Lessons Learned in Legitimacy and Contemporary Operations

Articles on Lessons Learned in Legitimacy and Contemporary Operations:

Barnes, Rudolph C., Jr., chapters 6 & 7, Military Legitimacy: Might and Right in the New Millennium.

Govern, Kevin H., AFRICOM as the New “New Thing”: Mixed Metaphor or New Paradigm for the Developing World? see in 2009 Military Legitimacy and Leadership Journal.

Govern, Kevin H., Libya: War on terror expands into territory between war, peace with commentary (see below)

Jebb, Cindy & Lacquement, Richard, NATO Training Mission-Afghanistan/Combined Security Transition Command-Afghanistan (NTM-A/CSTCA), see in 2010 Military Legitimacy and Leadership Journal.  

Love, Janice, Disputes Over Morality in US Foreign Policy, see in 2010 Military Legitimacy and Leadership Journal.

Mays, Terry, The Legitimacy of African Mandated Peacekeeping in Somalia, see in 2010 Military Legitimacy and Leadership Journal.

Porter, Jack, The Two Faces of Military Legitimacy: America’s Illusive Search for “Legitimate” Partners in an Illegitimate World, see in 2009 Military Legitimacy and Leadership Journal.

Zais, Mitchell M., The Future of History: Context for American Foreign Policy, see in 2010 Military Legitimacy and Leadership Journal.

Libya: War on terror expands into territory between war, peace
Guest Commentary by Kevin Govern Assistant professor, Ave Maria Law School
Naples News, March 29, 2011

U.S. warplanes and guided missiles are currently striking various targets across Libya, as part of the so-called Operation Odyssey Dawn, our third military intervention in a Muslim nation since 2001. Our military forces are now being committed to a substantial show of force between war and peace, ostensibly to further yet another revolution against a dictatorial regime. This is in stark contrast to U.S. support of, or intervention into, “Jasmine Revolution”-inspired uprisings in other North African and Middle Eastern nations earlier this year. Those revolts and uprisings had, at most, U.S. economic and political support, and little to no military support.
Frustration in many developing or Third World nations is increasing for economic or political reasons, and insurgency — the use of low-level, protracted violence to overthrow a political system or force fundamental change in the political and economic status quo — looks to be an enduring security problem.
With interstate and intrastate conflicts increasing in scope and magnitude, just what exactly is this legal and operational terrain between war and peace? Elements of what traditionally constitutes a war may include:
1. contention;
2. between at least two nation states;
3. wherein armed force is employed;
4. with an intent to overwhelm.
But this notion of war fails to take into account the reality that many if not most modern armed-conflict situations may involve non-state actors (e.g., al-Qaida).
U.S. political, economic, social welfare, military and cultural institutions must plan for or proscriptively cope with the consequences of such conflicts’ first-, second- and third-order effects. For instance, congressional declarations of war or national emergency, and similar resolutions, may result in subsequent legislation authorizing the president and heads of military departments to expend appropriated funds to prosecute the war or other operation. Some of these authorities have become quite broad. American citizens, exercising their right to participate in their government, must either let their will be known to their elected legislators or become spectators, billpayers and consequence managers.
While our current operations in Libya may be implied under Article II constitutional authority of the president, there are also a variety of internationally recognized legal bases for use of force in relations between and against states found in both customary and treaty law. Under the auspices of U.N. Resolution 1973, forces are authorized to establish a no-fly zone to protect Libyan citizens as the U.N. demands Moammar Gadhafi’s forces withdraw from rebel-held territories and demands more access by civilians to humanitarian aid.
This is a real-world application of the ancient notion of jus ad bellum (the law of resort to war) as is reflected in the U.N. Charter. The charter provides two bases for the resort to force in international relations: Chapter VII enforcement actions under the auspices of the Security Council, and self-defense pursuant to Article 51. Insurgencies or similar intrastate armed conflicts typically involve non-state actors, but may involve foreign military contingents deployed in support of a local government, as in Iraq and Afghanistan currently.
U.S. domestic and international law concepts like intervention may lurk in the background, but technically foreign armed forces are typically present with the consent of the local government, or with the direction of their own national government. Under those circumstances, jus ad bellum principles limiting the use of armed force between states are hardly applicable as a practical matter.
Meanwhile, the consent concept raises its own tensions as witnessed by issues as currently in Iraq and Afghanistan concerning who commands joint foreign and local military operations, the effectiveness of local troops and collateral civilian casualties producing local political reaction. Some form of jus in bello (the law of war) will continue to apply throughout the use of force, and even into any prospective “peacekeeping” and “peace enforcement” missions which may or may not follow from Operation Odyssey Dawn.
Our present path “between war and peace” around the globe is certain to only those who command our armed forces; how the American people, Libyans (and others) will define “decisive victory” remains to be seen.
Govern is a veteran of various deployments during peacetime and war, and served in five airborne and special operations assignments around the globe, among other responsibilities, during his 25-year career as an Army judge advocate. He teaches national security law, military law and contracts law. He lives in Naples and can be contacted at (239) 687-5390 or khgovern@avemarialaw.edu.

