Not Agreeing With Power Line Here

Posted on | May 22, 2010 | 26 Comments

by Smitty

In discussing Captain Merrill’s defense of Elena Kagan in the WaPo (which I’ll studiously take at face value), Paul at Power Line laments:

it’s unfortunate that we’ve reached the point where the military feels constrained to have a legal adviser serving in a Marine infantry batallion. I hope that the actions of this batallion are based solely on military considerations such as killing the enemy and protecting the lives of our forces, as opposed to legal advice.

Having had the privilege of attending the Naval War College and taking a course in the Law of the Sea / Law of Armed Conflict, it’s just an oversimplification to think “actions. . .based solely on military considerations” happen above the tactical level anymore. The Information Age has rendered Rules of Engagement trickier than anyone cares for, and the speed, range and ferocity of modern weapons are such that having a legal beagle on hand is more a feature than a bug.

No one wants to be associated with the next My Lai. The fact that the Military lever of national power is intimately connected with the Diplomatic, Informational and Economic levers, DIME for short, means that reasonable and legal (if tragic) actions will be turned into My Lai incidents, or have we not heard of Haditha?

Whether greater legal presence at Haditha would have made a difference is a matter of speculation, and tangential to my point. What I’m pursuing here is the recognition that the legal system has become just another front, and failure to guard the courtroom flank is exactly that.

Category: Military, Power Line

Comments

26 Responses to “Not Agreeing With Power Line Here”

Major Scarlet
May 22nd, 2010 @ 12:31 pm

“that reasonable and legal (if tragic) actions will be turned into My Lai incidents, or have we not heard of Haditha?”

yet we hear very little about the killings and death that Sri Lanka dealt to the Tamils since they violently ended their civil war. two very big take aways that our military leaders don’t want to hear are “put the media and anti-war NGOs in a room and lock the door” and “kill anyone that gets in the way of you winning”.

honestly, our leaders today would rather lose a war than violate the Geneva Conventions. there is a reason we’ve been so unsuccessful since WWII.. it’s the GCs. Losing is not sound strategy. No Victory, No Peace.
Major Scarlet
May 22nd, 2010 @ 7:31 am

“that reasonable and legal (if tragic) actions will be turned into My Lai incidents, or have we not heard of Haditha?”

yet we hear very little about the killings and death that Sri Lanka dealt to the Tamils since they violently ended their civil war. two very big take aways that our military leaders don’t want to hear are “put the media and anti-war NGOs in a room and lock the door” and “kill anyone that gets in the way of you winning”.

honestly, our leaders today would rather lose a war than violate the Geneva Conventions. there is a reason we’ve been so unsuccessful since WWII.. it’s the GCs. Losing is not sound strategy. No Victory, No Peace.
smitty
May 22nd, 2010 @ 12:41 pm

@Major Scarlet,
Negative. The GCs codify civilized practice, not losing.

No, foppish jackasses who think they can outlaw/ignore/reclassify war are the root problem.
smitty
May 22nd, 2010 @ 7:41 am

@Major Scarlet,
Negative. The GCs codify civilized practice, not losing.

No, foppish jackasses who think they can outlaw/ignore/reclassify war are the root problem.
Joe
May 22nd, 2010 @ 1:21 pm

Major Scarlett, Iraq and Afghanistan are not WWII, but more akin to Vietnam and Malaysia. It is very difficult to protect a population from an insurgent ruthless force without alienating that population. Iraq turned when the locals (many who were fighting us) decided they were far better off with the U.S. Army and Marines than they were with Al Qaeda in Mesopotamia. The GC do not prevent that from happening, they actually promote it.

While I suppose a lawyer or two might be helpful, what the troops really need are more translators and building relationships and connections with locals. Iraq was initially done as a centralized plan out of the Green Zone run by DC and it failed miserably. When Patreaus put the emphasis on FOBs working closely with local leaders, things turned around (that and al Qaeda’s ruthless behavior).
Joe
May 22nd, 2010 @ 8:21 am

Major Scarlett, Iraq and Afghanistan are not WWII, but more akin to Vietnam and Malaysia. It is very difficult to protect a population from an insurgent ruthless force without alienating that population. Iraq turned when the locals (many who were fighting us) decided they were far better off with the U.S. Army and Marines than they were with Al Qaeda in Mesopotamia. The GC do not prevent that from happening, they actually promote it.

