The Role of International Humanitarian Legal Academy in Contemporary Warfare

The Role of the International Humanitarian Legal Academy as a Source of Combat Power in Contemporary Warfare Dr. William Bradford, PhD, LLM, D. Jur. Uppsala Universitet, JuridiskaFakulteten, 18 December 2014

Intro: International Context • Islam defeated Crusaders (1280), into Balkans, gates of Vienna (1683); by 1914 was poor, weak, colonized; by 1990s Western alliances shielded Turkey/Pakistan, defended Saudi Arabia/Kuwait, freed Bosnia/Kosovo • 2014 no consortium of Islamic states/VNSAs can defeat the West in battle: would invite eradication • many Muslims, desperate to reclaim their rightful place in God’s order, are receptive to exhortations to wage jihad until they impose Shari’a over mankind • ISIS using armed force, beheadings, sex slavery, narcotrafficking, and chlorine gas, to extend a “Caliphate” it declared over swaths of Iraq and Syria in June, and its ferocious momentum has the West fumbling for a counterstrategy even as its fighters prepare to capture Baghdad and Damascus. Meanwhile, the Taliban gain in Afghanistan and Pakistan, secular regimes tumble in N Africa, Iran races toward nuclear weapons • ISIS goal: (a) depose secular Arab regimes, evict Western military forces; (2) extend dar al Islam to lands once under Islamic rule: Israel, Spain, S Italy, Balkans, S Russia; convert/kill “infidel” populations; (3) use project military power and submit rest of world under Caliphate

5GW Axioms • VNSAs seek to collapse states and impose radically different governance regimes • In state-VNSAs wars, the first party to (a) eradicate, (b) deter, or (c) defeat the other, wins • Eradication unavailable: state military power severely constrained, VNSAs lack military capacity • Deterrence unavailable: no common interests, no possible modus vivendi, nothing VNSAs fear losing • Political will—belief in legitimacy of, and justice in defending, a cause—must be broken to defeat enemy • Breaking political will requires undermining the belief of the enemy society in the legitimacy of, and willingness to fight for, its political-economic system, culture, morals, and laws • Information warfare [“IW”] uses information as a weapon to break adversarial political will • PSYOPs (IW) that on offense sows “distrust, dissidence, and disaffection” and “turn[s] a people against the cause for which it fights” and on defense supports and defends political will • PSYOPS waged in political, economic, cultural, moral, and legal domains are primary combat method • Military ops are combat support that frame, magnify, potentiate effects of PSYOPs on enemy political will • Total war: battlespace is everywhere, everyone is a potential combatant, and everything is a target • First society to make the other unwilling to fight for its pol-eco system, culture, values, morals, laws, wins

Why the West is Losing • Islamists have adapted and West is losing for three reasons… • (1) don’t know what the war is about: (a) Islamists fight a total war to extend religio-political legal domain using info as weapon to destroy Western will and civilization, (b) West fighting a limited war with military force to disrupt Islamist groups and create a democratic, ROL Islamic world where minority rights are respected, goods and ideas are freely exchanged, and incentives to religious radicalism are diminished • (2) West underestimates Islamist nature and resolve: Islamists forced U.S. withdrawal without victory from Iraq and Afghanistan because they recognized that Western political will and its constituents—belief in the legitimacy of a civilization defined by democracy, individual rights, and religious pluralism, and the willingness of the Western peoples to fight for the survival of this civilization—are far more vulnerable • (3) West failed to adapt to a conflict with Islamism that became 4GW in 1979 and cannot/will not employ PSYOPs yet: (a) West still thinks conventional military force that carried utility previously will suffice whereas (b) for Islamists victory is political and must destroy the Western will to fight using info

Islamist Ops Plan: PSYOPs Attack on Western Political Will Via Rule-of-Law • Islamists win if they destroy Western political will by making West doubt utility and morality of the war and compel governments to withdraw combat forces • most fundamental component of Western political will: veneration of rule-of-law • ROL: politico-legal order in which rights are respected in the creation and application of laws; life, liberty, and property are immune from arbitrary deprivation; individuals are formally equal; judges are neutral and redress grievances based on rules and not politics; and laws govern disputes rather than human whim • U.S. elites champion ROL as export that spreads peace, order, justice globally and part of CT strategy for creating international order that detects, deters, defeats Islamists • democratic republics require public support to muster, deploy, sustain mil ops, and claims of LOAC violations undermine the legitimacy and political will of ROL nations unwilling to prosecute “illegal” wars • Islamist repudiation of IHL irrelevant if national will to fight them withers under allegations of lawlessness • two-dimensioned op plan: (1) info element (PSYOPs) supported by (2) military element—unlawful use of armed force (perfidy, POW murder, suicide bombings, mosques/schools/hospitals as combat platforms, human shielding)—to convince Americans that the U.S. is an evil regime that elected to fight an illegal war against Islam, U.S. systematically commits IHL violations, U.S. crimes erode natsec and destroy core values, only way U.S. can restore moral virtue, recommit to ROL, and protect itself is withdraw in defeat

Fifth Column Required to Execute Islamist Operations • Islamists cannot directly make Americans form hostile judgments regarding legitimacy of their cause and destroy their political will: “work in America…in destroying Western Civilization from within” necessitates “‘sabotaging’ its miserable house by their [own] hands” (Muslim Brotherhood) • Influence/coopt critical nodes with cultural knowledge of, social proximity to, and institutional capacity to mould opinion; possess ideological power to reinforce/shatter American perceptions of the legal and moral rectitude of the war and to defend/destroy American political will (1) media and journalists (2) government and public officials (3) legal academy • Media chooses what to show and not show, how to frame it, what to call it (Abu Ghraib, human shielding) • Political leaders shape subjective perceptions of LOAC compliance: affirmations of LOAC in/fidelity undermine/reinforce US political will Senator Obama: U.S.: “just air raiding villages and killing civilians” Senator John Kerry thundered that “[U.S.] soldiers [are] terrorizing children [and] women.” Rep. John Murtha accused U.S. Marines of “killing innocent civilians in cold blood

Legal Academy as a Source of PSYOPs Combat Power • Academics regarded as neutral arbiters dedicated to pursuit of knowledge and above political cultural fray • Legal academy: cohort with greatest substantive LOAC expertise and unconstrained freedom to make authoritative judgments on the legality of every issue in U.S. military ops in war against Islamism • (1) Centrality of law in public life, (2) special warrant to “say what the law is”, (3) social power garners special opportunities to articulate, and implement, solutions to the problems they perceive • Lay persons ill-equipped to challenge and usually deferential before superior, putatively neutral knowledge. • Law profs are an aristocracy with special influence over the theorization and transformation of law sitting atop a stratified profession central to the administration of a rule-of-law republic with free access to media • Law profs enter the battlefield of ideas far better-armed than most but not as neutrals: they carry political, ideological, and psychological dispositions that color their interpretations of what law is and should be; create impression of unassailable wisdom that must be heeded by faithful adherents to the rule-of-law • Law profs seized power to determine what legal conclusions may be expressed w/o transgressing ROL

