FORGED IN THE FIRE 

LESSONS LEARNED DURING 

MILITARY OPERATIONS 

(1994-2008) 

2008
 

CENTER FOR LAW AND MILITARY OPERATIONS
 

1 September 2008
 
11 
FOREWORD
 

The Judge Advocate General (TJAG) established the Center for Law and Military 

Operations (CLAMO) in 1988 at the direction ofthe Secretary ofthe Army. CLAMO's 

mission is to examine the legal issues that arise during all phases of military operations 

and devise training and resource strategies for addressing them. It seeks to fulfill this 

mission in five ways. First, it is the central repository within The Judge Advocate 

General's Corps (JAGC) for all-source data, information, memoranda, after action 

materials and lessons learned pertaining to legal support to operations, foreign and 

domestic. Second, it supports Judge Advocates (JAs) by analyzing all data and 

information, developing lessons learned across all military legal disciplines, and 

disseminating these lessons and other operational information to the Army, Marine 

Corps, and Joint communities through publications, instruction, training, and databases 

accessible to operational forces, worldwide. Third, it supports JAs in the field by 

responding to requests for assistance, engaging in a continuous exchange of information 

with the Combat Training Centers (CTCs) and their JA observer-controllers, and creating 

operational law training guides. Fourth, itfacilitates the integration oflessons learned 

from operations and the CTCs into emerging doctrine and the curricula of all relevant 

courses, workshops, orientations, and seminars conducted at The Judge Advocate 

General's Legal Center and School (TJAGLCS). Fifth, in conjunction with TJAGLCS, it 

sponsors conferences and symposia on topics of interest to operational lawyers. 

Over the last 14 years, CLAMO has published a variety of source materials on 

legal issues faced in several different types ofmilitary operations, to include Law and 

Military Operations in Haiti 1994-1995; Law and Military Operations in the Balkans 

1995-1998; Law and Military Operations in Kosovo 1999-2001; Legal Lessons Learned 

From Afghanistan and Iraq, Volume I; Legal Lessons Learnedfrom Afghanistan and 

Iraq, Volume II; Law and Military Operations in Central America: Hurricane Mitch 

ReliefEfforts, 1998-1999; Us. Government Interagency Complex Contingency 

Operations Organization and Legal Handbook; Domestic Operational Law Handbook 

for Judge Advocates; Rules ofEngagement (ROE) Handbookfor Judge Advocates; and 

the Rule ofLaw Handbook (A Practitioner's Guide for Judge Advocates). 

Judge Advocates have used these resources for over a decade and they continue to 

be in demand today. A recurring comment from the field, however, concerns the 

difficulty encountered when trying to research an issue on a specific topic such as claims, 

rules of engagement, or rule oflaw. Before the introduction of this compendium, JAs 

had to research volume by volume and compile their information from a variety of 

sources. This often led to the additional frustration of re-reading the same lessons from 

one operation to the next. This compendium attempts to gather all available lessons in 

several key operational law areas and place them under one heading that JAs can quickly 

read, search and digest. Its intended use is alongside the handbooks, which summarize 

the law applicable to a particular area. CLAMO will update this compendium as our JAs 

and paralegals continue to be forged in the fire by practicing law in the most challenging, 

yet rewarding, environment imaginable - the U.S. military. 

111 
Forged in the Fire - Legal Lessons Learned During Military Operations is 

organized in the standard format for JAGC after action reports (AARs). The format is 

based upon the six core legal disciplines found in Field Manual 27-100, plus the 

emerging areas of our practice in multinational, interagency, domestic and domestic 

support operations, and the Joint Vision 2020 concept of doctrine, organization, training, 

materiel, leadership, personnel, and facilities (DOTMLPF) as it is used to translate 

emerging joint operational concepts into joint warfighting capabilities. 

The AAR format appears at the beginning ofthe International and Operational 

Law chapter. The framework provides a guide to JAs and other legal personnel as they 

capture specific lessons learned during the course of a deployment. Use of this format 

also permits the standardization of data collection in a way that provides an improved, 

systemic ability to cross-reference data trends across different organizations. The 

CLAMO database reflects the AAR format. The template as it exists now is merely a 

framework. The expectation is that, with your contribution and ideas, it will expand to 

include other legal issues and themes. 

The contents ofthis publication are not to be construed as official positions, 

policies, or decisions ofthe U.S. Army, The Judge Advocate General of the U.S. Army, 

the U.S. Marine Corps, the Staff Judge Advocate to the Commandant of the Marine 

Corps, the U.S. Department of State, or the Legal Adviser of the U.S. Department of 

State. Everything in CLAMO is a product of the imagination, contribution, and 

innovation of our JAs and legal personnel in the field. CLAMO welcomes and solicits 

suggestions and contributions of relevant operational law materials from the field. Please 

send your comments or ideas on how to improve or expand this publication to 

CLAMO@conus.army.mil. 

IV 
TABLE OF CONTENTS
 

I. INTERNATIONAL & OPERATIONAL LAW 1
 

LA. AFTER A CTION REPORT (AAR) FORMAT 1
 

LB. ARMS CONTROL 5
 

LC CIVIL AFFAIRS (CA) 6
 

I. C.1. Haiti 6
 

I.C.2. Bosnia 9
 

I. C.3. Operations IRAQI FREEDOM & ENDURING FREEDOM 11
 

LD. CIVILIANS & CONTRACTORS ON THE BATTLEFIELD 18
 

I.D.1. Emergency Essential (EE) Civilians Supporting Military Operations 18
 

I.D.2. Contingency Contracting Personnel (CCP) 20
 

LE. DETENTIONOPERATIONS 28
 

I.E. 1. Legal Framework 28
 

I.E. 2. Article 5 Tribunals 32
 

I.E. 3. Article 78 Reviews 34
 

I.E. 4. Plans, Procedures, & Facilities 36
 

I.E. 5. Interrogation 50
 

I.E. 6. Use ofForce 51
 

LF. ENVIRONMENTAL ISSUES 53
 

J.P.1. Proactive Measures 53
 

I.P.2. Analyzing Environmental Law Issues 54
 

I.P.3. Lessons Learned. 55
 

LG. FOREIGN &INTERNATIONAL RELATIONS 57
 

I.G.1. Us. Government-Intergovernmental Organization (IGO) Interaction 57
 

I. G.2. Us. Government - Non-Governmental Organization (NGO) Interaction 62
 

J. G. 3. Us. Government - Multinational Partner Interaction 63
 

I. G.4. Us. Government - Host Nation (HN) Interaction 64
 

LH. HUMAN RIGHTS LA W 66
 

LL INFORMATION OPERATIONS (10) 68
 

LJ. INTELLIGENCE ISSUES 75
 

LK. INTERNATIONAL AGREEMENTS &SOFAS 79
 

IX.1. Peace Agreements 79
 

I.K.2. Agreements Governing the Conduct ofHostilities 81
 

I.K.3. Status ofForces Agreements (SOFAs) 87
 

I.K.4. Acquisition and Cross-Servicing Agreements (ACSAs) 92
 

LL. LAWOF WARILAWOFARMED CONFLICT 93
 

I.L.1. Training 94
 

I. E. 2. Code ofConduct 96
 

I.L.3. LOW Violations (War Crimes) 97
 

I.L.4. Legal Review ofWeapons 100
 

I.L.5. Occupation Law 105
 

LM. LEGAL BASIS FOR OPERATIONS 110
 

I.M 1. Operations in Haiti 11 0
 

I.M2. Operations in Bosnia 112
 

I.M3. Operations in Kosovo 114
 

I.M4. Operations in Afghanistan 117
 

I.M5. Operations in Iraq 121
 

LN. RULEOFLAW(ROL) 127
 

I.N 1. Understand Developing Doctrine 128
 

I.N2. Interagency Coordination and an Integrated RoL Plan 129
 

I.N3. Understand How RoL Initiatives Are Part ofthe Counterinsurgency Mission 130
 

I.N4. Develop Comparative Law Knowledge 131
 

v 
I.N 5. Build Local Relationships 132
 

I.N 6. Assess Key Justice Sector Institutions & Their Interaction with Each Other 133
 

I.N 7. Develop Initiatives to Increase Public Supportfor the Rule ofLaw 133
 

I.N.8. Lessons Learned 133
 

1.0. RULES OF ENGAGEMENT (ROE) 143
 

1. 0.1. Rules ofEngagement (ROE) Planning & Application 143
 

1.0.2. ROE Training 150
 

LP. STABILITYOPERATIONS 153
 

II. ADMINISTRATIVE LAW 157
 

/LA. ARMY&AIR FORCE EXCHANGE SERVICE (AAFES)/MARINE CORPS COMMUNITY
 

SERVICES (MCCS) 158
 

/LB. ETHICS/JOINTETHICSREGULATION(JER) 159
 

ILe. FREEDOMOFINFORMATION(FOIA)/PRIVACYACT(PA) 162
 

ILD. HISTORICAL ARTIFACTS & WAR TROPHIES 165
 

Il.D.l. Background. 165
 

Il.D.2. Lessons Learned 167
 

ILE. INSPECTIONS 174
 

ILF. INTERNET USE 175
 

ILG. INVESTIGATIONS 176
 

II. G.l. Army Regulation (AR) 15-6 & JAGMAN Investigations 176
 

II. G.2. Line ofDuty Investigations 184
 

11.G.3. Mishap and Safety Investigations 184
 

11.G.4. Financial Liability Investigations ofProperty Loss (FLIPLs) 185
 

ILH. MEDICAL ISSUES 187
 

ILL MILITARYPERSONNEL LAW 189
 

11.1.1. Administrative Separations 189
 

11.1.2. Conscientious Objectors 189
 

11.1. 3. Hazing " 190
 

11.1.4. Letters ofReprimand 190
 

11.1.5. Casualties 191
 

II.J. MORALE, WELFARE & RECREATION/MARINE CORPS COMMUNITYSERVICES 193
 

ILK. PASSPORTS & VISAS 194
 

III. CIVIL LAW 195
 

lILA. CONTINGENCY CONTRACTING 197
 

IlI.A.l. Access to Contract Documents 197
 

I11.A.2. Performance Work Statements (previously Statements ofWork (SOWs)) 197
 

IIl.A.3. Contract Scope 198
 

InA. 4. Requirements Contracts 199
 

InA. 5. Acquisition Review Boards 201
 

InA. 6. Unauthorized Commitments 203
 

InA. 7. LOGCAP Contracting 204
 

InA. 8. International Contracts 206
 

1I1.B. FISCAL LA W 207
 

Ill.B.l. Use ofO&MFundsfor Development & Security Assistance 207
 

I11.B.2. Commander's Emergency Response Program (CERP) 221
 

I11.B.3. Military Construction (MiLCON) 228
 

IIl.B.4. Leases 231
 

I11.B.5. Donation & Disposal ofProperty 231
 

I11.B.6. Acquisition & Cross-Servicing Agreements (ACSAs) 234
 

I11.B.7. Visitors, Gifts, & Entertainment 237
 

IV. CLAIMS 239
 

IV.A. PRE-DEPLOYMENTPLANNING 241
 

IV.B. FOREIGNCLAIMSACT(FCA) 244
 

VI 
Iv'B.I. Language & Culture Issues 244
 

Iv'B.2. Providing Access to Claims Services 245
 

Iv'B.3. Adjudicating Claims 247
 

Iv'B.4. Detecting Fraudulent Claims 250
 

Iv'B.5. Combat Exclusion 252
 

Iv'B.6. Claims Resultingfrom the Actions ofOthers 254
 

IV.C. DEATH CLAIMS &SOLATIA PAyMENTS 256
 

IV.D. CLAIMS ARISING FROMLAND USE 260
 

IV.E. MILITARY CLAIMS ACT(MCA) 262
 

IV.F. PERSONNEL CLAIMS ACT(PCA) 263
 

V. LEGAL ASSISTANCE 265
 

V.A. PREVENTIVELAWPROGRAMS 266
 

v'A.1. Soldier Readiness Programs (SRPs) 266
 

v'A.2. Debtor/Creditor Issues & Financial Management 269
 

V.B. ISSUES DURING DEPLOyMENT 271
 

v'B.I. Family Law 271
 

v'B.2. Landlord & Tenant Issues 273
 

v'B.3. Vehicle Repossession 274
 

v'B.4. Servicemembers Civil ReliefAct (SCRA) 274
 

V.C. ESTATEPLANNING 276
 

v'C.1. Wills 276
 

v'C2. Powers ofAttorney (POAs) 277
 

V.D. NATURALIZATION 280
 

v.E. DEPLOYING THE LEGAL ASSISTANCE OFFICE 283
 

v'E.1. Provision ofLegal Assistance 283
 

v,E. 2. Potential Conflicts ofInterest 283
 

v'E.3. Tax Assistance 285
 

v'E.4. Space & Equipment 285
 

v'E.5. Paralegals at Dispersed Locations 287
 

VI. MILITARY JUSTICE 289
 

VLA. JURISDICTION 291
 

VI.A.1. Operation ENDURING FREEDOM (OEF) 293
 

VI.A.2. Operation IRAQI FREEDOM (OIF) 295
 

VI.A.3. Provisional Units 304
 

VLB. MANAGINGA DEPLOYED MILITARYJUSTICE OFFICE 306
 

VLC MILITARYJUSTICE ATHOME STATION 308
 

VLD. CONDUCTING DEPLOYED COURTS-MARTIAL 310
 

VI.D.1. Court-Martial Convening Orders (CMCOs) 310
 

VI.D.2. Panels 310
 

VI.D.3. Choice ofVenue 311
 

VI.D.4. Media Issues 311
 

VI.D.5. Classified Information 312
 

VI.D.6. Logistic Issues 312
 

VLE. MAGISTRATES & JUDGES 316
 

VI.E.l. Judges 316
 

VI.E.2. Magistrates 317
 

VLF. INVESTIGATIONS & SEARCHES 318
 

VLG. CONFINEMENT 319
 

VLH. GENERAL ORDERS (GOs) 320
 

VLL MILITARYJUSTICE - JOINTENVIRONMENT 325
 

VLJ. SUMMARY COURTS-MARTIAL 328
 

VLK. URINALySIS 331
 

VLL. ALTERNATIVES TO COURT-MARTIAL 333
 

VI.L.1. Nonjudicial Punishment (NJP) 333
 

VB 
VlL.2. Administrative Separations 334
 

VlL.3. Letters ofReprimand 335
 

VLM. CIVILIANS ACCOMPANYING THE FORCE 336
 

VLN. TRIAL DEFENSE SERVICE (TDS) 337
 

VLO. REDEPLOyMENT 339
 

VII. MULTINATIONAL OPERATIONS 341
 

VILA. LEGAL ISSUES 343
 

VIlA. 1. International & Operational Law 343
 

VII.A.2. Administrative & Civil Law 358
 

VIlA.3 Military Justice 359
 

VIlA.4 Exchange Personnel 361
 

VILB. POLICYISSUES 362
 

VIlB.1 History, Legal System, Politics, Culture 362
 

VIlB.2. Legal Networking 363
 

VIlB.3. Communications & Cohesion 364
 

VIII. INTERAGENCY COORDINATION 367
 

VIlLA. COORDINATIONMECHANISMS 368
 

VIllA. 1. National Security Council (NSC) & Policy Coordination Committees (PCCs) 368
 

VIII.A.2. Us. Embassy Country Teams 368
 

VIII.A.3. Civil-Military Operations Centers (CMOCs) 369
 

VIII.A.4. Other Contingency Operations Coordination Mechanisms 369
 

VIILB. RECONSTRUCTION & STABILIZATION 370
 

VIII.B.1. DOS - Office ofthe Coordinatorfor Reconstruction & Stabilization (SICRS) 370
 

VIII.B.2. Department ofDefense (DOD) 371
 

VIlLe. POSSIBLE CONTINGENCY OPERATIONS 374
 

VIIlC1. Natural Disaster Assistance 374
 

VIII. C 2. Peace Operations 374
 

VIIlC3. Noncombatant Evacuation Operations (NEOs) 374
 

VIILD. LESSONS LEARNED 376
 

IX. DOMESTIC & DOMESTIC SUPPORT OPERATIONS 379
 

IXA. HOMELAND DEFENSE (HD) 380
 

IXA.1. Intelligence & Information Operations (10) 380
 

IXA.2. Standing Rules ofEngagement & Standing Rules for the Use ofForce 385
 

IXB. CIVIL SUPPORT (CS) ..•.....•.......••.....•...•...•................•.•.•.............................•.........••....•............ 387
 

IXB.1. Counterdrug (CD) Operations 387
 

IXB.2. Disaster Relief/Consequence Management 389
 

IXB.3. National Response Framework (NRF) 394
 

IXB.4. Rulesfor the Use ofForce (RUF) 395
 

X. DOCTRINE, ORGANIZATION, TRAINING, MATERIEL, LEADERSHIP, PERSONNEL, &
 

FACILITIES (DOTMLPF), & COUNTRY MATERIALS 399
 

XA. ARMYDOCTRINE 400
 

XB. ARMYORGANIZATION (FORCE STRUCTURE) 401
 

XB.1. Staffing the Brigade 401
 

XB.2. Staffing the Joint Command 402
 

XB.3. Staffing the Rear Detachment 402
 

Xe. TRAINING, MILITARYDECISION-MAKING PROCESS (MDMP), & READINESS 405
 

X C1. Pre-Deployment Training 405
 

XC2. Military Decision-Making Process (MDMP) 408
 

XC3. Coordinating the Transfer ofAuthority (TOA) 409
 

XD. MATERIEL 413
 

XD.1. Portable Hard Drives & Storage Devices 413
 

XD.2. Communications Equipment 414
 

Vln 
XD.3. lriformation Management 416
 

XD.4. Obtaining Supplies 420
 

XE. LEADERSHIP 422
 

XE.1. Taking Care ofSoldiers 422
 

XE.2. Evaluations 423
 

XE.3. Visits, Awards, & Ceremonies .423
 

XE.4. Taking Care ofFamilies 425
 

XF. PERSONNEL 427
 

XF.1. Accountability 427
 

XF.2. Work Schedules 427
 

XF.3. Assigning Office Duties 427
 

XF.4. Rotation ofDuty Positions 428
 

XF.5. Appointments & Designations 429
 

XF.6. Security Clearances 431
 

XG. FACILITIES 433
 

XH. COUNTRYMATERIALS 435
 

XH1. Host Nation Law & Legal System .435
 

IX 
L INTERNATIONAL & OPERATIONAL LAW 

LA. AFTER ACTIONREPORT (AAR) FORMAT 

The Judge Advocate General's Corps (JAGC) after action report (AAR) format appears 

below. It provides a guide to Judge Advocates (JAs) and other legal personnel as they capture 

specific lessons learned during the course of a deployment. Use of this format also permits the 

standardization of data collection in a way that provides an improved ability to cross-reference 

data trends across different organizations and deployments. To the extent possible, the format 

attempts to capture the range of issues possibly encountered during deployments. However, 

those who dealt with a significant issue not found in the AAR format may simply capture the 

issue in the appropriate disciplinary area. 

When preparing an AAR, JAs should review the list of substantive areas using the issue, 

decision, recommendation (IDR) methodology. As an example, was there a particular issue 

(whether Soldiers were prohibited from possessing Iraqi bayonets by General Order No. lA) in a 

discrete area of the law (Administrative Law, Historical Artifacts & War Trophies) with which 

the command and legal community had to deal? If so, with the issue as framed above, what 

decision occurred and why was that the decision? Finally, what recommendations might prepare 

future forces to deal with this issue? JAs should provide sufficient clarity when using the IDR 

methodology to ensure capture of the proper context to allow understanding ofthe issue, 

decision, and recommendation. 

I. International & Operational Law 

A. After Action Reports (AARs) 

B. Arms Control 

1. Chemical Weapons/Riot Control Agents (RCA) 

2. Biological Weapons 

3. Nuclear Weapons 

4. Weapons ofMass Destruction (WMD) 

C. Civil Affairs 

D. Civilians on the Battlefield/Contractors 

E. Detention Operations/PoW Issues 

1. Article 5 Tribunals 

2. Article 78 Reviews 

3. Code of Conduct 

4. Detainees and Detention Operations 

5. Interrogations 

F. Environmental Issues 

G. Foreign Assistance/Relations 

1. USG/Host Nation Interaction 

2. USG/Coalition Interaction 

3. USG/International Organization Interaction 

4. USG/ Non-Governmental Interaction 

1 
5. Humanitarian Assistance 

H. General Orders 

1.	 Human Rights Law 

1.	 Information Operations 

K. Law ofWar/Law ofArmed Conflict (LOAC) 

1.	 Law ofWar Training 

2. Legal Review on Weapons 

3. Non-Lethal Weapons 

4.	 Occupation Law 

L.	 Legal Basis for Conducting Operations 

M. Intelligence Law 

N. Rule of Law/Judicial Reform 

O. Post Conflict Stability Operations 

P.	 ROE/Targeting 

Q. Treaties and Other International Agreements 

1.	 Asylum 

2.	 Status of Forces Agreements (SOFAs) and Acquisition and CrossServicing Agreements (ACSAs) 

R.	 United Nations 

1.	 Security Council Resolutions 

2.	 UN Reports 

S.	 War Crimes 

II. Administrative Law 

A. Army Air Force Exchange Service (AAFES) 

B. Historical Artifacts and War Trophies 

1.	 Historical Artifacts 

2.	 War Trophies 

C. Customs and PassportsNISAS 

D. Drawdowns 

E.	 Ethics/JER 

F. FOIA/Privacy Act 

G. Inspections 

H. Internet Use 

H. Investigations 

1.	 AR 15-6 

2.	 Line of Duty 

3. Mishap and Safety Investigations 

4. Financial Liability Investigations of Property Loss (FLIPLs) 

1.	 Labor/Employment Law 

1.	 Law ofMilitary Installations 

K. Medical Issues 

L.	 Military Personnel Law 

1.	 Administrative Separations 

2. Conscientious Objectors 

3.	 Evaluation Reports 

2 
4.	 Females in Combat 

5. Hazing 

6.	 Homosexuality 

7.	 Lautenberg Amendment 

8.	 Letters of Reprimand 

9.	 Relief for Cause 

M. Morale, Welfare and Recreation 

III. Civil Law 

A.	 Fiscal and Contract Law 

1.	 Commander's Emergency Response Program (CERP) 

2.	 Contract Law 

3. Deployment Contracting 

4.	 Fiscal Law 

a.	 Acquisition and Cross Servicing Agreements 

b.	 General 

5.	 LOGCAP Contracting 

IV. Claims 

A.	 Foreign Claims 

1.	 Claims against the United States 

2. Claims against Foreign Governments 

3.	 Claims within Host Nation that could impact U.S. interests or 

operations 

B. Personnel Claims 

C.	 Solatia 

V.	 Legal Assistance 

A.	 Children 

1.	 Adoption 

2.	 Custody 

3. Paternity 

4. Child Support 

B. Citizenship 

C.	 Debtor/Creditor Issues 

D.	 Divorce 

E.	 Powers of Attorney 

F. Voting 

G.	 Servicemembers Civil Relief Act (SCRA) 

H.	 Uniformed Services Employment and Reemployment Act (USERA) 

1.	 Wills 

VI. Military Justice 

A.	 General Orders 

B. Judiciary 

C.	 Jurisdiction 

3 
D. Magistrates 

E. Provisional Units 

F. Searches 

G. TDS 

H. Urinalysis Program 

1. Victim/Witness Liaison Program 

VII. Multinational Operations 

VIII. Interagency Coordination 

IX. Domestic & Domestic Support Operations 

A. Counterdrug (CD) Operations 

B. Disaster Relief/Consequence Management 

C. National Response Framework (NRF) 

D. Rules for the Use of Force 

X. Doctrine, Organization, Training, Materiel, Leadership, Personnel and Facilities 

(DOTMLPF) & Country Materials 

A. Doctrine 

B. Organization (Force Structure) 

C. Training, MDMP, and Readiness 

1. Army 

a. Annexes 

b. FSOPs 

c. MDMP 

d. Office METL 

2. CTCs 

a. BCTP 

b. JMRC 

c. JRTC 

d. NTC 

3. Pre-deployment Training Material 

4. Service Academies 

D. Materiel 

E. Leadership 

F. Personnel 

G. Facilities 

H. Country Materials 

4 
LB. ARMS CONTROL 

The key document affecting the use of riot control agents is the Chemical 

Weapons Convention. 1 There are also international conventions governing the use of 

anti-personnellandmines and cluster munitions. 

[See INTERNATIONAL & OPERATIONAL LAW (International Agreements) and 

MULTINATIONAL OPERATIONS (International & Operational Law).] 

1 Convention on the Prohibition ofthe Development, Production, Stockpiling, and Use of Chemical 

Weapons and on Their Destruction art. 1(5), Jan. 13,1993,32 I.L.M. 800 [hereinafter CWC]. 

5 
LC. CIVIL AFFAIRS (CA) 

Civil affairs (CA) plays an essential role in most military operations, creating an 

interface between the U. S. military and civilians or civilian institutions. 2 The terms "civil 

affairs," "civil-military operations," and "civil administration" are creatures ofD.S. 

military doctrine rather than law. The rule of law is so important to legitimacy and stable 

government that JAs inevitably become deeply involved in CA operations. 3 Often JAs 

are resident in CA units in intemationallaw slots, in addition to Staff Judge Advocate 

(SJA) and Command Judge Advocate (CJA) positions. 

Civil affairs doctrine further implicates JAs because it gives CA officers a role in 

advising the command on legal obligations to the foreign civilian populace. However, 

the JAGC mission is to support the commander by providing legal services at all echelons 

of command throughout the range ofmilitary operations.4 This mission implies JAs are 

the command's legal advisors.s This apparent conflict between the role ofJAs and CA 

personnel need never become a problem. Indeed, professionalism and careful 

coordination on the part of those involved can obviate confusion and ensure that the 

command has a single source for its legal advice. 6 

LC.l. Haiti 

Civil affairs JAs played a central role in civil-military operations during the Haiti
 

deployment, supporting the relationship ofthe Multi-National Force (MNF) with Haitian
 

2 See U.S. DEP'T OF ARMY, FIELD MANUAL 3-05.40, CIVIL AFFAIRS OPERATIONS (29 Sept. 2006) 

[hereinafter FM 3-05.40]; U.S. DEP'T OF ARMY, FIELD MANUAL 3-05.401, CIVIL AFFAIRS TACTICS, 

TECHNIQUES, AND PROCEDURES (5 July 2007) [hereinafter FM 3-05.401]; JOINT CHIEFS OF STAFF, JOINT 

PUB. 3-57, CIVIL-MILITARY OPERATIONS (8 July 2008) [hereinafter JOINT PUB. 3-57]. 

3 See INT'L & OPERATIONAL LAW DEP'T, THE JUDGE ADVOCATE GENERAL'S LEGAL CENTER & SCHOOL, 

U.S. ARMY, JA 422, OPERATIONAL LAW HANDBOOK ch. 25 (2008) [hereinafter OPLAW HANDBOOK 2008]. 

4 See U.S. DEP'T OF ARMY, FIELD MANUAL 27-100, LEGAL SUPPORT TO OPERATIONS vii (l Mar. 2000) 

[hereinafter FM 27-100]. 

5 See, e.g., id. at 4-39 ("Because civil affairs unit supporting the command normally have organic legal 

advisors, responsibilities for providing legal advice relating to civil affairs must be clear. The civil affairs 

judge advocate advises the civil affairs unit commander. The SJA ... of the supported command is the 

sole legal advisor to the supported commander. Furthermore, the SJA ofthe supported command is the 

technical supervisor for all legal personnel in CA units that are assigned, attached or under the OPCON of 

the supported command. In all cases, legal advice within the supported command and supporting civil 

affairs units must be thoroughly coordinated."). See also id. at 4-40 ("The practice and delivery of legal 

support are critical to properly advising and assisting the commander in fulfilling his legal obligations and 

complying with moral standards regarding local civilians."). See FM 3-05.40, supra note 2, at 1-1. 

6 See generally U.S. ARMY LEGAL SERVICES AGENCY, DESERT STORM ASSESSMENT TEAM'S REpORT TO 

THE JUDGE ADVOCATE GENERAL OF THE ARMY, at Operational Law-6, 11, 12, Issues 520, 573, 626, 627 

(22 Apr. 1992) (discussing the potential friction arising from overlapping roles); Lieutenant Colonel 

Rudolph C. Barnes, Jr., Legitimacy and the Lawyer in Low-Intensity Conflict (LIC): Civil Affairs Legal 

Support, ARMY LAW., Oct. 1988, at 5, 7 ("Because many issues in LIC are mixed legal and political issues, 

however, there is no clear line of demarcation between the support requirements ofthe SJA and the civil 

affairs staffsupport element."). 

6 
authorities and the civilian populace, promoting the legitimacy of the mission, and 

enhancing the effectiveness of Haitian military forces. Elements of four different CA 

units - all ofthem U.S. Army Reserve (USAR) component units - participated.7 The 

MNF sought to restore the democratically-elected president. Civil affairs personnel 

planned and coordinated numerous humanitarian assistance and military civic action 

projects. 8 They supported the J-3 CA officer, who had staffresponsibility for tasking 

MNF elements - such as the Joint Logistics Support Command, or the separate military 

police brigade - to assist with CA projects. The Ambassador and country team also 

developed a program of "legal mentorship," in which JAs were ideal participants.9 

The MNF SJA eliminated potential confusion about CA and JA roles, primarily in 

the area of fiscal law issues, at an early stage. Humanitarian assistance projects and 

military civic action programs employ military personnel and require the expenditure of 

military operations and maintenance (O&M) and construction appropriations. lo In Haiti, 

such operations took the form of medical care, food distribution, and rudimentary 

construction ofroads and sanitation facilities. I I The SJA, by designating three JAs 

including himself as the sole advisors on the propriety of using military resources for 

such operations, prevented misallocation of funds and protected the command. 12 Civil 

7 These were the 416th and 450th CA Battalions, and the 358th and 360th CA Brigades. See Telephone 

Interview with Lieutenant Colonel John McNeill, U.S. Army Reserve, former Team Chief, Tactical 

Planning Team 3601, 360th CA Brigade, in Port-au-Prince, Haiti (24 Aug. 1995). See also FM 3-05.40, 

supra note 2, at 2-1 to 2-37 (describing the CA organization). 

8 FM 3-05.40, supra note 2, para. 1-3 (describing the five core tasks ofCA operations as foreign nation 

support, populace and resources control, foreign humanitarian assistance, civil information management, 

nation assistance, and support to civil administration). 

9 See CENTER FOR LAW & MILITARY OPERATrONS, LAW AND MILITARY OPERATIONS IN HAITI, 1994-1995: 

LESSONS LEARNED FOR JUDGE ADVOCATES 102-06 (11 Dec. 1995) [hereinafter HAITI LL]. 

10 See FM 3-05.40, supra note 2, paras. 3-54, 3-64 (describing 10 U.S.c. §§ 401-402, which prescribe fiscal 

and other limitations on the conduct of humanitarian and civic assistance by military units). 

11 See, e.g., Memorandum, Lieutenant Colonel Arthur L. Passar, AMSMI-GC-AL-D, to Staff Judge 

Advocate, U.S. Army Material Command, subject: After Action Report, Legal Support to Joint Logistics 

Support Command, Joint Task Force 190, Haiti, Operation UPHOLD DEMOCRACY, September 1994­

March 1995 para. 6d (11 May 1995) [hereinafter Passar AAR]; Telephone Interview with Lieutenant 

Colonel Richard E. Gordon, former Deputy Staff Judge Advocate for Multinational Force Haiti (7 Sept. 

1995) [Gordon Interview]; Telephone Interview with Lieutenant Colonel Karl K. Warner, Staff Judge 

Advocate, 10th Mountain Division (7 Sept. 1995). 