While I suppose a lawyer or two might be helpful, what the troops really need are more translators and building relationships and connections with locals. Iraq was initially done as a centralized plan out of the Green Zone run by DC and it failed miserably. When Patreaus put the emphasis on FOBs working closely with local leaders, things turned around (that and al Qaeda’s ruthless behavior).
Frank
May 22nd, 2010 @ 1:24 pm

@Smitty,
It’s interesting that you justify your misguided opinion on having taken courses from the very people you support: the adjutants. Further, you strongly imply that military decisions on the battlefield must be made only after commanders obtain advice from legal aides. Why have commanders? Why not save money and time by turning commands over to the adjutants? Wouldn’t that be more practicable?

You cite My Lai and Haditha as exemplars of a problem. Fact: at My Lai, William Calley was the problem, not lack of legal advice and such risk will always be with us. Fact: Haditha was not the problem; Political correctness — i.e., take the word of American media and/or the battlefield enemy over the word of American military officers — was the problem, not lack of legal advice.
Frank
May 22nd, 2010 @ 8:24 am

@Smitty,
It’s interesting that you justify your misguided opinion on having taken courses from the very people you support: the adjutants. Further, you strongly imply that military decisions on the battlefield must be made only after commanders obtain advice from legal aides. Why have commanders? Why not save money and time by turning commands over to the adjutants? Wouldn’t that be more practicable?

You cite My Lai and Haditha as exemplars of a problem. Fact: at My Lai, William Calley was the problem, not lack of legal advice and such risk will always be with us. Fact: Haditha was not the problem; Political correctness — i.e., take the word of American media and/or the battlefield enemy over the word of American military officers — was the problem, not lack of legal advice.
Major Scarlet
May 22nd, 2010 @ 1:56 pm

smitty,
war is not a civilized practice. “dehousing” of german civilians wasn’t civilized nor was dropping nukes on japan. General Sherman would be tried for war crimes today had he conducted his march in today’s legal environment.

yet they were effective because they were brutal measures that ensured our enemies understood they were beaten, thus unlocking that psychological mechanism in most humans to bow down and behave. since the GC’s, we haven’t been able to truly beat anyone.

so IMO, codifying civilized practice ensures losing. if you are having trouble recognizing that.. pick any post GC war and tell me how we achieved peace and victory on our terms.

Joe,
it isn’t difficult to protect the population if you have enough forces. how many divisions did we have during WWII.. i think around 44. can you imagine if we had those numbers in Iraq/Afghanistan right now. the borders would be sealed taking away the fundamental problem we are faced with which is the enemy’s “unassailable base of operations”. you give Petraeus more credit than he deserves. there were many things going on at the time the surge implemented that accelerated the de-escalation of violence and they had more to do with internal iraqi politics than Petraeus. Petraeus wanted to try the same strategy in Afghanistan and completely misjudged the situation.
Major Scarlet
May 22nd, 2010 @ 8:56 am

smitty,
war is not a civilized practice. “dehousing” of german civilians wasn’t civilized nor was dropping nukes on japan. General Sherman would be tried for war crimes today had he conducted his march in today’s legal environment.

yet they were effective because they were brutal measures that ensured our enemies understood they were beaten, thus unlocking that psychological mechanism in most humans to bow down and behave. since the GC’s, we haven’t been able to truly beat anyone.

so IMO, codifying civilized practice ensures losing. if you are having trouble recognizing that.. pick any post GC war and tell me how we achieved peace and victory on our terms.

Joe,
it isn’t difficult to protect the population if you have enough forces. how many divisions did we have during WWII.. i think around 44. can you imagine if we had those numbers in Iraq/Afghanistan right now. the borders would be sealed taking away the fundamental problem we are faced with which is the enemy’s “unassailable base of operations”. you give Petraeus more credit than he deserves. there were many things going on at the time the surge implemented that accelerated the de-escalation of violence and they had more to do with internal iraqi politics than Petraeus. Petraeus wanted to try the same strategy in Afghanistan and completely misjudged the situation.
Fred Beloit
May 22nd, 2010 @ 2:17 pm

Marine Captains and other military officers on active duty have no business taking sides in political efforts of the left or right, except to support campaigns financially and vote. Captain, please shut up.
Thank you.
Formerly 1st Lt. of Infantry, USAR.
Fred Beloit
May 22nd, 2010 @ 9:17 am

Marine Captains and other military officers on active duty have no business taking sides in political efforts of the left or right, except to support campaigns financially and vote. Captain, please shut up.
Thank you.
Formerly 1st Lt. of Infantry, USAR.
Joe
May 22nd, 2010 @ 2:24 pm

Major Scarlett, whose decision was it to go into Iraq light? While it worked initially in Afghanistan it didn’t work so well in Iraq.