Law of Armed Conflict Academy as PSYOPs Weapon • two hundred U.S./allied experts in LOAC possess authority to in/validate U.S./Western claims about LOAC and multiply or denature the combat power of Islamist PSYOPs • pronouncements on illegality of Western resort to force and conduct in battle in publications and media loads combat power into Islamist PSYOPs campaign against Western political will • Two aspects of critical LOACA scholars [“CLOACA”] operational employment of PSYOPs: (1) support Islamist military ops and instill doubt, temerity, and cost-consciousness (combat support) (2) attack American legitimacy as a rule-of-law nation and collapse American willingness to continue to support what they are led to believe is an unlawful, unwinnable war (combat operations)

CLOACA PSYOPs: Combat Support (CS) and Combat Arms (CA) (1) LOAC restrictions on Islamists waived to unilateral advantage (CS) (2) Western states face more rigorous compliance standards (CS) (3) captured Islamist militants restored to the battlefield (CS) (4) Islamist jihad is a reaction to valid grievances against U.S. foreign policy (CA) (5) civilian casualties/Abu Ghraib prove injustice of the Western cause (CA) (6) LE suffices and military action is a gross over-reaction (CA) (7) U.S.-led interventions are illegal aggression per se (CA) (8) U.S. engaged in pattern of war crimes a la Nazi Germany (CA) (9) U.S. criminality breeds more terrorists and threatens ROL (CA) (10) U.S. leaders should be prosecuted for crimes that make us less safe (CA) (11) dissenters merit professional condemnation/prosecution to shame or compel them into silence (CA) • CLOACA tilts battlefield against U.S. forces, paralyzes U.S. military commanders, constrains U.S. military power, enhances danger to U.S. troops, and potentiates cognitive effects of Islamist military operations • rather than serving as neutral seeker of truth, CLOACA mustered into Islamist order of battle as a Fifth Column to direct its combat power against U.S. political will: most important weapon in Islamist arsenal and celebrated by Islamists as a portent of U.S. weakness and coming triumph of Islamism.

CLOACA PSYOPS: Combat Support • jus in bello scholarship supports military/cognitive effects of Islamist military ops by attenuating utility of counterforce • 7 tactics ordered in increasing departure from traditional conceptions of scholarly enterprise: (1) promotion of more rigorous rules and compliance standards for Western militaries (2) distortion of LOAC principles to immunize Islamist combatants and render counterforce more complex and legally risky (3) misrepresentation of aspirations for what LOAC should be as statements of fact as to what LOAC already is 4) degradation of U.S. intelligence collection and exploitation (5) restoration of Islamist detainees to the battle (6) prosecution of U.S. troops for alleged LOAC violations: cause hesitancy, indecision, and reduction in military vigor (7) execution of direct action missions: material support of Islamists and treasonous conduct.

CLOACA PSYOPS: Combat Arms • attacks on U.S. legitimacy undermine willingness of Americans to continue to support what they are told is an unlawful and unwinnable war • Rather than make good-faith legal arguments as to what LOAC does, does not, should, and should not require, CLOACA offers up politicized arguments that… (1) Islamist jihad is reaction to legitimate grievances against Judaeophilic foreign policy (2) U.S.-led interventions in Iraq and Afghanistan are aggressive and unnecessary wars (3) “torture” and military commissions prove Western injustice (4) U.S. is engaged in a government-sanctioned pattern of war crimes ala Nazi Germany (5) U.S. civilian leaders must be prosecuted for these crimes (6) U.S. criminality breeds more terrorists while threatening our values (7) intrepid dissidents who dare challenge their enterprise are jurispaths who should be drummed out of LOACA into prison

Summary • CLOACA undermining American political will by commending its knowledge of LOAC into the service of Islamists seeking to destroy Western civilization and re-create the Caliphate • CLOACA potentiates Islamist military operations against U.S. targets—the combat support element of 4GW—by promoting differentially onerous rules for the U.S. military, misapplying and distorting customary principles of LOAC to U.S. disadvantage, propounding claims as to the law governing detention and interrogation that degrade U.S. intelligence collection and return Islamists to the battlefield, threatening U.S. troops with groundless prosecutions, and otherwise abusing their status and knowledge to support materially the Islamist foe • CLOACA is engaged in direct PSYOPs against American political will—the direct application of combat power in 4GW—to convince Americans that the attacks of 9/11 are their just deserts for a foreign policy that privileges Israel and subordinates Muslims, that in the course of an illegal war their country commits torture and war crimes on the order of Nazi Germany, that this illegal war is undermining national security and destroying the rule-of-law, and that the only way to rebuild American virtue is to end the war without victory, cede the field to Islamists, and extradite for prosecution those responsible for war policies—including their own intellectual apostates • Contrary to their claims of fidelity to law and the American people, this Fifth Column rewards Islamists for their unlawful combatancy, immunizes them against interrogation and killing, increases the physical and legal risks faced by U.S. personnel, tilts the balance of military power toward Islamists, deprives the U.S. of information necessary to prevent future attacks, and convinces Americans that their country is intractably an aggressive, immoral, unlawful, even evil force in the world deserving to lose a war that it is, in fact, losing.

Reasons Why • Jurisphilia • Cosmopolitanism • end of history • flawed analogy to civil rights movement • skepticism of executive power • issue-entrepreneurism • professional socialization • subject matter ignorance • law as politics • academic narcissism • appropriation of LOAC ownership • lack of political accountability • human rights absolutism • legal nullification • Antimilitarism • pernicious pacifism • useful idiocy • liberal bias • intellectual dishonesty • moral and physical cowardice • Antiamericanism • islamophilia

Differential Legal Standards • rather than treat Islamists’ failure to reciprocate LOAC compliance as stripping away protections, CLOACA contends the U.S. should be obligated to observe LOAC unilaterally, and even to adhere to more rigorous legal standards • Exemplarism or equitable “correspondence between capacity and obligation” to benefit have-not Islamist fighters require Western forces to assume more rigorous obligations and shift risks onto themselves • grant “material assistance” to Islamists/civilian populations that harbor them including “food, healthcare, or shelter” • require the U.S. to abjure its air power and transfer weapons and intelligence to Islamistswho could eschew insignia, use prohibited weapons, and hide among civilians • oblige wealthy Western militaries to “employ more precise weapons to minimize civilian casualties • require U.S. forces to “assume greater risk [than LOAC requires].”

Distortion of Distinction: Capture and Detention • interrelated arguments: (1) no such status category as unlawful enemy combatants (2) Islamist detainees are entitled to combatant immunity even when they hide weapons and wear civilian clothing before and during attacks (3) U.S. lacks legal authority to detain indefinitely and interrogate Islamists • Implications: (1) Islamists should not observe distinction because, by wearing civilian clothing and hiding weapons until the moment of attack, they avail themselves of defensive advantage of blending in with civilian populations to mask movements and gain protection, as well as offensive advantage of achieving greater surprise against U.S. forces who do not appreciate the threat posed by unmarked Islamist fighters (2) one rule governs conduct of honorable U.S. troops, who must wear uniforms and insignia, carry arms openly, and distinguish between combatants/noncombatants only to be detained, interrogated, and worse by barbaric Islamist captors whose treatment of POWs includes beheading and death, while a second rule governs Islamist detainees, who—no matter how perfidiously they behave in battle—would be assured all the benefits of POW status on capture at the very least, and perhaps even to release from captivity prior to cessation of hostilities, not to mention the prospect of financial compensation for “damages” arising out of their detention. (3) CLOACA arguments create the legal predicate for premature release and return of dangerous Islamists to the fight where they are free once again to target Western troops

