Friday, January 8, 2016
The Pentagon’s Law of War Manual
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The new US Department of Defense Law of War Manual is essentially a guidebook for violating international and domestic law and committing war crimes. The 1,165-page document, dated June 2015 and recently made available online, is not a statement of existing law as much as a compendium of what the Pentagon wishes the law to be.
According to the manual, the “law of war” (i.e., the law of war according to the Pentagon) supersedes international human rights treaties as well as the US Constitution.
The manual authorizes the killing of civilians during armed conflict and establishes a framework for mass military detentions. Journalists, according to the manual, can be censored and punished as spies on the say-so of military officials. The manual freely discusses the use of nuclear weapons, and it does not prohibit napalm, depleted uranium munitions, cluster bombs or other indiscriminate weapons.
The manual might have more properly been titled A Manifesto for Total War and Military Dictatorship.
The manual is an expression of the incompatibility of imperialist militarism and democracy. In the 25 years since the liquidation of the USSR, and especially over the 14 years since the launching of the so-called “war on terror,” the United States has been almost perpetually at war, seeking to offset its economic decline by threats and military violence around the world.
The same government that orchestrated a coup led by fascists in the Ukraine, that backs a military dictatorship and repression in Egypt, and that supports mass killings and destruction in Gaza can hardly be expected to remain true to the rule of law and democratic principles at home.
Through both the Bush and Obama administrations, the “war on terror” has been accompanied by a steady abrogation of democratic rights within the United States, including a barrage of police state legislation such as the Patriot Act, unrestricted spying on the population by the National Security Agency and other agencies, the militarization of the police, and the establishment of precedents for the detention and assassination of US citizens without charges or trial.
In this context, the Pentagon manual is a significant milestone in the drive to establish the framework of a police state.
In his farewell address in 1961, President Dwight D. Eisenhower famously warned about the dangers posed by the “military-industrial complex.” But America’s current military-corporate-intelligence establishment has metastasized far beyond anything Eisenhower could have imagined. Bloated with unlimited cash, dripping with blood from wars of aggression, it boldly announces its independence, its hostility to democracy and the rule of law, and its readiness to carry out war crimes and other atrocities at home and abroad.
The Pentagon manual reflects international imperialist tendencies. Its authors state that it “benefited from the participation of officers from the United Kingdom’s Royal Air Force and the Australian Royal Air Force on exchange assignments with the US Air Force.” They continue: “In addition, military lawyers from Canada, the United Kingdom, New Zealand, and Australia reviewed and commented on a draft of the manual in 2009 as part of a review that also included comments from distinguished scholars.” (P. v)
The manual, which “reflects many years of labor and expertise,” applies to the entire Department of Defense, which includes the Army, Navy, Air Force, Marine Corps, four national intelligence agencies including the NSA, and numerous other subordinate departments and agencies, totaling 2.13 million active duty personnel and 1.1 million reservists. The manual notes, “Promulgating a DoD-wide manual on the law of war has been a long-standing goal of DoD lawyers.” (P. v) The new document supersedes various policy documents that had accumulated piecemeal within different sections of the military and intelligence agencies.
It is the outcome of a continuous effort through both Democratic and Republican administrations over a long period, including the Bush and Obama administrations. It was issued at the highest levels of the state, having been prepared by a “Law of War Working Group” that “is chaired by a representative of the DoD General Counsel and includes representatives of the Judge Advocates General of the Army, Navy, and Air Force; the Staff Judge Advocate to the Commandant of the Marine Corps; the offices of the General Counsels of the Military Departments; and the Legal Counsel to the Chairman of the Joint Chiefs of Staff.” (Pp. v-vi)
The Pentagon general counsel is Stephen W. Preston. Preston was general counsel of the Central Intelligence Agency (CIA) from 2009 to 2012, during which time the CIA covered up its own war crimes and obstructed efforts to investigate its illegal torture program. It is unclear to what extent the manual has been reviewed or approved by any civilian authority.
The Law of War Manual is replete with references to the Nuremberg proceedings, a complex and significant event in the history of the post-World War II period and the history of international law. The manual opens with this tribute:
“After World War II, US military lawyers, trying thousands of defendants before military commissions, did, in the words of Justice Robert Jackson, ‘stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of law’ in ‘one of the most significant tributes that Power has ever paid to Reason.’ Reflecting on this distinctive history, one chairman of the Joint Chiefs of Staff observed that ‘[T]he laws of war have a peculiarly American cast.’ And it is also true that the laws of war have shaped the US Armed Forces as much as they have shaped any other armed force in the world.” (P. ii)
The Pentagon of 2015 paying tribute to the Nuremberg precedent is like the world’s top-polluting corporation expressing appreciation for efforts to protect the environment. If the precedent of Nuremberg were applied impartially today, it would be necessary to arrest and prosecute all of the top officials in the Pentagon, the world’s leading perpetrator of illegal aggression. After the triumph of the Allies over Germany and Japan in the Second World War, the victorious powers convened international tribunals to prosecute major war criminals of the defeated powers. The most famous trial took place from November 20, 1945 to October 1, 1946 in Nuremberg, Germany and featured the prosecution of Hermann Göring, Wilhelm Keitel, Joachim von Ribbentrop and other leading Nazis.
There was an undeniable component of “victors’ justice” in the proceedings. The same week in August 1945 that the United States, the USSR, Britain and France forged an agreement to establish the International Military Tribunal, the United States committed some of the most heinous crimes of the war: the atomic bombings of Hiroshima and Nagasaki.
Nonetheless, the democratic legal positions espoused at Nuremberg stand in sharp contrast to the corrupt and lawless American political establishment of today, which asserts the right to abduct or assassinate any person without charges or trial anywhere on earth, attack any country “preventively,” and spy on the entire world’s population.
At the time of the Nuremberg tribunals, a majority view emerged among the major Allied governments rejecting calls to execute leading Nazis summarily on the basis of a “political decision.” Instead, the defendants were offered a full and fair trial, during which they were permitted to call witnesses, present evidence and argue in their own defense.
The most important principle that emerged from the Nuremberg proceedings was the concept that the decision to launch a war of aggression is the fundamental crime from which all other war crimes flow. While the Nuremberg prosecutors exposed some of the greatest crimes in human history, they maintained that the primary crime was the decision by Hitler and his close associates to launch the war in the first place.
The chief US prosecutor was Supreme Court Justice Robert Jackson. His assistant, Telford Taylor, emphasized in a memorandum to Jackson that the underlying motivations and aims of the Nazis were not the decisive legal questions: “The question of causation is important and will be discussed for many years, but it has no place in this trial, which must rather stick rigorously to the doctrine that planning and launching an aggressive war is illegal, whatever may be the factors that caused the defendants to plan and to launch.”
In other words, launching a war of aggression is a criminal act—a crime against peace—no matter what arguments or policies are invoked to justify it.
Similarly, the Nuremberg prosecutors rejected the argument that those who committed crimes were justifiably “following” or “relaying” orders. Nuremberg Principle IV reads, “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility…provided a moral choice was in fact possible to him.”
These were powerful democratic conceptions that reverberated long after the trials. During the Vietnam War, as Taylor himself noted in his memoir, “thousands of young men contended…that under the Nuremberg principles they were legally bound not to participate in what they regarded as the United States’ aggressive war.”