12 See Office ofthe Staff Judge Advocate, 10th Mountain Division (Light Infantry), Operation UPHOLD 

DEMOCRACY, Multinational Force Haiti After Action Report, 29 July 1994 - 13 January 1995 7 (May 

1995) [hereinafter 10th MTN DIV 1995 Haiti AAR]; Memorandum, Staff Judge Advocate, 25th Infantry 

Division (Light) and U.S. Army, Hawaii, APVG-JA, to G-3 Plans, subject: Haiti and UPHOLD 

DEMOCRACY Lessons Learned (28 Apr. 1995); cf Memorandum, Major General George A. Fisher, 

Commander of Multinational Forces Haiti, MNF-CG, to Distribution A, subject: Medical-Civil Action 

Guidelines (25 Jan. 1995) ("Refrain from independent Medical Civic-Action (MEDCAP) activities unless 

specifically approved by the CMOC or MNF Surgeon."). Provision of humanitarian and civic assistance by 

military units is likely to be scrutinized by the General Accounting Office (GAO), which has been critical 

of DOD humanitarian and civic assistance projects: 

Program coordination between the U.S. military and the U.S. embassies and AID 

missions in two of the countries we visited - Panama and Honduras - was minimal. We 

7 
affairs officers cooperated in this arrangement, as the CA mission in a country such as 

Haiti is challenging enough without the added responsibility of advising the command on 

its legal obligations. Coordinating the work of non-governmental and private voluntary 

organizations, planning and executing those humanitarian assistance and civic action 

projects deemed by JAs to be proper uses of funds, and persuading Haitian officials and 

citizens of the benefits of orderly and rule-governed processes, along with related 

activities, easily absorbed the full attention of available CA resources. For example, CA 

officers in the humanitarian assistance coordination center devoted much time and energy 

to conferences with Haitian merchants. The Port-au-Prince port director, a corrupt 

official allied with the junta, continued to charge tariffs and storage charges these 

merchants deemed unjust. Civil affairs officers, in conjunction with the SJA, assisted the 

merchants in devising a plan to engage in commerce while respecting Haitian law. 13 

In addition to identifying a requirement to coordinate legal efforts, JAs learned it 

was helpful to maintain a log of the legal services provided. This helped to jog the 

memory when trying to recall the facts and the resulting advice, notified JAs serving 

different shifts in the command post ofprior advice on particular topicS,14 and enabled 

the SJA to identify patterns and areas of high demand for legal services. This 

information was helpful in deciding what products and training to develop. The first two 

functions served by the log helped to eliminate inconsistent guidance to the command 

and discourage "forum-shopping.,,15 The third provided a key management tool. 

found projects that were not designed to contribute to u.s. foreign policy objectives, did 

not appear to enhance U.S. military training, and either lacked the support ofthe host 

country or were not being used. Finally, the two commands we visited have not 

systematically evaluated HCA projects to determine their success or failure. HCA 

program officials at the command level had not performed routine follow-up visits. 

See also U.S. GEN. ACCOUNTING OFFICE, B-248270, GAOINSIAD-94-57, DEP'T OF DEFENSE: CHANGES 

NEEDED TO THE HUMANITARIAN AND CIVIC ASSISTANCE PROGRAM 3 (Nov. 2, 1993). 

13 E-mail,LieutenantColonelKarlK. Warner, Staff Judge Advocate, 10th Mountain Division (LI),to 

Deputy Director, Center for Law & Military Operations (19 Oct. 1995) (opining that when the de facto 

government is illegitimate, and the United States controls the port on behalf of the de jure government, 

customs should be paid to the de jure government upon its arrival and assumption of port control rather 

than to the outgoing de facto government). 

14 See 10th MTN DIV 1995 Haiti AAR, supra note 12, at 12 ("Although the Staff Judge Advocate, the 

Deputy SJA, and the Operations Law Judge Advocate led the office effort, every judge advocate worked 

shifts in the Joint Operations Center (JOC), which was manned by ajudge advocate 24 hours a day. Thus, 

every judge advocate needed to keep abreast on all operations issues. . . . While the SJA attended morning 

and evening command and staff briefings, to include executive sessions,judge advocates attended JOC 

shift change briefings twice daily. At this briefing, judge advocates briefed the joint staff on current legal 

issues of interest."). 

15 See id. at 7 ("Many times, civil affairs personnel would 'forum shop' until they found ajudge advocate 

who would provide legal approval for a project. Communication within the SJA office, and with the 

brigade legal counsel, through SJA meetings and extensive entries in the SJA Duty Log, put an end to this 

practice."). 

8 
L C.2. Bosnia 

Civil affairs units, primarily from the reserve component, also provided extensive 

support during operations in Bosnia. Because these units do not have a habitual 

relationship with the active component unit they find themselves supporting, they can 

easily slip out ofthe main effort, diminishing their ability to act as combat multipliers. 16 

An additional difficulty is that their technical channels generally include lawyers (from 

their civilian occupation) who are not JAs. I 

? Judge Advocates at all levels, therefore, 

need to cultivate relationships with their commanders that will lead them to tum 

immediately to their JAs when faced with legal issues. 18 

Soldiers in CA units, by virtue of their mission, may feel they have both the duty 

and authority to resolve claims arising from the activities ofD.S. forces. As a result, CA 

personnel operating in Bosnia sometimes made representations to local claimants 

inconsistent with the actual resolution ofthe matter by the claims service. Early 

coordination with these units resolved the problem. As one claims officer noted, CA 

personnel have vehicles, translators, and contacts in the local community. With training 

and coordination with the Office ofthe SJA (OSJA), they could function as unit claims 

officers, investigating and reporting on the merits of claims. In this way, they became a 

vital part of the process while simultaneously learning the importance of withholding 

comment to the claimant until after the claims commission made its decision. 19 

Judge Advocates may also get involved with CA units when it comes to 

establishing ground rules for nation building. Host nation (RN) officials will receive 

technical assistance and advice. Because much ofthe advice will center on legislative 

and judicial matters, units will rely upon JAs to coordinate and provide it. In order to do 

so appropriately, JAs must remain in contact with political advisors (POLADs) to ensure 

16 Lieutenant Colonel George B. Thomson (Ret.), comments in Operation JOINT ENDEAVOR After 

Action Review, Volume I, Heidelberg, F.R.G. 40 (24-26 Apr. 1997) [hereinafter OJE AAR, Vol. I] 

("[T]hey tend to become free agents, uncontrollable, out there in heart of darkness land operating on their 

own."). 

17 In addition to the JA positions within the CA structure, many of the Soldiers are attorneys - indeed, some 

are Department ofthe Army attorneys - in their civilian occupations. See Colonel Joseph A. Russelburg, 

comments in OJE AAR, Vol. I, supra note 16, at 42. 

18 BG John D. Altenburg, Jr., comments in OJE AAR, Vol. I, supra note 16, at 41. The broader JA 

community needs to work on establishing structural relationships with CA units. See Colonel David E. 

Graham, comments in id. at 43. Doctrine already establishes these relationships. See FM 27-100, supra 

note 4, at 4-39 to 4-40 (1 Mar. 2000). Unfortunately, FM 3-05.40 contains no express requirement for CA 

units to coordinate with the SJA of units they serve with, even ifthe relationship is that of direct support. 

FM 3-05.40, supra note 2. 

19 "The civil affairs people see it as part oftheir mission to go out and do the hearts and minds thing, and 

that includes taking care of meritorious claims .... [S]ome of them take this a little bit further than they 

should. They don't have the experience, they don't have the expertise, and quite frankly, most importantly 

of all, they don't have the money." Major Jody M. Prescott, comments in Operation JOINT ENDEAVOR 

After Action Review, Volume II, Heidelberg, F.R.G. 131 (24-26 Apr. 1997) [hereinafter OJE AAR, Vol. 

II]. 

9 
all contacts with officials - whether the national legislative body or the local bar - are 

consistent with broader U.S. policy.z° 

Article IV ofthe General Framework Agreement for Peace (GFAP) announced 

that the "Parties welcome and endorse the elections program for Bosnia and 

Herzegovina.,,21 Annex 3 ofthe GFAP spelled out the elections program. The 

Organization for Security and Cooperation in Europe (OSCE) was the lead international 

agency for elections, but the Provisional Election Commission (PEC) was directly 

responsible for election rules and regulations, and the Local Elections Commission (LEC) 

was responsible for running the elections. The Implementation Force (IFOR) and 

Stabilization Force (SFOR) had the task of creating conditions for free elections, but the 

other organizations - the OSCE, its Election Appeals Sub-Commission, the PEC, and the 

LEC - had primary responsibility for the elections themselves. 

The IFOR/SFOR task translated into U.S. forces providing security at elections 

sites and along routes to polling stations and sites, as well as transportation to the polling 

stations. This required significant military police, CA, and transportation support.22 

There were many elections, including municipal elections in September 1997, the Serb 

national assembly in November 1997, and national elections. Task Force Eagle treated 

each as a military operation. For example, Operation Plan Libra addressed the municipal 

elections. Before the task force provided any support, it analyzed the mission and created 

an information paper and a slide briefing outlining Soldiers' duties and constraints in 

relation to the elections.23 A constant theme ofsuch briefings was that Soldiers had the 

20 1st Armored Division, Office Of The Staff Judge Advocate, After Action Report, September 1995 ­

December 199629 (1997) [hereinafter lAD 1997 Bosnia AAR]. Occasionally, U.S. forces, especially JAs, 

will assist the nation's civil institutions merely by accomplishing their usual missions. See, e.g., 

Memorandum for Record by Captain Thomas Gauza, subject: 20 May 1996 Hearing in Bosnian Court (no 

date) (discussing the author's appearance in a Bosnian court representing the United States, the victim in 

the computer theft case being tried). 

21 The General Framework Agreement for Peace in Bosnia and Herzegovina, art. IV, Dec. 14, 1995,35 

LL.M. 75 [hereinafter GFAP]. 

22 lAD 1997 Bosnia AAR, supra note 20, at 27. This provision of support also raised questions about the 

use ofO&M funds in support ofOSCE. For a determination that such funds were expendable because 

election support had become a military mission and were civil-military actions rather than civil and 

humanitarian support, see Memorandum, to the Judge Advocate, Headquarters, United States Army Europe 

and Seventh Army, Lieutenant Colonel Maher, subject: Funding for OSCE Support (18 Aug. 1996). But 

cf Memorandum, Captain Matthew D. Ramsey, to ACofS G3, subject: Office ofthe Staff Judge Advocate 

Election After Action Review Comments (4 Oct. 1996) ("On 6 Jul. 1996, HQ ARRC Phase IV Directive 

identified support to the OSCE as the Corps' main effort. Fiscal law questions inherent in this change in 

mission were never fully resolved."). 

23 Soldiers were obliged to use force to protect personnel with "special status" - election monitors and the 

like. They also had permission to use force to protect others, but only with the authorization ofthe on-scene 

commander. See Information Paper, Captain Matthew D. Ramsey, subject: Election Guidance for TF 

Eagle Forces (17 Aug. 1996). Although the restriction on commanding officers might potentially have led 

to inflexibility (such an order might prevent a commander from assigning a platoon to a mission alone, for 

example), it does seem to have prevented a recurrence ofthe Haiti scenario when U.S. forces who 

misunderstood the ROE watched a civilian be beaten to death. See HAlTI LL, supra note 9, at 37-39. 

10 
right to prevent acts of violence around polling places, but "local election commissions 

(LECs) [were] responsible for protecting the integrity of the election process.,,24 

Judge Advocates were involved at every stage of election support - reading, 

proofing, and preparing plans, orders, and annexes. Two USAR JAs in particular became 

critical to the success ofthe mission: one was the liaison from IFOR to the OSCE; the 

other orchestrated CA support for the elections. All JAs, by virtue oftheir training and 

expertise, should expect to play key roles in advising commanders about elections during 

similar operations. 25 

IFOR also created a 350-person civil-military cooperation (CIMIC) team that
 

provided technical advice and expertise to other IFOR units, various international and
 

non-governmental organizations, commissions, the HN armed forces, and local
 

authorities. The team was made up ofIFOR personnel, attorneys, educators, public
 

transportation specialists, engineers, agriculture experts, economists, public health
 

officials, veterinarians, and communications and other experts. 26
 

LC.3. Operations IRAQI FREEDOM & ENDURING FREEDOM 

The military operations in Operations ENDURING FREEDOM (OEF) and 

IRAQI FREEDOM (OIF) reinforced CA lessons learned from previous operations, but 

also provided new lessons. Civil affairs JAs deployed in support of OIF and OEF relied 

upon Army and Joint CA doctrine. This doctrine intends CA personnel, including JAs, to 

be coordinators and facilitators between civil and military authorities. 27 Rather than 

performing the long-term reconstruction of building an institution or a system of 

government, CA operators seek to bring together governmental and non-governmental 

assets and organizations to accomplish the "hands-on" part of the task. Civil affairs units, 

by design and through special training, facilitate coordination between military and 

civilian authorities in order to de-conflict operational matters (civilian or military) that 

can affect one or more key players involved in the reconstruction effort. 28 Thus, in 

conducting civil-military operations (CMO), the goal is not for CA assets to carry out the 

detailed work ofreconstruction itself, but to initiate projects that ultimately transition to 

nonmilitary control. Simply put, CA works its way out of a job. 

A CA JA essentially wears two hats. He or she is a resource for the commander 

in the traditional JA or SJA roles, providing, for example, military justice and law of war 

advice in the operational environment. However, the CA JA is also a CA operator, 

24 See Memorandum, Captain Matthew D. Ramsey, to ADC(M), TF Eagle, subject: OSCE Election 

Security Plan (9 Sept. 1996). 

25 lAD 1997 Bosnia AAR, supra note 20, at 27-28. 

26 CENTER FOR LAW & MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS IN THE BALKANS, 1995­

1998: LESSONS LEARNED FOR JUDGE ADVOCATES 44 (13 Nov. 1998) [hereinafter BALKANS LL]. 

27 See FM 3-05.40, supra note 2; JOINT PUB. 3-57, supra note 2. 

28 Roberts A. Borders, Provincial Reconstruction Teams in Afghanistan: A Modelfor Post-Conflict 

Reconstruction and Development, 1. DEV.& SOC. TRANSFORMATION 8 (2003). 

11 
possessing general knowledge about the operation and restoration of legal systems, 

government administration, and finance issues.29 According to CA doctrine, part of the 

CA JA mission is to carry out rule of law operations. The former SJA and rule of law 

officer for the Office of Military Cooperation - Afghanistan noted that: 

[Judge Advocates] were placed in CA units to perform the legal functional 

specialty tasks, which include advising and assisting the local (host nation) 

judicial agencies administering the legal system and establishing supervision 

over the local judicial system, establishing civil administration courts, and 

helping to prepare or enact necessary laws for the enforcement of US policy and 

intemationallaw. 30 

Civil affairs JAs, in addition to being JAs, are experienced civilian attorneys who 

are accustomed to dealing with legal systems outside the military. This experience is 

extremely important to being able to provide effective support and assistance to a foreign 

civilian legal system degraded by international isolation and/or armed conflict. In 

addition, CA JAs specifically prepare themselves to perform rule of law missions. Their 

experience in their CA units allows them to understand how rule of law operations fit in 

with public safety, public health, economic development, and other operations conducted 

by CA units in post-conflict and other situations.31 

A lesson learned from both Afghanistan and Iraq is that JAs conducting rule of 

law missions must have a specialized set of skills, including expertise in international and 

human rights law, and training in comparative law. Training in rule of law tactics, 

techniques, and procedures (TTPs) is also necessary.32 

Iraq 

Eighteen hundred CA troops deployed in support of OIP I and approximately 

eight hundred in support of OIP II. Both deployments included several dozen JAs, who 

served as CJAs and international law officers for numerous CA battalions and brigades, 

as well as for the 352d CA Command Headquarters.33 These CA operators were the lead 

military elements charged with restoring essential government services and institutions in 

a newly-liberated Iraq. 

29 Reserve CA units target their recruitment at individuals who already possess the functional specialty 

skills outlined in JOINT PUB. 3-57, supra note 2. 

30 Memorandum, Colonel David Gordon, Staff Judge Advocate, Coalition Joint Civil-Military Operations 

Task Force & Office for Military Cooperation - A (Operation ENDURING FREEDOM), subject: Rule of 

Law Operations in Afghanistan 2002-2003: Lessons Observed para. 7 (27 Apr. 2005) [hereinafter Gordon 

Lessons Observed]. 

31 I d. 

32 The Judge Advocate General's Legal Center & School now offers a Rule of Law short course, and the 

Center for Law & Military Operations (CLAMO) provides a Rule of Law Handbook. See CENTER FOR 

LAW& MILITARY OPERAnONS, RULE OF LAW HANDBOOK: A PRACTITIONER'S GUIDE FOR JUDGE 

ADVOCATES (2008) [hereinafter ROL HANDBOOK 2008]. 

33 Civil Affairs Association Website, http://www.civilaffairsassoc.org (last visited Aug. 27, 2008). 

12 
However, the traditional CMO model of acting as coordinators and facilitators
 

between civil and military authorities generally was unworkable during OIF for two
 

reasons. First, as an occupying force, the Coalition maintained long-term responsibility
 

for the reestablishment of all essential government functions. Consequently, in the
 

absence of functioning Iraqi government offices, the Coalition Provisional Authority
 

(CPA) and Coalition CA assets became the day-to-day managers ofministries and
 

provincial government offices. Second, in the increasingly non-permissive environment
 

experienced from August 2003 onward, non-governmental and international
 

organizations ceased operations in areas where anti-Coalition elements targeted their
 

personnel or put them at risk. Accordingly, when they began pulling out of Iraq in
 

September 2003, they dropped or returned to CA control and administration many
 

projects U.S. forces had transitioned to them. 34 Thus, many CA JAs who entered Iraq
 

during the early months of the occupation found themselves managing the Iraqi legal
 

system, planning, financing, reconstructing, and operating it on an indefinite basis.
 

The task that consumed most CA JA time during these early stages ofOIF was 

the reconstruction of courts and reestablishment of a legal system. Unfortunately, CA 

units had received little training in this area before the beginning of major combat 

operations. Primary training objectives focused on the large number of civilians expected 

to flee from the high intensity combat and, perhaps, a chemical battlefield. 35 

Consequently, pre-deployment training had focused on dealing with internally displaced 

persons (IDPs) and separating enemy combatants from the IDPs who might flow south 

toward Kuwait. 

CA units, including JAs, conducted weeks of pre-deployment training for the IDP 

mission, including the decontamination of "gassed" civilians, emergency medical care, 

and the establishment of short-term IDP camps. Judge Advocates wrote draft rules to 

govern such camps and planned for the earliest possible return of IDPs to their homes. 

Army and U.S. Marine Corps JAs also drafted plans for Article 5 tribunals, as well as 

detention facilities for those enemy prisoners of war separated from the IDP flow. 36 

Against the background of hundreds of hours oftactical CA training, little 

training on the Iraqi government structure or legal system occurred at the CA brigade or 

battalion level. Although CA JAs requested copies ofIraqi laws from their higher 

headquarters, the focus on impending combat operations made such requests a secondary 

priority that went unrealized before deployment. 37 As the saying goes, "no plan survives 

34 Most non-governmental organizations (NGOs) are not designed or equipped to operate in a hostile 

environment. As soon as it became clear that their NGO status would not protect them, many left Iraq, 

leaving behind unfinished reconstruction projects that either had to be abandoned or assumed by the 

Coalition. See Interview with Major Chris Stockel, Judge Advocate, attached to 402d CA Battalion, An 

Nasariyah, Iraq (Aug. 2003). 

35 After Action Report, 358th Civil Affairs Brigade, After Action Report, Marine Expeditionary Forces 

Exercise 2002 2 (15 Oct. 2002). 

36 Interview with Colonel Michael O'Hare, Staff Judge Advocate, 358th CA Brigade (1 Dec. 2004). 

37Id. A three-day seminar for JA CAs at Fort Dix, N.J. in early 2003 provided extremely valuable cultural 

background information on the Iraqi Kurds, Sunnis, and Shiites, as well as other important information 

13 
first contact with the enemy," and the OIF CA plan was no exception. Except for a brief 

water shortage in Urn Qasr in the opening days ofthe war, there was no massive civilian 

emergency or significant IDP mission. Iraqis remained in their homes. Major combat 

operations led to the occupation of Baghdad within three weeks and the immediate fall of 

the Ba'athist government and its institutions. As a result, CMO planners, who had 

anticipated major combat operations continuing for weeks or months, suddenly found 

they had transitioned to stability operations with only the broadest outline of a plan. 38 

It was during this time that the government support team (GST) concept was born. 

A GST was the CA entity established in each province to interface with Iraqi officials 

and the Iraqi people. Ranging in size from twelve to twenty-four CA operators, a GST 

was the civil administration face of the local military governor. A typical GST had a JA, 

fiscal officer, logistics/engineering officer, medical expert, education officer and law 

enforcement officer, among other specialties. Military governors tasked their GSTs to 

oversee the reconstruction of critical infrastructure and get the provincial bureaucracy . . runllIng agam. 

Government support team training began in Kuwait for Army CA troops who had 

yet to cross into Iraq. From the CA JA perspective, the training, although conducted late, 

was important to convey the nuances ofthe civil law-based Iraqi court system. This was 

new to most military attorneys, who were only familiar with a common law system. 39 

One lesson learned from this experience is that all JAs should plan for rule of law 

missions in all contingency operations. This should include obtaining copies of HN civil 

and criminal laws and procedures, and conducting training on the legal system and 

traditions. Judge Advocates cannot afford to lose valuable time by deploying without 

adequate HN legal resources.

40 

Civil affairs JAs also learned that in order to share information on reform and 

reconstruction efforts, they needed not only have a reliable means of communication, but 

also a robust command reporting structure. Without this, CA elements risked becoming 

isolated from each other and unable to do what they do best - coordinate and facilitate. 

concerning Islamic culture. Unfortunately, no instruction regarding the workings of the civil government 

and its legal system was available. Id. 

38 Telephone Interview with Lieutenant Colonel John Taylor, 358th CA Brigade (Dec. 2, 2004) (''The 

transition from Phase 3 to Phase 4 operations occurred abruptly and much sooner than we expected. The 

Marines ... were screaming for [their Army CA units] to get into action as soon as possible when the 

fighting stopped. The only problem was that there was no plan for what many of the units were supposed 

to do."). 

39 See Interview with Captain David Ashe, U.S. Marine Corps, in Samawah, Iraq (Aug. 2003) ("We wasted 

so much time just learning their system that could have been put to better use actually doing something. 

We lost at least a month just trying to understand how the Iraqi system operated. By losing that month we 

lost a lot oflocal goodwill that we had to struggle to get back."). 

40 See generally Dan E. Stigall, Comparative Law and State-Building: The "Organic Minimalist" 

Approach to Legal Reconstruction, 29 Loy. L.A. INT'L & COMPo L. REv. 1 (2008); Dan E. Stigall, Iraqi 

Civil Law: Its Sources, Substance, and Sundering, 161. TRANSNAT'L L. & POL'y 1 (2006); Dan E. Stigall, 

A Closer Look at Iraqi Property and Tort Law, 68 LA. L. REV. 765 (2008). 

14 
Under Army CA doctrine, CA battalions operate under a CA brigade, which in tum 

reports to a CA command.41 Civil affairs units, including their JAs, receive training and 

are organized to work in a cooperative fashion with various levels of command and to 

create relationships between civil government organizations, military organizations, and 

international organizations, where appropriate. Their strength is not in performing the 

massive task ofrunning a government, but in coordinating the various military and 

civilian assets necessary for a governmental structure to exist and succeed. Each CA 

battalion, brigade, and command possesses organic JA assets in the role of international 

law officers, whose responsibilities in times of occupation include restoration of the 

occupied country's legal institutions. 

In Iraq, several CA battalions were in direct support of the 1st Marine Division 

(1st MARDIV) in southern Iraq, and these constituted the GSTs operating under 1st 

MARDIV control. Treated as standard line units by the U.S. Marine Corps, the CA 

battalions supporting the Marines were under orders to communicate their reports and 

requests exclusively through G-3 channels, causing a lack of interprovincial coordination 

between Army CA units and the Marine battalions operating as military governance in 

the southern Iraqi provinces.42 Accordingly, the strength ofthe Army CA units, and their 

ability to operate independently to establish relationships with non-governmental 

organizations, locate human and material resources, and bring organizations together 

across municipal, provincial, and national levels of government, were hampered in the 

south by reporting and command channels that were hierarchical in nature and did not 

facilitate this lateral communication. 

The CA JA's ability to control reporting channels and directly influence the 

structure of command relationships is limited. However, it is critical to bring such issues 

to the attention of commanders when they are impairing mission accomplishment. Once 

restrictions on direct communication lifted in July 2003,43 brigade- and battalion-level 

JAs were able to discuss common issues across the breadth of southern Iraq, avoiding 

making the same mistakes in each province. This also opened up lines of communication 

both to and from CPA, enabling needed resources to reach the Ministry of Justice in 

Baghdad. It also enabled the CPA to send policy and legal changes through CA channels 

to the operators on the ground who would implement them in a timely fashion. 

41 FM 3-05.40, supra note 2, ch.2. 

42 See Memorandum, Lieutenant Colonel Craig Trebilcock, Judge Advocate, 358th Civil Affairs Brigade, 

for 0-3, 358th Civil Affairs Brigade, subject: JAO Section Input to 358th Civil Affairs Brigade AAR, 

Operation Iraqi Freedom 3 (15 Mar. 2004). The Marine Corps' own CAOs are designed to operate at the 

tactical level for short periods of time. The CA JAs in southern Iraq were required to make their reports 

and recommendations to the 1st MARDIV 0-3, who in turn forwarded information deemed important to 

the I MEF 0-3. The I MEF 0-3 then provided any information deemed important to the commander ofthe 

358th, 304th, or 308th CA BDEs, and to the CJTF-7 0-3 (who ideally would report pertinent information 

to the 352d CA Command). 

43 In mid-June 2003, the I MEF commander authorized attached brigade-level CA elements to begin direct 

coordination with their counterparts in the 352d CACOM in Baghdad and with the battalion-level CA 

operators running the provincial level OSTs for 1st MARDIV. This provided the necessary "bridge" that 

had been missing in the flow of information concerning the status ofthe Iraqi courts and other government 

institutions in the provinces to Baghdad. 

15 
As the occupying power, the Coalition possessed significant power and influence 

within Iraq. Despite this, it was vital not to overreach and seek to impose Western values 

and beliefs upon a society not built upon the same traditions. Civil affairs officers 

receive training to be sensitive to local beliefs and values, and yet errors still happened 

under the well-intentioned desire to "make things better." Such an incident occurred in 

Najaf in September 2003 when the military governor proposed the appointment of a 

woman judge. 

While Saddam Hussein had appointed a handful ofwomen judges during his rule, 

they served primarily in Baghdad and were responsible for adjudicating inheritance and 

other family matters that would not put them in direct control over a man and his rights. 

Even so, the Iraqi people received this initiative in a lukewarm fashion and it did not 

expand.44 Despite numerous indications that such a proposition was not welcomed by the 

people ofNajaf, the CPA and military governor sought to swear in a woman judge (in the 

holiest Shiite Muslim city) in September 2003. The attempt precipitated a boisterous 

protest outside the swearing-in ceremony that threatened to erupt in violence until the 

last-minute cancellation of both ceremony and appointment. 

While well-intentioned and apparently built upon the belief that the Coalition was 

seeking greater equality for women, this ceremony alienated the local population and was 

potentially destabilizing. Fortunately, the military governor realized that he was about to 

open Pandora's Box in his province by seeking to impose Western values of gender and 

political equality. The battalion commander made the prudent decision to abandon the 

initiative because the risk was much greater than the potential payoff The lesson learned 

is to remain sensitive to cultural differences when considering the application of U.S. 

concepts of equality and justice to the legal or political system of another nation. 

Afghanistan 

The mission of CA lAs deployed to Iraq was to overlay human rights concepts 

and the rule of law on a centrally controlled legal system, with the primary challenge 

being the encouragement ofjudges to operate independently from political agendas and 

influence. However, the task in Afghanistan was to establish the concept of a nationwide legal system in a country characterized for centuries by decentralized tribal 

authority. Moreover, CA lAs had to understand that Afghanistan's Islamic legal tradition 

rests on interpretation of the Koran: the concept that authority to make laws comes from 

God, not the people, is unfamiliar to military commanders and lAs from Western 

nations.45 

44 Interview with Specialist Rachel Roe, Paralegal Specialist, 432d CA Battalion (June 2, 2003). Although 

not a JA, SPC Roe was a very talented Harvard Law School-educated attorney who was in charge of 

administering legal affairs and restoring the Najaf court system for the Najaf GST. 

45 Lieutenant Colonel Vincent Foulk, Legal Perspectives for Civil-Military Operations in Islamic 

Countries, 19 MIL. REv. 1 (Jan.-Feb. 2002). According to Colonel David Gordon, former Staff Judge 

Advocate, Office of Military Cooperation - A, "All the jurists in Afghanistan I dealt with would have 

subscribed to the principle that the authority to make laws comes from God - you will find this even in 

moderate Islamic legal thinking." E-mail from Colonel David Gordon, Staff Judge Advocate, U.S. Army 

16 
The Coalition Joint Civil-Military Operations Task Force (CJCMOTF) achieved its 

mission through four provincial reconstruction teams (PRTs), the Civil-Military 

Coordination Office (CMCOORD), and the Kabul National Impact Team. Civil affairs 

JAs played a role in the functioning of each of these organizations. The CMCOORD 

focused its CA mission at the national level. Its members coordinated with Afghan 

ministries in order to train and support their personnel. 

Through these entities, CA JAs played a key role in attempting to meld Western 

rule oflaw concepts into the framework of an Islamic constitution. This required them to 

have an understanding ofIslamic traditions and laws. It was also important to recognize 

that Afghanistan had a well-established system of informal traditional justice that could 

not be ignored. 46 Many JAs and military commanders did not have an understanding or 

appreciation ofAfghanistan's legal system before they deployed.47 However, CA JAs 

and other U.S. servicemembers who derive their knowledge and value systems from a 

Western democratic orientation had to understand the Islamic framework to achieve 

credibility with the Afghan people and avoid imposing practices that could undermine the 

legitimacy ofthe Coalition presence and mission. Therefore, similar to learning the civil 

law system to operate effectively in Iraq, JAs must be able to understand judicial systems 

based on religious or tribal laws, and should receive comparative law training on such 

systems in order to be able to provide timely and accurate advice to commanders 

regarding judicial reform and reconstruction. 

{See INTERNATIONAL & OPERATIONAL LAW (Rule ofLaw) & (Stability 

Operations).] 

Civil Affairs and Psychological Operations Command, to Lieutenant Colonel Pamela Stahl, Director, 

Center for Law & Military Operations (28 Apr. 2005). 

46 Gordon Lessons Observed, supra note 30, para. 6 (noting that, in many instances, judges and prosecutors 

did not have a great deal of training or access to codified legal materials; judges therefore relied on their 

understanding of the Koran and local customs, also sometimes applying conflicting statutes created during 

the I970s, the communist era, or the period offactional conflict prior to the Bonn Agreement). 

47 See, e.g., E-mail from Major Anthony Ricci, Judge Advocate, Ministry ofJustice, Coalition Provisional 

Authority, to Lieutenant Colonel Craig Trebilcock, Dril\ing Individual Mobilization Augmentee, Center for 

Law & Military Operations (5 Oct. 2004) ("This [training] would save an enormous amount of time and 

frustration in the post-conflict environment and would allow for our JAG folks to better advise the 

commanders."). 

17 
LD. CIVILIANS & CONTRACTORS ON THE
 

BATTLEFIELD
 

The phrase "persons accompanying the force" refers to two distinct categories of 

individuals, each governed by a separate framework: l) civilian employees; and 2) 

contractors.48 Judge Advocates should expect issues related to persons accompanying the 

force to arise during deployed operations, and must understand key concepts and be 

prepared to respond to common questions, such as the following: 

•	 What type of civilian is this? Civilians accompanying the force may be divided 

into two major groups, DOD emergency essential (EE) civilians supporting 

military operations; and DOD contingency contractor personnel (CCP); 

•	 What governs their behavior? EE civilians and CCP are regulated by different, 

though sometimes overlapping, directives, instructions, and local general orders 

(GOs); 

•	 What is their status? EE civilians and CCP may have different status vis-a.-vis 

host nation (RN) law; 

•	 Can we/they do X? JAs can expect to encounter questions about the wearing of 

uniforms and carrying of weapons, access to logistic support, and discipline. 

LD.l. Emergency Essential (EE) Civilians Supporting Military Operations 

Framework 

An EE civilian is one in a position that is located overseas, or that would be 

transferred overseas during a crisis situation, or that requires the employee to deploy or 

perform temporary duty assignments overseas during a crisis in support of a military 

operation. Civilians assigned to EE positions must sign DD Form 2365, DOD Civilian 

Employee Overseas Emergency-Essential Position Agreement. The primary regulation 

for EE employees is DOD Directive 1404.10, Emergency-Essential (E-E) DOD u.s. 

Citizen Civilian Employees. 49 Army policy, also used by Marines, is set out in Army 

Regulation (AR) 690-11, Use and Management ofCivilian Personnel in Support of 

48 See generally Major Lisa L. Turner & Major Lynn G. Norton, Civilians at the Tip ofthe Spear, 51 A.F. 

L. REV. 1 (2001). 

49 U.S. DEP'T OF DEFENSE, DIR. 1404.10, EMERGENCy-EsSENTIAL (E-E) DOD U.S. CITIZEN CIVILIAN 

EMPLOYEES (10 Apr. 1992) [hereinafter DOD DIR. 1404.10]; see also OPLAW HANDBOOK 2008,3, ch. 15 

(additional references and summary of applicable law and policy); Sandra Patterson-Jackson, Deployed 

DOD Civilians: Answering the Call to Duty, JOINT CENTER OPERATIONAL ANALYSIS J., June 2008, at 18. 

