Anybody Out There Know Anything About Military Law?

No, I’m not in trouble again.

I haven’t been talking much lately because I’m facing down four pretty major deadlines that all stomp their big Monty Python Feet down over the next few weeks. Five if you included the deadline I met a few days back, in which I labored to finish a short story over the holidays and then— having finally got the damn thing done and just ten minutes before sending it off— discovered that I’d misread the pitch and written the wrong damn story.

I want to be less dumb over this next one. I’m writing a story about neuroenhancement, war crimes, and the culpability of soldiers whose augments anticipate their intentions before they are intentions, proactively opening fire in advance of any actual decision — the kind of thing I’ve wittered on about in the past.  Any such story is gonna contain certain elements of military law, both international and domestic: “Just following Orders” may not cut any ice after Nuremberg, but “the voice in my head followed orders it says I would have given before I made them” is a little less clear-cut than that old-school precedent.

Would any of you be able to help me with some of the legal nuts and bolts of such a story? Prisoner protocols, legal procedures, that kind of thing? Or could any of you point me towards a friendly expert who wouldn’t mind having their brain picked? Specific jurisdiction isn’t as important as you might think; there are a lot of places I could set this tale.

The faster I get this done, the sooner I stop sticking my hand out and get back to fiblets and crunchy science-type posts.

 

This entry was written by Peter Watts , posted on Tuesday January 14 2014at 11:01 am , filed under legal, misc, neuro . Bookmark the permalink . Post a comment below or leave a trackback: Trackback URL.

38 Responses to “Anybody Out There Know Anything About Military Law?”

  1. You can try:

    Kevin {d.0.t.} Gosztola {a.t.} firedoglake {d.0.t.} com

    Covered the Chelsea Manning stuff so I gather he boned up on the Merika flavor of military litigation.

  2. I know a couple of Security Forces guys, nothing special.

  3. This seems right up the alley of the Law and the Multiverse guys: http://lawandthemultiverse.com/

  4. This may or may not be relevant:: Future of drone strikes could see execution by algorithm
    http://www.abc.net.au/radionational/programs/rearvision/drones/4703792
    Have asked my personal legel adviser but I don´t know if she got the time just now.

  5. Are you familiar with Ghost in the shell? The latest movie features a bunch of soldiers rebelling to free their leader from a War Crimes tribunal, he is accused of orchestrating a massacre, but they distinctly remember helping the refugees, not hurting them. It eventually transpires that their memories have been altered and they did in fact kill the refugees (For semi-justified reasons, it was an ambush).

    As for the request, perhaps crowdsourcing some wisdom out of 4chan’s military board, or reddit’s equivalents might dredge something of use? Sorry I got nothing better. My go to for military wisdom is the War Nerd… actually he might be a good one to tap if you can locate him.

  6. Weirdly, I do!

    Feel free to write me at the (will not be published) email above and I’ll see about putting you two in touch.

  7. Re Nestor’s last suggestion:

    Gary “War Nerd” Brecher:

    http://pando.com/authors/gary-brecher/

    Twitter: @TheWarNerd

    Older:

    https://www.nsfwcorp.com/author/gary-brecher/?page=1

    http://exiledonline.com/?s=Gary%20Brecher

  8. Nestor/whoever are right; the War Nerd (= John Dolan) would be a great general reference. I don’t know if he could cover specifically legal issues, though.

  9. I was an officer with minor judicial training in the israeli army. not sure if that’ll necessarily help but feel free to ask.

  10. Christian Enemark wrote Armed Drones and the Ethics of War which comes very close to this topic. He’s thought a lot about military ethics and responsibility for autonomous weapons.

    He’s now at a Welsh university:
    http://www.aber.ac.uk/en/interpol/staff/academic/cje10/

    You could email the guy. It’s in his research field, worst thing that could happen is he won’t respond.

