The Revolution in Military Legal Affairs:

# Air Force Legal Professionals in 21^st^ Century Conflicts

[Colonel Charles J. Dunlap, Jr., USAF]{.smallcaps}[^1]

### **I. Introduction**

For almost a decade now the American military has been in the throes of
what is known as the Revolution in Military Affairs (RMA).[^2] The
progeny of the larger Information Revolution, the RMA describes the
impact of microchip-based technologies---not just on military equipment,
but also the doctrine, organization, and strategies of warfighting. The
synergistic effect of these impacts has led the U.S. armed forces---and
especially the Air Force---to achieve lopsided victories in Iraq,
Serbia, and elsewhere.

Paralleling the RMA there is what might be called a Revolution in
Military Legal Affairs (RMLA). In a sense, the RMLA is also much the
product of the same technological changes as those that caused the RMA.
As will be discussed below, advanced communications and other new
capabilities already have significantly altered military legal practice
and are poised to generate even more change in the future. However,
technology has stimulated the velocity of the RMLA in ways beyond merely
the mechanics of the practice of law and the organization and doctrine
applicable to legal professionals.

Technology has made law, and especially the law of armed conflict
(LOAC), a central consideration in modern war. Specifically,
international newsgathering organizations equipped with powerful new
communications capabilities bring the raw images of war---to include
possible LOAC violations---almost instantaneously to publics around the
world. Such pictures can have significant impact in democratic states,
as well as nations that---if not "democracies" in the American
sense---are nevertheless dependent upon popular support to wage war.
Professors W. Michael Reisman and Chris T. Antoniou explain:

> In modern popular democracies, even a limited armed conflict requires
> a substantial base of public support. That support can erode or even
> reverse itself rapidly, no matter how worthy the political objective,
> if people *believe* that the war is being conducted in an unfair,
> inhumane, or iniquitous way. [^3]

In short, the ability of today's communications systems to transmit
information to the body politic before leaders can censor or shape it
has become one of the most salient features of modern war. In order to
maintain the kind of public support the militaries need to prosecute a
war, adherence to LOAC in fact and *perception* is essential. Both
military and civilian leaders have come to accept that fighting lawfully
is not just the proverbial "right-thing-to-do," it is a practical---even
Machiavellian---*necessity*.

This phenomenon is a key stimulus for the RMLA. With lawfulness becoming
more and more the measure of success of a combat operation, there is a
need for professionals who not only know the law, but can apply it
appropriately in that unique context. As discussed below, Air Force
judge advocates (JAGs) and paralegals are filling that requirement in
ways unprecedented less than a generation ago. Unsurprisingly, Air Force
legal professionals were among the first to deploy in support of
Operation Enduring Freedom's war on terrorism.[^4] What the RMLA means
in real terms is that today few Air Force commanders would go to war
without a JAG. One might conclude, therefore, that the role of legal
professionals is fully institutionalized within the armed forces and the
Air Force especially.

In truth, the status of military lawyers and paralegals in operational
matters is not yet as firmly established as one might expect at this
stage. Despite flattering remarks by commanders and others in a variety
of forums, there remains an underlying resentment if not hostility among
many in the armed forces to the growing presence and, more specifically,
the influence of lawyers in the conduct of modern conflicts. Critiques
are not commonly articulated for the record, but do exist for operations
from Desert Storm[^5] to Allied Force,[^6] and have already appeared for
Enduring Freedom.[^7] As the significance of law continues to grow in
international affairs, we should expect such appraisals to become more
frequent, penetrating, and potentially antagonistic.

Moreover, despite sporadic references in a number of doctrinal
documents, Air Force legal professionals do not as yet have their own
doctrine. Its absence produces practical, deleterious effects in that
commanders and, just as importantly, planners, have no systemized way of
conceptualizing the legal function into the Air Force's warfighting
architecture. They are reduced to filling the void with *ad hoc* and
idiosyncratic assessments of what is or is not an appropriate use of
legal resources. In combat operations this can result in a hodgepodge of
arrangements that are often personality-driven, and are
therefore---almost by definition---fragile. Though workable solutions
are sometimes stumbled upon, there is a real risk that for any number of
reasons, in some future operations, legal considerations will not get
the attention the exigencies of the RMLA requires. The result could be
disastrous for the mission in a world where public perceptions are as
important (and arguably *more* important) as battlefield success.

Fortunately, the Air Force does have an energetic effort underway to
create doctrine for legal professionals in the operational arena.[^8]
The purpose of this essay is not to critique that effort. Instead, it
will consider the hard-earned experiences of Air Force legal
professionals to outline a 'way ahead' in light of the RMLA. How should
we think about the role of JAGs and paralegals in tomorrow's conflicts?
What do we need to do to ensure that those JAGs and paralegals called
upon to perform in future operations have the type and depth of training
they need to succeed? What are the challenges that will (and, to an
extent, already have) emerged in the 21^st^ century?

### **II. The Rise of Aerospace Law**

### 

As already suggested, the involvement of JAGs and paralegals in
operations is not, *per se*, especially new. They served in significant
numbers in Korea, Vietnam, and later at a variety of fixed overseas
bases during the Cold War.[^9] However, their function was largely
confined to traditional support activities such as military justice,
claims, and legal assistance. International law as practiced in the Air
Force at the base level was principally concerned with foreign criminal
jurisdiction, tax matters, and the occasional immigration issue.

