3. 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
5. 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
10. 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.
13. 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
16. 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[.]”
17. 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
18. 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.
19. 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.
20. 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.
21. 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
22. 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,
23. 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.
24. 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.
25. 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
26. 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
27. 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
28. 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
29. 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.
30. 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
31. 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
32. 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
33. 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
34. 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
35. 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
36. 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
37. 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.
38. 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.
39. 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.
40. 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
41. 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.
42. 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.
43. 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”
44. 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.
45. 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.
46. 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.
47. 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
48. 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
49. 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
50. 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;
51. INFOWAR: Lawfare + Media Operations as a Way of War cont.
• (6) most direct route to political will are claims about LOAC compliance: “Knowing that our society so
respects the rule of law that it demands compliance with it, our enemies carefully attack our military plans
as illegal and immoral and our execution of those plans as contrary to the law of war.”—Dunlap
• (7) because a democratic republic requires public support to muster, deploy, and sustain military forces,
and because allegations of violations of LOAC strike hard at the legitimacy of a nation constituted in part
by the rule-of-law and unwilling to sustain “illegal” wars, allegations that it is lawless in war erode public
support for military operations and are a direct assault upon its political will—claims about LOAC are now
a weapon of war;
• (8) to destroy the political will of its more powerful adversary, a non-state actor must convince the enemy
population that its government is an evil regime that has elected to fight an illegal war, that it
systematically commits violations of LOAC in prosecuting this war, that its war crimes erode security and
destroy core values, and that the only way it can restore its moral virtue, recommit to the rule-of-law, and
protect itself is to withdraw in defeat;
• (9) media are critical sources of information production and dissemination, a critical tool in reaching and
affecting political will, and a vital weapon in making (spurious) claims about non/compliance with LOAC
within the society of the state party;
• (10) “lawfare” is the intersection of hostile media and spurious claims about LOAC noncompliance which
represents the most effective method and means of attack in contemporary war against the political will
of a stronger party in a conflict
52. Lawfare
Definitions
• (1) “strategy of using—or misusing—law as a substitute for traditional military means to achieve an operational objective.”
• (2) use of law to create the same/similar effects as those ordinarily sought from conventional military ops
• (3) weaponizing law to create effects that contribute directly to desired military and political outcomes
• (4) “principle effects-based air defense methodology employed by US adversaries today”
Operational Actions
• (1) unintended civilian casualties are used by insurgents who make claims to the media that the war is being waged in an
inhuman, illegal, unfair, iniquitous way
• (2) direct application of hostile media coverage used to make claims the stronger party is engaging in serial violations of
LOAC, particularly by harming civilians, as a matter of policy, and that this proves the iniquity of their cause: broadcast
within targeted society and around world
• (3) lawsuits (civil and criminal) filed against civilian/military officials of targeted government alleging violations of LOAC all
over the world under universal jurisdiction
• (4) international bureaucratic supervision created to pronounce methods and means unlawful and level charges of
noncompliance with LOAC generally and against specific individuals
53. Lawfare cont.
Outcomes
• (1) adherence to LOAC by strong state out of fear of triggering false claims of violations when combat power (air, armor,
etc.) is used imposes military disadvantage
• (2) realizing it cannot win w/in constraints imposed by fear of claimed LOAC violations, targeted society loses will,
withdraws
Examples
• worst setback for US since 9/11 was Abu Ghraib, which did not involve force of arms but rather illegality: media coverage
undermined U.S. political will and led to withdrawal from Iraq w/o victory in 2011
• U.S. Marines in Fallujah (2004) beaten not by insurgents but by al-Jazeera because the US was worried about what already
hostile populations would think of the US after AJ reportage on US LOAC violations
• “if there is the likelihood of even one civilian casualty, we will not strike not even if we think Osama bin Laden is down
there.”—Lord Robertson, NATO SG, 2008, Afghanistan—leads insurgents to colocate with civilians, which leads to more
collateral damage, which leads to hostile media coverage, which leads to erosion of political support, which may lead to
military withdrawal in defeat
• UN Special Rapporteur Philip Alston: stated that those who use autonomous weapons must disclose, to international
scrutiny, much specific factual information about the exact identity of targets, the criteria by which they are selected, the
assessment of target’s ability to defend himself and thus evade capture, and specifics about outcomes when attacks take
place: if any nation did this it would destroy the attacker’s ability to successfully attack and reveal sources and methods
• Goldstone Report: Israeli warning measures insufficient despite 165K phone calls, 2.5M leaflets, radio, roofknocking
54. Media Operations: Evaluation of Neutrality
Presumption of Civilian Status
• APs make journos civilians when “engaged in dangerous missions in areas of armed conflict” provided that “they take no
action adversely affecting their status as civilians” and thus journos have an obligation to differentiate themselves from
combatants (by wearing civvies or press symbol)
• journos/media orgs cannot be targeted unless they make an “effective contribution to military action and their destruction
in the specific circumstances offers a “definite military advantage” such as transmitting military orders
• unclear whether broadcasts that solely improve civilian morale or express support for attacks strip away protected status
Evaluation of Neutrality/Intelligence Preparation of Battlefield
• graphic footage of collateral damage caused by your troops, or dejected POWs captured by enemy, will effect the
perceptions of the war of viewers on both sides of the conflict
• if media are present, need to make an accurate judgment about media partiality/bias receptivity and motives behind it:
• this judgment is problematic: what are the boundaries of neutrality?
