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Two Readings, and If You Read It, Why Not Review It?

Thursday, May 23rd, 2013

[by J. Scott Shipman]

One Hundred Days, The Memoirs of the Falklands Battle Group Commander, Admiral Sandy Woodward

For professional reasons, many trusted colleagues have recommended One Hundred Days, and I finally finished it a few weeks ago. They reminded me the Falklands War “was the first modern anti-access/area-denial (A2/AD) war, pitting a joint expeditionary force against a regional power with modern land, air, and sea capabilities.” [sourced from Proceedings magazine, May 2012, by Commander Jim Griffin, U.S. Navy—strongly recommended] In other words, the scrap in the South Atlantic in 1982 was the last time a “modern” expeditionary force faced a credible adversary with modern capabilities. 

Admiral Woodward reminds that no one expected Argentina to invade the Falklands, and even if they did, no one expected the UK to respond with force (even the Royal Navy (RN) was surprised, and many had to find the islands on a map). Woodward departed with the two remaining UK carriers, the Hermes and Invincible which were already on the chopping block due to budget problems (sound familiar?). Fighting was such a distant memory for the RN, having not engaged in significant action since WWII, and Woodward recounts that many of his men had difficulty making the transition from “a sea-going job” to fighting, and possibly dying. I wondered as I read if the U.S. Navy has prepared/is prepared for this transition; and truly both officer and rates proved susceptible. The personal nature of Woodward’s account was bit of a surprise, but provides valued insight into the challenges and frequent frustrations faced by naval leaders.

Commander Griffin’s account in Proceedings referenced above has a very good list of lessons learned, and a few observations and questions are added for consideration:

  1. Naval warfare is war of attrition. Attrition can occur as a result of sinking or disabling an opponent. In the case of the Brits, many of their ships sustained non-fatal hits that, for practical purposes, removed the ship from any offensive or defensive action. Many of our enemies, while not sophisticated, understand and plan accordingly. As a result numbers are important; numbers of ships and weapons.
  2. In the age of the missile, response times were/are measured in seconds, so ships and aircraft will be lost…often, quickly.
  3. Are our systems susceptible to electro-magnetic interference (EMI)? 
  4. Could our ships navigate or fight without GPS or other satellite-dependent technologies?
  5. Can sailors onboard fix systems when they break (and they will break, see #6 below)? One RN ship had a contractor embarked who made the difference, which was blind luck. Over the last 20 years, the USN has tended towards “operators” over technicians.
  6. “Murphy” is alive and well. When things can fail (including technologies), they will, at the worst possible time.
  7. Is the theater commander in command? In the Falklands, Woodward had command of ships, but not submarines—which hampered the effectiveness of his battle group.
  8. Ship preservation (preventive maintenance) is often paid for in battle. At least two RN ships were unable to use weapons because of salt corrosion rendering missile hatches inoperable. This is engineering problem, too, to be sure, but also an example of how preventive maintenance can pay-off when it counts.
  9. Damage control training for all-hands; rigorous and often. RN sailors did a masterful job of saving several of their wounded ships.
  10. Anti-missile capabilities on logistic/support ships.
  11. Homefront politics and posturing provides fog in war as does the enemy. One curse of modern communications; having the White House Situation Room second-guessing/micromanaging the war.
  12. The press is often not your friend. On a couple of occasions, the BBC broadcast orders of battle and goals, and the Argentineans planned and acted accordingly.
  13. The motto of Captain John Coward, RN, of HMS Brilliant, “The essence of war is violence. Moderation in war is imbecility.”

Woodward’s book is the clearest account we have of naval warfare in the missile age. If it is not already, One Hundred Days should be required reading for every naval officer. Strongest recommendation.

National Security Dilemmas, Challenges & Opportunities, Colin S. Gray

Colin Gray is no stranger to the readers of Zenpundit. I read this title over the Christmas break, and have returned to review with some frequency. In fact, my copy is so littered with underlining and marginalia, these periodic “reviews” can take a couple of hours. As the title suggests, Gray outlines the challenges and opportunities facing policymakers, and in so doing provides an accurate glimpse of our current state of political-military affairs. He encourages policymakers to reacquaint themselves with the importance of the concept of victory, and on how to successfully navigate a transition of our military from our previous focus of regular warfare to the realities introduced by enemies using irregular methods. Gray discusses “revolutions in military affairs (RMA)” and deterrence and the implications of both in our thinking and planning. Gray’s concluding section on preemption and preventative war is exceptionally well-presented.

For example, Gray’s section on Achieving Decisive Victory includes:

  1. Better armies tend to win.
  2. No magic formula for victory.
  3. Technology is not a panacea.
  4. The complexity of strategy and war is the mother of invention.
  5. Know your enemies.

This book is imminently quotable, so I’ll share a few with my highest recommendation.

