The return of 1979

In one of my very first posts I wrote was about the concept of Jus ad Bellum or 'Just War', which are the instances laid out in Law of Nations by de Vattel (1758) of when a Nation State may go to war.  This I expanded upon in Where Angels fear to tread, because in our modern age we have glossed over and completely excised the differences between Public and Private war and what responses are appropriate to each.  Law of Nations is descriptive law that attempts to encapsulate unwritten law which was differentiate by Bracton on the Laws and Customs of England (circa 1250) as the law leges, as opposed to the jus scriptum or written law.  In fact Bracton describes Law of Nations as jus gentium:

What the jus gentium is.

[017] 33The jus gentium is the law which men of all nations use, which falls short of
[018] natural law since that is common to all animate things born on the earth in the
[019] sea or in the air. From it comes the union of man and woman, entered into by the
[020] mutual consent of both, which is called marriage. Mere physical union is [in the
[021] realm] of fact and cannot properly be called jus since it is corporeal and may be
[022] seen;34 all jura are incorporeal and cannot be seen. From that same law there
[023] also35 comes the procreation and rearing of children. The jus gentium is common
[024] to men alone, as religion observed toward God, the duty of submission to parents
[025] and country, or the right to repel violence and injuria. For it is by virtue of this
[026] law that whatever a man does in defence of his own person he is held to do lawfully;
[027] since nature makes us all in a sense akin to one another it follows that for one to
[028] attack another is forbidden.36

The Law of Nations, then, is universal to thinking beings  capable of having families and of defense of self and Nation, as Nation arrives from the union of thinking man and woman in families.  As the presence of families seeking to protect themselves and working with other families is universal in mankind, so are Nations, and yet the jus gentium does not come from Natural Law but from the application of reason and self-governance to our natural liberties and rights.  Thus law of nations is usually spoken of in the lower case, encompassing the entire unwritten part of mankind's activities that fall into it, and in the larger case when citing an individual work within it.  As de Vattel had worked with Blackstone prior to the colonies separating from the Great Britain, that work is predominant and guiding not just in the thought of those Founding the Nation and Framing the Constitution, but actually has direct, upper case citation in the latter.

What Law of Nations describes is the outcome of what many civilizations have formed in the way of rules between Nations and while it concentrates on mostly European Nations, the form of interaction described is one that can be seen globally between all Nations and the States running them.  It doesn't matter what period of history you search (ancient to modern) or where you look geographically (from Southern Africa to Northern Siberia to the Great Plains to the high coastal regions of South America, all of mankind works under law of nations.  de Vattel devotes an entire book (Book III) to warfare, which shows itself as a major part of the activities of mankind, but for the actions seen in Tehran in 1979 and today in Cairo and Benghazi, one must look to the norms and standards of diplomacy between Nations which comes in another book (Book IV).  Ideas presented in both books receive references earlier in the work, but their full fleshing out happens in them as these are major components of Nations.  To get an idea of how this works, here is paragraph 1 from Book IV:

§ l. What peace is.

PEACE is the reverse of war: it is that desirable state in which every one quietly enjoys his rights, or, if controverted, amicably discusses them by force of argument. Hobbes has had the boldness to assert, that war is the natural state of man. But if, by "the natural state of man," we understand (as reason requires that we should) that state to which he is destined and called by his nature, peace should rather be termed his natural state. For, it is the part of a rational being to terminate his differences by rational methods; whereas, it is the characteristic of the brute creation to decide theirs by force.1 Man, as we have already observed (Prelim. § 10), alone and destitute of succours, would necessarily be a very wretched creature. He stands in need of the intercourse and assistance of his species, in order to enjoy the sweets of life, to develop his faculties, and live in a manner suitable to his nature. Now, it is in peace alone that all these advantages are to be found: it is in peace that men respect, assist, and love each other: nor would they ever depart from that happy state, if they were not hurried on by the impetuosity of their passions, and blinded by the gross deceptions of self-love. What little we have said of the effects will be sufficient to give some idea of its various calamities; and it is an unfortunate circumstance for the human race, that the injustice of unprincipled men should so often render it inevitable.

Peace, then, is amongst the civilized of the Earth and those Nations that wish to practice peace should have intercourse and discourse between them so as to iron out differences.  The brute man, the savage man, wishes no discourse and only force to be the way to settle things, to impose his will upon others without their consent.

You are, perhaps, seeing where this is going, no?  How discussions really weren't present in1979 or today?  Is what we are seeing and did see the actions of peaceful, rational man in his Nations, or irrational, brutish man that is uncivilized?  If one cannot distinguish between these things, then one cannot properly distinguish between war and peace as peace is not just the absence of war.  It is not with emotional fervor that I call these actions barbarous, brutish, savage and wholly contrary to civilized intercourse amongst Nations for that is exactly what these actions are stripped of all emotional content but with the ability to judge what is civil discourse and what is attack to get one's way and enforce one's will.

Now what is the source of these actions?  Not the immediate 'this anti-Islamic film inflamed individuals' for it is possible to have heated passion without running riot, without damaging property of another Nation and without inflicting physical and lethal harm to others.  Thus comes the second paragraph of Book IV and the object is still Peace:

§ 2. Obligation of cultivating it.

Nations who are really impressed with sentiments of humanity, — who seriously attend to their duty, and are acquainted with their true and substantial interests, — will never seek to promote their own advantage at the expense and detriment of other nations: however intent they may be on their own happiness, they will ever be careful to combine it with that of others, and with justice and equity. Thus disposed, they will necessarily cultivate peace. If they do not live together in peace, how can they perform those mutual and sacred duties which nature enjoins them? And this state is found to be no less necessary to their happiness than to the discharge of their duties. Thus, the law of nature every way obliges them to seek and cultivate peace. That divine law has no other end in view than the welfare of mankind: to that object all its rules and all its precepts lend: they are alt deducible from this principle, that men should seek their own felicity; and morality is no more than the art of acquiring happiness. As this is true of individuals, it is equally so of nations, as must appear evident to any one who will but take the trouble of reflecting on what we have said of their common and reciprocal duties, in the first chapter of the second book.

Note the last part I put in boldface, and that the individual and nation are part of a scale-free phenomena called 'peace'.  A moral people, seeking happiness, would criticize those who detract from their religion, perhaps seek to have some understanding of how such a thing could come to be made with it being so hurtful to them.  That is the realm of discourse, where passion can and must still play a part, but it also recognizes the rights of others to have their say and put such matters publicly for the benefit of all to hear and understand.  For such morality to be present it must, actually, manifest in peaceful activities that respect other individuals and nations.  Thus it can be said the activities taken in Tehran in 1979, Cairo and Benghazi in the last two days were not ones that were moral nor ones that respected the rights of other individuals or nations.

Of course as Nations have States to support them, those States fall under the sovereign power of the Nation.  There are responsibilities for those who are vested with such sovereign power and their activities are the ones in which nations interact with each other.  Responsibilities beget obligations and the sovereign has obligations as a manifestation of the power of the nation:

§ 3. The sovereign's obligation to it.

This obligation of cultivating peace binds the sovereign by a double tie. He owes this attention to his people, on whom war would pour a torrent of evils; and he owes it in the most strict and indispensable manner, since it is solely for the advantage and welfare of the nation that he is intrusted with the government. (Book I. § 39.) He owes the same attention to foreign nations, whose happiness likewise is disturbed by war. The nation's duty in this respect has been shown in the preceding chapter; and the sovereign, being invested with the public authority, is at the same time charged with all the duties of the society, or body of the nation. (Book I. § 41.)

If government is to have peace it must seek it not just for its people but for those nations it interacts with.  The obligation to peace is put in trust to a Nation's government, and it is a grant of responsibility, obligation and power (although that will vary from Nation to Nation, the Nation as a sovereign power is said to have the whole power) by those in the Nation to that government.  It may not be a grant by consent, and thusly any government that takes up the sovereign power without consent is doubly responsible for its activities.

In the case of 1979 that was (and remains) the government of Iran, in Cairo it is the government of Egypt, and for Benghazi it is the government of Libya.  The outcomes of such activities are the responsibilities of the governments of each nation and what happens determines the course of that nation: are they to put forward the rule of law and diplomatic discourse or are they to endorse such activities?  And what are the outcomes of these courses of action?  Depending on which course is taken, the destination is set, and that is not by emotions but by the actions of the sovereigns involved.  In Iran and Egypt the governments did not decry such activities, nor did they offer up to have a rule of law applied to the individuals doing such actions.  In Libya, as far as can be discerned, there is a willingness to seek out the miscreants involved in murder of the US Ambassador and bring the proper laws involved into play (whatever they are).