18 
Military Contingency Operations and DA Pamphlet 690-47, DA Civilian Employee 

Deployment Guide.50 

Status under the Law of War (LOW) 

Under the Geneva Conventions, EE civilians fall into the category of "persons 

who accompany the armed forces," but are not members of those forces. 51 Consequently, 

they are not "combatants" under the generally accepted view that combatants include 

individuals who meet the criteria for prisoner of war (POW) status set out in the Third 

Geneva Convention (GPW).52 However, as persons accompanying the armed forces in 

the field, EE civilians are entitled to POW status if captured (as are other civilians 

accompanying the armed forces, such as correspondents and persons responsible for the 

welfare ofthe armed services).53 Emergency essential civilians in a theater of operations 

during armed conflict are at risk of incidental injury as a result of enemy operations, and 

may be subject to intentional attack for such time as they take a direct part in hostilities. 

Uniforms & Weapons 

All deploying Department of the Army (DA) civilians are expected to wear the 

appropriate military uniform, as determined and directed by the theater commander. 

Under certain conditions, and subject to weapons familiarization training, EE civilians 

may be issued a personal military weapon for self-defense. Acceptance of a personal 

weapon is voluntary. Authority to carry a weapon for personal self-defense is contingent 

upon the approval and guidance of the combatant commander. Only government-issued 

weapons and ammunition are authorized. Civilians may not be assigned to guard duty or 

perimeter defense or engage in offensive combat operations.54 

50 U.S. DEP'T OF ARMY, REG. 690-11, USE AND MANAGEMENT OF CIVILIAN PERSONNEL IN SUPPORT OF 

MILITARY OPERATIONS (26 May 2004) [hereinafter AR 690-11]; U.S. DEP'T OF ARMY, PAM. 690-47, DA 

CIVILIAN EMPLOYEE DEPLOYMENT GUIDE (l Nov. 1995) [hereinafter DA PAM. 690-47]. 

51 Geneva Convention Relative to the Treatment of Prisoners of War art. 4(A)(4), Aug. 12, 1949,6 U.S.T. 

3316, 75 U.N.T.S. 135 [hereinafter GPW]. 

52 Thus, members of the armed forces, and militias and volunteer corps forming part of such armed forces, 

of a Party to the conflict are combatants under GPW art. 4(A)( 1). Moreover, members of other militias and 

volunteer corps are combatants under GPW art. 4(A)(2) if they: (a) are commanded by a person 

responsible for his subordinates; (b) have a fixed distinctive sign recognizable at a distance; (c) carry arms 

openly; and (d) conduct their operations in accordance with the laws and customs ofwar. Id. art. 4(A)(2) 

53 See GPW, supra note 51, art. 4(A)(4). 

54 DOD DIR. 1404. I0, supra note 49, para. 6.9.8 ("It is not a violation ofthe law of war for an E-E 

employee to wear a uniform or to carry a weapon for personal defense while accompanying a military force 

... [EE civilians] may be issued a weapon for personal defense on request by the employee ifapproved by 

the DOD Component commander, theater commander, or other authorized official.") (emphasis added); 

see also DA PAM 690-47, supra note 50, para. 1-12 (note that the current version ofFM 23-35 is U.S. 

DEP'T OF ARMY, FIELD MANUAL 3-23.35, COMBAT TRAINING WITH PISTOLS, M9 AND MIl (25 June 2003)); 

AR 690-11, supra note 50; OPLAW HANDBOOK 2008, supra note 3, at 233-34. 

19 
Logistic Support 

Prior to deployment, provision shall be made for EE civilian medical care in the 

theater of operations.55 Emergency essential civilians are encouraged to make family 

care plans, and are entitled to casualty services. Emergency essential civilians serving 

with U.S. forces outside the United States are eligible to receive legal assistance.56 

Discipline 

A discussion of discipline appears below in relation to CCP. 

J.D. 2. Contingency Contracting Personnel (CCP) 

The DOD uses contingency contracting personnel (CCP) to provide U.S. forces 

deployed overseas with a wide range of services. They include defense contractors and 

employees of defense contractors and their subcontractors at all tiers under DOD 

contracts, including U.S. citizens, U.S. legal aliens, third country national and HN 

personnel with authorization to accompany U.S. forces under such contracts. Contractor 

services are acquired through normal contracting procedures as well as through the 

Logistics Civil Augmentation Program (LOGCAP).57 Services include communications 

and base operations services, interpreters, weapons systems maintenance, gate and 

perimeter security, intelligence analysis, and oversight of other CCP.58 

The primary instruments governing CCP are DOD Instruction 3020.41, 

Contractor Personnel Authorized to Accompany the Us. Armed Forces and Army 

Regulation (AR) 715-9, Contractors Accompanying the Force. 59 The latter establishes 

Army policies and responsibilities for using contractors on the battlefield. 

55 U.S. DEP'T OF DEFENSE, INSTR. 1400.32, DOD CIVILIAN WORK FORCE CONTINGENCY AND EMERGENCY 

PLANNING GUIDELINES AND PROCEDURES para. 6.1.10 (24 Apr. 1995); see also Memorandum, Deputy 

Secretary of Defense, to Secretaries of the Military Departments, subject: Policy Guidance for Provision of 

Medical Care to Department of Defense Civilian Employees Injured or Wounded While Forward Deployed 

in Support of Hostilities (24 Sept. 2007) ("The Under Secretary of Defense (Personnel and Readiness), 

under compelling circumstances, is authorized to approve additional eligibility for care in MTFs for other 

U.S. Government civilian employees who become ill, contract diseases or are injured or wounded while 

forward deployed in support of U.S. military forces engaged in hostilities, or other DOD civilian employees 

overseas."). 

56 OPLAW HANDBOOK 2008, supra note 3, at 234. 

57 See U.S. DEP'T OF ARMY, REG. 700-137, LOGISTICS CIVIL AUGMENTATION PROGRAM (16 Dec. 1985). 

58 U.S. GEN. ACCOUNTING OFFICE, GAO-03-695, CONTRACTORS PROVIDE VITAL SERVICES TO DEPLOYED 

FORCES BUT ARE NOT ADEQUATELY ADDRESSED IN DOD PLANS (June 2003). 

59 U.S. DEP'T OF DEFENSE, INSTR. 3020.41, CONTRACTOR PERSONNEL AUTHORIZED TO ACCOMPANY THE 

U.S. ARMED FORCES (3 Oct. 2005) [hereinafter DOD INSTR. 3020.41]; JOINT CHIEFS OF STAFF, JOINT PUB. 

4-10, OPERATIONAL CONTRACT SUPPORT (forthcoming 2008); U.S. DEP'T OF ARMY, REG. 715-9, 

CONTRACTORS ACCOMPANYING THE FORCE (29 Oct. 1999) [hereinafter AR 715-9]; see also U.S. DEP'T OF 

ARMY, FIELD MANUAL 3-100.21, CONTRACTORS ON THE BATTLEFIELD (3 Jan. 2003) [hereinafter FM 3­

100.21]; U.S. DEP'T OF ARMY, FIELD MANUAL 100-10-2, CONTRACTING SUPPORT ON THE BATTLEFIELD (4 

Aug. 1999); OPLAW HANDBOOK 2008, supra note 3, ch. 16 (list of additional references, and summary of 

20 
Status under the LOW 

The status of CCP under the Geneva Conventions is the same as that ofEE 

civilians. They are "persons who accompany the armed forces," but are not members of 

those forces. Consequently, they are not "combatants," but are entitled to POW status if 

captured.6o Like EE civilians, CCP in a theater of operations during armed conflict are at 

risk of incidental injury as a result of enemy operations. Moreover, CCP may be subject 

to intentional attack for such time as they take a direct part in hostilities. DOD Instruction 

3020.41 lists those activities permitted to CCP as "indirect participation.,,61 However, all 

such activities should undergo legal analysis to determine whether they would constitute 

direct or indirect participation in hostilities.62 

Uniforms & Weapons 

Army Regulation 715-9 sets out the general rule regarding CCP use of uniforms: 

"Contractors accompanying the force are not authorized to wear military uniforms, 

except for specific items required for safety or security, such as: chemical defense 

equipment, cold weather equipment, or mission specific safety equipment.,,63 DOD 

Instruction 3020.41 echoes this general prohibition, but permits combatant commanders 

to authorize "certain contingency contractor personnel" to wear uniform items for 

"operational reasons." In such cases, distinctive patches or nametapes are required to 

distinguish CCP from uniformed military personnel.64 

DOD Instruction 3020.41 also governs CCP possession of weapons. It prohibits 

the possession of personally-owned weapons by CCP accompanying the force. However, 

combatant commanders may authorize CCP to carry military weapons for individual selfdefense. Acceptance ofthe weapon must be voluntary and permitted by both the contract 

applicable law and policy). A compilation of contractor-related references is located at 

http://www.afsc.army.miVgc/battle2.asp. 

60 See GPW, supra note 51, art. 4A(4). See also JENNIFER ELSEA, CONGRESSIONAL RESEARCH SERVICE, 

RL32419, PRIVATE SECURITY CONTRACTORS IN IRAQ: BACKGROUND, LEGAL STATUS, AND OTHER ISSUES 

(July 11,2007), available at http://fas.org/sgp/crs/natsec/RL32419.pdf(summary ofthe LOW in relation to 

contractors providing security services in Iraq). 

61 DOD INSTR. 3020.41, supra note 59, para. 6.1.1. 

62 See GPW, supra note 51, art. 85 (defining acts ofperfidy). See also E-mail from Mr. Hays Parks, Office 

of the General Counsel, Department of Defense, to Colonel Michael W. Meier, Office ofthe Legal 

Advisor, Chairman, Joint Chiefs of Staff (4 May 2004); Memorandum, International Law Division, Office 

of The Judge Advocate General, U.S. Army, to Lieutenant Colonel Lind, subject: Coalition Provisional 

Authority (CPA) Program Management Office (PMO) Statement ofWork (SOW) Reconstruction Security 

Support Services para. 3 (15 Mar. 2004) ("[W]hen contractors take up arms and engage in combat activities 

going well beyond the use of small arms for individual self defense, they are acting as soldiers without 

having the legal status or protections of soldiers."); Lieutenant Colonel Duane Thompson, Civilians in the 

Air Force Distributed Common Ground System (DCGS), JOINT CENTER OPERATIONAL ANALYSIS 1., June 

2008, at 18. 

63 AR 715-9, supra note 59, para. 3-3(e). 

64 DOD INSTR. 3020.41, supra note 59, para. 6.2.7.7. 

21 
and the contractor. The individual must be eligible under u.s. law to possess a firearm. 

The government is responsible for providing weapons familiarization and briefings on the 

rules for the use of force or ensuring someone provides them. Finally, someone must 

advise CCP that unlawful use of the weapon could subject them to civil or criminal 

liability under u.s. or HN law. 65 

Judge Advocates must also be aware of any regulation or limitations placed upon 

the possession of weapons from sources such as status of forces or other international 

agreements, HN law if applicable, and other regulatory schemes. In Iraq, JAs should 

familiarize themselves with Coalition Provisional Authority (CPA) Order No. 17, as 

modified by CPA Order No. 100, which provides guidance concerning immunities and 

the possession of weapons by civilians and contractors directly supporting Coalition 

forces. 66 

In Iraq, insurgents have killed, injured, and taken hostage U.S. CCP.
 

Consequently, some CCP, along with those in Afghanistan, have asked to carry personal
 

firearms for their own protection. In fact, some CCP had become accustomed in other
 

theaters to receiving HN permission to possess a privately-owned weapon.

67 However,
 

U.S. Central Command (CENTCOM) GO No. 1A prohibited the "[p]urchase, possession, 

use or sale of privately owned firearms, ammunition, explosives, or the introduction of 

these items into the USCENTCOM [area of responsibility]", a ban which has been 

maintained in GO No. 1B.68 In addition, although some U.S. contracts include language 

that permits CCP to possess weapons for their personal protection with the authorization 

of the theater commander, many did not address the issue. 

Legal opinions have been consistent that merely carrying a weapon for selfdefense does not abrogate CCP status as persons accompanying the force, nor does it 

65Id. paras. 4.4.1 to 4.4.2, 6.2.7.8, 6.3.4.1 to 6.3.5.4; see also OPLAW HANDBOOK 2008, supra note 3, 

248-49; FM 3-100.21, supra note 59, para. 6-29: 

[U]nder certain conditions ... [contractors] may be allowed to arm for self-defense 

purposes. Once the combatant commander has approved their issue and use, the 

contractor's company policy must permit its employees to use weapons, and the 

employee must agree to carry a weapon. When all of these conditions have been met, 

contractor employees may only be issued military specification sidearms, loaded with 

military-specification ammunition. Additionally, contractor employees must be 

specifically trained and familiarized with the weapon and trained in the use of deadly 

force in order to protect themselves. Contractor employees will not possess privately 

owned weapons. When determining to issue weapons to a contractor the combatant 

commander must consider the impact this may have on their status as civilians authorized 

to accompany the force. 

Id. 

66 CPA Order No. 17 is expected to be superseded in late 2008 by a bilateral agreement between the United 

States and Iraq. 

67 See Information Paper, subject: Weapons Possession, para. 4.a. 

68 Headquarters, U.S. Central Command, Gen. Order No. lA, para. 2.a (29 Dec. 2000), superseded by 

Headquarters, U.S. Central Command, Gen. Order No. IE (13 Mar. 2006). 

22 
transfonn CCP into combatants outside the GPW POW protections. In Iraq, the 

Combined Joint Task Force 7 (CJTF-7) OSJA concluded CCP who were issued weapons 

to protect their person and property ran "little risk of being classified as combatants or 

mercenaries under international law" because they were "only ensuring their own 

protection, not taking an 'active part in the hostilities. ",69 

The lessons learned with respect to authorizing DOD CCP to carry weapons for
 

self-defense are many. First, the combatant commander, or his or her delegate must
 

make such decisions on a case-by-case basis. In Iraq, Multi-National Corps - Iraq
 

(MNC- I) has established a process for anning persons accompanying the force, with the
 

commanding general (CG) as the approval authority.7o In Afghanistan, approval
 

authority rests, through delegation, at the general officer level. 71 According to Anny
 

policy, based on international law, force protection is the responsibility ofthe anned
 

69 Infonnation Paper, Office ofthe Staff Judge Advocate, Combined Joint Task Force 7, subject: Legal 

Bases for Maximizing Logistics Support in an Operational Environment Using Contracted Security, para. 2 

(3 Feb. 2004). The info paper also considered the AP I art. 47 definition of a mercenary as a person who: 

(a) is specially recruited locally or abroad in order to fight in an anned conflict; 

(b) does, in fact, take a direct part in the hostilities; 

(c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, 

is promised, by or on behalf of a Party to the conflict, material compensation substantially in 

excess ofthat promise or paid to combatants of similar ranks and functions in the anned forces of 

that Party; 

(d) is neither a national of a Party to the conflict nor a resident ofterritory controlled by a Party to 

the conflict; 

(e) is not a member ofthe anned forces of a Party to the conflict; and 

(f) has not been sent by a State which is not a Party to the conflict on official duty as a member of 

its anned forces. 

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of 

Victims ofInternational Anned Conflicts (Protocol I) art. 47(a), June 8, 1977, Ul125 UN.T.S. 48 

[hereinafter AP I]. See also Memorandum, Dep't of Defense, Office of General Counsel, to Staff Judge 

Advocate, US. Central Command, subject: Request to Contract for Private Security Companies in Iraq (10 

Jan. 2006). 

70 4th Infantry Division, Office of the StaffJudge Advocate, After Action Review, Operation IRAQI 

FREEDOM, January 2006 - March 2007 4 (2007) [hereinafter 4ID 2007 OIF AAR]. Division SJAs must 

carry out a legal review of each request to ensure that the FRAGO requirements are met. The FRAGO also 

discusses the anning ofprivate security contractors. Judge Advocates must be aware of current policy, 

advise staff accordingly, and conduct legal reviews ofrequests. !d. 

71 Combined Security Transition Command - Afghanistan, Legal Advisor Detainee Operations & Political 

Military Affairs, March - September 2007 3 (28 Dec. 2007) [hereinafter CSTC-A Legal Advisor 2007 OEF 

AAR]. The 10th Mountain Division (Light Infantry) OSJA recommended creating a checklist for requests 

to arm CCP, to include a memo from force protection recommending approval, an acknowledgement by the 

contractor that he or she has been trained on the difference between the rules of engagement (ROE) and the 

rules for the use offorce (RUF), a signed DD Form 2760 qualification fonn, a memo from the task force 

requesting approval to arm the contractor, and a weapons qualification card. Once CCP are armed, they 

must understand the limits on their ability to use their weapons, and the operational law (OPLAW) 

attorney should briefthem on the RUF and escalation of force (EOF) procedures. 10th Mountain Division 

(Light Infantry), Office of the StaffJudge Advocate, After Action Report, Operation ENDURING 

FREEDOM, February 2006 - February 2007 14-15 (2007) [hereinafter 10th MTN DIV 2007 OEF AAR]. 

23 
forces. 72 If the decision is to allow CCP to carry weapons, the legal advisor must review 

the contract to ensure it is permissible and he or she must consider many other questions. 

For example, if the contractor is requesting arming of all of its employees for their 

personal protection, will the command issue a military weapon to every employee? If 

not, what is the basis for the determination to arm particular personnel and not others? 

What limitation will be placed on the personnel to be issued weapons - u.s. citizens, 

third country nationals, HN citizens? Who is accountable for each weapon issued? Who 

will exercise command and control? Questions regarding training, including training on 

the use of the weapon and use of force rules, also require answers. Issues regarding 

improper use of force by a contractor with a U.S. Government-issued weapon are also a 

consideration.73 What happens if a contractor uses his or her weapon not in self-defense, 

but in an offensive manner? Will the military be subject to a claim of wrongful death 

because it armed the contractor? 

Logistic Support 

As more CCP entered the Iraq theater of operations, the issue ofmedical care 

arose. Although the largest DOD contractor, KBR (formerly Kellogg, Brown and Root), 

brought its own healthcare providers, most contractors did not. Moreover, it proved very 

difficult, if not impossible, to locate their contracts in order to determine whether they 

included the provision ofmedical care.

74 In general, DOD Instruction 3020.41govems 

provision of medical care to CCP. It notes the limitations of medical care available in the 

austere environments common to contingency operations and states that the DOD "may 

provide resuscitative care, stabilization, hospitalization at level III MTFs [medical 

treatment facilities], and assistance with patient movement in emergencies where loss of 

life, limb or eyesight could occur.,,75 All costs associated with transportation to and from 

treatment at a "selected civilian facility" are reimbursable to the government.76 

Medical commanders seek advice from deployed lAs on the interpretation and 

application of this policy, particularly as it relates to reimbursement for medical services. 

Contract employees seek medical care for various services, from broken limbs to minor 

72 FM 3-100.21, supra note 59, paras. 6-4 to 6-6. 

73 The 10lst Airborne Division OSJA reported that CCP were required under their contract to report EOF 

incidents. It recommended close coordination with LOGCAP to ensure that these requirements were 

satisfied. 101 st Airborne Division (Air Assault), Office of the Staff Judge Advocate, Operation IRAQI 

FREEDOM 05-07 After Action Report, November 2005 - November 2006) 3-4 (2006) [hereinafter 10lst 

ABN DIV 2007 OIF AAR]. 

74 See Captain Kirsten M. Mayer, JA, 30th Medical Brigade, V Corps, Transcript of After Action Review 

Conference, Office of the Staff Judge Advocate, V Corps, and Center for Law & Military Operations, 

Heidelberg, F.R.G. 21 (17-19 May 2004) [hereinafter V Corps 2004 OIF AAR Conference Transcript]. 

75 DOD INSTR. 3020.41, supra note 59, para. 6.3.8. 

76 !d. paras. 6.3.8.1 to 6.3.8.5. See also Memorandum, Joint Contracting Command - Iraq/Afghanistan, 

Multi-National Force - Iraq, to Director, Defense Procurement and Acquisition Policy and Strategic 

Sourcing, subject: Contractor Healthcare Services in the Iraqi Theater of Operations (ITO) (13 Aug. 2007) 

(indicating that the Joint Contracting Command - Iraq/Afghanistan has created theater-specific contract 

language to clarify the healthcare available to CCP in Iraq). 

24 
ailments. Medical professionals treat these conditions based on availability of providers. 

Moreover, as DOD policy requires reimbursement for such care, lAs should seek to 

collect and maintain in a database contracts providing for cost-reimbursement of 

government-provided medical services to aid in collecting reimbursement through thirdparty billing. 77 

However, one lA observed that collecting the contracts and relevant clauses was 

both more difficult and less helpful than initially anticipated. The MTFs asked CCP to 

provide copies of their contract when seeking medical care and this produced several 

contracts. However, most were silent on the issue ofreimbursement for medical services. 

Yet the absence of documentation may not have significantly affected the medical care 

provided to CCP, as doctors understandably did not want to tell a U.S. citizen, "No, we're 

not going to fix your broken arm." As a result, where u.s. CCP required prompt 

treatment, medical personnel were likely to provide care regardless of contractual or 

policy provisions. Nonetheless, obtaining reimbursement for medical services remained 

problematic even in cases where contract documents were available and contained 

reimbursement provisions because the MTFs lacked sufficient deployed personnel to 

capture and track treatment for third-party billing. 78 

The provision of other logistic support to contractors, including evacuation, 

mortuary affairs, and access to morale, welfare, and recreation (MWR) facilities falls 

under a number of different regulations. 79 Contingency contractor personnel are not 

normally entitled to legal assistance, either prior to deployment or while in theater. 8o 

Liability 

Contingency contract personnel who do not enjoy special status under a status of 

forces or similar agreement may be subject to civil liability. The Federal Claims Act 

(FCA) does not provide any mechanism to pay claims for damage caused by 

contractors. 81 Contractors accompanying the force playa large role in present-day 

military operations. Simply denying claims caused by contractors caused difficulties for 

lAs and commanders alike as - in the eyes of Iraqi claimants - there was little to 

distinguish between U.S. CCP and U.S. Soldiers. Accordingly, claimants would attribute 

any damage to their property to U.S. forces. To resolve this difficulty, the 10Ist Airborne 

Division (Air Assault) recommended amending the FCA to allow for payments in such 

instances, or amending contracts to permit reimbursement for paying these claims. 82 

77 V Corps 2004 OIF AAR Conference Transcript, supra note 74, at 9. 

78Id. 

79 See OPLAW HANDBOOK 2008, supra note 3, 247-48 (summary of entitlements and applicable 

regulations). 

80 DOD INSTR. 3020.41, supra note 59, para. 6.2.7.10. 

81 See U.S. DEP'T OF ARMY, REG. 27-20, CLAIMS para. 2-40 (1 July 2003) (describing as a threshold issue 

that claims are not payable for damage caused by contractors). 

82 Operation IRAQI FREEDOM After Action Review, Office of the Staff Judge Advocate, 101 st Airborne 

Division (Air Assault) 23 (24 Sept. 2004). 

25 
However, the issue has not been resolved, and any amendment of the FCA would require 

legislation. 

Discipline 

In accordance with their contracts, CCP need to be aware of and comply with 

applicable DOD regulations, directives, instructions, Gas, policies, and procedures, U.S. 

and HN laws, international laws and regulations, and all applicable treaties and 

international agreements (e.g., status of forces agreements, HN support agreements, 

Geneva Conventions, and defense technical agreements) relating to safety, health, force 

protection, and operations.83 

When misconduct occurs, it is very important to identify the authority for 

exercising criminal jurisdiction over persons accompanying the armed forces, including 

CCP. Absent a status of forces or similar agreement to the contrary, CCP are subject to HN 

criminallaw.84 Where CCP are not subject to HN criminal law, the United States may wish 

to exercise jurisdiction. This occurs in one of several ways. Determining whether criminal 

jurisdiction is present may depend upon the "type" of CCP involved in misconduct, the 

severity of the alleged offense(s), and any applicable contract provisions.85 Contingency 

contract personnel may be subject to the Military Extraterritorial Jurisdiction Act of 2000 

(MEJA). It establishes federal jurisdiction over offenses committed outside the United 

States by persons employed by or accompanying U.S. forces, or by members of the U.S. 

forces who are released or separated from active duty prior to being identified and 

prosecuted for the commission of such offenses, and for other purposes.

86 

In addition to MEJA, persons "serving with or accompanying the force" may also 

be subject to trial by court-martial for an offense under the Uniform Code of Military 

Justice (UCMJ).87 Previously, CCP were subject to the UCMJ only in times of declared 

83 See Solicitations Provisions and Contract Clauses, 48 CFR § 5152.225-74-9000(a)(3) (2004). The 

regulation states that the Contractor shall ensure that all personnel working in the AO comply with all 

orders, directives, and instructions ofthe combatant command relating to noninterference with military 

operations, force protection, health, and safety. See also DOD INSTR. 3020.41, supra note 59, para. 6.1. 

84 OPLAW HANDBOOK 2008, supra note 3, at 242-43 (citing CPA Order No. 17 as providing immunity for 

CCP from Iraqi criminal jurisdiction). 

85 See FM 3-100.21, supra note 59; OPLAW HANDBOOK 2008, supra note 3, 249-53. 

86 See U.S. DEP'T OF DEFENSE, INSTR. 5525.11, CRIMINAL JURISDICTION OVER CIVILIANS EMPLOYED BY OR 

ACCOMPANYING THE ARMED FORCES OUTSIDE THE UNITED STATES, CERTAIN SERVICEMEMBERS, AND 

FORMER SERVICEMEMBERS (3 Mar. 2005) (implementing 18 U.S.c. 3261-67, Military Extraterritorial 

Jurisdiction Act (MEJA), as required by 18 USC § 3266, as approved by Deputy Secretary of Defense Paul 

Wolfowitz on March 3, 2005). DOD INSTR. 5525.11 calls upon each ofthe services to implement MEJA 

into their respective regulations. 

87 See National Defense Authorization Act for Fiscal Year 2007, amending UCMJ Art. 2(a)(l0), extending 

UCMJ jurisdiction over civilians accompanying the Armed Forces from "time ofwar" to "time of declared 

war or contingency operation." A contingency operation is defined as: 

A military operation that the Secretary of Defense designates as an operation in which 

members of the armed forces are or may become involved in military actions, operations, 

26 
war, which last occurred in World War II. As a result, during operations in Haiti, only 

administrative options were available to a commander faced with CCP who flouted 

command orders.88 The charged offense(s) may now also have occurred during a 

contingency operation. 89 However, it is likely that MEJA will control in many cases by 

attaching federal (rather than UCMJ) jurisdiction for criminal offenses committed by 

persons accompanying U.S. forces. 9o 

Commanders also have several options for offenses that do not rise to the level of 

criminal conduct appropriate for prosecution under MEJA. These include barring the 

offender from military installations in the area or theater of operations, sending the 

offender back to the United States, or requesting that the contractor reprimand or 

terminate the CCP. 91 

[See also MILITARY JUSTICE (Civilians Accompanying the Force).] 

or hostilities against an enemy ofthe U.S. or against an opposing military force. Or, 

alternatively, a military operation that results in the cal1 or order to, or retention on, active 

duty of members ofthe Uniformed Services. 

See also Memorandum, Deputy Secretary of Defense, to Secretaries ofthe Military Departments, subject: 

Management of DoD Contractors and Contractor Personnel Accompanying U.S. Armed Forces in 

Contingency Operations Outside the United States (25 Sept. 2007) (confirming the existence ofUCMJ 

jurisdiction over DOD contractors); Memorandum, Secretary of Defense, to Secretaries of the Military 

Departments, subject: UCMJ Jurisdiction Over DoD Civilian Employees, DoD Contractor Personnel, and 

Other Persons Serving With or Accompanying the Armed Forces Overseas During Declared War and in 

Contingency Operations (10 Mar. 2008) (implementation guidance for exercise ofUCMJ jurisdiction). See 

generally Brigadier General David G. Ehrhart, Closing the Gap: The Continuing Search for Accountability 

ofCivilians Accompanying the Force, JOINT CENTER OPERATIONAL ANALYSIS 1., June 2008, at 7; Marc 

Lindemann, Civilian Contractors under Military Law, PARAMETERS (Autumn 2007); James McCul1ough, 

Courtney 1. Edmonds, & Alyssa C. Lareau, How About a Court-Martial? The Scope ofNew UCMJ 

Authority over Contractors Is Still Being Worked Out, LEGAL TIMES (8 Oct 2007). 

88 See Passar AAR, supra note 11, para. 6i. 

89 See CENTER FOR LAW & MILITARY OPERATIONS, LEGAL LESSONS LEARNED FROM AFGHANISTAN AND 

IRAQ, VOLUME II: FULL SPECTRUM OPERATIONS (2 May 2003 - 30 June 2004) 211 (l Sept. 2005) 

[hereinafter OEF/OIF LL, Vol. II]. 

90 A recent OSJA AAR noted that the range of contractor misconduct spanned minor misconduct (such as 

attempts to mail contraband) through to serious misconduct (such as sexual assault), and the punishment 

alternatives ranged from exclusion orders to MEJA prosecutions. Nonetheless, the majority of misconduct 

did not warrant MEJA prosecution (only applies to felonies) or simply was not serious enough for 

Department of Justice attention. The AAR recommended JAs become familiar with procedures for 

addressing CCP misconduct and understand the options available. 101st ABN DIV 2007 OIF AAR, supra 

note 73, at 80. 

91 Judge Advocates should be aware of new oversight requirements applicable to U.S. CCP in Iraq. See, 

e.g., U.S. GEN. ACCOUNTING OFFICE, GAO-08-966, REBUILDING IRAQ: DOD AND STATE DEPARTMENT 

HAVE IMPROVED OVERSIGHT AND COORDINATION OF PRIVATE SECURITY CONTRACTORS IN IRAQ, BUT 

FURTHER ACTIONS ARE NEEDED TO SUSTAIN IMPROVEMENTS (July 2008). 

27 
LE. DETENTION OPERATIONS 

I.E.l. Legal Framework 

Because ofthe many undefined and novel aspects of the Global War on Terror
 

(GWOT) - including the enemy's composition and tactics - detention operations
 

consistently test established law of war (LOW) tenets. Judge Advocates were at the
 

forefront in helping commanders determine and address their legal obligations in this
 

area.
 

Judge Advocates must be prepared to address issues concerning detainee status 

and treatment in the absence of guidance from higher authorities and adapt local 

procedures to implement guidance from the highest levels of the U.S. Government. For 

example, enemy forces in Afghanistan consisted primarily of elements ofthe Taliban 

regime and the al Qaeda terrorist organization. The Taliban regime did not control all 

Afghan territory, nor did it enjoy wide international recognition as Afghanistan's 

legitimate government. Al Qaeda is a transnational terrorist organization that controls no 

territory and has no fixed location.92 Taliban and al Qaeda forces sometimes fought 

together, and both groups essentially ignored the LOW. 93 So what was the status of any 

individual captured from these two organizations? 

The legal issues associated with detention operations in Afghanistan were initially 

unresolved. The following discussion of these issues draws heavily upon the experiences 

of the 10th Mountain Division (lOth MTN DIV) SJA, who was one ofthe first JAs to 

deploy with conventional forces in support of Operation Enduring Freedom (OEF). In 

mid-December 2003, the 10th MTN DIV deployed a brigade combat team (BeT) to 

Sherbergan in Northern Afghanistan. One of the Northern Alliance generals, General 

Dostum, had captured more than 3800 Taliban and Al Qaeda prisoners and was keeping 

them imprisoned in one of his prisons. This consisted ofmud cells with no sanitation, 

electricity, climate control, or creature comforts of any kind, packed with men and spread 

out over an area the size of about ten football fields. General Dostum offered to let U.S. 

representatives screen his 3,800 captives to see ifU.S. forces wanted any for intelligence 

purposes or prosecution. This unique opportunity posed a number of legal issues. What 

were U.S. responsibilities for the care, feeding, and welfare of prisoners screened by U.S. 

forces but not under U.S. control or jurisdiction?94 

92 See CENTER FOR LAW & MILITARY OPERATIONS, LEGAL LESSONS LEARNED FROM AFGHANISTAN AND 

IRAQ, VOLUME I: MAJOR COMBAT OPERATIONS (11 September 2001- 1 May 2003) 4-29 (1 Aug. 2004) 

[hereinafter OEF/OIF LL, Vol. I] (detailed discussion of combat operations in Afghanistan). 