  11. Longtime fan, first time poster…

    Perhaps Patrick Lin of the Ethics + Emerging Sciences Group at Cal Poly – the “Enhanced Warfighters: Risk, Ethics, and Policy” report might be helpful.
    http://ethics.calpoly.edu/Greenwall_report.pdf

  12. I wonder if what you are looking for is the Law of War (or Law of Armed Combat) rather than military law? The former concerns international legal rules regarding legitimate reasons for war and ethical means of conducting a war, and is decided (if at all) in international tribunals, such as the World Court in the Hauge; the later concerns US (or rather, national, for the nation of the soldier) law that governs the conduct of people within the military, and is decided mainly in internal military courts.

    Almost all individual crimes have a mental element, referred to at the “mens rea”. The most common levels are intentionally, knowingly, recklessly, negligently, and “strict liability,” which means it does not matter what you know.

    Somewhat more subtly, every element of a crime has its own mens rea.
    Elements are the things that a prosecutor must prove. Take this abridged definition of torture as banned by the Convention Against Torture, Article 1.1

    1. Any act (You do not torture someone because a third party drugs you unconscious and drops you on them.)
    2. by which severe pain or suffering, whether physical or mental, (I read this as requiring knowledge of pain or suffering. Perhaps an autistic soldier could argue that they were unaware of the pain)
    3. is intentionally inflicted (So the person must intend to cause pain. Note that in some settings a person is deemed to intend the reasonably foreseeable consequences of their actions. It is not entirely clear in this case whether that is an objective or a subjective test, i.e. would it constitute a defence if, due to some mental defect or false belief, if a person could prove that they did not in fact understand that their action would inflict pain, when that pain was foreseeable by a reasonable person. Suppose, for instance, a deaf surgeon is falsely informed that a person has been given anesthesia, when thy have actually only received paralytics.)
    4. on a person (not an animal or machine. knowledge again.)
    5. for such purposes as obtaining from him or a third person, information or a confession, … (the original give a bunch more examples. Purpose I think means intent again, though of an indirect sort (You intend that the prisoner do something))
    6. when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official. (I am entirely unsure whether it is a defence that the defendant is mistakenly convinced that someone is a public official, or conversely, if they act under a reasonable misimpression that someone is not a public official when they are. This could require knowledge, or intent to act under authority, or could be a strict liability standard that the person is in fact a public official. There are a couple of other mental requirements hidden in this one. Is it enough to act on the urging of your brother-in-law the dogcatcher? Probably not. So there is some standard for the scope of authority of the official. What if you have been told that the action is sanctioned by an official? Suppose you take LSD and hallucinate a sanction? Lawyers live for this stuff.)
    7. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
    (this is another complex one, but looking only at the top layer, I would read this as a defence if true, regardless of what you know or intend)

    You might want to take a gander at the the U.S. Army Judge Advocate General’s handbook on the Law of War. http://www.loc.gov/rr/frd/Military_Law/pdf/LOW-Deskbook-2011.pdf

    For many crimes requiring intent, the courts will infer intent from a defendant’s callous and reckless disregard of the likely consequences of his or her acts. For your hypothetical pre-intender, I think a prosecutor might make an argument like that in Niven’s “The Ethics of Madness,” but based on recklessness rather than negligence.

  13. Wow. Thanks, all of you. For the insights and the links. This is enormously helpful (not just for this project, but for any future ones that might involve war. Which, the way things are going, could amount to quite a few.)

    Nestor: Are you familiar with Ghost in the shell? The latest movie features a bunch of soldiers rebelling to free their leader from a War Crimes tribunal,

    There’s a latest movie? Last one I saw was “Solid State Society”, which was all kids and comatose seniors being run by a mind hive. Do you mean the latest series, “Arise”?

    Andrew Hoerner: 6. when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official.

    Am I reading this right? This seems to suggest that whatever you do to someone, it’s not torture unless an official explicitly approves it. That seems like a really large loophole…

  14. Yep, arise. They are technically OVAs so kind of a hybrid between a movie and a series, I guess closer to the UK style short series, but it’s not really being broadcast. It’s kind of a prequel/reboot of stand alone complex, somewhat unnecessary imho…

  15. g:
    Nestor/whoever are right; the War Nerd (= John Dolan)…

    There are two? They should have to fight it out stripped from the waist, greased, and barehanded.

