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Is 4GW Dead?: Point-Counterpoint and Commentary

Tuesday, May 28th, 2013

4GW theory has always attracted overenthusiasts and  raging haters ever since the concept emerged way back in 1989, so debates about the merit of 4GW are nothing new; in fact, the arguments became so routine that they had largely gone sterile years ago.  After T.X. Hammes published his excellent  The Sling and the Stone and John Robb  went to the next level with Brave New War , it seemed that  little new was left to be said. In the late 2000’s, intellectual energies shifted to arguing the nuances and flaws of Pop-centric COINwhich proved in time to be even more bitter than those about 4GW.

Generations of War Theory Visualized by Chet Richards

What is different recently is that the person taking the affirmative on the question “Is 4GW dead?” was Dr. Chet Richards, who for years ran the premier but now defunct 4GW site, D-N-I.net, now archived here by the Project on Government Oversight.  Richards is no Clausewitzian true-believer or Big Army MBA with stars, but a former collaborator with John Boyd and a leading thinker of the 4GW school who had written several books with that strategic theme.

Therefore, not a critic to be dismissed lightly. Here’s Chet:

Is 4GW Dead? 

….The first thing to note is that 4GW is an evolution from 3GW, which they equate to maneuver warfare and the blitzkrieg as defined in MCDP 1 and Boyd’s Patterns of Conflict. These are styles of warfare conducted by state armies against other state armies, although the paper does invoke the notion of transnational terrorists near the end.

At some point in the late 1990s, the theory bifurcated. Bill Lind and Martin van Creveld began to emphasize the decline of the state and focus on transnational guerrilla organizations like al-Qa’ida. Tom Barnett called this the “road warrior” model. T. X. Hammes, on the other hand, characterized 4GW as “evolved insurgency” and envisioned the techniques described in the paragraphs above as also useful for state-vs-state conflicts.

….The 9/11 attacks, by a transnational guerrilla movement, seemed to confirm 4GW in both of its forms. In the last few years, however, everything has gone quiet. Transnational insurgencies, “global guerrillas” as John Robb terms them, have not become a significant factor in geopolitics. “Continuing irritation” might best describe them, whose primary function seems to be upholding national security budgets in frightened western democracies. The state system has not noticeably weakened. So it might be fair at this point to conclude that although 4GW was a legitimate theory, well supported by logic and data, the world simply didn’t develop along the lines it proposed.

A prominent critic of 4GW, Antulio J. Echevarria, may have been correct:

What we are really seeing in the war on terror, and the campaign in Iraq and elsewhere, is that the increased “dispersion and democratization of technology, information, and finance” brought about by globalization has given terrorist groups greater mobility and access worldwide. At this point, globalization seems to aid the nonstate actor more than the state, but states still play a central role in the support or defeat of terrorist groups or insurgencies.

Why? I’ll offer this hypothesis, that the primary reason warfare did not evolve a fourth generation is that it didn’t live long enough. The opening of Sir Rupert Smith’s 2005 treatise, The Utility of Force, states the case….

Chet’s post spurred a sharp rebuttal from William Lind, “the Father of Fourth Generation Warfare”:

4GW is Alive and Well 

So “the world simply didn’t develop along the lines it (4GW) proposed”? How do you say that in Syriac?

The basic error in Chet Richards’ piece of April 19, “Is 4GW dead?” is confusing the external and internal worlds. Internally, in the U.S. military and the larger defense and foreign policy establishment, 4GW is dead, as is maneuver warfare and increasingly any connection to the external world. The foreign policy types can only perceive a world of states, in which their job is to promote the Wilsonian nee Jacobin, follies of “democracy” and “universal human rights.” They are in fact, 4GW’s allies, in that their demand for “democracy” undermines states, opening the door for more 4GW.

In most of the world, democracy is not an option. The only real options are tyranny or anarchy, and when you work against tyranny, you are working for anarchy. The ghost of bin Laden sends his heartfelt thanks.

Third Generation doctrine has been abandoned, de facto, if not de jure, by the one service that embraced it, the U.S. Marine Corps. The others never gave it a glance. The U.S. military remains and will remain second generation until it disappears from sheer irrelevance coupled with high cost. That is coming much sooner than any of them think.