93 See, e.g., Interview with Colonel David L. Hayden, former Staff Judge Advocate, XVIII Airborne Corps, 

in Charlottesville, Va. (Oct. 8, 2003). See also Interview with Major Dean L. Whitford & Staff Sergeant 

Jerome D. Klein, Group Judge Advocate & Legal NCOIC, 5th Special Forces Group, in Charlottesville, 

Va. (Aug. 19,2003) [hereinafter Whitford & Klein Interview] (noting that Taliban and al Qaeda fighters 

often feigned surrender to gain a military advantage over their opponents). 

94 Colonel (then Lieutenant Colonel) Kathryn Stone deployed to Uzbekistan in December 2001, moved into 

Afghanistan in February 2002, and redeployed to Fort Drum, New York on 31 May 2002, about the same 

28 
[W]e worked out a deal whereby General Dostum would get some extra help and 

equipment in exchange for our access to his prisoners.... The brigade 

commander and G-3 worked out in excruciating detail the techniques, tactics, and 

procedures (TTPs) that our soldiers would follow to conduct this screen, which 

was clearly a non-Mission Essential Task List (non-METL) mission that had 

never been trained for. A JAG officer was sent with the brigade combat team for 

three important reasons: to protect the CG's equities, to ensure the Geneva 

Conventions principles were followed as a matter of U.S. policy, and to [liaise] 

with the International Committee of the Red Cross and the media. 95 

After U.S. personnel had gained access to the Northern Alliance detainees, the 

10th MTN DIV SJA visited the prison where they were being kept. She noted that: 

I did not handle any legal issues while I was in Sheberghan. [CPT Soucie] had 

already taken care of all of them by the time I arrived, because at that point the 

screening procedure was in place and somewhat routine. One of his issues dealt 

with whether the press could photograph the prisoners, which was a tricky issue 

because, technically, the U.S. had no jurisdiction over General Dostum's prisoners 

at that point, yet Geneva Convention Article 13 prohibits photographing prisoners 

for the sake ofpublic curiosity. We were also concerned about assuming any 

level of responsibility for ensuring compliance with the Conventions regarding 

that group ofprisoners since General Dostum, and not the U.S., had control and 

jurisdiction over them at that point. [CPT Chris Soucie] properly advised that the 

photographs could be taken, but the press could not photograph either the method 

of operation, or a prisoner's face. Other issues that Chris handled dealt with the 

method of DNA collection ([collecting] hair [samples] and swabbing mouths); 

and whether we could provide on-the-spot medical treatment since we did not 

"own" the prisoners (we could). An interesting side note is that, about two weeks 

after the brigade completed the screening operation in Sheberghan, CENTCOM 

time XVIII Airborne Corps JAs began arriving. See Interview with Colonel Kathryn Stone, former Staff 

Judge Advocate, 10th Mountain Division, in Charlottesville, Va. (Oct. 7,2003). 

95 Colonel Kathryn Stone, former Staff Judge Advocate, 10th Mountain Division, Personal Experience 

Monograph, at 13-14 (2003) [hereinafter Stone Monograph]. Colonel Stone wrote her monograph as a 

student at the Army War College in Carlisle Barracks, Pennsylvania. The Command Judge Advocate for 

the Joint Special Operations Task Force-North (Task Force Dagger) also commented: 

Detainees taken into custody by Northern Alliance forces were treated as their [Northern 

Alliance] detainees even if the particular force was supported by U.S. special forces 

teams. Teams were given guidance by and through the [Special Operations Command 

Central] [C]ommander regarding actions to take in the event ofLOAC violations by the 

supported forces. The supported Afghan forces screened detainees and would tum over 

any requested by the U.S [such as u.S. citizen John Walker-Lindh]. ... The bulk ofthe 

Northern Alliance detainees taken to Sherbergan were collected after the fall ofMazar-iSharif, Taloqan, and Konduz. Supported Afghan forces customarily would release after 

surrender local Afghans and detain only Al Qaida, foreign fighters, and militant Taliban. 

Memorandum, Major Dean L. Whitford, former Group Judge Advocate, 5th Special Forces Group 

(Airborne) & Command Judge Advocate, Joint Special Operations Task Force - North (Task Force 

Dagger) (OEF); Command Judge Advocate, Combined Joint Special Operations Task Force - West & 

successor Combined Joint Special Operations Task Force - Arabian Peninsula (OIF), for Major Daniel P. 

Saumur, Deputy Director, Center for Law & Military Operations, subject: Task Force Dagger OEF/OIF 

International Law AAR, para. 3 (17 June 2004). 

29 
finally sent out a message detailing the procedures that we were supposed to 

follow.... Thankfully, what we had done was in compliance with CENTCOM's 

instructions, and we did follow CENTCOM's guidance in our future screening . 96 operatIOns. 

As the U.S. began detaining personnel, the most difficult unsettled issue was the 

status of Taliban and al Qaeda detainees.97 Judge Advocates sought guidance from U.S. 

Central Command (CENTCOM) and Coalition Forces Land Component Command 

(CFLCC) headquarters in Kuwait.98 Procedures slowly developed, but JAs advised to 

treat detainees in a manner consistent with the Third Geneva Convention (GPW) and 

Fourth Geneva Convention (GC), and this is what happened. 99 XVIII Airborne Corps 

JAs began arriving in May 2002. According to the former Combined Joint Task Force 

180 (CJTF-180) Chief of Operational Law: "In Afghanistan, it [was] simple . .. 

[detainees were] not granted EPW [enemy prisoner of war] status and although the US 

treats them in a manner consistent with the Geneva Conventions and humanely, they do 

not get all ofthe rights ofthe 3rd Geneva Convention."IOO Although the legal issues 

involved in determining detainee status and treatment were complex, it was simpler for 

JAs after 7 February 2002, when President Bush issued the following guidance: 

The President has determined that the Geneva Convention applies to the Taliban 

detainees, but not to the al-[Qaeda] detainees. AI-[Qaeda] is not a state party to 

the Geneva Convention; it is a foreign terrorist group. As such, its members are 

not entitled to POW status. Afghanistan is a party to the Convention, and the 

President has determined that the Taliban are covered by the Convention. Under 

the terms of the Geneva Convention, however, the Taliban detainees do not 

qualify as paws. Even though the detainees are not entitled to POW privileges, 

they will be provided many POW privileges as a matter of policy. 101 

96 Stone Monograph, supra note 95, at 7-8. 

97 See Telephone Interview with Colonel Kathryn Stone, former Staff Judge Advocate, 10th Mountain 

Division (14 Apr. 2004) [hereinafter Stone Telephone Interview]. 

98 See Memorandum, Majors Nicholas F. Lancaster & 1. "Harper" Cook, Office ofthe Staff Judge 

Advocate, WIst Airborne Division (Air Assault), for Record, subject: MAJ Lancaster (WIst ABN DIV 

(AASLT) Operational Law) Comments on CLAMO OEF/OIF DRAFT Lessons Learned para. 2 (18 May 

2004) [hereinafter Lancaster & Cook Memorandum] ("Prior to CJTF-180 arriving in Bagram, there was 

very little guidance on detainee operations or policy through technical channels. The lesson for early 

deploying JAs is that they must be prepared to give advice with very little information."). 

99 See Stone Telephone Interview, supra note 97. 

100 Major Jeff A. Bovarnick, Chief of Operational Law, CJTF-180, CJTF-180 Notes from the Combat Zone 

4 (2003). 

101 See The White House, Fact Sheet, Status of Detainees at Guantanamo, Feb. 7,2002, 

http://www.whitehouse.gov/news/releases/2002/02/print/20020207-13 .html; U.S. Secretary of Defense 

Donald H. Rumsfeld, News Briefing, Feb. 8, 2002, http://defenselink.mil/newsFeb002 (referencing 

President Bush's 7 February 2002 decision with respect to al Qaeda and Taliban detainees). Although 

much of the legal analysis underlying the presidential decisions remains classified, see Office of the Staff 

Judge Advocate, Joint Task Force-160, subject: Legal Lessons Learned At GTMO, at 3 (2002) ("Taliban 

do not meet the [GPW art. 4] criteria of militia who can receive POW status.... Taliban are not members 

of nor possess the attributes of regular armed forces, which requires distinguishing themselves from the 

civilian population and conducting their operations in accordance with [the] laws and customs of war. "). 

30 
Classified criteria for detainee transport to Guantanamo Bay, Cuba (Guantanamo) 

for potential criminal prosecution arrived on 25 February 2002. The U.S. Secretary of 

Defense retained the authority to decide which detainees to transport to Guantanamo. 102 

Although, as a policy matter, OEF detainees received EPW-like treatment, units did not 

use the traditional LOW detention categories (prisoner ofwar, retained person, and 

civilian internee). Rather, they classified persons as "detainees" or "persons under 

control" (PUCs). From December 2001 until June 2002, most detainees were held at a 

classified location in Afghanistan, and at one point in January 2002, the population at this 

location reached nearly 400 detainees. 103 Persons captured on the battlefield were 

brought initially to the classified location to establish their identity and determine if they 

met the criteria for transfer to Guantanamo. During this phase, detained personnel were 

classified as "PUCS.,,104 Once a detainee's identity had been established, ifhe clearly did 

not meet the criteria for shipment to Guantanamo, he was normally released. 105 

The United States Government position is that the situation in both Afghanistan
 

and Iraq can be characterized as an international armed conflict. 106 In any case, DOD
 

policy now requires U.S. forces to comply with the LOW applicable to international
 

conflict during all armed conflicts, however such conflicts are characterized, and in all
 

other military operations. 107
 

102 See Transcript ofAfter Action Review Conference, Office of the Staff Judge Advocate, XVIII Airborne
 

Corps, at Fort Bragg, N.C. (30 Sept. to 1 Oct. 2003) [hereinafter XVIII Airborne Corps 2003 OIF AAR
 

Conference Transcript].
 

103 Lancaster & Cook Memorandum, supra note 98, para. 2. 

104 The term "PUC" did not develop until the XVIII Airborne Corps arrived in Afghanistan. Detainees 

were being held in the classified Short Term Holding Facility long before the term "PUC" started being 

used. DOD Directive 2310.01£ does not use the term "PUC", and defines a detainee as "[a]ny person 

captured, detained, held, or otherwise under the control of DoD personnel (military, civilian, or contractor 

employee)." However, "detainee" does not include "persons being held primarily for law enforcement 

purposes, except where the United States is the occupying power." U.S. DEP'T OF DEFENSE, DIR. 

231O.0lE, THE DEPARTMENT OF DEFENSE DETAINEE PROGRAM (5 Sept. 2006) [hereinafter DOD DIR. 

231O.01E]; JOINT CHIEFS OF STAFF, INSTR. 3290.01C, PROGRAM FOR DETAINEE OPERATIONS (20 June 

2008). See also OPLAW HANDBOOK 2008, supra note 3, at 181-83 (description of various terms used 

since 2001 to describe status). 

105 See id. A classified message clarified that persons other than the Secretary of Defense were authorized 

to release detainees at any point until the decision to transfer to Guantanamo had been made. See XVIII 

Airborne Corps 2003 OIF AAR Conference Transcript, supra note 102. See generally JENNIFER ELSEA, 

CONGRESSIONAL RESEARCH SERVICE, RL31367, TREATMENT OF "BATTLEFIELD DETAINEES" IN THE WAR 

ON TERRORISM (Jan. 23,2007), available at http://italy.usembassy.gov/pdf/other/RL31367.pdf(summary 

ofthe LOW in relation to detainees). 

106 OPLAW HANDBOOK 2008, supra note 3, at 180. Judge Advocates should be aware that multinational 

partners, including some of those participating in the OEF or OIF Coalitions or the NATO-led International 

Security Assistance Force (ISAF), may not share this view ofthe conflicts. 

107 U.S. DEP'T OF DEFENSE, DIR. 2311.01E, DOD LAW OF WAR PROGRAM (9 May 2006) [hereinafter DOD 

DIR. 2311.01E]; JOINT CHIEFS OF STAFF, INSTR. 581O.01C, IMPLEMENTATION OF THE DOD LAW OF WAR 

PROGRAM (31 Jan. 2007) [hereinafter JCS INSTR. 5810.01 q. 

31 
[See also INTERNATIONAL & OPERATIONAL LAW (Legal Basis/or Operations) 

and MULTINATIONAL OPERATIONS (Detention).] 

LE.2. Article 5 Tribunals 

When a detainee's status is in doubt, Article 5 ofthe GPW provides that the 

detainee shall receive EPW treatment until a "competent tribunal" (Article 5 tribunal) 

determines their status. 108 The GPW provides no guidance about the tribunal's 

composition, procedures, or standard of proof. 109 However, Army Regulation (AR) 190-8, 

Enemy Prisoners o/War, Retained Personnel, Civilian Internees, and Other Personnel 

provides implementing guidance. Under AR 190-8, the individual enjoys limited 

procedural rights before the tribunal, and a majority vote based on a preponderance of the 

evidence determines his or her status. 1

10 

Possible determinations are: "(a) EPW, (b) Recommended [Retained Personnel], 

entitled to EPW protections ... , (c) Innocent civilian who should be immediately 

returned to his home or released, [or] (d) Civilian Internee who for reasons of operational 

security, or probable cause incident to criminal investigation, should be detained."lll An 

Article 5 tribunal is only required "[s]hould any doubt arise as to whether persons, having 

committed a belligerent act and having fallen into the hands of the enemy belong to any 

ofthe categories enumerated in [GPW] Article 4 ....,,112 In other words, detained 

108 GPW art. 5, supra note 51. 

109 !d. GPWart. 5 states only that the tribunal must be "competent," allowing the detaining power wide 

latitude with respect to its operation. 

110 U.S. DEP'T OF ARMY, REG. 190-8, ENEMY PRISONERS OF WAR, RETAINED PERSONNEL, CIVILIAN 

INTERNEES AND OTHER DETAINEES (1 Oct. 1997) [hereinafter AR 190-8] ("This is a multi-service 

regulation. It applies to the Army, Navy, Air Force and Marine Corps and to their Reserve components 

when lawfully ordered to active duty under the provisions of Title 10 United States Code."). Id. AR 190-8 

is numbered by other U.S. military services as OPNAVINST 3461.6 (Navy), AFJI 31-304 (Air Force), and 

MeO 3461.1 (Marine Corps), but it is the same regulation. The Article 5 tribunal shall be composed of 

three officers, one of whom must be a field grade officer. Id. para. 1-6c. The senior officer serves as the 

tribunal president, and another non-voting officer, preferably a JA, serves as the recorder. Id. See also 

U.S. CENTRAL COMMAND, REG. 27-13, LEGAL SERVICES, CAPTURED PERSONS: DETERMINATION OF 

ELIGIBILITY FOR ENEMY PRISONER OF WAR STATUS (7 Feb. 1995) [hereinafter CENTCOM REG. 27-13]. 

This regulation provides guidance for determining when Article 5 tribunals are required, as well as how to 

conduct them. The appendices include a sample tribunal appointment letter, tribunal procedures (requiring 

at least one JA to be a tribunal member), a sample tribunal report, and a script for conducting a hearing. 

III AR 190-8, supra note 110. retained personnel (RP) are medical and religious (chaplain) personnel 

detained with a view to providing support to EPWs. While RP are not considered EPWs, they enjoy the 

same rights and protections as EPWs and are subject to EPW camp discipline. See GPW art. 33, supra note 

51. Civilian internees (CIs) are civilians interned by an occupying power for imperative reasons of 

security. CIs have the right to appeal their initial status determination and have their status reviewed every 

six months, ifpossible. See Geneva Convention Relative to the Protection of Civilian Persons in Time of 

War arts. 42-43, Aug. 12, 1949,6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC]. See also GC art. 78 ("If 

the Occupying Power considers it necessary,for imperative reasons ofsecurity, to take safety measures 

concerning protected persons, it may, at the most, subject them to assigned residence or to internment.") 

(emphasis added). In addition, CIs may not be interned with EPWs or other detained personnel. Id. art. 84. 

112 See GPW, supra note 51, art. 5. 

32 
persons clearly entitled to EPW status should receive that status without a tribunal. 113 

Likewise, should there be no doubt on the part ofthe detaining power that a detained 

person is an unprivileged belligerent - spy, saboteur, brigand, mercenary - an Article 5 

tribunal is unnecessary and the person need not be granted EPW status if further detained. 

In past operations, lAs used an informal screening process, based on LOW
 

principles and the limited guidance inAR 190-8 and Us. CENTCOMRegulation 27-13,
 

to make the initial determination whether to release a detainee or conduct an Article 5
 

tribunal. Many detainees arrived at the detention facility with limited or incomplete
 

information concerning the circumstances of their capture. Information from previous
 

detainee interrogations was sometimes available, but, in most cases, there was no
 

previous interrogation. Because detainees are often untruthful, lAs had to be creative in
 

searching for inconsistencies in their stories. One lA noted that these screenings would
 

have presented a good opportunity to collaborate with intelligence personnel in seeking
 

information on war crimes and the location of missing u.s. personnel, but such
 

collaboration did not occur.

114
 

Although neither the GPW nor AR 190-8 require that lAs sit on an Article 5
 

tribunal, in most recent cases, three lAs sat on the tribunal, and a fourth served as the
 

113 Cf Memorandum, Major Alvin "Perry" Wadsworth, 12th Legal Support Organization, subject: OIF
 

After Action Report - Detainee Outline: Articles 5 (GPW) and 78 (GC) para. B (2003):
 

The Geneva Convention, AR 190-8, paragraph 1-6, and CENTCOM REG 27-13 state 

that Article 5 Tribunals should be performed ifthere is doubt as to whether a person (read 

"detainee") who has committed a belligerent act is entitled to EPW status lAW Article 4, 

GPW. The language appears to make a "belligerent act" a prerequisite to performing an 

Article 5 Tribunal. This created some confusion in OIF. Coalition forces captured 

10,000 people, a vast majority ofwhom were dressed as civilians.... Without 

conducting a tribunal (or a screening interview) one could not determine whether they 

committed a belligerent act, much less what their appropriate status was, i.e., EPW, 

civilian internee, innocent civilian, or retained person. . .. There is no requirement for a 

service member to be wearing a uniform to be entitled to EPW status. A soldier captured 

while sleeping in pajamas at a friend's home is still entitled to EPW status, even ifhe did 

not commit a belligerent act. On the other hand, a person dressed as a civilian cannot be 

given EPW status as a default measure simply because we do not know whether he 

committed a belligerent act. He can be treated as an EPW until his status is determined, 

but we do not want to give him EPW status and the immunity that comes with it without 

a proper examination of the circumstances of his case. A person's status dictates what his 

rights are, how he should be treated, and whether he can be tried. Consequently, 

determining status is a key component of both the detention process and determinations 

about disposition - e.g., release/repatriation, hold for security reasons or criminal 

investigation, or try. Recommendation: U.S. forces should implement the Tribunal 

process when a detainee's status is in doubt regardless ofwhether there is evidence of a 

belligerent act. Both CFLCC and V Corps did this. . .. We decided that if status was in 

doubt and there was doubt as to whether a belligerent act had been committed then a 

Tribunal process was necessary. When status was in doubt, we either conducted an 

"Article 5 Screening" interview or an Article 5 Tribunal, the latter being more formal. Id. 

114 See After Action Review Conference, 12th Legal Support Organization and Center for Law & Military 

Operations, Charlottesville, Va. (12-13 Feb. 2004) [hereinafter 12th LSO 2004 OIF AAR Conference]. 

33 
recorder. 115 Tribunals sometimes took four or five hours, due in part to their anticipated 

use as a basis for later war crimes prosecution determinations. After each tribunal, 

formal findings of fact were prepared, and the detainee received notice of the status 

determination. As during the initial screenings, detainees often fabricated stories, and 

force protection considerations always weighed heavily in status determinations. I 16 

Before conducting Article 5 tribunals, lAs must develop a standard operating
 

procedure as well as training for any personnel, including interpreters, who will be
 

involved.
 

I.E.3. Article 78 Reviews 

In Iraq, lAs received directives to perform reviews for civilian internees under 

Article 78 ofthe Gc. II ? A good example of an Article 78 review standard is included in 

this excerpt from Coalition Provisional Authority (CPA) Memorandum No.3. 

(a) In accordance with Article 78 of the Fourth Geneva Convention, Coalition 

forces shall, with the least possible delay, afford persons held as security 

internees the right of appeal against the decision to intern them. 

(b) The decision to intern a person shall be reviewed not later than six months 

from the date of induction into an internment facility by a competent body 

established for the purpose of Coalition Forces. 

(c) The operation, condition and standards of any internment facility established 

by Coalition Forces shall be in accordance with Section IV ofthe Fourth Geneva 

Convention. 

(d) Access to internees shall be granted to official delegates of the ICRC 

[International Committee of the Red Cross]. Access will only be denied 

delegates for reasons of imperative military necessity as an exceptional and 

temporary measure. ICRC delegates shall be permitted to inspect health, 

sanitation and living conditions and to interview all internees in private. They 

shall also be permitted to record information regarding an internee and to pass 

messages to and from the family of an internee subject to reasonable censorship 

by the facility authorities. 

(e) If a person is subsequently determined to be a criminal detainee following 

tribunal proceedings concerning his or her status, or following the commission of 

a crime while in internment, the period that person has spent in internment will 

not count with respect to the period set out in Section 6( 1)(d) herein. 

115 Id. Judge Advocates worked with JAs assigned to the 800th MP Brigade and other commands. See id. 

See also CENTCOM REG. 27-13, supra note 110, app. C, para. 3.c. This requires a panel of three 

commissioned officers, at least one of whom must be a JA, for tribunals conducted in the CENTCOM area 

of responsibility. 

116 See 12th LSO 2004 OIF AAR Conference, supra note 114. 

117 GC, supra note Ill. 

34 
(f) Where any security internee held by Coalition Forces is subsequently 

transferred to an Iraqi Court, a failure to comply with these procedures shall not 

constitute grounds for any legal remedy, but may be considered in mitigation of 118 sentence. 

Within seventy-two hours of their arrival at the main detention facility in Iraq, 

the Detention Review Authority (DRA), a JA acting as a magistrate, reviewed the case 

files and separated the detainees into security internees or criminal detainees. A decision 

to classify a detainee as a security internee could only occur upon a finding that there was 

a "reasonable basis" to support the determination. The JA recommended a detainee 

classified as a security internee for internment or referred the detainee to an Article 78 

panel. Major criminals received referrals to the Iraqi Criminal Court or Criminal Release 

Board. 119 The DRA determined a release date for all minor criminals. 120 If a detainee's 

status as an EPW was in doubt, the detainee received referral to an Article 5 Tribunal to 

determine whether he qualified for EPW or security internee status. 

For security internees, the next step was to notify them oftheir status in writing 

and provide them an opportunity to appeal their status and their internment. These rights 

were part ofGC Article 78. 121 It is unclear whether those detained under GC Article 5 

for "suspicion of activity hostile to the security of the Occupying power" are entitled to 

the appeal rights granted under GC Article 78. The latter article provides appellate rights 

if the Occupying Power considers necessary, for imperative reasons of security, to take 

safety measures concerning protected persons, by subjecting them to assigned residence 

or to internment. Nevertheless, the Combined Joint Task Force 7 (CJTF-7) procedure 

gave all security internees appellate rights. 

118 Coalition Provisional Authority, Memorandum No.3, subject: Criminal Procedures (18 June 2003). 

119 STANDARD OPERATING PROCEDURES FOR JOINT DETENTION OPERATIONS IN SUPPORT OF OPERATION 

IRAQI FREEDOM, COMBINED JOINT TASKFORCE 7 para. 5.L (31 Jan. 2004) ("Serious crimes" were any 

crime punishable by more than five years confinement under the Iraqi Criminal Code of 1969. That 

included murder, rape, armed robbery, kidnapping, abduction, state infrastructure sabotage, car-jacking, 

assault causing bodily harm, arson, destruction of property valued at equal to or greater than $500, or 

inchoate offenses associated with the above.) Id 

120 For example, the DRA would release minor criminals within twenty-four hours for violation of curfews 

and traffic violations; for discharging a weapon in city limits or being drunk and disorderly, the DRA 

would release the individual after ten days. See Internment Boards, Operation IRAQ FREEDOM, 

PowerPoint Presentation (undated). 

121 Article 78 provides: 

If the Occupying Power considers it necessary, for imperative reasons of security, to take 

safety measures concerning protected persons, it may, at the most, subject them to 

assigned residence or to internment. Decisions regarding such assigned residence or 

internment shall be made according to a regular procedure to be prescribed by the 

Occupying Power in accordance with the provisions of the present Convention. This 

procedure shall include the right of appeal for the parties concerned. Appeals shall be 

decided with the least possible delay. In the event of the decision being upheld, it shall 

be subject to periodic review, ifpossible every six months, by a competent body set up by 

the said Power. 

GC, supra note Ill, art. 78. 

35 
One recommendation is that representatives from the Criminal Investigation 

Division (CID), military intelligence, military police (MP), and JA communities all sit on 

any appellate review panel to hear security internee appeals. The panel recommends a 

hearing by the Article 78 review and appeal board or internment until the six-month 

review. The Article 78 review and appeal board can then review the cases of all security 

internees recommended for release by either the initial appellate review panel or the sixmonth review panel. The task force senior intelligence officer should sit as board 

president. Board members should include the MP brigade commander and SJA or their 

delegates. The officer in charge of the SJAjoint detention operations section can act as 

the board's recorder. 

LEA. Plans, Procedures, & Facilities 

If there is one common thread taken from military operations over the past 

fourteen years with regard to detention operations, it is that there must be a system in 

place for the capture, evidence collection, processing, questioning, tracking, internment, 

prosecution, and subsequent release of captured individuals prior to deployment. 122 

While the status of detainees is of great legal significance, it will be determined at a level 

well above that of JAs at the tactical or even operational levels. Of much greater 

immediate importance than detainee status is the development, training and 

implementation of a comprehensive system to accomplish the above. Detention 

operations will not only occupy an inordinate amount of a legal office's time, but also 

represent a potential public relations landmine as was demonstrated at Abu Ghraib. 

Judge Advocates must begin early in the planning stages to assist operations and 

planning staff in the development of a detention SOP. 123 This should include detailed 

arrangements for locating a building or structure of appropriate size and sturdiness for 

processing, safeguarding, feeding, and clothing the detainees. Plans must also consider 

the provision of health care, the questioning of detainees for intelligence purposes, and 

122 See JOINT CHIEFS OF STAFF, JOINT PUB. 3-63, DETAINEE OPERATIONS (30 May 2008); U.S. DEP'T OF 

ARMY, FIELD MANUAL 3-19.40, INTERNMENT AND RESETTLEMENT OPERATIONS (4 Sept. 2007). 

123 A Marine JA reported that he had drafted and staffed his battalion's detention SOP prior to deployment, 

as well as training key personnel. In addition, once deployed, no packet left the BCP without his scrutiny. 

Task Force 2d Battalion, 7th Marines, Battalion Judge Advocate, After Action Report, Operation IRAQI 

FREEDOM, 27 January 2007 - 25 August 2007 7(5 Mar. 2008) [hereinafter TF 2/7 JA 2008 OIF AAR]. 

Along similar lines, a BCT JA concluded that developing and refining the SOP while at the Combat 

Training Center helped the brigade get offto a good start. See Interview by Captain Michael Baileys, 

Center for Law & Military Operations, with Brigade Combat Team Legal Team (After Action Report, 

Operation IRAQI FREEDOM, July 2006 - November 2007), at Fort Bragg, N.C. 3 (Jan. 2008) [hereinafter 

BCT 2008 OIF AAR Interview]. The 82d Airborne Division (82d ABN DIV) OSJA found it was helpful to 

develop standardized SOPS which subordinate units could modify in response to purely local concerns, as 

this ensured compliance with current policy, as well as continuity during troop rotations (they also provided 

units with CDs containing all relevant regulations). 82d Airborne Division, Office of the Staff Judge 

Advocate, After Action Report, Operation ENDURING FREEDOM, February 2007 - April 2008 (2008) 

[hereinafter 82d ABN DIV 2008 OEF AAR]. However, those responsible for drafting SOPs should ensure 

that they remain user-friendly. The 4ID OSJA noted that brigade JAs were not using the detention 

operations SOP because it was too large and difficult to navigate, and therefore recommended use of an 

executive summary and a detailed index. 4ID 2007 OIF AAR, supra note 70, at 5. 

36 
the need to respond to access requests by the ICRC, attorneys, human rights groups, and 

journalists. 124 Given the ultimate responsibility MPs will bear for administering the 

facility, they must be involved at every stage of the planning process. Peculiarities ofthe 

locale must receive careful attention. Will there be buildings suitable to house the 

detainees? If not, when will the flow of materiel into the country permit erection of a 

shelter? What is the extent ofthe disparity between local living conditions and U.S. 

detention standards?125 

The plan should also anticipate transfer ofresponsibility for the facility to host
 

nation (HN) authorities. Bolstering the HN government's legitimacy argues in favor of
 

such a transfer, as does the need to relieve scarce MP assets of a burdensome mission.
 

However, such a transfer usually occurs in phases.
 

Other planning considerations include: 

•	 medical care for detainees (including mental and physical conditions, such as 

pregnancy); 

• force-feeding hunger-striking detainees; 

•	 juvenile detainees; 

•	 detainee escape, recapture, and misconduct; 

•	 access to detainees by family, HN medical personnel, and HN court 

personnel; 

•	 media interviews with detainees; 

•	 religious accommodation; 

•	 detainee labor and payment; and 

•	 use of force within the detention facility. 126 

124 See, e.g., Colonel Ted B. Borek, Legal Services in War, 120 MIL. L. REv. 19,47 (1988) (describing JA 

involvement in detention issues in Grenada); Center for Law & Military Operations, Just Cause AfterAction Seminar Executive Summary para. III.C (26-27 Feb. 1990) ("Over 4100 persons were detained 

during the first few days of Just Cause."). 

125 The Multi-National Force (Haiti) SJA discussed the implications ofthis question as follows: 

The material on detention facilities in [the draft Haiti Lessons Learned report] is crucial, 

especially when we are not an occupying force. Much work needs to be done in this area. 

However, a problem we really need to look at is the difference between what we as 

Americans consider acceptable physical standards and what the local populace is 

experiencing. More specifically, when detainees were afflicted with any unusual 

diseases? With regard to this last question, those who planned the detention facility and 

those who executed the plan grappled with how to provide medical care to HIV-infected 

Haitians. 

See U.S. DEP'T OF DEFENSE, DIR. 231 0.08E, MEDICAL PROGRAM SUPPORT FOR DETENTION OPERATIONS (6 

June 2006). 

126 See generally CENTER FOR LAW & MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS IN 

Kosovo, 1999-2001: LESSONS LEARNED FOR JUDGE ADVOCATES 99-116 (15 December 2001) [hereinafter 

Kosovo LL] (KFOR detention issues, including establishing and running the KFOR detention facility). 

37 
Handling detainee property from the point of capture to the ultimate confinement 

facility can also be a challenge. It has proven difficult to return property to detainees 

because their belongings were sometimes lost or misdirected during transport or because 

detainees had tampered with their documentation. When detention operations began at 

Camp Bucca, Iraq, detainee property and currency were intermingled in a large metal 

cargo container. Although this situation was short-lived, some detainees inevitably left 

without being able to reclaim their property. In the future, U.S. forces must have a 

detailed plan to account for and properly return property seized from detainees. 

Engaging in long-term detention involving significant numbers has inevitably 

raised a requirement to investigate various incidents, including allegations of theft and 

abuse, as well as a number of deaths. The 101 st Airborne Division SJA found it helpful 

to institute tracking of detainee abuse allegations, and noted that coordination with BCT 

legal teams, provost marshal office (PMO) and G-2X (HUMINT) personnel ensured that 

no more than twenty-four hours elapsed between receipt of an allegation and its 

transmission to higher headquarters. 127 

In addition to assisting in the investigation of specific incidents, JAs should 

regularly review conditions at each detention facility to ensure the proper treatment of 

detainees. Experience has shown that it is not sufficient to merely show up and "inspect" 

such a facility. Questioning detainees about their treatment and using that information to 

identify established patterns of abuse is one ofthe best methods to detect a problem in a 

facility.128 Judge Advocates should also expect visits from representatives ofthe ICRC, 

and may accompany them on such visits. In some theaters, agencies such as the 

Organization for Security and Cooperation in Europe (OSCE), United Nations Children's 

Emergency Fund, Amnesty International, and other human rights organizations may also 

conduct visits. 129 Judge Advocates should also be aware that media relations might pose 

127 IOlst ABN DIV 2007 OIF AAR, supra note 73, at 6. The deployment OPORD should contain guidance 

on reporting requirements for deaths of detainees in U.S. custody, clearly defining "detainee," and directing 

when and to whom a detainee's death should be reported. Id. 

