SECDEF on Baghuz

11/17/2021

A reaction:

11/17/2021 05:01:13 pm

Never any accountability for criminal dereliction.

Rachel, if you are monitoring, would you care to elaborate? Is there a war crime for which you believe personnel involved in the Baghuz strike have not been held accountable? Is that not the body of law that applies for an attack during armed conflict, like the Baghuz strike?

I'm having trouble comprehending your assessment that DoD is not adequately holding personnel accountable, but I would welcome an opportunity to learn more.

Anon

11/17/2021 05:24:17 pm

Brian: Were I aiming to create a cadre of uniformed lawyers who were reflexively obedient to authority, immediately defensive in response to the most minor criticism of authority, and--in service of all this--willing to rely on the most bland technicalities, even in the face of tragic human carnage, I would view the collection of your recent comments as representing the greatest achievement of my indoctrination program. Your rationalizations ring utterly hollow to any person with a shred of empathy for his fellow man.

Brian L. Cox link

11/17/2021 05:33:53 pm

Ah, thank you. You could call it all those things - or you could call it basic familiarity with the law of armed conflict. Thanks again, Anon - surely you're a true patriot!

Anon

11/17/2021 05:44:13 pm

Ah, and so you have tipped your hand, Brian. "Patriotism." Us vs. Them, and we can do no wrong. If the US is ever attacked, we should all hope that there is not a lawyer on their side invoking "patriotism" in service of the bombing of innocents.

Brian L. Cox link

11/17/2021 06:03:36 pm

Interesting read on patriotism there, Anon.

Personal barbs aside, care to offer an informed LOAC analysis in relation to the Baghuz strike? Human carnage is tragic, but LOAC rules are not simple "bland technicalities." This is the law that applies in armed conflict, and this is the case for a reason. It seems that you don't like it, and that's okay. But, if we're going to talk about holding personnel "accountable," the standards of international law that apply are surely more than mere technicalities.

So, you think I'm an asshole for suggesting a formal legal analysis. I accept that, no problem. Do you care to share a valid LOAC analysis to go along with your rather descriptive personal disdain? Because this is the analysis these "reflexively obedient" lawyers I seek to recruit will need to apply downrange.

Jay Jackson link

11/17/2021 11:22:59 pm

Thank goodness that empathy for our fellow man and an understanding of the law of armed conflict are not mutually exclusive. It’s possible to both abhor the loss of innocent life and recognize that civilian harm is an unfortunate but inevitable byproduct of armed conflict.

A law which prohibited the loss of civilian life under all circumstances would prolong wars indefinitely and tip the balance in favor of groups like ISIS (who, you may recall, felt less tied to the niceties of international law).

David Bargatze

11/18/2021 01:53:15 pm

Professor Cox,

I believe SECDEF actually does care about civilian casualties, but your focus on the law of war may be too narrow, as it's not the only body of law that applies.

The Times article contained the following quote from an email allegedly sent to a Congressional committee: "'Senior ranking U.S. military officials intentionally and systematically circumvented the deliberate strike process.'" By its nature, the deliberate strike process contains safeguards that are not present in self-defense strikes. Setting aside the overused term "war crimes" (a term that does not appear in Professor VanLandingham's tweet), circumventing the rules of engagement might be, at least, criminal dereliction under the UCMJ. The article also asserts, "He wrote that a unit intentionally entered false strike log entries, 'clearly seeking to cover up the incidents.'" That could also be a UCMJ offense.

As for law of war analysis, I have confidence in those who advise/decide on strikes in real-time and who review them after the fact. I also know that their independent judgment is dependent upon the information made available to them. That confidence doesn't mean I think they're always right. Honest error, incomplete information, and reasonable disagreement are one thing, but if individuals are not being entirely truthful and forthright when presenting information then that advice/decision and those reviews are fatally flawed, and the risk of actual war crimes increases. The SOCOM spokesperson appears to get the importance of underlying information: "Allegations of a cover-up are inaccurate based on the facts U.S. Central Command provided."

I'm not saying that there was anything untoward going on, but if someone believed that there were, then they had an obligation to report it, especially if they believed that individuals were intentionally distorting the analysis of the expected civilian harm and the anticipated military advantage.

(The views expressed are my own and are not necessarily the policy or position of any organization with which I am, have been, or ever will be affiliated.)

