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In the wake of AP reporting on NYPD-CIA domestic surveillance, Army Maj. Gen. Frederick Rudesheim has been assigned to review a DoD presentation, with a report due May 24, 2012.

Some of the public interest relates to questions, during overseas and domestic intelligence and combat operations, whether civilians are or are not protected under Geneva.

NYPD created documents and gathered intelligence useful for conducting interrogations of American civilians.

Other interest relates to whether it is appropriate for DoD personnel to be trained on "Islamic Ideology" without a logical connection to enemy warfighting doctrine.

Foreseeable War Crimes Evidence Retention Requirement

Legal counsel connected with Congress and the US government are reminded of your legal duty to exercise independent judgement, not parrot the flawed policy guidance of uninformed personnel.  You are also reminded that there can be serious consequences when legal counsel refuse to enforce the laws of war, especially with regard to Geneva protections afforded to civilians.

Summary

The NYPD-CIA domestic surveillance issues are a subset of civilian law enforcement inputs to Joint and Coalition Warfare training and planning in J7, Operational Plans and Joint Force Development.

It remains a matter of continuing public interest whether the NYPD-CIA domestic surveillance is assisting law enforcement and the US military to create, establish, and institutionalize a system of surveillance, interrogation, and (possible) civilian abuses similar to other police forces.

The US government engages in normal, routine discussions related to operational military plans.  Some discussions include which operational assets and legal constraints exist.  When developing United States warfighting doctrine, warfighters consider inputs from various sources, including assessments of enemy doctrine.  

One question is whether it is appropriate for DoD leaders, when developing plans and threat assessments, to use academic material focusing on enemy ideology, without balanced operational inputs from covert double agents working with the enemy.

One detention question is whether Geneva protections exist for persons accused of crimes.  However, the proper legal question, which the JAGs well know, is what are the consequences for the United States for not fully providing Geneva protections and rules of procedure to civilians and non-uniformed combatants before they are accused and sentenced for alleged war crimes.

Without a balanced US approach to enforcing Geneva and affording civilians and non-uniformed combatants protections, foreign powers may lawfully remove Geneva protections in similar situation when interacting with American military and non-uniformed military personnel.

Geneva protections cannot be stripped lightly. After WWII, there was careful attention given to whether proper procedures were available to defendants. It may be true that a civilian should be stripped of some Geneva protections, but that legal conclusion should be one that is subject to judicial review, not an (unchallenged) assumption when developing an operational plan governing the detention and interrogation of American civilians.

Details

Wired's article points to a presentation.

Some raised questions about the appropriateness of providing this information to DoD personnel, and forwarded copies to Wired.  

Army General Rudesheim was assigned to review the Dooley presentation, or "training material."

A. Announcement of Investigating Officer

Wired called attention to a pending DoD investigation:

By then, Dooley had already presented his apocalyptic vision for a global religious war. Flynn has ordered a senior officer, Army Maj. Gen. Frederick Rudesheim, to investigate how precisely Dooley managed to get away with that extended presentation in an official Defense Department-sanctioned course. The results of that review are due May 24.

Source: Wired, May 10, 2012

Last May 2011, the President assigned Rudesheim to be deputy director J-7 for Joint and Coalition Warfighting this DoD organization:
J-7 for Joint and Coalition Warfighting

This new organization will synchronize adaptive joint training, doctrine,  concept development and lessons learned to ensure a comprehensive approach for development in the areas of joint and coalition doctrine, organization, training, materiel, leadership and education, personnel and facilities.

Analysis

An appropriate "lessons learned" is whether DOJ OLC memos related to prisoner detention and treatment are or are not incorporated into DoD military plans and forseeable detention and interrogation of American civilians.

Appropriate questions relate to whether IOB and J7 legal counsel have promptly and diligently discussed with JAGs relevant Geneva compliance issues related to the detention and interrogation of American civilians.

The wording within Wired suggests Rudesheim will review the history of the Dooley presentation:
Likely Investigation Topics: Related to Rudesheim's Mission and Wired's Announcement

- DoD Guidance Dooley considered related to the topic

- Scope of legal questions raised

- Origins of adversary combat doctrine

B. Presentation Disclaimer Inconsistent with DoD "Concern"

Dooley makes an important disclaimer, which, on the surface should have put to rest any concerns about the content:

Dooley: The concepts considered herein are not the Official Policy of the United States government or the DoD, nor are they in any part listed within the current NSS, NDS, QDR, QDDR, or any official DoD document.
However, DoD is acting as if the presentation was sanctioned; related to some soft of official policy; or tied to subsequent planning within DoD.

Indeed, one working group list  [discussed here] raises similar issues in the Dooley presentation.

