Letter to Self

11/15/2021

Dear Editor:

LtCol Korsak deserves our respect and support as a community of lawyers.

What he appears to have done was his job. His actions are or should be, the norm. Article 1137, U.S. Navy Regulations requires the reporting of offenses, and I suspect the other Services have something similar. Oh, wait, there seems to be an AFI 51-401 of some relevance--duh. So, as I scroll down I get to para. 4.1.

4.1. Individual Responsibilities. All military and civilian personnel who, in the course of their duties, discover information that might reasonably be viewed as a violation of the law of war will report that information to their immediate commander. Such reports may be made through other channels, such as Security Forces, judge advocate, Air Force Office of Special Investigations, or inspector general. Contractors shall similarly require reporting through the chain of command by contractor personnel. If the immediate commander appears to be involved or reporting to that commander is otherwise not feasible, personnel must report the incident to the next higher command authority. In instances where it is unreasonable to report within the chain of command, personnel shall report to the servicing staff judge advocate, Inspector General, Air Force Office of Special Investigations or to a sister Service counterpart of one of these offices.

I am struck by the phrase, "might reasonably be viewed[.]" This strikes me as not requiring proof BRD or BaP.

That he then took his concerns to the IG and Congress is protected activity (and encouraged by an AFI on point). See also 10 U.S.C. § 1034.

As to the correctness of his legal interpretations and advice, I don’t know. Nor do you. Until there is a full public accounting for the strike and its aftermath, I think we should be careful about dumping on LtCol Korsak for following AF regulations and doing his duty.

To repeat one of my favorite quotes from Charles Dickens, in Hard Times, “Now what I want is, Facts.. . . Stick to Facts Sir!”

Sincerely, Phil Cave.

Speaking for himself to himself.

Brenner M. Fissell

11/15/2021 11:38:04 am

Well said, Phil. Obviously the question is not whether a crime was actually committed, but whether there was sufficient indicia of a crime to trigger an investigation.

Jay Jackson link

11/15/2021 03:36:18 pm

There are important lessons to be learned here, and hopefully the fallout will shed light on why this strike wasn't made public by CJTF-OIR as was their practice.

But what evidence is there that the strike "might reasonably be viewed" as a violation of the law of war? Strikes that result in civilian casualties are not de facto violations of the law of war, and there is no evidence that this particular strike should be characterized that way.

To the contrary, the NYT investigation indicates that the civilian casualties were unintentional: "A 5th Special Forces Group officer in the task force looked at the drone footage and didn’t see any civilians...But the drone he relied on had only a standard-definition camera. Central Command [erroneously] said there were no high-definition drones in the area that could get a better view of the target."

According to the NYT, the strike led to a civilian casualty assessment, 15-6 investigation, and scrutiny by the senior attorney at the CAOC. Lt Col Korsak took it further: to AFOSI, DoD/IG, and the SASC. All (all!) came to a different conclusion than Lt Col Korsak as to whether there was credible information of a war crime. Perhaps he was unable to shake the confirmation bias that came from his initial impressions of the strike, which he viewed via an HD feed unknown to the commander (who was watching a feed unknown to Lt Col Korsak).

Lt Col Korsak and Mr. Tate appear to have been wrong on both the law (believing the strike to constitute a war crime) and the policy (concerning when reporting is required)--perhaps that is why their complaints to more experienced oversight officials fell on deaf ears.

Brenner

11/15/2021 03:39:43 pm

Thank you for this measured and clear comment. The assessment is far more controversial than you make it out to be. See eg this discussion: https://www.justsecurity.org/79218/questions-on-the-baghuz-strikes/

Anonymous

11/15/2021 07:13:45 pm

That justsecurity article is not helpful (though I realize it is just questions).

They make the fundamental mistake that LTG(R) Pede identified in his recent article which is well worth the read.

https://www.armyupress.army.mil/Journals/Military-Review/English-Edition-Archives/March-April-2021/Pede-The-18th-Gap/

The NY Times article does raise policy issues that may need correction, but I agree with the comment above on the LOAC analysis (granted there may be facts that were not contained in the story)

Dean Korsak

11/15/2021 05:30:10 pm

Hi Jay. Nice to see you enjoying more of your first amendment freedoms than I currently have since you are no longer in uniform. I have good responses to your conclusory statements when I am authorized to engage in this healthy and overdue discussion. Dean

11/15/2021 06:30:57 pm

Overdue indeed. I would have been happy to discuss in March 2019.

11/15/2021 06:39:23 pm

We're on the same team my friend. Give me a call anytime. We both know there is much to unpack and always room for improvement. No need for public mud slinging.

Sure...

12/1/2021 04:23:06 pm

Right...

11/15/2021 06:51:40 pm

The analysis above is hardly mud-slinging--it's rooted firmly in the law of armed conflict, the DoD Law of War Program, and the facts as relayed in the New York Times' report.

I believe you got this one wrong, but there are certainly no hard feelings and I wish you the best of luck in the future.

11/15/2021 07:01:10 pm

We feel the same way about each other! It's nice to agree. There are some facts that need clarification and I am awaiting approval to do so.

Brian L. Cox link

11/15/2021 07:00:23 pm

Phil,

This is a commendable analysis, but it still isn't clear to me that it was LtCol Korsak's place to press the issue. Assuming Jay's articulation of the relevant C2 relationships is accurate, why should an attorney in the CAOC be the one to assess LOAC compliance?

When I attended the Joint Firepower Course, I was taught that flexibility is the key to airpower and that flexibility is achieved by implementing centralized control with decentralized execution. How can we achieve decentralized execution if we can't trust those responsible for a strike to evaluate LOAC compliance beforehand and, when necessary, after the attack?

Taking note that Dean has joined the discussion in comments above, I will say that I acknowledge Dean's point that we on the outside don't have access to all the facts - including any impediments Dean may have encountered from the inside while pursuing the issue. It's clear from Dean's statement that is posted above Phil's note that Dean pursued the actions that he thought were necessary and justified.

Dean, one of these days when you are able to discuss the issue in more detail, we will no doubt be fascinated to learn more. Until that time comes, the central lingering question I have is, "Why the CAOC?"

Anon

11/15/2021 07:24:19 pm

"It's not the crime, it's the cover-up"

Space Lawyer

11/16/2021 02:19:35 am

Appreciate the notice and Phil's comments. As per usual, I'd caution everyone (including myself) against forming strong judgments given we're unlikely to have all the facts.

Big picture, I do wonder about our ability to judge ourselves on something like this. Individually, we can find people responsible, and maybe we can even find a process or a small part of what we do isn't right. But when you get to something that goes to the core of the mission and is deeply embedded in how we do business, I think it becomes very difficult to review things, if the review requires us to ask "Is this whole process right?"

Assume, for the sake of argument, that we're doing something fundamentally wrong in our targeting and our culture in this respect (and I don't believe that's necessarily the case). Could we look at ourselves, the people who do this, the mission we're told it's all for, and say "this is wrong?" I don't think so.

My sense is any institution might have a better grasp of the facts and realities of a situation than an outsider can, but at the same time, the fact that so much of the value derived by the institution and its members comes from how it does things makes it hard to say "we're the baddies."

None of this really resolves the particular issue here, just that we're probably inherently incapable of judging ourselves on something like this, hence the importance of thoughtful, careful oversight from the civilian leadership, the press, and the citizenry in general.

Comments are closed.

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Letter to Self

Sincerely, Phil Cave.

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