    Looked at 4Chan since I’d been perusing for other purposes. Only see Weapons and Technology boards. Is the former the one you meant?

  16. Andrew/C.A.T. 1.1 – when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official.

    Peter – Am I reading this right? This seems to suggest that whatever you do to someone, it’s not torture unless an official explicitly approves it. That seems like a really large loophole…

    I’m not a war lawyer, but here are two thoughts on this (to add to Andrew’s excellent reading). First, “acquiescence” opens up at least some room for situations much more subtle than explicit approval.

    Second, the C.A.T. is an instrument ratified by states, and its goal is to bind state behavior, ensuring torture is a crime but also doing lots of other state-y things like creating various kinds of jurisdiction (articles 2-16 in particular, Wikipedia runs them down.) So the C.A.T. is not a criminal statue; it’s setting certain high-level requirements for a country’s criminal statute and criminal/civil procedure.

    So if Private Palin is dishonorably discharged from the Alaskan Army and then “goes rogue”, takes P.C.P., and tortures a holiday traveler for information about Santa’s flight path over Russia, without any official sanction or acquiescence whatsoever, and without any status in an official state organization, that’s almost certainly going to be a crime in the Nation of Alaska. However, the N.o.A. won’t (and arguably shouldn’t) be required under the C.A.T. to extradite, create universal jurisdiction, or do a bunch of other things that apply to officially-sanctioned torture but not to ordinary crimes. It’s not a “loophole” in the sense of avoiding liability; it’s trying to sort out which kinds of crimes require very special treatment from the international community, and which are going to be handled locally, taking it as a given that at least some horrible crimes are going to be handled locally.

  17. (also, I’m pretty sure than any soldier, police officer, or petty bureaucrat would be a “public official”, so that language is really trying to close the loophole of allowing the state to get private parties to do its torture for it.

    Again, if I understand it correctly, the C.A.T. isn’t aimed at getting states to punish private, torture-minded parties (serial killers, local organized crime) in a particular way; rather, it’s trying to get states to regulate their own behavior.)

  18. On the topic of neuroenhancements, there’s this DoD instruction regarding what constitutes damage in their eyes where nonlethal weapons are concerned. Not quite the same thing, but it seems to be pertaining to soldiers and DoD covering themselves legally when/if crowd control devices are used on them. As with torture (Andrew’s list) the damage must be physical and permanent. Neuroenhancements that only cause the shoot-first-realize-you-did-later only when the controller node is on could make for an interesting series of questions.

    http://cryptome.org/dodi/dodi-3200-19.pdf

  19. Peter Watts:
    Am I reading this right? This seems to suggest that whatever you do to someone, it’s not torture unless an official explicitly approves it.That seems like a really large loophole…

    It does, doesn’t it?

    I am not an expert in this area, but I would guess that this language has two purposes. First, it is distinguishes the object of this convention, which is state-sponsored torture, from private cruelty. If a kidnapper tortures his victim, this is a crime, but it is not a violation of the UN Convention against Torture.

    There is an analogy in U.S. civil rights law. If a racist murders a person of color as an act of hate, this is of course a crime, but it is nonetheless not a violation of U.S. civil rights law unless there is some state action that authorizes or encourages it, or provides the authority to do it. The exact scope of such “state action” is disputed, much litigated, and currently contracting. In the limiting case, one might declare that an official who authorized torture is committing an illegal act, and is therefore per se outside the scope of their authority. This would effectively nullify the Convention. Fortunately, the courts have not gone that far. Yet.

    The second is to identify individuals who can be held to have violated the convention. Article 2 of the convention requires all signatories to enact legislation prohibiting and criminalizing torture as defined. That ought to include language criminalizing the officials responsible, even if they merely “acquiesce.” In other words, it creates an affirmative duty on public officials to prevent torture that happens with their awareness and within the scope of their authority.