More recently, on July 12, 2013, NSA whistleblower Edward Snowden invoked the Nuremberg principles to justify his refusal to conceal evidence of illegal spying. “I believe in the principle declared at Nuremberg in 1945,” he said. “Individuals have international duties which transcend the national obligations of obedience. Therefore, individual citizens have the duty to violate domestic laws to prevent crimes against peace and humanity from occurring.”
Justice Robert Jackson at Nuremberg
The Nuremberg precedent expressed the confidence of the United States as the dominant imperialist power emerging out of the Second World War. The American ruling class felt that it could afford, under the circumstances, not only to assert democratic principles, but to declare that these principles were universal, applying to all countries, including the United States itself.
Thus, on July 23, 1945, Jackson told the International Conference on Military Tribunals, the inter-allied body that prepared the trials, “If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.” 
Seventy years later, America’s leaders have much less in common with jurists like Jackson and Taylor than they do with Nuremberg’s defendants. While the Pentagon pays tribute to the Nuremberg precedent, a partial list of the countries subjected to US military violence since the liquidation of the USSR includes Iraq, Somalia, Haiti, the former Yugoslavia, Sudan, Afghanistan, Pakistan, Libya, Syria, Nigeria and Yemen.
If launching a war of aggression is illegal, arrest warrants should be forthcoming for Barack Obama, Hillary Clinton, George W. Bush, Dick Cheney, Donald Rumsfeld, John Brennan, Leon Panetta, Robert Gates, James Clapper, John Ashcroft, Joe Biden, John Kerry and their criminal co-conspirators. All of these individuals should be in the dock, right where Göring and company sat, on charges of war crimes, crimes against humanity and crimes against peace.
Ample evidence exists for indictments. One powerful exhibit in such a trial, for example, would be a November 27, 2001 memorandum by Donald Rumsfeld that contemplates various phony justifications for a war of aggression against Iraq. Under the profoundly incriminating headline “How start?” Rumsfeld ponders the possibilities: “Saddam moves against Kurds in north? US discovers Saddam connection to Sept. 11 attack or to anthrax attacks? Dispute over WMD inspections? Start now thinking about inspection demands.”
Rumsfeld’s memorandum is one of many proofs that there was a conspiracy to launch the invasion of Iraq in 2003 on the basis of lies and pretexts. As a result of this illegal aggression, hundreds of thousands of people lost their lives, if not more, and millions have been turned into refugees. An entire society has been devastated, leading to the rise of movements such as ISIS, and trillions of dollars worth of property have been destroyed or wasted.
The Nuremberg trials featured similar exposures of the criminal Nazi conspiracy to invade Poland based on false pretenses. To provide a casus belli for the war they had already decided to launch, the Nazis staged a provocation known as the Gleiwitz incident. During the Nuremberg proceedings, this incident was exposed as a staged attack on a German radio station by German forces posing as Poles. Hitler had boasted to his generals: “Its credibility doesn’t matter. The victor will not be asked whether he told the truth.”
Notwithstanding its repeated invocations of the Nuremberg precedent, the Pentagon’s Law of War Manual features a strong element of “do as I say, not as I do.”
For example, on the subject of aggressive war, the document declares, “Aggression is the most serious and dangerous form of the illegal use of force… Initiating a war of aggression is a serious international crime.” (P. 44) This is a plain statement of the Nuremberg precedent.
However, as one reads further, it emerges that this principle applies only to countries other than the United States. The manual notes that the US has refused to recognize the authority of the International Criminal Court (ICC), under which the US could be prosecuted for crimes of aggression.
The document states, “The United States has expressed the view that the definition of the act of aggression in the Kampala amendments to the Rome Statute does not reflect customary international law.” (P. 45) The US also expressed “concerns regarding the possibility of the ICC exercising jurisdiction over the crime of aggression without a prior determination by the Security Council that a State has committed an act of aggression.” (P. 1,112) Such a Security Council determination, of course, would be subject to a US veto.
The refusal of the United States to recognize the authority of the ICC has deep historical significance. The United States played a leading role in establishing the Nuremberg precedent, but now refuses to submit to its enforcement. This amounts to an admission that if the United States were subject to an impartial application of the Nuremberg precedent today, virtually all of official Washington would have to be transported to jail. It exposes as fraudulent all of America’s posturing as a kind of self-appointed “world policeman” with the authority to sanction and attack other states that allegedly violate international law.
Similarly, the Pentagon manual declares that torture is illegal: “For example, it would be unlawful, of course, to use torture or abuse to interrogate detainees for purposes of gathering information.” (P. 309) But the document fails to explain how the CIA came to implement a systematic and sadistic torture program with the integral participation of high-level officials in the White House, for which nobody has ever been held accountable.
The manual is full of caveats, disclaimers and weasel words. For example: “This manual is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.” (P.1) In other words, the law of war does not apply to us, only to you. Passages like this reveal that the “law of war” manual does not represent “law” as such, but policies determined unilaterally by the Pentagon.
The Pentagon’s hypocrisy (and sometimes plain incoherence) on the subjects of torture and aggression is an expression of the crisis of bourgeois rule in the United States and the contradictions of American foreign policy. On the one hand, the US constantly seeks to dress up its imperialist projects in the costume of international legality. To justify the first Gulf war (1991), America denounced Iraq’s invasion of Kuwait as illegal “aggression.”
Just last year, American political leaders were denouncing Russian “aggression” in Ukraine. After the United States orchestrated a coup in Ukraine, and while American commandos and dollars were pouring in, John Kerry accused Russia of violating Ukraine’s “national sovereignty” and “territorial integrity.” Obama declared, “There is a strong belief that Russia’s action is violating international law.”
On the other hand, notwithstanding all the talk about international law, national sovereignty, and territorial integrity, America invades and bombs anywhere it sees fit, without any regard for such considerations. Where the United States can obtain international legal approval for its aggression, it does so, but otherwise the aggression takes place anyway.
The manual states, “[T]he authority to take actions under the law of war would be viewed as emanating from the State’s rights as a sovereign entity rather than from any particular instrument of international law.” In other words, the United States can freely ignore treaties and conventions and other “instruments of international law”—such as the Geneva Convention of 1949, which the United States announced in 2002 that it would not follow—while still claiming to adhere to its own version of international law.
At the Nuremberg trials, Jackson characterized the Nazi regime as essentially a monstrous criminal enterprise, a giant illegal conspiracy that invoked “law” only in the most tendentious, cynical and self-serving manner. The defendants, Jackson declared, “are surprised that there is any such thing as law. These defendants did not rely on any law at all. Their program ignored and defied all law… International Law, natural law, German law, any law at all, was to these men simply a propaganda device to be invoked when it helped and to be ignored when it would condemn what they wanted to do.” These words apply with full force to the Pentagon and its manual.
The manual explicitly gives the Pentagon a green light at any future time to repudiate the principles it ostensibly lays down. Its authors write that the document does not “preclude the Department from subsequently changing its interpretation of the law.” (P. 1)
The most menacing passages of the Pentagon’s Law of War Manual concern its relationship to other areas of law. According to the manual, the law of war is separate from and supersedes all other bodies of law, including international human rights treaties and the United States Constitution’s Bill of Rights. This is nothing less than a formula for martial law, military dictatorship and the suspension of the Constitution.
