One of the things I am getting from the interplay of talking about the differences between civil law, military law and this far more nebulous concept of the 'Law of Nations' is the purpose of law itself. Oh, if you are expecting one of my usual link-infest, fact filled extravaganzas to point out that, socially speaking, one of the great enablers of transnational terrorism is more close to you in the way of friends than, say, Kevin Bacon is... well... you aren't going to get that! Instead the purpose of the law as a concept comes forward and I would like to look at that in a moment. This is written when I have had such little sleep, however, that the mind wanders viciously and yet some underlying point is trying to get out, so bear with me, if you can. If not, there are far more informative things to read in your life! Really! Sidebar is full of 'em!
There, that has scared off 99.999% of humanity so I am now just speaking for myself. Good. From this interplay via what is the best way to handle terrorists legally, beyond just shooting them as spies, comes the purpose of the law. Strange to say that purpose and how I try to live my life are actually very close, in concept, while being quite distant in application. So to answer the question burning in no one's mind, exactly how *do* I lead my life?
Ah! I lead my life via a system of ethics that are self-imposed and those have one very simple and over-riding goal: protecting YOU from ME!
How do I know that system works? Well, you aren't dead by my hand! Great! Success has been achieved... but it isn't that simple, is it? No, unfortunately not, for in this system of ethical self-interested self-control is something else that guides this not wanting to harm you bit. This is the tricky part and has actual external requirements. How simple ethics would be if there were no other people around, but there are other folks around on this globe so there needs to be an over-riding rule to be applied to ensure that I don't wind up dead from YOU. On the personal scale this, as pointed out by so many, is something known as: reciprocity of activity.
I treat you as if you are, in actuality, more valuable to my life than I am. Since I am not alone in the world this is a necessary outlook to have as it then puts extreme onus upon other folks to actually treat me well! Now isn't that nasty? You are expected to try and protect ME from YOU!! Why, thats downright biased, isn't it?
Damned straight it is! It is also called: enlightened self-interest.
By investing so much in YOU, then it is incumbent upon YOU to demonstrate that YOU place any value on MY investment in YOU. If you do not demonstrate that in YOUR attitude towards ME, then it demonstrates that YOU do not value ME more than YOU. Ah, ethics! So simple, so complex... reciprocity of exchanged value and expectations of each other requires that there be something of value to be gained via the exchange. And there is! We get to survive together when I protect YOU from ME! When that is exchanged, it means We are not at each others throats for ANY reason. This has an over-arching concept attached to it, this enlightened self-interest and exchanged reciprocity of valuation of each other. It is called: civlization.
Notice that I have not inoked the Law yet? Or even Morals? Getting there! Really! As Sledge Hammer would say just before he would do something incredibly dangerous and idiotic: Trust me, I know what I'm doing!
Now lets head back to this Law concept and the lovely individual that is closer to you on the transnational terrorism danger scale than anyone else on the planet. I know this by looking at the depth of his connectivity in things, and really, really don't like it. I have rarely found anyone in history so well connected and so blithely dangerous before in my life, all genocidal maniacs included as their self-valuation system requires them to be atop anything and anything in the way just dies. No the most dangerous folks are those that follow the law so closely that they are nearly impossible to prosecute, and yet they have, in actuality broken the law many times over. By adhering to the word of the law, they betray the spirit of it. In gaming we called these: 'lawyers' or the folks arguing the rules by the letter. They are 'gaming the system'.
I could be a 'lawyer' of rules when needs be, but I did something even more wicked! Yes, in truth something far more dangerous, than the mere letter or spirit of the law was involved in the rules views I took as a gamer. Extremely dangerous. I would learn why the rules worked like they did as a whole, which then allowed immediate deconstruction of the system for any given application of the rules. The rules 'lawyers' hated this, as it appeared to give me eidetic knowledge of the actual rules! Let me tell you how that works... lets take one of the most rule heavy games I have played, which was Star Fleet Battles, way back in its heyday when the rules were changing so fast no one could keep track of them. That was a true PITA, BTW, but there were some overarching concepts that went with the actual process of this thing called 'movement': faster moved first, manned before automated, dice out otherwise. Gibberish, huh? But when dealing with all sorts of things like ships that were under manned control and automated systems like self-guided weapons, it was the great rule of thumb for figuring out what gets to go when when everyone gets to move on the same segment.
