The Law Of War - Published by The Office Of DoD General Counsel By Walrus

For the legally minded, The DoD has just released a joint service manual on the law of war, replacing Four individual service tomes.

The blogosphere is now going to forensically study and reinterpret this publication. The works of John Yoo will no doubt get a mention even though he wasn't in the Military, as will various cases.

For what it's worth, the link is below. I must find my copy of "The Caine Mutiny". 

http://www.defense.gov/pubs/Law-of-War-Manual-June-2015.pdf

Comments

[mbrenner]

An immediate thought is that law and regulations do not have the authority they had formerly. Nowadays, Chief Executives, Agency heads, military commanders et al have assumed the prerogative to interpret and often reinterpret them so as accommodate their policies. The history of the GWOT is replete with many cases of this sort. The same phenomenon is observable in the behavior of domestic agencies. As for the courts, including - indeed, especially the Supreme Court - have granted themselves generous latitude for imposing their own political biases with only a cursory bow to legal reasoning, as we currently are witnessing with the Affordable care Act and AIG bailout.

Under these circumstances, what is written in the new manual on The Law Of War should be taken with a grain of salt. The words, whatever they are, await the next John Yoo and we can do next to nothing about it. The American legal system has been made hostage to contingency.

[ex-PFC Chuck]

Whereas until several decades ago most poobahs sought to behave honorably and thus steered clear of the boundaries of the law, in recent years it's become common to so closely to the wind of the law that it's become a boast of pride when they can say, “But I wasn't indicted!”.

[The Twisted Genius]

War is an abomination. Laws of war are an attempt to make this endeavor a little less abominable. That's a good thing. Just remember we are just taking a few rough edges off an abomination.

Unprivileged belligerents... interesting catchall term. IMHO this is saying that when we invade and occupy your land, you have no right to shoot, stab, poison or blow up our soldiers. Just sit there and behold our awesomeness. It gives a whole new meaning to Steinbeck's "The Moon is Down." I would think spying, sabotage, assassination and all manner of clandestine activity to defend one's home and family is not just a right, but a duty.

[confusedponderer]

"Nowadays, Chief Executives, Agency heads, military commanders et al have assumed the prerogative to interpret and often reinterpret them so as accommodate their policies. The history of the GWOT is replete with many cases of this sort."

Absolutely and the invention of the 'enemy combattant' by Bush's silvertongues is a case in point.

Even though implausible from the onset and in no conceivable way reconcilable with either the wording or the spirit of the *all encompassing* Geneva Conventions (under which you're either a combattant or a civilian) i.e. there never was that third category 'enemy combattant' they pulled out of their collective legal rears), to which all the limitations of the Geneva Conventions conveniently didn't apply. The Bush administration pushed the line with a straight face.

They divined that up because then wanted to not treat ptrisoners in accordance with Geneva III and IV (i.e. torture them) and needed an excuse, which the silvertongies readily provided, however implausibly. The arguments made make that unmistakably clear.

Not that that implausibility proved to be much of an obstacle:

US media obligingly accepted in that argument, after all, there were evildoers to punish. It becamwe a poartisan issue and not a legal one. And given the revolving door between administration and academia this line was also pushed by former-assistant-undersecratary-for-whatnot type academics. To go against that would have closed the revolving door, and the partisan climate made dissent even less attractive.

All in all proof that an administration can just BS themselves through on an argument if they can keep up that straight face long enough.

In case of torture that worked splendidly, so much so, that one was given the unforgivable and revolting spectacle of Republican presidential contenders out-enthusing each other about how much they liked to mistreat prisoners and how much they liked torture. Iirc that moron Romeney wanted to double Gunatanano. And all that to mindless applause.

Ron Paul and John McCain, though an utter nut in many ways, were the notable exceptions.

"The American legal system has been made hostage to contingency."

Much more than that: Speaking of the enemy combattants, not just the American legal system, the American political system, too, and in a broader context, international (humanitarian) law also.

[William R. Cumming]

Agree and John Woo's progeny already on board IMO!

[William R. Cumming]

A refreshing effort even as this nation-state no longer declares WAR but does try and convince its citizens and residents that a PERMANENT STATE OF WAR EXISTS.