Taking the last case first, as it is the closest we have come to expect from responsible actors as nations, even though the activities are horrific.  Much later, starting in paragraph 80, are how Ambassadors are to be treated, and this is important in the Libyan case:

§ 82. Particular protection due to them.(197)

This safety is particularly due to the minister, from the sovereign to whom he is sent. To admit a minister, to acknowledge him in such character, is engaging to grant him the most particular protection, and that he shall enjoy all possible safety. It is true, indeed, that the sovereign is bound to protect every person within his dominions, whether native or foreigner, and to shelter him from violence: but this attention is in a higher degree due to a foreign minister. An act of violence done to a private person is an ordinary transgression, which, according to circumstances, the prince may pardon: but if done to a public minister, it is a crime of state, an offence against the law of nations; and the power of pardoning, in such case, does not rest with the prince in whose dominions the crime has been committed, but with him who has been offended in the person of his representative. However, if the minister has been insulted by persons who were ignorant of his character, the offence is wholly unconnected with the law of nations, and falls within the class of ordinary transgressions. A company of young rakes, in a town of Switzerland, having, in the night-time, insulted the British minister's house, without knowing who lived in it, the magistracy sent a message to the minister to know what satisfaction he required. He prudently answered, that it was the magistrates' concern to provide for the public safety by such means as they thought best; but that, as to his own part, he required nothing, not thinking himself affronted by persons who could have had no design against him, as not knowing his house. Another particular circumstance, in the protection due to foreign ministers, is this: — according to the destructive maxims introduced by a false point of honour, a sovereign is under a necessity of showing indulgence to a person wearing a sword, who instantly revenges an affront done to him by a private individual: but violent proceedings against a public minister can never be allowed or excused, unless where the latter has himself been the aggressor, and, by using violence in the first instance, has reduced his opponent to the necessity of self-defence.

Libya can try such people, but the place they can, nay must, reach trial is in the domain of the sovereign offended.  If you kill the US Ambassador clemency, guilt or innocence cannot be determined in Libya but only by the US.  That is the normal, ordinary course of affairs between nations that have regularized diplomatic intercourse via the exchange of diplomats.  If the US recognizes such a government then that government has the obligation to seek out those who do such crimes and hand them over.  There can be initial trial in Libya, yes, but any sentence is held in abeyance until they can be tried in the US.

No matter how piss-poor the current Libyan government is, they at least are acting by civilized norms and must be worked with and supported in their actions to bring those individuals in for trial.  If they act in bad faith, seek to shield such miscreants or otherwise dissemble their intentions by their activities, then there are other means to go through to ensure compliance with the responsibilities and obligations of the sovereign power in Libya.

That now leaves the similar cases of Tehran 1979 and Cairo, in which the US Embassy grounds were invaded (twice in Tehran, once in Cairo to-date).  This requires a look at the Embassy, which are part of where the Ambassador does his work:

§ 110. The ambassador is exempt from the civil jurisdiction of the country where he resides.

SOME authors will have an ambassador to be subject, in civil cases, to the jurisdiction of the country where he resides. — at least in such cases as have arisen during the time of his embassy; and, in support of their opinion, they allege that this subjection is by no means derogatory to the ambassadorial character: "for," say they, "however sacred a person may be, his inviolability is not affected by suing him in a civil action." But it is not on account of the sacredness of their person that ambassadors cannot be sued: it is because they are independent of the jurisdiction of the country to which they are sent; and the substantial reasons on which that independency is grounded may be seen in a preceding part of this work (§ 92). Let us here add, that it is in every respect highly proper, and even necessary, that an ambassador should be exempt from judicial prosecution even in civil causes, in order that he may be free from molestation in the exercise of his functions. For a similar reason, it was not allowed, among the Romans, to summon a priest while he was employed in his sacred offices:1 but at other times he was open to the law. The reason which we have here alleged for the exemption is also assigned in the Roman law: "Ideo enim non datur actio (adversus legatum) ne ab officio suscepto legationis avocetur,2 ne impediatur legatio."3 But there was an exception as to those transactions which had taken place during the embassy. This was reasonable with regard to those legati, or ministers, of whom the Roman law here speaks, who, being sent only by nations subject to the empire, could not lay claim to the independency enjoyed by a foreign minister. As they were subjects of the state, the legislature was at liberty to establish whatever regulations it thought most proper respecting them: but a sovereign has not the like power of obliging the minister of another sovereign to submit to his jurisdiction: and even if such power was vested in him by convention, or otherwise, the exercise of it would be highly improper: because, under that pretext, the ambassador might be often molested in his ministry, and the state involved in very disagreeable quarrels, for the trifling concerns of some private individuals, who might and ought to have taken better precautions for their own security. It is therefore, only in conformity to the mutual duties which states owe to each other, and in accordance with the grand principles of the law of nations, that an ambassador or public minister is at present, by the universal custom and consent of nations, independent of all jurisdiction in the country where he resides, either in civil or criminal cases. I know there have occurred some instances to the contrary: but a few facts do not establish a custom: on the contrary, those to which I allude, only contribute, by the censure passed on them, to prove the custom such as I have asserted it to be. In the year 1668, the Portuguese resident at the Hague was, by an order of the court of justice, arrested and imprisoned for debt. But an illustrious member of the same court4 very justly thinks that the procedure was unjustifiable, and contrary to the law of nations. In the year 1657, a resident of the elector of Brandenburg was also arrested for debt in England. But he was set at liberty, as having been illegally arrested; and even the creditors and officers of justice who had offered him that insult were punished.5

This is later reinforced in paragraph 113 and elsewhere in Law of Nations.  When the Embassy of another nation is broken into, that is not an act of civil invasions but one of law of nations contravention.  When it is private individuals doing such invasion, it is not civil trespass but a violation of the treaties between the nations involved which gives rise to an escalated tensions between the nations involved.  The government of those people doing the invasion is responsible for a response: is it the course of civil process by the course of law, or is it upholding the law breakers?  When it is the latter case it is giving backing to the action that then moves it from the realm of civil dispute to one of dispute between nations.  In other words it transforms from mere civil trespass, to be sorted out by diplomacy and civil proceedings, to one where an actual invasion is given backing which is a casus belli, a cause for war.

When the sacrosanct nature of agreements between Nations, in exchanging ambassadors or other public ministers in search of peace requires this as it is the civil, rational and natural movement of men to seek peace amongst themselves.  When that is transgressed and backed by the sovereign power of a Nation, peace can no longer be said to be the object of its desire.  There is always an opportunity for diplomacy, of course, but that must be taken by that nation backing the transgressors, not by those being invaded.

Those doing the invasion, not being in uniform, not adhering to the standards of law of nations or the rules of war, are now conducting a military operation outside of both.  This moves us back to Book III, the one on warfare and who gets to make it:

§ 4. It belongs only to the sovereign power.(137)

As nature has given men no right to employ force, unless when it becomes necessary for self defence and the preservation of their rights (Book II. § 49, &c.), the inference is manifest, that, since the establishment of political societies, a right, so dangerous in its exercise, no longer remains with private persons except in those encounters where society cannot protect or defend them. In the bosom of society, the public authority decides all the disputes of the citizens, represses violence, and checks every attempt to do ourselves justice with our own hands. If a private person intends to prosecute his right against the subject of a foreign power, he may apply to the sovereign of his adversary, or to the magistrates invested with the public authority: and if he is denied justice by them, he must have recourse to his own sovereign, who is obliged to protect him. It would be too dangerous to allow every citizen the liberty of doing himself justice against foreigners; as, in that case, there would not be a single member of the state who might not involve it in war. And how could peace be preserved between nations, if it were in the power of every private individual to disturb it? A right of so momentous a nature, — the right of judging whether the nation has real grounds of complaint, whether she is authorized to employ force, and justifiable in taking up arms, whether prudence will admit of such a step, and whether the welfare of the state requires it, — that right, I say, can belong only to the body of the nation, or to the sovereign, her representative. It is doubtless one of those rights, without which there can be no salutary government, and which are therefore called rights of majesty (Book I. § 45).

Thus the sovereign power alone is possessed of authority to make war. But, as the different rights which constitute this power, originally resident in the body of the nation, may be separated or limited according to the will of the nation (Book I. § 31 and 45), it is from the particular constitution of each state, that we are to learn where the power resides, that is authorized to make war in the name of the society at large. The kings of England, whose power is in other respects so limited, have the right of making war and peace.1 Those of Sweden have lost it. The brilliant but ruinous exploits of Charles XII. sufficiently warranted the states of that kingdom to reserve to themselves a right of such importance to their safety.

