LOAC a permissive regime granting a responsible military commander a “margin of appreciation” and evaluating his alleged breaches not based on the perfect information available post hoc but on what he knew or should have known a priori his decision to attack a target in the manner and with the means chosen: refrains from second-guessing presumptively good-faith judgments save for where actions are demonstrably the result of, e.g., a deliberate intent to kill civilians or a willful recklessness in using force excessive in relation to military advantage
command investigations are the most appropriate mechanism to investigate alleged violations of LOAC, and military justice systems routinely prosecute violations
Hyperlegalization of mil ops: elevates personal risks faced by military commanders, leverages motivated (mis)interpretation/redefinition of LOAC principles by forwarding alleged violations to hostile international courts
would require a commander, on report of an alleged violation, to impose a ceasefire and avail criminal investigators of his personnel, weapons, and equipment while his enemies escape or reinforce
trend away from the presumption of commanders’ good-faith gives Western military personnel cause to fear that, should military operations, no matter how LOAC-compliant, result in dead civilians no matter how unintended they will be removed from battlefields and prosecuted by their countries’ political opponents. Civilian judicial forums and CLOACA revisionism intersect to shrink the margin of appreciation to the vanishing point, legally decapitate the military establishment, and debilitate Western combat power
CLOACA academics invoke Nuremburg, claiming senior U.S. civilian leaders authored “violations of LOAC [as] an admitted part of a ‘common plan’ or ‘program’ in response to [9/11,]” ensuring that a regime of “oppression [was] loosed on the world” that mirrors the Nazi conspiracy in adopting a program of “manifestly unlawful transfer, detention, and interrogation” that “violate[s] our common dignity, degrade[s] our military, thwart[s] our mission,…deflate[s] our…influence abroad[,] emboldens [the] enemy, serve[s] as a terrorist recruitment tool,…and fulfill[s] terrorist ambitions.
disquisitions on LOAC may be not protected academic “speech” but “services,” “training,” and “expertise or assistance” to Islamist organizations in violation of the material support statute
disquisitions on LOAC may be not protected academic “speech” but “services,” “training,” and “expertise or assistance” to Islamist organizations in violation of the material support statute
In U.S. v. Tarek Mehanna, an American Muslim was convicted of providing material support through “services” and “expert advice or assistance” to al Qaida in translating, interpreting, and distributing materials advocating, justifying, and inspiring jihad. Mehanna, a self-styled Islamic scholar “who provided information to others…less knowledgeable” in the “blessed field” of “stand[ing] up for the Mujahidin and…their ideas[,]” claimed his work as the “media wing” of al Qaida was protected speech under the First Amendment. Disagreeing, the jury found that Mehanna, who expressed hatred of the U.S. and hope for its defeat, was not engaged in independent and constitutionally-protected advocacy of Islamist aims but had in fact worked “in coordination with or at the direction of” al Qaida to provide services, training, expertise, and assistance in support of its terrorist mission.
hard to craft a more apt description of CLOACA than “scholars” who “provide information to others…less knowledgeable” in the “blessed field” of “standing up for [Islamists] and their ideas[.]”
CLOACA scholars who contribute expert scholarship and advocacy that systematically (mis)interprets LOAC so as to advantage Islamist combat operations against the U.S. may be propagandists in violation of MSS.
CLOACA blames Islamist attacks on U.S. failure to eliminate the “root causes” of Islamism—“poverty, lack of education, and foreign occupation.” Islamism is thus a reaction to four aspects of U.S. foreign policy
CLOACA blames Islamist attacks on U.S. failure to eliminate the “root causes” of Islamism—“poverty, lack of education, and foreign occupation.” Islamism is thus a reaction to four aspects of U.S. foreign policy
1) promoting socioeconomic “injustices” in the Islamic world via the distributional effects of U.S. capitalism
(2) sanctioning rogue Muslim regimes
(3) dispatching infidel troops into “Muslim lands”
(4) allying with Israel
Because the West “participated in [Islamism’s] creation” the U.S. must cease “choosing militarism and global inequality over peace and global justice.”
Because the U.S. is the aggressor, any U.S. military response is counterproductive, unjust, generative of more Islamists, and illegal
U.S. must terminate alliances, withdraw forces, and redistribute resources to disincent future attacks
U.S./allied view: (1) nature, magnitude, and definition of Islamist danger meant war rather than LE, (2) social science literature indicates it is war against Islamism, (3) “no question” about whether a state of war existed had a rogue state executed 9/11, so it is irrelevant that Islamist VNSAs were authors; (4) Even if 9/11 did not formally traverse the war threshold, LOAC entitled the U.S. to self-defend against perpetrators, (5) vested states with authority to detain/interrogate individuals indefinitely without charges and try Islamist detainees for pre-capture crimes in military commissions, (6) vested states with authority to use military force w/o warning against Islamist fighters whenever and wherever they can be found--geography of the battlefield is everywhere and temporal dimension is for as long as it takes to defeat them