And the rules that attempted to civilize war for those in UNIFORM since Hugo Grotius now largely passe' IMO since the preferred method of organized violence even for NATION-STATES is non-uniformed violence with little reference tom DUTY, HONOR, COUNTRY but instead give me my paycheck.

Just as I always worried the World has slipped into a new DARK AGE after the hot and cold wars of the 20thth Century and none seem willing to stop it or admit it.

If the WORLD could only be able to look back after passage of a couple of centuries the self-destruction of a now barely habitable planet for those living might will cause traumatic stress.

Once again the disarray in the EU could be influenced by the USA but we pretend to not be involved.

[The Beaver]

Here come the "peacemakers" a la solde of Israel and KSA :

http://www.nytimes.com/2015/06/25/world/middleeast/former-advisers-caution-obama-on-iran-nuclear-talks.html?_r=0

"The letter emerged from a study group on nuclear issues organized by the Washington Institute for Near East Policy, a policy institute. Because only members of the group worked on the statement, it omits some former major players in the Obama administration’s Iran policy, notably Hillary Rodham Clinton, who will have to decide whether to embrace any final deal."

Dennis Ross and Petraeus amongst the signatories _ who is surprised ? When anything else fails , why not using WINEP!!!

[William R. Cumming]

Actually its the deep corruption of the legal profession IMO with signatures for sale!

[confusedponderer]

WRC,
"as this nation-state no longer declares WAR but does try and convince its citizens and residents that a PERMANENT STATE OF WAR EXISTS."

I would disagree with you on cause and effect. IMO you get it backwards: The root cause here is not any plan to persuade the citizens that a permanent state of war exists. There is no such plan.

At the root lies the idea of exceptionalism and the derived exclusive sense that the US, as an indispensable nation, is called upon to right the world's perceived wrongs, and the way it is put into action. Nobody put it ever more pointedly as Madeleine Albright:

"... if we have to use force, it is because we are America; we are the indispensable nation. We stand tall and we see further than other countries into the future, and we see the danger here to all of us."

Spoken at the time the US went on their still ongoing extra-legal rampage that started with the Kosovio war.

The tool of choice the US has used ever since was the military. The permanent war that you refer to is merely the result of the promiscuous use of military force abroad ever since, which expanded and accelerated after 9/11 when the US were, for once, truly attacked.

[Lars]

The entire multi-billion legal industry is based on two small words:

It depends.

[annamaria]

There seems to be a leaning towards institutionalizing and legalizing a union between the war profiteers in weapon manufacturing and war profiteers in the US government:
http://www.counterpunch.org/2015/06/25/physicist-for-war-and-profit/#

[oofda]

Need to read the Service Manual to see what it actuallly says. Remember that the service JAGs and some service heads were against the loose interpretation of Yoo and the rest of the Bush Administration. They wanted to retain the old rules, which I suspect this contains. Yoo is not going to be able to travel overseas. His willful dismissal of over century of U.S. military law regarding torture and waterboarding will haunt him forever.

[LeaNder]

"Under these circumstances, what is written in the new manual on The Law Of War should be taken with a grain of salt. "

If I may aia my own very associative thought?

Two things enter my head:
cross-border leasing. Communities here in Germany apparently were looking for sponsors. In the event a lot of century old canalization, that's what surfaces, was looking for money for necessary repair. Usually in communities that already were in dire straits due to a changing world. The contracts always were just as this over 1000 pages long. Who could the communities with legal expertise have hired and considering they were in dire straights already what would his/her expertise have cost themP

The second thing that comes to my mind is EU legislation. Mind you I never ever checked, if it is true. But it felt there must be some truth to it, and strictly the only one that could have left this memory-trail in this respect was/(is?) lawyer working for the EU.

Anyway: the law regulating the cucumber apparently is hundreds of pages long. OK, maybe it is more likely he made a joke. ;)

Nevertheless, over here in Europe apples mysteriously seem to have the same size, just as cucumbers grow very, very straight only to fit into the boxes. There are very, very few exceptions to this rule, like my farmer.

Now, apart from your complaint, apart from my utter puzzlement about how suddenly farmers manage to only raise straight cucumbers, in spite of the fact that I would like them to grown any way they want, how can anyone expect that any soldier recalls these "rules of war", much less if one considers the fact that research shows that we remember a rather limited amount of what we read.