128 For example, in Afghanistan, the 82d ABN DIV conducted periodic (every 120 days) assessments of 

detention operations at all temporary screening facilities in order to ensure compliance with current 

policies. Each assessment included an inspection ofthe facilities and interviews with personnel responsible 

for detention operations. 82d ABN DIV 2008 OEF AAR, supra note 123. 

129 Kosovo LL, supra note 126, at 105-06. In Iraq, one OSJA reported that the Division Inspector General 

(IG) inspected brigade and division holding areas. 

The inspection team consisted ofthe Division IG, the Deputy Div IG, two PMO 

representatives ..., a representative from the Div Safety Office, a Preventive Medicine 

Officer from the Division Surgeon's Office, the ChiefInterrogator, and the Division 

Detainee Operations [JA]. Each facility was inspected unannounced once a month at 

different times of the day or night. This command emphasis is one reason that [MultiNational Division - Baghdad] had only one abuse allegation (unsubstantiated) at a 

detainee facility during the entire year. These inspections also gave the Division 

Detainee Operations JA the opportunity to identify positive and negative trends and 

practices in MND-B, discuss detainee operations issues with the Brigades, and assist the 

facility leaders with resources and advice. The purpose for the inspections was to assess 

legal support operations, identify problems and help the facility meet the standards. By 

38 
challenges in relation to detention. In the past, journalists sometimes confused matters by 

using incorrect terminology - combatant, non-combatant, unlawful combatant, 

belligerent, non-belligerent, terrorist, insurgent - to refer to detainees. Although most 

journalists agreed not to take or disseminate photos of detainees, some violated this U.S. 

policy and had to return horne as a result. 130 

Some legal teams have found it helpful to assign specific individuals to support 

detention operations. For example, the 10lst Airborne Division (Air Assault) OSJA 

recommended dedicating one attorney to detention operations. Ideally, such an 

individual is also well-versed in intelligence issues and prepared to provide training on 

issues such as uniform policy, as well as interrogation locations and techniques. l3l In 

addition to any DETOPS attorney, however, one OSJA found it helpful to rotate its 

operational law (OPLAW) attorneys out to the BeTs for approximately one-month 

periodic visits, in order to ensure that they achieved a thorough understanding of 

detention operations. 132 As well as subject matter expertise, legal personnel advising on 

detention operations should develop good working relationships with others involved in 

this area, including intelligence and MP representatives, and those responsible for 

running detention facilities. 133 The 4ID OSJA also stressed the need to develop and 

maintain a positive relationship with the PMO. Both sections need to coordinate and be 

observing the practices at the Brigade level that were most effective, inspectors were able 

to improve the Division facility operations and spread the best practices to the other 

facilities. Deficiencies appearing in multiple facilities could be quickly resolved across 

the Division, once identified at the monthly inspections. 

4ID 2007 OIF AAR, supra note 70, at 6. 

130 See briefing by Colonel Richard E. Gordon, former Staff Judge Advocate, Coalition Forces Land 

Component Command, to the Army Judge Advocate General's Corps Graduate Course in Charlottesville, 

Va. (20 Feb. 2004). 

131 The Wist Division OSJA AAR indicated that the detention operations (DETOPS) attorney was 

responsible for: 

•	 serving as the legal advisor on detention operations issues for both the Division and BCT 

legal teams; 

•	 tracking and providing oversight via reporting of detainee abuse allegations to MNC-I; 

•	 providing oversight ofthe training oftransition teams in brigades and battalions, as well as 

Iraqi Army (lA) personnel; 

•	 providing and tracking interrogation training for all brigade and division-level tactical human 

intelligence teams (THTs); 

•	 tracking and/or conducting detention reviews at the division level for all individuals detained; 

•	 processing extension requests and release objections; and 

•	 facilitating the provision of witnesses for testimony at the Central Criminal Court ofIraq. 

The AAR noted that several of these tasks - notably detention packet review, detainee abuse reporting, and 

CCC-I witness facilitation - were extremely time-consuming and resource-intensive. It recommended 

sending the DETOPS attorney to the TJAGLCS Intelligence Law short course. WIst ABN DIV 2007 OIF 

AAR, supra note 73, at 13-14. 

132 3d Infantry Division (Mechanized), Office of the Staff Judge Advocate, After Action Review, Operation 

IRAQI FREEDOM, March 2007 - June 200831 (2008) [hereinafter 3ID 2008 OIF AAR]. 

133 IOIst ABN DIV 2007 OIF AAR, supra note 73, at 11. 

39 
consistent in the advice given with respect to detention issues, and both are responsible 

for tracking detainee movement. 134 

In Afghanistan, JAs advising on detention matters must confirm before doing so 

whether the U.S. unit's assignment is to the NATO-led International Security Assistance 

Force (ISAF) or supporting OEF. As the 82d Airborne Division (82d ABN DIV) OSJA 

observed, 

Units OPCON to ISAF and units operating pursuant to OEF have distinct 

authorities .... [which] mandate significantly different protocols for the 

handling, reporting, and processing of detainees. In addition, different OEF 

forces in the CJTF-82 [Combined Joint Task Force 82] AOR [area of 

responsibility] operate with different levels of direct participation with Afghan 

forces and have much different levels of both experience conducting detainee 

operations and organic resources that can be allocated to detainee operations. 

Finally, those units that do possess both experience and resources to conduct 

detainee operations can become confused due to evolving U.S. government 

policy pertaining to the status and required treatment of unlawful enemy 

combatants. 135 

In response to this issue, 82d ABN DIV SJA personnel noted that separating the 

reporting and support channels for ISAF and OEF forces had proven to be effective. 

ISAF-assigned forces reported directly to the Regional Command East (RC(E)) PMO, 

which was responsible for fielding questions and promulgating doctrine related to the 

conduct of ISAF detention operations. On the other hand, OEF forces reported to the 

CJTF-82 Chief of Detainee Operations. 136 

Coordination & Training 

Planning, training for, and conducting detention operations require the 

involvement of several staff organizations. One OSJA suggested that a detention 

operations working group be established prior to deployment to discuss roles and 

responsibilities. This also serves to identify key resources and ensure that all are using 

the same versions of them. 137 Commanders should also be briefed (starting at the 

134 4ID 2007 OIF AAR, supra note 70, at 7-8. For example, units requested advice about the circumstances 

in which detainee photos could be published. The lOlst Airborne Division suggested that drafting and 

formulating such a policy occur before deployment in order to avoid the possibility of inconsistent advice 

coming from different sections. lOlst ABN DIV 2007 OIF AAR, supra note 73, at 12. 

135 82d ABN DIV 2008 OEF AAR, supra note 123. ISAF detention operations are governed by ISAF rules 

of engagement (ROE) and ISAF STANDARD OPERATING PROCEDURE (SOP) 362, DETENTION OF NON-ISAF 

PERSONNEL. 

136 82d ABN DIV 2008 OEF AAR, supra note 123. 

137 1st Cavalry Division, Office of the Staff Judge Advocate, After-Action Review, Operation IRAQI 

FREEDOM, November 2006 - December 20074 (20 Nov. 2007) [hereinafter lCD 2007 OIF AAR]. 

Detention operations are governed by numeroUs policy documents (memos, FRAGOs, etc.). Months into 

the deployment, sections were still not tracking all ofthe key documents, and staff synchronization could 

have been smoother. The 1st Cavalry Division (lCD) OSJA therefore recommended establishing a 

40 
Combat Training Centers) about key processes which will have an impact upon their 

unit's operations. This includes the various detention reviews, as well as the possibility 

that Soldiers will be required to testify before the Central Criminal Court ofIraq (CCCI). 

Once deployed, another unit found it helpful to hold training conferences. These 

involved intelligence and provost marshal representatives as well as lAs, and helped to 

achieve a common understanding of issues such as interrogation limits, detainee . . l' d· d d d 138 processmg tIme me, an revIew processes an stan ar s. 

Training should also be coordinated, begin prior to deployment, and continue 

throughout. A BCT lA observed that, while his legal team had participated in predeployment classroom training, they had not been sufficiently involved in lane 

instruction, so that battalion personnel required a couple of months before fully 

understanding the importance of collecting and documenting evidence. He recommended 

in-depth pre-deployment training, to include CID, law enforcement, PMO, and legal 

representatives, and requiring Soldiers to carry out tasks such as writing statements, 

documenting and taking photos of evidence, and assessing ownership (especially 

important for reconnaissance elements and others who will be involved in tracking down 

specific individuals).139 

Evidence Collection, Packet Assembly & Review 

In fact, training Soldiers about evidence collection became a focus for many lAs 

operating more recently in both Iraq and Afghanistan. 140 In some cases, legal teams 

worked with intelligence personnel to train Soldiers, ensuring that sworn statements 

contained the "5Ws", there were relevant diagrams, and there were photos of all 

contraband, weapons, etc. 141 Units also instituted routine review of evidence packets by 

lAs at both the brigade and division level. This increased the likelihood that detainees 

went forward to the theater internment facility (TIF) only when there was sufficient 

detention operations working group involving key sections prior to deployment, to discuss roles and 

responsibilities, as well as ensure that everyone was using the same key resources (e.g., could be saved in a 

collective folder). Id. 

138 101st ABN DIV 2007 OIF AAR, supra note 73, at 13. 

139 172d Stryker Brigade Combat Team, Brigade Judge Advocate, After Action Report, Operation IRAQI 

FREEDOM, August 2005 - December 2006 1 (undated) [hereinafter 172d SBCT OIF AAR]. A Marine JA 

likewise recommended that battalion JAs work with S-2, S-3, and human exploitation team (RET) sections 

to formulate and train on the detainee handling SOP prior to deployment. Task Force 2d Battalion, 6th 

Marines, Battalion Judge Advocate, After Action Report, Operation IRAQI FREEDOM, November 2006 ­

November 2007 para. 2(c)(4) (7 Dec. 2007) [hereinafter TF 2/6 JA 2007 OIF AAR]. 

140 The 101st Airborne Division OSJA noted that pre-deployment detention operations training had focused 

on tactics, techniques, and procedures (TTPs) and LOW responsibilities rather than on specific evidence 

collection requirements. A lack of information from the Iraq theater ofoperations, combined with a lack of 

hands-on training on collecting evidence, preparing sworn statements, and taking photographs, allIed to 

significant shortfalls in the sufficiency of detainee packets needed for the successful prosecution of 

detainees at CCCL IOlst ABN DIV 2007 OIF AAR, supra note 73, at 83. 

141 Task Force 1st Battalion, 7th Marines, Battalion Judge Advocate, After Action Report, Operation 

IRAQI FREEDOM, February 2006 - September 20065 (undated). 

41 
justification. 142 Review of packets required knowledge of evidence collection practices, 

evidentiary standards, and enemy tactics, techniques, and procedures (TTPs). Legal 

personnel noted the review process could impose a significant burden on JAs, and 

suggested the involvement of paralegals. 143 One BCT JA recommended that each 

battalion have a designated packet NCO - or, where the battalions lacked holding areas, a 

brigade NCOIC - responsible for helping soldiers fill out statements and review packets 

for deficiencies. Alternatively, all detaining units could be required to participate in an 

mte . 11' db' f 144 Igence e ne upon return. 

One OSJA listed recurring evidentiary deficiencies that resulted in the release of 

detainees at the brigade, division, or theater levels: 

• statements with insufficient detail; 

• x-spray results (to detect the presence of explosives) as the sole evidence; 

• detaining groups; 

• enemy propaganda as the sole evidence; 

• small time crooks (e.g., possession of extra weapon, curfew violation); 

• identical statements (two people swearing to the same information); 

• suspicious activity as sole basis (e.g., lying to Coalition forces, fleeing scene); 

• guilt by association (e.g., phone activity with known insurgents as sole basis); 

• lack of photos or diagrams; and 

• failure to corroborate times with events. 145 

In addition to improving evidence collection, units sought to improve the process 

for assembling and reviewing the resulting evidence packets. In one case, the PMO 

established a digital portal that allowed battalions to post products to a central server that 

everyone could access.

146 In another, multiple sections reviewed the packets and provided 

independent recommendations to a single decision-maker. The 41D OSJA supported this 

approach, arguing that independent staffing of packets for recommendations to the 

commander maximized the strengths of each section and prevented "group think." The 

Division implemented a system whereby the SJA section wrote a separate summary 

142 101st ABN DIV 2007 OIF AAR, supra note 73, at 8. 

143 !d. 

144 172d SBCT OIF AAR, supra note 139, at 2. 

145 4ID 2007 OIF AAR, supra note 70, at 11-12. See OPLAW HANDBOOK 2008, supra note 3, at 189-92 

(basic requirements for compiling an evidence packet for a detainee in Iraq). The Center for Army Lessons 

Learned has issued two handbooks to assist with detention and evidence collection. See CENTER FOR 

ARMY LESSONS LEARNED, HANDBOOK 06-17, DETAINEE OPERATIONS AT THE POINT OF CAPTURE (May 

2006); CENTER FOR ARMY LESSONS LEARNED, HANDBOOK 07-26, TACTICAL SITE EXPLOlTATION AND 

CACHE SEARCH OPERATIONS (May 2007). 

146 172d SBCT OIF AAR, supra note 139, at 2. One Marine unit took this a step further by making a CD of 

the evidence for the detention facility to transmit onward, including photographs, intelligence reporting, 

PowerPoint presentations, and other documentation (the material otherwise would have been scanned by 

the detention facility, reducing the quality ofthe photographs in particular). TF 2/6 JA 2007 OIF AAR, 

supra note 139. 

42 
agreeing or disagreeing with the recommendations of other sections, to allow the
 

commander to make an informed decision. The aSJA also observed that conducting
 

legal reviews ofpackets was nearly impossible without having all ofthe evidence
 

surrounding targeting and capture, so that the packet review process required
 

coordination with intelligence and HUMINT representatives. 147
 

A final insight with respect to evidence was recognition of the requirement to 

assess available information in advance of a detention operation. In particular, the 4ID 

aSJA recommended review of the targeting packet prior to capture of potentially 

controversial targets, where there might subsequently be significant pressure to release 

the individual. In such cases, the capturing brigade might need to gather additional 

information before capture in order to ensure long-term detention. 148 The aSJA also 

highlighted the difficulties involved with attempts to detain "associates:" 

In situations where Coalition Forces detain several individuals in a raid to find a 

specific target, the resulting "mass capture" can be especially tricky to sort out. 

Often, several people will be in a single home that is raided based on source 

reporting. When the target himself is in the home, it is easier to decide whether 

or not those captured with him are truly "associates" sufficient to warrant long 

term detention. However, when many are captured in a residence and the target 

is not present, it is quite challenging to determine individual guilt. Often, these 

suspected associates are released for lack of evidence. Releasing associates of 

targeted individuals, however, creates tension between the lA, the targeting 

group, and the capturing unit. Recommend a very thorough review of all 

documents relating to the target. This includes the targeting packet for the 

individual sought after, the phone exploitation, the organizational tree, sworn 

statements, SIGINT reporting, etc. If a detainee who is part of a mass capture is 

not mentioned at least twice in the reporting, he is not likely to be an "associate" 

sufficient to warrant long-term detention. If detainees caught in a targeted 

location possess contraband similar to what the target would be likely to possess, 

further detention is usually warranted. If none of the above are found, contacting 

the interrogation team to determine if the detainee has implicated himself or 

others is part of a due diligence legal review. Units face substantial risk when 

they carry out a raid on a High Value Target, so they are justifiably upset ifthe 

intelligence leading to the target location is inaccurate and detainees are 

released. Recommend explaining fully all reasons for release, especially where 

alleged associates of high value targets are involved. Sometimes "associate" gets 

147 4ID 2007 OIF AAR, supra note 70, at 8-9. A Marine JA made similar observations about the abilities 

of human exploitation teams (BETs), commenting that they were very valuable in screening the detainee 

for intelligence value and evaluating whether individual warranted further detention (''They have been 

essential in cutting through the company's assertions and detennining if this is our actual target and the 

value of future detainment"). Be suggested that, before making a disposition recommendation to the 

commander, the intelligence officer and JA should meet and review the BET recommendation and any 

intelligence reporting or evidence. Only once they had done so should they meet with the commander to 

recommend an appropriate disposition. TF 2/6 JA 2007 OIF AAR, supra note 139, para. 2(c)(l). 

148 As the division had to approve the transfer of brigade detainees to the TIF, a brigade contemplating 

capture based on a potentially objectionable packet was well-advised to discuss the issue with division staff 

before conducting the operation. 

43 
confused with "acquaintance". Coalition Forces acting under applicable 

[UNSCRs] do not have the authority to hold mere acquaintances of dangerous 

insurgents, and detention facilities at all levels do not have the capacity to hold 

them. 149 

Policy 

In addition to advising on the development and implementation of detention SOPs 

Judge Advocates may need to be aware of and educate both Soldiers and commanders 

about the policy aspects of detention. During OIF, tactical leaders and JAs initially 

focused on improving the quality of the evidence packets in order to support continued 

detention of individuals. However, the increased numbers of U.S. forces resulting from 

the "surge" resulted in an increase in the numbers of detainees held in U.S. facilities. It 

also became clear the Iraqi government was unlikely to continue to support indefinite 

renewals of the UN Security Council mandate authorizing U.S. forces to detain Iraqis for 

"imperative reasons of security." Consequently, senior commanders began to reconsider 

the policy aspects of detention. 

For example, the Multi-National Corps - Iraq (V Corps) OSJA observed that units 

had a tendency to resort to detention as an easy method of conflict resolution, and listed 

some ofthe policy reasons for avoiding adoption ofthis approach: 

Detention of Iraqis was a common solution to many problems that soldiers 

encountered involving local nationals. In some units, detention almost seemed to 

be the default method of resolution for any type of conflict. This attitude toward 

detention was reinforced in pre-deployment training. The solution to almost 

every lane training scenario was to detain the individual causing problems and 

remove them from the battlefield. While detention is a useful method of dealing 

with many issues, it carries with it heavy consequences. First, detention centers 

are manpower intensive. The number of personnel to guard, feed, manage and 

transport detainees is staggering. In many cases, the units assigned to perform 

these tasks are combat arms units that could be better utilized elsewhere in the 

area of operations. It is also important to note that work in detention centers can 

be painfully monotonous as well as physically exhausting. Soldiers routinely 

pull 8 hour plus guard shifts in extreme conditions while wearing full body 

armor. It is difficult to maintain high standards of morale in these types of units 

and effective leadership and supervision is a must in order to prevent instances of 

detainee abuse. Second, detainees often leave detention centers more dangerous 

149 4ID 2007 OIF AAR, supra note 70, at 11. The l72d SBCT JA made similar comments. He reported 

that the brigade realized over time that many detainees (initially more than half) were released within three 

months of capture. As a result, they became more selective about who they detained. For example, if the 

unit knew that their HUMINT source would not provide a sworn statement, they would refrain from 

detention until better evidence was available. The JA also recommended legal teams develop a good 

working relationship with intelligence personnel to understand who high value targets are and what type of 

evidence can be obtained to help develop strong packets ("A lot oftimes, the S2X, even though he's 

reviewed the packet, doesn't explain in plain English why someone has done something criminal and how 

we know that. It's very important in complicated intelligence cases that your S2X create an EXSUM 

connecting all the dots."). l72d SBCT OIF AAR, supra note 139, at 3-4. 

44 
than they came in. In many cases, Iraqis are detained for relatively low level 

offenses such as illegal weapons possession. While some of these detainees are 

legitimate insurgents others are simply caught in the wrong place at the wrong 

time. It is these minor offenders for which detention causes the greatest 

problems. Often times they enter the detention facility with relatively low levels 

of animosity toward U.S. Forces. Once inside, they are exposed to true members 

of the insurgency and are converted into dangerous insurgents themselves. They 

leave the detention facility several months later with increased knowledge of 

insurgent tactics and contacts to help them put their new found knowledge into 

use. Detention centers have made efforts to segregate more dangerous detainees 

from the general population, but space and personnel restrictions limit the 

effectiveness of this procedure. Detention also has an effect on the detainee's 

family. In large part, the families of a detainee believe that the detained family 

member is innocent and that they were taken arbitrarily. Generally speaking, 

little is done to explain to the family the circumstances of the detention or even 

the location of their detained family member. As a result, family members that 

may have been sympathetic to the coalition are now turned against us. 150 

Review of Detention 

Theater internment facilities (TIFs) in both Afghanistan and Iraq have instituted 

various periodic reviews of the basis for continuing detention. In Afghanistan, the 82d 

ABN DIV OSJA noted that reviews occurred semi-annually, on an individual basis. 

They considered the detainee's status (i.e., confirmed whether he was an unlawful enemy 

combatant) and the disposition of his case (i.e., release, retention, or transfer to Afghan 

authorities). Continued detention was appropriate for those who possessed the most 

potential for intelligence exploitation, those who had the best chance of successful 

prosecution by Afghan authorities, and those who, if released, would continue to 

represent a significant threat to U.S. or other forces. 

Decision-makers received input from at least three sections: the military 

intelligence company responsible for intelligence exploitation of detainees; the detainee 

assessment branch (DAB), responsible for preparing detainee cases for potential criminal 

prosecution in Afghan courts; and the CJ2 section responsible for maintaining an updated 

150 V Corps, Office ofthe StaffJudge Advocate, Operation IRAQI FREEDOM (OIF) After Action Report 

(AAR), 17 January 2006 - 14 December 2006 21-22 (2006) [hereinafter V Corps 2006 OIF AAR]. A 

Marine JA articulated an earlier view, perhaps more typically held by those in subordinate units: 

The intent ofTF 2/7 was simple: all detainees the command felt were deserving of 

interment at the TIF-level, were sent to the [Regimental Detention Facility] and expected 

to find themselves in Camps Bucca or Cropper. Finding themselves in front of an 

investigative judge or a prosecutor at the CCCI, while certainly desirable, was not the 

ultimate goal. On this point, my battalion commander's guidance was direct: once 

detainees are sent up, I (as the JA) was to do my damnedest to ensure that they did not 

return into the AO.... I was more than willing and content with sending a detainee up to 

the TIF and then utilizing the [Combined Review and Release Board] objection process 

to virtually guarantee they would not be released while TF 2/7 was still operating in 

Iraq." 

TF 2/7 JA 2008 OIF AAR, supra note 123, at 6. 

45 
intelligence picture of the CJTF-82 area of responsibility. The latter helped to determine 

the potential risk of release, given the detainee's horne province, activity, and 

associations. Additionally, CJTF-82 policy required legal review of the detainee's case 

file to validate the sufficiency ofthe review process. Experience had demonstrated that 

effective integration of the inputs required one section to be responsible for collating and 

presenting the various inputs, and DAB fulfilled this function (dramatically increasing the 

coherence ofthe case file presented to the decision-maker for review). 

In Iraq, several different entities conduct reviews. There is a magistrate's review 

by a JA assigned to Task Force 134 (TF134) during initial in-processing at the TIF, a 

Multi-National Forces Review Committee (MNFRC) review (when appealing the 

magistrate's recommendation), a Combined Review and Release Board (CRRB) review 

(within six months of entering the TIF), and a Joint Detainee Review Committee (JDRC) 

review (if detained for more than eighteen months). 151 

Iraq 

Coordination with TF134 

In Iraq, TF134 is responsible for the long-term custody of individuals detained for 

"imperative reasons of security." Summarized, the TF134 process is as follows. The 

detaining battalion transfers the detainee to the brigade holding area or collection point 

(the term "brigade internment facility" is obsolete) within twenty-four hours. The 

detainee transfer to the TIF must occur before or on the fourteenth day after capture. As 

described above, the first review of the detainee's file occurs while still at the brigade 

holding area (it normally occurs within seventy-two hours of capture, but must occur 

within seven days). The brigade assigns a capture tag number. Detainees in need of 

medical treatment fly to the TIF and receive care in military hospital facilities. In such 

cases, they may not be given capture tag numbers, nor be accompanied by any evidence. 

Upon arrival at the TIF, the detainee proceeds at the intermediate holding area and 

is in-processed within forty-eight hours. The detainee receives access to a cell phone to 

call family members, but such calls are monitored. "In-processing" includes: 

•	 being assigned a unique number (ISN), which does not correspond to the 

capture tag number; 

•	 having personal property (not including weapons) inventoried and held by the 

property custodian; 

•	 being BATS screened (i.e., DNA, fingerprint, and retina scan); 

•	 being screened by the Joint Interrogation and Debriefing Center (JIDC), to 

determine whether the detainee will undergo further questioning; and 

151 OPLAW HANDBOOK, supra note 3, at 193. 

46 
•	 undergoing a medical exam (usually done by a medic but with a doctor 

overseeing the process). 152 

Judge Advocates at the TF 134 magistrates' cell then have five days to review the 

evidence packet and determine whether the detainee posses an imperative threat to 

security, and whether such a threat is high, medium, or low. This review sometimes 

results in a recommendation for release. In such cases, a senior JA verifies the 

recommendation, and the TF134 CG (who may ask for additional information before 

making a decision) may then approve it. The MNFRC reviews in due course the files of 

those who continue in detention. Eventually, the CRRB conducts its review. Finally, the 

TF134 JA may recommend transfer of a detainee to the CCCI for criminal prosecution.1 53 

The standard for continued detention as a security internee is set out in MultiNational Force - Iraq (MNF-I) and MNC-I fragmentary orders (FRAGOs): reasonable 

grounds, based on the "totality of circumstances" (summarized in a JA memo, and 

retained on the detainee's file) to suggest that the individual poses an imperative threat to 

security - i.e., that the reasonable man would so conc1ude. 154 

Detainees receive food, medical attention, and access to religious material, and
 

ICRC visits every ninety days. Family visits are coordinated for those held in Camp
 

Cropper· 155 Released detainees are asked to sign a good behavior bond. 156
 

Judge Advocates involved in detention operations in Iraq have emphasized the 

requirement to coordinate and consult with TF134 JAs on an ongoing basis to ensure that 

capturing units are aware and have a good understanding ofTF134 and CCCI detention 

standards and practices. 15

? Such communication allows information about good or bad 

practices to flow quickly to subordinate units, improving the quality of evidence packets 

152 Interview by Lieutenant Colonel Alex Taylor, Center for Law & Military Operations, with Task Force 

134 Judge Advocate (After Action Report, Operation IRAQI FREEDOM, September 2006 - April 2007), 

at Charlottesville, Va. (5 Sept. 2007) [hereinafter TF134 JA 2007 OIF AAR Interview]. 

153Id. See also Major W. James Annexstad, The Detention and Prosecution ofInsurgents and Other NonTraditional Combatants - A Look at the Task Force 134 Process and the Future ofDetainee Prosecution, 

ARMY LAW., July 2007, at 72; Major Stephen E. Gabavics, Detention Operations in Operation Iraqi 

Freedom, CENTER FOR ARMY LESSONS LEARNED NEWS FROM THE FRONT, Sept. 2007. 

154 TF134 JA 2007 OIF AAR Interview, supra note 152; Regimental Combat Team 6, Regimental Judge 

Advocate, After Action Report, Operation IRAQI FREEDOM, January 2007 - July 20075-6 (undated) 

[hereinafter RCT-6 JA 2007 OIF AAR]. 

155 See CENTER FOR ARMY LESSONS LEARNED, 16TH MILITARY POLICE BRIGADE INTERNMENT/ 

RESETTLEMENT AND COUNTERINSURGENCY OPERAnONS WITHIN THE THEATER INTERNMENT FACILITY 

(TIF), OPERAnON IRAQI FREEDOM: INITIAL IMPRESSIONS REPORT (31 Dec. 2007); Lieutenant Colonel John 

F. Hussey, Counterinsurgency Operations Within the Wire: The 306th Military Police Experience at Abu 

Ghraib, MIL. POLICE BULLETIN (Spring 2007) (detainee "best practices"). 

156 TF134 JA 2007 OIF AAR Interview, supra note 152. 

157 As TF134 JA positions are staffed by the U.S. Navy, and CCCI JA positions are filled by the U.S. Air 

Force, turnover tends to occur frequently, increasing the need to maintain close contact. 101st ABN DIV 

2007 OIF AAR, supra note 73, at 9. 

47 
in a timely fashion. 158 In some cases, TF134 investigators have also traveled to BCTs in 

order to liaise with JAs and others involved in detention operations. Units engaged in 

pre-deployment preparations should obtain TF134 policy memoranda and SOPs in order 

to ensure that they are appropriately reflected in their unit SOPS. 159 For example, 

capturing units must be aware of limitations on the use of classified information by the 

various review boards as a basis for continued detention. 

Judge Advocates have also stressed the importance ofimplementing processes for 

the expeditious staffing of detainee release requests and detention extension requests. 

Once again, it has proven necessary to establish effective communication with TF134 in 

connection with proposed releases. In particular, capturing units received notification via 

a spreadsheet listing the names of detainees recommended for release. However, they 

found it difficult to correlate those listed on the spreadsheet with the detainees they had 

transferred to the TIF, given the recurrence of many Arab names as well as the use of a 

number assigned by the TIF rather than by the capturing unit. 160 

Coordination with the Central Criminal Court ofIraq (CCCI) 

Where the evidence collected in support of detention possibly provided a basis for 

prosecution under Iraqi criminal law, the detainee underwent transfer to the Central 

Criminal Court ofIraq (CCCI).161 In some cases, U.S. Soldiers involved in the 

individual's capture were subsequently required to testify before the CCCI. Some units 

found their paralegals became involved in coordinating such appearances. For example, 

the 1st Cavalry Division OSJA OPLAW paralegals were required to publish FRAGOs 

ordering the movement of personnel as, without such orders, brigades were often 

reluctant to release their Soldiers to testify. 162 In some cases, it was difficult to 

coordinate the movement of Soldiers to and from Baghdad,163 but this problem may have 

been alleviated to some extent by the establishment of regional courts and use of videoteleconferencing as a means of obtaining testimony. 

A Marine JA developed a procedure to prepare witnesses from his units. He 

noted that, while they were required to arrive at the CCCI forty-eight hours before 

testifying, they seldom received more than a briefpreparation. He remedied this by 

providing each witness with a six-part folder containing the following items: 

158 4ID 2007 OIF AAR, supra note 70, at 6. 

159 101st ABN DIV 2007 OIF AAR, supra note 73, at 8-9. 

160 Id. at 7-8; 172d SBCT OIF AAR, supra note 139, at 6. 

161 See Michael J. Frank, The Prosecution ofTerrorists in the Central Criminal Court ofIraq, 18 FLA. J. 

INT'L L. 1 (2006). 

162 lCD 2007 OIF AAR, supra note 137, at app. 9, para. 4. 

163 Task Force 3d Battalion, 6th Marines, Battalion Judge Advocate, After Action Report, Operation IRAQI 

FREEDOM, January 2007 - August 2007 5-6 (9 Oct. 2007). 

48 
•	 the MNF-I FRAGO identifying the Marine as a witness, along with the 

submitted air support request; 

•	 the witness's sworn statement with evidentiary photographs attached; 

•	 the detainee's medical screening form completed at the brigade collection 

point (to refute, if necessary, any detainee abuse allegation); 

•	 a map of the U.S. Embassy grounds complete with landing zone location and 

CCCI office spaces; 

•	 a five-page summary document explaining the process from the time the 

witness arrived at the landing zone until they returned to Camp Fallujah; and 

•	 a Joint Prosecution Exploitation Cell (JPEC)-produced CCCI PowerPoint 

presentation further illustrating the court's workings. 

Prior to departure, the JA reviewed the sworn statement with the witness and
 

answered any questions. He also conducted a post-mortem discussion upon retum. 164
 

As with TF134, JAs stressed the requirement to remain in close contact with 

CCCI JAs to maintain awareness of evidentiary requirements and judicial preferences. 

Where possible, division JAs should pass CCCI EXSUMs and trial summaries to brigade 

JAs, who can then explain problems with evidence collection and recommend changes to 

commanders (e.g., at the brigade commander's monthly meeting, etc.).165 

Afghanistan 

In Afghanistan, as in Iraq, increased efforts are being made to transfer detainees 

to the host nation for criminal prosecution. This meant that CJTF-82 had a requirement 

to seek methods of carrying out such transfers. As in Iraq, the prospect of criminal 

prosecutions required decreased reliance upon intelligence in favor of increased reliance 

upon physical evidence. This was true even though intelligence had typically formed the 

basis for capture and detention in the first place. A second problem that soon emerged 

was that a decision to transfer several months after capture often meant that the capturing 

unit could no longer provide useful information or was, in fact, no longer in theater. 166 

In order to increase the potential for successful prosecutions, the 82d ABN DIV 

OSJA recommended the collection of evidence at the time of capture or soon thereafter. 