• four typologies: (1) media themselves strive to be impartial even as the constraints of the battlefield and the deliberate
efforts of the combatants are undermining their efforts—no bias, and neutral; (2) if journo is merely shaping the media
reporting of the conflict through his own information operations, or by bringing his own damaging prejudice to the
battlefield, it may be a case of bias but not of non-neutrality; (3) if the host combatant is engaged in information ops
intended to favorably shape the media message, such that the media’s output serves to further purposes of that
belligerent, then there are legitimate questions about the de facto neutrality of the media even if the media org attempts
to be scrupulously impartial and objective; (4) journo or media org engaged in deception operation or otherwise making a
“direct contribution to the war effort” is non-neutral and may lawfully be targeted
• three categories: (1) if media act impartially, they are entitled to civilian treatment, (2) if media are undermining the pol-
milstrategy, it is legal to control them, (3) if media are behaving in a non-neutral way, it may be lawful to target them
55. Media Operations: Control and Deception
Control/Detention
• controlling flow and dissemination of info emphatically is lawful and purpose of public affairs staff is to control
dissemination of info to maximize military and political advantage: keep media orgs/journos away from areas of battlefield
where their reportage would be damaging
• GCs allow detention of correspondents
• journos are entitled to all protections due combatants; equipment can be confiscated but they are not legally obliged to
respond to interrogation
Military Deception
• media a means of disseminating the military deception story: embedding and strategic media presentations tell only part of
the story the military wants told
• “outright lies do have a place on the battlefield. A media-savvy commander will also seek to use the media to directly
affect the enemy’s plans as part of a military deception operation…deceive adversaries and others about friendly force
dispositions, capabilities, vulnerabilities, and intentions” by creating a “plausible, but false, view of the situation, which will
lead the deception target into acting in a manner that will accomplish the commander’s goal.”
56. Media Operations: Targeting
Indirect Targeting
• ICRC position: journos/media orgs cannot be considered legitimate target even if
being used for propaganda purposes
• jamming transmissions
• discrediting them
• countering their message
Direct Targeting
• journos have become a target because management of the INFOWAR has become high priority
• DOD OGC: civilians that make direct contribution to war effort may be attacked...”Civilian media generally are not
considered to be lawful military targets, but circumstances may make them so. In both Rwanda and Somalia,…civilian radio
broadcasts urged the civilian population to commit acts of violence against members of other tribes…When it is
determined that the civilian media broadcasts are directly interfering with the accomplishment of a military force’s mission,
there is no law of war objection to using the minimum necessary force to shut them down. The extent to which force can
be used for purely psychological operations purposes, such as shutting down a civilian radio station for the sole purpose of
undermining the morale of the civilian population, is an issue that has yet to be [resolved] by the international
community.”