If you have a higher speed you go FIRST. Speed is great, it moves you around faster and you get to position yourself better... unless a movement segment has you and a slower opponent going at the exact same segment, then, unfortunately, faster goes first. In other words even though you are faster than an opponent, if you both move at the same time *they* have been watching you and get to *react* to your high-speed shenanigans. The way to beat that, most reliably, was to go at an odd-numbered speed, as that tends to mix out the movement segments during a turn to a higher movement advantage: you get to move, your opponent gets to be a sitting duck. Even speeds always had this nasty tendancy to have you zipping in front of someone and then they do a sudden turn to bring all of their main weapons to bear on you at short range while you are one movement from doing so to them. Sucks, really, so going at an odd speed helped some.
So when a bunch of things go the same speed, say you unwisely chose a ship speed to coincide with the movement of a tracking drone or missile, you go to go first and the missile reacts to your move in that segment. Very few ever learned that when they had bunches of drones bearing down on them and many, many a ship got destroyed when the self-guided weapons hit them on a same-segment move, even when they were going *slower* and they moved into the same place the missiles were after the missiles moved *first*. That, also, sucked. Luckily the rules were later amended on that score... still a handy tactic to exploit! Finally, moving at the same speed by two manned vessels was a dice-out, higher goes first bit. Rarely used at even moderate range, but extremely nasty at low-speed 'knife fights' at point-blank range: live by the dice, die by the dice.
After movement then comes everything *else* you could do, like fire, launch weapons and so on. That had its own choreographed staging, similar to movement. The number of people who were using ships, going at a slower speed and wanted to *prove* that they could not be hit by *faster* missiles as they moved *later* was lots of fun. Got ten seconds to find the turn order rule, the sub-rule for manned vice guided vice self-guided vice unguided, then the sub-sub rule for that precedent and then, usually though it is fuzzy at this point in time over a decade since actually playing the game, the sub-sub-sub rule that covered the situation. Ten seconds to find it, know the rules chapter and verse? This version, which is the latest, which just came out two weeks ago? Really? And then after the page flipping, finding where the rule had been moved to ("What they changed the SECTIONS AROUND?") and time expiring... I would then flip to the rule and read it. Rarely wept, save when they put another sub-paragraph on the three layer deep sub rules. Then learned the minor exception and continued onwards.
So sorry that you ran head-on into that drone swarm... and it wasn't even MINE! People hated thinking that they 'knew the rules' while what they knew was the rote learning of the rules. The rules 'lawyers' hated the constant changes and even the 'spirit of the rules' folks had major problems with rules structure changes. I lived by the ethical outlook of the rules so as to understand what the structure was getting across so as to learn *that* and then stick with it. People in the way of other gamers came to detest that I could, seemingly, know every rule while being unable to quote it... and yet, when the page flipping happened, there was the exact rule as I had given in overview. Not by word, not by spirit, but by structure.
And the thing that made it worse?
I did that even when the rules would put me at a disadvantage! There were times that I was at a disadvantage and was more than prepared to take my lumps (what, you *didn't* pre-prepare for the problems?) and then would find that the fine grained four-deep sub-paragraph had changed to put me at an advantage! The basic rule had remained the very same, but a slight precedent had changed in the ordering. That was *far* worse as I was *wrong* but for proving the rule while I was ready to take on near certain disaster I could, instead, mete it out. For having spent time to prove me *wrong* a person could actually be *worse* off... almost like I *planned it that way*!
