Legalities of the Fort Hood Shooting

In continuation of my attempt to resume using this blog, I thought that I'd share a bit of legal theory-crafting that I was doing earlier. In the light of the Fort Hood shooting, I began examining the legalities of the situation, particularly if the attacker, MAJ Nidal Malik Hasan, had hypothetically been a member of a foreign militant organization. I think that this is a very interesting legal question because it is a good example of where the lines are drawn insofar as international wartime law is concerned.

Here are the following questions that would have to be looked at under the Hague conventions and by extension the other international war conduct treaties. If you are unfamiliar with the event, then crawl out from under your rock and check out the fantastic New York Times article by spot news Pulitzer veteran Robert McFadden about the incident (especially its fantastically written ending):

1) Is the man (hereafter called the Agent) a soldier of an enemy army or militia? Or alternatively, does the Taliban / Al Qaeda / Sadr Militia count as an army or militia, seeing as it is a political organization that doesn't really control a country? On this note, I think the answer is probably yes, but there is some room for debate.

2) Assuming the above is true, do the laws of war apply to the Agent? This seems unlikely due to the actions of the organizations in question. Article 1 of the Hague code would indicate that they have not fulfilled the requisite conditions:

Article 1, Chapter I, Section I of the Regulations Respecting the Laws and Customs of War on Land, of the Hague Convention

The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:

To be commanded by a person responsible for his subordinates;
To have a fixed distinctive emblem recognizable at a distance;
To carry arms openly; and
To conduct their operations in accordance with the laws and customs of war.

In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination "army."

3) Assuming that the laws of war did apply to the Agent, would his actions be a war crime? In this case, I would say yes. He violated two clauses of Article 23 of the Hague convention, killing and wounding treacherously as well as making improper use of an enemy uniform and insignia (meaning wearing it while attacking, as opposed to using it for reconnaissance or a so-called ruse of war).

4) Separately, are the soldiers at Fort Hood legal war targets? All indications point to yes. The base is guarded, and the soldiers are not convalescing or otherwise to be considered noncombatants. The civilians in the area would be considered collateral damage so long as they were not targeted specifically. Of course, for such an attack to be considered legal under international law, it would have to be conducted legally and by a legitimate army.

5) As such, the Agent would not be protected under international wartime law, as he did not abide by that law (indeed he violated it flagrantly). He would then be tried as an unlawful combatant, and thus would be judged under the domestic laws of the United States.

So enough of the hypothetical theory-crafting, what's really going to happen to the guy? Is he going to hang or are his lawyers going to say he's crazy? Probably both. His lawyers are going to plead not guilty by reason of incompetence (PTSD most likely), and the government is going to quash that like a ripe fruit. As far as I know the guy hasn't even been overseas. They'll ask for the death penalty and they'll probably get it too (this is Texas after all). Even if they didn't need to send a message to other would-be war objectors that this sort of thing gets put down with prejudice, this many murders would land a man in the hot seat regardless of the circumstance.

I once covered a similar case with a former military man who kidnapped and later killed his wife here in Oregon. His lawyers claimed he had PTSD, but the jury sentenced him to death anyways. The defense just isn't that strong, especially because the jury sees only a sane man and not a lunatic.

My only real question is whether they are going to try him under the UCMJ in a General Court-Martial with a JAG lawyer, a military judge and a five serviceman panel, or if they are going to turn him over to the civilian authorities to be tried in a Texan district court. Personally I'd prefer the former in this case, but I'm sure the Pentagon will get a lot of pressure to put him into state hands; whomever represents the guy will have a heck of a time deciding which one would be better for his client.

Oregon soldiers due to deploy

My friends, 2LT Thomas Harding and SPC Alexander Newman, and most of the rest of the Oregon Army National Guards's 41st Infantry Brigade Combat Team, completed their final mobilization training Thursday at Fort Stewart, Ga., and are preparing to ship out to Iraq shortly.

For those who have friends or family in the Oregon National Guard, this would be a good time to call them up to say your goodbyes if you haven't already.

Oregon Military Department:

The Brigade's deployment to Iraq will be the largest war-time deployment of the Oregon National Guard since World War II. It will be three times larger that the Brigade's recent deployment to Afghanistan in 2006-2007 and will involve the entire Brigade of 3,400 Soldiers and will affect every community in the state.

To those about to deploy: Good hunting and godspeed.