The seeds of the modern concept of JAG operational support are found in
Operation Just Cause, the successful 1989 military effort to oust
Panamanian strongman Manuel Noriega. Then Colonel Bill Moorman, the
12^th^ Air Force Staff Judge Advocate at the time, arranged to get JAGs
into the operation center as well as the planning cells, all with good
effect.[^10] Later, during the Gulf War, JAGs built upon this success
and became significant "players" in such operational matters as the
evaluation of targets, the development of rules of engagement (ROE),
[^11] and other vital operational matters.[^12] Since that time, a
growing number of "steady state" deployments of legal professionals to
the Middle East, the Balkans, and occasionally to Asia and elsewhere
continue the tradition begun in the 1980s.

Although not well known today, the architecture and precedent for JAG
deployments after the Gulf War was much the result of efforts by then
Colonel Jim Swanson during his service as the staff judge advocate (SJA)
for 9^th^ Air Force (1993-96). Colonel (now Brigadier General) Swanson's
advocacy for the inclusion of legal professionals in steady state and
contingency deployments established a template for the Central Command
Air Forces (CENTAF) Area of Operations (AOR).[^13] This is especially
significant as Southwest Asia became among the most common deployment
locations for Air Force legal professionals.

Of particular note is General Swanson's establishment---as a result of
his experiences during Operation Vigilant Warrior in 1994---of the SJA
position at Joint Task Force Southwest Asia (JTF-SWA) as a full-time O-6
billet. The presence of an experienced senior lawyer in the midst of
on-going combat operations planning and execution educated a generation
of senior Air Force leaders to the contribution a military lawyer can
make to mission accomplishment. It has also provided a cadre of senior
JAG leadership with authentic operational credentials and a keen
appreciation of personal and professional demands occasioned by
practicing law in combat zones.

All of this serves to well position the JAG Department to meet the needs
of the Expeditionary Air Force (EAF).[^14] Although relatively small in
numbers at any given moment in time, these deployments -- along with
those elsewhere - have over time involved a significant number of
lawyers and a smaller but still considerable number of paralegals. From
that experience a number of lessons emerge, not the least of which is
that serving at the tactical level in a wing -- where the vast majority
of legal professionals find themselves when deployed -- is substantively
different than serving in a headquarters, and especially an air
operation center (AOC). [^15] The context of the two environments is
sufficiently different so as to warrant the recent separation of the
unit type codes (UTCs)[^16] to reflect the important differences in the
duties to be performed.

Still, both kinds of duty can be considered under the aegis of
"aerospace law." Traditionally, everything that occurred in the deployed
arena was lumped together as "operations law." At one time that might
have been appropriate; however, as we now work to focus training to meet
the bona fide needs of distinct UTCs, it is necessary to add more
fidelity to the lexicon to accommodate the realities of the RMLA.
Properly conceived, "aerospace law" embraces the entire spectrum of
legal activities that in various ways are *directly* related to
operations, and especially combat operations. Within that discipline,
the wing level function can be characterized as the practice of
"expeditionary law," while serving in an AOC represents engagement in
"operations law."

Clearly, in the EAF, all uniformed legal professionals ought to prepare
to practice expeditionary law. Indeed, one might fairly say that there
are three kinds of JAGs and paralegals today: 1.) those that *are*
deployed; 2.) those that *have* deployed; and 3.) those that *will*
deploy. Just as all JAGs are expected to have basic advocacy skills and
be qualified to prosecute and defend[^17] courts-martial, so too must
virtually the entire Department be expeditionary-ready. The same,
however, is not necessarily true with respect to operations law. The
requirement for such personnel will never be as large as for those
expeditionary-qualified. Besides the enhanced knowledge of international
law AOC work requires, all persons working in an AOC---to include legal
professionals---need to learn specialized computer and communications
systems. Thus, it simply does not make sense (nor is it feasible) to
attempt to inject that kind of expertise across the Department. That
said, there are---nevertheless---aspects of each kind of duty warranting
further analysis.

### **III. Expeditionary Law**

"Expeditionary" law is a traditional "wing-level," comprehensive legal
practice conducted in the deployed environment. In most, but not all,
respects it mirrors the kind of law typically practiced at a continental
United States' (CONUS) base but with some important differences,
especially physical ones. Specifically, the expeditionary law
practitioner must be prepared to effectively function in a sometimes
austere and possibly hostile situation. This means that the legal team
must have good physical conditioning and solid airmanship skills. These
would include the ability to set up and maintain living and working
facilities, demonstrated proficiency with the designated firearm, the
capacity to survive and operate in an environment contaminated by
chemical/biological weapons, and more.

Concerning legal personnel, the Department's concept is to deploy a JAG
and a paralegal as a team, and has constructed its principal UTC to that
effect.[^18] No one would dispute that training together and building
good working relationships pays dividends when deployed. Nevertheless,
it is important to avoid having the teams become inflexibly
idiosyncratic, that is, so dependent upon each other that the JAG and
paralegal who compose it are unready to function separately should the
need arise. Among other things, UTCs should not be built on the
assumption that the respective team members will compensate for a
partner's weaknesses. There may be many instances where the team is
deliberately divided, or unexpected, last minute substitutions must be
made. As important as the "team" concept is and should remain, the
flexibility to rapidly reconfigure as required is an absolute must.

