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The play’s the thing but blood is its trumpet

Wednesday, March 5th, 2014

[resuscitated by Lynn C. Rees]

A book review of Max Hastings’ book Winston’s War: Churchill, 1940-1945:

John F. Kennedy said that in 1940 Churchill mobilized the English language and sent it to battle. But that was the problem. Churchill saw war in rhetorical terms, as pageantry and drama, as though eloquence alone were enough.

At the beginning of the war Evelyn Waugh joined a new unit of the Royal Marines, for which Churchill, when he was first lord of the Admiralty, was responsible. As Waugh dryly put it in a letter, he was “now in a very fine force which Winston is raising in order to provide himself with material for his broadcasts.” Rhetorical was what these forces and their derring-­do often were.

What Churchill quite failed to grasp was the importance of sheer mass in modern war, as opposed to “The British Way in Warfare.” That was the title of a book published in November 1942 by Capt. B. H. Liddell Hart, the self-appointed, and sometimes self-important, military oracle, in which he returned to his pet theme: England’s greatness had formerly rested on indirect attack and limited aims, a policy tragically forgotten in 1914.

In a fascinating review that Hastings might have quoted, George Orwell summarized this “traditional strategy” favored by Hart, not to say by Churchill: “You attack your enemy chiefly by means of blockade, privateering and seaborne ‘commando’ raids. You avoid raising a mass army and leave the land fighting as far as possible to continental allies.” What few people seemed to have noticed, Orwell went on, was that for the past three years we had “waged the kind of war that Captain Liddell Hart advocated,” and yet neither he “nor anyone else would argue that this war has gone well for us.”

I once leafed through Atkinson’s An Army at Dawn at a local bookstore. I put it down in disgust: Atkinson’s introduction fawned over the World War II-era British Army. Even by our low national standards, glorification of the World War II-era British Army is a silly exercise in American self-loathing. The British Army started the war badly, fought the war badly, and ended the war badly. Its leaders occasionally rose to adequacy but were almost uniformly terrible. Two British generals, Harold Alexander and His Serene Highness Prince Louis Francis Albert Victor Nicholas “Chainsaw” von Battenberg Mountbatten were selected for theater command more for their agreeable temperament than their military talent. The one World War II-era British general of any stature among the Great Captains of History was frowned upon by Churchill and exiled to a military backwater.

While American military leaders insisted on a cross-channel invasion in 1942 and 1943 (which would have failed) and incompetent Soviet military leadership killed uncounted millions of Russian soldiers and civilians, they were right on the big picture: the war in Europe would not end until enough military force was brought to bear on the North European Plain to break the Wehrmacht and destroy the Nazi regime.

Churchill’s indirect approach fantasy was built on the proposition that penny packets of American Allied forces landed in small isolated pockets in Italy or the Balkans would somehow drain away significant amounts of German strength. This drainage would occur despite how indirectly approaching Germany from its “soft” Mediterranean underbelly involved directly and repeatedly banging the American’s Allies’ head against the southern face of the Alps. When Italy tried this same indirection during World War I, it worked so well that they went on to make ten sequels.

In contrast, Churchill vehemently opposed an Allied landing in Provence, the Mediterranean gateway to the only significant gap in the mountain ranges guarding southern Europe. He must have instinctively found its strategic rationality offensive. The Allied landing there in 1944, two months after the Normandy landings, was an outstanding victory (as Churchill, to his credit, gracefully admitted).

Churchill was a brilliant scribbler and weaver of narrative but a mediocre to utterly pathetic strategist. While he rightly recognized the core need for an energizing plot line in underscoring any successful war effort, this was not a unique insight or skill among Allied leaders: FDR and Stalin were also masters of story telling. Consider the opening to Stalin’s famous (in Russia) July 3rd, 1941 speech:

Comrades! Citizens! Brothers and sisters! Men of our army and navy! I am addressing  you, my friends!

This is not “never surrender” “finest hour” “owed by so many to so few” “blood, toil, tears, and sweat” inspirational to Western ears, but it was the first and last time Stalin’s rhetoric was personal. Starved for love from their Little Father for so long, Soviet subjects citizens responded to Stalin’s genocidal terror wooden brand of charisma with alacrity. The difference between Churchill and the other Big Two was that FDR and Stalin remembered that, while a strong strategic story is crucial in war, it is not sufficient unto itself. The Carl observes:

Essentially war is fighting, for fighting is the only effective  principle in the manifold activities generally designated as war.  Fighting, in turn, is a trial of moral and physical forces through the  medium of the latter. Naturally moral strength must not be excluded, for  psychological forces exert a decisive influence on the elements  involved in war.

And reiterates:

Kind-hearted people might of course think there was some ingenious way  to disarm or defeat an enemy without too much bloodshed, and might  imagine this is the true goal of the art of war. Pleasant as it sounds,  it is a fallacy that must be exposed: war is such a dangerous business  that the mistakes that come from kindness are the very worst. The  maximum use of force is in no way incompatible with the simultaneous use  of the intellect. If one side uses force without compunction,  undeterred by the bloodshed it involves, while the other side refrains,  the first will gain the upper hand.