That step of saying that the citizens have acted in accordance with the sovereign power is one that changes the activities of those citizens and gives them military legitimacy.  They are not legitimate military actors, however, by any standard and any future actions by such non-military actors is one that comes under law of nations as well:

§ 34. Na-

Nations that are always ready to take up arms on any prospect of advantage, are lawless robbers: but those who seem to delight in the ravages of war, who spread it on all sides, without reasons or pretexts, and even without any other motive than their own ferocity, are monsters, unworthy the name of men. They should be considered as enemies to the human race, in the same manner as, in civil society, professed assassins and incendiaries are guilty, not only towards the particular victims of their nefarious deeds, but also towards the state, which therefore proclaims them public enemies. All nations have a right to join in a confederacy for the purpose of punishing and even exterminating those savage nations. Such were several German tribes mentioned by Tacitus — such those barbarians who destroyed the Roman empire: nor was it till long after their conversion to Christianity that this ferocity wore off. Such have been the Turks and other Tartars — Genghis Khan, Timur Bec or Tamerlane, who, like Attila, were scourges employed by the wrath of Heaven, and who made war only for the pleasure of making it. Such are, in polished ages and among the most civilized nations, those supposed heroes, whose supreme delight is a battle, and who make war from inclination purely, and not from love to their country.

That is what such nations are, are they not?  The ones that incite their people to kill not to protect society, not to protect territory or property, not to any sane reason and without justification.  These are so-called 'rogue nations', although getting modern man to understand that civilization is at threat from such nations has been difficult, if not impossible to do.  When private individuals take to war with no sovereign grant or oversight, no sovereign accountability, that is unlawful war:

§ 67. It is to be distinguished from informal and unlawful war.

Legitimate and formal warfare must be carefully distinguished from those illegitimate and informal wars, or rather predatory expeditions, undertaken either without lawful authority or without apparent cause, as likewise without the usual formalities, and solely with a view to plunder. Grotius relates several instances of the latter.⁵ Such were the enterprises of the grandes compagnies which had assembled in France during the wars with the English, — armies of banditti, who ranged about Europe, purely for spoil and plunder: such were the cruises of the buccaneers, without commission, and in time of peace; and such in general are the depredations of pirates. To the same class belong almost all the expeditions of the Barbary corsairs: though authorized by a sovereign, they are undertaken without any apparent cause, and from no other motive than the lust of plunder. These two species of war, I say, — the lawful and the illegitimate, — are to be carefully distinguished, as the effects and the rights arising from each are very different.

§ 68. Grounds of this distinction.

In order fully to conceive the grounds of this distinction, it is necessary to recollect the nature and object of lawful war. It is only as the last remedy against obstinate injustice that the law of nature allows of war. Hence arise the rights which it gives, as we shall explain in the sequel: hence, likewise, the rules to be observed in it. Since it is equally possible that either of the parties may have right on his side, — and since, in consequence of the independence of nations, that point is not to be decided by others (§ 40), — the condition of the two enemies is the same, while the war lasts. Thus, when a nation, or a sovereign, has declared war against another sovereign on account of a difference arisen between them, their war is what among nations is called a lawful and formal war; and its effects are, by the voluntary law of nations, the same on both sides, independently of the justice of the cause, as we shall more fully show in the sequel.⁶ Nothing of this kind is the case in an informal and illegitimate war, which is more properly called depredation. Undertaken without any right, without even an apparent cause, it can be productive of no lawful effect, nor give any right to the author of it. A nation attacked by such sort of enemies is not under any obligation to observe towards them the rules prescribed in formal warfare. She may treat them as robbers,^(146a) The inhabitants of Geneva, after defeating the famous attempt to take their city by escalade,⁷ caused all the prisoners whom they took from the Savoyards on that occasion to be hanged up as robbers, who had come to attack them without cause and without a declaration of war. Nor were the Genevese censured for this proceeding, which would have been detested in a formal war.

We call these modern day actors: terrorists.  They are in the same class as pirates as the objective of war when done by private individuals without sovereign grant is not material: power, lust, greed, or just wanting to see the world burn are all one and the same in Private War which is illegitimate in all circumstances.  A Nation condoning and sponsoring such is an enemy of all mankind.

Unfortunately the State of Iran and Egypt are now in that category and are abusing their sovereign power meant to protect their people and using that power to inspire the activity of war to no lawful effect and no good end for mankind.

I have no hatred for the people of Iran or Egypt.

Their governments are monsters as their actions now tell you that.

It is civilized to wish that the people of these Nations had governments worthy of them to seek peace for them amongst their fellow nations of the Earth.  Such is not the case and the remedy has already been stated, if one can but read and reason.

The other form of war and the National toolkit - part 2

Part of the problem that America has with trying to deal with things that are relatively chaotic is the utilization of the 'Ivory Tower' approach to things. This leads to strange disassociations between the Academia, Pundit class and the People as a whole. One of these I looked at is in The Military, The Elites and You and I will pick it out as it is very, very telling about this subject. Before venturing into new military ventures, the Chairman of the Joint Chiefs had a number of essays on Strategy written as part of a competition. One of them was particularly interesting in showing the disparity between the understanding of the cost of war between the Miliarty, the Elite pundit class and the American People, and some of it was a bit surprising because it looked at the expectation of what the American People would support in the way of casualties:

CHAIRMAN OF THE JOINT CHIEFS OF STAFF Strategy Essay Competition Essays 2000

Casualty Aversion: Implications for Policymakers and Senior Military Officers by Charles K. Hyde

Citation: Peter D. Feaver and Christopher Gelpi, “A Look at Casualty Aversion: How Many Deaths Are Acceptable? A Surprising Answer,” The Washington Post, November 7, 1999, B3.

Mission Name	Military Elite	Civilian Elite	Mass Public
Stabilize Congo	284	484	6,861
Prevent Iraqi WMD	6,016	19,045	29,853
Defend Taiwan	17,425	17,554	20,172

Just like with Socialists there is a Theory and Practice Conundrum at work here. The most striking example is that in each of the three proposed military ventures, the American People expected casualties and LOTS of them to accomplish anything. The most conservative in viewing what the American People would support was *not* the Civilian Elite pundits but the Military Elite pundits. Even so it is only be the most serious venture, that of Defending Taiwan, that the actual acceptable deaths in expectation of a venture gets somewhere in the vicinity of the Mass Public view by the two Elite classes. Even then they are hitting at 85% or so of the expectations of the Mass Public. Even more surprising in 1999 is that the acceptable casualties in removing WMD capabilities from Iraq by the Elites come nowhere close (20% and 65% Military and Civilian Elites respectively) to what the Mass Public expected. That number of nearly 30,000 dead in Iraq is not only beyond what was actually seen by a full order of magnitude but well WITHIN what the Military and Civilian Elites expected the US Public to handle. Something has gone seriously wrong when the supposed 'Elites' no longer can even understand what the meaning of 'sacrifice' IS to the American Public.

Obviously something has seriously impacted the 'Theories' of the Elites when tested against the litmus test of the Public. This is not all single source derived: there is more than one set of factors involved, but how they are involved and why they show up like this is most disturbing. America used to have better leadership that was more in-tune with the general population and knew how to understand these things. Just like the Socialist problem, our own Elites have picked up this problem and finding out where that started and why looks to become a very important issue if we wish to remain a Nation.

In part this is due to the shift, over the last 40 years, from the West being manufacturing Nations to becoming service Nations, where the service sector accounts for as much or more than the manufacturing sector of the economy. This is not something seen since the era of State based slavery where the service sector consisted of slaves and very few 'freemen' or 'yeomen' that would work in such areas competitively. The shift after the age of enlightenment to removing slavery and its dehumanizing effects and shifting such jobs to the socially poor and uneducated created an underclass of those that were barely above the position of slave but below that of the 'middle class'. Industrialization before the 20th century would start the shift from agrarian based economies with numerous poor to manufacturing based economies with individuals being better off in terms of wealth and longevity than their agrarian counterparts, but still considered to be in the 'lower class'. That economic pressure and requirement for large amounts of unskilled labor at factories that would garner higher cost per unit of work input would be an underlying cause of the US Civil War, beyond the societal differences and outlook of the humanity of those held as slaves. After the Civil War the shift from agrarian to industrial jobs would transform the Nation in less than 70 years to the point where manufacturing was the predominant driving force of the US economy.