Though there is no consensus on this point, deployed offices are not
necessarily intended to be \"full service\" affairs; that is, they
should not be expected to do "legal brain surgery" in, for example, a
two-person shop that may represent the total legal presence at a given
location. The ratio of attorneys and paralegals to the deployed
population will never match that found at a CONUS location.
Consequently, there must be prioritization and allocation of resources
that might result in certain services simply being unavailable. Thus,
for example, such customarily provided services as the annual tax
program may not exist in many contingency locations.

Along these lines, our doctrine (along with other Air Force directives)
needs to reflect the importance of predeployment legal planning. People
cannot be forced to execute wills or powers of attorney, but they can be
educated on the utility of such documents. Furthermore, they ought to be
given ample opportunity to have them prepared in other than the chaos
and pressure of an imminent overseas deployment. The way to accomplish
this is for JAGs to be very proactive during the planned spin-up period
for a designated Aerospace Expeditionary Force (AEF).[^19] At some stage
each individual should be counseled by a legal professional concerning
potential issues that could arise while deployed. The member should be
provided with the available options for addressing them.

Perhaps the most difficult, yet exceptionally important, aspect of
expeditionary law is military justice. For many years military justice
in the deployed environment meant little more than the occasional
Article 15 or letter of reprimand. More serious cases (where
court-martial was contemplated) typically resulted in the accused being
returned to home station, usually CONUS. In the late 1990s, however, the
legal and command infrastructure in contingency areas in the CENTAF AOR
was sufficiently robust that more than a dozen cases were tried
in-theater.

Philosophically, it is vitally important that the full-range of justice
options, to specifically include trial by court-martial, be available to
command *in situ*. Few things could be more destructive of morale and
discipline than if the commission of misconduct were to become an avenue
out of an arduous and possibly dangerous location. Although
historically, trials have taken place in combat zones,[^20] the rather
ill-conceived predilection in recent years to civilianize the military
justice system has taken its toll. Today evidentiary rules,
representational precedents, and other developments meant to mirror the
resources and processes available in CONUS civilian courts have made the
conduct of military trials in remote foreign areas under austere
conditions extremely difficult and sometimes impossible.

The RMLA should extend innovations to the administration of the
disciplinary process at every level. Part of this may require something
of a "back to the future" approach. For example, the typical practice
today is to deploy defense counsel, military judges, and court reporters
only when needed for specific cases. Unfortunately, however well this
concept may work for steady-state deployments (and it is cumbersome and
complex at best), it will seldom work consistently for dynamic,
short-notice contingencies. Inserting unexpected personnel into the
intra-theater transportation scheme in a relatively new operation is
difficult and will become even more so as sorties get ever more
carefully managed to fully book them with pre-existing requirements.

One solution may be to make the necessary policy (and statutory if
needed) changes to allow the designation of military lawyers already
in-theater to serve on a temporary basis as military judges and defense
counsel. Admittedly, there would be challenges to ensure that such
judges and defense counsel have sufficient independence in fact, but
these issues are manageable. Further, some may argue that such an
approach would undercut the appearance of impartiality of the judiciary
and defense services.

In truth, however, there is virtually no data to demonstrate that the
existing structure ever successfully created the desired perception of
independence among the military's rank and file, or even---for that
matter---accused who are presumably briefed in some detail on the
elaborate structure set up for that purpose. The significant numbers of
accused that seek civilian counsel would seem to be a melancholy
testament to that conclusion. In other words, to the typical airman
accused of misconduct, the new arrangement would likely be transparent
in terms of his or her expectations. To the contrary, some accused may
*prefer* representation by counsel drawn from deployed units because of
the anticipated familiarity with the specific area and
mission---compared to the potential negative effect of representation by
outside counsel who lack such familiarity.

Other changes reflective of the technology that underpins the RMLA ought
to be made. For example, evidentiary rules (and statutory underpinnings
where appropriate) that take advantage of such new communications
capabilities such as video teleconferencing are plainly overdue.
Inevitably, such changes would be tested in the courts, but it is a
mistake to assume---as is too often the case today---that they would be
rejected. Constitutional standards applicable to the trials of members
of the armed forces for uniquely military offenses (and those directly
related *by their facts* to a specific military mission *in contingency
areas* during hostile action) may very well permit the use of advanced
communications means as a substitute for live testimony.

The RMLA would also seem to suggest changes in nonjudicial punishment
actions. For example, persons assigned to naval vessels can be required
to accept nonjudicial punishment even when they otherwise might wish to
demand trial by court-martial.[^21] An element for this practice lies in
the special status of a ship's captain that comes from naval traditions.
In the main, however, it reflects the logistical problems with trying
cases aboard ship should the respondent refuse nonjudicial punishment.
Today, however, the difficulty of trying such cases in some of the
remote locations where an AEF may find itself will equal---if not
exceed---the justification that warranted the rule for naval vessels in
the first place. Thus, it may make sense to extend the policy to
contingency locations under certain circumstances. In short, the entire
Uniform Code of Military Justice[^22] and associated administrative
procedures need re-examination to facilitate its application---and
relevance---in the deployed environment.

The differing issues presented by the administration of military justice
constitute just one illustration of how "expeditionary" law within the
aerospace law discipline differs from received wisdom of what
constitutes "operations law." Another example that the JAG deploying
with the typical AEF will find is that the expeditionary law practice
requires in-depth knowledge of contracting and fiscal law principles. It
has been the universal (albeit somewhat unexpected) experience of
deployed JAGs that these matters present the thorniest issues. The
natural tendency of commanders to make things happen quickly, the
absence of contractors knowledgeable of government procurement
procedures, and differing cultural orientations in host areas, are just
a few of the things that make resolving these issues so difficult. In
any event, addressing contract and fiscal law problems is central to the
practice of the expeditionary law.