Citing a legal treatise entitled “Military Law and Precedents,” the manual states that the law of war can supersede the Constitution: “‘On the actual theatre of military operations,’ as is remarked by a learned judge, ‘the ordinary laws of the land are superseded by the laws of war. The jurisdiction of the civil magistrate is there suspended, and military authority and force are substituted.’ Finding indeed its original authority in the war powers of Congress and the Executive, and thus constitutional in its source, the Law of War may, in its exercise, substantially supersede for the time even the Constitution itself …” (p. 10, emphasis added).
With the entire world declared to be the “battlefield” in the “war on terror,” this is a formula for the Pentagon to impose military dictatorship on all of Planet Earth.
When the Pentagon refers to the “law of war,” it is not referring to historic precedents or international treaties. The phrase “law of war,” in the context of the manual, is a euphemism for “the law according to the Pentagon.”
Under the Pentagon’s pseudo-legal framework, the “law of war” is an independent source of legal authority that overrides all democratic rights and sanctions arbitrary rule by the military. The manual states: “Although the law of war is generally viewed as ‘prohibitive law,’ in some respects, especially in the context of domestic law, the law of war may be viewed as permissive or even as a source of authority” (p. 14).
Nazi jurist Carl Schmitt
Changing a few words here and there, these doctrines could have been copy-pasted from the writings of the Nazi “crown jurist” Carl Schmitt (1888-1985). According to Schmitt’s infamous “state of exception” doctrine, under conditions of a national emergency, the executive is permitted to override democratic protections and disregard the rule of law. Under this doctrine, democratic rights are not formally abrogated, they are simply suspended indefinitely.
Schmitt’s “state of exception” doctrine was used as a legal justification for the 1933 “Act to Relieve the Distress of the People and the Reich,” also known as the “Enabling Act,” which codified Hitler’s dictatorship.
The Pentagon manual invokes Schmitt’s “state of exception” theory in all but name. Having claimed that the law of war is a “special” discipline of law, as opposed to a “general” discipline, the manual states that “the special rule overrides the general law” (p. 9). For added effect, a Latin legal maxim saying the same thing is cited: “lex specialis derogat legi generali.”
Thus, according to the Pentagon, the law of war is the exception to the general “law of peacetime.” Here we have nothing less than a Nazi legal doctrine, incorporated by the Pentagon into a major policy document.
“In some circumstances,” the Pentagon’s manual states, “the rules in the law of war [i.e., the rules invented by the Pentagon] and the rules in human rights treaties may appear to conflict; these apparent conflicts may be resolved by the principle that the law of war is the lex specialis during situations of armed conflict [again, the state of exception], and, as such, is the controlling body of law with regard to the conduct of hostilities and the protection of war victims” (p. 9).
In other words, whenever the Pentagon’s policies conflict with human rights treaties, the human rights treaties should be ignored.
The manual continues, “Underlying this approach is the fact that the law of war is firmly established in customary international law as a well-developed body of law that is separate from the principles of law generally applicable in peace” (p. 10). The implication is that during wartime, America’s vast military establishment is a “separate,” independent branch of government, subject to its own rules and accountable to no one.
Despite the references to the war powers of Congress and the executive under the American Constitution, the Pentagon’s conceptions are the opposite of the framework envisioned by the framers of the Constitution. The Declaration of Independence, in its list of grievances against the British monarch, charges that the king “affected to render the Military independent of and superior to the Civil power.”
Both the Bush and Obama administrations have been fond of invoking the phrase “commander in chief,” which appears in Article II of the US Constitution, in a manner that turns its original meaning upside down. The American revolutionaries described the president as the commander in chief of the navy and army as a way of expressing the subordination of the military to civilian authority. This phrase was not meant to elevate the military, with the president as its head, into some kind of supreme authority over the rest of the state and the population.
The manual’s reference to “principles of law generally applicable in peace” has particularly sinister implications.
“Human rights treaties,” according to the Pentagon, are “primarily applicable to the relationship between a State and individuals in peacetime” (p. 22). Therefore, in “wartime”—including the “war on terror” of indefinite scope and duration—human rights treaties no longer apply.
This formula would allow the Pentagon to override more than just human rights treaties. The manual’s authors include the Bill of Rights and other guarantees of civil liberties in the category of laws that apply in “peacetime” only. The arguments made by the manual justify suspending the Bill of Rights altogether as a “peacetime” law that is superseded for the duration of the “war on terror.”
But why stop there? Aren’t elections also part of a system of laws “generally applicable in peace?” What about other civil liberties? What about the right to freedom of speech, or the right to form political parties? What about the right to trial by jury? What about the right to privacy, and the ban on “cruel and unusual punishment?” What about laws against racial discrimination? The right to a minimum wage?
Taken to its logical conclusion, the Law of War Manual would justify imposing a military dictatorship, suspending all democratic rights and rounding up and imprisoning all dissenters.
Should any reader think this analysis far-fetched, it should be remembered that one top American military man recently called for setting up military internment camps for “disloyal” and “radicalized” Americans. Retired Gen. Wesley Clark (a Democrat) declared: “If these people are radicalized and they don’t support the United States and they are disloyal to the United States, as a matter of principle, fine. It’s their right, and it’s our right and obligation to segregate them from the normal community for the duration of the conflict.” He added, “We’ve got to cut this off at the beginning.”
Clark’s extraordinary proposals provoked no significant discussion or disagreement within the political or media establishment. None of the current presidential candidates from either major party has referred to Clark’s statement, presumably because they do not fundamentally disagree with it. There have been no consequences for Clark’s lobbying and consulting firm. The Pentagon’s manual makes clear that Clark was merely testing the waters, revealing plans that have been broadly discussed, developed and approved at the highest levels of the state.
When asked last year about the military internment of Japanese-Americans during the Second World War, US Supreme Court Justice Antonin Scalia responded, “You are kidding yourself if you think the same thing won’t happen again.” He added, in a formulation that mirrors the Pentagon’s manual, “In times of war, the law falls silent.”
The manual also features a heavy dose of the Obama administration’s trademark “balancing” rhetoric. Pursuant to this approach, a basic democratic right or legal principle will be affirmed in abstract terms. But then it will be “balanced” against some authoritarian counter-principle, with the result that the basic principle will be rendered meaningless. The Obama administration has invoked this formula repeatedly as its justification for NSA spying, as well as for drone assassinations.
The document states, “Civilians may not be made the object of attack, unless they take direct part in hostilities.” This seems clear enough, but then a “balancing” formula is introduced. “Civilians may be killed incidentally in military operations; however, the expected incidental harm to civilians may not be excessive in relation to the anticipated military advantage from an attack, and feasible precautions must be taken to reduce the risk of harm to civilians during military operations” (p. 128).
In other words, after applying the “balancing” formula, it turns out that it is acceptable to kill civilians if, on balance, the expected “military advantage” outweighs the harm to civilians. This effectively makes the rule against killing civilians meaningless. In practice, the “balancing” formula translates to the unfettered power of military leaders to order mass killing and destruction.