While the US had experienced the first industrialized war in the US Civil War, our views on warfare would remain more rooted in the Antebellum period than in the Industrialized until WWI. That transformation to industry backed warfare on a mass scale did not shift into the diplomatic arena, either, which lagged even behind the political arena. The Philippine-American war by being, essentially, a COIN conflict after the relatively short war that preceded it, would also change our views on warfare, but only in the negative stance of anti-Imperialism. The writers of that era that were against that conflict, amongst them was Mark Twain, would rail against it as Imperialist in nature and view and Congress would reflect that on the pressure to shift civil affairs to local populations. Cuba and Puerto Rico, being geographically closer, would look towards that and US protection in the hemisphere, while the Philippines would gain independence while still having a US presence there. None of that greater Spanish-American war, however, was fought with the full industrial backing of the Nations involved, and so the world would blissfully ignore that shift seen in the Civil War until 1914. That war of mass production would yield mass deaths on the battlefield and yet also shift the emphasis of warfare from the actual battlefield to the sources of sustaining such wars: resources and populations.

To many this seemed a permanent shift in how warfare should be viewed, away from small, professional armies and to mass armies via conscription. Those mass armies, which could be fielded but not well supplied during the Napoleonic era of war, could now be continuously supplied during the industrialized era. The US would move back to its pre-WWI size for armed forces, and be lucky to continue on with a number of veterans from that war that would be able to adapt to new forms of warfare that would show up between the wars. Societies, however, remained like many generals, stuck in the 1914-18 mode of war, which properly horrified them as warfare had shifted its stance as a martial way to determine borders or put down uprisings, to something that could endanger entire Nations and societies. Smaller conflicts would continue and only the very poorly thought out US intervention in Haiti from 1915-34 would remind the Nation of these mid-sized wars and leave a bad taste in everyone's mouth for its utter failure. Before Vietnam there was Haiti, and that experience is one that the Nation did not learn from as it was mainly forgotten during that inter-war period. That was the second, major COIN conflict the US was involved in and it failed due to politics and shifting priorities and a basic misunderstanding of what needed to be done, if it could be done at all.

WWII would bring mechanized industrial war that would lead to Total War and the specter of that changing into Nuclear War. After it the US was confronted by the existential threat of Communism which would expend its economy endlessly on arms but offer very little to its own people in return. To confront that the US only partially demobilized after WWII but retained the Draft so as to have an expanded military that could increase in volume at need. Small wars suddenly became 'brushfire wars' that could threaten the polar stability of geopolitics, and each side worked to make sure that they did not expand beyond limited scope. South Korea would put the Communist Bloc of China and the USSR against a UN coalition that could be created once the USSR and China walked out of the Security Council. That war was a direct polar confrontation using the proxies of North and South Korea backed by arms and personnel from the two polar sides. Not only did the Chinese military get involved, but the Soviet air force as well, creating the first opportunity for a relatively minor war, that would have been a COIN war at any time before 1940, suddenly expand into a global confrontation. China was unwilling to allow a Western client state to be on its borders and responded to make that a very real possibility and all sides were satisfied with an unsatisfactory ceasefire and the original borders to add into a Cold War stalemate.

The US would also be having its first troops going into Vietnam which would prove out to be a traditional war started by unconventional means that shifted to conventional and then back to unconventional and finally lost by withdrawal of the US. That shift from guerrilla war as proxy for the USSR and then to direct backing via North Vietnamese arms went unnoticed by the US population until the realization hit home that there was fighting and killing going on with a good size of US forces and the US was not pressing this home to victory. When that shift to NVA military forces hit, the US was well equipped to respond and still practice COIN work, but the media that reported on it had been blinded by WWII and the Korean War into thinking that all wars that did not involve direct Large Power conflicts would be easily won via conventional means. Between 1934 and the final failure in Haiti and 1967, almost two generations of reporters had passed through the media without ever experiencing such a conflict and from 1910, that would shift to being nearly four generations since the last successful mid-scale US COIN conflict. No one could properly report on it from the US media as no one knew what a COIN war actually looked like when fought by the US. The US media was crying 'defeat' when both the COIN war against the Viet Cong and the major conventional war against the NVA had been broken in the favor of the US and South Vietnam. US interdiction to stop re-supply of insurgents and to end conventional build-up was seen as a 'never ending' war while, in fact, it had the effect of breaking North Vietnamese morale. Only once the US media turned on the war did that interior support in North Vietnam shift to one of thinking that the US could be forced to leave just by continued low-level fighting.

While the US public had never seen the means of post-WWII conventional war until Vietnam and were horrified by it, they also were used to thinking in the Napoleonic terms and Law of Nations terms about how to conduct such wars. This is, partially, a reflexive action to the brutality of Total War and an attempt to bring some civilized outlook back into warfare. That outlook served well in WWII, even when relatively civilized but highly industrialized enemies acted in brutal fashion towards POWs, as was the case with Japan. Against enemies that had almost NO industrial capability and that were supplied by Large Power Nations, the US population would not make the mental shift to call such activities as they had been known by in previous eras: Privateering by Nations.

When one supports a military organization composed of self-guiding private citizens under their own means to fight wars for you, that is Privateering even without capture and prizes involved. Mercenaries will fight only for money and shift sides based on payment, not based on ideology. Privateers adhere to ideology and their Nation but require payment to 'join in the fighting' or for them to volunteer services and then fight under the banner of their Nation in uniform and be identified as such a fighter. North Korea, North Vietnam and Cuba all served in that role for the USSR and each received direct payment in cash, weapons and training to confront Western powers. As each of these was ideologically aligned with the USSR (or at least anti-US or anti-Western) and would fight given money and arms, they did so. Before the modern era this concept of Privateering would generally relate to groups below the Nation State level in the form of citizen-privateers that would be for high seas work or in small companies for ground combat. Going back into history this is not unknown, but it was never the main mode of warfare. This goes beyond the 'mutual defense pact' form of foreign policy that Nations used prior to WWI (and which would, ultimately, drag in large Nations when their smaller allies, that they swore to defend, were attacked) to the utilization of paid-for ideologically oriented small Nation proxies to front a war by the larger Nation. This is an inexact analogy, at best, but does offer some insights into how war is seen by National leaders and by populations.

As seen during the Cold War with Privateer-Proxy Nations fighting for their Large Nation backers on a frequent basis this concept would grow to include Nations who not only have sovereign right to wage war but that could require actual payment and material to join in such a conflict. By putting ideology first and believing that this was the single driving force amongst Communist regimes, the hard cash and material payments went unnoticed and unregarded by most, and yet such wars would have been absolutely impossible without them. This is not just alignment by treaty for 'self-protection', but a movement from war fought for Nationalist reasons to one purely based on ideological ones. When Nations cannot sustain a large, indigenous military capacity and can find a Large Nation backer willing to pay for that smaller Nation to fight in a 'proxy war', one is no longer talking about standard Nationalist warfare, but to paid-for warfare that became Transnationalist in scope, with the Privateering organization size shifting up beyond companies to that of Nations. By not having employed Privateers for nearly a century by the point of Vietnam, the media and the US public couldn't even define what that meant and lumped it in with 'piracy' being unable to see the defining elements of a different form of warfare.

Still does, come to think of it.

Privateering is 'the other way of war' that the US Constitution gives to Congress in Article I, Section 8. It is the direct Congressional Authorization to US citizens to be armed with the weapons of war, be held accountable to the laws of war and to fight as the Nation needs you to as directed by the President. Congress authorizes Privateers and gives the bonus of their being able to capture enemy ships, equipment and stores for auction as a form of 'profit' to those individuals and companies that take up such work. That is a 'pay for performance' concept along with 'bonus' for successfully capturing those things designated as needing interdiction along with their means of conveyance. It is, inherently, economic warfare and the one means of directly confronting Nations economically that is handed to Congress along with the major force warfare power.

In previous eras Privateers have tended to turn into Pirates due to lack of direct accountability: ships that had months of sailing time were very hard to keep in-line and when they turned Pirate the very information might take a year or more to get back to the home Nation so that it can respond. Privateers who did turn Pirate had a limited lifespan as they were no longer practicing State sanctioned war, but were International Outlaws waging war to their own ends. With mass armies, industrialized warfare and swift communication, the need for Privateers diminished to near nothing, although Pirates still, to this day, exist and threaten commerce not only on the high seas, but on land as well.

That was the 'civilizing' effect of the 20th century by shifting away from Privateering and towards Nation state war as the only means of war: making wars larger, bloodier, nastier, and creating higher death tolls via the use of weaponry refined enough so that a handful of individuals could kill tens if not hundreds of individuals in minutes. The Cold War would center on large-scale Nation State based warfare and, at the same time, due to the killing scope of thermonuclear weapons, make it extremely deadly and unlikely that either side would want to wage such a conflict. By centralizing National thoughts on such things, and worrying about them, and in attempting to push ALL conflicts under that rubric, citizens of Nations started to level out warfare in their minds so that all combat became equal, no matter who waged it or why.