Of course, expeditionary law does require a general appreciation for
international law, especially as it applies to status of forces
agreements (or the absence thereof). The JAG must know, for example, the
procedure for dealing with foreign criminal jurisdiction cases, as well
as foreign claims. Concerning operational matters, the JAG should expect
to provide rules of engagement training, along with LOAC instruction as
needed. What the wing-level JAG typically will *not* do is review
targets and operational plans. The vetting of those issues in-theater is
the responsibility of the AOC legal team. Among other things, the JAG at
the wing-level will rarely have access to the overall plan or the
supporting intelligence to make a proper evaluation. However, if for
whatever reason the JAG becomes concerned about a targeting or other
LOAC matter, that concern should be immediately transmitted to the AOC's
JAG cell.

The role of the paralegal in the expeditionary environment finds many
parallels with that of a law office manager. This means the paralegal
must be able to perform the range of tasks accomplished by paralegals in
the typical, full-service wing legal office. Experience reveals,
however, some areas worth special emphasis. For example, the paralegal
should be familiar with report of survey procedures because the loss or
damage of property is not uncommon in deployed areas. The paralegal must
also know how to process a Foreign Claims Act[^23] case. As previously
mentioned, complicated contracts and fiscal law issues often arise
during deployments. The paralegal should become expert in the
instructions governing the use of appropriated and nonappropriated funds
for health, welfare, and morale purposes.[^24] This is another issue
that seems to frequently arise in deployed situations, and one which
paralegals could provide great assistance in resolving.

A tremendous opportunity also exists for paralegals in military justice
and other investigatory matters. Beyond the need to be able to fully
process all kinds of military justice actions, it appears that the
paralegal in future operations will need to have court-reporting skills.
The Department's current reliance upon civilian court reporters
volunteering as needed continues to be problematic[^25] and can never
provide the certainty those responsible for military planning demand.
The nature of 21^st^ century Air Force missions requires a cadre of
*uniformed* court-reporters who can be directed to go into harms' way
anywhere in the world, and who have the training and physical stamina to
survive and function once there.

A key to developing this aspect of the RMLA is to take advantage of the
new court-reporting technologies. With the right systems, mastering
court reporting will not be the onerous task it has been in the past.
Indeed, delays in court-martial transcriptions throughout the Air Force
may be related to reliance on parochial legacy systems instead of newer,
faster ones. Once this technology-facilitated skill is integrated into
the paralegal community, it will be in demand not just in contingency
areas, but at home stations as well. Empowered paralegals will likely
find themselves part of the team supporting such activities as Accident
Investigation Boards (AIBs) and the proliferating number of
commander-directed investigations (CDIs).

With respect to the last topic, it would seem that paralegals are primed
to fill a critical need in contingency locations (as well as home
station): that of investigator. Counter-terrorism and force protection
responsibilities have caused a steady erosion of investigative support
from both the Air Force Office of Special Investigations (AFOSI) and
Security Forces (SF) to the point that today investigative support of
routine criminal matters is very much the exception. Paralegals are
already familiar with the legal considerations involved, and some have
learned, *ad hoc*, investigative techniques (often when assigned as
defense paralegals). With some additional training, paralegals could be
of immense assistance to those assigned to conduct CDIs, as well as to
trial and defense counsel preparing cases for court. In certain
instances, paralegals may themselves be the principal investigators.
Clearly, the RMLA is not just a technological concept, but rather one
that seeks to incorporate new ways of thinking to meet 21^st^ century
needs.

### **IV. Operations Law**

As described above, the integration of Air Force legal professionals
into AOC operations is a process that now has some years experience upon
which to draw. Conceptually, the issue is no longer finding an explicit
rationale for access to AOCs and the planning process. Even if JAG
support is not sought by a concerned commander (not likely in the RMLA
era) both international law[^26] and U.S. regulations[^27] provide ample
authority for getting military lawyers into the process (though more
acculturation of planners and operators in this regard is always
desirable). Today's problem is a practical one: determining exactly
where and how to most efficiently and productively interface in the
operational planning and execution process.

What is needed is an agreed upon template that assures and regularizes
JAG input at various points in the air tasking order (ATO) cycle. The
precise methodology for doing so may well be driven by the integration
of such computer systems as the Theater Battle Management Core System
(TBMCS), as well as the nature of the operation itself. It is important,
however, that the importance of human interaction and physical presence
not be underestimated. To the extent possible, JAGs working in AOCs
ought to have *physical presence* in the strategy division, the
Guidance, Apportionment, and Targeting (GAT) shop, among the Major Air
Attack Plan (MAAP) developers, and the Information Operations (IO) shop,
as well as the "battle cab" (or its equivalent).

