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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.

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.

Elkus on Mad Dogs and Military History

Friday, May 10th, 2013

Adam Elkus has a lengthy and meaty post at Abu Muqawama, inspired by General Mattis, one that you should really read in full:

The Mattis Book Club

….But while gaining an understanding of the nature of war is useful, there are a lot of things it won’t do. This becomes most apparent in the section of the email where Mattis makes specific claims. Mattis repeatedly states that nothing is new under the sun, makes comparisons across big temporal zones (Alexander the Great in Persian Iraq vs. 2004 iraq), and advances specific analytical arguments about military theories. He does so on the basis of a sweeping generalization that 5,000 years of warfare tells us in aggregate that war has not changed. While this makes for a rousing line, it is also a fairly problematic statement. How do we really know that the nature of war has not changed in 5,000 years?

We should recognize that this is an isolated quote, and strive to not take out of context what was a heartfelt letter to a colleague in need of guidance. But the argument itself—as the cumulative product of a process of self-education in the nature of warfare, does merit some critical analysis. It is part of a humanistic conception of war that stresses the unity of military experience across the ages, and puts the fighting man’s will first. What Mattis dashed off in an email has been repeated by others in journal articles, blog posts, essays, and books. The military historian Brian McAllister Linn, in his seminal study of the Army’s cultures, dubbed it the “heroic” style of war. Linn constrasts this humanistic style this with technocratic Managers, defensive Guardians, and other military tribes with differing values and approaches.

So what do we know about 5,000 years of constant violence?

Often times the answer is that it depends. As my Fuller and Liddell-Hart examples illustrate, the quality of historical accounts is extremely uneven. Military history as a modern discipline only started with Hans Delbruck, a civilian who did some basic math and discovered that many of the most prominent chroniclers of pre-modern warfare were flat-out wrong about ancient history’s greatest battles and campaigns. Anthropologists still argue today about the nature of violence in the evolutionary state of nature and whether it can be mapped to violence in settled states. Second, it may be true that war is war in the Clausewitzian sense. But while it is technically true that Alexander’s Iraqi opponents and Sadrist mobs are both humans seeking to use force to impose their will, this in and of itself is not very useful. There are fairly prominent shifts in the character of politics, the international system, techology, wealth, and society that matter too.  

What constitutes politics is a very important point.

Take for example, the Romans. There was a definite shift between the Early-Middle Republican eras and the Late Republic in elite politics and the socioeconomic conditions upon which Roman assumptions about war and the organization and supply of Legions rested.  Growing inequality of wealth was making it harder for Plebian citizens to afford to muster for a campaign, the need for longserving “professional” Legates to maintain “institutional memory” of the “arts of war” of the Legions expanded even as the highly coveted opportunities for Patricians to command decreased. These trends clashed with what the Romans liked to  believe about themselves and the friction between advocates of reforms (often necessary and practical) and the upholders of  centuries of honored tradition made Roman politics increasingly bitter, dysfunctional and subsequently lethal. The early Romans would have been horrified by Marius and Sulla, to say nothing of Antony and Octavian.

In the end, the politics of the Romans, along with their battlefield experiences, changed how they organized and manned their Legions, why and how they fought the wars as they did and continued to shape Roman warfare as long as the empire lasted. Julius Caesar would have been as startled by Late Antiquity’s semi-barbarian “Roman” Magister Militiums as his own career would have dismayed Decius Mus.

Adam goes on to have some useful things to say about the need for combining historical and quantitative  social science  methodologies and the limitations of each. Delbruck’s overstated skepticism of the ancients aside, sometimes we moderns do not count any better in war or politics – or at times,  even worse

E.O. Wilson on the Evolutionary Origin of Creativity and Art

Thursday, April 4th, 2013

E.O. Wilson 

Last summer, eminent sociobiologist E.O. Wilson published an article in Harvard Magazine:

On the Origins of the Arts 

….By using this power in addition to examine human history, we can gain insights into the origin and nature of aesthetic judgment. For example, neurobiological monitoring, in particular measurements of the damping of alpha waves during perceptions of abstract designs, have shown that the brain is most aroused by patterns in which there is about a 20 percent redundancy of elements or, put roughly, the amount of complexity found in a simple maze, or two turns of a logarithmic spiral, or an asymmetric cross. It may be coincidence (although I think not) that about the same degree of complexity is shared by a great deal of the art in friezes, grillwork, colophons, logographs, and flag designs. It crops up again in the glyphs of the ancient Middle East and Mesoamerica, as well in the pictographs and letters of modern Asian languages. The same level of complexity characterizes part of what is considered attractive in primitive art and modern abstract art and design. The source of the principle may be that this amount of complexity is the most that the brain can process in a single glance, in the same way that seven is the highest number of objects that can be counted at a single glance. When a picture is more complex, the eye grasps its content by the eye’s saccade or consciously reflective travel from one sector to the next. A quality of great art is its ability to guide attention from one of its parts to another in a manner that pleases, informs, and provokes

This is fascinating.  My first question would be how we could determine if the pattern of degree of complexity is the result of cognitive structural limits (a cap on our thinking) or if it represents a sufficient visual sensory catalyst in terms of numbers of elements to cause an excitory response (neurons firing, release of dopamine, acetylcholine etc. ) and a subsequent feedback loop. Great art, or just sometimes interesting designs exhibiting novelty can hold us with a mysterious, absorbing fascination

Later, Wilson writes:

….If ever there was a reason for bringing the humanities and science closer together, it is the need to understand the true nature of the human sensory world, as contrasted with that seen by the rest of life. But there is another, even more important reason to move toward consilience among the great branches of learning. Substantial evidence now exists that human social behavior arose genetically by multilevel evolution. If this interpretation is correct, and a growing number of evolutionary biologists and anthropologists believe it is, we can expect a continuing conflict between components of behavior favored by individual selection and those favored by group selection. Selection at the individual level tends to create competitiveness and selfish behavior among group members—in status, mating, and the securing of resources. In opposition, selection between groups tends to create selfless behavior, expressed in
greater generosity and altruism, which in turn promote stronger cohesion and strength of the group as a whole 

Very interesting.

First, while I am in no way qualified to argue evolution with E.O. Wilson, I am dimly aware that some biological scientists might be apt to take issue with Wilson’s primacy of multilevel evolution. As a matter of common sense, it seems likely to me that biological systems might have a point where they experience emergent evolutionary effects – the system itself has to be able to adapt to the larger environmental context – how do we know what level of “multilevel” will be the significant driver of natural selection and under what conditions? Or does one level have a rough sort of “hegemony” over the evolutionary process with the rest as “tweaking” influences? Or is there more randomness here than process?

That part is way beyond my ken and readers are welcome to weigh in here.

The second part, given Wilson’s assumptions are more graspable. Creativity often is a matter of individual insights becoming elaborated and exploited, but also has strong collaborative and social aspects. That kind of cooperation may not even be purposeful or ends-driven by both parties, it may simply be behaviors that incidentally  help create an environment or social space where creative innovation becomes more likely to flourish – such as the advent of writing and the spread of literacy giving birth to a literary cultural explosion of ideas and invention – and battles over credit and more tangible rewards.

Need to ponder this some more.

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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