The idea that strategy has an essence is deeply attractive. Strategy sounds incredibly rare and valuable, like something that could be bottled and sold. Unfortunately, American understanding of and sound practice in strategy is desperately rare. Strategic thinking and behavior are endangered activities in the United States. This is hardly a stunningly original insight. However, familiar though the criticism should be, it loses none of its bite for reason of longevity. Much as the U.S. defense community periodically is prodded by irregularist anxiety to worry about insurgency and terrorism, so from time to time it remembers the value of strategy. Though American defense professionals do not know what strategy is or how it works, they know that it is a matter of grave importance. The pattern has been one wherein a politician or a senior official with a personal interest has lit the fire of genuinely strategic discussion. The fire briefly flare brightly but then dies away for want of fuel. The fire is not fed, because there is not much demand for the heat and light of truly strategic argument in the United States. Although America is not quite a strategy-free environment, such a characterization would err in the right direction. (page 169 of paperback edition)

Since, inter alia, warfare is a competition in learning between imperfect military machines, fortunately one need only be good enough. (page 178; this is a personal favorite of mine)

There needs to be a continuous, albeit “unequal,” dialogue between civilian and soldier. War and warfare are permeated with political meaning, and consequences. A competent supreme command knows this and behaves accordingly. However, this relationship carries implications for civilian participation in military decisions in wartime that run contrary to the traditional American way in civil-military relations. If the strict instrumentality of force is not to be neglected, there has to be a constant dialogue between policymaker and soldier. Policy is a nonsense if the troops cannot perform “in the field,” while the troops may be so effective in action that policy is left gasping far behind unexpected opportunities by events. (page 179, emphasis added)

Gray’s National Security Dilemmas is a must read for policymakers and practitioners. [btw: it has been my custom to provide selected referenced works in book reviews. Gray’s bibliography is so excellent and comprehensive, I could not make a list that would do it justice.]

That said, I’ll close with more questions, and an apology: Does anyone read anymore? I’m rereading Manchester’s classic American Caesar after an absence of 30+ years, and I’d forgotten how much time both MacArthur the Elder and MacArthur the Younger (Douglas) spent reading. That said, how often do we see military leaders review the books they recommend? A reading list is one thing, explaining why the book made the cut another. With blogs, the internet, and social media, there are no barriers to entry. Recommendation to senior officers, including the General Officers and Flag Officers who post required reading lists: let your folks know why, write it down, explain it—the exercise will do you good, and give your subordinates insights into your thinking.

Now for the apology: there are four of us here at Zenpundit, but I’ve been the anchor man. This is my first post in too long, and I apologize to my colleagues and you, the reader. I’ve been on a tear reading naval stuff, mostly associated with my business endeavors. That said, I’ll endeavor to eat my own cooking and review what I read/have read with greater frequency.

A Sustainable National Security Posture?

Wednesday, May 22nd, 2013

[ by Charles Cameron — and what about climate change, Mike Mazarr? ]
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Is there even a Cheney-esque one-percent possibility that 97% of climate scientists (NASA’s estimate) are right?
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I just opened up Michael Mazarr‘s NDU Strategy Study Group report, Discriminate Power: A Strategy for a Sustainable National Security Posture. It’s quite far from my usual apocalyptic and more generally religious interests, but he and I once co-led a Y2K scenario role-playing game at the Center for Strategic and International Studies, so I have a friendly interest in what he’s up to.

What interested me next, though, was the overview to their report that Mazarr and company present in their Introduction. Their purview:

In the coming decade, the constraints on U.S. foreign and defense policy — fiscal, social, Geopolitical — are likely to intensify. At the same time, the security environment is evolving in ways that pose a more diverse array of risks, threats and opportunities. While foreign threats have dominated national security planning in the past, for example, future wars may more typically involve nontraditional foes and means threatening the homeland. This will change how we perceive and provide for national security, even as we confront new constraints.

This paper summarizes the work of a study group chartered to assess strategy under austerity for the next ten years. A core conclusion was that the United States is buying systems, forces and capabilities increasingly mismatched to the challenges, threats, and opportunities of the emerging environment. Military power, for example, cannot resolve many of the most complex and pressing challenges we confront — and yet our investments in national security remain vastly over-weighted to military instruments. The most likely threats to the U.S. homeland will come from nontraditional challenges such as biological pathogens, terrorism, cyber, and financial instruments, and yet resources for these issues remain minimal compared to traditional military instruments. At the same time, on our current trajectory, we will end up with a national security establishment dominated by salaries, health care, retirement costs, and a handful of staggeringly expensive major weapons systems. We are spending more and more to get less and less, in terms of relevant tools and influence.

There’s some ambiguity in here. There’s a segue from “foreign threats” to “future wars” without so much as a hiccup — but the actual threats our National Security strategy will need to address are presented as “nontraditional challenges such as biological pathogens, terrorism, cyber, and financial instruments”.

That’s a far broader array than “future wars” to be sure — but maybe still within the ambit of “foreign threats”. What I’m interested in, in the present context, however, is climate change. And unless my .pdf search function is deceiving me, I can find no mention of either “climate” or “warming” in the entire report.