Limitations of the UN

I've been discussing elements surrounding the US military budget for more than a week now on SomethingAwful. It is a frustrating topic, and difficult to render into blog format for the most part. But I did write a bit on the limitations of the UN that I wanted to share:


(This was in response to the statement, "This is a bigger problem, but I can't think of many situations where you wouldn't be able to convince the UN to intervene, but should intervene yourself.")

I think that the genocide in Darfur was a clear example of a time where there was a mandate for international intervention. However, due to the lack of public support for the wars in the Middle East, the US waited for UN leadership that never materialized. Sudan is a symbol of the limitations of the UN system.

That analysis is based on several things: a historical perspective on the elements of past successful UN missions, the similar relationship between US involvement in Somalia and its lack of action in Rwanda, and a good understanding of the political events surrounding the tragedy in Darfur.

Successful UN missions (whether they be interventionary or merely health initiatives) have always relied upon strong leadership by one of the members of the Security Council. This is part of the system, primarily because attempting action without support of any of the world powers is a fool's errand. However, this limits the initiative of the body itself, and difficult decisions quickly become deadlocked without unilateral impetus by a first-world nation - often the US.

You could see this same situation play out in Rwanda in 1994. A growing crisis generated international outcry, but no UN action. The US had adopted an isolationist policy after Somalia, and no other nation was willing to take a leadership role in creating a coalition. The result was a confused and timid UN response to a genocide that ended only when the rebels drove off the murdering regime.

The response to the Darfur crisis was the same situation: the US has grown isolationist due to the lack of public support in the Iraq war, and limited its response to the political arena. Other nations deemed the situation too risky, and China / Russia actually gave arms to the Sudanese government that is decimating the population. Nothing happened, and the conflict has now escalated into the surrounding regions.

More generally, Sudan has seen civil war and genocide for the last 20 years, and the UN has done little more than ship in US-supplied food aid. Legal confusion, double-dealing and complicity, and cowardly support from the world community systematically mar UN missions. You can recognize the US' hesitation in putting more of its resources under UN control. The US has been pushing for UN managerial reform for years now, and its nonpayment of assays is part of that (despite which the US still shoulders the largest part of the UN's costs). Until those reforms go through, it will remain likely that tragedies like Rwanda and Sudan will continue.

Air Force Retardation Indeed

Recent American media coverage has focused on the primaries, but other news proceeds apace.

A senior Air Force general has publicly disagreed with Bush administration comptrollers who want to shut down the F-22 Raptor production program to save money. About 110 of the air superiority jets have been produced, with a research and development cost of about $60 billion.

Gen. Bruce Carlson disagrees:

The general, speaking to reporters Wednesday, said the Air Force was "committed to funding 380" F-22s regardless of the Bush administration's budget policies. "We're building a program right now to do that. It's going to be incredibly difficult ... but we've done this before."

Carlson's comments came as Deputy Defense Secretary Gordon England was testifying before congressional committees. In an exchange during a Senate Budget Committee hearing Tuesday, Sen. Ron Wyden, D-Oregon, asked whether the Pentagon would buy F-22s to replace aging F-15s, some of which have been grounded because of structural defects.

"I do not believe the F-22 will be the replacement for the F-15," England said. "I would expect instead to try and accelerate the [F-35] joint strike fighter," which he called a capable and far less costly replacement.

The office of the Air Force quickly back-pedaled after Carlson's statements, but they have already raised controversy. Some supporters believe that the Air Force's plans should be looked at separately from the costs of the war in Iraq, while their critics lambaste the F-22s as an unnecessarily complex and expensive aircraft built for a war that will never occur.

In my opinion, it is important to see the issue in context. The Air Force has responsibilities that extend far beyond the Middle East. They can't keep on using old aircraft, and they can't fulfill those responsibilities with only 180 air superiority fighters (the number of aircraft that have been funded). F-15Cs are a 30-year old platform, while F-35 Lightning IIs are at best a distant second replacement for the role of F-22s, and are pretty expensive as well (~$75 million per, compared to ~$125 million per).

Once you factor in the extended lifetime of the aircraft (at least 40 years), the decreased maintenance and personnel costs and the added capability that this aircraft provides, this isn't that hard of a sell. Adding another 300 aircraft to the existing 112 (meeting the Air Force's goal of ~400, or a 1 to 1 replacement of the F-15C) would mean an additional $1 billion cost per year for the lifetime of the aircraft - equivalent to the B-2 Spirit Bomber program. This price would further decrease if future advances extended lifetime of the F-22. Funding the fighters is a smart decision, and one that needs to be made.