The rationale behind Churchill, Brooke, Fuller, Liddell Hart, and Bernard Law Montgomery’s desire to limit British casualties is understandable: there wasn’t enough white Britons to fight the way the Russians and Americans fought. But the message of war is nothing without its medium: bloodshed. Liddell Hart and fellow advocates of “the British way of warfare” willfully ignored this. Both Fuller and Liddell Hart conjured up an undead and unholy Clausewitz roaming the Somme and Passchendaele battlefields, killing off the best British military talent of the next generation while whispering sweet nothings in Field Marshal Haig’s ear. On Flanders field, the “Mahdi of Mass” sucked the lifeblood out of the British Empire. From where they stood, Clausewitz, a lidless Prussian eye wreathed in flames, could even be the original model for J.R.R. Tolkien’s Sauron (Tolkien fought at the Somme).

But Britain, as Orwell points out, was saturated in Liddell Hart thought. And how did this mindset work in practice?

Miserably.

Churchill’s obsession with striking on the periphery following Liddell Hart’s indirect prescription and “the British Way of Warfare” condemned British soldiers to slaughter in small, inconsequential driblets like Greece, Dieppe, or the Dodecanese. While this may be more emotionally tolerable to the large consequential massacres of World War I, it doesn’t bring you any closer to the Ruhr and so it doesn’t bring you any closer to victory.

The British Army didn’t display much flair for the indirect approach either. The most successful British-only operation of the European theater, El Alamein, was a methodical set-piece battle focused more on boring attrition than splendid maneuver. Eighth Army’s pursuit of the remnants of Panzerarmee Afrika afterward was more dogged than dashing. Slim’s 1945 campaign in Burma was an exception to this general mediocrity but then Slim was exceptional among British commanders in not being a mediocre general. When the British Army really tried something like the indirect approach, the result was usually more Arnhem than Mandalay. A British general could be adequate when you drew a line on a map and ordered them to hold it. Scenarios that relied on maneuver and initiative were doomed.

Material trumps spirit. Material wedded to spirit trumps spirit doubly. The Huns and Japanese emphasized fighting spirit to make up for deficiencies in material. They portrayed Americans as soft paper tigers who relied on fighting the Materialschlacht (battle of material). Yet this propaganda was simplistic, as befitting a Fascist regime. America effectively wed narrative to mass in World War II. FDR, for all his flaws, was a great showman. He peddled an American story that sold well at home, at the front, and overseas.

If FDR had relied on rhetoric or clever indirect approaches alone, as Churchill advocated, the Russians would have ended up in Paris. War is more than shock and awe and the sowing of confusion and disorder in enemy ranks. It is more than a gentle wooing of enemy populations with compelling stories. Confusion wears off and love is fickle but death (from a strictly military perspective) is forever. A critical part of war is making the other fellow die for his country, tribe, or non-state actors guild or, at least, persuasively convincing him that there’s a strong possibility thereof.

If you ignore the physical forces in war, you get the opening phase of Operation Iraqi Freedom. If you ignore the moral forces in war, you get Vietnam. In Vietnam, the U.S. Army killed Vietnamese a plenty but lost the contest of moral forces (the North Vietnamese had the good sense to liquidate their media lackeys and hippies when they got uppity). In the opening phase of OIF, there was a lot of emphasis on psychological effect but not enough emphasis put on physically locking down Iraqi forces. Nathan Bedford Forrest, a master of shock, speed, and maneuver, had two parts to his strategy. A Churchillian war of eloquence may deliver the first part, put the scare into ‘em, but it may fail to deliver the second: and keep it on. Iraqi forces certainly fled and eventually disappeared but no control was exercised over these wandering soldiers. They were allowed to wander off. Large parts of the country were left un-Americaned for too long. The scare was put into them but it wasn’t kept on. Eventually shock and awe, however much there really was, wore off and it was open season on American soldiers. Contrast this with Germany and Japan after World War II. The scare was put on and if it wore off, there were still American troops with guns patrolling the streets to put it back on. And, if the Americans annoyed you, they could always go home and leave you to the tender mercies of the Russians.

The implicit threat of Muscovite hordes may have done more to keep the fear on the Germans and Japanese than anything the Americans did. After all, the Russians had the most effective mix of narrative and mass of the second World War. Marxist-Leninist-Stalinism had the strategic advantage of integrating Clausewitz at its inception. This helped Stalin demonstrate a masterful grasp of mixing politicking and warfare under the direction of politics. If people thought Americans could be bled into disengagement, they were under no illusions that they could do the same to the Russians. If the Russians came, they would break you. They had the narrative of communism to inspire fellow travelers and useful idiots (the first to go into the GULAG when Soviet troops actually arrived) and they had a well-earned reputation for brutality to inspire everyone else. This narrative was backed by masses of tanks, artillery, planes, trains, automobiles, millions of Russian soldiers, and generals who weren’t afraid to use them to the last man.

