The legal issues surrounding counterinsurgency highlight missed opportunities for adequate legal guidance. They do not raise concerns about the legality of the actions of counterinsurgency, as is the case with targeted killings. Counterinsurgency, as such, does not transgress international law, so long as its actions comply with the laws of occupation and the laws of armed conflict.

As for mandating intensified civil-military relations in a counterinsurgency environment, legal means exist, or can be developed, to do so. The question remains whether any legal framework that mandated civil-military processes would be sufficient to overcome the problems of bureaucratic inertia, turf hoarding, personal chemistry, or even “double government” discussed in Chapter 4. Thus far, expressions of concern and intent in widely respected commission reports – and even the significant reorganization of cabinet departments and intelligence structures – have not materially altered bureaucratic “stovepipes.” Executive orders and (rather weak) requirements written into the Department of Defense authorization and appropriations legislation have not effected dramatic changes in standard operating procedures.

The Clinton-era Presidential Decision Directive 56 (PDD 56) mandated civil-military planning and training, and created a structure within the National Security Council (NSC) to help assure civil-military collaboration in cases of military intervention and complex peace operations. It was distilled from the interventions and peace operations experience of the early 1990s particularly “Operation Provide Comfort”, the allied efforts to protect the population in northern Iraq after the first Iraq war, and the American debacle in Somalia. PDD 56 required that the Deputies Committee of the NSC create an Executive Committee to develop a “political-military” plan to integrate all elements of a U.S. response to a crisis. The process was elaborate, and the training and “rehearsals” of the planning process were designed to provide an integrated outcome in which all the necessary actors had a role. An early draft of the concept was previewed in Haiti in 1994, when the capitulation of the government made a peacebuilding operation possible.