….In many of these cases, including Egypt and Pakistan, the only element strong enough to hold the state together is the army. But the “democracy” crowd in Washington immediately threatens aid cut-offs, sanctions, etc., if the army acts. Again, the children now running America’s foreign policy are 4GW’s best allies.

Fourth generation war includes far more than just Islamic “terrorism,” and we see it gaining strength in areas far from the Middle East. Gangs have grown so powerful in Mexico, right on our border, that I predict the state will soon have to make deals with them, as the PRI has done in the past. Invasion by immigrants who do not acculturate is a powerful form of 4GW, more powerful than any terrorism, and that is occurring on a north-south basis (except Australia) literally around the world. Remember, most of the barbarians did not invade the Roman Empire to destroy it. They just wanted to move in. In fact, most were invited in. Sound familiar?

What should concern us most is precisely the disconnect between the internal and external worlds. Externally, 4GW is flourishing, while internally, in the US government and military, it does not exist. This is the kind of chasm into which empires can disappear….

Fabius Maximus – who is a both a pseudonymous blogger and a group blog, also responded:

Update about one of the seldom-discussed trends shaping our world: 4GW 

One of the interesting aspects of recent history is the coincidence of

  1. the collapse of discussion about 4GW in US military and geopolitical circles,
  2. victories by insurgents using 4GW methods over foreign armies in Iraq and Afghanistan, &
  3. most important, the perhaps history-making victory by Bin Laden’s al Qaeda.

The second point is important to us, but the usual outcome since WW2 (after which 4GW became the dominate form of military conflict; see section C below).  The third point is the big one. Based on the available information, one of Bin Laden’s goals was to destabilize the US political regime. Massive increase in military spending (using borrowed funds). The bill of rights being shredded (note yesterday’s House vote to tear another strip from the 4th amendment). Our Courts holding show trials of terrorists — recruited, financed, supported by our security services. Torture and concentration camps.

….We — the Second American Republic — have engaged in a war with nationalistic, Islamic forces using 4GW.  So far we are losing.  For various reasons we are unable to even perceive the nature of the threat. In DoD the hot dot is again procurement of high-tech weapons — new ships, the F-35, the hypersonic cruise missile, etc.  All useless in the wars we’ve fought for the past 50 years, and probably in those of the next 50 years….. 

A few comments.

4GW has been heavily criticized – and accurately so – for making selective use of history, for unsupported maximal claims, for an excessively and ahistorically linear argument and for shifting or vaguely defined terms. Presented rigidly, it is relatively easy for critics to poke holes in it simply by playing “gotcha” (some of the criticism of 4GW did not get beyond ad hominem level garbage, but more intellectually serious detractors made very effective critiques of 4GW’s flaws).

That said, there were a number of useful elements or insights in the body of 4GW writings that retain their utility and I think are worth recalling:

  • Whatever one thinks of 4GW as a whole, the school drew attention to the threat of non-state irregular warfare, failed states and the decline of state vs. state warfare and did so long before it was Pentagon conventional wisdom or trendy Beltway talking head spiels on Sunday morning news programs.
  • While the state is not in decline everywhere in an absolute sense, it sure is failing in some places and has utterly collapsed elsewhere. Failed, failing and hollowed out states are nexus points for geopolitical problems and feature corruption, black globalization, insurgency, tribalism, terrorism, transnational criminal organizations and zones of humanitarian crisis. Whether we call these situations “irregular”, “hybrid”, “decentralized and polycentric”, “LIC”, “4GW” or everyone’s favorite, “complex” matters less than using force to achieve political aims becomes increasingly difficult as the interested parties and observers multiply. Some of the advice offered by the 4GW school regarding “the moral level of war”, de-escalation and the perils of fighting the weak in such a conflict environment are all to the good for reducing friction.
  • The emphasis of the 4GW school on the perspective of the irregular fighter and their motivations not always fitting neatly within state-centric realpolitik, Galula-ish “Maoist Model” insurgency, Clausewitzian best strategic practice or the Western intellectual tradition, were likewise ahead of their time and contrary to S.O.P. Even today, the effort to see the world through the eyes of our enemies is at best, anemic. Red teams are feared more than they are loved. Or utilized.
  • The bitter criticism the 4GW school lodged of the American political elite being allergic to strategic thinking and ignorant of strategy in general was apt; that American strategy since the end of the Cold War has been exceedingly inept in thought and execution is one of the few points on which the most rabid 4GW advocate and diehard Clausewitzian can find themselves in full agreement.