Distinction: Target and Kill with UAVs • enemy combatants may be targeted and killed wherever and whenever they can be found so long as attacks against them are otherwise consistent with LOAC • two skeins of scholarship would narrow—or even foreclose—the legal authority to target and kill Islamist fighters while making it much more difficult to distinguish them from civilians, thereby enabling Islamists to enhance their own survivability at the expense of the civilian populations within whom they shelter. • (1) Designation of an individual to be targeted and killed is a command decision predicated upon a factual determination that the target is a member of an enemy armed force or that his killing will reduce a threat. Determination can be made instantaneously through a uniform or insignia worn by the potential target, or by prior identification through intelligence operations or conduct past or present that establishes the potential target as allied or auxiliary to the enemy armed force. Targeting and killing uniformed members of armed forces has been a noncontroversial proposition since the origin of war. Yet Islamist combatants do not wear uniforms and purposefully intermingle within urban civilian populations, frustrating their identification and elimination. In response, the U.S. turned to intelligence and unmanned aerial vehicles [“UAVs”] to find and eliminate Islamist unlawful combatants. UAVs, as with other weapons systems, do not require that targets of TK be afforded a warning or judicial process before use. To require either, or that less harmful means be employed, would create hesitancy and additional risk to U.S. forces. Predictably, CLOACA charges that TK is “no different from ‘extrajudicial killing,’‘assassination,’ and the use of ‘death squads’.” To this cohort TK denies process due even foreigners in wartime; if Islamists are denied the opportunity to surrender their killings compromise the “values, goals, and purposes of the liberal state itself.” Only a criminal justice paradigm requiring warranted arrests and trials of Islamists will satisfy critics whose scholarship and litigation campaigns castigate U.S. personnel who order and use UAVs as suborning “wickedness[,] cowardice and…perfidy[.]”

Target and Kill: DPH • uniformed members of state armed forces are combatants and lawful targets at all times, but in 4GW the prohibited yet routine involvement of ununiformed civilians in combat or combat support on behalf of Islamist VNSAs clouds the task of distinguishing who may and may not be targeted and killed • civilians lose noncombatant immunity when they undertake “direct participation in hostilities” • DPH (traditional view): (1) uniformed military personnel, civilians carrying weapons, chains-of-command and those who offer material or moral support—planners, propagandists, logisticians, and financiers are (2) subject to targeting not merely during attack phase but at all times b/c their unlawful combatancy or support thereof is an (3) ongoing, comprehensive enterprise in which attacks are episodic but recurring, and preceded and followed by cycles of recruitment, planning, preparation, and movement directly connected to and productive of military consequences; (4) those who merely condone or applaud unlawful combatancy might not qualify as lawful targets whereas “bankers, propagandists, even farmers and cooks, c[an] be targeted…regardless of whether they ever held a weapon.”(5) denies civilian immunity to those whose contributions to the generation of unlawful combat power are intermittent and furtive until they permanently cease hostile activities or surrender into captivity • DPH under API: preclude targeting VNSAs’ fighters until “moments immediately prior to an attack” and obligate states to absorb their attacks before responding • DPH under IRCR Guidance: immunizes all but those in combat arms roles while ratifying the revolving door concept that partially immunizes all but the most senior Islamists, whereas members of state armed forces are continuously vulnerable to targeting

Distinction, Target and Kill, Human Shielding • Ununiformed Islamists site command/control infrastructure in civilian areas to frustrate efforts to identify, target, and kill them, then execute military operations from the cover of hospitals, schools, and mosques • Islamists use human shields—forced and voluntary—in and around concentrations of Islamist fighters, rendering it near-certain that state military operations will, even when painstakingly conducted to mitigate casualties and distinguish civilians from combatants, kill and injure the former • convert civilian objects into military targets but publicize deaths at military targets to prove U.S. “iniquity” • CLOACA demands reinterpretation of distinction to impose higher legal obligations on attackers and more relaxed requirements on defenders: (1) when civilians are at military targets, must construe proportionality against states to create presumption that resulting civilian casualties from attacks on such targets are excessive and thus unlawful; (2) intermingled civilians with Islamist fights at an intended military target renders any use of force against it per se excessive in relation to anticipated military advantage and thus disproportionate and prohibited • states facing Islamists using human shields either (1) violate distinction (and perhaps proportionality), or (2) refrain from attacking • Most states and orgs choose (2): in 2007 NATO announced it “would not fire on positions if it knew there were civilians nearby[,]” and “[i]f there is the likelihood of even one civilian casualty, we will not strike[.]” • CLOACA’s proposed unilateral constraints encourage four related consequences: (1) Islamists use human shields as a defensive tactic, (2) fewer opportunities to target and kill Islamists present, (3) fewer still are seized, and (4) lawful attacks against Islamists kill civilians.

Proportionality • does not establish zero-tolerance or strict liability standard for civilian casualties, but requires that parties attacking military targets take “all reasonable precautions to avoid losses of civilian lives” and ensure that unintended civilian casualties are “not excessive in relation to the concrete and direct military advantage anticipated.” • The greater the concrete and direct military advantage anticipated, the more civilian casualties proportionality tolerates: API art. 57(4), art. 51(5). • Rests on value judgments, intelligence, guesswork, assumptions, costs-benefits analysis • utilitarian interpretation of states: (1) military attack consistent with proportionality even if it causes foreseen but unintended noncombatant deaths so long as the military benefit of that attack exceeds the quantum of unintended harm it visits upon noncombatants; (2) the idea that some “collateral damage” is acceptable is a fixture in Western law and morality and rests upon the belief in a profound moral difference between intended and unintended but foreseeable consequences, (3) wilful, wanton, gross negligence required to prove disproportionality, (4) defender also has duties not to colocate military objectives within concentrations of civilians and civilian casualties do not prove disproportionality • CLOACA arguments: 1) states must provide extensive warnings to civilians near intended targets even at the cost of mission accomplishment (no international standard for warning), (2) some mathematical formula relating military and civilian casualties is dispositive of whether an attacker has violated proportionality (what about HVTs?), (3) absolute liability rather than specific intent or culpable negligence is the standard for determining criminal breaches, and (4) disproportionate attacks are evidence of the illegality of the resort to force in the first instance • CLOACA confers unilateral advantage upon Islamists, induces the West to make prophylactic decisions to adhere to more onerous standards than LOAC requires and to refrain from striking certain targets to guard against spurious allegations of disproportionality lodged against attacks that, had they transpired, would have been lawful notwithstanding that some civilians would have died.

Misrepresentation of Law as “Is” for Law as “Ought” • Misrepresentation of LOAC as CLOACA would like it to be for LOAC as it currently disconnects LOAC from state practice • CLOACA, bent on withdrawing LOAC from the reach of states, (1) insists that an ever-expanding body of principles they “restate” constitutes binding CIL directly applicable to the battlefield, (2) reinterprets existing CIL rules to create more restrictive definitions rather than cut new ones from whole cloth • states have elected to incorporate, in military manuals and other sources of domestic law, only those CIL rules for which there is evidence of widespread practice and are chary of interpretations that might constrain their behavior in war • whether and to what extent CLOACA should be able to create and interpret LOAC without state consent and without representing their work as aspiration rather than description remains open.