Obviously, a JAG working in an AOC needs a solid understanding of the
theory of the ATO process, along with the decision support systems that
make it work. This knowledge must be placed in the larger context of
warfighting, particularly at the strategic level. Today's savvy
commanders very often welcome the JAG in the AOC, but they want the JAG
to be a complete *military* officer. General Hal M. Hornburg captured
the expanded expectations in a speech in June of 2001:

> \[JAGs\] need to understand the big picture. I was in the CAOC during
> Desert Fox. Who do you think was standing right behind me? It was my
> JAG. That person needs to know the law and the rules of engagement,
> but he or she also needs to understand things bigger than just the
> law. They've got to understand combat.[^28]

This highlights the importance of professional military education (PME)
for JAGs intending to practice operations law. Rarely would a JAG who
has not completed intermediate service school be suitable to serve in a
senior position on an AOC legal team. What is more is that the RMLA
demands that Air Force legal professionals re-think the concept of
"PME." No longer is it sufficient to assume that completing periodic
formal courses is adequate. The Air Force legal professional must take
on the unending responsibility for *self-education* in every aspect of
the client's "business." This means studying military history, world
politics and culture, Air Force weapons systems, grand strategy, the
mechanics of combat operations, and much, much more. Unless the JAG has
an understanding of the multiple dimensions of what General Hornburg
calls the "big picture," he or she will never truly succeed as a legal
advisor in combat operations.

Unlike the expeditionary law practitioner, the legal professional
practicing operations law must have a thorough understanding of LOAC and
related facets of international law. He or she must also be familiar
with the interpretations given LOAC by such entities as the
International Criminal Tribunal for the Former Yugoslavia.[^29] Because
the Air Force will usually operate within a coalition, understanding
which coalition members are parties to what LOAC agreements is vital. In
the context of the RMLA, JAGs working in AOCs must carefully distinguish
between what the law mandates and what is merely prudent warfighting.
For example, striking a particular target may be legally and morally
permissible notwithstanding collateral damage, yet still not wise
strategically in particular circumstances because of the political
consequences. This, once again, underlines the importance of fully
understanding the "big picture."

The AOC JAG also must be forensically adept. He or she must be able to
rapidly and lucidly explain complex legal matters under circumstances of
great stress. This includes the ability to very quickly draft cogent
memoranda on a wide-variety of issues, and prepare equally as sound
presentations that are visually effective. With respect to ROE, the AOC
lawyer must not only be *the* expert, but also able to instruct
operators on its application in a range of realistic combat situations.
Additionally, the JAG will likely be tasked to draft, or assist in
drafting, that part of the special instructions (SPINs) that concern
ROE. Further, when collateral damage incidents do arise, the JAG may be
called upon to marshal the evidence, analyze it, and "make the case" to
the public if necessary. For all these reasons, the skills of the trial
practitioner---and not necessarily the international law academic---will
often be among the most desired traits of the operations law attorney.

How does the paralegal work into AOC operations? While there has been
much written about the role of the JAG in the AOC, rather less has been
discussed about the paralegal's function. This is still an evolving
area, but it seems clear that the paralegal's importance in the AOC will
only continue to grow. The paralegal's role need not, however,
necessarily be interchangeable with that of the lawyer (though sometimes
that may be the case). Ideally, it is a complimentary role, and one that
builds on existing skills. Nevertheless, it will be necessary---just as
with the attorneys---for paralegals to develop new capabilities.

The paralegal must have a working knowledge of the ATO process marked by
a clear understanding of when and how legal analysis is typically
injected. The reason for this is that the AOC paralegal, who must be an
experienced NCO, should be the "triage" director, that is, responsible
for tracking and managing the multiple demands on attorney time. The
paralegal must have a sufficient understanding of international law and
other AOC issues, not to resolve them *per se*, but to clarify and
prioritize them for the attorneys. The paralegal also needs to be able
to re-direct queries as appropriate, and to quickly assemble the
relevant research materials.

In practical terms, the paralegal must have a "hands-on" technical
capability with respect to the AOC computer systems. He or she must be
able to help set up the system, understand its capabilities, and perform
basic maintenance and repairs. In addition, the paralegal must know how
to properly manage classified material, as well as have a substantive
understanding of the foreign disclosure rules applicable to the
particular operation. Although the AOC legal team usually would not be
concerned with such combat support matters as legal assistance or
claims, they inevitably arise among AOC personnel, and smart client
relations dictates they be addressed promptly. The paralegal should be
the principal point of contact for these issues, resolve them where
possible (e.g., preparing a simple power of attorney or performing a
notarization), and ensure proper referral to the supporting legal office
when necessary.

The challenge today is to develop the right kind of training programs
for Air Force legal professionals destined to practice operations law in
AOCs. Given the Air Force's stated intention to treat the AOC as a
weapons system, JAGs and paralegals should expect to attend many of the
same formal programs that all AOC personnel must complete.[^30] In
addition, specialized training for lawyers and paralegals (already
extant within Air Combat Command) is needed. Air Force legal
professionals should expect a testing and certification regime, though
it is vitally important that the ultimate decision as to who is---or is
not---qualified to practice law in an AOC (as well as anywhere else in
the Air Force) be reserved to The Judge Advocate General.

## 

### **V. Reachback and the Rise of the "Virtual" Office**

A key feature of the emerging Air Force way of war is the notion of
"reachback." This is keeping with the idea that the size of the forward
deployed force will be kept as small as possible. Instead of having all
the experts and other specialists go forward, people can remain at home
stations and "participate" via computer, video teleconferencing, and
other advanced communications links. AOCs are already engaged in this
kind of high-tech leveraging of Air Force resources. By replacing people
with "reachback" technology, a "light, lean, and lethal"[^31] AOC can
deploy much more quickly and thus begin air operations sooner.