If today’s Americans need a Churchill to seek strategic inspiration from, especially in wedding story with mass, they’ll have more luck with John Churchill than his loquacious great-great-great-great grandson.

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Heavy breathing on the line: Crouching hero, Hidden nitwit

Saturday, June 15th, 2013

[dots connected by Lynn C. Rees]

Sigh

Sigh

What did Lucius Aemilius Paullus know and when did he know it?

Colonel Hamilton

Colonel Hamilton

Alexander Hamilton thought he knew. And who is Colonel Hamilton (as he so liked to be called) that he should know?

Not (then) Colonel Hamilton

Not (then) Colonel Hamilton

Recommendations on LinkedIn? Glowing:

Je considère Napoleon, Fox, et Hamilton comme les trois plus grands hommes de notre époque, et si je devais me prononcer entre les trois, je donnerais sans hesiter la première place à Hamilton. Il avait deviné l’Europe.

Reviews on RateMyFounder.com? Less glowing:

Consider, the profligacy of his life; his fornications, adulteries and his incests… lol ;)

[He is] an insolent coxcomb who rarely dined in good company, where there was good wine, without getting silly and vaporing about his administration like a young girl about her brilliants and trinkets, yet I lose all patience when I think of a bastard brat of a Scottish pedlar daring to threaten to undeceive the world in their judgment…This creature was in a delirium of ambition; he had been blown up with vanity by the tories, had fixed his eyes on the highest station in America, and he hated every man, young or old, who stood in his way or could in any manner eclipse his laurels or rival his pretensions.

lol :O

GLOWING HERO OF DESTINY:

How far Colo. Hamilton, of whom you ask my opinion as a financier, has turned his thoughts to that particular study I am unable to answer because I never entered upon a discussion on this point with him; but this I can venture to advance from a thorough knowledge of him, that there are few men to be found, of his age, who has a more general knowledge than he possesses, and none whose Soul is more firmly engaged in the cause, or who exceeds him in probity and Sterling virtue…

In every relation, which [he has] borne to me, I have found that my confidence in [his] talents, exertions and integrity, has been well placed. I the more freely render this testimony of my approbation, because I speak from opportunities of information which cannot deceive me, and which furnish satisfactory proof of [his] title to public regard.

fevered preening nitwit:

Hamilton’s character is extremely unfortunate. An opinion has grown out of it, which at present obtains almost universally, that his character is radically deficient in discretion, and therefore [we] ask, what avail the most preeminent talents—the most distinguished patriotism—without the all important quality of discretion? Hence he is considered as an unfit head…and we are in fact without a rallying point. :(

GLOWING HERO OF DESTINY:

Colonel Hamilton was indisputably pre-eminent. This was universally conceded. He rose at once to the loftiest heights of professional eminence by his profound penetration, his power of analysis, the comprehensive grasp and strength of his understanding, and the firmness, frankness, and integrity of his character.

He generally spoke with much animation and energy and with considerable gesture. His language was clear, nervous, and classical. His investigations penetrated to the foundation and reason of every doctrine and principle which he examined, and he brought to the debate a mind filled with all the learning and precedents applicable to the subject. He never omitted to meet, examine, and discover the strength or weakness, the truth or falsehood of every proposition with which he had to contend. His candor was magnanimous and rose to a level with his abilities. His temper was spirited but courteous, amiable and generous, and he frequently made pathetic and powerful appeals to the moral sense and patriotism, the fears and hopes of the assembly, in order to give them a deep sense of the difficulties of the crisis and prepare their minds…

fevered preening nitwit:

An indiscretion got him into trouble with W— for whom he served as confidential secretary; other indiscretions obliged him to leave C— in ?83. He has a little too much pretension and too little prudence.

He is only too impetuous and because he wants to control everything, he fails in his intentions. His eloquence is often out of place in public debates, where precision and clarity are preferred to a brilliant imagination. It is believed that Mr. Hamilton is the author of the pamphlet entitledThe Federalist. He has again missed his mark. This work is of no use to educated men and it is too learned and too long for the ignorant. lol ;)

It was in this Federalist that Col. Hamilton, one of the three fevered GLOWING nitwits OF DESTINY of his epoch, said what he thought Lucius Aemilius Paullus knew and when he knew it:

The experience of other Nations will afford little instruction on this head. As far, however, as it teaches anything, it teaches us not to be enamored of plurality in the Executive. We have seen that the Achæans, on an experiment of two Prætors, were induced to abolish one. The Roman history records many instances of mischiefs to the Republic from the dissensions between the Consuls, and between the Military Tribunes, who were at times substituted for the Consuls. But it gives us no specimens of any peculiar advantages derived to the State from the circumstance of the plurality of those magistrates. That the dissensions between them were not more frequent or more fatal, is a matter of astonishment, until we advert to the singular position in which the Republic was almost continually placed, and to the prudent policy pointed out by the circumstances of the State, and pursued by the Consuls, of making a division of the Government between them. The Patricians engaged in a perpetual struggle with the Plebeians for the preservation of their ancient authorities and dignities; the Consuls, who were generally chosen out of the former body, were commonly united by the personal interest they had in the defence of the privileges of their order. In addition to this motive of union, after the arms of the Republic had considerably expanded the bounds of its empire, it became an established custom with the Consuls to divide the administration between themselves by lot one; of them remaining at Rome to govern the city and its environs; the other taking the command in the more distant provinces. This expedient must, no doubt, have had great influence in preventing those collisions and rivalships which might otherwise have embroiled the peace of the Republic.