Degradation of Intelligence Collection/Exploitation • universe of interrogation techniques spans a coerciveness continuum from flattery and other rapport-building measures to torture • Whether or not more coercive techniques—sleep deprivation, stress positions, temperature regulation, and waterboarding—yield more or better information from detainees, “the optimal level of coercion…is [not] zero.” • Coercive interrogation can protect states by developing information to interdict future VNSA attacks and conspiracies and should arguably be available to interrogators in situations where failure to secure information might enable an attack with weapons of mass destruction • Islamist detainees are entitled to fewer protections under LOAC than POWs • U.S. government instructed interrogators to employ coercive techniques (physical coercion, drugs), which yielded timely information not otherwise likely to have been divulged • Coercive techniques did not approach “torture”: U.S. statute incorporating Torture Convention prohibits only “intentional infliction…of severe physical [or mental] pain or suffering[,] administration…of mind-altering substances…calculated to disrupt profoundly the senses or the personality[,] [or] the threat of imminent death[.]” • To CLOACA, bad-faith definitional narrowing, ipso facto torture, failure to consider cruelty/degradation short of torture • U.S. response: (1) halted techniques construable as prohibited under CA3, (2) transferred detainees to civilian prisons away from interrogators entirely, (3) terminated CIA interrogation authority, (4) gave away all capacity to conduct coercive interrogation, (5) switch to rendition to states that torture, (6) UAV TKs

Return Islamist Combatants to Battlefield • Supreme Court during WWII held permitting enemy detainees (outside U.S. polityand territorial jurisdiction) access to civilian courts to bring habeas petitions would “bring aid and comfort to the enemy.” • Relying upon Supreme Court and battlefield capture data, the U.S. transferred captured Islamists to GTMO • As it detained Islamists as unlawful combatants, the U.S. maintained they could be held for duration of the war, tried for precapture crimes, and coercively interrogated to develop intel to prevent future attacks • CLOACA: (1) rejected U.S. authority to detain Islamists fighters save for pre-deportation/pretrial in civil courts, (2) demanded ISDs on pretense many were “laborers, students, relief workers, goatherds” captured far from battlefields, (3) even if some were Islamist fighters GCIII guaranteed ISDs, (4) determining status was impossible but most were in the wrong place at the wrong time and subjected to preventive detention and victims of Islamophobia • US response: (1) no legitimate doubt as to detainees’ status (40% admitted Islamists, 75% “demonstrated threat and vowed to return to jihad if released), (2) no ISD necessary beyond finding a detainee was Islamist VNSA affiliate, (3) preventive detention authorized by LOAC for enemy combatants on basis of affiliation without regard to locus or conduct at capture, (4) providing ISDs in civilian forums would harm natsec by obligating US to reveal intelligence sources/methods in open court and remove combat troops from battlefield to testify as to facts supporting detention or choose protection of classified info and preservation of combat power over restraint of dangerous people • Rasul: entitled to file habeas petitions challenging detention; Boumedienne: CSRT system unconstitutional because detainees lacked lawyers and power to confront witnesses, so federal judicial determination of status, lawyers in habeas proceedings, and review of classified info containing sources, methods, identities of U.S. personnel • U.S response: charge or release protocol: periodic detention reviews and release on determination a detainee will not be prosecuted and no longer poses a threat: dozens of liberated detainees have killed and been killed in battle, scores have been recaptured, two are regional Taliban commanders, one plans “to fight America and its allies until the very end: By 2013, 39% of Islamists imprudently released due to “domestic political pressures” were back at war • Results: (1) no moral opprobrium attaches to unlawful combatancy, (2) unlawful combatants in a position superior to soldiers who obey LOAC and earn combatant immunity, (3) U.S. commanders stripped of the full utility of the tools of detention and interrogation vital to force protection and mission achievement, (4) diminished liberty risks to potential Islamist recruits, incentive for detainees to cooperate in preventing future attacks as a condition of release, (5) worsened correlation of forces against the U.S. by returning jihadis to the battlefield. • .

Evacuation of Military Personnel from Battlefield • 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.

Direct Action Missions • 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.

Attribution of Islamist Casus Belli to American 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

Armed Conflict Response is an Overreaction to a Law Enforcement Problem • 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 • CLOACA: (1) decriminalizes VNSAs and equalizes their status to lawful combatants while “superimpos[ing] the rhetoric of war” on a threat soluble with police and courts, (2) (9/11 provided an insufficient predicate to trigger LOAC as the unfolding battle was not defined with the geographic and temporal precision of previous wars, (3) peacetime civilian law remains applicable regime, (4) U.S. declaration that the entire world is a potential battlefield proves that selection of the war paradigm is a rhetorical ploy to “displace law and rights” globally with TK, rendition, torture • implication: U.S. is prosecuting an illegal war and only if it discovers “alternatives to self-defense”—in particular the LE model that proved ineffective in preventing serial attacks between 1993 and 2001 will it cease the systematic violation of LOAC and human rights

U.S. Military Action against Islamists is Aggressive War • U.S./allied view: (1) Article 2(4) proscribes only the threat or use of force (a) prejudicial to the territorial integrity of states, (b) contrary to the political independence of states, and (c) “in any other manner inconsistent with the Purposes of the United Nations.”; (2) Article 51 codifies the inherent right of individual and collective self-defense in the event of an armed attack; (3) UNSCR 1368 recognized the inherent right of the U.S. to self-defend against those responsible for 9/11[;]”Resolution 1373 reaffirmed the right of self-defense and called on member-states to “take action against the perpetrators[.]”; (4) legality of allied armed force in self-defense against Islamists in Afghanistan, Iraq, Yemen, Somalia, Syria, Libya a settled question • CLOACA view: (1) U.S.-led war against Islamists was illegal on four grounds: (a) one or more fronts constituted a “war of choice” and even an act of “aggression” inasmuch as there was no linkage to 9/11, (b) 9/11 was not an armed attack and the U.S. was therefore not legally justified in using force in response, (c) 9/11 was an armed attack but LOAC does not permit armed force in self-defense against a VNSA, and (d) 9/11 was an armed attack, entitling the U.S. to use force in self-defense, but because U.S. conduct in the resulting war was unlawful the resort to force in self-defense became unlawful as well

Torture” and the Use of Military Commissions Prove the Injustice of the American Cause • U.S. view: (1) no interrogation technique employed pursuant to U.S. policy constituted torture, and conditions at GTMO, where the average detainee gains eighteen pounds, recreates on a $750,000 soccer field, and receives his Qur’an from gloved guards “as if it were a fragile piece of delicate art[,]” are better than most federal prisons; (2) Obama Admin deems GTMO a “first-rate, Geneva-compliant facility” and, contrary to a 2009 executive order, kept it open, (3) military commissions comply with GC and U.S. law and isomorphic to military procedure/substance • CLOACA claim: (1) U.S. interpretations of LOAC informing detention policies were legal ‘travesties” that turned GTMO into a “gulag,” a “horror,” and an “alien planet” rife with poor medical care, “sensory deprivation,”“beat[ings],”“rape,” and mock executions, (2) only shuttering GTMO and freeing detainees can “cleanse the nation of [GTMO]’s moral stain” and any resulting harm to national security is the moral price tag for having used torture, (3) military commissions unlawful