Reachback is also a feature of the RMLA. In a sense, JAGs have been
using reachback for years. The numerous resources available through the
Federal Legal Information Through Electronics (FLITE) program bring all
kinds of information and resources to JAG computer terminals everywhere.
Of course, in certain deployed areas the communications "pipe" cannot
always support or sustain access to FLITE (or access to other legal
databases). Consequently, the International and Operations Law Division
(HQ USAF/JAI), the Air Force Judge Advocate General School, and others
record more and more materials onto CDs for ease and reliability of
access.

Most significant is the growth of legal cells that are fully staffed
during contingency operations at command posts in rear areas. It is very
often the case that, notwithstanding distance or time zones, the
forward-deployed JAG always has immediate access to another military
lawyer, and frequently at multiple levels of command. In addition to
greater access to legal resources in the rear area, the type of dynamic
exchange that can take place among the lawyers linked in real time by
modern communications systems can often solve problems more quickly and
accurately than could a JAG otherwise isolated by time and distance.

Still, there is a fine line between reachback support and back channel
"stovepipes." Although operators are becoming accustomed to the concept
of reachback, its application to JAG activities is not yet always fully
accepted. In part this is because there is the perception (and one not
altogether bad) among many clients that a good lawyer can handle any
issue. Consequently, it is not always readily understood that assistance
in specialized areas of the law is required. Further, the sensitive
nature of JAG business is such that command, and others, are often
reluctant to share the information with higher headquarters. By law,
JAGs are free to communicate "directly" with each other without
intervention of the chain of command.[^32] However, as a practical
matter, JAGs need to engage command as to how JAG reachback can help
accomplish the mission most efficiently.

Another aspect of the RMLA is the concept of the \"virtual office.\"
That is, a way of operating whereby the small footprint, forward
deployed legal office has a different kind of relationship with the
supporting office at higher headquarters. Specifically, the forward
office would be principally responsible for serving immediate needs of
clients, as well as spotting issues. When the deployed JAG is confronted
with an issue not capable of immediate resolution, he or she would have
the option of shipping it via e-mail, fax, or other means to a
supporting legal office in the rear (usually the numbered Air Force).

Substantive research, to extend even to draft-opinion preparation when
appropriate, would be accomplished and then re-transmitted to the
contingency location. In other words, unlike the typical relationship in
CONUS where the subordinate office is expected to exhaust their research
and analytical capability before turning for assistance to higher
headquarters, the higher headquarters JAG office itself forms a
\"virtual\" research branch of the forward-deployed JAG. The creation of
\"virtual offices\" through the exploitation of emerging communications
capabilities will allow the delivery of very high-quality legal work to
even the remotest locations.

### **VI. Homeland Defense**

Actually, the newest trend in aerospace law runs somewhat counter to the
expeditionary concept emphasized in the Air Force in recent years. After
the September 11 attacks, the Quadrennial Defense Review (QDR) [^33] was
rewritten to push "Homeland Defense" to the forefront. The use of
military force in domestic situations has long raised complex legal
issues. Since Colonial times Americans have been suspicious of the
threat to liberty presented by military forces used for internal
security purposes.[^34] As a result, there are a plethora of
statutes---the *Posse Comitatus* Act[^35] foremost among them---that
regulate the military's authority in CONUS to execute the laws. There
are exceptions to these prohibitions,[^36] but they should be read in a
limiting fashion---one that recognizes that there are few models in
history where military forces were successfully used in both a domestic
policing role and in an external warfighting mode.

Of particular concern is determining the legal parameters of domestic
intelligence gathering, especially where U.S. citizens are
involved.[^37] The events of September 11 have, at least in the short
term, diminished the once robust resistance in the public mind to such
government surveillance. Moreover, as the Air Force---along with
Americans generally---become more computer-dependent, cyberterrorism is
another type of 21^st^ century threat that mixes law enforcement and
national security interests in ways not yet fully delineated.
Nevertheless, significant limitations on the proper role of the armed
forces remain in place---for good reason. It will be especially
important in the coming years for Air Force legal professionals to
ensure the letter and spirit of the restrictions are fully respected in
domestic operations.

Such operations may also include CONUS counterair efforts. What is
really unprecedented for the Air Force in the aftermath of the September
11 attacks is not enhanced CONUS air defense *per se*. Rather, it is the
use of American fighters to possibly shoot down commercial airliners
under the control of terrorists that is wholly unprecedented. Crafting
appropriate ROE and SPINS for such situations is exceptionally
challenging. Beyond this formidable task we should expect to see a
multiplication of requests for support to civil authorities in
situations where biohazards are suspected, as well as consequence
management in the event of terrorist attacks having catastrophic impact.
In the worst case scenario, Air Force legal professionals must be
prepared to advise even on such previously unfathomable matters as
martial law.

### **VII. Final Observations**

Since the horrific events of September 11, 2001 many have expressed the
view that nothing will ever be the same for Americans. In a very real
way this is especially true for the Air Force Judge Advocate General
Department. Already in the midst of the RMLA, the Department now has an
abundance of aerospace law issues of first impression to address. We may
be at the inception of a RMLA even greater than already discussed. In
the future, the need for aerospace law practitioners for both deployed
and homeland operations may require a re-allocation of the Department's
resources.