The manual features a chilling discussion of killing civilians. According to the Pentagon, massacres of civilians are permissible if they help achieve “operational objectives.”
The authors take pains not to state that the killing of civilians is prohibited per se. Instead, the manual indicates that “feasible precautions” should be taken to “avoid” civilian casualties, which should not be “excessive” or “unreasonable.” However, the manual defines “feasible precautions” as merely “those that are practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations” (p. 190).
The Pentagon's manual authorizes mass killing of civilians as in the assault on Fallujah during the Iraq War
“For example,” the document states, “if a commander determines that taking a precaution would result in operational risk (i.e., a risk of failing to accomplish the mission) or an increased risk of harm to their own forces, then the precaution would not be feasible and would not be required” (p. 191). This is a blank check for mass killings of civilians if a military leader decides that failing to do so would be an “operational risk.” If exterminating the population of a hostile city would reduce the “risk of harm” to US forces, then the Pentagon manual would allow it.
This “balancing” formulation appears to contradict previous statements of American policy, such as the following remarks from 1987 by a State Department legal adviser: “[C]ivilian losses are not to be balanced against the military value of the target. If severe losses would result, then the attack is forbidden, no matter how important the target” .
The manual also codifies the tendentious “human shields” doctrine, whereby civilian deaths are blamed on the targets of indiscriminate bombing. “A party that is subject to attack might fail to take feasible precautions to reduce the risk of harm to civilians, such as by separating the civilian population from military objectives … the ability to discriminate and to reduce the risk of harm to the civilian population likely will be diminished by such enemy conduct” (p. 198).
This is merely a justification for collective punishment by another name. If the Pentagon identifies a “military objective” in a densely populated area, then the military supposedly has the legal right to obliterate the neighborhood with high explosives and blame the civilian population for being “human shields.” Collective punishment is, under international law, a war crime. It is designed to terrorize a population and discourage resistance.
The manual expressly authorizes targeted killings. “Military operations may be directed against specific enemy combatants,” the document states, adding, “US forces have often conducted such operations” (p. 201).
In support of targeted killings, the manual cites Obama’s speech on May 2, 2011: “Today, at my direction, the United States launched a targeted operation against that compound [suspected of housing Osama Bin Laden] in Abbottabad, Pakistan. A small team of Americans carried out the operation with extraordinary courage and capability. No Americans were harmed. They took care to avoid civilian casualties. After a firefight, they killed Osama bin Laden and took custody of his body” (p. 201).
The manual fails to mention that journalist Seymour Hersh has exposed the account given in Obama’s speech as a pack of lies.
The manual’s proposed treatment of journalists as spies has evoked the only media attention to the document. “Reporting on military operations,” the manual states, “can be very similar to collecting intelligence or even spying” (p. 175).
The Pentagon goes on to authorize itself to “capture” and “punish” journalists, forbid journalists to work anonymously, and require that journalists obtain “permission” and “identification documents” from the US military to conduct their work.
The manual states: “A journalist who acts as a spy may be subject to security measures and punished if captured. To avoid being mistaken for spies, journalists should act openly and with the permission of relevant authorities. Presenting identification documents, such as the identification card issued to authorized war correspondents or other appropriate identification, may help journalists avoid being mistaken as spies” (p. 175).
The document further states that journalists can be subject to military censorship. It declares: “States may need to censor journalists’ work or take other security measures so that journalists do not reveal sensitive information to the enemy. Under the law of war, there is no special right for journalists to enter a State’s territory without its consent or to access areas of military operations without the consent of the State conducting those operations” (p. 175).
There is nothing here that would be out of place in the code of laws of a totalitarian police state. This legal framework, for example, would justify setting up a military internment camp to imprison each journalist who published material disclosed by Edward Snowden. There is nothing in the manual that would prohibit the Pentagon from launching drone strikes against targeted journalists who are deemed to be acting as “spies.” (If a journalist’s family and friends were killed in the drone strike, it would be the journalist’s fault for employing “human shields”).
Do we exaggerate? An article appeared in the recent spring/summer issue of the academic National Security Law Journal titled “Trahison des Professeurs: The Critical Law of Armed Conflict/Academy as an Islamist Fifth Column” [3 Nat’l Sec. L.J. 278 (2015)]. In this article, West Point law professor William C. Bradford argues that academics who criticize the “war on terror” are “aiding the enemy,” such that they should be treated as “unlawful combatants” under the law of war.
Bradford, a professor at the prestigious United States Military Academy, goes on to argue that by criticizing the war on terror, certain professors are working in “the service of Islamists seeking to destroy Western civilization and re-create the Caliphates.” These professors, Bradford charges, are guilty of “skepticism of executive power,” “professional socialization,” “pernicious pacifism,” and “cosmopolitanism.”
Bradford recommends firing “disloyal” professors and imposing loyalty oaths at universities. He further recommends arresting and prosecuting professors for treason and for providing material support to terrorism. Finally, he argues that “disloyal” professors and the universities that employ them could be considered “lawful targets” for military attack under the law of war.
Bradford has also advocated a military coup (“What conditions precedent would be required before the American military would be justified in using or threatening force to oust a US president…?”) and genocide (“total war” until “the political will of Islamist peoples” is broken, or until “all who countenance or condone Islamism are dead”). The latter policy would include the targeted destruction of “Islamic holy sites.”
The journal subsequently repudiated Bradford’s article, calling it an “egregious breach of professional decorum,” and Bradford resigned from West Point on August 30. However, the episode provides a glimpse of what the Pentagon has in mind for its critics under the “law of war.” Bradford’s fascistic rants simply represent the doctrines expressed in the Law of War Manual taken to their logical conclusions.
The persecution of journalists such as Glenn Greenwald (and his partner David Miranda) and Julian Assange, together with whistleblowers such as Edward Snowden and Bradley (Chelsea) Manning, has already made clear that the American government will treat the exposure of official criminality as “espionage” and “aiding the enemy.” The Pentagon’s manual codifies this position and authorizes the military to carry out repressive measures against journalists.
The Committee for the Protection of Journalists (CPJ) issued a statement on July 31 protesting the manual, pointing to the rising numbers of journalists killed and maimed while covering armed conflicts. “The Obama administration’s Defense Department,” the CPJ wrote, “appears to have taken the ill-defined practices begun under the Bush administration during the War on Terror and codified them to formally govern the way US military forces treat journalists covering conflicts.”
It is significant that the words “freedom of speech” and “freedom of the press” do not appear anywhere in the Pentagon’s manual.
In a section setting forth the Pentagon’s authority as an “Occupying Power,” the manual states that “for the purposes of security, an Occupying Power may establish regulation of any or all forms of media (e.g., press, radio, television) and entertainment (e.g., theater, movies), of correspondence, and of other means of communication. For example, an Occupying Power may prohibit entirely the publication of newspapers that pose a threat to security, or it may prescribe regulations for the publication or circulation of newspapers of other media for the purpose of fulfilling its obligations to restore public order” (pp. 759-60).
A footnote includes the caveat that “this sub-section focuses solely on what is permitted under the law of war and does not address possible implications of censorship under the First Amendment of the Constitution.” Presumably, the authors would contend that the First Amendment applies only in “peacetime,” and is “superseded” by the Pentagon’s “lex specialis” for the duration of the “war on terror.”