Accusation of Serial War Crimes • U.S. view: U.S. counterattack in Afghanistan, Iraq, and elsewhere was and is lawful under good-faith interpretations of LOAC • CLOACA view: (1) U.S. must investigate and punish senior civilian leaders, (2) only hearings, truth commissions, and civil and criminal prosecutions can atone for a conspiracy to commit serial war crimes so egregious that the only historical precedent is the Nazi regime, (3) senuor Bush Administration officials, including Vice President Dick Cheney, National Security Adviser Condoleeza Rice, Attorney General John Ashcroft, Secretary of State Colin Powell, Secretary of Defense Donald Rumsfeld, White House Counsel Albert Gonzales, and CIA Director George Tenet had a “common, unifying plan” to authorize, order, and abet the commission of war crimes, including allegedly torturous interrogations, disappearances, and forcible rendition; (4) administration lawyers “purported to immunize government officials from war crimes liability” and, like Nazi lawyers before them, are “criminally liable for participating in a common plan to violate [LOAC]”; (5) merely acknowledging that 4GW is distinct from “the traditional clash between nations adhering to [LOAC]” and suggesting that LOAC drafters may not have anticipated 4GW challenges earns allegations of war crimes • An accusation of war crimes, like accusations of rape, sexual harassment, and racism, imposes tremendous social stigma, and without regard to its veracity taints the reputation of the accused. • Should Americans come to harbor serious doubts about whether their country engages in war crimes as an official policy, their belief in the justice of their cause will wither, along with their willingness to fight for it.

U.S. Military Policy Erodes Security • U.S. view: (1) long pre-9/11 history of Islamist mistreatment of detainees and other LOAC violations goes unmentioned; (2) Islamist violation of detainee rights is independent of U.S. detention policy, (3) even the most exaggerated Islamist claims of torture at the hands of U.S. interrogators pale beside the ritual butchering of Western hostages by Islamist captors • CLOACA view: (1) U.S. policies for “shattered” alliances, diminished influence, and eroded national security; (2) coercive interrogation had “detrimental impacts upon military professionalism, honor and integrity, morale, retention, and recruitment,” as well as the increased probability U.S. troops will lose respect for LOAC and commit other war crimes sua sponte; (3) U.S. violations of LOAC “increased violence in Afghanistan and Iraq…and created a generation of violence in alleged revenge.”; (4) U.S. war crimes justify reciprocal abuse of U.S. POWs by Islamists; (5) U.S. “war crimes” recruit more Islamists than U.S. military action has killed and captured, (6) detainee recidivism results from “torture” in U.S. detention; (7) “even if [U.S. detention policy] has made us safer, it is an abandonment of core principles…and…we should reject it categorically.” • Implication: far better that Americans should die than Islamists suffer discomforting interrogations that disrupt plans to kill Americans

American Military Policy Threatens Core Values • CLOACA: (1) U.S. is “attacking our most cherished values” and policies are a ‘but-for’ cause of the terrorism [it] experiences[.]”; (2) U.S. policies responsible for “death and torture of innocent people.”; (3) U.S. conduct post-9/11 is an episode of jurispathic auto-degradation; (4) U.S. “war crimes” produce “effects more damaging than any imposed by our enemies[,]” but “[s]ome damage…is irreparable[.]” • Implication: American veneration of the rule-of-law in the abstract is vastly more precious than real-world survival, and, because the U.S. cannot engage Islamists without further betraying LOAC, it should break off the battle whatever the consequence

Prosecution of Civilian Leaders • CLOACA would refer alleged war crimes by civilian leaders—whom they identify as the ultimate architects of LOAC violations—to international courts for prosecution • threatens not only their personal liberty but their proclivity to act with vigor and dispatch in defending national interests, even if potential charges are groundless • German indictment of Defense Secretary Rumsfeld and Italian investigations of President Bush and Prime Minister Blair for the intervention in Iraq, Spanish investigations of an Israeli defense minister and of U.S. lawyers for coercive interrogations, Italian investigation of CIA officers for renditions, and attempted Pakistani extradition of a CIA general counsel for TK by way of UAV strikes are but some of the campaigns waged against Western leaders. • “Counter-counter-terrorism via lawsuit • CLOACA (1) substitutes its judgments for those of Congress and the executive while turning to foreign governments and unelected judges to threaten prison and fines should U.S. officials remain stalwart and steadfast in executing these policies, (2) subordinates the methods and means chosen to serve the survival imperatives apprehended by a democratic political community to its own vision of law and morality, (3) advances a narrative that relies for its rhetorical force upon an overt imputation of lawlessness and immorality to the U.S. and the risible arguments that Islamists pose little threat and are in fact the real victims of the war • PSYOPs effects: (1) if U.S. misconduct in waging war is so severe that government officials should be hauled before foreign criminal courts, then not only must the policies and practices that constitute this misconduct be discontinued but the assumption upon which these policies rest—that they are lawful and necessary—is false, (2) undermines American political will by lending the imprimatur of expertise to the propositions that the U.S. is an immoral nation fighting an illegal war by unlawful means at the behest of a criminal leadership, and that it must abandon its policies, and quit the war, to regain its legitimacy

Explanations • Explanations range across cultural, professional, ideological, psychological, political, philosophical, functional, and theological domains • Along continuum of decreasing tenability in terms of what the scholarly enterprise has traditionally been understood to embrace and increasing venality in regard to what might be expected as part of the incidents and burdens of citizenship • jurisphilia: (1) spies the sin of de-legalization in every method or means implicating LOAC (detention, interrogation, targeting, and prosecution policies), (2) battling apostates for restoration of LOAC, (3) most powerful weapon against terrorists is our commitment to the rule of law,” and if the policies and personnel who design and implement them are antithetical to this commitment, these policies and personnel as the primary threats to the nation • Cosmopolitanism: (1) war is an unmitigated evil threatening pacifism, multilateralism, and legal institutionalism, (2) international community has a…pressing obligation to subject the [US] to far more…rigorous forms of accountability” and U.S. unilateralism threatens peace • end of history: (1) all ideological contestation over the foundations for organizing human political communities is over, (2) peoples everywhere agree on democracy, rule-of-law, free markets, and human rights, (3) nationalism, religion, and ethnicity withered away to be replaced by reason, economic integration, and modernity (4) end of politics and the end of politics by other means—war—thereby ushering in perpetual peace so LOAC can be interpreted to constrain states • flawed analogy to civil rights movement: analogizes the war with Islamism, and the policies crafted to win it, as a revivification of the discrimination that spawned the CRM, with Muslims standing in for African-Americans, reviled not for race but for their faith; (2) ordinary Muslims” are punished for the crimes of “Muslim barbarian[s]” for whom they are not responsible;fear and prejudice and not danger motivate detention, interrogation, and prosecution