Boy

Undoubtedly inspired by Boy, the Aemili Paulli’s kept historian. And Boy did glow for Lucius Aemilius Paullus:

Next morning the two Consuls broke up their camp, and advanced to where they heard that the enemy were entrenched. On the second day they arrived within sight of them, and pitched their camp at about fifty stadia distance. But when Aemilius observed that the ground was flat and bare for some distance round, he said that they must not engage there with an enemy superior to them in cavalry; but that they must rather try to draw him off, and lead him to ground on which the battle would be more in the hands of the infantry.

He refused to let his glow so shine for Gaius Terentius Varro, Paullus’ consular colleague for 216 B.C.:

But Caius Terentius being, from inexperience, of a contrary opinion, there was a dispute and misunderstanding between the two leaders, which of all things is the most dangerous. It is the custom, when the two Consuls are present, that they should take the chief command on alternate days; and the next day happening to be the turn of Terentius, he ordered an advance with a view of approaching the enemy, in spite of the protests and active opposition of his colleague.

Hannibal set his light-armed troops and cavalry in motion to meet him, and charging the Romans while they were still marching, took them by surprise and caused a great confusion in their ranks. The Romans repulsed the first charge by putting some of their heavy-armed in front; and then sending forward their light-armed and cavalry, began to get the best of the fight all along the line: the Carthaginians having no reserves of any importance, while certain companies of the legionaries were mixed with the Roman light-armed, and helped to sustain the battle. Nightfall for the present put an end to a struggle which had not at all answered to the hopes of the Carthaginians.

GLOWING HERO OF DESTINY:

But next day Aemilius, not thinking it right to engage, and yet being unable any longer to lead off his army, encamped with two-thirds of it on the banks of the Apennines…For the other third of his army he caused a camp to be made across the river, to the east of the ford, about ten stades from his own lines, and a little more from those of the enemy; that these men, being on the other side of the river, might protect his own foraging parties, and threaten those of the enemy…Aemilius, dissatisfied with his position, and seeing that the Carthaginians would soon be obliged to shift their quarters for the sake of supplies, kept quiet in his camps, strengthening both with extra guards.

fevered preening nitwit:

After waiting a considerable time, when no one came out to attack him, Hannibal put the rest of the army into camp again, but sent out his Numidian horse to attack the enemy’s water parties from the lesser camp. These horsemen riding right up to the lines and preventing the watering, Caius Terentius became more than ever inflamed with the desire of fighting, and the soldiers were eager for a battle, and chafed at the delay. For there is nothing more intolerable to mankind than suspense; when a thing is once decided, men can but endure whatever out of their catalogue of evils it is their misfortune to undergo…When he took over the command on the following day, as soon as the sun was above the horizon, Caius Terentius got the army in motion from both the camps…

GLOWING HERO OF DESTINY:

Though he had been from the first on the right wing, and had taken part in the cavalry engagement, Lucius Aemilius still survived. Determined to act up to his own exhortatory speech, and seeing that the decision of the battle rested mainly on the legionaries, riding up to the center of the line he led the charge himself, and personally grappled with the enemy, at the same time cheering on and exhorting his soldiers to the charge…

Lucius Aemilius fell, in the thick of the fight, covered with wounds: a man who did his duty to his country at that last hour of his life, as he had throughout its previous years, if any man ever did. As long as the Romans could keep an unbroken front, to turn first in one direction and then in another to meet the assaults of the enemy, they held out; but the outer files of the circle continually falling, and the circle becoming more and more contracted, they at last were all killed on the field; and among them Marcus Atilius and Gnaeus Servilius, the Consuls of the previous year, who had shown themselves brave men and worthy of Rome in the battle.

fevered preening nitwit:

While this struggle and carnage were going on, the Numidian horse were pursuing the fugitives, most of whom they cut down or hurled from their horses; but some few escaped into Venusia, among whom was Caius Terentius, the Consul, who thus sought a flight, as disgraceful to himself, as his conduct in office had been disastrous to his country.

Contemptible, if true“, as our third Vice President once observed.

And that’s why the NSA records (meta)data on all Americans.

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The White Paper and its Critics

Monday, February 11th, 2013

Someone for reasons unknown last week leaked the classified Department of JusticeWhite Paper” on targeting with drone attacks the numerically tiny number of US citizens overseas who have joined al Qaida or affiliated groups. The leak set off an outburst of public debate, much of it ill-informed by people who did not bother to read the white paper and some of it intentionally misleading by those who had and, frankly, know better.