    The US is a signatory of the convention, but has, to the best of my knowledge, not enacted any specific implementing legislation, maintaining that any activity that is violated by the convention is already criminal under existing law. Indeed, in 1999, a US submission to the UN (http://www.state.gov/documents/organization/100296.pdf) stated: “Torture does not occur in the United States except in aberrational situations and never as a matter of policy.” Of course, that was prior to the 2002 Bybee/Yoo memo on “enhanced interrogation techniques.” Also, the U.S. ratification of the convention was conditional. It stated that torture was generally a violation of state criminal laws, and that the U.S was not going to federalize crimes that are properly within state jurisdiction.

    Sorry to blather on so long about specifically U.S. law, but I thought it might suggest some of the complexities one might use to provide background or color for a story in this area.

  20. This seems to give some useful discussion:

    http://www.icrc.org/eng/resources/documents/statement/2013/09-03-autonomous-weapons.htm

  21. “More than 150 murderers and rapists have escaped punishment in the past century using the automatism defense. Judges and juries, acting on behalf of society, have said that since the criminals didn’t choose to commit their crimes—since they didn’t consciously participate in the violence—they shouldn’t bear the blame.”

    This is from The power of habit by Charles Duhigg, it has a relevant chapter about people committing crimes while sleepwalking or undergoing night terrors, not military but possibly related to your thing.

    Militarily speaking it might be worth looking into the rules regarding killing people with mines, tripwires and other assorted booby traps, since this seems like a similar category: Setting up a killing loop and leaving yourself out of it.

  22. More than 150 murderers and rapists have escaped punishment in the past century using the automatism defense. Judges and juries, acting on behalf of society, have said that since the criminals didn’t choose to commit their crimes—since they didn’t consciously participate in the violence—they shouldn’t bear the blame.

    Alexander McCall Smith, who writes the “No. 1 Ladies Detective Agency” books, is also the UK expert on the forensic law of sleep…

    Militarily speaking it might be worth looking into the rules regarding killing people with mines, tripwires and other assorted booby traps, since this seems like a similar category: Setting up a killing loop and leaving yourself out of it.

    You’re liable for the “reasonably foreseeable” consequences of your actions. Mines are no different from shells in this context.

    “Just following Orders” may not cut any ice after Nuremberg

    It kind of does, actually. You can’t charge Sgt Schmidt with “waging aggressive war” because he (and others) invaded France. And under the ICC, a lawful order is a defence against anything but “manifestly unlawful” deeds such as torture etc…

  23. Once again I come forth to mention a friend, one Keith Glass, who can be found on google+ under that name. A longtime presence in SF fandom he also served many years in the USAF and could probably point you in the right direction, if you’re still looking. He probably has, in memory if not close to hand, a long list of military SF and the themes therein.

    I might also mention that IIRC Timothy Zahn did a series of short stories generally published in analog in the early 1980s involving a character who had served in an interstellar interspecies conflict and who had been decommissioned with all of his augmentation systems removed with the exception of the neural network which couldn’t be removed without killing him, and laser units and arc-throwers which would have cost him his hands. I cannot recall the name of the story or story-cycle, but I do remember that the plot involved a situation which provoked his neural net to action in a way that resulted in serious injury or death. Saw a boulder falling towards someone and blasted it but injured a child in the process IIRC. I don’t recall the exact details of the legalistic thrust thereafter in the story, as I seem to recall that there was a rather heavy-handed focus on the psychological effects on the lead character when he was ostracized as a sort of frankenstein creation whose implants might at any moment do something generally awful for reasons which might not be predictable to the average person.

    I could be wrong about this being Zahn’s work (might possibly have been Harry Turtledove) but it was certainly stuff from the early 1980s in analog.In any case, it might not be terribly relevant to your needs at the moment as it mostly deals with the post-demobilization circumstances rather than those of active duty in the field or on-base/off-base conduct away from the lines while still in the service.

  24. DIdn’t Freud talk about the “Preconscious” ?
    The embryonic kernel of an idea as morphs into a conscious decision.

    Stanley Milgram and Zimbardo (Stanford Prison Experiment) will be
    good sources too for your work. Way of ahead of their times.