Because Privateering in its older sense, not the Communist 'pay off ideological friends to fight for you so if anyone gets nuked they will be the first and not me' sort of deal, involved the Congress utilizing its international commerce regulation powers, it falls directly under DIME as a tool. That is because the main elements of it are: Information, Military and Economic. The President, put in charge of their utilization for the Nation puts in: Diplomatic. This completes the entire suite of associational elements to make this a DIME tool. Yes, before the modern, industrialized age one can put such a thing into the 18th century context of the power of a Nation and find that a DIME tool for warfare existed and was acknowledged as a legitimate form of warfare.

Without this form of warfare being made available via Congress, these 'medium sized' conflicts would embroil the armed forces of the United States and our Allies to confront the third-world Nations fronting for the Soviet Union. By supplying such Nations with arms, equipment and other war material, the basis of starting those conflicts went unaddressed. The logic of total war requires removing the source of war material supplies by attacking them, thus seeing the population of a Nation that is in the manufacturing sector as a legitimate target. That could not be done in the cases of Vietnam or Korea as the backing was via this thing known as 'commerce'. To unlimber the armed forces of the United States requires a declaration of war or other major commitment by Congress which gives sweeping power in all areas of warfare, thus making the bloodiest, nastiest and most brutal form of warfare the ONLY option in the DIME toolkit. Training, supplying and supporting an ally under attack is all well and good, but when Congress is unwilling to give its full commitment to war and the foreign policy set by the President is to still do something more than supply and train, Congress must give some view on its sole part of foreign policy and that is via trade regularization with foreign nations. That is the commerce form of warfare and the tool for that is not, of necessity, the armed forces of the Union but the citizenry that is willing to take up arms to end such commerce of enemies that threaten our allies and our trade with allies. By authorizing such citizens to fight under the banner of the Union in recognizable uniform the President then gains the ability to set tasks to those citizens with set pay and/or prize capture.

America's primary COIN form, to be utilized overseas when the larger armed forces of the Union are not needed are Privateers. A President that delineates the trade that is harming our allies or attacks upon US commercial interest overseas can succinctly name groups, individuals and even Nations as having an adverse effect upon the US and its allies in specific areas and that the US will utilize its Privateering ability to counter that. Via this spectrum of warfare view, two conflicts seen as relatively equivalent soon fall into different categories: Nation state warfare and Privateering warfare.

South Korea's defense required the troops of the Union to counter North Korea and its Chinese and Soviet backers - thus that was a prime form of Nation State warfare.

South Vietnam facing insurgents at the start in the late 1950's and early 1960's was one in which the Viet Cong (and similar allies) were supplied by trade. The response of the US is to supply, arm and train South Vietnamese by our armed forces and to seek Privateering groups to do the small forces work to knock out the supply lines. To counter small forces you use small forces given ability to be independent operators to go after specific types and goods of trade and the US gets to see who is supplying such goods and where their origin is. That evidence becomes a primary tool in DIME to hold the source Nations accountable, and ask them to end it as this is breaking the sovereignty of the Nation being attacked and that is an ally of the United States.

Supplying Nations to fight Public War, above board, is the goal of the concept of Nation states, so that such views are Publicly stated and held by Nations so that other Nations can understand what is going on.

Supplying 'insurgents', 'terrorists', 'freedom fighters' or any other group that has NOT declared themselves to be a sovereign Nation (by having been recognized as such by at least on other power or having put up government and accountability structures during their Public Civil War) is creating a Private War.

The guiding rules of how to assign reciprocity of punishment are set up in this part of Article I, Section 8 of the US Constitution:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

[..]

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

[..]

To make Rules for the Government and Regulation of the land and naval Forces;

These powers are specifically to address not only warfare but to give the Union ability to respond to lesser offenses against the Nation that are not a cause to directly go to war. Utilizing Law of Nations, which gets specific mention in the US Constitution, we can then get a view as to what these things actually are and how our Nation is to be guided by the forthright concept of being a Nation. Here then are the opening paragraphs in Book 2, Ch. 4 of that work:

§ 49. Right to security.
IN vain does nature prescribe to nations, as well as to individuals, the care of self-preservation, and of advancing their own perfection and happiness, if she does not give them a right to preserve themselves from every thing that might render this care ineffectual. This right is nothing more than a moral power of acting, that is, the power of doing what is morally possible — what is proper and conformable to our duties. We have, then, in general, a right to do whatever is necessary to the discharge of our duties. Every nation, as well as every man, has, therefore, a right to prevent other nations from obstructing her preservation, her perfection, and happiness, — that is, to preserve herself from all injuries (§ 18): and this right is a perfect one, since it is given to satisfy a natural and indispensable obligation: for, when we cannot use constraint in order to cause our rights to be respected, their effects are very uncertain. It is this right to preserve herself from all injury that is called the right to security.

§ 50. It produces the right of resistance;
It is safest to prevent the evil when it can be prevented. A nation has a right to resist an injurious attempt, and to make use of force and every honourable expedient against whosoever is actually engaged in opposition to her, and even to anticipate his machinations, observing, however, not to attack him upon vague and uncertain suspicions, lest she should incur the imputation of becoming herself an unjust aggressor.

§ 51. and that of obtaining reparation;
When the evil is done, the same right to security authorizes the offended party to endeavour to obtain a complete reparation, and to employ force for that purpose if necessary.

§ 52. and the right of punishing.
Finally, the offended party have a right to provide for their future security, and to chastise the offender, by inflicting upon him a punishment capable of deterring him thenceforward from similar aggressions, and of intimidating those who might be tempted to imitate him. They may even, if necessary, disable the aggressor from doing further injury. They only make use of their right in all these measures, which they adopt with good reason: and if evil thence results to him who has reduced them to the necessity of taking such steps, he must impute the consequences only to his own injustice.

§ 53. Right of all nations against a mischievous people.
If, then, there is anywhere a nation of a restless and mischievous disposition, ever ready to injure others, to traverse their designs and to excite domestic disturbances in their dominions, — it is not to be doubted that all the others have a right to form a coalition in order to repress and chastise that nation, and to put it for ever after out of her power to injure them. Such would be the just fruits of the policy which Machiavel praises in Cæsar Borgia. The conduct followed by Philip II. king of Spain, was calculated to unite all Europe against him; and it was from just reasons that Henry the Great formed the design of humbling a power whose strength was formidable, and whose maxims were pernicious.

The three preceding propositions are so many principles that furnish the various foundations for a just war, as we shall see in the proper place.

§ 54. No nation has a right to interfere in the government of another state.
It is an evident consequence of the liberty and independence of nations, that all have a right to be governed as they think proper, and that no state has the smallest right to interfere in the government of another. Of all the rights that can belong to a nation, sovereignty is, doubtless, the most precious, and that which other nations ought the most scrupulously to respect, if they would not do her an injury.(105)

[..]

§ 57. Right of opposing the interference of foreign powers in the affairs of government.
After having established the position that foreign nations have no right to interfere in the government of an independent state, it is not difficult to prove that the latter has a right to oppose such interference. To govern herself according to her own pleasure, is a necessary part of her independence. A sovereign state cannot be constrained in this respect, except it be from a particular right which she has herself given to other states by her treaties; and, even if she has given them such a right, yet it cannot, in an affair of so delicate a nature as that of government, be extended beyond the clear and express terms of the treaties. In every other case, a sovereign has a right to treat those as enemies who attempt to interfere in his domestic affairs otherwise than by their good offices.

In those paragraphs are the rights of sovereign Nations not to be interfered with by outsiders. In para. 50 those that make injury or attempt to need not be a Nation. Any group that or organization that attempts to do that gives the right of response to those being injured. Then in 51 the right of force is given, and that, predicated on 50, is not just against Nations. From 52 is the right to guarantee FUTURE security via attacking any that so injure a Nation in chastisement. From diplomacy against Nations to the use of arms against Nations unwilling to utilize diplomacy in a manner to address such ills, or the plain right to attack those that have attacked, the right of a Nation to be secure in its internal affairs is sacrosanct.

The Korean War cannot be lumped in with Vietnam on a size or scale concept as they were two different affairs at start. Korea was a willful Nation attacking its neighbor to overrun it, while Vietnam was the interference of one Nation (or set of Nations) in the affairs of another without any due process between Nations to recognize it. The first was lawful war, the second unlawful due to the Nature of its starting point. Both required a response from the US, and they got the exact, same response of sending in the armed forces. In the first case that is wholly justified to help a friend and ally under attack. In the second, the scaling up of the armed forces from an advisory and teaching role to one of direct combat was ill-advised without first calling attention not only to the immediate source of destabilization, that being North Vietnam, but to the overall source of arms and equipment, that being the USSR and holding *both* accountable. The duty of the armed forces was not to decide that: that was a political matter between the Executive and Legislative branches. Any failure in Vietnam is directly traceable to the two branches of government guiding such actions having not communicated with each other and neither of them properly doing their jobs. With fully presented evidence of Soviet utilization of North Vietnam for destabilizing its neighbors, the first response of a minimal amount of troops to help bolster the South was a good one, if taken in consultation with each other. As the form of warfare was economically based and endangering our trade with an ally, Congress could and should have stepped into its role of defending *that* via authorizing citizens to interdict such trade and the President to give specific areas to remove it while pursuing further diplomatic work by exposing such evidence of interference and putting forward that both the immediate and ultimate backers were interfering in the sovereignty of South Vietnam, an ally of the US, and we would treat it as such in all venues and that the President and Congress would seek to interdict such trade that enables this as a first, and lowest measure to hold the parties accountable.