Generally, I’m a harsh critic of the Holder DOJ, but their white paper, though not without some minor flaws of reasoning and one point of policy, is – unlike some of the critics – solidly in compliance with the laws of war, broader questions of international law and the major SCOTUS decisions on war powers. It was a political error to classify this document in the first place rather than properly share it with the relevant Congressional committees conducting oversight

Here it is and I encourage you to read it for yourself:

Lawfulness of Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of al-Qa’ida

Much of this white paper debate has been over a legitimate policy dispute (“Is it a good idea if we use drones to kill AQ terrorists, including American ones?”) intentionally being mischaracterized by opponents of the policy (or the war) as a legal or constitutional question. It is not. The law is fairly settled as is the question if the conflict with AQ rises to a state of armed conflict, which SCOTUS dealt with as recently as Hamdi and for which there are ample precedents from previous wars and prior SCOTUS decisions to build upon. At best, framed as a legal dispute, the opponents of the drone policy would have a very long uphill climb with the Supreme Court. So why do it?

The reason, as I discern it, is substituting a legalistic argument and judicial process (“FISA court to decide drone killings”) to conceal what is really a debate over American war policy   and the President’s war powers in order to accrue domestic political advantage or at least avoid paying the costs of advocating a potentially unpopular position. Otherwise, opponents have to argue on the merits that the US should not as a matter of policy kill al Qaida terrorists sheltered by Pakistan or beyond the reach of government control in Yemen. Or that we are not “really” at war or that Federal judges are better suited for picking bombing targets than Air Force and CIA analysts and that “due process” should apply to enemy combatants on the battlefield. Many of these arguments are valid ones to raise and debate but are unlikely to be persuasive to the public or Congress; if they were, they would have prevailed in 2010 (drones) or 2001 (“are we at war?).

A straightforward legal analysis begins and stops with ascertaining whether or not we are in a state of armed conflict with al Qaida. The white paper used a “kitchen sink” approach to try and cover all legal bases, perhaps to create a basis for a later freewheeling peacetime use of armed drones – which incidentally, I am not in favor of – but it is not required here and actually distracts from the strongest legal argument – the administration is lawfully fighting an enemy in an armed conflict declared by Congress.
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If we are in an armed conflict under international law with al Qaida – and the evidence appears here in fact, legislative action, context, historical and legal precedent to be overwhelming – renders most of the other justifications cited in the white paper for the policy regarding due process as well as nearly all of the criticisms of it moot, at least in terms of legality. Wartime enemy combatants are in a qualitatively different legal status vis-a-vis the United States government acting as a belligerent than are non-combatants or are civilians in peacetime (even civilians who commit criminal acts). No American citizen has a right to pick up arms and join an enemy army or armed group during a war, period. Or a subsequent right to be treated as anything but a combatant if they do. Combatant status is not determined by nationality under international law but by behavior and adherence to a belligerent party’s military forces and their physical disposition ( hors d’ combat, in the act of surrender etc.).
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American citizens fought in enemy armies, notably the Wehrmacht and Waffen-SS, against the United States in WWII and a handful defected to the enemy in the Korean and Vietnam Wars. While some of these men were tried for treason after these wars ended, others were treated as enemy POWs or simply allowed to come home at a later date, but none were accorded judicial due process *during* the conflict as potential targets of an American military attack. Only after capture, as with the saboteurs in the Ex Parte Quirin case, did judicial review and due process come in to play.. We see a similar phenomena with the Civil War where, even under the Lincolnian theory that the Confederacy merely represented “Combinations too powerful to be suppressed” (i.e. a private insurrectionist conspiracy and not the states themselves as corporate, legal, sovereign entities in rebellion), we do not see SCOTUS insisting on normal, civilian, judicial due process in Ex Parte Milligan except where “civil courts are in operation” (i.e. away from the battlefield). This was to prevent the application of martial law in civilian areas in the North, not to stop martial law in theater or occupational zones.
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Had this issue of due process for active enemy combatants been raised during WWII or even Vietnam, it would have been likely (and properly) regarded by US officials as ludicrous; if true, the logic would imply that enemy units could immunize themselves from attack (or substantially delay them)  by recruiting American citizens into their ranks. It would also beg the question why the US could lawfully bomb enemy targets and risk killing American POWs via collateral damage, but not directly target enemy fighters who happened to be American citizens. It would further beg the question why it would be lawful to indirectly target an American citizen in a group of enemy fighters with, say, artillery or gravity bombs from 52,000 feet but be an unlawful violation of due process to aim at him directly with a drone missile or a sniper rifle. Is a Marine rifleman who happens upon Adam Gadahn in Afghanistan and kills him therefore an “assassin” (to use Glenn Greenwald’s description of targeted killings) to be charged with murder?
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Even as a matter of “due process” (!) – never mind fighting a war – how could this legal argument possibly make any sense? What precedent under military law or international law from prior conflicts supports it?
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How would inserting judicial review – even SCOTUS – over operational planning and target selection as a step in the President’s exercise of his Constitutional authority as Commander-in-Chief likely to affect the Separation of Powers? This is not a trivial question – in military terms it is analogous to the judiciary usurping the position of the Rules Committee in the House of Representatives over legislative matters. How would this innovation impact our ability to fight our next war or wars?
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Much like the white paper’s lengthy, but entirely irrelevant discourse into the nature of threat “imminence” and “breadth”, this argument is sheer invention if a state of armed conflict with al Qaida exists. Most criticisms and not a few of the white paper’s own legal justifications consist of novel restraints alien to the historical practice of states prosecuting an armed conflict that we would be extremely unwise to adopt and sanctify as precedents for waging future wars.
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Let us take one of the more intellectually serious and responsible expert critics as an example, Steve Vladeck of American University. Not everything he has to say in his lengthy post is wrong and I even agree with some of his points, but things like this strike me as specious, or at least a very weak reed upon which to rest an argument that alters the constitutional balance:
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….First, many of us who argue for at least some judicial review in this context specifically don’t argue for ex ante review for the precise reasons the white paper suggests. Instead, we argue for ex postreview–in the form of damages actions after the fact, in which liability would only attach if the government both (1) exceeded its authority; and (2) did so in a way that violated clearly established law. Whatever else might be said about such damages suits, they simply don’t raise the interference concerns articulated in the white paper, and so one would have expected some distinct explanation for why that kind of judicial review shouldn’t be available in this context. All the white paper offers, though, is its more general allusion to the political question doctrine. Which brings me to…