Commentary by Bob Haskell on Govern article (April 6, 2011):
For myself, I tend to look at this at the highest, philosophical (ideological) level, pitting dictatorship against democracy, absolute power against humanity. As such, clash is inevitable, including locally over the War Powers Resolution. It’s no stretch, then, to see this natural con-flict play out as it is. [As reference, I see our Declaration of Independence as our philosophical foundation whereas the Constitution provides our sociopolitical superstructure]. I was frankly amazed that the UN acted as quickly as it did, and that NATO could move this quickly, but I think that if we’d have had to wait on the Congress to act, we’d still be doing so a year from now (when it wouldn’t matter). Further, I think the President is going out of his way to sidestep the issue of targeting Gaddafi which, I suppose, would require Congressional approval in the context of “war” (cf: EO 12333). We had debates about this back in the 80s, even in the context of hu-manitarian intervention (which we listed as a mission for SF, btw, though some details were classified).
If we’re to follow thru on the current action, I don’t see how we can avoid “boots on the ground,” at least by way of Special Forces, at least by way of assessment, so the President’s rhetoric isn’t sitting true with me, however much he wishes to avoid more contention with the Hill. Therein, of course, lies a problem. I give the “O” man credit for effectively tap-dancing about the media issue of applying our humanitarian principles to other areas, both regionally and internationally, by noting that each is individual and so we cannot use a blanket approach.
We’ve done enough in preventing a wholesale slaughter and have lived up to our ideology. As you note, tribalism is a heavy influence–Hey, it’s Arabia!, something we don’t have a real good track record with. It will take some time, I think, for the Agency [and, presumably, SF] to figure out who’s on first in that mess, let alone myriad nefarious connections, but then there is the issue of our relations with the rest of Arabia and, of course, cost. We’re ahead right now; better leave well enough alone and let Arabia deal with its own.
Given our history in Arabia (using my definition), a related concern is how Arabs–and by logical extension Muslims in general–perceive the US and Americans. Images: Perceptions of Reality. It’s a theme I’ve used before. We are our own worst enemy with our often heavy-handed, my-way-or-the-highway approach to affairs in the world, and certainly Arabia isn’t excepted. Obama’s trying to at least mitigate some of the harm done by projecting more even-handed administration, more even-handed policies … he’s more “fair and balanced,” to borrow from Fox News (of all institutions! ). And I think he’s succeeding where others–primarily conservatives–haven’t even seen reality let alone tried to address it, likely because they’re circling in lock-step inside their [conservative] box. [This is not to say that all conservatives are blind to reality: consider George Will, Peggy Noonan, Joe Scarborough, Michael Smerconish, Pat Buchanan, Richard Lugar, et al]
Aside, how has Obama’s image affected the region’s players, and what effect did his ’09 Cairo speech have on current events? As he seems consistently to present, Obama is a bridge builder, using common ground to establish and set foundations. It is his fourth discussion point–Democracy–that delivers the power of his vision, that rebinds us to our philosophical heritage, that is, indeed, reminiscent of the vision of the “SOF Mafia” of the 80s. The whole speech, at any rate, to me finally makes the connection some of us pushed “way back when” about that
“return to basics” I called for, a realignment at the highest, philosophical level with our founda-tional principles as established in our Declaration of Independence and Constitution [founding documents]. In this has he exemplified what a President must be in these matters, in my opinion. [You will also please note that in this speech does he make the same point in closing that I did in my “Morality” piece about the common ground of what we refer to as the “Golden Rule,” how-ever intellectual its roots]. Given this, do we want to take on a third, admittedly obfuscated en-gagement in a region of the world already long-weary of the United States and its motives? I think Obama is justifiably leary of being sucked into an abyss, and is trying to ensure that the image he projected in June of ’09 remains relative, that words and actions are consistent. His call for Gaddafi’s ouster is, in fact, consistent with his message, as is our tentative support for anti-Gaddafi rebels, though I think he is smart in passing control to NATO which has a more per-sonally-vested interest in the outcome of Libya’s civil war. That the UN sanctions the overall action adds significantly to the legality of allied actions.

Bob Haskell lives in California. He is a former member of Special Forces and developed doctrine for Special Operations Forces at The US Army John F. Kennedy Special Warfare Center and School at Ft. Bragg, North Carolina.

Commentary by Rudy Barnes, Jr. on Govern article (April 7, 2011):
Seems we have a civil war in Libya, which in that part of the world means a tribal war, with little likelihood of quick resolution or predictable conclusion. Even with the US deferring to NATO, the Libyan intervention seems just another “tar baby” that will entangle and discredit the Western forces in a hostile cultural environment.
To call it a humanitarian intervention is a stretch, especially when we are calling for regime change. Until we know more about the rebels we should be cautious about supporting them. Our experience supporting the mujahideen against the Soviets in Afghanistan should have taught us that. We might be better off with the devil we know than with a devil we don’t know.
Look at Iraq. If Iran is the real threat to US security interests, wouldn’t we be better off with Saddam in power in Iraq? Like Qaddafi, Saddam was a world-class despot, but Maliki’s government is not as effective a deterrent to Iran as was Saddam.
And then there’s Afghanistan. After ten years, can we honestly say that Karzai’s government is an improvement over the Taliban from the standpoint of US national security interests?
Libya provided jihadists who fought US forces in both Iraq and Afghanistan. They were no friends of Qaddafi, but he was able to isolate them from Tripoli and political power by keeping them in Eastern Libya. That’s where the rebels live. Let’s hope we don’t unwittingly legitimize al Qaeda in Libya with military and political power in our humanitarian intervention.

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