Creating A Better 4GW Legal Framework

Arnold Kling writes in TCSDaily:

If we are going to describe people as enemy agents or traitors in a time of war, then we need a procedure for identifying the enemy. We do not want the decision of who is a spy or who is a traitor left entirely to the discretion of the President and his appointees.

One way to identify the enemy would be with a formal declaration of war. Unfortunately, because the enemy is not a sovereign state, a formal declaration of war is inappropriate. When America declares war, we expect our armed forces to engage in large-scale, brutal assaults until the opposing government surrenders. We cannot defeat terrorist enemies simply by declaring war on a sovereign government and overthrowing that government.

I have been thinking for awhile that the US Constitution needs updating for proper State 4GW:

Constitutional Amendment to update federal declarative war powers for the 21st century and for 3rd/4th/5th Generation War – details TBD in a Future PurpleSlog post.

FuturePurpleSlog is way behind on posts. So, I am going to crib some from Kling to get this started. He writes:

An alternative approach could be to designate specific terrorist groups as enemies. Clearly, Al Qaeda belongs in that category. However, other groups, such as the Tamil separatists or Basque terrorists, might be appropriately designated as terrorists, but not as enemies of the United States.

and

Because the designation of a terrorist group as an enemy is somewhat akin to a declaration of war, such a designation should come from Congress. It should not be left to the State Department in particular or to the Executive branch in general. Moreover, judicial review might be appropriate. One would not want to see Congress abuse its power and start declaring any troublemaking organization an enemy of America.

Ok, this brings Congress into it, is flexible (real “war” against non-state actors) and might help focus U.S. public attention, and will send 4GW messages to our designated enemy (we are coming for you).

Kling writes:

Where the Executive would have some latitude, although with careful oversight by Congress, would be in declaring other terrorist groups to be affiliates of groups that have been named as enemies. In my view, an affiliate ought to be a group that has considerable overlap of membership and infrastructure with the Congressionally designated enemy.

The 4GW messages sent by the US executive to potential allies and fence sitters of the enemy: We are going to destroy our enemy, do really want some of this hurt coming on you?”

Kling list two other advantages:

It constrains the focus of anti-terrorism efforts, especially surveillance. The goal of domestic surveillance would be limited to finding agents of designated enemies. There would be no mandate for the Department of Homeland Security to go on a fishing expedition…

and

It draws a line that can be used to distinguish dissidents from traitors.

Ok, this is a start. Any other suggestions or ideas?

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