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Second, and in any event, the suggestion that lawsuits arising out of targeted killing operations against U.S. citizens raise a nonjusticiable political question is almost laughable–and is the one part of this white paper that really does hearken back to the good ole’ days of the Bush Administration (I’m less sold on any analogy based upon the rest of the paper). Even before last Term’s Zivotofsky decision, in which the Supreme Court went out of its way to remind everyone (especially the D.C. Circuit) of just how limited the political question doctrine really should be, it should’ve followed that uses of military force against U.S. citizens neither “turn on standards that defy the judicial application,” nor “involve the exercise of a discretion demonstrably committed to the executive or legislature.” Indeed, in the context of the Guantánamo habeas litigation, courts routinely inquire into the very questions that might well arise in such a damages suit, e.g., whether there is sufficient evidence to support the government’s conclusion that the target is/was a senior operational leader of al Qaeda or one of its affiliates…

My first criticism would be that Vladeck’s premise that the question of a targeting decision of an American citizen who is a senior leader of al Qaida during a state of armed conflict who is active outside the territory of the United States is a matter for adjudication by US courts is incorrect. He is essentially arguing that the political question doctrine does not cover the exercise of the Constitutionally specified war-making powers of the executive and legislative branches during a war. I am highly skeptical this is an argument any Supreme Court would entertain lightly, much less the Roberts Court.
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My second criticism is more practical – that Vladeck in seeking judicial review of the decision process by which an American citizen is determined to be senior or not senior leader in al Qaida leadership is a distinction without a difference from a court having a priori judicial review of the larger military operation in wartime but with the added detriment of exposing the intelligence process, to discovery. Targeting decisions involve assessment of intel about the target from a variety of perspectives – confidence, effect, probability of success/costs and the “fusion” of (usually) USAF and IC in a targeteering shop. Why  judicial scrutiny should apply only to drone strikes targeting a specific US citizen among other al Qaida operatives in wartime vice simply bombing an al Qaida safe house in which a US citizen might be employs a legal reasoning that is obscure to me. If a US citizen being a potential casualty is the critical constitutional variable here, then not also judicial review of a bayonet charge?
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The proposal for judicial review of potential attacks during an armed conflict (not peacetime) is rife with a host of counterproductive second and third order constitutional and military effects. It represents a sweeping change in our political order by a technical legal fiat. It would also be an exceedingly dumb way to run a war. It might test our powers of imagination, but somehow, we faced down Hitler and the Imperial Japanese without Federal judges running our strategic bombing campaigns.
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This preference for legalistic arguments is partly a product of over representation of lawyers among the American political elite. Highly competent attorneys are very skilled at framing arguments on behalf of clients so that they begin litigation not only from a favorable explicitly stated position but, where possible, with several layers of one-sided implicit premises built in that you accept uncritically only at your peril. When a lawyer comes into a public policy debate saying that a political question is a legal question, he is making a political argument to remove a political dispute in a democratic polity to the courts where the matter will be decided under very different procedures and will remain as a legal question thereafter.
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Sometimes, this is the constitutionally correct thing to do; more often, it is simply an expedient thing to do that diminishes democratic accountability while rendering policy and process needlessly more complex and adversarial than even open public debate. It is also a self-aggrandizing feedback loop for lawyers as a class – when all political questions are legal questions, then should we not all defer to their superior expertise and training? It is the road to technocracy and the rule of law becoming “rule by lawyers”.
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Does that mean the critics have no point whatsoever regarding the use of drones in “targeted killings”? No. The idea that targeting American citizens is bad *policy* because it might, for example, be poorly employed against innocent people by mistake or, in slippery slope fashion, lead to a normalization and extension of the practice of targeted killing outside of an officially recognized armed conflict is a completely valid *political* argument. It is even, in my view, a very wise caution. It just does not hold water as a legal argument on behalf American citizens who go overseas and pick up arms and wage war against the US by joining al Qaida.
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More importantly, there are better, simpler remedies to a “slippery slope” with drone attacks that can be employed legislatively and through vigorous oversight that can be enacted that will strengthen rather than undermine and confuse our constitutional system of governance. First, the Obama administration, for it’s part, should allay critics fears by removing “targeted killings” from the arbitrary hands of unnamed “senior officials” (code for the President? The National Security Adviser? A random White House lawyer?) and either return to a more traditional Pentagon target assessment procedure or use the NSC process with a PDD/NSDD and a properly and timely “finding” being presented to Congress.
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Secondly, the proper body to review the judgement of the administration in tactics, operations, and strategy is not the judicial branch, but the legislative, which has done so in prior conflicts and holds the power of the purse to control the extent of campaigns and the raising of armies. The Joint Committee on the Conduct of the War was the oversight mechanism the Congress employed during the Civil War to review and influence the actions of the Lincoln administration. I would argue that the US Congress is more than sufficient to do the same task today with a far less existential conflict, if it chose to do so. Congress could, if it wished, forbid these operations or cease funding them. Quite pointedly, they have done neither.
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If Congress does not engage in rigorous oversight, it does not follow that a Federal Court is the appropriate constitutional substitute for Congress abdicating it’s wartime responsibilities. Targeted killings of enemy combatants during a declared armed conflict is a question of war policy, not due process, and is the purview of the political branches, not the judiciary
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Thirdly, the “slippery slope” danger is genuine and should be interdicted with legislation prohibiting or severely restricting the use of armed drones at home or forbidding their use against civilians resident in the territory of the United States entirely. A definition from Congress of under which circumstances that terrorism is a matter for law enforcement or military action is something that is likewise years overdue.
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Congress should be taking up it’s weighty responsibilities in war policy and not punting them to the executive or the judiciary, so that the actions of the US government in a matter of extreme gravity like a war are constitutionally clothed in democratic consent.
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When you have a worldview, it all fits together