The lessons of 4GW will still be relevant wherever men fight in the rubble of broken societies, atomized communities and failed states.

New Book: America 3.0 is Now Launched!

Tuesday, May 21st, 2013

America 3.0: Rebooting American Prosperity in the 21st Century – why America’s Best Days are Yet to Come by James C. Bennett and Michael Lotus

I am confident that this deeply researched and thoughtfully argued book  is going to make a big political splash, especially in conservative circles – and has already garnered a strong endorsement from Michael Barone, Jonah Goldberg, John O’Sullivan and this review from  Glenn Reynolds in USA Today :

Future’s so bright we have to wear shades: Column 

….But serious as these problems are, they’re all short-term things. So while at the moment a lot of our political leaders may be wearing sunglasses so as not to be recognized, there’s a pretty good argument that, over the longer time, our future’s so bright that we have to wear shades.

That’s the thesis of a new book, America 3.0: Rebooting American Prosperity In The 21st Century.The book’s authors, James Bennett and Michael Lotus, argue that things seem rough because we’re in a period of transition, like those after the Civil War and during the New Deal era. Such transitions are necessarily bumpy, but once they’re navigated the country comes back stronger than ever.

America 1.0, in their analysis, was the America of small farmers, Yankee ingenuity, and almost nonexistent national government that prevailed for the first hundred years or so of our nation’s existence. The hallmarks were self-reliance, localism, and free markets.

At the end of the 19th century and the beginning of the 20th, people were getting unhappy. The country was in its fastest-ever period of economic growth, but the wealth was unevenly distributed and the economy was volatile. This led to calls for what became America 2.0: an America based on centralization, technocratic/bureaucratic oversight, and economies of scale. This took off in the Depression and hit its peak in the 1950s and 1960s, when people saw Big Government and Big Corporations as promising safety and stability. You didn’t have to be afraid: There were Top Men on the job, and there were Big Institutions like the FHA, General Motors, and Social Security to serve as shock absorbers against the vicissitudes of fate.

It worked for a while. But in time, the Top Men looked more like those bureaucrats at the end of Raiders Of The Lost Ark, and the Big Institutions . . . well, they’re mostly bankrupt, or close to it. “Bigger is better” doesn’t seem so true anymore.

To me, the leitmotif for the current decade is supplied by Stein’s Law, coined by economist Herb Stein: “Something that can’t go on forever, won’t.” There are a lot of things that can’t go on forever, and, soon enough, they won’t. Chief among them are too-big-to-fail businesses and too-big-to-succeed government.

But as Bennett and Lotus note, the problems of America 2.0 are all soluble, and, in what they call America 3.0, they will be solved. The solutions will be as different from America 2.0 as America 2.0 was from America 1.0. We’ll see a focus on smaller government, nimbler organization, and living within our means — because, frankly, we’ll have no choice. Something that can’t go on forever, won’t. If America 2.0 was a fit for the world of giant steel mills and monolithic corporations, America 3.0 will be fit for the world of consumer choice and Internet speed.

Every so often, a “political” book comes around that has the potential to be a “game changer” in public debate. Bennett and Lotus have not limited themselves to describing or diagnosing America’s ills – instead, they present solutions in a historical framework that stresses the continuity and adaptive resilience of the American idea. If America”s “City on a Hill” today looks too much like post-industrial Detroit they point to the coming renewal; if the Hand of the State is heavy and it’s Eye lately is dangerously creepy, they point to a reinvigorated private sector and robust civil society; if the future for the young looks bleak,  Bennett and Lotus explain why this generation and the next will conquer the world.

Bennett and Lotus bring to the table something Americans have not heard nearly enough from the Right – a positive vision of an American future that works for everyone and a strategy to make it happen.

But don’t take my word for it.