Examples of evidence that had resulted in successful prosecutions were similar to those 

in Iraq. They included sworn statements (particularly from Afghan officials working 

with the capturing unit) and photographs ofthe detainees with weapons, narcotics, or 

other illicit materials, such as anti-Afghan government propaganda. The aSJA noted 

such material, if not included in the initial unit request to transfer the individual to the 

TIF, often was not available for collection later. As a result, it recommended JAs work in 

partnership with those responsible for deciding whether detainees would be transferred to 

164 TF 2/7 JA 2008 OIF AAR, supra note 123, at 11-13. 

165 172d SBCT OIF AAR, supra note 139, at 4. 

166 82d ABN DIV 2008 OEF AAR, supra note 123. 

49 
identify potential evidence and help generate immediate requests for it when not 

included. While this required more initial effort, it dramatically increased the prospect of . 167 

a success fu1 prosecutIOn. 

In addition to CJTF-82 working with Afghan authorities to facilitate transfers, 

Combined Security Transition Command - Afghanistan (CSTC-A) personnel had 

responsibility for mentoring Afghan counterparts responsible for detainees transferred to 

their custody from Guantanamo Bay or the TIF. The expectation was mentors would 

help Afghan officials develop options and make decisions, as well as encourage staff 

communication and the use of decision memos for senior leaders. 168 In some cases, 

CSTC-A JAs also had a requirement to support visits to Afghanistan by defense counsel 

representing Guantanamo detainees. These visits included interviewing witnesses, 

collecting evidence, and meeting with the families of their clients. A CSTC-A SJA AAR 

recommended JAs brief commanders about the need to provide this support. 169 

{See also MULTINATIONAL OPERATIONS (Detention).] 

I.E. 5. Interrogation 

Perhaps no other area of combat operations has generated as much controversy 

and legal oversight as interrogation. Questions in this area will prove to be among the 

most sensitive and difficult ones faced by JAs. Detainees are a potential source of 

valuable information, and the motivation to extract that information through interrogation 

may sometimes create strong temptation to test the limits of the LOW. Article 17 of the 

GPW prohibits the use of mental and physical torture and coercion during 

interrogation. 170 However, the GPW does not prohibit the detaining power from seeking 

information beyond the Article 117 minimum information (name, rank, etc.) if given 

voluntarily or provided in exchange for privileges. 171 Article 31 of the GC contains a 

similar prohibition against the use of coercion to obtain information. Torture is 

prohibited under all circumstances, regardless of the detainee's status. In Questions to 

167 82d ABN DIV 2008 OEF AAR, supra note 123. 

168 CSTC-A Legal Advisor 2007 OEF AAR, supra note 71, at 4-5. 

169 I d. at 5-6. 

170 GPW, supra note 51, art. 17. The GPW did not apply to Taliban and Al Qaeda detainees because they
 

were not considered EPWs, but see JCS INSTR. 581O.0IC, supra note 107, para. 4 ("The Anned Forces of
 

the United States will comply with the law of war during all anned conflicts, however such conflicts are
 

characterized, and, unless otherwise directed by competent authorities, the U.S. Anned Forces will comply
 

with the principles and spirit of the law of war during all other operations."). See also DOD DIR. 2311.01E,
 

supra note 107.
 

171 See GPW Commentary at 163-4 ("[A] [s]tate which has captured prisoners of war will always try to
 

obtain information from them. Such attempts are not forbidden ....") (citations omitted).
 

172 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, June 26,
 

1987,1465 U.N.T.S. 85; 18 U.S.C. §2340 (implementing UN Convention Against Torture) (1994)
 

See also AR 190-8, supra note 110, para. 2-1 (d):
 

Prisoners may be interrogated in the combat zone. The use of physical or mental torture 

or any coercion to compel prisoners to provide infonnation is prohibited. Prisoners may 

50 
lAs often concern the legality of proposed interrogation techniques. Approved 

techniques are set out in Field Manual (FM) 2-22.3, Human Intelligence Collector . 173 O'PeratlOns. 

In addition, lAs must be aware of the distinction between interrogation 

(conducted by trained personnel) and tactical questioning (conducted by Soldiers at the 

point of capture).174 A second important distinction is that only interrogators - and not 

those responsible for the care of detainees - may set the conditions for interrogation. 175 

Commanders and lAs must aggressively foster a climate ofrespect for the LOW and U.S. 

domestic law, and should continuously review and monitor specific interrogation 

methods. 

LE.6. Use ofForce 

Legal issues also arose concerning rules for the use of force while guarding 

detainees. Reserve component guards brought differing standards based upon their 

military and/or civilian experience. Units involved in detention may have to follow the 

rules for the use of force (RUF) rather than the rules of engagement (ROE); they may 

also require additional training in the use of non-lethal weapons and escalation of force. 

voluntarily cooperate with [psychological operations] personnel in the development, 

evaluation, or dissemination of [psychological operations] messages or products. 

Prisoners may not be threatened, insulted, or exposed to unpleasant or disparate treatment 

of any kind because of their refusal to answer questions. Interrogations will normally be 

performed by intelligence or counterintelligence personnel. 

Id. See also OPLAW HANDBOOK 2008, supra note 3, at 185-86. 

173 U.S. DEP'T OF ARMY, FIELD MANUAL 2-22.3, HUMAN INTELLIGENCE COLLECTOR OPERATIONS para. 5­

73 (6 Sept. 2006) (highlighting pertinent sections of the Geneva Conventions). See also Detainee 

Treatment Act of2005, Pub. L. No. 109-148, 119 Stat. 2680 (stipulating that no detainee in DOD custody 

or control shall be subject to any treatment not authorized by in the Army Field Manual on Intelligence 

Interrogation (FM 2-22.3)); U.S. DEP'T OF DEFENSE, DIR. 3115.09, DOD INTELLIGENCE INTERROGATIONS, 

DETAINEE DEBRIEFINGS, AND TACTICAL QUESTIONING (3 Nov. 2005). Because the restrictions apply to 

detainees held in DOD custody, non-DOD personnel should not conduct unsupervised interrogations. For 

example, one SJA recommended that Afghan investigators have only supervised access to U.S.-held 

detainees. A Marine SJA noted that U.S.-Iraqi interrogations of U.S.-held detainees were prohibited 

because the Iraqi Army had no certified interrogators. RCT-6 JA 2007 OIF AAR, supra note 154, at 9. 

Judge Advocates should also determine whether theater-specific policies, such as the MNC-I interrogation 

policy, exist. DETOPS attorneys should make themselves familiar with the listed techniques, as at least 

one OSJA found brigades often requested opinions on innovative interrogation techniques. 4ID 2007 OIF 

AAR, supra note 70, at 10. 

174 101st ABN DlV 2007 OIF AAR, supra note 73, at 19 ("Clearly once questioning involved specific 

methods, using a plan to extract information, the tactical questioning phase has ended."). 

175 See INT'L & OPERATIONAL LAW DEP'T, THE JUDGE ADVOCATE GENERAL'S LEGAL CENTER & SCHOOL, 

U.S. ARMY, STANDARD TRAINING PACKAGE, DETENTION AND INTERROGATION OPERATIONS: THE LEGAL 

REQUIREMENTS (1 June 2008) (available on the JAG University webpage on JAGCNet). See also Dick 

Jackson & Lieutenant Colonel Eric T. Jensen, Common Article 3 and Its Application to Detention and 

Interrogation, ARMY LAW., May 2007, at 69; Major Thomas H. Barnard, Preparing Interrogators to 

Conduct Operations Lawfully, ARMY LAW., Feb. 2007, at 3; Lieutenant Colonel Paul E. Kantwill, Captain 

Jon D. Holdaway, & Geoffrey S. Com, "Improving the Fighting Position": A Practitioner's Guide to 

Operational Law Support to the Interrogation Process, ARMY LAW., July 2005, at 12. 

51 
See also INTERNATIONAL & OPERATIONAL LAW(Law of War) & (Rules of 

Engagement).] 

52 
LR ENVIRONMENTAL ISSUES 

Environmental law is "the body oflaw containing the statutes, regulations, and 

judicial decisions relating to [military] activities affecting the environment to include 

navigable waters, near-shore and open water and other surface water, groundwater, 

drinking water supply, land surface or subsurface area, ambient air, vegetation, wildlife, 

and humans.,,176 

LF.l. Proactive Measures 

Deployment veterans recommend that environmental teams be available from the 

outset of a deployment for two reasons: environmental force protection and creating a 

record to allow the evaluation of claims after U.S. forces leave the site. 177 

Terrain considered operationally important to commanders may be 

environmentally suspect or even dangerous to US. forces ifused as a base camp. 178 The 

Group JA for 5th Special Forces Group (Airborne) reported that early in Operation 

ENDURING FREEDOM (OEF), his unit "encountered potentially health-damaging 

chemical contamination and arranged for a CHPPM [US. Center for Health Promotion 

and Preventive Medicine] site survey. The unknown risks might otherwise have led to 

relocation of the staging and headquarters elements, resulting in significant operational 

disruption. As it was, CHPPM recommended mitigating measures, averting any . I operatlOna pause.,,179 

Conducting an early environmental survey ofproperty used by US. forces can 

also set a baseline for measuring later claims of environmental damage. Judge Advocates 

in Bosnia and Iraq report using such surveys in the site closure process when force 

requirements dictated the closure ofparticular camps. 180 In Iraq, Ist Armored Division 

JAs developed a checklist for forward operating base (FOB) closures to ensure all legalrelated tasks associated with FOB closure were complete before turning the FOB was 

over to another entity. A JA was present for the physical inspection of every closing 

FOB and prepared a memorandum noting environmental conditions, improvements, and 

changes to the property relevant to potential claims regarding US. use ofthe facilities. 

Environmental conditions inspected included removal of hazardous materials, Class IV 

property, and fill ofwaste bum pitS. 181 

176 FM 27-100, supra note 4, para. 3-6 (internal citations omitted). 

177 See BALKANS LL, supra note 26, at 168. 

178 I d. 

179 OEF/OIF LL, Vol. I, supra note 92, at 172 n.l09. 

180 See BALKANS LL, supra note 26, at 163 n.440; OEF/OIF LL, Vol. II, supra note 89, at 179. 

181 OEF/OIF LL, Vol. II, supra note 89, at 179 n.967. 

53 
I.F.2. Analyzing Environmental Law Issues 

Based on its experience in Bosnia, the 1st Armored Division OSJA recommended 

that an environmental law expert accompany any deploying task force. 182 In the absence 

of expert counsel, JAs may take as a point of departure the following summary.183 

The key statute in the field is the National Environmental Policy Act (NEPA).184 

Although domestic statutes do not generally apply to overseas operations, NEPA 

considerations do apply if the operation results in an environmental impact inside the 

United States. While NEPA does not prohibit actions, it creates a documentation 

requirement that ensures that decision makers consider the environmental impact of 

federal actions. The required documents are usually referred to as environmental 

assessments (EA) or environmental impact statements (ElS), and their production can 

cause substantial delay in planned federal actions. 

Executive Order No. 12,114, Environmental Effects Abroad ofMajor Federal 

Actionsl85 creates "NEPA-like" rules for overseas operations, but only applies to major 

federal actions that create significant effects on the environment outside ofthe United 

States. DOD has implemented the provisions ofExecutive Order No. 12,114 with DOD 

Directive 6050.7, Environmental Effects Abroad ofMajor Department ofDefense 

Actions,186 which the Army, in tum, is in tum implements through Army Regulation 200­

1, Environmental Protection and Enhancement. 18 ? Executive Order No. 12,114 describes 

four categories of environmental events: 

•	 major federal actions that do significant harm to the global commons; 

•	 major federal actions that significantly harm the environment of a foreign 

nation that is not involved in the action; 

•	 major federal actions that are determined to be significantly harmful to the 

environment of a foreign nation because they provide to that nation: (1) a 

product, or involve a physical project that produces a principal product, 

emission, or effluent, that is prohibited or strictly regulated by federal law in 

the United States because of its toxic effects to the environment create a 

serious public health risk; or (2) a physical project that is prohibited or strictly 

182 OEF/OIF LL, Vol. I, supra note 92, at 167-8. 

183 This summary draws upon the analysis in a 3d Infantry Division information paper included in id., app. 

E-5; see also OPLAW HANDBOOK 2008, supra note 3, ch. 20. 

184 42 U.S.c. §§ 4321-4370 (1973). 

185 Exec. Order No. 12,114,44 Fed. Reg. 1,957 (1979) [hereinafter Exec. Order No. 12,114]. 

186 U.S. DEP'T OF DEFENSE, DIR. 6050.7, ENVIRONMENTAL EFFECTS ABROAD OF MAJOR DEPARTMENT OF 

DEFENSE ACTIONS (31 Mar. 1979). 

187 U.S. DEP'T OF ARMY, REG. 200-1, ENVIRONMENTAL PROTECTION AND ENHANCEMENT (13 Dec. 2007); 

see also U. S. DEP'T OF ARMY, FIELD MANUAL 3-100.4, ENVIRONMENTAL CONSIDERAnONS IN MILITARY 

OPERATIONS (15 June 2000) (C1, 11 May 2001). 

54 
regulated in the United States by federal law to protect the environment 

against radioactive substances; 

•	 major federal actions outside the United States that significantly harm natural 

or ecological resources of global importance designated by the President or, in 

the case of such a resource protected by international agreement binding on 

the United States, designated for protection by the Secretary of State. 

If there is the possibility of one of the events listed above, commanders should
 

seek an exemption to the requirement or draft an environmental study for review.
 

•	 Participating Nation Exception. Most overseas contingency operations do not 

generate the first, third, or fourth types of environmental events listed above. 

Accordingly, a premium is placed upon the existence of the second type of 

environmental event, with the threshold issue being whether the host nation is 

participating in the operation. If it is, then no study or review is required, nor 

is it necessary to seek an exemption. 

•	 General Exemptions. DOD Directive 6050.7 enumerates ten situations that 

are excused from the procedural and other requirements ofExecutive Order 

No. 12,114, including actions "taken by or pursuant to the direction of the 

President or a cabinet officer in the course of armed conflict.,,188 

•	 Additional Exemptions. DOD has authority to establish additional 

exemptions that apply to DOD operations. Based on national security 

considerations, the Assistant Secretary of Defense (Manpower, Reserve 

Affairs, and Logistics) may exempt U.S. forces from the requirement to 

prepare environmental documentation. 189 Echelons above division must take 

affirmative steps to secure such exemptions. 

I.F.3. Lessons Learned 

In Iraq, the 101st Airborne Division SJA had to consider the environmental law 

implications of spreading fuel as a dust abatement measure at an aircraft refueling point. 

188 Exec. Order No. 12,114, supra note 185. "E2.3.3.1.3. Actions taken by or pursuant to the direction of 

the President or a cabinet officer in the course of armed conflict. The term 'armed conflict' refers to: 

hostilities for which Congress has declared war or enacted a specific authorization for the use of armed 

forces; hostilities or situations for which a report is prescribed by section 4(a) (1) ofthe War Powers 

Resolution, 50 U.S.c.A. § l543(a) (1) (Supp. 1978); and other actions by the armed forces that involve 

defensive use or introduction ofweapons in situations where hostilities occur or are expected. This 

exemption applies as long as the armed conflict continues." Id. 

189 Id. "E2.3.3.2.1. In these [national security] circumstances, the head ofthe DOD component concerned 

is authorized to exempt a particular action from the environmental documentation requirements of this 

enclosure after obtaining the prior approval ofthe Assistant Secretary of Defense (Manpower, Reserve 

Affairs, and Logistics), who, with the Assistant Secretary of Defense (International Security Affairs), shall 

consult, before approving the exemption, with the Department of State and the Council on Environmental 

Quality. The requirement for prior consultation is not a requirement for prior approval." Id. 

55 
Citing military necessity, JAs "ensured that a record was made ofthe location, what and 

how much we dispersed.,,19o While this action comported with an exception to the EA 

requirements ofExecutive Order No. 12,114, documentation is prudent for the reasons 

discussed above, and invocation of the "armed conflict" exemption should move through 

channels for approval by the Assistant Secretary of Defense (Manpower, Reserve Affairs, 

and Logistics). During a subsequent deployment, the lOlst Airborne Division OSJA 

noted that base closure required a determination as to what, if any, environmental law 

standards applied, and then an application of those standards. Ideally, one JA should 

receive environmental law training, and should be responsible for determining and 

promulgating the applicable standards across the task force area of operations. 

The OSJA noted that providing advice in this area is very difficult because of the 

size of the body of authority: "For example, to answer questions regarding the disposal 

of potential medical waste (e.g., needles) one would need mastery of Annex L to 

USCENTCOM OPLAN 1003V (18 SEP 02), the "Overseas Environmental Baseline 

Guidance Document," DODI 4715.5 (22 APR 96), and the "USCENTCOM Sandbook" 

R4l5-1 (01 Dec 04), in addition to relevant FRAGOs, SOPs, and Policy Letters." As 

well, "reasonable minds disagreed as to the interpretation of guidance. Some sources 

concluded U.S. environmental standards applied because the conflict was "posthostilities," while others concluded that no standard applied because environmental 

considerations were secondary to ongoing military operations.,,191 

In Haiti, JAs reported that although the operation did not frequently raise 

environmental law issues, redeploying units realized there could be liability concerns in 

relation to environmental damage at locations such as a sewage disposal site. Noting 

Executive Order 12,114 extended NEPA considerations to overseas federal actions, 

though without creating a cause of action for violations, JAs applied a "common sense" 

standard "to prevent unnecessary damage to the (already disastrous) environment of 

H 't' ,,192 al 1. 

Judge Advocates accompanying forces deployed in relief operations following 

Hurricane Mitch in 1998-99 found disposal of medical waste was "the predominant 

environmental issue" for U.S. forces because some host nations lacked the capability to 

dispose of it properly. Silver by-products from x-ray procedures returned to the United 

States for disposal, and units left insecticides only in the custody of host nation 

authorities. 193 

190 OEF/OIF LL, Vol. I, supra note 92, at 172 n.109. 

1911018t ABN DIV 2007 OIF AAR, supra note 73, at 15. 

192 HAITI LL, supra note 9, at 126 n.415. 

193 CENTER FOR LAW & MILITARY OPERAnONS, LAW AND MILITARY OPERAnONS IN CENTRAL AMERICA: 

HURRICANE MITCH RELIEF EFFORTS, 1998-1999: LESSONS LEARNED FOR JUDGE ADVOCATES 109 (15 

September 2000) [hereinafter HURRICANE MITCH LL]. 

56 
L G. FOREIGN & INTERNATIONAL RELATIONS 

LG.J. u.s. Government-Intergovernmental Organization (IGO) Interaction 

The principal international organizations JA will likely encounter during 

contingency operations are the United Nations (UN) and its many agencies, and the North 

Atlantic Treaty Organization (NATO). However, other regional bodies include the 

European Union (EU), Organization ofAmerican States (OAS), the African Union (AU), 

and the Organization for Security and Cooperation in Europe (OSCE). Only descriptions 

ofthe UN and NATO appear here. 

United Nations (UN) 

Since the United Nations (UN) carne into existence in 1945, its purposes, as set 

forth in its Charter, are to maintain international peace and security; develop friendly 

relations among nations; cooperate in solving international economic, social, cultural and 

humanitarian problems and in promoting respect for human rights and fundamental 

freedoms; and be a centre for harmonizing the actions of nations in attaining these 

ends. 194 

The UN includes among its members almost every country in the world. Upon 

joining the UN, states agree to accept the obligations ofthe UN Charter. The best known 

of these is the renunciation of the use of force in international relations except with UN 

authorization or in self-defense. The Charter assigns the UN Security Council primary 

responsibility for maintaining international peace and security. Chapter VII ofthe UN 

Charter, entitled "Action with Respect to Threats to the Peace, Breaches of the Peace, and 

Acts ofAggression," gives the Security Council authority to determine what measures 

should be employed to address acts of aggression or other threats to international peace 

and security. 

The Security Council can take measures, including the use of force, to enforce its 

decisions (and is normally the only UN body that can authorize the use of force). 

However, the Security Council prefers peaceful solutions and seldom authorizes the use 

of force, instead imposing economic sanctions or arms embargos, or sending 

peacekeeping missions to crisis areas. The legal basis for many operations is provided by 

a UN Security Council Resolution (UNSCR) under either a Chapter VI (peacekeeping) or 

Chapter VII (peace enforcement) mandate, but Article 51 of the UN Charter also 

recognizes the inherent right of self-defense which is used as the legal basis of some 

operations (e.g., Operation ENDURING FREEDOM). 

It is important for JAs to understand both the UN role and how to deal 

appropriately with the UN and its personnel. The UN organizations most likely present 

in contingency operations are the UN High Commission for Refugees (UNHCR) and UN 

peacekeepers. The UNHCR works around the world, wherever there are refugees. Its 

194 UN website, http://www.un.org/aboutun/basicfacts/unorg.htm (last visited Aug. 22, 2008). 

57 
staff of more than 6,000 personnel provides help to more than 32 million people in 111 

countries. In addition to emergency relief (e.g. food, shelter, and medical care), the 

UNHCR seeks to protect refugees and help them restart their lives. 

Member states that are not involved in a crisis provide UN peacekeepers, who 

deploy with the consent ofthe parties in order to stabilize the situation and keep a peace 

that may be fragile. The UN Security Council, acting under Chapter VI of the UN 

Charter, authorizes peacekeeping mission. The Security Council sets the mandate of each 

mission, depending on the nature ofthe crisis. However, peacekeepers are only 

authorized to use force pursuant to their right of self-defense. The UN Department of 

Peacekeeping Operations (DPKO) carries out planning for peacekeeping missions. The 

UN Security Council may also establish peace enforcement missions, authorized to use 

force if necessary, to ensure compliance with the mission mandate. 195 A regional body 

such as NATO can receive authority to lead a peace enforcement mission on the UN's 

behalf. 

lAs interacting with the UN, as well as with other US. Government (USG) 

agencies or non-governmental organizations (NGOs), must possess diplomacy, tact, and 

awareness of institutional values and constraints. The US. personnel who dealt with the 

detailing of a US. Army general as force commander of the UN Mission in Haiti 

(UNMIH) demonstrated these qualities. Because UNMIH was a UN peacekeeping force 

established pursuant to a UNSCR,196 the Secretary General and the Under-Secretary 

General for Peacekeeping Operations expected the force commander would keep them 

fully informed of organizational, deployment, and operational matters. This is a 

requirement of the UN chain of command that operates between the UN Security Council 

and the force commander, through UN headquarters. 197 

The UN view of the relationship between its political and policy organs and force 

commanders caused UN Headquarters to seek various guarantees: an employment 

contract, a letter of appointment, and a loyalty oath. Could or should a U.S. Army 

general sign such instruments? The answer was "no," but the details were important, and 

the interests of both the United States and the UN could be respected if communications 

and legal opinions were crafted with attention to them. 198 Law and policy precluded 

signature of the employment contract or letter of appointment, and appeared to prohibit 

195 See JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.3, PEACE OPERATIONS (17 Oct. 2007); U.S. DEP'T OF 

ARMY, FIELD MANUAL 100-23, PEACE OPERATIONS (30 Dec. 2004); U.S. DEP'T OF ARMY, FIELD MANUAL 

3-07.31, MULTl-SERVICE TACTlCS, TECHNIQUES, AND PROCEDURES FOR CONDUCTING PEACE OPERATrONS 

(26 Oct. 2003). 

196 See S.c. Res. 867, U.N Doc. S/RES/867 (1993); S.c. Res. 964, U.N. Doc. S/RES/964 (1994). 

197 See Letter from Kofi Annan, Under-Secretary-General for Peacekeeping Operations, the United Nations, 

to Major-General Joseph W. Kinzer, Force Commander, UNMIH, subject: General Guidelines for the 

Force Commander, paras. 5-7 (1 Mar. 1995). 

198 See Memorandum, Legal Counsel to the Chairman of the Joint Chiefs of Staff, to MG Kinzer, subject: 

Legal Issues Involving Your Detail as UNMIH Commander (3 Feb. 1995). 

58 
his swearing of a UN loyalty oath. 199 Joint Staff JAs provided timely and accurate advice 

and thus prevented an awkward situation from developing. A high-level exchange of 

communications between the United States and the UN subsequently satisfied all parties 

and cleared the way for the force commander's assumption of duties. 

In the wake of the Bosnian peace agreement, the UN authorized the NATO-led 

Implementation Force (IFOR). The UN forces that preceded IFOR in Bosnia had brought 

a great deal of equipment into theater. American forces assigned to IFOR took over 

much of it from the UN pursuant to Section 607 ofthe Foreign Assistance Act, which 

allows the United States and UN to enter into reciprocal support agreements. Judge 

Advocates had to remind commanders the equipment was not free. Before agreeing to 

accept an item from the UN, resource managers had to determine that: (1) there was a 

true need for the equipment in question; and (2) the cost of reimbursing the UN would be 

less than the cost for the U.S. logistic system to acquire or bring the equipment into the 

theater.2oo 

In Kosovo, the UN again authorized a NATO-led peace enforcement mission, 

during which issues ofproviding support arose in a number of areas. Often there were 

direct requests for support from UN representatives. Other times, Kosovo Force (KFOR) 

HQ taskings would contain embedded support requirements. 201 One tasking, which was 

part of a KFOR and UN Office for Project Services memorandum of understanding 

(MOU), would have required the United States to expand the size ofthe task force 

ammunition holding area to accommodate the MOU requirements for de-mining 

activities. 202 Another KFOR tasking would have required U.S. forces to transfer C4 

explosive, blasting caps, detonation cord, and time fuses on a reimbursable basis to a 

199 See Message, 190153Z Oct 93, Office of United States Secretary of State to United States Mission to the 

United Nations, subject: Military Assistant for United Nations Senior Military Advisor Major General 

Baril ("There is no legal authority that allows U.S. Military Personnel to contract with the UN for the 

performance of official duties."); UN Participation Act, § 7,22 U.S.c. § 287(g) (2000) (permitting 

individuals detailed to the UN, on the President's approval, to receive payment of allowances and other 

perquisites); Exec. Order No. 10,206,3 C.F.R. (1951) (delegating approval authority to the Secretary of 

Defense); Memorandum, Secretary of Defense, subject: Policy on United Nations (UN) Allowances (27 

Jan. 1994) (establishing general policy that, unless authorized on a case by case basis, U.S. personnel may 

not receive UN supplemental allowances); Memorandum, Secretary of Defense to Secretaries of the 

Military Departments and Chairman of the Joint Chiefs of Staff, subject: Receipt of UN Allowances and 

Perquisites by the Commanding General, Military Forces, United Nations Mission in Haiti (UNMIH) (29 

Mar. 1995) (authorizing MG Kinzer to receive UN payments for the purpose of fulfilling UN 

representational responsibilities, payable upon completion of the representational duties and presentation of 

receipts, but also stating that "[n]o other allowances or perquisites offered by the UN incident to that detail 

are allowed."). 

200 lAD 1997 Bosnia AAR, supra note 20, at 50. 

201 See Kosovo LL, supra note 126, at 158. 

202 See Memorandum, Operational Law Attorney, Task Force Falcon, for Record, subject: Legal Review of 

MOU between KFOR and UNOPS (9 Mar. 2000). 

59 
civilian de-mining organization working under UN guidance.203 Judge Advocates rightly 

saw these as legally objectionable. 

In Kosovo, as in Bosnia, U.S. forces provided support to the UN-mandated 

International Criminal Tribunal for the Former Yugoslavia (ICTY). Task Force Falcon 

supplied a dedicated squad, with a lieutenant or senior NCO, several vehicles, a GP 

medium tent, a generator, and a laboratory tent with running water at Camp Bondstee1.204 

Later, when investigators wanted an engineer company to excavate a well, JAs assisting 

the ICTY were aware of an NGO capable of supporting the request and were able to link 

the parties.205 

Finally, Task Force Falcon JAs dealt with issues arising from use of dining 

facilities, medical facilities, and the Army and Air Force Exchange Service (AAFES) by 

UN workers, particularly American ones?06 UN representatives often questioned the task 

force commander directly on U.S. support.207 Although an acquisition and crossservicing agreement (ACSA) is authorized by statute,208 there is no ACSA between the 

United States and the UN, and there is no other reimbursement mechanism between the 

UN and the U.S. Army in KosovO.2

0

9 As a result, UN workers could not just "sign in" to 

the U.S. dining facility as members of other multinational partner forces were allowed to 

do, but had to pay for meals there.210 Similarly, some U.S. members ofthe UN Mission 

in Kosovo Police force (UNMIK-P) indicated their employment contract promised 

medical care at the U.S. facility. As a matter oflaw, however, U.S. Army physicians 

could only treat UN workers in cases where there was a danger of loss of life, limb, or 

eyesight. However, the USAREUR Commander was able to grant UN workers access to 

203 See Memorandum, Deputy Legal Advisor, Task Force Falcon, to Assistant Task Force Engineer, Task 

Force Falcon, subject: Transfer of Explosives to Civilian De-mining Companies (15 Aug. 2000). 

204 Kosovo LL, supra note 126, at 117. The lessons learned summary cites the NATO OPLAN as 

authority for this support, although military orders do not answer fiscal law questions. Query whether the 

summary answers the question of how Task Force Falcon properly funded support to the ICTY. 

205 !d. at 118. 

206 I d. at 158. 

207 See E-mail from Legal Advisor, Task Force Falcon, to Chief, International and Operational Law, U.S. 

Army Europe (20 Sept. 1999). 

208 See 10 U.S.C. § 2341-42 (2000). 

209 Support to the UN may be provided under several statutes: the UN Participation Act, 22 U.S.C. § 287d 

(2000), which allows the President to authorize personnel, supplies, services, and equipment for noncombat UN activities; the Foreign Assistance Act, section 607, 22 U.S.c. § 2357 (2000), which allows the 

United States to provide support on an advance of funds or on a reimbursable basis to friendly foreign 

countries and the UN; the Arms Export Control Act, 22 U.S.c. § 2761-62 (2000); and the Economy Act, 31 

U.S.C. § 1535 (2000). However, none of these was applicable to UN operations in Kosovo. 

210 See E-mail from Captain Eric Young, Operational Law Attorney, U.S. Army Europe, to Captain Alton 

L. Gwaltney, III, Center for Law & Military Operations (20 June 2001). 

60 
the Army and Air Force Exchange Service (AAFES) in accordance with Army Regulation 

60-20. 211 

In Iraq, the UN supported the reconstruction effort pursuant to UNSCR 1500,212 

establishing the UN Assistance Mission for Iraq (UNAMI). However, on 19 August 

2003, five days after passage ofthat resolution, a suicide bomber blew up a cement mixer 

full of explosives in the UN compound in Baghdad. The attack killed, among others, 

Sergio Vieira de Mello, the UN Secretary General's Special Representative (SRSG) in 

Iraq.213 The attack, coupled with another outside the headquarters on 22 September 2003, 

prompted UN Secretary-General Kofi Annan to pull all but a skeleton foreign staff from 

Iraq. Only in January 2004 were UN experts sent back to Iraq to assist with determining 

when elections would be feasible.214 

In June 2004, UNSCR 1546 provided UNAMI with a mandate to assist the Iraqi 

people and government.215 This expanded with UNSCR 1770 (10 August 2007), which 

authorized the SRSG and UNAMI, to "advise, support, and assist" in a number of areas at 

the request ofthe Iraqi government, as well as "promote, support, and facilitate" in 

coordination with the Iraqi government. Responsibilities in this latter area include 

promoting the protection of human rights and judicial and legal reform in order to 

strengthen the rule oflaw in Iraq.216 UNAMI now has 300 UN international staff and 

393 national staff serving in Iraq, Kuwait and Jordan.217 

UNSCR 1401 originally established the UN Assistance Mission in Afghanistan 

(UNAMA) on 28 March 2002 to help implement the Bonn Agreement.218 The 

Agreement established an interim Afghan government following the fall ofthe Taliban 

and prescribed the drafting of a new constitution and the holding of general elections. 

UNAMA had a mandate to manage all humanitarian, relief, recovery and reconstruction 

activities. Following the 2005 election of a new parliament, in consultation with the 

Afghan government, the Security Council expanded UNAMA's activities. The 

expansion included providing political and strategic advice for the peace process; 

promoting international engagement in Afghanistan; assisting the Afghan government 

211 US. DEP'T OF ARMY, REG. 60-20, ARMY AIR FORCE EXCHANGE SERVICE OPERATING POLICIES para. 2­

II(b)(4) (1S Dec. 1992), superseded by US. DEP'T OF ARMY, REG. 21S-8, ARMY AND AIR FORCE 

EXCHANGE SERVICE OPERATIONS (30 July 2008). 