Explanations cont. • skepticism of executive power: (1) U.S. policies violations of moral absolutes that fuel “[a] threat of tyrannical government…greater than whatever threat…the worst terrorists may pose[.]”; (2) even if an argument from necessity supports U.S. war policies the Con is more improtant than survival; (3) U.S. policies are an “effort to [expand executive] power…by invoking the metaphor of war” or (4) erect a police state; (5) goal is to outlaw, or render too politically costly, indefinite detention, coercive interrogation, and TK, (6) privilege what they deem “healthy democratic…accountability” over national security • issue-entreprenuerism: (1) stake out revisionist claims at odds with the sedimented views of states and orthodox scholars and equating self-defense with aggression, interrogation with torture, TK with murder, and patriots with war criminals, (2) earn tenure and named chairs • professional socialization: (1) learn the right answers in law school as part of legal culture, (2) legal academy an “echo-chamber of approbation” where a tribe of like-minded scholars mutually reinforces received wisdom and recycles fashionable opinions, (3) contrarians face scorn, stigmatization, and even ouster, (4) incentives exist for legal faculty, even if privately conflicted, to embrace the prevailing ideological hegemony and ape the arguments of leading scholars without regard to logic or consequence, (5) ideological fence around a zone of “decent opinion” create a hostile environment for opposed scholars: if CLOACA consensus deems coercive interrogation torture, TK murder, and U.S. leaders war criminals, how can less-senior scholars, let alone the untenured, resist these diktats? • subject matter ignorance: (1) law degree + intellect does not make expertise in any subfield, (2) expertise earned only through research and time-intensive theory development and testing, (3) duty of candor to disavow expertise; those who arrogate foundationless expertise to themselves engage in fraud; (4) LOAC scholarship is augmented by knowledge of military history and by experience; (5) CLOACA counts almost no one in its ranks who ever joined the brotherhood of arms so it lacks the “thorough understanding of the…very special ‘business’ of war” without which its “legal erudition goes for naught.”; (6) CLOACA disregards the salience and difficulty of developing expertise in LOAC; (7) inverse correlation between martial expertise and LOAC radicalism

Explanations cont. • law as politics: (1) CLOACA exploits the open texture of LOAC treaties and domestic statutes, (2) makes dubious claims regarding the applicability of controversial soft-law sources, (3) misapprehends the import of provisions and language divorced from historical context or read in isolation, (4) subjugates military necessity—while denying engagement in a political project; (5) asserts as “truths” its politically-motivated judgments regarding U.S. policies that would prejudice American self-defense if implemented, (6) scholarship and partisanship, if not identical, inform each other, non-motivated knowledge does not exist • academic narcissism: Whether CLOACA members suffer from narcissism is impossible to ascertain indirectly. Yet CLOACA scholarship and advocacy grants its members entrance into and status within the prestigious legal academy, public forums within which to contravene and condemn orthodox LOAC and U.S. policies as part of a transformative project, and peer and public attention and admiration. • appropriation of LOAC ownership: (1) “Ownership” connotes “authority to declare, interpret, and enforce [LOAC], as well as [to] shape [LOAC] now and in the future.”; (2) legal absolutists in CLOACA have fed skepticism about whether professional self-regulation can secure compliance by those whose mission is to win wars rather than observe law, arguing for a paradigm in which activists and international courts exogenously determine and enforce LOAC, (3) CLOACA claim primacy over LOAC, relegating military establishments to a consultancy role and discounting their time-tested interpretations and practices • lack of political accountability: (1) U.S. leaders waging war are politically accountable to a people for their safety, unelected Islamists and CLOACA are not; (2) CLOACA has the luxury to render motivated judgments regarding the form and function of LOAC, lodge intemperate criticisms of U.S. policies and personnel, and “inflate [their] sense of self-importance [as to] that upon which they should…be heard.; (3) CLOACA can offer its condemnations with absolute immunity—legal, political, and reputational

Explanations cont. • human rights absolutism: (1) LOAC accepts that military necessity requires use of force to kill people so long as those targeted are combatants and the methods and means are consistent with proportionality, distinction, and humanity; (2) human rights law purports to prohibit all casualties not strictly required to safeguard human life, saddles the state with the burden of showing that lethal force was “absolutely necessary” to protect life or public order and requires states to minimize not only civilian but military casualties—including both lawful and unlawful combatants—and may resort to force only if non-lethal measures such as arrest or incapacitation would subject military to overwhelming risks and/or costs • legal nullification: (1) reflexively resolves differences of opinion on LOAC against the U.S. and its policies, and uniformly claims, contrary to facts, the plain language of legal sources, the well-settled interpretations of civil and military courts, and the practice of national militaries that the U.S. was not attacked on 9/11 and cannot engage in self-defense, that there is no such thing as unlawful combatants, that stress without injury constitutes torture, and that use of a UAV in Pakistan to kill an Islamist is murder whereas the same act with a sniper rifle across the border in Afghanistan is lawful. By mulishly denying that their legal aspirations are faithful only to their political program, CLOACA commits acts of nullification • Antimilitarism: (1) ignorance of/revulsion for military rampant in CLOACA scholarship, subordinate military necessity to the lives of unlawful Islamist combatants, nullify and disobey LOAC to advance political preferences, dismiss military wisdom, and criminalize troops who carry into effect policies firmly grounded in existing LOAC dispenses with any pretense that its authors regard the military as national guardians. Sub silentio substitution of uninformed value judgments regarding what should be lawful in war imposes dangerous constraints upon the military, creating the strong inference that hatred of the military and its values drives CLOACA.

Explanations cont. • pernicious pacifism: (1) regard war as a malignancy spawned by nationalism and a dearth of international dispute settlement institutions, (2) believes Islamists pose no threat, that senior U.S. leaders are warmongers who catalyze the conflict, and that but for U.S. policies peace with Islamists could be negotiated, (3) on every issue ranging from the lawfulness of the U.S. response to 9/11 to whether a warfighting or law enforcement paradigm is appropriate, whether U.S. interpretations of LOAC sufficiently protect various status categories, whether U.S. methods of detention and interrogation comply with LOAC, and whether, where, how, when, and with what the U.S. and its allies may attack enemies, CLOACA takes the position that would frustrate and criminalize U.S. conduct. • useful idiocy: (1) describe the war with Islamists as a fleeting anomaly attributable to a trifling group of troublemakers breaching the tenets of their own religion rather than a divinely mandated conflict, (2) separate Islam from Islamists by attributing to the former principles in common with the West, including “justice and progress” and “the dignity of all human beings,” that will facilitate return to an allegedly long relationship of “co-existence and cooperation[.]; (3) dismiss the “Green Peril” as a wildly exaggerated “trope du jour” because Islamic VNSAs are mere spiritual bands led by benign philosophers whose disunity precludes any threat to the West. This view converts wariness of Islamism into “Islamophobia • liberal bias: (1) made no effort to disguise its virulent hostility to Bush or its desire that his policies of coercive interrogation, military commissions, and TK fail in Iraq and other battlefields, (2) criticism of these policies—most of which were expanded by the Obama Administration—became nuanced, sparse, and muted after January 2009 (3) suggestion that Islamists whom U.S. troops meet on foreign battlefields are not unlawful combatants bent on killing Americans but merely, along with millions of poor, black, and gay U.S. citizens, “marginalized people” who deserve that CLOACA spend “the next decade [in] reflections on the policies undertaken in the name of national security [to] prob[e]…not just what [LOAC] should be, but how it functions and whom it serves.”; (4) after 9/11 the U.S., facing no threat, chose to perpetuate an evil national history stained by the original sins of slavery and Indian genocide and other acts of discrimination against minorities and women by waging a racist, imperialist war against Islam.