For example, the Department's civilian lawyers may bear increasing
responsibility for "steady state" taskings in specialized legal
disciplines like labor, environmental, privatization, and more. These
are areas of law best addressed by consistent representation over long
periods of time. The uniformed part of the Air Force's legal team must
be prepared to focus on aerospace law issues that by their very nature
are peripatetic in scope, intensity, and duration. A division of labor
that recognizes and accepts counsel availability as a factor in the
efficient delivery of legal services may become a watershed in the RMLA.

For judge advocates, along with other military officers, the greatest
responsibility in coming years may be to temper the emotions of the
moment with reflective, professional advice. We will face opponents who
will not shrink from using any method to inflict harm upon us, however
bestial. Replacing emotionalism (and all the obtuse and undisciplined
decisions it can generate) with the sort of cold fury that is eminently
clear thinking and aggressively rational, may well be one of the most
important contributions a military professional can make in 21^st^
century conflicts. Only by doing so can we be assured that the effective
use of armed force honors the legal and moral ideals that the American
military exists to defend.

[^1]: ^^ *Colonel Dunlap (B.A., St Joseph's University; J.D. Villanova
    University School of Law; graduate of Armed Forces Staff College,
    Air War College, Syracuse University National Security Studies
    Program, and distinguished graduate, National War College) is a
    Judge Advocate with the United States Air Force currently assigned
    as the Staff Judge Advocate of Air Education and Training Command.
    He is a member of the Pennsylvania State Bar.*

[^2]: For a discussion of "the revolution in military affairs" in the
    information age, *see generally,* *Select Enemy. Delete*., [The
    Economist]{.smallcaps}, Mar. 8, 1997, at 21; Eliot A. Cohen, *A
    Revolution in Warfare*, [Foreign Affairs]{.smallcaps}, Mar.-Apr.
    1996, at 37; Andrew F. Krepinevich, *Cavalry to Computers: The
    Pattern of Military Revolutions,* [The National
    Interest]{.smallcaps}, Fall 1994, at 30; and James R. Fitzsimonds &
    Jan M. Van Tol, *Revolutions in Military Affairs*, [Joint Force
    Quarterly]{.smallcaps}, Spring, 1994, at 24.

[^3]: W. Michael Reisman & Chris T. Antoniou, The Laws of War xxiv
    (1994) (emphasis added).

[^4]: For information on the Air Force's role in Operation Enduring
    Freedom *see* Air Force Link, *Enduring Freedom*, a*vailable at*
    http://www.af.mil/news/efreedom/index.shtml (last visited Nov. 12,
    2001).

[^5]: *See e.g.*, Williamson Murray, Air War in the Persian Gulf 224-226
    (1995) (criticizing the alleged role of Air Force lawyers with
    respect to a proposed bombing of a statue of Saddam Hussein).
    Murray's version of events is disputed by Colonel Scott L. Silliman,
    USAF (Ret.), the former Staff Judge Advocate of what was then known
    as Tactical Air Command (TAC). Murray contends that TAC legal advice
    that the statue was a protected cultural monument "was simply
    wrong." Silliman contends that no lawyer ever concluded that bombing
    the statue was illegal; lawyers only recommended that the target be
    carefully screened for conformance with existing legal standards. He
    believes the statue was removed from the target lists for unrelated
    reasons. E-mail from Scott L. Silliman to Colonel Charles Dunlap,
    Staff Judge Advocate, U.S. Strategic Command (Feb. 19, 1998,
    10:20:23 EST) (on file with author).

[^6]: *See e.g.*, Richard K. Betts, *Compromised Command*, [Foreign
    Affairs]{.smallcaps}, Jul.-Aug. 2001, at 126, 129-130 (review of
    [Wesley Clark, Waging Modern War: Bosnia, Kosovo, and the Future of
    Combat (2001)]{.smallcaps}) (arguing that the role of lawyers in the
    Balkan air war was "alarming" and "constrained even the preparation
    of options" and marked by a lack of "understanding of operational
    problems").

[^7]: *See* Seymour M. Hersh, *King's Ransom*, [The New
    Yorker]{.smallcaps}, Oct. 22, 2001 a*vailable* at
    <http://www.newyorker.com/FACT/?011022fa_FACT1> (last visited Nov.
    12, 2001).

[^8]: The draft doctrine is Air Force Doctrine Document 2-4.5 *Doctrine
    for Legal Support of Aerospace Operations* (draft). This effort is
    underway at the Air Force Doctrine Center *see*
    <http://www.doctrine.af.mil/>.

[^9]: *See generally*, "Operations Law" in Office of the Judge Advocate
    General, [The Reporter]{.smallcaps}, Special History Edition, 1999,
    at 110-157.

[^10]: *See* Lt Col Terrie M. Gent, *The Role of Judge Advocates in a
    Joint Air Operations Center*, [Airpower Journal]{.smallcaps}, Sept.
    1999, at 40-55 a*vailable at* http://www.airpowermaxwell.af.mil

    /airchronicles/apj/apj99/spr99/gent.html (last visited Oct. 27,
    2001).

[^11]: *See generally*, Chairman, Joint Chiefs of Staff Instr. (CJCSI)
    3121.01A, *Standing Rules of Engagement for US Forces* (Jan. 15,
    2000).

[^12]: *See generally,* *Master Operation Lawyer's Edition*, 37 A.F.L.
    Rev. (1994) (containing several articles addressing the deployment
    of legal professionals, as well as the functions they performed).