Truth be told I didn't, just knew the structure, knew I had made a tactical mistake and was ready to *deal with it*. When I found it wasn't a mistake, I *exploited* the opening for all it was worth. And by being prepared for *both* I was seen as some kind of rules 'genius'. What I was doing, however, was this thing known as: playing the game.
Of the three category of gamers ('lawyers', spirit of the rule, and players) the 'lawyers' had reliably the lowest percentage of knowledge of any game, hitting at 55-65% accuracy. The actual 'players' were better at the 70-75% range, overall. Those that learned the 'spirit of the game' hit about the same as 'players', about 75-80% knowledge and reliability. I aimed for over 90% by synthetic analysis on the fly, and could hit 85% reliably on most games. On SFB where the very damned structure was being yanked around every couple of months everyone dropped 20% on reliability. That actually decreased this thing known as: 'enjoying the game'.
When folks talk about the law, and try to point out something, like Admiralty Courts having had most of their cases moved to the Civil Courts, that is because, by custom and treaty, most of the old Admiralty decisions are now something close to contract law. In that realm contracts by common upholding of a Treaty is so similar that the arguments on it can go to Civil Courts with nothing lost. The old Admiralty concept of deciding affairs between Nations via the Law of the Sea in the 18th century mode is almost gone. The wording of it and the meaning of it have been slowly dissolved by civilization as the practices that required it to be an effective adjudication system for handling miscreants upon the sea have almost disappeared.
That view of Civil Law and Military Law has settled out over the last couple of centuries, to be highly defined, codified and regularized and dealing with the abnormalities when one is not even part of a Nation State system is almost gone. It is a very and extremely cruel trick of fate that Western Civlization has gotten so civilized that we don't even think about what non-Nation State actors that will not hold themselves accountable to *any* Treaty language and that do not even hold common civilized concepts like the Law of the High Seas actually *means* and *requires* from us. The 'lawyers' in this case, are those that want to push damned near anything that isn't immediate and direct combat related into Civil Law.
And the wearing away of even those trying to understand the 'Spirit of the Law' has been so eroded that the abililty to handle this concept of non-Nation State actors leaves them unable to actually address the problem of what to *do* with them. This has enabled individuals like Monzer al-Kassar to blithely state that he has not broken any law in his arms deals, while he has, in fact, broken international and National sanctions on arms shipments to certain Nations, like Croatia, Bosnia and Somalia, via the route of changing manifests, getting individuals to sign for goods going to Nations that don't exist, and magically changing foodstuffs into weapons in mid-ocean without even having to stop or even exchange goods of any sort at any time. No laws have been broken!!
Yet many laws were, and actual treaties were, indeed, violated by these activities. But you can't pin the paper trail on him. He has done something known as: 'gaming the system'. Thus, when the US puts a sting operation out to catch him dealing SAMs and other weapons, purportedly, to FARC, and the man has successfully gotten out of every single hard charge brought against him by other Western Nations including: Spain (for Piracy and terrorism), Switzerland (for money laundering! Yes, he outdid *their* legal controls), and Portugal, Spain, Yemen, Somalia, Poland, Germany, Italy, France, Honduras, Argentina, Chile, Brazil, UK, US and other Nations on a host of weapons deals, drug deals and money laundering deals with multiple instances per Nation, just what kind of luck does the US think it will have on a 'sting' operation?
So, when folks are telling me that Piracy goes to Civil justice as it is in the Civil Code, and yet the Admiralty Court is invoked for Piracy, I have a real large and present problem with wanting Civil justice for those that have broken the Laws of Nations. Mind you it has been a couple of centuries since large scale Piratical operations have been actually seen on this planet, but when they were they were not just civil crimes against commerce, but Law of Nation crimes on safety of navigation of the common seaways and against the sanctity of Nation to Nation sea travel being unmolested. There are Treaties to cover this, yes. These indivduals operate outside of the Treaty system as their organizations are not part of Nation States.