212 S.c. Res. IS00, UN. Doc. SlRESI1S00 (Aug. 14,2003). 

213 Dexter Filkins & Richard A. Oppel Jr., Huge Suicide Blast Demolishes UN. Headquarters in Baghdad; 

Top Aid Officials Among 17 Dead, N.Y. TIMES, Aug. 20,2003, at AI. 

214 Warren Hoge,Annan Signals He'll Agree To Send UN Experts to Iraq, N.Y. TIMES, Jan. 20, 2004, at 

AI. 

215 S.c. Res. IS46, UN. Doc. S/RESI1S46 (June 8, 2004). 

216 S.C. Res. 1770, UN. Doc. SIRES/I770 (Aug. 10, 2007). 

217 UNAMI Fact Sheet (Aug. 7,2007), http://www.uniraq.org/documents/UNAMI]actSheet02Aug07_EN.pdf. 

218 S.C. Res. 1401, UN. Doc. SIRESI1401 (Mar. 28, 2002). 

61 
with implementation ofthe Afghanistan Compact (a five-year strategy for rebuilding the 

country); and contributing to human rights protection and promotion. In addition, 

UNAMA continues to manage UN humanitarian relief, recovery, reconstruction and 

development activities in coordination with the Afghan government.219 

North Atlantic Treaty Organization (NATO) 

Created in 1941, the North Atlantic Treaty Organization (NATO) after World 

War II was principally concerned with the defense ofWestern Europe from a possible 

attack by the Soviet Union.220 However, NATO's focus changed with the collapse ofthe 

Soviet Union. Now, in addition to its mutual defense responsibilities, NATO engages in 

peace enforcement operations, manages crises, and promotes cooperative approaches to 

European security, including measures of arms control and disarmament.221 In recent 

years, NATO has deployed forces to Bosnia, the Former Yugoslav Republic of 

Macedonia, and Kosovo, as well as assuming responsibility for the International Security 

Assistance Force (ISAF) in Afghanistan and a training mission in Iraq. NATO has also 

helped the AU to expand its mission in Darfur, Sudan, by training AU personnel and 

providing airlift to allow the deployment of additional peacekeepers. 

L G.2. U.S. Government - Non-Governmental Organization (NGO) Interaction 

During deployed operations, JAs may encounter a wide variety of nongovernmental organizations (NGOs), many ofwhich provide medical, relief, and 

emergency assistance for housing and food and fuel, although some emphasize human 

rights. NGOs seldom have hierarchical structures and operate informally and flexibly. 

Their personnel are often in high-risk, volatile areas and situations. Thus, their presence 

is not unusual during contingency operations. Commonly encountered NGOs include 

those described below. 

International Committee of the Red Cross (ICRC) 

Founded in 1863, the International Committee ofthe Red Cross (ICRC) is an 

impartial, neutral, and independent organization whose exclusively humanitarian mission 

is to protect the lives and dignity of victims of war and internal violence and provide 

them with assistance. It directs and coordinates the international relief activities 

conducted by the International Red Cross and Red Crescent Movement. It also endeavors 

to prevent suffering by promoting and strengthening humanitarian law and universal 

humanitarian principals. The Geneva Conventions assign additional responsibilities to 

the ICRC, including monitoring the conditions under which forces hold detainees.222 

219 UNAMA website, http://www.unama-afg.org/aboutlbackground.htm. 

220 KFOR website, http://www.nato.int/kfor/index.html; ISAF website, http://www.nato.intlisaf/index.html. 

221 See OPLAW HANDBOOK 2008, supra note 3, at 588-91; JOINT CHIEFS OF STAFF, JOINT PUB. 3-16, 

MULTINATIONAL OPERATIONS (7 Mar. 2007). 

222 See www.icrc.org for more information. 

62 
Doctors Without BorderslMedecins Sans Frontieres (MSF) 

Medecins Sans Frontieres (MSF), also known by its English name, Doctors 

without Borders, is an international humanitarian aid organization that provides 

emergency medical assistance to populations in danger in more than seventy countries. It 

has done so since 1971. In countries where health structures are insufficient or even nonexistent, MSF collaborates with authorities such as the Ministry of Health to provide 

assistance. It works in the rehabilitation of hospitals and dispensaries, vaccination 

programs, and water and sanitation projects. 

Medecins Sans Frontieres personnel are also present in remote health care centers 

and slum areas, where they assist and provide training to local personnel. All this has the 

objective ofrebuilding health structures to acceptable levels. Medecins Sans Frontieres 

seeks to alleviate human suffering, protect life and health, and restore and ensure respect 

for human beings and their fundamental human rights. Its work includes addressing any 

violations ofbasic human rights encountered by field teams by confronting the 

responsible actors themselves, putting pressure on them through mobilization of the 

international community, and issuing information publicly. In order to prevent 

compromise or manipulation ofMSF's relief activities, MSF maintains neutrality and 

independence from individual governments. 223 

Cooperative for Assistance & Relief Everywhere (CARE) 

Started after WWII and originally focused on Europe, the Cooperative for 

Assistance and Relief Everywhere (CARE) now works in seventy-one countries around 

the world. It provides both development and emergency programs, distributing food, 

water and medicine, aiding in agricultural rehabilitation, distributing tools, seeds and 

building supplies, and helping to repair community infrastructure. In general, CARE 

tackles underlying causes of poverty so people can become self-sufficient. Recognizing 

women and children suffer disproportionately from poverty, CARE places special 

emphasis on working with women to create permanent social change. Women are at the 

heart of CARE's community-based efforts to improve basic education, prevent the spread 

of HIV, increase access to clean water and sanitation, expand economic opportunity and 

protect natural resources. The organization also delivers emergency aid to survivors of 

war and natural disasters, and helps people rebuild their lives. As with military forces, 

CARE has country agreements (similar to status of forces agreements) with every country . h' h' III W IC It operates.224 

L G.3. U.S. Government - Multinational Partner Interaction 

The issues commonly encountered in this area may be divided into the categories 

of interoperability (e.g., legal framework, rules of engagement, and targeting), 

coordination of investigations (e.g., disciplinary or friendly fire incidents), and the 

223Sf" . ., . ee www.ms .org ~or more lll~ormatlOn.

224 See www.care.org for more information. 

63 
provision of logistic support. The Multinational Operations chapter covers most ofthese 

topics. Additionally, discussion of ACSAs appears under International Agreements, and 

the Civil Law chapter includes details of providing support through a foreign military 

sales (FMS) case. 

[See MULTINATIONAL OPERATIONS; INTERNATIONAL & OPERATIONAL 

LA W (International Agreements); and CIVIL LAW (Fiscal Law).] 

I. G.4. U.S. Government - Host Nation (HN) Interaction 

Regardless of the nature of the operation, JAs can expect to field a number of 

questions arising from relations with the host nation (HN). Many will be fiscal in nature 

(e.g., financing humanitarian assistance; providing support to HN military and police 

forces, including the transfer of facilities and equipment; and reconstruction efforts). 

Others will arise from requests to provide medical and logistic support to HN personnel. 

Discussion of most ofthese issues appears in other chapters. For example, the Civil Law 

chapter discusses fiscal issues. Discussion ofthe coordination aspects of providing 

humanitarian assistance appears below. 

Humanitarian Assistance 

At the tactical level, the options available to a joint task force (JTF) commander 

for coordinating the provision of humanitarian assistance include forming a civil-military 

operations center (CMOC) or a humanitarian operations center (HOC). A HOC does not 

exercise command and control in the military sense, but attempts to build a consensus for 

mutual assistance and unity of effort.225 It should consist of decision-makers from the 

JTF; UN and other international organizations (such as the ICRC); other USO agencies 

(such as the Department of State (DOS), including the Agency for International 

Development (USAID) and the Office of Foreign Disaster Assistance (OFDA)); NOOs; 

and HN authorities. 

Numerous NOOs and private voluntary organizations (PVOs) preceded or 

accompanied the Multi-National Force (MNF) deployed to Haiti in 1994.226 The MNF 

established a CMOC. It consisted of key staff members from the U.S. JTF, military 

liaison personnel from other countries, and representatives from USAID and OFDA, the 

ICRC, various UN and foreign government agencies, and PVOs. This diverse group met 

daily to discuss problems and coordinate both short and long-term actions, with the MNF 

SJA attending at least once a week.227 The Humanitarian Assistance Coordination Center 

225 HURRICANE MITCH LL, supra note 193, at 39-40. A primary reference on military coordination with the 

participants in humanitarian relief operations is JOINT CHIEFS OF STAFF, JOINT PUB. 3-29, FOREIGN 

HUMANITARIAN ASSISTANCE (forthcoming 2008). See also U.S. DEP'T OF DEFENSE, DIR. 2205.2, 

HUMANITARIAN AND CIVIC ASSISTANCE (HCA) PROVIDED IN CONJUNCTION WITH MILITARY OPERATIONS 

(6 Oct. 1994); U.S. DEP'T OF DEFENSE, INSTR. 2205.3, IMPLEMENTING PROCEDURES FOR THE 

HUMANITARIAN AND CIVIC ASSISTANCE (HCA) PROGRAM (27 Jan. 1995). 

226 HAITI LL, supra note 9, at 93, app. S (list ofNGOs providing humanitarian relief in Haiti). 

227Id. at 93-94. 

64 
(HACC), a subordinate element of the CMOC, served as the primary interface between 

all military forces and humanitarian organizations. 

In Kosovo, KFOR's limited ability to provide humanitarian support, and the 

restrictions on the limited support that was available, placed the onus on NOOs to 

provide humanitarian relief. Understanding which NOOs were operating within a task 

force area allowed JAs to provide a better range of options when reviewing humanitarian 

projects. Civil affairs sections maintained a list ofNOOs, as well as the types of aid they 

could provide.228 

Judge Advocates reported the most important lesson learned from the 1998-99 

Hurricane Mitch relief operation was the need for better coordination with other agencies 

and organizations. Initially, neither JAs nor commanders had a clear understanding of 

the manner in which IOOs and NOOs operated, nor how to work with them 

cooperatively. However, U.S. forces deployed to Central America found that many 

NOOs had an extensive knowledge ofthe region that could greatly benefit U.S. 

commanders. A critical first step is to identify other U.S. and foreign government 

organizations and NOOs working in the area?29 

[See also INTERNATIONAL & OPERATIONAL LAW(Civil Affairs), (International 

Agreements), & (Rule o/Law); CIVIL LAW(Fiscal Law), and ADMINISTRATIVE 

LA W (Medical Issues).] 

228 Kosovo LL, supra note 126, at 126-27. 

229 HURRICANE MITCH LL, supra note 193, at 37-38. 

65 
LH. HUMAN RIGHTS LAW 

Judge Advocates must have a foundation in the basics of human rights law. The 

United States accepts that certain fundamental human rights fall within the category of 

customary international law and that customary international law is legally binding under 

all circumstances. Customary international law results from the consistent practice of 

norms, customs, and philosophy that nations, over a prolonged period, have come to 

accept as legal obligations. 

The United States interprets human rights agreements or treaties as applying to
 

persons living in the United States, and not to persons with whom government
 

representatives interact outside the United States. According to this interpretation,
 

although treaties entered into by the United States become part ofthe "supreme law of
 

the land," they are not necessarily enforceable in U.S. courts when the conduct occurs
 

elsewhere.
 

Generally, a treaty imposes legal obligations if the United States, at the time of 

the agreement's signing, agrees that the agreement is self-executing. However, if the 

agreement is non-self executing, it is not legally binding unless there is a Presidential 

order or Congressional legislation to execute its provisions. Nevertheless, certain rights 

may still be enforceable if they attain the status of customary international law. For 

example, the Universal Declaration of Human Rights, adopted by the UN General 

Assembly in 1948, is not an international agreement or treaty. However, it describes 

fundamental human rights that have attained the status of customary international law. It 

is, therefore, binding on the United States. Nonetheless, the provisions of the Declaration 

that are not considered reflective of customary international law are not legally binding 

on the United States. 

Customary international law recognizes all humans have the right to be free from 

state action which establishes, supports, or condones violations of what are commonly 

referred to as fundamental human rights. Nations, therefore, violate customary 

international law when they engage in the practices of genocide, slavery, murder, 

kidnapping, torture, arbitrary detention, systematic racial discrimination, or a consistent 

pattern of violations of internationally recognized human rights. 

Recent operations have demonstrated that JAs will often playa crucial role in 

providing basic human rights training to not only host nation (RN) police and armed 

forces, but also the judiciary. Commanders involved in stability operations will tum to 

legal advisors because oftheir background in the rule of law and perceived credibility to 

lead efforts to increase respect for basic human rights. 

In providing human rights training, JAs should be aware that RN legal 

professionals are often suspicious of such efforts, viewing them as attempts to instill 

"Western" or "American" values. In Iraq, legal teams recommended that, to avoid this 

66 
perception, JAs seek the assistance ofCoalition JAs230 and look for human rights 

agreements signed by the HN or countries with similar cultural backgrounds. In Iraq, 

which had signed the International Covenant on Civil and Political Rights (ICCPR) in 

March 1975, this approach worked well. Legal teams provided human rights training 

based on the ICCPR, portraying its obligations not as American legal norms, but as 

international law that had already been part ofIraqi law for nearly thirty years.231 

Judge Advocates must also have some understanding of the relevance of various 

human rights treaties when dealing with multinational partners. 

[See MULTINATIONAL OPERATIONS.] 

230 It was partly for this reason that the U.S. Defense Institute ofInternational Legal Studies (DIlLS) was on 

three occasions in 2005 loaned a British Army Legal Officer, Lt Col Richard Batty MBE, an exchange 

officer at the TJAGLCS Center for Law & Military Operations, to assist with the DIlLS mission in 

Afghanistan. 

231 After Action Report, Office ofthe Staff Judge Advocate, 1st Cavalry Division 35 (Feb. 2005). The 1st 

Cavalry Division's Governance Support Team Justice suggested that the ICCPR is an excellent model for 

training human rights concepts, especially in Arabic countries, because a Arabic translation is readily 

available on the UN website. Judge Advocates must be familiar with the two Optional Protocols as well 

and determine whether the country in question has adopted them. 

67 
LL INFORMATION OPERATIONS (10) 

Infonnation operations (IO) are a vital component of overall operations on the
 

complex and nontraditional battlefields ofthe 21st century, and require strong legal
 

support:
 

10 may involve complex legal and policy issues requiring careful review. 

Beyond strict compliance with legalities, US military activities in the information 

environment as in the physical domains, are conducted as a matter ofpolicy and 

societal values on a basis of respect for fundamental human rights. US forces, 

whether operating physically from bases or locations overseas or from within the 

boundaries of the US or elsewhere, are required by law and policy to act in 

accordance with US law and the law of armed conflict (LOAC).232 

Army doctrine provides that 10 is part of the operational law support provided to 

commanders by the Judge Advocate General's Corps (JAGC).233 In the Marine Corps, 

the JA does not appear as a doctrinal member of 10 staff, but can be included in 10 

planning ifinvited by the 10 officer to provide expert advice and opinions.234 During 

past U.S. military operations, legal personnel have provided advice and assistance to 

those military personnel charged with attaining infonnation superiority for multinational 

forces. In many cases, JAs were members ono cells, providing key advice to a 

sophisticated 10 planning process. 

This process, known as "effects-based planning," combines the traditional lethal 

targeting process with that of10 planning to produce a desired effect on a target. During 

Operations ENDURING FREEDOM (OEF) and IRAQI FREEDOM (OIF), planners have 

used 10 to enable military operations in a multitude ofways. Judge Advocates at all 

levels of command have played an important role in 10 planning, advising commanders 

and their staffs on the legal issues associated with 10. Legal personnel have learned 

many lessons from their work in assisting commanders to gain infonnation superiority. 

For example, JAs must be trained and prepared to provide legal advice during 10 

planning and must understand how JAs contribute to 10. As JAs quickly discovered, 

campaigns that give primacy to 10 are legally intensive.235 

232 JOINT CHIEFS OF STAFF, JOINT PUB. 3-13, INFORMATION OPERATIONS 1-6 (13 Feb. 2006) [hereinafter 

JOINT PUB. 3-13]. See also U.S. DEP'T OF DEFENSE, DIR. 3600.01, INFORMATION OPERATIONS (14 Aug. 

2006); U.S. DEP'T OF ARMY, FIELD MANUAL 3-13, INFORMATION OPERATIONS: DOCTRINE, TACTICS, 

TECHNIQUES, AND PROCEDURES (28 Nov. 2003) (describing Army 10 doctrine) [hereinafter FM 3-13]; U.S. 

MARINE CORPS, WARFIGHTING PUB. 3-40.4, MARINE AIR-GROUND TASK FORCE INFORMATION 

OPERATIONS (9 July 2003) [hereinafter MCWP 3-40.4]. See generally Center for Law & Military 

Operations, The Judge Advocate's Role in Information Operations, ARMY LAW., Mar. 2004, at 30 

(expanding upon the contents ofthis section). 

233 FM 27-100, supra note 4, paras. 2.4(a), 3.2. 

234 MCWP 3-40.4, supra note 232, para. A-3. See also Major Thomas A. Wagoner, Marine Information 

Operations in the Peacekeeping Realm 16 (2004). 

235 See, e.g., Operation IRAQI FREEDOM, After Action Report, Office ofthe Staff Judge Advocate, 82d 

Airborne Division 2 (2003) [hereinafter 82d ABN DIV 2003 OIF AAR] ("Legal review was required of 

numerous information operations products, dissemination methodology, and miscellaneous initiatives."); 

68 
Joint doctrine recognizes 10 may involve complex legal issues, so it requires 10 

planners to consider the following broad areas: (1) domestic and international criminal 

and civil laws affecting national security, privacy, and information exchange; (2) 

international treaties and agreements and customary international law, as applied to 10; 

and (3) structure and relationships among US intelligence organizations and general 

interagency relationships, including non-governmental organizations.236 

For example, legal support to 10 planners may include conducting a law of war 

(LOW) analysis of intended targets; advising on special protection for international civil 

aviation, international banking, and cultural or historical property; or pointing out actions 

expressly prohibited by international law or convention.237 For example, JAs provided 

LOW advice during the initial stages ofOIF, when 10 planners proposed targeting Iraq 

radio and television stations. Moreover, JAs analyzed proposed 10 targets under the 

rules of engagement (ROE). For instance, Coalition forces could not target certain 

communication nodes prior to the start of the ground war in Iraq because they were then 

operating under the ROE for Operation SOUTHERN WATCH.238 It was not until the 

transition to OIF ROE that these assets became valid targets. 

Over time, the nature ofIO activities in Iraq has altered, with the non-lethal 

aspects becoming increasingly important. As one OSJA observed: 

In a counter-insurgency (COIN) environment, information operations (10) and 

the use of money as a weapon playa major part. Most of our pre-deployment 

preparation centered on ROE and lethal operations, but once in theater we were 

forced to quickly become familiar with the approval authorities for 10 products, 

use of the rewards program, release of detainee photos/names, and CERP 

guidelines .... Luckily, most of these issues have been handled by previous 

units and guidance is already in place. However, it would have been helpful to be 

familiar with guidance prior to arriving in theater. 239 

Transcript ofAfter Action Review Conference, Office ofthe Staff Judge Advocate, Task Force Tarawa, 

and Center for Law & Military Operations, Camp Lejeune, N.C. 14 (2-3 Oct. 2003) [hereinafter TF Tarawa 

2003 OIF AAR Conference Transcript] (providing that the JA played an important role in planning a U.S. 

Marine Corps unit's use ofIO to remove an Islamic fundamentalist who had declared himself governor of a 

province in Iraq); OEF/OIF LL, Vol. I, supra note 92, at 132. 

236 JOINT PUB. 3-13, supra note 232, at V-2. 

237Id. The Army JA's la-related responsibilities also include: advising the G-7 (assistant chief ofstaff, 

information operations) on the legality ofIO actions being considered during planning; reviewing 10 plans, 

policies, directives, and ROE issued by the command to ensure their consistency with DOD Directive 

2311.01E, DOD Law a/War Program and the law ofwar (LOW); ensuring that 10 LOW training and 

dissemination programs are consistent with DOD DIR 2311.01E and U.S. LOW obligations; and advising 

the deception working group on the legality ofmilitary deception operations and the possible implications 

oftreaty obligations and international agreements on it. FM 3-13, supra note 232, para. F-32. See also 

DOD DIR. 2311.01E, supra note 107. 

238 Operation SOUTHERN WATCH was the name ofthe mission to monitor and control the airspace south 

ofthe 33d parallel in Iraq after the first Gulf War. 

239 3ID 2008 OIF AAR, supra note 132, at 20. 

69 
For example, lAs had to determine whether Iraqi cell phone companies could 

distribute text messages promoting peace, unity, and religious tolerance to their users on 

behalf of Coalition forces. 24o Another issue requiring legal analysis was the extent to 

which publication for 10 purposes of photographs of detainees held by either U.S. forces 

or the Central Criminal Court ofIraq is permissible.241 

Likewise, lAs in Afghanistan have provided legal advice on 10 activities far 

removed from the conduct of hostilities. In this case, 10 personnel wanted to contract 

with a local company to produce a magazine, and needed to know whether there was any 

legal or policy requirement to attribute the product to the United States. While lAs 

concluded there was no legal requirement for attribution, policy concerns required they 

assist in drafting "disclaimer" language for use with various 10 and PSYOP products.242 

Experience has demonstrated that effective participation in 10 cells and working
 

groups requires lAs to understand the 10 planning methodology. This includes being
 

thoroughly familiar with the military decision-making process (used by 10 planners to
 

plan and synchronize 10 activities)?43 In addition, during both OEF and OIF, units
 

240 4ID 2007 OIF AAR, supra note 70, at 13-14. The project was put on hold because of concern that the 

messages would be received by U.S. citizens who had purchased Iraqi cell phones. The AAR noted that 

while there is general policy and doctrine to guide JAs conducting legal analysis of 10 issues, it is 

sometimes difficult to apply old guidance to new technologies, such as the one at issue in this case. Id. 

241Id. (noting that the Deputy Secretary of Defense and CENTCOM issued guidance). A BCT JA had 

previously observed that guidance from his higher headquarters allowed using photos ofthose convicted by 

CCCI to show the Iraqi population that their justice system was working, except for detainees who had 

been convicted, but were still in U.S. custody. 172d SBCT OIF AAR, supra note 139, at 8-9. 

242 10th MTN DIV 2007 OEF AAR, supra note 71. The proposal also raised fiscal and other legal issues. 

For example, 10 staff wanted the company to be able to charge for the magazine and for ad space, allowing 

it to continue in operation once the contract had ceased. However, JAs determined that the unit could not 

use a contract for starting up an independent business. As well, 10 personnel considered using the name of 

a newspaper popular in Afghanistan in the 1920s. While Afghan law did not appear to prohibit this, they 

ultimately chose a new name. !d. 

243 See JOINT PUB. 3-13, ch. V (providing joint doctrine on the 10 planning process). See also FM 3-13, ch. 

5 (outlining the Army's MDMP for 10 planning); U.S. MARINE CORPS, WARFIGHTING PUB. 5-1, MARINE 

CORPS PLANNING PROCESS (5 Jan. 2001) (C1, 24 Sept. 2001). Commanders use the 10 mission statement, 

10 concept of support, 10 objectives, and 10 tasks to describe and direct 10. The 10 mission statement is a 

short paragraph or sentence describing what the commander wants 10 to accomplish and its purpose; the 

concept of support is a statement of where, when, and how the commander intends to focus the 10 element 

of combat power to accomplish the mission; the objectives are defined and obtainable aims that the 

commander intends to achieve using 10; and the 10 tasks are developed to support accomplishment of one 

or more objectives. See FM 3-13, supra note 232, paras. 5-1 to 5-8. Using the MDMP process, the 10 cell 

conducts mission analysis to define the tactical problem and determine feasible solutions. During mission 

analysis, the staff: analyzes the higher headquarters order; conducts the intelligence preparation of the 

battlefield; determines specified, implied, and essential tasks; reviews available assets; determines 

constraints; identifies critical facts and assumptions; conducts a risk assessment; determines initial 

commander's critical information requirements; determines the initial intelligence, surveillance, and 

reconnaissance (ISR) annex; plans use of available time; writes the restated mission; conducts a mission 

analysis briefing; approves the restated mission; develops the initial commander's intent; issues the 

commander's guidance and warning order (WARNO); and reviews facts and assumptions. Id. para. 5-31. 

After the mission analysis briefing, the staff develops courses of action (COAs) for analysis and 

70 
generally used effects-based planning, synchronizing lethal and nonlethal fires, including 

offensive 10 effects,z44 Effects;,.based planning meetings used the doctrinal targeting 

process of decide, detect, deliver, and assess (D3A),245 so JAs also needed to be familiar 

with doctrine on the targeting process. 

During both OEF and OIF, operational law (OPLAW) attorneys have generally 

provided support to 10 cells and working groups (IOWGs) at division level and above. 

At those echelons, SJAs should consider assigning a separate JA to the 10 cell. 

Information operations meetings may occur simultaneously with other G-3 (Operations & 

Plans) meetings that an OPLAW attorney must attend, such as targeting meetings. 

During the early stages ofOIF, the III Corps SJA assigned a JA to the 10 cell. As the 10 

cell operates continuously and plans at high-velocity during hostilities and follow-on 

operations, the need for legal advice is likewise continuous and requires rapid response. 

In order for an 10 cell to sustain efficiently offensive and defensive 10 during such 

operations, a JA with OPLAW knowledge must be readily available to answer over-theshoulder questions and produce 10 products that are legal in nature. Being embedded in 

the 10 cell allows the JA representative to focus on 10 legal questions and products,z46 In 

contrast to the "specialist" approach, a more recent AAR recommends all OPLAW 

attorneys have a working knowledge ofIO issues, as they tend to be fairly general in 

247 nature.

comparison based on the restated mission, commander's intent, and planning guidance. During COA 

analysis, the G-7 develops or refines the following 10 products to support each COA: 10 concept of 

support; 10 objectives; 10 tasks to support each 10 objective; 10 input work sheets; 10 synchronization 

matrix; IO-related target nominations; and the critical asset list. The staff then conducts a COA analysis 

(war-gaming) comparison, then makes a recommendation to the commander in a COA decision briefing. 

The 10 concept of support for the approved COA becomes the 10 concept ofsupport for the operation. 

The G-3 then issues a warning order (WARNO), which contains the 10 contributions to the commander's 

intent and concept of operations; 10 tasks requiring early initiation; and a summary ofthe 10 concept of 

support and 10 objectives. Finally, the staff refines the approved COA and issues an operations order or 

operations plan (OPORD/OPLAN). See generally id. paras. 5-12 to 5-130. Joint 10 doctrine is similar to 

the Army process described above. See JOINT PUB. 3-13, supra note 232, ch. V. 

244 According to joint doctrine, a principle oftargeting is that it is "effects-based." "To contribute to the 

achievement ofthe JFC's objectives, targeting is concerned with the creation ofspecific desired effects 

through target engagement. Target analysis considers all possible means to create desired effects, drawing 

from all available capabilities. The art of targeting seeks to create desired effects with the least risk and 

expenditure oftime and resources." JOINT CHIEFS OF STAFF, JOINT PUB. 3-60, JOINT TARGETING 1-8 (13 

Apr. 2007) [hereinafter JOINT PUB. 3-60]. See also U.S. DEP'T OF ARMY, FIELD MANUAL 6-0, MISSION 

COMMAND: COMMAND AND CONTROL OF ARMY FORCES para. 6-105 (11 Aug. 2003). 

245 In the "decide" phase, target categories are identified for engagement. Fire support, intelligence, and 

operations personnel decide what targets to look for, where they can be found, who can locate them, and 

how they should be attacked. The "detect" phase is designed to acquire the targets selected in the decide 

phase: target acquisition assets and agencies execute the intelligence collection plan and focus on specific 

areas of interest. JOINT PUB. 3-60, supra note 244, app. B, para. 2(c). 

246 Memorandum, Captain Noah V. Malgeri, Current Operations Cell, Office ofthe Staff Judge Advocate, 

V Corps, to Colonel Marc Warren, Staff Judge Advocate, V Corps, para. 6 (15 May 2004) (comments from 

Captain Arby Nelson, Office ofthe Staff Judge Advocate, V Corps representative to the V Corps 10 Cell). 

247 101st ABN DIV 2007 OIF AAR, supra note 73, at 16. 

71 
Judge Advocates in both Afghanistan and Iraq also provided legal advice to other 

10 actors, such as psychological operations (PSYOP) teams, public affairs (PA) officers, 

and CA personnel. To do so, they had to understand both the 10 planning process and 

the legal issues involved. 

The PSYOP representative in an 10 cell or working group integrates, coordinates, 

de-conflicts, and synchronizes the use of PSYOP with other 10 tools and missions. Judge 

Advocates must assist PSYOP representatives by reviewing PSYOP themes and products 

for legal issues.248 During the initial phase ofOIF, PSYOP missions included operations 

planned to convey selected information to influence enemy combatants and the civilian 

population. Judge Advocates reviewed leaflet messages and messages to for broadcast 

over loudspeakers.249 A pre-D-day 10 objective was to convince Iraqi soldiers not to 

fight and urge units to capitulate using, among other products, leaflet drops.250 To meet 

this objective, commanders expected their JAs to be the primary point of contact for all 

capitulation issues, to include securing capitulation agreements and ensuring that units 

complied with capitulation instructions. Additionally, JAs anticipated a successful 10 

campaign would result in a greater number ofindividual surrenders. These would then 

require additional legal advice on detention operations and treatment of enemy prisoners 

of war (EPWs). In one case, an EPW volunteered to tape a message for broadcast to the 

248 See generally JOINT CHIEFS OF STAFF, JOINT PUB. 3-53, DOCTRINE FOR JOINT PSYCHOLOGICAL 

OPERATIONS (5 Sept. 2003); U.S. DEP'T OF DEFENSE, DIR.S-3321.1, OVERT PSYCHOLOGICAL OPERATIONS 

CONDUCTED BY THE MILITARY SERVICES IN PEACETIME (26 July 1984); JOINT CHIEFS OF STAFF, INSTR. 

311 0.05D, JOINT PSYCHOLOGICAL OPERATIONS SUPPLEMENT TO THE JOINT STRATEGIC CAPABILITIES PLAN 

FY2006 (8 Nov. 2007);U.S. DEP'T OF ARMY, FIELD MANUAL 3-05.30, PSYCHOLOGICAL OPERATIONS (15 

Apr. 2005); U.S. DEP'T OF ARMY, FIELD MANUAL 3-05.302, TACTICAL PSYCHOLOGICAL OPERATIONS 

TACTICS, TECHNIQUES, AND PROCEDURES (15 Apr. 2005) [hereinafter FM 3-05.302]. 

249 See generally Gordon Interview, supra note 11. A good example of problems that may occur when 

dropping leaflets over a wide area is explained by Captain Charles L. "Jack" Pritchard, Jr., 1st Brigade 

Combat Team, 3d Infantry Division. Captain Pritchard writes that when he went to the unit EPW cage, he 

discovered that most ofthe individuals were people in civilian clothes who had "surrendered" because they 

were confused by leaflets that PSYOP had dropped on the city and believed that the Americans wanted 

them to come out oftheir homes and surrender. Judge Advocate Narrative, 1st Brigade Combat Team, 3d 

Infantry Division 6 (2003) [hereinafter JA Narrative]. In addition, before raiding a hospital where Iraqi 

enemy forces held personnel from the 507th Maintenance Company, TF Tarawa PSYOP personnel 

announced over loudspeakers that the raid was about to begin and that medical personnel should come out. 

See TF Tarawa 2003 OIF AAR Conference Transcript, supra note 235, at 104-05. At least one review of 

PSYOP operations during combat in Iraq concluded that the United States and Britain had "considerable 

success" in developing PSYOP products that caused inaction among the Iraqi military and helped expedite 

surrenders. The PSYOP effort involved 58 EC-130E Commando Solo sorties, 306 broadcast hours of 

radio, and 304 television hours. Teams prepared approximately 108 radio messages and over 80 different 

leaflets. During combat operations, coalition forces flew over 150 leaflet missions, dropping nearly 32 

million leaflets. See ANTHONY H. CORDESMAN, THE IRAQ WAR: STRATEGY, TACTICS, AND MILITARY 

LESSONS 511-12 (2003); ASSESSMENT AND ANALYSIS DIVISION, U.S. AIR FORCE CENTRAL COMMAND, 

OPERATION IRAQI FREEDOM - By THE NUMBERS 8 (30 Apr. 2003). 