Saturday, June 30th, 2012

[by Charles Cameron — the difficulty of difference, plus a poem for M ]
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When you have a worldview, it all fits together pretty seamlessly. You see a map of record high temperatures such as the one above, swiped from emptywheel today, and it’s either global warming, and maybe:

this is getting to a point where the terror industry and the homeland security industry, generally, needs to come to grips with the fact that the biggest immediate threat to the “homeland” is not terrorism or drugs or even hackers, but climate change…

or it’s the hot face of an angry God:

And the fourth angel poured out his vial upon the sun; and power was given unto him to scorch men with fire.

— Revelation 16.8

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I read the Book of Revelation in much the same spirit in which I read William Blake or WB Yeats — as figurative, imaginative thinking rather than future history. Record high temperatures, rising sea levels, dazzling storms, wildfires and the like I tend to view as natural phenomena belonging to the realm of science as far as causation is concerned, and to first responders and FEMA in terms of crisis response.

But they’re still awesome, the poet in me still stirs…

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What concerns me here, though, is not to explain my own position nor to refute or approve either the prophetic or scientific explanations, but to emphasize that when you have a worldview, you have explanations ready-made in place for (almost) whatever happens.

And that goes for the Taliban, for Al Qaida, for the Brotherhood, for Christians of the Dominionist or Soon Coming or Episcopalian varieties, for Buddhists, for Scientists, and for many who are braiding their own, picking up different strands in different places as they go along.

If someone else’s worldview is not your worldview, it may very well be as different as the world in which God is blasting His displeasure at Washington DC is different from the world in which Washington DC needs to do something about global warming before nature re-balances our ecosystem in a manner we find decidedly inhospitable.

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In a shared worldview, you can talk face to face. Across worldviews, you can only talk worldview to worldview — and the “other” worldview may well be unable to make sense of what you say or do, or take a meaning from it that has serious negative consequences for you in your world.

Just yesterday, Gulliver tweeted:

Ha!

But it’s true, as Paul Van Riper said and I know, I’ve quoted him before, but this is good:

What we tend to do is look toward the enemy. We’re only looking one way: from us to them. But the good commanders take two other views. They mentally move forward and look back to themselves. They look from the enemy back to the friendly, and they try to imagine how the enemy might attack them. The third is to get a bird’s-eye view, a top-down view, where you take the whole scene in. The amateur looks one way; the professional looks at least three different ways.

The thing is: how do you get inside a magical head with a rational mind?

It’s not impossible, mind you — but it takes great strength of imagination.