If that is what the Founders actually meant by Admiralty Courts, that it is just Civil Crime, then they would not have bothered to mention them separately from the Civil Court system now, would they? The actual structure of the US Constitution, by mentioning this as a separate area of law from Civil Law tends to lend import to it as something the Nation needs to keep track of as a Nation. To keep peace on the High Seas the previous Sovereign over the Colonies utilized the Admiralty in the form of the Navy to run courts so as to prosecute miscreants that did not obey the Law of Nations and the High Seas. Often that would be a Magistrate or designated Naval Officer to Administer the King's Justice, the Sovereign's Justice or the Nation's Justice. While it may have been conceptually a National matter of Civil concern, it was adjudicated by a Magistrate or, yes, a designated Naval Officer. You know, the folks protecting you on the High Seas? The ones who wore the uniforms, ran up the flag of their Nation and tracked down non-Nation State miscreants threatening folks on the High Seas. The 'Good Guys'? Unless, of course, they were from a hostile Nation, but then that is what diplomacy was about, no?
Fast-forward a couple of centuries. Because Black Bart was staging raids on European colonies and even doing this thing known as: landing a force to attack a town and the Governor. Thus the Piracy laws would also need and *must* cover land-based attacks by sea raiders, the laws of the US on Piracy specifically mention the 'property' of Nations. That is not *just* ships and their fittings, but the entire gamut of land-based property that suffered the landings and attacks by raiders that also took to the sea. Folks thinking they were the law because they had weapons and would use them on anyone who disagreed. Now we are in an era, today, in which aircraft are a main transport system and 'landings' and 'raids' and 'attacks' include such lovely concepts as running jet-aircraft into buildings.
This modern era sees this thing, which in any other age of mankind before the 20th century, would have been defined as an attack via means of warfare upon a Nation. Like blowing up a vessel with tons of explosives in a densely packed harbor or at a dock with many folks living near it. If that had been done by Black Bart as a reprisal attack for some slight, real or perceived, and he had publicized it as such, would we be sending out the police to get him? Or the Navy?
Yeah. The guys in uniform, etc. And if they got some of those behind it, would those indivdiuals, members of Black Bart's organization, be tried as 'possible criminals who had unlawfully used explosives' or as 'Pirates' who had slaughtered innocents?
So, this is the deal with Admiralty Courts: were they intended to ONLY perform civil criminal justice or were they, by lineage and creation and descent from previous and other Admiralty Courts, meant to try crimes that had occured upon the High Seas that had gone against the Laws of the High Seas? The surprise is that in this day and age there is a wide swath that wants EVERYTHING in the US Civil Code to be only Civil Crimes and not a crime against the Laws of Nations violating the Laws of the High Seas.
That's right, if you actually captured a modern day Black Bart or any of his organization, they get to stand trial as 'criminals' not as 'Pirates', and get their full rights because their organization is only 'purported' to have done crimes... Great for Civil Crimes, but quite asinine for the Law of Nations which seeks to protect the Nation from those that openly admit that they adhere to No Law and recognize the validity of No Authority save their own. These are crimes against the very structure of the Law itself in attempting to destroy the common utility and sanctity that Nations have agreed upon for the High Seas and airspace overlaying it, by trying to classify them as 'civil crimes' actual 'benefit of the doubt' is given to those that have made clear that they want nor crave any benefit of any doubt at all.
The goals of such organizations as al Qaeda, Hezbollah and the extended criminal/terrorist outfit run by Monzer al-Kassar, goes quite some distance beyond the 'rule of law' and beyond 'Law of Nations' and declare themselves the ONLY Law. The very pinnacle of those that game the system have made themselves literally 'untouchable' by ANY law. No matter how awful their organizations *are* you cannot do a damned thing about them if you go by the modern concept of only TWO sets of laws: civil and military. That's right, they have jettisoned the Law of Nations concept!
Sorry, Nations aren't valid to them, so they have to go...