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Compare these Remarks by Tom Donilon, National Security Advisor to the President At the Launch of Columbia University’s Center on Global Energy Policy from a month ago:

The national security impacts of climate change stem from the increasingly severe environmental impacts it is having on countries and people around the world. Last year, the lower 48 U.S. states endured the warmest year on record. At one point, two-thirds of the contiguous United States was in a state of drought, and almost 10 million acres of the West were charred from wildfires. And while no single weather event can be directly attributed to climate change, we know that climate change is fueling more frequent extreme weather events. Last year alone, we endured 11 weather-related disasters that inflicted a $1 billion or more in damages – including Hurricane Sandy.

Internationally, we have seen the same: the first twelve years of this century are all among the fourteen warmest years on record.

Or the White House’s National Security Strategy of 2010:

Climate Change: The danger from climate change is real, urgent, and severe. The change wrought by a warming planet will lead to new conflicts over refugees and resources; new suffering from drought and famine; catastrophic natural disasters; and the degradation of land across the globe. The United States will therefore confront climate change based upon clear guidance from the science, and in cooperation with all nations — for there is no effective solution to climate change that does not depend upon all nations taking responsibility for their own actions and for the planet we will leave behind.

And given what WSJ SWJ calls the Obama administration’s strategic shift to the East — what about Navy Admiral Samuel J. Locklear III?

America’s top military officer in charge of monitoring hostile actions by North Korea, escalating tensions between China and Japan, and a spike in computer attacks traced to China provides an unexpected answer when asked what is the biggest long-term security threat in the Pacific region: climate change.

Harvard’s 2012 Climate Extremes: Recent Trends with Implications for National Security report?

Or the Council for Foreign Relations report, Climate Change and National Security: An Agenda for Action — from 2007?

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I know, the CIA has (quietly) closed its Center on Climate Change and National Security, although as the NYT’s Green blog told us:

Todd Ebitz, a C.I.A. spokesman, said that the agency would continue to monitor the security and humanitarian challenges posed by climate change as part of its focus on economic security, but not in a stand-alone office.

But if you’re still interested, take a look at The Center for Climate & Security’s page On the Record: Climate Change as a Security Risk According to U.S. Administration Officials.

Their list is far more comprehensive than mine.

Okay. I know Mazarr’s report will have been written to fulfill certain criteria, specified or unspecified, and I’m not the one who set them — but isn’t climate change a part of the context that would need to be addressed, if “how we perceive and provide for national security, even as we confront new constraints” is the topic under discussion?

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

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.

America the Home of the Brave?

Sunday, February 3rd, 2013

An excellent op-ed in the Washington Post by Small Wars Journal editor and author of War, Welfare and Democracy,  Peter J. Munson 

An America Cramped by Defensiveness by Peter J. Munson 

….Since I returned home, a darkness has grown in me as both I and our nation have failed to live up to the sacrifices of these young men and women. I had no expectation of “victory” in Afghanistan or Iraq, whatever that would mean. Nor did I expect some epiphany of strategic insight or remorse from the nation’s brain trust.

I just found that I could not square the negativity, pettiness and paranoia in the discourse of our country’s elders with the nobility and dedication of the men and women I had seen and served with in Afghanistan.

Over time, as I listened to the squabbling, I realized that about the only thing Americans agree on these days is gratitude bordering on reverence for our military. It troubled me that the sum total of consensus in our discourse is deference toward the defenders of our nation.

Eventually, it dawned on me that the focus on defense was the root of our problem.

After the Sept. 11, 2001, attacks, the United States sent its military off to war and fretted about post-traumatic stress disorder — but paid little attention to the fact that America itself was traumatized. Americans became angry and withdrawn. We are fearful and paranoid because after a strike on our nation we chose to focus on defense rather than the resilience and vitality that made America great. In our defensive mind-set, we bristle at every change in a world undergoing an epochal transformation.

We have little reason to be so negative. Certainly the rest of the world is gaining on us, but this represents the success of explicit U.S. policies. After World War II, the United States sought to create a world of economic interdependence and prosperity, hoping to banish the malaise that helped precipitate a global conflict. The prospect of rapid growth in the developing world was not viewed as a threat but rather offered the promise of robust markets for American goods and ingenuity. We were confident and focused on the positive tasks of expanding our economy rather than fearing change…..

If you go back and look at news coverage of September 11, you will be struck by the calmness of ordinary citizens in New York in the face of carnage, their lack of panic and firm determination to help. The bravery and sacrifice of firefighters, EMT and police, the dogged resolution of rescue workers digging for victims, the sheer heroism of the passengers of  United Airlines Flight 93 who, led by Todd Beamer, stopped the al Qaida hijackers from ramming another plane into another skyscraper or perhaps the Capitol Building.

All of the security theater, the attacks on liberty, the surveillance state machinations, creeping normalization of government thuggery, bureaucratization, centralization and paternalism that have since been justified in the name of 9/11 were not needed on that day nor wanted by the overwhelming mass of American citizens afterwards.  It was wanted by our “leaders” – who were largely irrelevant to events on September, 11 – because it conformed to their worldview and overweening personal need for “control” of a democratic citizenry they would prefer to be less autonomous and more passive, docile, compliant and disengaged.

We need to revive the American spirit and the first steps are rolling back much of the illiberalism of the past decade.


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