The authors will be guests Tuesday evening on Lou Dobb’s Tonight and you can hear them firsthand and find out why they believe “America’s best days are yet to come

Tyrannicide and the Lost Republic

Tuesday, March 19th, 2013

“Beware the Ides of March”

T. Greer gave me a rousing recommendation that I read the following post on the death of Julius Caesar by Burt Likko of The League of Ordinary Gentlemen blog. Greer was correct, it was outstanding. You should read the post in it’s entirety:

Rue the Ides

….One of my big observations about Julius Caesar is that he took great care in his career to do nothing that he could not credibly claim that a political or military leader had not done before him. Scipio Africanus used his huge prestige from winning a massive war for Rome to monopolize all political power within his own family. The Gracchi disregarded informal controls in the cursus honorum in favor of pursuing needed reform. Pompey used extraordinary and open-ended military powers to wage a war of conquest for Rome and got personally rich doing it. Catalina had been a blue-blooded populist who thumbed his nose at the consuls in power. Both Marius and Sulla had marched on Rome; Marius was consul six times in a row and Sulla was a dictator for longer than the traditional six months and used attainders to purge the ranks of the elites of his enemies.

So all along, when people protested to Caesar that he was making himself into a king, he could point to precedent and say he was doing nothing new, and nothing that the republic hadn’t been through before without losing its republican character. This seemed a transparent fiction to his critics. But for a legal culture steeped in and heavily reliant on precedent, it mattered a lot. Not for nothing did Caesar spend the first chapter of both his books chronicling his own military conquests on offering political justifications for what he had done.

After all nearly two centuries of history that preceded Caesar’s rise to power demonstrated that in order for the government of Rome to be effective, it took a blue-blooded strongman brushing aside the niceties of the anti-autocratic but ossified constitution to actually do something. And that same history demonstrated to him that the public admired success much more than it did formal adherence to the law – which had grown too complex, too much a creation of the elite, and too distant from the realities of daily life and popular culture, to matter all that much to the average Roman on the street. The formalities of government were for the elites to worry about, not the common man functionally unaffected by them; justice was obtained through informal means and not through the courts.

By the end of the civil war against Pompey and the remnants of the Scipio Africanus family’s control group, every tribune, every judge, every junior official, and every decision-maker of consequence was a client of Gaius Julius Caesar. Caesar himself held a consulship, a censorship, and a dictatorship and was quite clear that he would never let those things go – he clearly intended to hold on to all of that prestige and power and immunity from criticism until his death, and he would brook no serious opposition. [….]

Read the rest here.

There is much to agree with here.

First, I think Likko understood the limitations, frustrated ambitions and political immaturity of the anti-Caesarian and Optimate conspirators very well. Tyrannicide in classical antiquity was not mere political assassination, but a noble act, usually accompanied by martyrdom, which further sanctified it. This was true of the Athenians who had put up statutes of  Harmodius and Aristogeiton who slew the tryrant Hipparchus and Lucius Junius Brutus, the ancestor of the assassin Brutus, was revered for his leadership in the overthrow of the Roman monarchy of the Tarquins.

That the conspirators expected that the participation of Brutus in the murder of his patron Caesar would resonate symbolically as an intended gesture of patriotism with the Roman people was reasonable; the romantic hope the assassination itself would prove politically transformative was not.  Likko was correct, Rome had changed since the second century BC – and not just from the abusive political intrigues of the Patrician elite but by the Social Wars that brought the bulk of Rome’s Italian allies into their political community as Roman citizens. The “People of Rome” had changed and the mob of landless poor – whom Populares like Caesar wished to aid with reforms over optimate objections – had grown much larger and dangerous.

This goes to Likko’s larger point that, as revered as the Republican traditional virtues and outward forms may have been in terms of lip service, in substantive practice as the first century AD progressed, they were increasingly ignored when convenient to powerbrokers, the wealthier classes or the mob.  Sulla’s attempt to “re-set” the Roman political system along traditionalist lines by blood purge and Cincinnatus-like personal example failed within a generation.  Other than the terrifying example of the proscriptions to inculcate political restraint, which lasted only so long as Sulla lived, nothing else was introduced to tamp down the subversive dynamic of unrestrained and aggressive aristocratic political competition for imperium and glory by the ambitious among Rome’s elite.

Where Likko errs, somewhat, in my opinion, is here:

The liberators did not think about institutions. They did not think about culture. They did not think about logistics. They did not think about government. They did not think about the contradiction inherent in a lawless act done in the name of preserving the law. They did not think about the immediate political aftermath. 