  25. Mr. Non-Entity: That was Timothy Zahn. The stories were gathered into novels, the Cobra Trilogy. I read a few of them in old Analog back issues, and remember them as fairly stock Analog military sf stories.

  26. @Robert: Thanks for the memory refresh! I knew that there was a story cycle that probably got novelized, but “Cobra” had definitely escaped to wherever memories go when they fall out of the active index.

    @Peter Watts: You’ve probably found plenty of procedural references for military prosecutions, but you might find the real meat for the story if you contemplate the blow-back that would likely be happening far up the chain-of-command from the actual (alleged) actors. If this was happening in a US type system of government, the parts of the iceberg (so to speak) visible to the public might be the military trial, and any congressional hearings that might come out of it. Both of those procedures are pretty well documented in any number of examples to be found in recent headlines. Where the real fun for the author and reader may be found would be in the stuff that almost never makes the headlines mostly because the people involved have staff and consultants/contractors whose job it is to see that such things never become public. You can make up such process as you go; anyone in a position to say “that’s highly unrealistic” is also in the position of being someone who is not about to say anything at all on the matter.

    Soldier’s augmentation goes batshit and nukes a playground? Well, he is definitely going to be up on charges, military procedural of course. If there’s no mens rea or criminal intent on his part, he can’t be found guilty nor dishonorable. If he did something like re-activate his augmentation out-of-bounds or was tampering with the programming or did stupid stuff like letting naughty teenagers guess his equipment’s administrative password, there’s culpability but not criminal intent. Remnants of the old English Common Law have survived in many of the several States’ legal codes and they make a distinction between “wounding” and “malicious wounding”. The difference isn’t so much actual “malice” in most cases, but rather it is intent or willfulness of the act. You’re carving up a turkey for dinner and someone startles you and you turn around too quickly while forgetting to set down the cutlery, that could be criminal wounding, but not considered malicious even if ultimately fatal. Sneak up behind someone and pull out a knife and stab them to death, there’s mens rea and if they live through it all, it’s malicious wounding. Malice and criminal-intent (mens rea) are pretty much the same thing. At any rate, the crime follows the intent more than it does the result, at least in criminal law.

    Sometimes the most wiggle-room in such matters would be found more in the civil-actions law, and the highly-lawyer-infested yet seldom-brought-to-court venue of “unofficial and off-the-record” corporate interactions. Soldier’s augmentation goes batshit and nukes a playground? Well, he’ll spend days in court spread over a few years of realtime, but law-firm and in-house legal-department billing may go up to the thousands or tens of thousands of hours. “Due diligence” is a turning-point keyword in many if not most Tort actions and at every step of the development of the augmentation — from first conception of the augmentation systems to the lamentable incident of the playground nuking — people will be looking to point the finger and duck and dodge any fingers pointed at them. The smoking gun isn’t best discovered in the military trial procedure, in my humble opinion, but rather in the paper trail of correspondence amongst a veritable army of legal eagles, paralegals, and file clerks. Let the memos tell the tale! -or at least let them build your background.

    Cheers,

  27. You mean a neural device that is able to evaluate a situation and then send a signal directly to the decision-making area of the soldier’s brain? That should free the soldiers from their responsibility, unless they have agreed to the “upgrade” despite knowing what it could lead to. Or if something bad happens, their superiors and officers could be the ones to blame.

  28. @Mr. Non-Entity

    Re: missing headlines. “Life” has a funny way of wiping such things off the front page. For ex, the bipartisan torture report stating top Bush admin officials approved of the program got little coverage due to the Boston Marathon bombing and associated keystone cops chase through Connecticut neighborhoods. What’s bigger than nuking a playground? Outbreak of war I suppose.