Iraq and Afghanistan have some similarities (in enemy) but are very different places in geography, history and populations. I am with you that we do not need or want to second guess commanders in the field trying to keep their soliders and marines alive and accomplish the mission. Militarily, our forces win deceively every time and do so professionally and with minimum civilian casualties. Our biggest problem in Iraq and Afghanistan was clearing an area and then having al Qaeda come in afterward and kill our allies and create mayhem in our wake. We didn’t have the troops then and we don’t have enough troops right now to fully police both places, so we have to work with locals to do it (and given what we are trying to accomplish, that makes long term sense). And even in WWII with those 44 divisions, we were spread out rather thin in a lot of locations. We had to coop locals then too.
Joe
May 22nd, 2010 @ 9:24 am

Major Scarlett, whose decision was it to go into Iraq light? While it worked initially in Afghanistan it didn’t work so well in Iraq.

Iraq and Afghanistan have some similarities (in enemy) but are very different places in geography, history and populations. I am with you that we do not need or want to second guess commanders in the field trying to keep their soliders and marines alive and accomplish the mission. Militarily, our forces win deceively every time and do so professionally and with minimum civilian casualties. Our biggest problem in Iraq and Afghanistan was clearing an area and then having al Qaeda come in afterward and kill our allies and create mayhem in our wake. We didn’t have the troops then and we don’t have enough troops right now to fully police both places, so we have to work with locals to do it (and given what we are trying to accomplish, that makes long term sense). And even in WWII with those 44 divisions, we were spread out rather thin in a lot of locations. We had to coop locals then too.
Joe
May 22nd, 2010 @ 2:32 pm

And I have to agree with Frank about My Lai and Haditha. The former was an out of control officer (who was stopped by a helicopter piolot not a lawyer). The latter was a tragic accident that happens in war (despite the prejudging of ex-Marine Murtha).

But I disagree with Major Scarett that the way to acheive victory in Iraq and Afghanistan is to go all Roman on the population. We are trying to acheive a political goal here. Sometimes you have to do what you have to do to defeat a determined evil enemy (i.e., Hiroshima), but this might not be the forum to use Sherman as an example of how to win wars.
Joe
May 22nd, 2010 @ 9:32 am

And I have to agree with Frank about My Lai and Haditha. The former was an out of control officer (who was stopped by a helicopter piolot not a lawyer). The latter was a tragic accident that happens in war (despite the prejudging of ex-Marine Murtha).

But I disagree with Major Scarett that the way to acheive victory in Iraq and Afghanistan is to go all Roman on the population. We are trying to acheive a political goal here. Sometimes you have to do what you have to do to defeat a determined evil enemy (i.e., Hiroshima), but this might not be the forum to use Sherman as an example of how to win wars.
smitty
May 22nd, 2010 @ 3:00 pm

@Major Scarlet,
“codifying civilized practice ensures losing”

Taking you argument as far as it goes, why not depopulate areas with which we’re having problems?

The answer is that we have to live with ourselves.

You may not agree, and I may be proven wrong, but I think that the bulk of military leaders in the past have found some operating point short of total war.
smitty
May 22nd, 2010 @ 10:00 am

@Major Scarlet,
“codifying civilized practice ensures losing”

Taking you argument as far as it goes, why not depopulate areas with which we’re having problems?

The answer is that we have to live with ourselves.

You may not agree, and I may be proven wrong, but I think that the bulk of military leaders in the past have found some operating point short of total war.
proof
May 22nd, 2010 @ 4:44 pm

Regardless of how many lawyers the military needs or where they should be stationed, there is definitely a need for military lawyers. For Kagan to stand in the doorway and not allow recruiters access to these up and coming lawyers is to deprive them of the opportunity to serve our nation and the nation to be served by them.

The fact that she broke the law to do it should drive a stake through the heart of her nomination, but sadly, I fear it will not.
proof
May 22nd, 2010 @ 11:44 am

Regardless of how many lawyers the military needs or where they should be stationed, there is definitely a need for military lawyers. For Kagan to stand in the doorway and not allow recruiters access to these up and coming lawyers is to deprive them of the opportunity to serve our nation and the nation to be served by them.