Within Book 3, Ch. III on the Just Causes of War, we find that not only are just causes necessary but proper motives:

§ 29. Both justificatory reasons and proper motives requisite in undertaking a war.
As the nation, or her ruler, ought, in every undertaking, not only to respect justice, but also to keep in view the advantage of the state, it is necessary that proper and commendable motives should concur with the justificatory reasons, to induce a determination to embark in a war. These reasons show that the sovereign has a right to take up arms, that he has just cause to do so. The proper motives show, that in the present case it is advisable and expedient to make use of his right. These latter relate to prudence, as the justificatory reasons come under the head of justice.

§ 30. Proper motives.
I call proper and commendable motives those derived from the good of the state, from the safety and common advantage of the citizens. They are inseparable from the justificatory reasons, — a breach of justice being never truly advantageous. Though an unjust war may for a time enrich a state, and extend her frontiers, it renders her odious to other nations, and exposes her to the danger of being crushed by them. Besides, do opulence and extent of dominion always constitute the happiness of states? Amidst the multitude of examples which might here be quoted, let us confine our view to that of the Romans. The Roman republic ruined herself by her triumphs, by the excess of her conquests and power. Rome, when mistress of the world, but enslaved by tyrants and oppressed by a military government, had reason to deplore the success of her arms, and to look back with regret on those happy times when her power did not extend beyond the bounds of Italy, or even when her dominion was almost confined within the circuit of her walls.

Vicious motives are those which have not for their object the good of the state, and which, instead of being drawn from that pure source, are suggested by the violence of the passions. Such are the arrogant desire of command, the ostentation of power, the thirst of riches, the avidity of conquest, hatred, and revenge.

By taking a least intrusive approach to sustaining the sovereignty of an ally, and using means less than outright warfare, the United States possesses a spectrum of capability to meet aggressors and demonstrate that they are, indeed, aggressors at base and that by using minimum means a civilized pathway out of such aggression is sought. In the concept of DIME, this is a shift via the Military to means less than war but still aggressive on defense via Economic means using Information to enable Diplomacy to work out a solution to a problem. None of these actions puts a Nation at war, although there may be some fighting going on in pursuit of it. Most Nations, even aggressive ones, do not want outright warfare and do not seek this out as a means to further their ends at start. By putting military equipment interdiction on North Vietnam, if it can be caught and stopped by authorized civilians working in a military capacity, we also put court jurisdiction over judging if each case has been done properly and in accordance with the directives of Congress and the President.

This is different than a pure embargo, which tends to be the only choice left to modern Nations, as it utilizes civilians to find necessary shipping intelligence, verify it and act upon it in accordance with the restrictions set by Congress and the President. This is also different than direct warfare, as it is a commerce power to capture and interdict trade of certain goods based on the ability of citizenry to find and stop it. Such citizens can seek leeway and help, on land and at sea, via other Nations friendly to such things or willing to see such trade ended. Citizens take up the responsibility to act within the bounds they are given, and yet are more free in their leeway as the exacting structure of the armed forces is not upon them. By calculating risks and rewards, citizens weigh their activities in risking their lives for the needs of the Union.

Flipping this to the immediate era of COIN, we come across the form of warfare known as Private War. All of those that are not Nations that take up the means of war against a Nation are waging Private War. It is Private not in the stance of publicity, of which that can be voluminous, but in these not being Public Enemies from a Nation with the backing of a Nation. A Public Enemy is seen thusly in paragraph 69:

§ 69. Who is an enemy.(147)
THE enemy is he with whom a nation is at open war. The Latins had a particular term (Hostis) to denote a public enemy, and distinguished him from a private enemy (Inimicus). Our language affords but one word for these two classes of persons, who ought, nevertheless to be carefully distinguished. A private enemy is one who seeks to hurt us, and takes pleasure in the evil that befalls us. A public enemy forms claims against us, or rejects ours, and maintains his real or pretended rights by force of arms. The former is never innocent; he fosters rancour and hatred in his heart. It is possible that the public enemy may be free from such odious sentiments, that he does not wish us ill, and only seeks to maintain his rights. This observation is necessary in order to regulate the dispositions of our heart towards a public enemy.

Thus a Private Enemy are private individuals in their groups taking up the means of war to their own ends. We are most used to Piracy in this, in which Nationality does not matter so much as vulnerability and amount of spoils, but the class of Private War holds Piracy, not Piracy holding Private War. This is gone through in the opening paragraphs of Book III, Chapter 1, paras 1-5. Because terrorists are private individuals using the weapons of war to wage war against Nations, they are all taking part in Private Warfare. Many of them also attack shipping (both in ports and on the high seas) which is Piracy. Those that wage Private War are not just in doing so, not being Nations and have no proper motives by not declaring sovereignty, rule of law, accountable military structure and identifying themselves as a Nation. By not being a Nation, or attempting to be a Nation in the immediate sense, these individuals have stepped beyond the Law of Nations and into the Law of Nature. Nor can any justifications be considered *just* as they refuse to do those things that would allow justice to prevail.

Also note that those waging Private War cannot declare peace: they are not a Nation and that, too, is the sole realm of Nations. Even in disbanding and trying to show that the organization they had is no more, the individuals involved are still considered to be at war. Private War only ends when all individuals professing it are put to an end or delivered up for justice to determine their fate. These individuals cannot make a treaty for they have no National basis for doing so and being held accountable as a Nation for such a treaty.

From that, those attacked by those making Private War need not declare war to go after such individuals with the full power of warfare. By stepping outside the realm of Nation to Nation justice and the rights of Nations to be secure under the Law of Nations, those joining up against a Nation without the backing of any Nation have made a life-long endeavor of that work. A Nation so attacked may do *anything* to rid the planet of those that attacked it: the Law of Nations exists between Nations in their adherence to being Nations so that a threat to any single Nation by those waging Private War is a threat to all Nations. Vattel makes this perfectly clear in the following paragraphs in Book III:

§ 67. It is to be distinguished from informal and unlawful war.
Legitimate and formal warfare must be carefully distinguished from those illegitimate and informal wars, or rather predatory expeditions, undertaken either without lawful authority or without apparent cause, as likewise without the usual formalities, and solely with a view to plunder. Grotius relates several instances of the latter.5 Such were the enterprises of the grandes compagnies which had assembled in France during the wars with the English, — armies of banditti, who ranged about Europe, purely for spoil and plunder: such were the cruises of the buccaneers, without commission, and in time of peace; and such in general are the depredations of pirates. To the same class belong almost all the expeditions of the Barbary corsairs: though authorized by a sovereign, they are undertaken without any apparent cause, and from no other motive than the lust of plunder. These two species of war, I say, — the lawful and the illegitimate, — are to be carefully distinguished, as the effects and the rights arising from each are very different.

§ 68. Grounds of this distinction.
In order fully to conceive the grounds of this distinction, it is necessary to recollect the nature and object of lawful war. It is only as the last remedy against obstinate injustice that the law of nature allows of war. Hence arise the rights which it gives, as we shall explain in the sequel: hence, likewise, the rules to be observed in it. Since it is equally possible that either of the parties may have right on his side, — and since, in consequence of the independence of nations, that point is not to be decided by others (§ 40), — the condition of the two enemies is the same, while the war lasts. Thus, when a nation, or a sovereign, has declared war against another sovereign on account of a difference arisen between them, their war is what among nations is called a lawful and formal war; and its effects are, by the voluntary law of nations, the same on both sides, independently of the justice of the cause, as we shall more fully show in the sequel.6 Nothing of this kind is the case in an informal and illegitimate war, which is more properly called depredation. Undertaken without any right, without even an apparent cause, it can be productive of no lawful effect, nor give any right to the author of it. A nation attacked by such sort of enemies is not under any obligation to observe towards them the rules prescribed in formal warfare. She may treat them as robbers,(146a) The inhabitants of Geneva, after defeating the famous attempt to take their city by escalade,7 caused all the prisoners whom they took from the Savoyards on that occasion to be hanged up as robbers, who had come to attack them without cause and without a declaration of war. Nor were the Genevese censured for this proceeding, which would have been detested in a formal war.