That’s the point I’m trying to make here. Done. Finished.

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And this is for Madhu, who encourages me to post my poems:

Storm words
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There are no words for the stride of thunder –

pounding stride of clouds across a drumhead of plains,
the traveling downpour, drenching
the dry gullies and passing, words cannot
see nor show what the eye sees, the great lights
thrown, the target trees scorched and left —

but for man who lives in the path of thunder,
wrestling a little grass for soup from the parched land,
feeling thrum of a god’s advance under bare feet,
seeing the lowering god with his bright arms striding,

sensing the god’s strong coming, longing
for the fresh grasses after the storm’s passing,
the calm that follows the god: fearing
the god’s blasting, scorching, man’s words are prayer.

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Copywrong?

Friday, June 29th, 2012

[ by Charles Cameron — borrowing as the nature of creativity from lichen to origami, copyright ]
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Lichen covered wall, Incan ruins of Ollantaytambo. Cusco, Peru

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Leonardo in his Treatise on Painting came up with what he called “a new theoretical invention for knowledge’s sake … of great utility in bringing out the creativity in some of these inventions”:

This is the case if you cast your glance on any walls dirty with such stains or walls made up of rock formations of different types. If you have to invent some scenes, you will be able to discover them there in diverse forms, in diverse landscapes, adorned with mountains, rivers, rocks, trees, extensive plains, valleys, and hills. You can even see different battle scenes and movements made up of unusual figures, faces with strange expressions, and myriad things which you can transform into a complete and proper form constituting part of similar walls and rocks. These are like the sound of bells, in whose tolling, you hear names and words that your imagination conjures up.

Borrow, he says, from nature.

Michelangelo, you may recall, used to see statues in chunks of marble, then chip away the excess to reveal what had been there all along…

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The stone-cutters whose marvelous ingenuity pieced together the stone wall in the Incan ruins of Ollantaytambo, Peru, depicted above in a photo by Teosaurio (under a CC BY-SA 2.0 license) borrowed stone from nature in somewhat the same manner, brilliantly.

Nature repaid the compliment, adding the colors of lichen to the sunlit and shadowed grey of stone.

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In Paris, the artist Mademoiselle Maurice has been adding her own kind of lichen to the shadowed and sunlit walls of Paris, in an installation she calls spectrum – her lichen being composed entirely of small, colored origami folds, by way of honoring the origami peace cranes of Hiroshima artist Sadako Sasaki.

image: Mlle Maurice, abstract paper rainbow

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Origami?

Origami is an exquisite art in its own right, demonstrating once again that mathematics belongs as much to the arts and humanities as it does to the sciences and technology.

[Consider this bleeding together of arts and sciences as something of a crusade of mine. Photography is art, and it does not became science just because the photograph is of stars rather than stones: photography is science, and it does not become art simply because the stars are beautiful.]

One genius of the artful mathematics of folding would be Robert Lang, who, as Kevin Kelly just told us, “helped NASA design satellite folding/unfolding solar panels” and “uses computers to devise folding patterns to create impossibly detailed 3D organisms from a single piece of paper…”

One can hardly deny that his work is quite lovely:

Butterfly image: Robert Lang, Origami Insects Vol 2, ed. Makoto Yamaguchi

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One might wonder whether Lang is the genius, or mathematics? Does he borrow from God, from some principle immanent in universe?

His diagram depicted, left, below, “will, when folded by him, turn into a convincing Rhinoceros Beetle”

Of the Rhinosceros beetle or of the butterfly one might ask, as William Blake asked of the Tyger:

Did He smile His work to see?
Did He who made the lamb make thee?

Science, naturally, somewhat believes it has the answer…

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Compare and contrast:

image: Kevin Kelly, from the Technium

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Inappropriately appropriated? The very concepts battle each other into oxymoron fatigue.

The painter Susan Morris borrowed Robert Lang’s beautiful design, itself a WoA — useful bureaucratese devised by a friend of mine for filing Works of Art in a category of their own – to make the painting, also a WoA, depicted above, right.

Morris, it seems to me, takes Lang in a direction pioneered by Frank Stella:

image: Frank Stella, Harran II

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It was Kevin Kelly who juxtaposed Lang and Morris in the image above — in what I’d have claimed was a WoA in my DoubleQuotes format if I’d done it myself — so as to discuss copyright.

Or more precisely, copy — right or wrong?

Nature copies, without apology, with beauty – and, in the case of certain poisonous spores, without remorse. And are we not nature?

Here’s Leonardo again:

Don’t underestimate this idea of mine, which calls to mind that it would not be too much of an effort to pause sometimes to look into these stains on walls, the ashes from the fire, the clouds, the mud, or other similar places. If these are well contemplated, you will find fantastic inventions that awaken the genius of the painter to new inventions, such as compositions of battles, animals, and men, as well as diverse composition of landscapes, and monstrous things, as devils and the like. These will do you well because they will awaken genius with this jumble of things.

To study, to copy, to derive: this awakens genius. Who am I to disagree?

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