The Department of Defense (DOD) Law of War Manual represents the most advanced ideological expression of the striving of US imperialism to dominate and control the entire world by means of military force.
By authorizing the Pentagon to occupy, wage war against and impose its own version of “law” in every corner of the planet, the DOD manual merely formalizes the world-hegemonic agenda of US imperialism and points to its logical endpoint.
“US capitalism is up against the same problems that pushed Germany in 1914 on the path of war. The world is divided? It must be redivided. For Germany it was a question of ‘organizing Europe.’ The United States must ‘organize’ the world. History is bringing humanity face to face with the volcanic eruption of American imperialism.” This was written by the founder of the Fourth International, Leon Trotsky, in 1934.
From the mid-1970s onward, the US ruling class has engaged in a relentless militarization drive aimed at overcoming through armed force its economic decline.
This was also foreseen by Trotsky, who wrote: “In the period of crisis the hegemony of the United States will operate more completely, more openly and more ruthlessly than in the period of boom. The United States will seek to overcome and extricate herself from her difficulties and maladies primarily at the expense of Europe, regardless of whether this occurs in Asia, Canada, South America, Australia, or Europe itself, or whether this takes place peacefully or through war.”
The Law of War Manual, which elaborates protocols for military operations in every corner of the globe by the Pentagon and its proxy forces, amounts to a manifesto for this process, set down in legal jargon. If the guidelines laid out in the manual are allowed to be implemented—that is, if the international working class does not intervene in time on the basis of a revolutionary program—then humankind faces a future dominated by concentration camps, slaughter on an unprecedented scale, and, ultimately, a nuclear holocaust.
In essence, the DOD manual represents a comprehensive statement of the only “solution” to the world crisis that the imperialist cliques in Washington and on Wall Street are capable of offering.
The first two articles in this series have drawn the parallels between the Department of Defense Law of War Manual and the legal and political ideology of Nazi Germany. It has been shown that the very same fascist conceptions rejected by leading American jurists at the Nuremberg trials have, in the form of the DOD manual, been codified as official state policy at the highest levels of the American government.
Later sections of the DOD manual, those covering the practices of US military operations, make clear that the scorched earth methods employed by the Nazis against the populations of Europe, the Soviet Union and North Africa are now embraced and defended by the Pentagon high command.
The manual overturns central tenets of international law designed to place restraints on the use of military violence. On the basis of the Oxford English Dictionary definition of total war as “a war that is unrestricted in terms of the weapons used, the territory or combatants involved, or the objectives pursued, especially one in which the laws of war are disregarded,” one can state without hesitation that total war has become the central policy of the DOD.
Every form of military activity conventionally associated with total war—a concept that emerged during the 19th century before finding its consummate expression in the mayhem and destruction perpetrated by both the fascist and “democratic” imperialist governments during the Second World War—is explicitly or implicitly allowed by the Pentagon guidelines.
Every nominal restriction on the DOD’s war-making powers included in the manual is accompanied by caveats that confer virtually unlimited discretion on US military commanders to employ violence in the service of US strategic aims. The manual carefully avoids any language that might discourage commanders from planning offensive operations. There are gaping loopholes in every section designed to instill confidence that there will be no penalty for the indiscriminate use of force.
The manual authorizes US commanders to engage in strategic bombing, attacks on civilian commercial infrastructure, blockades and sieges. It authorizes the establishment of mass detention and forced labor camps.
Hiroshima in 1945
Of course, throughout its history, US imperialism has committed horrific violations of international laws along these lines, carrying out collective punishment, mass slaughter of populations, and the destruction of urban areas in Germany, Japan, Korea, Vietnam, Cambodia and, most recently, Iraq.
The military campaign launched against Iraq in 2003 reduced one of the most advanced economies in the Middle East to a level of social development comparable to that of the poorest countries in the world. Some 4-5 million Iraqis were killed, displaced or disappeared as a result of the US war and occupation. More than half of Iraqi doctors were killed or forced to flee the country. Reports published in 2007 by Iraq’s Statistical Bureau showed that, four years after the war was launched, fully 43 percent of Iraqis were living in “absolute poverty,” without reliable access to food, housing or clothing.
Prior to the release of the DOD manual this year, however, the US high command employed such methods in defiance of its own regulations, which still included clearly worded prohibitions against wanton destruction of civilian infrastructure and populations. The last comprehensive document on military law issued by the US Department of Defense, the 1956 US Army Field Manual on the Law of Land Warfare, still maintained that military operations could not be launched if it was known in advance that they would lead to large-scale civilian casualties.
While including formal prohibitions against the slaughter of civilians similar to those contained in the 1956 document, the new manual provides conceptual loopholes based on notions of “military necessity,” “expected military advantage,” etc.
The publication of the DOD manual is thus enormously significant as an official assertion by the US ruling elite of its “right” to demolish entire societies and peoples in pursuit of its political goals. Undoubtedly, the DOD manual was crafted with an eye toward legalizing, after the fact, the crimes committed against Iraq by US imperialism.
Under the manual’s guidelines, direct mass killing of civilians is effectively legalized, so long as the relevant US military officers consider that attacks around or against civilian targets are weighed “in relation to the concrete and direct military advantage expected to be gained.” (P. 187)
Predator drone firing a Hellcat missle
Commanders are authorized to conduct operations that they know will lead to large numbers of civilian deaths, as long as their subjective assessment finds that such operations contribute to “the broader imperatives of winning the war.” This applies even when the “military advantage” to be gained from a proposed attack could not be understood by an “outside observer,” i.e., on the basis of any objective or universal criteria.
“The military advantage expected to be gained from an attack might not be readily apparent to the enemy or to outside observers because, for example, the expected military advantage might depend on the commander’s strategy or assessments of classified information,” the manual states. (P. 213)
“The weighing or comparison between the expected incidental harm and the expected military advantage does not necessarily lend itself to empirical analyses,” the document adds. (P. 128)
“In less clear-cut cases, the question of whether the expected incidental harm is excessive may be a highly open-ended legal inquiry, and the answer may be subjective and imprecise,” the manual declares. (P. 245)
In defining what constitutes a legitimate military target, DOD employs a definition that is so broad as to encompass the entire economy and civilian population of enemy states. The manual authorizes destruction of basic infrastructure, including housing stock, power generation facilities, water facilities, and food supply chains of enemy states. Any object that contributes to the “war-fighting capacity” of the enemy nation, even in an indirect manner, is declared by the manual to be a legitimate target. (P. 206)
“The term ‘military objective’ means combatants and those objects during hostilities which, by their nature, location, purpose, or use, effectively contribute to the war-fighting or war-sustaining capability of an opposing force,” the manual reads.
“It is not necessary that the object provide immediate tactical or operational gains or that the object make an effective contribution to a specific military operation. Rather, the object’s effective contribution to the war-fighting or war-sustaining capability of an opposing force is sufficient… The advantage need not be immediate.” (P. 210)
“The law of war does not require that attacks on a military objective be conducted near ongoing fighting, in a theater of active military operations, or in a theater of active armed conflict.” (P. 199)
In a critique of the target selection practices called for by the manual, entitled “The Defense Department Stands Alone on Target Selection,” Professor Adil Haque of the Rutgers School of Law-Newark notes that the manual effectively authorizes US commanders to carry out attacks regardless of the civilian death toll that is likely to result.