Private War is unlawful war and not to be confused with mere unjust and unmotivated war by a Nation, which still uses all of the proper means and reciprocities between Nations to fight such. As this is the basis of all diplomacy and all understanding by Nations, this means that those waging Private War fall outside of the Geneva Conventions, and any attempt to change that, as was done in 1977, makes this civilized world *less* civilized by granting any dignity to those that take up arms unlawfully. Which is one of the many reasons the US refuses to sign it: it violates the US Constitution which, itself, is based on the Law of Nations.

From that, every citizen, every Privateer, every member of the armed forces must work to end the Private Enemies of a Nation. As Congress has seen fit to classify those giving mere aid and comfort to such Private Enemies in the case of Piracy as only deserving 10 years if they are caught on the civil side of things, then it, too, should draft such law to address the Private Enemies of the Nation. For those that engage in Piracy, it is now life imprisonment, as well as those engaging directly with such, and there is no reason that Congress, under its Article I, Section 8 powers should not address Private Enemies likewise.

COIN then is not *just* an area delimited problem for Private Enemies as they may show up anywhere in this era of cheap and easy long distance travel. As we do not have those laws, and they are simple, single sentences, not voluminous page works of impossible to define work like the current 'terrorism laws', they are easy to communicate and, because they are grounded in the Law of Nations, universal in scope. A price on the head of every member of al Qaeda is, indeed, the way to go as a *start*, but the threat posed by *any* organization waging Private War is deadly to all of mankind and the Nations we have formed. By being unable to state this clearly, by being unable to say that like with Piracy any Nation giving aid and help to those waging Private War have declared their Nation outlaw in doing so, we have become less civilized in the 20th century due to the era of large scale mass warfare that turned to Total War. The fine and splendid tools to try and deal with the bipolar world of the Cold War has now left Nations schizophrenic in being unable to state that Warfare is something that is lawful only for Nations and that any others practicing it are outlaws.

Over the past two years or so of writing I have seen a slow but steady trickle of those who understand this very, very basic notion of warfare that is *not* Declared War but hostilities meant to punish short of war. The National armed forces are not set up for this kind of 'other war': they are the hard and fast means to hold other Nations accountable for their actions when they endanger the peace of our Nation or those that are our allies and friends. The National armed forces build up via the common commitment of the Nation through taxes and industrial payments for specific needs in that realm. Terrorists, however, disavow this form of warfare and, as Lincoln would promulgate for the armies of the Union, when they are found on the battlefield they get summary justice as mere highway robbers or pirates during wartime: there is no judge nor jury on the battlefield and these ones get that summary decision when captured or voluntarily giving up in combat. These are not even spies that get a first glance to ensure that they are, indeed, not wearing a uniform upon claim of being a soldier for a Nation. This lesser form of conflict by those willing to accept provisional payment to be sent after the enemies of the Union are not soldiers of the Nation, but Citizens volunteering as they are to meet criteria set by Congress to receive the ability to fight under the flag and be held accountable to the Nation via its military laws. Many who are too sickly to be in the armed forces, can do *that* and use civilian means to compensate for their lacks and yet still serve a useful role in confronting the enemies of the Nation. In previous eras those that had merchant ships served on this basis, not only in the commercial realm but seeking the prize for capturing or eliminating enemy commerce. These things are openly declared hostilities by Congress and guided by the Executive: they are not mercenaries nor terrorists nor anything other than private Citizens willing to risk their lives for just reward in protecting the Nation.

Those numbers we saw at the beginning are a reflection of the basic American impulse towards understanding such sacrifice for the Nation: it sets aside the full force of Warfare and yet still recognizes the need for letting an enemy know they are being hounded. One of the things Privateers could do was to slip in amongst normal commerce and learn valuable information to find their goals. No Army or Navy on this planet that is an official National arm can do that: only private citizens can. Americans have come to expect sacrifice by individuals in the form of blood, limbs and lives expended to meet the Nation's goals. While the National government slips into disarray, and cannot remember its actual role in protecting the Nation, the Citizenry does, even when not directly taught these things and the education establishment tries to banish them. Citizenship is *not* an entitlement enterprise, but a duty to the Nation that includes one's life.

Those who wish this to be otherwise, that wish to be a mere parasite on the Nation and receive only all that is good from it, denounce this form of warfare as 'archaic and uncivilized', thus missing the point that this form of warfare was used multiple times by the US through its history and that its recent non-use is not because we have given it up on a permanent basis. As with any toolbox, the tools still sit there, gathering some dust but still fitting the nature of the Nation itself. Americans reject a 'draft' or 'conscription' to fight those waging Private War upon us. By putting forth that *only* the armed forces are to try these sorts of things we cut ourselves off from the deepest meaning of being a republic of free people: We accept the responsibilities of the Nation when government CAN NOT do some things.

That is why charity begins at home and NOT in the offices of Foggy Bottom in the State Department. Those individuals are clueless on what good works are and what they mean to those involved. That should be the last place to seek charitable projects, not the first.

Similarly the armed forces are to hold Nations at bay during times of extreme trouble for the Nation. These moderate to small wars of COIN venues are not the best place for those armed forces save in the clean-up and aftermath of a Nation state war. Confronting these enemies on a global basis takes a National view but not necessarily a high military view to get things done. Sending the armed forces on 'peace keeping' and 'Nation building' excursions hither and yon actually makes the Nation less safe as the People of the US are alienated from such missions. 'Stopping the killing' is all very noble, but that is not our goal - to be the World's Policeman. That is what those who are lazy wish: for the US to be the 'nice cop' and clean things up globally and take all the blame for it when that goes wrong. Unfortunately that requires quite a bit of Congressional authorization per place, and Congress has balked, repeatedly, on that issue over decades. The view of 'only' the armed forces now leaves us defenseless against those who take up the weapons of war for Private War by not seeing the civilized route of an armed populace being the mainstay protector of the Nation. Not every enemy that threatens the Nation is a Public Enemy, and the Private Enemies need dealing with just as the Public ones do.

So long as that tool goes unused in the National Toolbox, we will always be at peril from those who are no Nation that take up war against us. That is the civilized way to go, or so our founders put forward. Perhaps we have become less civilized than they were in understanding the threats to liberty and freedom, and the costs of the duty of citizens to maintain them.

This ends part 2 of the National toolkit

Legislation without Law: What hath FISA wrought?

Our present condition, is, Legislation without law;
wisdom without a plan;
a constitution without a name;
and, what is strangely astonishing,
perfect Independance contending for dependance.

The instance is without a precedent;
the case never existed before;
and who can tell what may be the event?

The property of no man is secure in the present unbraced system of things.

The mind of the multitude is left at random, and seeing no fixed object before them, they pursue such as fancy or opinion starts.

Nothing is criminal;
there is no such thing as treason;
wherefore, every one thinks himself at liberty to act as he pleases.

-Thomas Paine, Common Sense.
(courtesy the Gutenberg Project)

I have done some reformatting to let things stand out a bit in the above, as a minor artistic liberty. I do not think that Paine would object, overmuch.

The following is from ABC Political Radar of 27 SEP 2007:

Iraqi Insurgent FISA timeline: Probable Cause and the AG

ABC News' Jason Ryan Reports: The Acting Deputy Director of National Intelligence has sent a letter to the House Intelligence Committee revealing details on the gap in obtaining a FISA after 3 US soldiers were captured in Iraq on May 12.

The incident where the military was required to get a FISA warrant is a real world example in the FISA reform legislation being examined by Congress. The FISA legislation passed by Congress in August, the Protect Act, provided a fix to the government's ability to intercept foreign to foreign communications.

The letter from the acting Deputy Ron Burgess notes, "On May 14, 2007 as soon as the specific leads had been identified analysts began to compile all the necessary information to establish a factual basis for the issuance of a FISA court order as required by the emergency authorization provision of the statute."

"This case presented novel and complicated issues…This was the focus of the internal Executive Branch deliberations between 12:53pm and 5:15pm and the reason behind the decision to contact the Attorney General for emergency authority rather than the Solicitor General." Burgess wrote.

The letter to Intelligence Committee Chairman Rep. Silvestre Reyes also notes, "The Director used this example to illustrate the point that, due to changes in technology, the FISA statute extends privacy protections to foreign terrorists located outside of the United States merely because FISA makes a geographic distinction based on the location of the collection."

According to one intelligence official, US officials were attempting to intercept and review email and Internet communications of the insurgents. A career Justice Department official said tonight that the Attorney General needed to get to a secure phone and secure location before he could be briefed on the situation. A copy of the letter has been sent to the DC Assignment desk.