Explanations cont. • intellectual dishonesty: (1) contrary to history Qur’an, CLOACA asserts that the Islamist Way of War is compatible with LOAC and the Quran, (2) contend that policies of the U.S.—a nation born in 1776—caused an ancient Occidental-Islamic conflict, and only U.S. disengagement will bring peace, (3) intellectual distortions” are legion and are the work of “militant[s] disguised as [scholars] no different than [Islamists] in Afghanistan” insofar as both shred their vocational rules • moral and physical cowardice: (1) recommend surrender and subordination under Islamic imperium in concession for survival, (2) risk nothing more life-threatening than paper cuts or eye strain, produce scholarship intended to convince that the soldiers risking death and grievous bodily harm on their behalf are not performing valorous and sacrificial acts because Islamists pose no threat, (3) rather than individuals deserving of honors as noble bearers of thumos, U.S. troops are, at best, pitiable dupes, and at worst, moral culprits waging an unnecessary and illegal war • anti-Americanism: (1) U.S. is a “pushy and preachy” nation that must abandon pretensions to hegemony and accept graceful decline, (2) U.S is basically bad, must be destroyed.; (3) U.S. must be defeated to eradicate racism, colonialism, militarism, Zionism, and capitalism; (4) U.S. deserved 9/11,--“[a]nyone who can blow up the Pentagon gets my vote” and another to encourage a “million Mogadishus,” recalling the 1993 deaths of eighteen U.S. troops hunting al Qaida-allied Somali warlord Muhammad Aidid; (5) [U.S.] is…a greater threat to peace and stability in the [Middle East] than ISIS • Islamophilia: (1) pathological solidarity with Islamism brewed from anti-Semitism, mutual Leftist-Islamist enmity toward U.S. constitutional government, xenophilia, and accord with Islamist goals, (2) absolves Islamists of systematic violations of LOAC by (a) denying violations were committed, (b) declaring, as Muslims adhere to a “religion of peace,” that any violations were committed by non-Muslims, or (c) justifying Islamist methods/means as self-defense against a West that pathologizes Muslims and targets Islam for destruction; (3) denies that Islamists fight outside the strictures of LOAC and that there should be consequences for doing so, (4) questions whether the West is entitled to self-defend, and (5) promotes a legal regime in which methods and means available to the West contract and those available to Islamists expand.

Recommendations: Neutralizing the Fifth Column • Admit that We are at War • wage total war: counterinsurgency using low-intensity military force augmented by nation-building, rule-of-law development, and armed social work projects in the hope of transitioning the Islamic world to governance regimes less likely to spawn future generations of Islamists has failed. Total war requires far more against an enemy hostile to Western constitutional democracy and bent on conquest. All instruments of national power—including conventional and nuclear force and PSYOPs—must be harnessed to win two decisive battles: (1) an offensive to capture the hearts and minds of Islamic peoples, break their will to fight for Islamism, and leave them prepared to coexist with the West or utterly eradicated, and (2) a defensive to prevent Islamists from capturing the hearts and minds of peoples of the West, breaking their will to fight, and submitting the West to Islamism or eradication

Offensive Battle • Islamists should be anathematized as modern-day outlaws shorn of rights and liable to attack by all means and methods at all places and times and to judicial execution post-interrogation. If law is only legitimate if “predicated upon history, values, and survival imperative[s]” and “[n]o society can afford…inflexible rules concerning those steps on which its ultimate fate…depends[,]” then outlawry of Islamists is an efficient means to hasten their demise and the sole reciprocal arrangement possible with a foe that already applies this regime to Western “infidels.” The West must shatter Islamists’ political will and eradicate those who do not renounce Islamism. Commitment to rule-of-law is not only an end but a means. Every rule, doctrine, and policy must endure a rigorous justification process whereby its retention in the LOAC canon is predicated upon its contribution to victory. • restraints can be observed with respect to lawful combatants and truly innocent civilians This approach risks conflating jus ad bellum and jus in bello and inviting other parties to engage in unrestricted warfare simply by asserting the justice of their causes. Yet the exception need not establish the rule: no future cause could ever be more just than defense of Western civilization against conquest by Islamists • demands mental reconfiguration away from wishful thinking, half-measures, and handwringing over the fate of mortal enemies and toward reawakening and acculturating the necessary fighting spirit. Spartanization of the West will require the deepening of the concept of citizenship to include duties as well as rights, and in particular the duty to fight in defense of one’s nation that has been all but extinguished over the past two generations, but also the recovery of thumos without which this collective spirit to fight, to prefer one’s own people and civilization over an enemy’s, and to vanquish that enemy cannot be conjured.

Defensive Battle • defending the political will of Americans to continue the fight against an Islamist foe bent on destroying their belief in the inherent goodness of their civilization and in their duty to defend it • cultural conflicts over guns, gay marriage, abortion, and the welfare state balkanize people into groups battling for the helm of the state • profound transformation of minds necessary to make people appreciate the severity of the threat and to set aside lower-order differences in favor of social cohesion • “exhibitions of indecision, disunity and internal disintegration within th[e] [U.S.] ha[d] an exhilarating effect on the whole Communist movement[,]” • so too do U.S. cultural conflicts, particularly those revolving around interpretation and application of LOAC, encourage Islamist adversaries • George Kennan at the dawn of the Cold War: “It is imperative that the [U.S.] create…the impression of a country which knows what it wants, which is coping successfully with the problem of its internal life and [can] hold[] its own among the major ideological currents of the time”

Declare a Domestic Truce • declare a truce insofar as those issues which destroy unity of purpose and introduce doubts as to their right and duty of self-defense • truce does not imply agreement as to all moral and political disputes, but withdraws issues bearing on national survivability from the political arena • absent American victory, arguments over lesser-order “social” or distributional issues of gay marriage, abortion, and the welfare state are moot • The Greatest Generation knew that a Nazi victory would radically remake post-war America in the image of the enemy, and thus in that total war domestic opposition to war entry, aims, and conduct shrank to the vanishing point. Political leaders rallied the people to fight and win, and the military “ran the war…the way the…people…wanted it run”—with precious few restraints • So too would Islamist victory supplant our way-of-life and impose Shari’a-based prescriptions inimical to the entire Left-Right spectrum, and so too must Americans cohere against this outcome.

Rationalize LOAC • self-interest directs the U.S. to reject most of the “progressive” developments in the field over the last forty years, including rules, institutions, and scholarship that accord Islamists advantage or otherwise shackle U.S. power • Reaffirmation of orthodox interpretations of LOAC as the lawful and ethical basis for defense of Americans against Islamism should assume many forms in many fora—including an aggressive public education campaign, “robust efforts to educate the media as to what [LOAC] does—and does not—require[,]” and strategic communications to counter CLOACA disinformation. • LOAC is instrumental, and to the extent it does not incorporate their values and imperatives Americans must reshape it. Some may question the legitimacy of auto-interpretation of LOAC, yet survival is its own justification. In 1861, “[m]easures, otherwise un[lawful], might become lawful, by becoming indispensable to the preservation of the…Nation.” The existential threat circa 2014 merits as wide a margin of appreciation for U.S. leaders in divining the means and methods necessary to defend Americans and in proclaiming that these, by their indispensability, are lawful. Like Lincoln, Americans must regard law in instrumental terms and answer accordingly: LOAC permits everything and prohibits nothing that secures their survival.

Restore Ownership of LOAC to Military • it is the military upon whom the constitutional duty to defend Americans is incumbent, and in whom Americans repose trust. The responsibility it bears must accrue to it sufficient quanta of power and autonomy to execute its mission. Only the military has the expertise to determine the strategies, operational plans, and tactics necessary to defeat Islamism, and thus it should limn the parameters of compatible legal constraints with LOACA in support.