And the laws? Well they are made to put restrictions on what is 'acceptable' by the community now, aren't they? The law is made to step in when individuals singly or in groups, violate the common accepted practices of society. That society is civil. That society is military. That society is the 'community of Nations' by common agreement. That is not just two areas of law but THREE. Or else the very foundations of the Nation State system will be adjudicated not to exist and there will only be a morass of non-agreed upon civil law as the basis for military law and the laws of the High Seas depend upon Nation States and the Treaties between them. Get rid of the Nation State and Treaties go right along with it. And the basis for civil law, within Nations also goes.
That is the argument that Piracy, clearly and explicitly stated to be against the common laws of the High Seas is 'civil law'. If you think that, then the basis for the entire society and civilization that protects YOU from ME is gone. Because there is no method to enforce that reciprocity, unless you happen to like an Empire... or chaos. We will not be lucky enough to get Anarchy with folks like al Qaeda, Hamas, Hezbollah, FARC, Shining Path, ETA, GIA, GSPC, RO-17, Abu Sayyaf, Jemaa Islamiya, Red Brigades... those that set themselves up as the only law and defy Nations.
They do not recognize the sort of law that protects YOU from ME, with reciprocity upon it. Their law is simple: THEY will RULE over US.
That is why we have Nations and enforce the Nation State system. To protect US from THEM. And if we have forgotten that, then we are damned well heading towards a nasty form of destruction as they take over by playing our laws against us. Until no Nation is left. That is why I argue for the damned old fashioned concept of Admiralty Courts: to protect us, all of us. This is the 'structural argument' of the law. Not the written verbiage nor even the 'spirit of the law' but the outlay and structure of it that *must* exist within a system of Sovereign Nation States. Because Nations, in this system, have the right to have their commerce and their People unmolested by unaccountable organizations waging war illegally outside the system. The military is involved, yes, but the justice is that of the Nation. Not Civil, not Military but the Nation's Justice. And it is very and highly biased in favor of the Nation State so that we may have a Nation together, protected from such groups and individuals.
But then, I do think strange thoughts upon the Nation State system as a system. Not just as a bunch of laws.
Because I want to protect YOU from ME so that WE may have a Nation TOGETHER.
There is, way back when in my second post, the speech that the President *should* have given after 9/11, but didn't. And from that, my original thought, way back when on 9/11 and just after, I think shows who gets to do this declaration.
And if I am right, from then, the above can be done with that outlook, but the organization to do it has not the will nor stamina nor want for this sort of fight. What follows is the speech that I think should have been given and it puts the ball in the right court, and if that is the case we are, really, going to have severe problems as a Nation:
"To all terrorist organizations that have declared war on the United States: We reciprocate. To all those that support you be they States or companies or groups or individuals: You are the enemy of the United States. I ask congress to reciprocally give a Declaration of War against all groups and organizations that have declared war on the United States since 1945. Those States, companies, organizations, groups and individuals who support you are also targets. Any of these that have publicly stated their enmity for the United States have until I sign the Declaration of War to sue for peace. Once I sign the Declaration of War, unconditional surrender will be your only option. We have not taken you seriously before, and today we do. We grieve for our dead and tell you as a Nation, we will not stop until every last declared enemy of the United States has given up its activities to harm us. You have asked for war. We, as a people, will oblige. I ask Congress to provide this Declaration of War and mobilization authority so that our country can begin the task that has been set to us. And to the American People, I say that we do not strike out of grief or vengeance. We strike because we have been struck many times and have held ourselves in abeyance and have paid a dear price for that. No longer, that time is over. And to the rest of the World listening and watching: Lead, follow or get out of the way; do not think you will stop us. Thank you and god bless the United States."Yes, who gets the War making, High Seas and Letters Language? Congress.
And the chances of Congress actually declaring al Qaeda and others to be Pirates to be attacked, outlaws to this Nation and all Nations? Today?
Pretty much zero.