The fact that she broke the law to do it should drive a stake through the heart of her nomination, but sadly, I fear it will not.
Joe
May 22nd, 2010 @ 5:56 pm

proof. I am going with the assumption Kagan will be very bad (just like Sotomayor will be bad). That way if she does turn out to be half way good-bad, I will be pleasantly surprised. But I am also pretty sure Obama’s alternatives are at least as bad as Kagan (some may be far worse). And since Obama controls the Senate (and the GOP will need a significant reason to maintain a filibuster–and this military recruiter issue is not in itself enough*) and Kagan is replacing another liberal justice…I would rather flush out her positions in the hearing.

Let’s just pray really really hard that Scalia, Thomas, Roberts, Alito and Kennedy stay healthy until Obama is out of office. If the unthinkable happens, save a filibuster for that (heck we might have the Senate by then).

*Remember Summers got pillared at Harvard for having the termerity to suggest women and men might be different (Different? That is the whole reason I am attracted to women!). PC violations are a huge thing at Harvard and Kagan was a political person who had to tow that long gray PC line (so to speak). That does not excuse the decision, it was completely wrong, but that’s east coast Ivy League institutions for ya.
Joe
May 22nd, 2010 @ 12:56 pm

proof. I am going with the assumption Kagan will be very bad (just like Sotomayor will be bad). That way if she does turn out to be half way good-bad, I will be pleasantly surprised. But I am also pretty sure Obama’s alternatives are at least as bad as Kagan (some may be far worse). And since Obama controls the Senate (and the GOP will need a significant reason to maintain a filibuster–and this military recruiter issue is not in itself enough*) and Kagan is replacing another liberal justice…I would rather flush out her positions in the hearing.

Let’s just pray really really hard that Scalia, Thomas, Roberts, Alito and Kennedy stay healthy until Obama is out of office. If the unthinkable happens, save a filibuster for that (heck we might have the Senate by then).

*Remember Summers got pillared at Harvard for having the termerity to suggest women and men might be different (Different? That is the whole reason I am attracted to women!). PC violations are a huge thing at Harvard and Kagan was a political person who had to tow that long gray PC line (so to speak). That does not excuse the decision, it was completely wrong, but that’s east coast Ivy League institutions for ya.
richard mcenroe
May 22nd, 2010 @ 9:45 pm

The problem with your Naval War College theory, Smitty, is that it doesn’t scale down.

The CO of a carrier BG has time to seek advice and legal counsel when the radar shows an Airbus taking off from Iran 300 miles away and heading for his flaghip. The captain of a frigate with a speedboat closing from 500 yards off the port bow doesn’t. The butterbar or 1LT commanding a platoon in contact in scenic Sidi an-Dusti damn sure doesn’t.

During Vietnam there were stories of LBJ giving direct orders to line companied from the basement of the White House. There were certainly instances of generals and colonels trying to lead from air-conditioned conexes back on the firebase or helicopters thousands of feet above the battleground with no appreciation of the ground realities. The result was usually dead Americas.

Right now our troops are operating against the Taliban with lawyer-drawn rules of engagement more restrictive than those the NYPD or Los Angeles Sheriff’s Deputies. This is unrealistic and will lead to American deaths and a failed mission.
richard mcenroe
May 22nd, 2010 @ 4:45 pm

The problem with your Naval War College theory, Smitty, is that it doesn’t scale down.

The CO of a carrier BG has time to seek advice and legal counsel when the radar shows an Airbus taking off from Iran 300 miles away and heading for his flaghip. The captain of a frigate with a speedboat closing from 500 yards off the port bow doesn’t. The butterbar or 1LT commanding a platoon in contact in scenic Sidi an-Dusti damn sure doesn’t.

During Vietnam there were stories of LBJ giving direct orders to line companied from the basement of the White House. There were certainly instances of generals and colonels trying to lead from air-conditioned conexes back on the firebase or helicopters thousands of feet above the battleground with no appreciation of the ground realities. The result was usually dead Americas.

Right now our troops are operating against the Taliban with lawyer-drawn rules of engagement more restrictive than those the NYPD or Los Angeles Sheriff’s Deputies. This is unrealistic and will lead to American deaths and a failed mission.
smitty
May 22nd, 2010 @ 10:38 pm

@richard mcenroe,
The fact that the ROE are AFU is another matter.

The point I’m making is that we need _something_.
smitty
May 22nd, 2010 @ 5:38 pm

@richard mcenroe,
The fact that the ROE are AFU is another matter.

The point I’m making is that we need _something_.

The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

Not Agreeing With Power Line Here

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