[^13]: This includes much of the Middle East and the Horn of Africa.
    *See generally*, the U.S. Central Command website a*vailable at*
    <http://www.centcom.mil/new_site/web/Default.htm> (last visited Nov.
    12, 2001).

[^14]: For a brief summary of the EAF paradigm and its implementing
    Aerospace Expeditionary Force structure, *see* Dep't of the Air
    Force, *America's Air Force Vision 2020* (2000) a*vailable at*
    <http://www.af.mil/vision/vision.pdf> (last visited Nov. 12, 2001).

[^15]: For a general discussion of the role of air operations centers in
    Air Force doctrine, *see* Dep't of the Air Force, Air Force Doctrine
    Document 2, *Organization and Employment of Aerospace Power*, Feb.
    17, 2000 a*vailable at* <http://www.doctrine.af.mil/>.

[^16]: For more information about JAG and paralegal UTCs as well as AEF
    deployments, see the judge advocate portion of the AEF website
    a*vailable at* https://aefcenter.acc.af.mil/AEFC

    /functionals/JAlinks.htm (last visited Nov. 12, 2001).

[^17]: The Judge Advocate General must certify military lawyers before
    they perform the defense counsel function. *See* UCMJ art. 27(b)
    (2000).

[^18]: The UTC XFFJ3 is composed of a JAG and paralegal.

[^19]: *See* note Error: Reference source not found, *supra.*

[^20]: During the Vietnam War, a Marine Corps court-martial was
    conducted in an underground bunker in the midst of the dramatic
    siege of Khe Sanh. *See* [Gary D. Solis, Marines and Marine Law in
    Vietnam: Trial by Fire]{.smallcaps} 106-109 (1989).

[^21]: 10 U.S. C. § 815(a) (1998).

[^22]: 10 U.S. C. §§ 801-946 (1998).

[^23]: *See* Foreign Claims Act, 10 U.S.C. § 2734 (1998).

[^24]: *See e.g*., *Appropriated Funds*, Op. JAG, Air Force, No. 23,
    (Apr. 1, 1999) (discussing appropriate funding sources for
    commanders' coins).

[^25]: *See e.g.*, Lt Col Mary Beth Harney, *After-Action
    Report---Operation Southern Watch*, Oct. 6, 2001, at para 9a(1)
    ("The major obstacle \[to conducting a court-martial\] was finding a
    court reporter available to travel to the AOR.").

[^26]: *See e.g.,* Protocol Additional to the Geneva Conventions of Aug.
    12, 1949, and Relating to the Protection of Victims of
    Non-International Armed Conflicts, Dec. 12, 1977, art. 82, 1125
    U.N.T.S. 609 (entered into force Dec. 7, 1978) (commonly known as
    Additional Protocol II).

[^27]: *See e.g.,* CJCSI 5810.01A, *Implementation of the DoD Law of War
    Program*, para. 6(c)(5) (27 August 1999) (mandating that "all
    operation plans . . . concept plans, rules of engagement, execute
    orders, deployment orders, policies, and directives are reviewed by
    the command legal advisor to ensure compliance with domestic and
    international law").

[^28]: General Hal M. Hornburg, *The Importance of Legal Professionals
    in the Air Force*, (June 27, 2001), *available at*
    <http://www.aetc.randolph.af.mil/pa/Library/speeches/cc06.htm> (last
    visited Oct. 22, 2001).

[^29]: *See e.g.*, International Criminal Tribunal for the Former
    Yugoslavia, Final Report to the Prosecutor by the Committee
    Established to Review the NATO Bombing Campaign Against the Federal
    Republic of Yugoslavia (13 June 2000) a*vailable at*
    http://www.un.org/icty

    /pressreal/nato061300.htm (last visited June 12, 2001).

[^30]: These courses are conducted by the Air Force Command and Control
    Training and Innovation Group at Hurlburt Field, FL, *see generally*
    http://www2.acc.af.mil/afc2tig/ (last visited Nov. 13, 2001).

[^31]: The Air Force's development of the new AOC concept is part of a
    broader effort called Joint Expeditionary Force Experiment (JEFX).
    *See e.g.,* http://www.af.mil/news/airman

    /1199/world7.htm (last visited Nov. 12, 01).

[^32]: 10 U.S. C. § 806(b) (1998).

[^33]: Dep't of Defense, Quadrennial Defense Review Rep. (Sept. 30,
    2001) a*vailable at* http://www.defenselink.mil/pubs/qdr2001.pdf
    (last visited Oct. 29, 2001).

[^34]: *See* Charles J. Dunlap, Jr., *Revolt of the Masses: Armed
    Civilians and the Insurrectionary Theory of the Second Amendment*,
    62 [Tenn. L. Rev]{.smallcaps}. 643, 646-653 (1995).

[^35]: 18 U.S. C. § 1385 (1998).

[^36]: *See generally,* Jeffrey D. Brake, *Terrorism and the Military's
    Role in Domestic Crisis Management: Background and Issues for
    Congress*, [Congressional Research Service]{.smallcaps}, Apr. 19,
    2001.

[^37]: *See e.g.,* National Security Act of 1947, 50 U.S.C. §§ 401-
    441d; the Intelligence Oversight Act of 1980, 50 U.S.C. § 413; Exec.
    Order No. 12333, U.S. Intelligence Activities, 46 Fed. Reg. 59941
    (Dec. 4, 1981).