C.  Legal Questions Raised in Dooley Presentation Similar to Other DoD Debates

It's not a surprise that Geneva and other legal issues are getting debated; or that there are war planners and leaders who are reviewing situations where those legal protections might be ignored.

Dooley raises the prospect of denying Geneva protections to certain classes of civilian detainees:

Civilian Protections Under Geneva

This model presumes Geneva Convention IV 1949 standards of armed conflict . . .are no longer relevant . . .

Source

Also, the unrelated working group also questioned whether certain legal standards were or were not applicable:
Working Group:

Relevant Legal Framework
. . .
Limits and liability of the Military's use of force against civilians during WMD-CM
. . .
Use of the Military, to include
· Posse Comitatus
· Federalized National Guard
· Titles 10 & 18
· Interagency Agreements -military as last resort

D. Flawed Assumption of Dooley Briefing: Inconsistent with USG Disclosures About Intelligence Operations

One of the assumptions of the briefing was that the enemy's ideology must be studied to better understand their intentions. Dooley, at 4 of 28, writes, "In war, "intelligence" must first begin with an assessment of the enemy's doctrinal template - not what we say they are, but what they say they are. . ."

Dooley's approach is analogous to studying the bible to derive US warfighting doctrine. However, rather than derive operational doctrine from ideology, a more robust approach is to use existing operational intelligence from well placed double agents, well connected to the Al Qaeda leadership.

Double Agents: Direct Information

But the bomber was actually a double agent, working with the CIA, Saudi intelligence agencies and the MI6. The double agent turned the bomb over to the U.S. government.
. . .
The operation shows the close cooperation among the U.S., Britain, and Saudi Arabia, whose intelligence service played a major role in infiltrating the organization, and helping communicate with the agent.

Source: EILEEN SULLIVAN and KIMBERLY DOZIER (AP)

Analysis

Rather than focusing on ideology when deriving enemy warfighting doctrine, it's more relevant for warfighters to consider the intelligence from double agents working with the enemy.

It cannot be argued that American civilians should endure abuses on the pretext of "protecting national security," when the very intelligence personnel acting in a covert capacity within AlQueda have been disclosed publicly.

The job of warfighters is to defend the Constitution, which includes all treaties; and follow lawful orders.  It is absurd for war planners to invert the relationship, place American citizens outside Geneva protections, then disclose sensitive intelligence information related to covert agents working with Al Qaeda.  The job of the military is to defend the Constitution, not make excuses to abuse American civilians, or create plans where that abuse is institutionalized during detention or interrogation.

Conclusions

Dooley's presentation was part of the normal internal discussions DoD personnel have when supporting operational planning.  Although uncomfortable, DoD personnel do consider options to make exceptions to Geneva, even when interacting with American civilians.

There is no credible DoD "shock" about the contents of the Dooley presentation. The legal questions are part of normal internal policy discussions and debates.  The important legal question isn't narrowly what the briefings say, but how that material is subsequently used to justify DoD policies when interacting with civilians.

It's interesting that the Army officer reviewing the training material related to understanding enemy warfighting doctrine is assigned to a DoD component whose mission is to work with law enforcement, use local community connections, and support domestic combat operations.

Rudesheim's current assignment gives him a birds eye view to the challenge of developing operational DoD plans to, if needed, conduct military operations within the United States.  His assignment brings him into contact with law enforcement intelligence personnel who provide information to DoD war planners.

Although Rudesheim may have unlimited access to information related to the development of Dooley's presentation, it does not seem likely Rudesheim will address issues of greater public interest:

Are JAGs adequately involved with the current legal discussions within DoD on the use of force domestically against American civilians;

To what extent are American leaders connected with the National Security Council working with credible DoJ OLC legal memos related to the use of force against American civilians;

How have the lessons learned about flawed DOJ OLC memos re Geneva applicability to detention been incorproated into DoD Joint and Coalition warfare planning, training, and legal compliance audits;

Are the criteria DoD planners and leaders use to exclude some civilians from the decisionmaking process during domestic crisis and combat operations consistent with the intent of civilian control of the military

Is DoD spending too much time talking about theoretical notions of foreign combat doctrine without adequately including operational inputs from well-placed double agents within the ranks of American enemies

Could presentations to USG leaders be improved by focusing less on statements about an enemy's ideology, and including enemy operational plans gleaned through well placed double agents.

It remains to be seen whether his report will be one that focuses on fact finding about the Dooley presentation; or is one that attempts to deflect attention from important legal debates continuing inside DoD, not limited to questions surrounding the domestic use of law enforcement to provide war planners within important information during pre-interrogation planning.

There are ongoing discussions within the US government on challenges of fighting terrorism within the current legal constraints. Rather than focus on creative uses of available informants, some DoD planners connected with ODNI have made excuses to breach Geneva and other legal constraints.