Brian L. Cox link

11/18/2021 04:14:44 pm

David (if I may?),

These comments are a credit to you and to any organization with which you are, have been, or ever will be affiliated. I think you're spot on, and I couldn't agree more.

Rachel's comments appear to be directed at the strike itself (I read the remarks in light of the "accountability for CIVCAS" qualifier, which indicates to me that the comment is directed at the strike. However, I may be wrong there). If we incorporate your remarks, we're expanding beyond the strike - which is of course important to do if there is an indication that misconduct may a factor in pre *or* post strike activities.

If we're talking about the strike itself, I'll just incorporate my previous comments and emphasize that we should be engaged in a doctrinal LOAC analysis.

Now, if we're expanding to post-strike conduct, there are any number of potential UCMJ offenses that could be committed, including falsifying records and covering up previous misconduct and such. From this perspective, though, I don't find much in the NYT story to be compelling. Bulldozing the strike site, for example, was quite likely a tactical necessity since ISIS made a last stand in Baghuz and almost certainly followed their typical TTP and boobytrapped the area to an extent that bulldozing the site was the only safe way to clear it.

But hey, if somebody actually did doctor the logs or bulldoze the strike site in order to cover up a crime, doing so is likely itself a crime. Some folks may find my reluctance to put much stock in a media report to be too deferential to the government. That's fair, but I attribute my reluctance to a mistrust of the sensational reporting and a lack of access to actual evidence that the journalists in question encountered.

Bottom line - I appreciate your balanced analysis and I don't disagree with you. If there is actual evidence of nefarious post-strike behavior, hopefully it is discovered and those responsible are held to account for their actions.

Nathan Freeburg

11/17/2021 05:05:55 pm

As others, have noted, the LOAC is far more permissive than most civilians realize. And there is a wide gap in the LOAC between “perhaps inadvisable” and “criminal.”

Anon - II

11/18/2021 01:50:05 pm

Brian
"Personal Barbs aside" For starters, you wrote that the complainant needed a refresher course. Going back to your comments on Captain Rainey where you proclaimed her innocence - even bypassing the idea that an investigation into her conduct maybe crossing in Art. 133 territory, you have slung a few underhanded comments yourself. If you teach like you approach this site, I am pretty sure your students will think of you in the very terms you suggested

Brian L. Cox link

11/18/2021 04:27:52 pm

Anon - II,

I invite you to go back and review my analysis on Lawfire of the Rainey events with a more balanced approach. What I said there is that hiring a bus to take some protestors from NC to DC didn't in itself violate DoD policy. However, I'll note here, as I did there, that the investigation was still ongoing and if something more is discovered that may change the analysis.

In regards to how I teach, I approach the classroom exactly as I do my commentary on this site and elsewhere. That is, in part, I encourage my students to see through advocacy that is cloaked in legal analysis and to make up their own mind based on their independent knowledge of law and policy as it actually exists.

If you're concerned about how I approach the classroom, my focus is on the course evaluations submitted by my students at the end of each semester and on any feedback from my administration based on those evals. If you're interested in expressing any opinion about how I approach the classroom, I encourage you to enroll in one of my classes, after which you will receive an invitation to evaluate my performance in a manner that I would deem relevant.

Brian L. Cox link

11/18/2021 04:38:06 pm

Anon - II,

One more comment since I neglected to address your initial observation. Suggesting that a judge advocate who believes a war crime may have been committed based on the outcome of a strike is not intended to be a personal barb. Someone can be a wonderful person and a true professional but still misunderstand and incorrectly apply international law to a post-strike analysis. If that is what happened, which is my assessment based on reading the NYT story though I recognize that this may not be the whole story, then I think a LOAC refresher is warranted. Genuinely, though, nothing personal.

Rachel E. VanLandingham link

11/18/2021 04:19:30 pm

Everyone: thank you for engaging in this discussion -- I mean that with all seriousness, as my fear is that folks will think there really is nothing to see here (generic belief being that we beat ISIS and civilians had to die in the process because ISIS put them in harms' way; our military is the most careful in the world, move along everyone; or more insidiously, as implied by CENTCOM's wkd statement -- these 60plus ISIS family members likely weren't really civilians, because some of them may have been armed, so 500 lb bombs on women & kids = good strike).

Just no. No. That's not the type of analytical rigor we have every right to demand from our operators. Hopefully that was just a stupid HQ spokeX spewing shizzle, but given the high likelihood that a lawyer reviewed that statement before it was disseminated ... gotta wonder WTF is going on at CENTCOM.