The key times attached to the letter:

May 12, 2007: :Three US solider were reported missing and believed to have been captured by Iraqi insurgents…SIGINT [signal intelligence] assets responded by dedicating all available resources to obtaining intelligence concerning the attack."

13& 14th: Intelligence community began to develop leads.

May 15: 10:00am "key US agencies met to discuss options for colleting additional intelligence."

10:52am: "NSA notified..DOJ of its desire to collect communications that require a FISA order…it was determined some FISA coverage already existed."

12:53pm to 5:15pm :"Administration lawyers and intelligence officials discussed various legal and operational issues associated with the surveillance."

5:15pm: DOJ's FISA Office the Office of Intelligence Policy and Review (OIPR) received a call formally requesting emergency authority to conduct surveillance."

5:30pm: "The OIPR attorney on duty attempted to reach the Solicitor General who was the Acting Attorney General while Attorney General Gonzales was addressing a United States Attorney's Conference in Texas. However the Solicitor General had left for the day and the decision was made to attempt to reach Attorney General in Texas."

OIPR contacted DOJ command center and requested to locate the Attorney General. "After Several telephone calls with the staff accompanying the Attorney General, the OIPR lawyers were able to speak directly with the Attorney General and brief him on the fact of the emergency request."

" At 7:18pm, the Attorney General authorized the requested surveillance, the Justice Department attorney's immediately notified the FBI."

"At 7:28pm, the FBI notified the key intelligence agencies and personnel of the approval."

"At 7:38pm, surveillance began."

Yes, you have read that correctly.

The lovely FISA concept covers terrorists in foreign lands communicating to each other and prevents the gathering of INTEL when US soldier's lives are at risk. This is covered in 50 USC Chapter 36, Section 1801 (and associated), text courtesy Cornell University Law School. In Section 1802 we get the procedures to do this:

(a)

(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—


(A) the electronic surveillance is solely directed at—


(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;


(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and


if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

Got that? So if you are in Iraq and need the assets of the greater INTEL Community to bear on a kidnap situation involving those illegally at war with the United States, and you are the Commander in the Field you first need to:

1) Contact your Command, either the overall commander for your operation, or the actual Command itself, in this instance CENTCOM.

2) That chain of command then, at sufficiently high level to review the assets available and finding that, indeed, in-Theater assets are not enough to meet this need, are to go to the Head of the Dept. of Justice, as US assets are being used for Foreign Intelligence gathering, or the President.

3) Dept. of Justice, getting a request for Emergency Authorization, which is the NSA contacting DoJ above.

4) To comply with FISA multiple lawyers from different Agencies (most likely FBI but also CIA, NSA, DIA, possibly DISA) need to discuss if this request can be done via an Emergency Authorization or needs to go through the normal 30 day waiting period....

At this point the decision of actually needing this to be done has already been determined by the Combatant Command (CENTCOM). This is a force-protection issue against those illegally at war with the US and that is the ONLY determination that should matter. As the Combatant Commands do not have enough manpower, equipment or infrastructure to perform National Intelligence, they need to rely upon the National Intelligence assets. By inserting FISA into this, the actual determination of need is taken out of the hands of the Field Commander and Commander of CENTCOM and has been delegated to civilian legal staff in Washington, DC.

I have a problem with this.

This is a clear crossing of the separation of powers mandated by the US Constitution so that the Commander of the Armies and the Navies, namely the President, can conduct war-time operations to protect the Armed Forces of the United States. Emergency tasking needs during Congressionally Authorized Use of Force situations should *not* have *any* legal overhead outside the UCMJ, and that should afford minimal protection to US Citizens in a warzone or area of high combat as those comms can be captured and used by *any* enemy to coordinate activities against the US Armed Forces.

An operation to task National Intelligence assets in the US can have an *automatic* compartmentation in the security structure, so that any Agencies or individuals needed can be tasked under military authorization for that need. By having separate tasking, utility and, indeed, information security overhead during that, all data is secured and recorded with full trail of why such information is needed, when it is gathered, what its sources are and what the resulting INTEL is. It is rare, indeed save for a very few individuals who have shifted allegiance to these illegal, predatory warfare organizations we call 'terrorist' that ANY US Citizen information should be picked up and those that are in that war zone or conducted as part of such an operation is SAFEGUARDED via the compartmentalization system. Any operation that does take more than a few days can be reported to the House and Senate Committees, probably both Intelligence and Defense, and that all information gathered is being done as necessary and will undergo legal review AFTER the operation is over, but done with the full knowledge of the Committees involved that it is going on.

By doing any other thing on the legal side, and by requiring that an operation taking place wholly overseas in a war zone needs to go through legal decisions by a group of legal counsel is *nuts*. These are the Armed Forces of the United States fighting to not only carry out the direct authorization of Congress but *also* looking to protect their own force structure and find their own people illegally captured and held by a predatory warfare organization.

So, by the time things finally get decided, over 6 hours have wandered by as *lawyers* discuss the legal niceties of protecting troops during wartime. The sweetness does not end *there* however.

5) With the actual concept that this NEEDED TO BE DONE, the folks at DoJ then try to find someone to sign off on it, which would be the Attorney General, as specified under law. But the Acting-AG was out for the day, by then and the AG, himself, was at a conference and had to be contacted.

Ever try to contact someone at a convention or conference these days? Most turn off their cellular phones and pagers, so as to not interrupt the conference. Otherwise you are caught like Rudy Giuliani actually trying to take a phone call while addressing large group of people or interrupting a speaker, or.... you get the picture. So the Acting-AG off, most likely on personal business after work and hard to get and the AG, himself, also hard to get....

6) One hour and forty eight minutes later they are able to TALK TO the AG! This is heading almost to 8 hours after the initial request was made.

7) The AG makes an Emergency Authorization and 20 minutes later the FBI can start helping out.

After that the AG and DoJ can take some time filling out the paperwork in 1804 and 1805, which looks to be a butt-load of paperwork to fill out with justification, needs and so on. Really the entire amount that needs to get generated and re-generated is awe inspiring. Plus in 1805, the AG has 72 hours to generate up this mound of documentation which, remember, he is given 30 DAYS to do as part of normal surveillance. That's right, you don't even get to put in an overview or summary, but the whole kit 'n caboodle... 30 DAYS of work in 72 hours. Or the surveillance STOPS.

Thomas Paine would call this 'legislating without law': Congress has no right to step in on the needs of the US Armed Forces for force protection and any US Citizen wandering around in a war zone or high combat area previously designated by the US has ZERO expectation of 'privacy' on personal communications. That is how war zones operate, in case folks have missed this in history class. When in one combatant forces will utilize any means they can to gain advantage, and when one side operates under NO Geneva Conventions or Hague Conventions and contravenes the Treaty of Paris 1856, it has gone a long way to indicate that it will stop at NOTHING to attack those that oppose them. Which includes NO respect for the rights of civilians, in case folks deploring IEDS/VBIEDS, chemical weapons attacks, sniping at just about anyone, and holding folks hostage for show and cutting their heads off for video cameras, (say, you folks trying to uphold the GC *have* noticed that, haven't you?) have forgotten what this enemy can do and will do to a mere civilian and that to try and have civilized forces *protect* you, your rights for private communications can be expected to be NIL.

Any law that is vague enough to not CLEARLY demarcate such activities in a war zone or area of military operations and *waive* normal procedures at the START of such law, is clearly intruding 'civil rights' into an arena where there are damned few and that respecting peace-time civil rights of those operating in, aiding or abetting illegal predatory war groups can expect to have themselves found out as doing so. Under *military law* as such individuals are taking part in war time operations. And such individuals who are *outside* the combat zone assisting such illegal organizations can *then* expect that information to be handed over to the Dept. of Justice that will then go through the FISA procedures, with the full acknowledgment and citation of military INTEL being the source of such surveillance needs.

Why is this important?

Because in JUN 2007, al Qaeda announced that two of the three captured soldiers had been killed and the third was also found dead at their hands.

When the US Congress can no longer write legislation to recognize the difference between war and peace-time INTEL gathering in support of field operations and force protection, it has failed its duties to protect the United States. Especially as this is put into the US Code Title 5o - WAR AND NATIONAL DEFENSE.

You would think the name of that Title section would hand them a HUGE clue as to what this is about. Apparently, that is not the case.

Do expect the US to treat wartime just like peace time in the near future, and we will send out the FBI to fight for us, since they will be the only ones able to figure out the law as the Armed Forces will be too hamstrung to actually operate in a meaningful and effective form.

Thomas Paine named this directly in Common Sense: 'wisdom without a plan'.