Some of this is right – the conspirators did not think clearly about politics, given the large numbers of patricians and rich “new men” alike who had fallen under Caesar’s spell or grudgingly accomodated themselves to his personal rule after the failure of Pompey and Cato. That they expected the sort of popular sympathy Cato received -really more public respect for his incorruptibility and intrangisent virtue than any widespread desire to emulate Cato’s antiquated Roman mores or reactionary politics – is itself evidence f how out of touch they were. That said, thinking in terms of institutions would have been nigh impossible for them.  As an aristocratic Republic, Rome’s institutions that composed what we might call “the state”  were very few in number and skeletal in form. This was because the expectation was that patrician leadership, informally exercised through their extensive clientelas, their public benefactions and donations, expressions of charismatic auctoritas even when not in power, would always provide the muscle to make things happen. These in turn would be regulated by age-old custom, tribunican vetoes, the signs of the augurs, the weight of Senatorial opinion and what formal laws existed.

When custom began to be lightly disregarded in pursuit of political vendettas and even the legions did not possess an “institutional” existence yet, there was little to stop aristocracy from transmogrifying into oligarchy and autocracy. Conceiving of institutions in the modern sense of an independent, self-regulating,  corporate body in the late 1st century BC would have been a radical innovation to say the least. Even Octavian’s assumption of imperial power was done under the mantle of amalgamating republican offices in his own person that took many lifetimes to crystallize “princeps” into an institutionalized, tyrannical, office of  “emperor” as understood later in the time of the Dominate.  Brutus, the wayward follower of Cato, could no more have conceived of institutionally-based constitutional reform to renovate Roman government than he could have invented an airplane

This however, is a mere quibble about a minor point in an excellent post.

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.
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.).
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.
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?
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?
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?
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.
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:

….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…


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.
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?
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.
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.
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”.
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.
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.
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.
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
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.
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.

“Sin, Death, and Hell have set their Marks on Him”

Tuesday, February 5th, 2013

King Richard III 

The bones of Richard III, Shakespeare’s greatest villain and the last King of England to be killed in battle have been discovered and identified by DNA testing:

….There were cheers when Richard Buckley, lead archaeologist on the hunt for the king’s body, finally announced that the university team was convinced “beyond reasonable doubt” that it had found the last Plantagenet king, bent by scoliosis of the spine, and twisted further to fit into a hastily dug hole in Grey Friars church, which was slightly too small to hold his body.

But by then it was clear the evidence was overwhelming, as the scientists who carried out the DNA tests, those who created the computer-imaging technology to peer on to and into the bones in raking detail, the genealogists who found a distant descendant with matching DNA, and the academics who scoured contemporary texts for accounts of the king’s death and burial, outlined their findings.

….Richard died at Bosworth on 22 August 1485, the last English king to fall in battle, and the researchers revealed how for the first time. There was an audible intake of breath as a slide came up showing the base of his skull sliced off by one terrible blow, believed to be from a halberd, a fearsome medieval battle weapon with a razor-sharp iron axe blade weighing about two kilos, mounted on a wooden pole, which was swung at Richard at very close range. The blade probably penetrated several centimetres into his brain and, said the human bones expert Jo Appleby, he would have been unconscious at once and dead almost as soon.

The skull of Richard III

Injuries to the skeleton appear to confirm contemporary accounts that the king died in battle. Photograph: AFP/Getty Images

The injury appears to confirm contemporary accounts that he died in close combat in the thick of the battle and unhorsed – as in the great despairing cry Shakespeare gives him: “A horse! A horse! My kingdom for a horse!” 

Richard III, usurper and probable regicide of his nephew the boy King, was the last truly medieval King of England. Had Richard lived to rule, his reign would have been characterized by the same bloody uprisings and civil strife that marked the War of the Roses. England was fortunate in his successor who had bested him in battle, Henry Tudor who became King Henry VII was an energetic and far seeing monarch who restored a war-wracked and bankrupt England to peace and fiscal health and set the foundations of the modern United Kingdom and the future world-spanning British Empire. It was Henry who started the Royal Navy and curtailed the ability of the nobility to wage war as they pleased with large private armies, by taxing them for each man at arms, thus ending bastard feudalism ; recalcitrant rebels were executed and justices of the peace established in every shire to enforce the law of the realm rather than the corrupt whims of manorial courts.

Richard III has his devoted fans as well his detractors. Except for his impatient ruthlessness, Richard probably was little worse, morally speaking, than his fellow medieval monarchs in an age when brutality and the rule of the strong was the norm.  However, unlike the brilliant Henry, Richard would have done little to improve the situation and might have made life in England more savagely violent.

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