written, I think Bates got it exactly right. I do think that the entire line of reasoning and case law is incorrect from both a policy and constitutional basis, but Judge Bates is required to follow Supreme Court precedent. That his ruling serves as a perfect example how reductio absurdum can happen in real life doesn’t make him wrong.
Furthermore, I don’t see how allowing detainees to challenge their detention could possibly violate the Geneva Conventions. Again, that does not mean detainees should be afforded such rights, just that such a grant does not in any way run counter to either the letter or spirit of those treaties.
I‘m headed to a rather somber ocassion, where the family of a young paratrooper who served with the 173rd Airborne Brigade Combat Team will be presented his posthumous award of the Silver Star. It will be awarded in the high school auditorium from which he graduated.
I did aSomeone You Should Know segement about the fight in Wanat, Afghanistan where 9 soldiers lost their life. But they gave much better than they got, killing well over 100 Taliban and al Qaeda.
The young man being honored today is Cpl. Joseph Ayers. This from the script of the SYSK delivered on WRKO 680am, Boston on Pundit Review Radio:
At another spot on the observation post, Cpl. Jonathan Ayers laid down continuous fire from an M-240 machine gun, despite drawing huge volumes of small-arms and RPG fire from the enemy.
The enemy put everything they had into knocking out that machine gun. At least 5 or 6 RPGs exploded all around him and he never even flinched. Those that saw what he did said, “He just kept rocking on that 240.”
The survivors said it was the most heroic thing they’d ever seen. Like a movie. They feel he saved their lives. He kept the enemy from getting anywhere near COP. And Ayers kept firing until he was shot and killed.
I’ll have more on this later.
UPDATE: Well that was one heck of a great ceremony. The auditorium was packed. The Patriot Guard lined the room. Old members of the 173rd Airborne Brigade (from my era) were on hand. So were Cpl Ayer’s comrades. His mother had decreed (in a motherly way) that this ceremony not be a memorial service but, instead, a celebration of his life. And that’s precisely what it was. Speaker after speaker talked about Jonathan, his life prior to the Army, the fact that he was the commander of the JROTC unit at Shiloh High School and that the military seemed always to be in his future.
His former company commander, who will receive the Silver Star in a ceremony at Ft. Benning tomorrow, talked about the fact that had it not been for Jon Ayers, he wouldn’t have the honor of standing on that stage addressing Ayer’s family. His mother, Susan, talked about the son she’d lost but was so proud of the man he’d become. And his father brought the house down with a poignant yet humorous remembrance of his son. After the presentation of the Silver Star to the family, the family was the first to leave and then other relatives. When the soldiers who had served with Jon rose to walk out, the entire auditorium stood and applauded them. 16 Sky Soldiers from Chosen Company of the 1st of the 503 Airborne Infantry battalion lost their lives during their tour in Afghanistan. Over 60 of them were awarded Purple Hearts. 14 Silver Stars. One Distinguished Service Cross was awarded to a member of the company and one is pending. And one soldier from the company has been nominated for the Medal of Honor.
It was an inspiring afternoon – one remembering a young man who gave his all for a unit, in which his mother said, he was so proud to serve he found it difficult to express the full depth of his pride. Today they honored him.