[William R. Cumming]

Perhaps you are correct! But the annual defense budget accepts war as permanent IMO!

[William R. Cumming]

That is why one-handed lawyers in short supply! On the one hand-and then on the other hand.

[Matthew]

TTG; You would think that we of all people would be more sympathetic to the right of other people to attack foreign invaders.

[turcopolier]

LeAnder

US officers are indoctrinated/taught the law of land warfare every few years throughout their careers. pl

[JerseyJeffersonian]

Confusedponderer and all,

Yes, indeed, the tool of choice has become some form of violence, whether military, economic, or cultural, or some combination thereof. Ambassador Charles Freeman delivered an address on 13 June, 2015 speaking to the collapse of diplomacy being exercised by the United States:

http://chasfreeman.net/too-quick-on-the-draw-militarism-and-the-malpractice-of-diplomacy-in-america/

We have adopted the practices of our bestest pals the Israelis, the neighborhood bully of the Middle East - torture, collective punishment, indiscriminate sanctions. I attribute this to the continuing and pervasive influence of the NeoCons, the Zionist vanguard, whose advocacy for thuggery as first recourse is manifestly inappropriate for this nation. But there you have it.

Lie down with dogs, get up with fleas.

[confusedponderer]

Freeman is right on. Paul Pillars echoes some of his points in a recent piece:

"One of the unfortunate corollaries of American exceptionalism is a warped and highly asymmetric conception of negotiation. This conception can become a major impediment to the effective exercise of U.S. diplomacy.

Although the attitudes that are part of this view of negotiation are not altogether unique to the United States, they are especially associated with American exceptionalist thinking about the supposed intrinsic superiority of U.S. positions and about how the sole superpower ought always to get its way.

The corollary about negotiation is, stated in its simplest and bluntest terms, that negotiation is an encounter between diplomats in which the United States makes its demands — sometimes expressed as “red lines” — and the other side accepts those demands, with the task of the diplomats being to work out the details of implementation. Or, if the other side is not going along with that script and acceding to U.S. demands, then the United States has to exert more pressure on the other side until it does accede.

This is markedly different from the rest of the world’s conception of negotiation, in which each side begins with positions that neither side will get or expects to get entirely, followed by a process of give-and-take and mutual concession to arrive at a compromise that meets the needs of each side enough that it is better for each than no agreement at all.
...
A consequence of this view is to regard concessions and compromise not as necessary parts of negotiation but instead as a source of shame or a badge of weakness. We have seen this amid the flak the Obama administration is taking from its political opponents regarding its handling of the nuclear negotiations with Iran."

The childish tendency to personalise enemies (not Syria but Assad, not Russia but Putin etc pp) only makes it worse. No pol or pundit in the US can talk about Russia without succumbing to the puerile compulsion to ridicule Putin in at least some way.

https://consortiumnews.com/2015/06/21/americas-exceptional-negotiations/

I.e. when the US foolishly call for that villain Assad to commit suicide (only to be enraged and perplexed when he shows signs of self preservation - leading to more rightous indignation at him 'prolonging the war'), or call upon Putin to ... go away (and be prplexed when he doesn't), it is because they don't know better.

They believe that demanding unconditional surrender is what negotiations is about.

You always have a winner in football. American preferences and ideas about outcomes are mirrrored in their preferences in sport it seems.

Soccer knows draws. Many Americans thus think it sucks. Diplomacy is all about draws.

[William R. Cumming]

CP thanks for your comment! INDISPENABLE NATIONS may be self-disposable?

[William R. Cumming]

Terrific comment IMO!

[William R. Cumming]

P.L.! No rush but at least with respect to the Army, including Reserves and NG, how does selection for service schooling work and is there 100% coverage?

[turcopolier]

WRC

In general the promotion, service schools and civil schooling selection systems work the same in the US Army. The basic phenomenon is that as the level rises the percentage selected declines. pl

[LeaNder]

thanks, pat.

I recall one positive reading by yours of the "indoctrination/training", without which I probably would have never learned to be interested in the side of the military. At least I guess. ...