“A deeply troubling provision in the Defense Department’s new Law of War Manual suggests that commanders are not legally required to minimize civilian casualties when selecting between different targets,” Haque writes. “The United States is not legally required to select targets so as to reduce collateral harm to civilians.”
Large sections of the manual are devoted to siege, enforced starvation and occupation of densely populated urban areas. It authorizes the erection of ghettos and security cordons to restrict the movement of civilians.
“Starvation is a legitimate method of warfare,” the DOD manual states. (P. 291) “In particular, it is permissible to seek to starve enemy forces into submission.”
During siege warfare, US military commanders are authorized, among other things, to destroy supply lines that are relied on by the civilian population for food and other essential goods. “States may institute general food control programs that involve the destruction of crops and the adequate provision of the civilian population with food,” the manual reads in the section entitled “Starvation of Enemy Forces Not Prohibited.” (P. 1,037)
It advises US officers to allow passage of “certain categories of civilians,” implying that much of the civilian population can be left for dead inside the encircled area. Commanders are authorized to completely isolate urban areas, refusing the movement of even the most basic humanitarian goods into the siege zone.
“A commander of an encircling force is not required to agree to the passage of medical or religious personnel, supplies, and equipment,” the manual states. (P. 316)
The implications of this doctrine were already demonstrated in the US military’s 2004 siege of Fallujah in Iraq. Tens of thousands of Iraqi men between the ages of 15 and 55 were prevented from fleeing the city prior to a devastating US bombardment that destroyed some 60 percent of the city’s buildings, irradiated the entire area with toxic munitions byproducts, and permanently reduced the population by as much as 50 percent.
The manual authorizes the use of illegal weapons, another practice commonly understood as a feature of total war, including cluster bombs and nuclear weapons, against a range of “military objectives,” including “mountain passes, hills, defiles, and bridgeheads, villages, towns, or cities” whose seizure is militarily important. (P. 215)
“Under certain circumstances, it may be advantageous to use cluster munitions,” the document reads. “The United States has determined that its national security interests cannot be fully ensured consistent with the terms of the Convention on Cluster Munitions.”
Employing a formula that becomes all too familiar to any reader of the manual, the document openly authorizes use of nuclear weapons based on calculations of “military advantage.”
“Attacks using nuclear weapons must not be conducted when the expected incidental harm to civilians is excessive compared to the military advantage expected to be gained,” the document states. (P. 420)
Such formulations amount to a green light to do anything. Would the DOD high command consider the destruction of China’s key military and economic infrastructure to be militarily advantageous? Of course, and therefore nuclear attacks would be justified.
In fact, the DOD’s Air Sea battle plan envisions a crushing first strike against the Chinese mainland, using a level of force so overwhelming as to prevent any possibility of retaliation by the Chinese military.
Brushing aside democratic legal principles that have been developed over centuries, the manual asserts the absolute power of the US military-security apparatus to detain civilians anywhere on the planet. “Detention is fundamental to waging war or conducting other military operations,” the Pentagon lawyers assert in the opening lines of the section “Detention: Overview and Baseline Rules.” (P. 515)
Prisoners in the Sachsenhausen concentration camp, 1938
While the executive branch has already asserted similar prerogatives with the passage of the National Defense Authorization Act of 2012, it remains significant that the DOD now openly maintains its own sweeping powers to act as an independent branch of government, exercising essentially limitless authority.
The manual maintains that the Defense Department may re-interpret and negate international agreements that prohibit extra-legal arrests and detentions, upholding the unlimited right of the American national state to nullify well-established international laws.
The DOD lawyers go so far as to cite relevant portions of international law that directly contradict their own positions before sweeping them aside as incompatible with the US government’s interpretations.
“Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful,” a passage from the International Covenant on Civil and Political Rights (ICCPR), reprinted in the manual, states. (P. 50f)
The document then declares that the US government has “understood” such prohibitions not to apply to its own policies. As far as DOD and the US government are concerned, the manual makes clear, the content of international laws is determined by the way in which such laws are re-understood by top US military attorneys and bureaucrats.
“For example, the right to challenge the lawfulness of an arrest before a court provided in Article 9 of the International Covenant on Civil and Political Rights (ICCPR) would appear to conflict with the authority under the law of war to detain certain persons without judicial process or criminal charge,” the manual reads.
“However, the United States has understood Article 9 of the ICCPR not to affect a State’s authorities under the law of war, including a State’s authority in both international and non-international armed conflicts to detain enemy combatants until the end of hostilities.” (P. 50)
The manual goes on to outline authorizations for DOD to create specific legal instruments in order to overcome any remaining legal obstacles to its detention powers, allowing for the creation of “Ad Hoc Legal Instruments or Frameworks” and “Special Courts.”
According to the manual, “Detaining Powers” may segregate detainees in prison camps based on racial and ethnic criteria. “Detainees may be segregated into camps or camp compounds according to their nationality, language, and customs, and the Detaining Power may use other criteria to segregate detainees for administrative, security, intelligence, medical, or law enforcement purposes.” (P. 498)
US military authorities are empowered to carry out mass resettlement of populations for “imperative military reasons.” Under the heading “Displacement of the Civilian Population,” the manual states: “The Occupying Power may undertake total or partial evacuation of a given area if required for the security of the population or for imperative military reasons.” (P. 778)
And further: “The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand.” (P. 1,035)
The manual outlines procedures for military occupation and imposition of martial law on subjugated territories. Protocols are formulated in extremely general terms, making clear that the entire world, including the US “Homeland,” is viewed as actual or potential Occupied Territory.
Inhabitants of territory under US military rule must submit unconditionally to the dictates of the “Occupying Power,” rendering “strict obedience to the orders of the occupant,” the manual states in the section “Suspension and Substitution of Governmental Authority.”
US commanders may “exercise authority over all means of public and private transportation, whether land, waterborne, or air, within the occupied territory, and may seize them and regulate their operation,” the manual asserts.
Lest there be any illusions that protocols for military occupation and suspension of constitutional government do not apply within the borders of the United States, the manual announces that the DOD-promulgated law of war policies are being integrated into US domestic law. “Law of war requirements have also been incorporated into domestic law, policy, regulations, and orders,” the document states (P. 1,057).
In the section on “Non-International Armed Conflict,” the manual develops another conceptual loophole that enables US forces to violate the Geneva Conventions and other international laws when engaged in operations against persons or organizations that are not formally part of an internationally recognized state.
Whereas the manual assigns some limited relevance to international laws in relation to military conflicts against rival national states, non-international armed conflicts are said to be conducted under the essentially limitless authorities assigned by the manual to the US government as the world’s most powerful national state.
Non-state actors cannot claim the legal status of national governments and are essentially considered to be legally naked, that is, fully at the mercy of the US government and not entitled to the minimal protections afforded to captured enemy POWs.