When all is said and done, the Baghuz F-15 strike may very well have reasonably appeared as a proportional strike from the vantage point of those ordering and executing it (the only perspective that matters), who very well could have employed all feasible precautions in the circumstances present at the time to mitigate civilian harm, and that no one was reckless or negligent in the failure to access the high-vis live drone coverage of the area available when the strike was being contemplated. Doesn't matter that in retrospect it was disproportional, if it in fact was (quite possibly was), as long as the prospective analysis was sound.

But it could also very well be that this was strike involved negligent, reckless or indeed intentional conduct that caused avoidable loss of life of 60plus civilians (in other words, UCMJ crimes - we don't charge war crimes so that blather is rather empty, except to highlight that accountability for this potential criminality is the linchpin of the effectiveness of the entire LOAC regime, see here http://aulawreview.org/au_law_review/wp-content/uploads/2021/01/CornVanLandingham.to_.Printer.pdf ).

Anyway, this distinct possibility of malfeasance is the point of the guardrails -- the requirement that credible allegations be reported not for reporting sake, but for thorough, impartial investigations be conducted. Quality investigations are needed to ensure that criminal misconduct (including negligence) wasn't present (if it was, to provide the basis for appropriate disciplinary or criminal consequences), and to help improve the processes for next time, even if no misconduct at all -- because who is actually going to stand up and say that this kind of strike is something we want to replicate? We want to do better (don't we? Unless ISIS family members really aren't civilians anyway, so let's kill more of them, a perverse mindset which surely didn't influence anything here...did it?)

I agree that Sec'ty Austin does actually personally care about minimizing harm to civilians during combat ops (while no one cares, I do, so sharing that then MG Austin signed my first officer eval at HQ USCENTCOM years ago; he was my Chief of Staff whom I respected and still respect a great deal). But as SECDEF sure doesn't seem he cares based on his empty words of "we must do better" and "we take responsibility" ... he's not ordering an immediate investigation, such as convening a Court of Inquiry per Art 135 just words reflecting that he doesn't believe accountability for anything is necessary -- just improvements to policy and process. Rule of law isn't followed simply by policy and process -- deterrence through consequences is needed and he should have been far more open to the possibility that individual accountability may be warranted here.

I was greatly troubled (pissed, really) at Austin's seemingly blase reaction to the NYT report yesterday during his press conference (I wanted him to thank Eric Schmitt, not chide him for asking a multi-part question). Why did I want more? Because even a quick read of the wkd NYT article signals that the guardrails didn't work this time. If such a great strike why no transparency, and worse, why the burying of legal reviews that indicated potential malfeasance? Why no disclosure of civcas in 2019 and 2020 report? Why did an AF JAG have to go to SASC and the NYT to get attention paid to legitimate concerns? See the list of great questions Ryan Goodman et al generated at Just Security.

I don't know many judge advocates or other officers that will risk their careers to ensure a thorough investigation is completed into potential crimes (war crimes or other). And he was joined by a former IG inspector; doesn't mean either one of them was right, but where there is smoke there's often fire, and relying on some RAND study isn't going to replace a thorough investigation, which Secretary Austin hopefully will eventually order.

But....nothing to see here. Move along.

Philip D. Cave link

11/18/2021 05:12:20 pm

One clarification. It is my understanding that LtCol Korsak did NOT go to the NYT. That appears to be part of his well crafted LinkedIn post. For him to clarify that he only used authorized channels.

Rachel E VanLandingham

11/19/2021 10:55:50 pm

Good point, Phil, he focused on going to IG and SASC, apparently.

Poster

11/22/2021 09:19:37 am

This is the kind of story and discussion that tells us to look ahead to the next conflict. I think that was Anon's point. I is going to be very bloody wit high estimated loss of life in the opening days.

Why such high loss? AI on the battlefield. Lots of remote devices making decisions faster than humans can. Our opponents aren't going to care about the rules, because they believe there won't be anyone to answer to. Or at least that's what they're indoctrinated to believe.

Humanity and empathy can't be overlooked. So too for love of country. Can we have accountability without putting someone in the in the bronze bull? It's probably how we can get both.

Your comment will be posted after it is approved.

CAAFlog

SECDEF on Baghuz

Leave a Reply.

Categories

Archives