The DoD "concern" with the presentation isn't about the content, but in inconvenient conclusions: That despite actionable intelligence from sources within AL Qaeda, DoD academia are focusing on disconnected Islamic ideology to speculate on tactical, theater, and operational doctrine of opposing forces.

DoD planners in other working groups have raised raised similar legal issues which complement the Dooley briefing. It is no surprise some DoD-IC personnel continue to question the applicability of Geneva to civilian detainees.

DoD does not have a firm grasp of legal requirements applicable to military operations conducted on US soil, especially when interacting with civilians.

Judgements

Flawed DOJ OLC memos re prisoner treatment and civilian detention have improperly affected Joint Staff operational plans, especially those connected with Joint and Coalition Warfare.  DoD is not concerned that the presentation was provided to DoD leaders, but that the public has more information showing DoD is considering whether to ignore, not enforce, or make exceptions for certain legal protections for American civilians.

Civil and military interrogators use NYPD-CIA domestic surveillance information when building rapport in support of US combat operations near and around NYC.  NYPD-CIA domestic surveillance is designed to develop "demographic" information useful to DoD war planners and operational warfighters.  

If combat units are deployed on American soil, law enforcement and military personnel assigned to JTTF and CIFA will likely be tasked to conduct interrogation of American civilians, and forward information gleaned from local law enforcement through ODNI to the NSC and White House.

Dooley's presentation is not a mature document useful for war planners.  DoD warplanning is not based solely on academic interpretations of enemy religious ideology, but includes operational intelligence derived from well placed informants within the ranks of opposing military forces.

The DoD investigation into the Dooley presentation will shield intelligence sources within domestic law enforcement, which would support special operations forces deployed within NYC during a possible domestic incident.

Because of Rudesheim's connection with Joint and Coalition Warfare training and education, the review of Dooley's presentation will not likely include several areas related to NYPD-CIA domestic surveillance activities.

J7 Interest:  Limiting Public Review of Joint and Coalition Warfare Planning and Operational Assumptions

The leadership at Joint and Coalition Warfare have an interest in narrowing the investigation into Dooley's presentation, to avoid reviews and comments on USG military planning and doctrine related to:

(a) Local law enforcement's support of US government plans to domestically use combat forces on American soil, seas, or aerospace in or around NYC;

(b) NYPD-CIA role in gathering "demographic" information useful during interrogation of American civilians in or around NYC;

(c) The appropriateness of relying on NYPD-CIA surveillance to gather information useful to Joint and Coalition Warfare planning in and around NYC;

(d) Law enforcement or NYPD role in bypassing Geneva protections for civilians when US military personnel conducting interrogations of American civilians in support of Joint and Coalition Warfare in or around NYC

Recommendations

1. J7 disclose to, among others:

(a) HASC and SASC details related to plans to ignore Geneva protections afforded to civilians, either stateside or overseas; and

(b) HSPCI and SPSCI related to the relationship between (i) NYPD-CIA surveillance and demographic information; (ii) the J7 Joint and Coalition planning on, near, or above American soil; and

2. J7 review DoD JAG conclusions whether Geneva protections do or do not exist for American civilians detained by American military personnel either stateside or overseas; JAGs should provide an analysis of the J7 legal conclusions to the House and Senate Judiciary Committees.

3. DoD draft and publish publicly a policy on detention of American citizens related to interrogations connected with J7 planning, in or around NYC, similar to DoD guidance for Guantanamo.

4. President's Intelligence Oversight Board request and review a legal analysis of whether Geneva affords American civilians protections if detained and interrogated by US military personnel.  [ More ]

- What operational plans have assumed Geneva protections will be stripped from American civilians, as a going-in assumption;

- Which operational plans have not properly given JAGs the opportunity to comment on the procedures and Geneva protections afforded to civilians and non-uniformed combatants;

- Which IOB legal analysis did Members of Congress review when evaluating the lawfulness of the proposed J7 plans to interrogate American civilians during combat operations in, near, above, or around NYC;

- What types of decision trees, tables, or other guidelines have been provided to local law enforcement, intelligence personnel, or military commanders related to the proper treatment, detention, and interrogation of American civilians during combat operations in, around, above, or near NYC;

- What are the factors used to decide whether that detained American civilian is or is not afforded Geneva protections during interrogation or detention;

- What is the the procedure used to define whether a detained American civilian is or is not denied any or all Geneva protections afforded to American civilians, regardless whether their are alleged to be connected with (a) domestic unrest, (b) international warfare, or (c) terrorist incident.

5. Retain and preserve all information, documents, communications, and legal notes related to the above as forseeably connected with a war crimes investigation, not isolated to United States judicial jurisdiction, but may include foreign power investigation and adjudication.

6. Civilian oversight review 28 USC 5308, Ethical standards for attorneys for the Government; with a summary table for your jurisdiction here.

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