  29. Unrelated, but it seems that new “true detective” show is borrowing a page out of your playbook

    “I think human consciousness is a tragic misstep in human evolution. We became too self aware; nature created an aspect of nature separate from itself. We are creatures that should not exist by natural law. We are things that labor under the illusion of having a self, a secretion of sensory experience and feeling, programmed with total assurance that we are each somebody, when in fact everybody’s nobody. I think the honorable thing for our species to do is deny our programming, stop reproducing, walk hand in hand into extinction, one last midnight, brothers and sisters opting out of a raw deal. ”

    http://blogs.wsj.com/speakeasy/2014/01/30/the-most-shocking-thing-about-hbos-true-detective/

  30. @Nestor

    Interesting choice on HBO’s part considering FBI practically does almost no criminal work anymore (recent articles explain the post-9/11 re-focus on CT and lack of personnel for justice side) and the militarization of many police departments. The kind of stuff the show focuses on is largely a thing of the past except occasionally for PR purposes. Is there a “natural selection” policy among governments of all levels now? :)

  31. It sounds like there’s a sliding scale of culpability depending on the precise stage at which the machine takes over, which might be anywhere from ‘slightly after human kill-decision’ (See; any reasonably modern bomber’s fire control system. Pushing the red button doesn’t immediately send a bomb downrange, it just says ‘put the bomb THERE’, leaving the details of execution [heh] up to the automatics) to ‘crib metadata off the meat, but once the soldier has tagged what looks friendly and what doesn’t, Google WarMind decides what to do about it’.

    If I’m understanding correctly, the suggested system lies somewhere in the middle of the scale, cutting out much of the DA bit of an individual’s OODA loop. Doesn’t that run into a major problem in that the fastest response to identifying a target is likely to be “AAAAAA LIGHT ‘EM UP”, even if it would be immediately rescinded by an “oh wait, there’s a busload of nuns and orphans in the way” in a baseline human?
    Differentiating between an unambiguous commit and an autonomous scared-ape reaction sounds challenging, if the intention is to significantly reduce reaction time without having to make a dauntingly complex augmentation.

  32. And another OT question, seeing the latest Dr Mcninja made me wonder if Watts vampires share the rice counting weakness.

    http://drmcninja.com/

    Being OCD does sound like something eidetic omnisavants would be prone to…

  33. Actually, there’s a scene in Echopraxia that deals with that very issue…

  34. That reminds me, I saw another article that made me speculate a little on vampiric tendencies:

    http://www.scientificamerican.com/article/why-walking-through-doorway-makes-you-forget/

    Basically, walking through a doorway triggers a ‘memory purge’ of information that might not be needed anymore (even if it actually is, and it’s why you left the room in the first place). It doesn’t happen if you travel the same distance, but not thorugh a doorway.

    When I saw ‘doorway’, I thought “doorways are usually defined by right angles… maybe miswiring of this memory-purge faculty is part of what causes vampires to go into seizure.’ Of course, that’s probably a westernized view of ‘doorway’ that doesn’t go back as far as needed (and, although the paper doesn’t say, the effect might also happen when going through a curved arch), but I enjoyed the momentary thought and figured I might as well bring it up.

  35. Hi Peter,

    Off subject, but have you heard anything about the release of the Extreme Planets Anthology? I’ve been checking Chaosium’s website but nothing new has been updated there.

    Thanks,

    Jeremy

  36. Yeah, I know. It’s kind of pissing me off, given the fanfare with which they announced a 2013 released date and then — nothing. More nothing. Still nothing.

    Last I heard (i.e., a few weeks back) they were still planning on getting it out “soon”, but no details at all on whether “soon” was meant to be read against circadian scales or geological ones. No details as to the cause of the hold-up. I liked that story, dammit, and I worked my ass off on it, and I could’ve sold it to a few other places for significantly more money. And now it’s trapped at Chaosium for who knows how long.

    Never again.

  37. So maybe stacking beer mugs wasn’t just showing off?

  38. Mr Watts

    Why can I get a Kindle edition of Maelstrom, but not Starfish or Behemoth? I know I can download them free, but I would rather pay so you get some money, and I want the convenience of the cloud rather than having to carry around dead tree (I move a lot for work). Is it some sort of rotating availability on Amazon’s end? Dispute with the publisher? Your choice?

    Thank you

    – Daniel