“The sovereign equality of States is not applicable in armed conflicts between a State and a non-State armed group. A State may exercise both sovereign and belligerent rights over non-State armed groups.” (P. 1,025)
“The limits imposed by international law on a State’s action against non-State armed groups do not alter the basic principle that the State may exercise its sovereign powers against the non-State armed group…
“Although, during international armed conflict, lawful combatants are afforded certain immunities from the enemy State’s jurisdiction, persons belonging to non-State armed groups lack any legal privilege or immunity from prosecution by a State that is engaged in hostilities against that group.” (P. 1,025)
Such language serves to put US officers on notice that, in confronting insurrectionary movements by the American and international working class, they are permitted to cast aside all restraints conventionally associated with the law of war as it has evolved over centuries.
As previous segments have noted, key conceptions advanced in the Pentagon’s Law of War Manual amount to little more than a rehash of authoritarian legal theories upheld by the Nazi regime and other fascist governments.
The Department of Defense (DOD) manual’s protocols for enforcing the law of war and establishing the legality of military orders fall into this category, bearing an eerie resemblance to the doctrine asserted by the main defendants at the Nuremberg Tribunal—that they were “just following orders.” In flat contradiction to the principles upheld at Nuremberg, subordinates are instructed to “presume” that commands are lawfully issued and are granted sweeping immunity from responsibility for war crimes committed under orders from the military brass.
US military personnel are instructed and trained to regard orders emanating from the command unit as legal by default, the DOD manual states. The document states: “Subordinates, absent specific knowledge to the contrary, may presume orders to be lawful. The acts of a subordinate done in compliance with an unlawful order given by a superior are generally excused.” (P. 1,148)
“Except in such instances of palpable illegality, which must be of rare occurrence, the inferior should presume that the order was lawful and authorized and obey it accordingly,” one footnote declares, citing Winthrop Military Law and Precedents in defense of this position. (P. 1,058f)
Lt. Col. Oliver North testifying during the Iran-Contra congressional hearings in 1987
In cases of ambiguity, junior officers are encouraged to concoct an “interpretation” of orders that might render them more lawful. “Commands and orders should not be understood as implicitly authorizing violations of the law of war where other interpretations are reasonably available,” the manual states.
The authors write that the law is enforced through “military instructions, regulations and procedures” issued by the Pentagon. “The implementation of law of war treaties and obligations through military instructions, regulations, and procedures has the effect of making such rules enforceable because military personnel are required to comply with duly issued instructions, regulations, and procedures,” the manual states. (P. 1,069)
These formulations point to the fact that there is no real distinction between the decrees of the Pentagon bureaucracy and the DOD “Law of War”, which, far from being actual law, is merely a special collection of military orders issued by cabals of military lawyers and career defense officials.
In addition to its international significance, the Law of War Manual summarizes and integrates plans for mass repression and martial law within the US itself that have been developed since the late 1960s by the US Defense Department in direct response to the political radicalization of the working class and layers of the middle class.
The procedures governing mass detention enumerated in the Law of War Manual have already been partially worked out by numerous agencies and programs run by the Department of Defense Civil Disturbance Directorate, the Federal Emergency Management Agency (FEMA), and the Department of Homeland Security, which now incorporates FEMA.
The driving impetus behind these preparations has been the threat of insurrectionary struggles by the working class and the associated growth of anti-war sentiment within the population.
In the aftermath of the 1967 urban upheavals, DOD established the Directorate of Civil Disturbance Planning and Operations as a permanent body to oversee plans for suppression of domestic unrest by federal troops.
The Mochida family awaits evacuation to an internment camp in 1942
Beginning in 1968, US military planners developed frequent updates to the US Army Civil Disturbance Plan, codenamed “Operation Garden Plot.” Updated on an almost yearly basis since then, Garden Plot calls for the rapid deployment of federal military forces to every major city in the US, with initial contingents of troops scheduled to arrive within six hours of call-up. The plan was touted by its original architects as a “counterrevolutionary” response to the mass strikes, anti-war protests, ghetto uprisings, and radicalization of university campuses during this period.
Garden Plot operations were to be activated in response to “strikes, civil disturbances and labor disturbances which affect military installations or other strikes or labor and civil disturbances of sufficient magnitude to indicate a probable employment of Federal troops to preserve or restore order.”
The document continued: “Civil disturbances which are beyond the control of municipal or state authorities may occur at any time. Dissatisfaction with the environmental conditions contributing to racial unrest and civil disturbances and dissatisfaction with national policy as manifested in the anti-draft and anti-Vietnam demonstrations are recognized factors within the political and social structure. As such, they might provide a preconditioned base for a steadily deteriorating situation leading to demonstrations and violent attacks upon the social order.”
Garden Plot called for “saturation of areas with police and military patrols,” continuous helicopter sorties over targeted areas, and deployment of artillery, tanks, tactical air support and psychological warfare against demonstrators in US cities.
“Disturbances requiring Federal intervention will occur simultaneously in up to 25 objective areas throughout the CONUS [continental United States], necessitating the employment in each objective area of up to five 2,000-man brigades plus supporting troops, with the exception of Washington, D. C., when forces totaling 30,000 troops may be employed,” the plan stated. (Quoted from “US Department of the Army Civil Disturbance Plan ‘GARDEN PLOT’ 10-September-1968”).
Planning for Continuity of Government (COG), a euphemism for martial law, “assumed its current shape in response to the mobilization of US Army intelligence and the CIA against left-wing Americans during the civil disorder of the 1960s and 1970s,” as Peter Dale Scott noted in his study of the growth of the military-intelligence apparatus during the postwar era (9/11: Wealth, Empire and the Future of America, 11).
To provide intelligence for domestic counterinsurgency operations, during the 1960s and 1970s the DOD oversaw the establishment of Emergency Operations Centers (EOC), staffed by cells of federal military intelligence analysts maintaining constant communication with the Pentagon’s “domestic war room” in National Guard headquarters across the country.
These initiatives were jumpstarted in May 1971 with the establishment of the California Specialized Training Institute (CSTI), authorized by then-Governor Ronald Reagan. Between 1971 and May 1975, more than 4,000 officials from the National Guard, the Army, police agencies and private corporations received training in “emergency preparedness” at the CTSI in San Luis Obispo.
As the social counterrevolution gained steam after 1975, martial law planning was steadily embedded in the upper reaches on the state apparatus and institutionalized through further executive orders.
The past four decades have witnessed a feverish build-up of authoritarian legal and political instruments that have been entrenched as a permanent part of the executive branch. Virtually every year has seen new orders and protocols developing the scaffolding of a police state.
The duration and continuity in such planning demonstrates that it is not simply the initiative of this or that reactionary bourgeois politician, but rather something that emerges organically from class relations within the United States and the deteriorating position of American imperialism in the world.
The Law of War Manual expands upon existing DOD plans authorizing mass detention of US citizens, dating from at least the 1970s. The 1978 update of the US Army Civil Disturbance Plan called in no uncertain terms for DOD to prepare to establish detention camps in liaison with state and local agencies.
“Plans for detention assistance to civilian authorities will range from the absolute minimum, such as assisting civil police in the guarding of civilians apprehended and awaiting transfer or en route to detention facilities, to the establishment and operation of temporary detention facilities to supplement those operated by civil authorities,” the document stated.