Eliminate the Fifth Column • Trust that the free marketplace of ideas will vindicate the truth about Islamism and LOAC, and that Americans are informed and discerning enough to withstand CLOACA PSYOPS alleging U.S. illegality, so do nothing • Counter-PSYOPs: conduct a counter-PSYOPs campaign that explains to Americans who their enemy is, why Americans fight, and the legality of methods and means the U.S. employs. This might include films, videos, and cyber content modeled after the 1940s federally-commissioned, Hollywood-produced documentary film series “Why We Fight” that countered enemy propaganda, explained the war aims of Germany and Japan, and reassured Americans of the justice of their cause. Along with a contemporary “Why We Fight” campaign, the U.S. should commission LOACA dissidents to counter the Fifth Column in scholarship and other media • Loyalty oaths: faculty at universities receiving federal funds may be required to pledge support for federal and state constitutions and swear “undivided allegiance to the [U.S.] • Fire disloyal radicals: Islamists are heartened by their scholarly output and regard their presence within the academy as proof of American weakness and of the inevitability of Islamist victory; stripping tenure from LOACA members who express palpable anti-American bias, give aid and comfort to Islamists, or otherwise engage in academic misprision and corruption will deny the CLOACA Fifth Column the most important institutional terrain in the defensive battle. • “Material support” includes “expert advice or assistance” in training Islamist groups to use LOAC in support of advocacy and propaganda campaigns…CLOACA scholarship reflecting aspirations for a reconfigured LOAC regime it knows or should know will redound to Islamists’ benefit, or painting the U.S. as engaged in an illegal war, misrepresents LOAC and makes “false claims” and uses “propaganda” in a manner that constitutes support and training prohibited by the MSS • Charge treason • CLOACA scholarship and advocacy that attenuates U.S. arms and undermine American will are PSYOPs, which are combatant acts and, if colorable as propaganda that incites others to war crimes, are prosecutable. CLOACA members are thus combatants who can be targeted and killed at any time and place and captured and detained until termination of hostilities. As unlawful combatants for failure to wear the distinctive insignia of a party, CLOACA propagandists are subject to coercive interrogation, trial, and imprisonment Further, the infrastructure used to create and disseminate CLOACA propaganda—law school facilities, scholars’ home offices, and media outlets where they give interviews—are also lawful targets given the causal connection between the content disseminated and Islamist crimes incited. Shocking as it might seem, CLOACA scholars, and the law schools that employ them, are targetable so long as attacks are proportional, distinguish noncombatants from combatants, employ nonprohibited weapons, and contribute to the defeat of Islamism

Criticisms • Islamophobia: no, it’s Islamism, not Islam • Objective criticism is not disloyalty: it is undeniable that an ideological orthodoxy profoundly out-of-step with the American people and their military drives CLOACA to discover, interpret, and apply LOAC in ways that counter traditional conceptions of the law that governed war between World War II and 9/11. Whether departing so sharply from the commands of tradition, necessity, and democratic legitimacy should be regarded as a badge of humanitarianism may be, for some, open to argument. That their scholarship and advocacy, by design or effect, invariably affords Islamists material and moral advantage in their operations against U.S. forces while beguiling Americans away from unity and moral certitude is an empirical fact. Moreover, that CLOACA never proclaims modifications or interpretations of LOAC that would benefit U.S arms or reinforce American morale, and (almost) never decries Islamist violations of LOAC so frequent, systematic, and barbarous as to only be explicable as a deliberate battle strategy, reveals a professional cohort committed to the law in war but not as objective and apolitical scholars and not to a universal regime. Rather, the ineluctable conclusion is that CLOACA has entered the arena, chosen sides, and weaponized LOAC for use against its own people • McCarthyist attack: academic freedom is social contract, carries with it a “moral obligation to seek…facts without prejudice and to spread knowledge without malicious intent[;]” it is not a blanket grant of immunity from the consequences of politicized “scholarship” but a contractual license conferring the “freedom to say that two plus two make four.” Scholars who insist, in thrall to a hostile ideology, that two plus two make five are precluded from searching for truth; scholarship in which two plus two make five and five benefits Islamists suggests CLOACA should be evicted from the bunker of academic freedom • Anti-intellectualism: perversity inherent in countenancing intellectual elitism as a basis for a defense against criminal prosecution and a grant of immunity from targeting in war is astonishing. This critique suggests that those with a more enriched capacity for understanding the nature of the threat, the linkage between legal regimes and victory, and of the criticality that the nation cohere in its moral resolve be held not to a higher standard by virtue of this knowledge but to a lower one, ostensibly b/c the more one learns about the nation the more one comes to realize it is not worth defending. • Jurispathic: only if LOAC facilitates self-preservation can the military be expected to observe its constraints, and thus each and every pronouncement of CLOACA must be assessed for its effects on survival. When the West faces an existential threat from an enemy that abjures responsibility for observing LOAC and expressly aims to overthrow all regimes other than Shari’a, and where academic spin on the rules would render survival less likely, the insubordination of humanitarianism to efficiency and the academy to the military in determining and applying LOAC poses a much greater threat to law and the civilization it mutually reinforces than entrusting LOAC to the only institution with the capacity for and duty to defend both. CLOACA, and not the U.S., has embarked on a jurispathic enterprise in articulating, interpreting, and applying LOAC. • Proto-fascist: merely implores CLOACA to concede that mobilization on all fronts is as necessary a response to the current threat condition as it was during World War II. Loyalty is part of the burden of citizenship, even for dissenters as to the morality or rectitude of a given war. Rights are attended by corresponding duties, and the state may obligate citizens—even academics—to contribute to the struggle in those ways they are able.

All War is INFOWAR • Streicher: early Nazi, honorary general in SA, published anti-Jewish weekly Der Sturmer for 22 years, championed Hitler’s policies but did not make them and no evidence he knew of any crimes against humanity until 1941 in Russia; “infected the German mind with the virus of anti-Semitism and incited the German people to active persecution” of Jews; called for “annihilation” of Jews” and extermination of the people whose father is the devil”; convicted of incitement to mass murder on political and racial grounds in connection with war crimes and crimes against humanity • Radio Television Libre Mille-Collines: radio the primary medium due to illiteracy; RTLMC officially an independent station but in reality a government media organ; accused Tutsis of being plotters and parasites, mobilized Hutus to take action against “cockroaches” and take up arms against all Tutsis; triggered killing of hundreds of thousands of Tutsi civilians; ICTR found that media organs made the same propaganda endeavor and promoted each other and generated an atmosphere of hostility; government had power to stop transmissions and change the content but did not and therefore incited to violence; all station managers, owners, directors found guilty of genocide and public incitement to genocide; the mere potential of the communications media to cause genocide is enough to turn it into incitement—the media coverage is the bullets in the gun, and the people that produce and use it are the gun; have to take necessary measures to prevent killings by changing content

INFOWAR: Lawfare + Media Operations as a Way of War • (1) in contemporary Fifth Generation War, non-state actors cannot defeat states militarily and thus redirect fields of fire toward “softer” targets that affect “political will”; • (2) political will--the belief of a population in the legitimacy of its cause and its willingness to fight and persevere in defense of that cause—is the ultimate “center of gravity” that must be overcome to defeat an enemy; • (3) overcoming political will requires targeting the enemy society; • (4) in targeting the enemy society, military operations are subordinated to political, economic, and particularly information operations; • (5) information warfare consists of operations that employ information to generate cognitive effects that erode and fracture political will;

The Role of International Humanitarian Legal Academy in Contemporary Warfare