• GEN Wesley Clark: “difficult to get political approval for striking [Serb] TV stations, because strikes…seemed undemocratic
and perhaps illegal…” Approval was eventually forthcoming…and the attack on Radio TV Serbia resulted in temporary
disruption of broadcasting and ten staff fatalities because Serb state-run media were not behaving with impartiality and
were bureaucratically an agent of the government
57. Hamas INFOWAR Strategy
• “They are not fighting a military campaign against Israel because they know they could never
win. They are fighting a propaganda war that Israel can never win without the staunchest
support from her Western allies…Rockets, Hamas fighters and even attack tunnels are merely
devices to provoke Israel’s military response…”
• Hamas doesn’t ignore LOAC, it knows LOAC well and simply exploits its own noncompliance
and Israeli compliance as follows…
• (1) attack Israeli citizens to provoke counter attack,
• (2) human shielding: hide behind Palestinian civilians (schools, hospitals) while
encouraging/forcing them to stay and be killed/injured
• (3) make it impossible for Israel to use its artillery, airpower, and armor effectively because it
is occupied with attempting to minimize Palestinian civilian casualties—force Israel to abort
strikes to avoid civilian casualties, or strikes and give Hamas dead civilians to exploit
• (4) media operations: encourage Western media to portray civilian suffering, minimize
Hamas role in it
• (5) lawfare: accuse Israel of violations of LOAC in media and conjure firestorm of outrage
around world to pressure Israel to stop counteroffensive
• (6) survive to reap propaganda victory and prepare next round of hostilities
• (7) repeat, to destroy Israel’s international reputation, delegitimize/demonize Israel in the
world, peel away Israeli allies, stir aggressive Muslim “street” in the West
• (8) ask for UN/international supervision/condemnation/negotiation/secure desired “peace”
58. Hamas INFOWAR Strategy: Human Shielding
• Robert Gates, former US SecDef: “prokoving or exploiting civilian casualties is a ‘principle strategic tactic’
of the Taliban.’”
• “by creating restrictions beyond what LOAC would require, NATO’s pronouncements encourage the
Taliban to shield themselves from air attack by violating LOAC through embedding themselves among
civilians. This permits a form of lawfare where NATO’s adherence to its own rules, in essence, creates for
its adversary a substitute for conventional military weaponry. By this I mean that for the Taliban to
survive, it is not necessary for them to build traditional air defenses; rather, just be operating amidst
civilians, they enjoy a legal sanctuary created by NATO’s own self-imposed restrictions that is a secure as
any fortress bristling with anti-aircraft guns.”
• urban warfare manual captured by Israel and used by Shujaiya Brigade advocates use of human shields
• Hamas’s real weapons are the men, women, children and babies of the Palestinian population…The term
‘human shields’ is in fact a misnomer. They are not there to shield weapons and fighters from IDF attack.
They are there to be sacrificed: to bleed, to die and to be photographed doing so.”—Richard Kemp
59. Hamas INFOWAR Strategy: Media “Fixing”
From Least to Most Coercive…
• (1) promote and fund media orgs to “manag[e] the media battle against the Israel lies” and provide info on
the ground in Gaza to other Arabic-language media orgs;
• (2) leverage “peace journalism”: solicit journos who rush to judgment against Israel in hope of ending
carnage or are quick to simply say “both sides are to blame” and “let’s end the cycle of violence” and
present news in a manner as to “nail Israel for their disproportionate brutality”
• (3) issue detailed directions to Gazan “social media activists” and to media “fixers” who “encourage” all
foreign journos working in Gaza not to show Hamas fighters firing from protected places, to attribute all
casualties to Israel, to call all dead “civilians,” to maximize Palestinian suffering
• (4) intimidate and threaten journos: one states “If we ever dared point our camera at them, they would
shoot at us and kill us.” Asked to say that on camera, the journo “refused and almost ran away.”; send
SMS threats to journos who tweet about Hamas using human shields, accuse them of being informants or
5th
columnists who are lying for Israel, seize equipment, make claim that noncompliance with Hamas is
treason and punishable, use physical violence
• (5) claim Israeli airstrikes against al-Aqsa TV station are a “crime against journalists and media”
60. Hamas INFOWAR Strategy: Offensive Lawfare
• “for Hamas, the stench of death is the smell of victory…Victory is the unbalanced media outrage. The
appalling images of suffering beamed around the world, inciting large-scale protests, stirring up hatred
against the Jewish state, inspiring violence against the Jewish people, energizing campaigns to boycott,
sanction and divest…Victory is the clamour of the UN and Western politicians to condemn…Israel.”
• “Israeli officials have dangerously and unlawfully blurred the distinction between civilians who call for or
support military attacks and those who directly participate in attacks. This claimed justification for
attacking civilians opens the door to war crimes.”
• file case in ICC, sue in foreign courts under universal jurisdiction
• make Israelis believe the IDF is fighting an illegal war that violates Jewish moral code
61. Israeli INFOWAR Strategy
• media control, deception, distortion, omission, obfuscation
• targeting hostile media
• positive media integrated with diplomatic/economic
campaigns in Western countries
• defensive lawfare