The civilian apparatus of the US government was increasingly remodeled over decades to serve as the administrative wing of the emerging military dictatorship-in-waiting. Executive decrees issued by the Carter administration consolidated civil and military planning for “national emergencies” under the control of the newly created Federal Emergency Management Agency (FEMA). Executive Order 12148, signed by President Carter in 1979, mandated continuous joint preparations by FEMA and DOD aimed at “civil defense planning.”
The Miami Herald of July 5, 1987 documented the existence of a “parallel government behind the Reagan administration engaged in secret actions including ... a contingency plan to suspend the Constitution and impose martial law in the United States in case of nuclear war or national rebellion.”
In the early 1980s, the Reagan administration presided over a further entrenchment of martial law planning cadres within the highest levels of the executive branch. In 1981, CTSI lead planner Colonel Louis Giuffrida was appointed “emergency czar” by President Reagan.
Giuffrida had attracted favorable attention from political forces assembled around the future President Reagan for his role in the development of the CTSI and his US Army War College thesis paper, “National Survival/ Racial Imperative,” which envisioned plans for detention of millions of “American Negroes” in “assembly centers or relocation camps.”
In December 1982, Reagan approved the formation of the Emergency Mobilization Preparedness Board (EMPB) to serve as a planning body for an expanded “Civil/Military Alliance in Emergency Management,” headed by FEMA and DOD.
It was while sitting as a member of the EMPB that Lt. Colonel Oliver North of Iran-Contra notoriety developed the REX 84 plan, a major precursor to the 2015 Law of War Manual.
As described by Alfonzo Chardy, a journalist who exposed the plans in a 1987 article for the Miami Herald, REX 84 outlined procedures for “suspension of the Constitution, turning control of the government over to the Federal Emergency Management Agency, emergency appointment of military commanders to run state and local governments, and declaration of martial law during a national crisis.”
Public exposure of REX 84 by Chardy and its mention during a congressional hearing on the Iran-Contra scandal, which involved the secret and illegal funding of the Nicaraguan Contras by the US government, did not succeed in slowing the elaboration of the legal and political foundations for direct military rule.
Expanding upon the Carter administration’s Executive Order 12171, Executive Order 12681, signed by President George H. W. Bush in 1989, exempted FEMA’s National Preparedness Directorate from the National Labor Relations Act, authorizing FEMA to develop forced labor programs and oversee the direct takeover of sections of the economy by the military and intelligence agencies.
The twenty-five years since the dissolution of the Soviet Union have witnessed a further intensification of preparations for military occupation of the continental United States. The Bush I, Clinton, and Bush II administrations all oversaw large-scale mobilizations of the US military against the domestic population.
In April 1992, the Bush I administration ordered thousands of federal soldiers, Marines and intelligence agents to occupy Los Angeles in response to the riots that began on April 29. During the Republican National Convention in August of 2000, DOD placed federal military units on standby “to execute Operation Garden Plot and quell any serious civil disturbances,” according to confidential FEMA documents acquired by Wired News. (Declan McCullagh, US military poised to respond to attack on GOP convention, Wired News, August 2000)
In April 2002, the Bush administration authorized the creation of the US Northern Command (NORTHCOM) as part of a new “Unified Command Plan.” NORTHCOM, the first full-blown US military command focusing on the continental United States, was the descendant of military commands tasked with preparing and developing Garden Plot over the previous period. A NORTHCOM planning document leaked in 2010, titled CONPLAN 3501, showed that the command had rapidly developed a highly detailed division of labor for military occupation of the continental United States during the years following its formation.
The Law of War Manual is a watershed in the breakdown of American bourgeois democracy and the repudiation by the ruling elite of the democratic principles laid down in the Constitution. Outside of a brief protest by the New York Times, in a single editorial, the corporate-controlled media has said nothing about the new codification of Pentagon doctrine. Nor have any of the presidential candidates, Republican or Democratic, from the “libertarian” Rand Paul to the supposed “democratic socialist” Bernie Sanders.
As envisioned by the manual, the US military apparatus becomes the ultimate legal authority on the planet, making up and modifying its own “laws” in the course of military operations aimed at subjugating the entire world population to its dictates.
Rather than the outcome of megalomania on the part of US generals and officials, the manual flows from the objective logic of the development of capitalism as a world-historic social formation.
As Vladimir Lenin explained in his epochal work, The State and Revolution, beginning from the late 19th century, the development of the capitalist state in general has been characterized by the “perfecting and strengthening of the ‘executive power,’ its bureaucratic and military apparatus.”
Miltary forces doing house-to-house searches during the Boston lockdown in April, 2013 [Photo: rilymoskal7]
Despite differences in the forms of government of various capitalist nations, Lenin explained, there remains a clear universal tendency toward the increasing centralization of power in the hands of the vast and permanent bureaucracies that constitute, in every capitalist state, a veritable “permanent government” that remains in power no matter which parties or individuals have won the latest round of elections.
In another of his central works, Imperialism: The Highest Stage of Capitalism, Lenin identified the essential economic processes driving this development. From the 1870s onward, the growth of monopolies and the extraction of super-profits from colonial or semi-colonial countries ensured the ever-greater concentration of wealth and power in the hands of financial oligarchies.
As Leon Trotsky, co-leader with Lenin of the Russian Revolution, explained in the Manifesto of the First Congress of the Comintern, the major US and European finance houses integrated themselves with the military agencies of the bourgeois state during and after the First World War. “Finance capital, which plunged mankind into the abyss of war, itself underwent a catastrophic change in the course of this war,” Trotsky wrote in 1919.
“During the course of the war, the regulating-directing role was torn from the hands of these economic groups and transferred directly into the hands of the military-state power. The distribution of raw materials, the utilization of Baku or Rumanian oil, Donbas coal, Ukrainian wheat, the fate of German locomotives, freight cars and automobiles, the rationing of relief for starving Europe—all these fundamental questions of the world’s economic life are not being regulated by free competition, nor by associations of national and international trusts and consortiums, but by the direct application of military force, for the sake of its continued preservation.
“If the complete subjugation of the state power to the power of finance capital had led mankind into the imperialist slaughter, then through this slaughter finance capital has succeeded in completely militarizing not only the state but also itself; and it is no longer capable of fulfilling its basic economic functions otherwise than by means of blood and iron.” (The First Five Years of the Communist International, Volume 1, P. 46)
With these conceptions, Trotsky and the Third International had already recognized the main tendencies of imperialist development that would dominate the interwar years and reach new heights during the post-World War II era.
With the passage of the National Security Act of 1947—legislation drawn up by Wall Street’s favored law firms that created the Central Intelligence Agency, the National Security Council, and the US Air Force—the major US banks laid the foundations for the growth of a permanent “national security state” on a scale far beyond anything that had existed when Lenin first wrote of the “perfecting” of the bourgeois state.
The closing decades of the 20th century and the first 15 years of the 21st have witnessed an explosive growth of social inequality, as the US ruling class turned to financialization and dismantled vast sections of industry. Under these conditions, the Law of War Manual amounts to nothing less than a call for “all hands on deck” in defense of the capitalist order. Engaged in a relentless counterrevolutionary offensive that is destroying the living conditions of the vast majority of the global population, and facing an American population that is increasingly hostile towards all of the official institutions, the military chiefs in Washington and their paymasters on Wall Street are preparing to defend their privileges by means of dictatorship at home and total war internationally.