250 See generally 3d Infantry Division (Mechanized), After Action Report, Operation IRAQI FREEDOM, at 

269 (2003) [hereinafter 3ID 2003 OIF AAR] (stating that during the pre-war phase, 10 consisted of e-mail 

and leaflet drops, but that the leaflet drops, in particular, were negated when they were collected and those 

who read them were punished). 

72 
Iraqi people stating that u.s. forces were not in Iraq to kill them. Fortunately, the unit's 

intelligence officer knew to obtain an opinion from his JA.251 

PSYOP issues encountered in Afghanistan included determining whether placing 

a price upon an enemy's head was proper, and whether the bodies ofTaliban fighters 

could be disposed of through cremation. As a result of these and other issues, 10th 

Mountain Division (Light Infantry) (lath MTN DIV) JAs prepared a PSYOP and LOW 

briefing and information paper for dissemination to PSYOP personne1.252 

Judge Advocates assigned to support 10 may also be required to advise PA and
 

CA representatives. Many deployed SJAs have advocated assigning a senior captain to
 

assist in integrating the PA and CA missions. During OIF, PA supported 10 through
 

print and electronic products, news releases, press conferences, and media facilitation?53
 

Combat camera teams showed the Iraqi people that Coalition forces were not looting the
 

country and were in fact providing humanitarian aid. Moreover, when the Iraqi
 

information minister claimed that u.s. troops were nowhere near Baghdad, combat
 

camera footage ofU.S. troops in Baghdad showed this was untrue.254 Legal support to
 

PA may also involve assisting with embedded media.
 

Like the PSYOP representative, the CA representative to the 10 cell must 

synchronize CA activities with the 10 mission and themes.255 In both OIF and OEF, CA 

missions positively influenced the local population, and JAs assisted in their planning and 

execution - in particular as major combat operations wound down and stability 

251 JA Narrative, supra note 249, at 6. Captain Jack Pritchard, lBCT JA, writes that, after discussion with 

his SJA, he found little issue with this, as the identity of the EPW would remain undisclosed and there 

would be no public humiliation or risk of harm. "The only issue ... raised was the [Geneva] Conventions' 

prohibition on using EPWs against their own military. As this prohibition was intended to prevent the 

unwilling use ofEPWs against their own military as fighting soldiers, [they] agreed the use of the EPW's 

voice would not violate the prohibition." Id. See GC, supra note Ill, art. 130 (providing that it is a grave 

breach ofintemationallaw to compel an EPW to serve in the forces ofthe hostile power); id. art. 13 

(providing that EPWs must be protected against insults and public curiosity). See also U.S. DEP'T OF 

ARMY, REG. 190-8, ENEMY PRISONERS OF WAR, RETAINED PERSONNEL, CIVILIAN INTERNEES AND OTHER 

DETAINEES, para. 2-I(d) (1 Oct. 1997) ("Prisoners may voluntarily cooperate with PSYOP personnel in the 

development, evaluation, or dissemination ofPSYOP messages or products."). See generally Major Joshua 

E. Kastenberg, Tactical Level PSYOP and MlLDEC Information Operations: How to Smartly and 

Lawfully Prime the Battlefield, ARMY LAW., July 2007, at 61 (providing a legal framework for legal 

oversight ofthe planning and execution oftactical level PSYOP and MILDEC operations). 

252 10th MTN DIY 2007 OEF AAR, supra note 71 (noting that, while cremation was not prohibited by the 

LOW, it was contrary to Muslim traditions, and therefore should be avoided). 

253 Because CA brigades and battalions have a very top-heavy rank structure, with senior field grade 

officers filling most ofthe decision-making slots, it may require a JA in the grade of at least 04 to 

effectively influence and coordinate such matters. . 

254 See generally 3ID 2003 OIF AAR, supra note 250, at 269 (stating that during the pre-war phase, 10 

consisted of e-mail and leaflet drops, but that the leaflet drops, in particular, were negated when they were 

collected and those who read them were punished). 

255 FM 3-05.302, supra note 248, para. 1-28. 

73 
operations began.256 Judge Advocates also helped CA personnel to liaise with the local 

population, as well as the many international and non-governmental organizations that 

operated in both Afghanistan and Iraq. 

Finally, JAs play another crucial role that people often overlook or ignore. Legal 

teams assist the 10 mission through carrying out their own missions, such as paying 

claims and compensating Iraqis for requisitioned property. As the 82d Airborne Division 

SJA observed: "JAs aggressively pursued and investigated foreign claims under the 

Foreign Claim Acts (FCA) in order to effectuate the purpose of the FCA. This 

engendered support from the local populace for US forces in spite of activities which 

resulted in loss to locals ....,,257 Judge Advocates similarly investigated payments for 

private property requisitioned during combat operations. 

Legal teams must recognize how their own missions contribute to the 10 

campaign, and need to ensure their integration into the overall 10 planning process. They 

should appear as tasks that contribute to a specific objective in the 10 campaign, and be a 

part of the 10 plan briefing to the commander. Incorporating legal tasks into the 10 plan 

will serve to highlight how the legal team's work contributes to the overall unit mission 

and educate other staff members. 

256 S d ee, e.g., 82 ABN DIV 2003 OIF AAR, supra note 235, at 2. 

257Id. 

74 
LJ. INTELLIGENCE ISSUES 

Because most deployed task forces will have significant non-organic intelligence 

assets, JAs must be prepared to advise on intelligence issues during operational 

deployments. This will include advising counterintelligence (CI) units about limitations 

on information collection and searches ofD.S. persons?S8 Applicable directives and 

regulations generally prohibit physical surveillance ofD.S. persons abroad to collect 

foreign intelligence (FI), except to obtain significant information that is not reasonably 

acquirable by other means?S9 They also limit intelligence assets in terms of conducting 260 nonconsensual searches ofD.S. persons. Judge Advocates must also be prepared to 

give advice on interrogation of detainees pending criminal trial, intelligence contingency 

funds (ICF), low-level source operations, and the role ofthe G-2X (HUMINT).261 Judge 

Advocates should be aware that providing advice in some ofthese areas, including advice 

to CI assets, requires a Top Secret security clearance. 

Four primary references govern DOD intelligence components: (1) The National 

Security Act of 1947 (establishes a comprehensive program for national security and 

defines the roles and missions of the intelligence community and accountability for 

intelligence activities);262 (2) Executive Order No. 12,333, United States Intelligence 

Activities (lays out the goals and direction of the national intelligence effort, and 

describes the roles and responsibilities of the different elements ofthe US intelligence 

community);263 (3) DOD Directive 5240.1, DOD Intelligence Activities;264 and (4) DOD 

Regulation 5240.1-R, Procedures Governing the Activities ofDOD Intelligence 

Components that affect United States Personi6S (implements the guidance contained in 

Executive Order No. 12,333 as it pertains to DOD). In addition, each Service has its own 

regulation and policy guidance.266 

258 See Exec. Order No. 12,333,3 C.F.R. 200 (Dec. 4, 1981) [hereinafter Exec. Order No. 12,333], 

amended by Exec. Order No. 13,284 (Jan 3, 2003); Exec. Order No. 13,355 (Aug. 27,2004; U.S. DEP'T OF 

DEFENSE, DIR. 5200.27, ACQUISITION OF INFORMATION CONCERNING PERSONS AND ORGANIZATIONS NOT 

AFFILIATED WITH THE DEPARTMENT OF DEFENSE (7 Jan. 1980); U.S. DEP'TOF DEFENSE, REG. 5240.1-R, 

PROCEDURES GOVERNING THE ACTIVITIES OF DOD INTELLIGENCE COMPONENTS THAT AFFECT UNITED 

STATES PERSONS (Dec. 1982) [hereinafter DOD REG. 5240.1-R]. 

259 Exec. Order No. 12,333, supra note 258, para. 2.4(d); U.S. DEP'T OF ARMY, REG. 381-10, U.S. ARMY 

INTELLIGENCE ACTIVITIES para. 9(3) (3 May 2007) [hereinafter AR 381-10]. 

260 Exec. Order No. 12,333, supra note 258, paras. 2.4(b), 2.5; AR 381-10, supra note 259, para. 7(2). 

261 See generally OPLAW HANDBOOK 2008, supra note 3, ch. 6 (summarizing legal framework applicable 

to intelligence law and interrogation operations). 

262 50 U.S.C. § 401-441d. 

263 Exec. Order No. 12,333, supra note 258. 

264 U.S. DEP'T OF DEFENSE, DIR. 5240.01, DOD INTELLIGENCE ACTIVITIES (27 Aug. 2007) [hereinafter 

DOD DIR. 5240.01]. 

265 DOD REG. 5240.1-R, supra note 258. 

266 See, e.g., AR 381-10, supra note 259. 

75 
These authorities establish the operational parameters and restrictions under 

which DOD intelligence components may collect, produce, and disseminate FI and CI. 

Implicit in this authorization, by the definitions of FI and CI, is a requirement such 

intelligence relate to the activities of international terrorists or foreign powers, 

organizations, persons, and their agents. When DOD intelligence components are 

conducting PI or CI, the intelligence oversight rules apply. The DOD established these 

rules in accordance with Executive Order No. 12,333, and they are set out in DOD 

Directive 5240.1 and DOD Regulation 5240.1-R. The intelligence oversight rules apply 

to all DOD intelligence components267 and govern the collection, retention, and 

268 dissemination ofinformation concerning U. S. persons. Protecting the constitutional 

rights and privacy ofU.S. persons has special emphasis, so the intelligence oversight 

rules generally prohibit acquisition of information concerning their domestic activities,z69 

DOD Regulation 5240.1-R is divided into fifteen separate procedures governing 

the collection, retention, and dissemination of intelligence. Collection ofinformation on 

U.S. persons must be necessary to the functions ofthe DOD intelligence component 

concerned.27o Procedures 2 through 4 provide the sole authority by which DOD 

components may collect, retain, and disseminate information concerning U.S. persons. 

Procedures 5-10 set forth guidance with respect to the use of certain collection techniques 

to obtain information for FI and CI purposes. Procedures 11 through 15 govern other 

aspects of DOD intelligence activities, including the oversight of such activities. 

DOD non-intelligence components may acquire information concerning the 

activities of persons and organizations not affiliated with the DOD only in the limited 

circumstances authorized by DOD Directive 5200.27, Acquisition ofInformation 

Concerning Persons and Organizations Not Affiliated with the Department ofDefense. 

DOD Directive 5200.27 limits the permissible types of information collected, processed, 

stored, and disseminated about the activities ofpersons and organizations not affiliated 

with DOD. Permissible circumstances include the acquisition ofinformation essential to 

accomplish DOD missions, including protection ofDOD functions and property, 

personnel security, and operations related to civil disturbances. The directive is very 

explicit and a required reference when determining authority for this activity. 

267 DOD DIR. 5240.01, supra note 264, para. 2.3 (noting that the directive does not apply to authorized law 

enforcement activities carried out by DOD intelligence components or to individuals executing law 

enforcement missions while assigned to DOD intelligence components). 

268 Judge Advocates must read these authorities before advising commanders on the collection of 

information during any operation that may entail collecting intelligence on a "U.S. person" (a U.S. citizen, 

an alien known by the intelligence agency concerned to be a permanent resident alien, an unincorporated 

association substantially composed ofU.S. citizens or permanent resident aliens, or a corporation 

incorporated in the United States, except for a corporation directed and controlled by a foreign government 

or governments). Exec. Order 12,333, supra note 258, para. 3.4(i). 

269 "Domestic activities" refers to activities that take place within the United States that do not involve a 

significant connection with a foreign power, organization, or person. DOD REG. 5240.1-R, supra note 258, 

para. C2.2.3. 

270 I d. para. C2.3. 

76 
Judge Advocates are responsible for the following during intelligence gathering 

operations: advising commanders and staffs on all intelligence law and oversight matters 

within their purview; advising on the permissible acquisition and dissemination of 

information on non-DOD affiliated persons and organizations; recommending legally 

acceptable courses of action; establishing, in conjunction with the senior intelligence 

officer (J-2/G-2/S-2/N-2) and the Inspector General, an intelligence oversight program 

that helps ensure compliance with applicable law and policy; reviewing all intelligence 

plans, proposals, and concepts for legality and propriety; and training members of the 

command who are engaged in intelligence activities on all laws, policies, treaties, and 

agreements that apply to their activities. 

As one recent AAR observed, intelligence law issues may arise during
 

deployments in a wide range of areas:
 

Intel Law issues cross into Detention and Interrogation Ops, Medical treatment of 

prisoners, Force Protection issues, sensitive investigations, ICF Fiscal issues, a 

full range of Intel Collection and HUMINT issues, concealed monitoring of 

individuals and communications, JTF support, to name a few. The governing 

legal authorities are disparate and usually have a combination of Cold War era 

statute and regulation governing old disciplines, but even the newer statutes and 

regulations often haven't "caught up" with the new Intel collection capabilities 

and disciplines. It is a complicated area ofthe law, where violations and/or 

failure to report known violations (the essence ofIntel Oversight programs), are 

often 18 U.S.C. criminal offenses. 271 

Because of the potentially consequences severe consequences of failing to act in 

accordance with the regulatory structure, this OSJA suggested that: 

If the deploying HQ element does not have Intel Law expertise deploying with 

the Forward Body, they should consider requesting assistance from HQ, 

USAINSCOM at Fort Belvoir. If an INSCOM Judge Advocate is not available, . 

. . Military Intelligence Readiness Command (MIRC) recently stood up at 

INSCOM. The MIRC mission is to synchronize and coordinate USAR Military 

Intelligence support in worldwide operations. There are full-time Judge 

Advocates assigned at the MIRC, plus they have tabs on USAR members who 

could augment the deploying HQ element for Intel Law needs. 272 

271 V Corps 2006 OIF AAR, supra note 150, at 22-23. Perhaps in response to such observations, DOD 

REo. 5240-1-R is now being revised. See Memorandum, Deputy Secretary of Defense, to Secretaries of the 

Military Departments, subject: Intelligence Oversight Policy Guidance (26 Mar. 2008) (indicating that a 

revision of DOD REO. 5240.1-R is underway, and that the offices and staffs of the senior intelligence 

officers of the combatant command headquarters, effective immediately, are designated as defense 

intelligence components and granted the authorities and responsibilities assigned to defense intelligence 

components under DOD REo. 5240.1-R). 

272 Id. The International & Operational Law Division of the Office of the Judge Advocate General 

(OTJAG) may also be contacted for assistance in the interpretation ofDOD Reg. 5240.1-R andAR 381-10, 

as well as questions concerning legal review of intelligence operations. 

77 
Deployed lAs have also had to deal with ensuring the use of informants does not 

run afoul ofregulatory prohibitions against running sources, although the line between 

asking an informant to collect information and tasking a source - the responsibility of a 

tactical HUMINT team - is sometimes difficult to discern.273 An additional issue raised 

during deployed operations is the framework for sharing intelligence or merely classified 

information with other nations or organizations. For example, U.S.-Afghan cooperation 

on detainees required the transfer of information to Afghan government officials. In that 

case, declassifying and releasing the information required lA involvement. 274 

[See also INTERNATIONAL & OPERATIONAL LAW(Detention Operations) and 

DOMESTIC & DOMESTIC SUPPORT OPERATIONS (Homeland Defense).] 

273 !d. 

274 CSTC-A Legal Advisor 2007 OEF AAR, supra note 71, at 9. But see JOINT CHIEFS OF STAFF, INSTR. 

5221.01B, DELEGATION OF AUTHORITY TO COMMANDERS OF COMBATANT COMMANDS TO DISCLOSE 

CLASSIFIED MILITARY INFORMATION TO FOREIGN GOVERNMENTS AND INTERNATIONAL ORGANIZATIONS (1 

Dec. 2003) (C1, 13 Feb. 2006). 

78 
LK. INTERNATIONAL AGREEMENTS & SOFAS 

International agreements prescribe the rights, duties, powers, and privileges of 

nations relative to particular undertakings. Judge Advocates have often found themselves 

with the responsibility to negotiate international agreements, determine their 

applicability, or implement or ensure compliance with them. Recent missions in Bosnia, 

Kosovo, and Afghanistan have operated under the terms of international agreements. For 

JAs deploying into mature theaters, the most important international agreements are often 

status of forces agreements (SOFAs), followed by logistic support agreements, such as 

acquisition and cross servicing agreements (ACSAs). However, multinational operations 

have also required JAs to become familiar with treaties that limit or affect actions by 

multinational partners. When helping to negotiate international agreements, JAs must be 

familiar with applicable DOD and service policies. For example, only certain individuals 

have authority to negotiate and conclude certain categories of international agreements.275 

LK.l. Peace Agreements 

Missions in Bosnia, Kosovo, and Afghanistan have operated under the terms of 

international peace agreements. On November 21, 1995, the Presidents of Croatia, 

Serbia, and Bosnia initialed the Dayton Peace Accords (DPA), also known as the General 

Framework for Peace in Bosnia and Herzegovina (GFAP).276 The GFAP and its military 

annex defined the roles and responsibilities of the parties and the multinational force, and 

included the following: 

•	 broad justification for the use of force 

•	 specific timelines for action 

•	 new terms of art such as zone of separation (ZOS) and inter-entity boundary 

line (IEBL) 

•	 status of various police forces and other organizations 

•	 rules on the withdrawal, demobilization, and control of forces and weapons 

•	 instructions on freedom of movement for IFOR 

•	 mandate for Joint Military Commissions 

•	 directives on the release of prisoners 

•	 SOFAs between NATO and Croatia and NATO and Bosnia 

275 See U.S. DEP'T OF DEFENSE, DIR. 5530.3, INTERNATIONAL AGREEMENTS para. E2.1.1. (11 June 1987) 

(Cl, 18 Feb. 1991) [hereinafter DOD DIR. 5530.3]; JOINT CHIEFS OF STAFF, INSTR. 2300.0lD, 

INTERNATIONAL AGREEMENTS (5 Oct. 2007); U.S. DEP'T OF ARMY, REG. 550-51, INTERNATIONAL 

AGREEMENTS (2 May 2008) [hereinafter AR 550-51]. See generally Mr. Geoffrey Com & Colonel James 

A. Schoettler, Jr., Bringing International Agreements Out ofthe Shadows: Confronting the Challenges ofa 

Changing Force, ARMY LAW., July 2005, at 41 (suggesting AR 550-51 changes and providing a primer on 

the essential aspects of providing legal support to the international agreements process); Colonel James A. 

Schoettler, Jr., Lieutenant Colonel Eric T. Jensen, & Tyler L. Davidson, Updating Army Regulation 550-51 

to Meet the Needs ofthe Army's Evolving Mission, ARMY LAW., Sept. 2007, at 7 (expanding upon the AR 

550-51 changes proposed in the 2005 article). 

276 GFAP, supra note 21. 

79 
Judge Advocates provided advice on every aspect of the GFAP. The oft-cited 

"silver bullet clauses" in UNSCR 1031 and the GFAP should be considered for inclusion 

in future peace agreements. 277 

Similarly, a Military Technical Agreement (MTA) between NATO and the 

governments of the Federal Republic of Yugoslavia (FRY) and the Republic of Serbia 

provided the framework for the peace enforcement mission in Kosovo. The parties 

signed the agreement on June 9, 1999, and it provided for a multinational force (KFOR) 

to implement the military aspects of the peace agreement. The MTA provided the KFOR 

Commander with authority to take all action necessary to establish and maintain a secure 

environment for all citizens of Kosovo. Broad interpretation of this clause, originally 

intended for use against uncooperative FRY and Serb forces, provided the KFOR 

Commander with the flexibility necessary to address a multitude of problems. These 

included Kosovar Albanian violence and, in the absence of a functioning police service, 

detention of criminals, particularly when local judges inexplicably ordered their release in 

contravention of the evidence. 

The International Security Assistance Force (ISAF) also operates in Afghanistan 

pursuant to international agreements. Sponsored by the UN, Afghan factions opposed to 

the Taliban met in Bonn, Germany in December 2001 and agreed on a political process to 

restore stability and governance to Afghanistan. The meetings produced the Bonn 

Agreement, under which an Afghan Interim Authority (AlA) formed and took office in 

Kabul on 22 December 2001.278 In June 2002, the Interim Authority gave way to a 

Transitional Authority headed by now-President Karzai. The Bonn Agreement also 

included a request to the UN Security Council to consider sending a UN-mandated force 

to Afghanistan. 279 The Council acted on the request by adopting UNSCR 1386, 

authorizing the ISAF presence under Chapter VII ofthe UN Charter.28o The ISAF 

mandate includes taking "all necessary measures" to create a secure environment in 

Kabul and its surrounding areas.

281 The ISAF area of operations has since expanded to 

include all of Afghanistan. The Bonn Agreement objectives are complete, but ISAF 

continues to operate under a Military Technical Agreement (MTA) concluded with the 

277 GFAP Annex I-A authorized the IFOR to: 

[T]ake such actions as required, including the use of necessary force, to ensure 

compliance with this annex and to ensure its own protection .... The parties understand 

and agree that the IFOR Commander shall have the authority, without interference or 

permission of any Party, to do all the Commander judges necessary and proper, including 

the use of military force, to protect the IFOR and to carry out the responsibilities listed 

above ... , and they shall comply in all respects with the IFOR requirements. 

GFAP, supra note 21. 

278Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent 

Government Institutions, Dec. 5,2001,41 LL.M. 1032 [hereinafter Bonn Agreement], available at 

http://www.un.orglNews/dh/latest!afghan/afghan-agree.htm. 

279 Id. 

280 S.C. Res. 1386, U.N. Doc. SlRESI1386 (Dec. 20, 2001) [hereinafter S.C. Res. 1386]. 

281 Id. paras. 1,3. 

80 
AlA in January 2002.282 When NATO subsequently assumed responsibility for the ISAF 

mission, it signed an exchange of letters with the Afghan government, confirming the 

MTA's provisions continued to apply to the NATO-led ISAF. 

LK.2. Agreements Governing the Conduct ofHostilities 

Prior to deployment, JAs must ensure commanders understand the implications of 

treaties to which the United States and/or its multinational partners are parties. 

Child Soldiers 

On 23 January 2003, the Optional Protocol on the Involvement of Children in 

Armed Conflict (the Child Soldier Protocol) entered into force in the United States.283 

The Child Solder Protocol requires parties to "take all feasible measures to ensure that 

members oftheir armed forces who have not attained the age of eighteen years do not 

take a direct part in hostilities.,,284 The Senate ratified the protocol subject to certain 

understandings regarding the definitions of "feasible measures" and "direct part in 

hostilities." "Feasible measures" means those that are practical or practically possible, 

taking into account all the circumstances ruling at the time, including humanitarian and 

military considerations; "direct part in hostilities" means immediate and actual action on 

the battlefield likely to cause harm to the enemy because there is a direct causal 

relationship between the activity engaged in and the harm done to the enemy, and does 

not mean indirect participation in hostilities (e.g., forward deployment, gathering and 

transmitting military information, or transporting weapons, munitions, or other 

supplies).285 

282 Military Technical Agreement Between the International Security Assistance Force (ISAF) and the 

Interim Administration ofAfghanistan, Jan. 4, 2002, 41 LL.M. 1032, available at 

http://www.operations.mod.uk/isafmta.pdf. 

283 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in 

Armed Conflict, July 5, 2000, S. Treaty Doc. No. 106-37,39 LL.M. 285. Former President William 1. 

Clinton signed the protocol on 5 July 2000; the Senate gave its advice and consent to ratification on 18 June 

2002; the State Department deposited it with the UN Secretary-General on 23 December 2002 and, 

according to article 10.2 of the protocol, it entered into force thirty days after the date of deposit. 

2841d. art. 1. The protocol also provided that a state party permitting voluntary recruitment into their 

national armed forces under the age of 18 must maintain safeguards to ensure that: 

(a) Such recruitment is genuinely voluntary; 

(b) Such recruitment is carried out with the informed consent of the person's parents or legal 

guardians; 

(c) Such persons are fully informed of the duties involved in such military service; 

(d) Such persons provide reliable proof of age prior to acceptance into national military service. 

ld. art. 3. 

285 See Executive Report of Committee, Treaty Doc. 106-37(a) Optional Protocol No.1 to Convention on 

Rights of the Child on Involvement of Children in Armed Conflict, § 2(2)(A), 2(2)(B), 148 Congo Rec. 

S5454 (daily ed. June 12,2002). 

81 
Prior to 2003, the United States had deployed Soldiers under the age of eighteen 

to Afghanistan in support ofOEF. However, they were serving in combat support and 

combat service support positions, performing sustainment operations only. In early 

January 2003, in anticipation of the protocol's coming into force, DOD directed the 

services to implement a plan to ensure compliance with it. The Department ofArmy 

directed commanders to identify immediately Soldiers under the age of eighteen who 

were already serving overseas and take all "feasible measures" to ensure they did not take 

a direct part in hostilities until they turned eighteen.286 This included all underage 

Soldiers deployed in support of both OEF and Operation IRAQI FREEDOM (OIF). 

These Soldiers immediately moved into positions at the brigade level that would not 

involve them in direct combat.287 For future deployments, legal personnel must be aware 

of the Child Soldier Protocol and resulting U.S. obligations. Moreover, they need to 

ensure that commanders, with the support of adjutants and personnel specialists, identify 

Soldiers who are under the age of eighteen and comply with implementing service 

policy.288 

Anti-Personnel Landmines (APL) 

The key international legal document concerning anti-personnellandmines (APL) 

is the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of 

Anti-Personnel Landmines and on Their Destruction (Ottawa Treaty)?89 The Ottawa 

Treaty prohibits states parties from developing, producing, acquiring, stockpiling, 

retaining or transferring APL, either directly or indirectly, and from assisting, 

encouraging or inducing any of these prohibited activities?90 Most major multinational 

partners have ratified it,291 but the United States is not a party and does not consider the 

Ottawa Treaty to be customary international law. Rather, the United States is subject to 

the provisions of Amended Protocol II to the Certain Conventional Weapons 

286 See Message, 211720Z Jan 03, Deputy Chief of Staff, G-I, subject: Implementation of Army 

Procedures to Comply with Child Soldiers Protocol (Age 18 Standard for Participation in Combat) 

(providing that on 16 Jan. 2003 the Principal Deputy Under Secretary of Defense (Personnel & Readiness) 

directed the services to implement their plans to ensure compliance with the Child Soldier Protocol). 

287 Information Paper, 3d Infantry Division, subject: Seventeen Years Old (l7yo) [sic] Servicemembers 

participating in Direct Combat, para. 4 (8 Feb. 2003). 

288 Major John T. Rawcliffe, Child Soldiers: Legal Obligations and us. Implementation, ARMY LAW., 

Sept. 2007, at I. 

289 Convention on the Prohibition ofthe Use, Stockpiling, Production and Transfer ofAnti-Personnel
 

Landmines and on Their Destruction, Sept. 18, 1997,36 LL.M. 1507 [hereinafter Ottawa Treaty].
 

290 Id. art 1(1). The treaty defines "anti-personnel mine" as a mine designed to be exploded by the
 

presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons.
 

Mines designed to be detonated by the presence, proximity, or contact ofa vehicle, as opposed to a person,
 

that are equipped with anti-handling devices, are not considered anti-personnel mines as a result of being so
 

equipped. Id. art 2.
 

291 As of 18 November 2007, there were 156 states parties, including Afghanistan and Iraq (for current
 

statistics see http://www.icbl.org/treaty/).
 

82 
Convention292 and domestic policy,293 which restricts rather than prohibits APL use. As a 

result, the United States could employ APL during OEF and OIF, but most Coalition 

partners could not. 

[See also MULTINATIONAL OPERATIONS (Weapons).] 

Blinding Lasers 

The fourth protocol to the United Nations Convention on Prohibitions or 

Restrictions on the Use of Certain Conventional Weapons which May be Deemed to be 

Excessively Injurious or to Have Indiscriminate Effects, also known as the United 

Nations Convention on Conventional Weapons (UNCCW), prohibits the use of blinding 

laser weapons. The United States is not a party to this protocol, but has fully 

implemented it; U.S. forces have no laser weapons specifically designed to cause 

permanent blindness to unenhanced vision. Devices such as range finders, target 

designators, or non-lethal weapons such as dazzlers are not blinding laser weapons, as 

Protocol IV defines blinding laser weapons as "weapons specifically designed, as their 

sole combat function or as one oftheir combat functions, to cause permanent blindness to 

unenhanced vision, that is to the naked eye or to the eye with corrective eyesight 

devices".294 

Cluster Munitions 

Many multinational partners have indicated their intention to sign the text of a 

draft convention on cluster munitions, agreed to at a May 2008 meeting in Dublin.295 

Similar to the Ottawa Convention on APL, this will ban all use of cluster munitions. 

Although the United States is unlikely to sign the convention, DOD has taken steps to 

restrict U.S. use of cluster munitions.296 As well, lAs should be aware ofthe 

convention's impact upon multinational partners who do become parties.297 

292 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be 

Deemed to be Excessively Injurious or to Have Indiscriminate Effects (and Protocols), 10 October 1980, 19 

I.L.M. 1523 [hereinafter UNCCW]; Protocol On Prohibitions or Restrictions on the Use of Mines, BoobyTraps and Other Devices, 10 Oct. 1980, 19 I.L.M. 1529 [hereinafter Protocol II] (ratified by the United 

States on 24 May 1999). 

293 The policy initially in effect during OEF and OIF was President William Jefferson Clinton, Statement at 

the White House (16 May 1996) available in LEXIS, News library, ARCNWS file. The current U.S. policy 

is outlined in U.S. DEP'T OF STATE, LANDMINE POLICY WHITE PAPER (27 Feb. 2004), available at 

http://www.state.gov/t/pmirls/fs/30047.htm. 

294 Amended Protocol IV to the 1980 Convention art. 1, Oct. 13, 1995,35 I.L.M. 1218 (ratified by the 

United States on 24 May 1999). See also Richard B. Jackson & Jason Ray Hutchison, Lasers Are Lawful 

as Non-Lethal Weapons, ARMY LAW., Aug. 2006, at 12. 

295 The convention will be open for signature as of December 2008. 

296 Memorandum, Secretary of Defense, to Secretaries ofthe Military Departments, subject: DoD Policy 

on Cluster Munitions and Unintended Harm to Civilians (13 June 2008). 

297 This may not be significant, as NATO, for example, does not currently use cluster munitions in any of 

its operations, and the draft text was in any case amended to allow parties to "engage in military 

83 
Riot Control Agents (RCAs)
 

The key document affecting the use of riot control agents (RCAs) is the Chemical 

Weapons Convention (CWC), which prohibits their use "as a method of warfare," but 

does not define "method of warfare.,,298 The United States is a party to the CWC, as are 

all its major multinational partners.299 The United States is also a party to the 1925 Gas 

Protocol, but asserts that RCAs are not chemicals as defined by it.300 Judge Advocates 

must also be familiar with Executive Order No. 11,850 and the accompanying documents 

that provide the principal foundation for DOD use of RCAs and in particular the question 

of permissions or restrictions concerning the use ofpepper spray and CS (teargas).301 

The U.S. policy on its CWC obligations is contained in classified and unclassified 

documents.302 The type of operation planned affects the authorization for RCA 

employment. The U.S. RCA policy distinguishes between war and military operations 

other than war, and between offensive and defensive use in war. Use of riot control 

agents may be permissible during armed conflicts, if permission the chain of command 

has granted permission to do SO.303 For example, there have been authorizations for RCA 

cooperation and operations with States not parties to the Convention that might engage in activities 

prohibited to a State party." Commander (Navy) James Orr, Draft Convention for Cluster Munitions, 

NATO LEGAL GAZETTE, 15 July 2008, 19-20. 

298 CWC, supra note 1, art. 1(5). The President's CWC certification document of25 April 1997 states that 

the United States is not restricted by the CWC in its use of RCAs in peacetime and during peacekeeping 

operations, as these are circumstances in which the United States is not engaged in the use of force of a 

scope, duration, and intensity that would trigger the laws ofwar with respect to U.S. forces. OPLAW 

HANDBOOK 2008, supra note 3, at 19. For a good general discussion ofthe issues surrounding RCA use, 

see BARBARA H. ROSENBERG, RIOT CONTROL AGENTS AND THE CHEMICAL WEAPONS CONVENTION (2003) 

available at http://www.fas.orglbwc/papers/rca.pdf; Major Ernest Harper, A Callfor a Definition of 

"Method ofWarfare " in Relation to the Chemical Weapons Convention, 48 NAVALL. REv. 132 (2001). 

299 The CWC has been ratified by 182 states. Non-signatories include Angola, Iraq, North Korea, Syria, 

Lebanon, Somalia, and Egypt. See http://www.opcw.org (last visited July 1,2008). 

300 The 1925 Geneva Protocol for the Prohibition ofthe Use in War ofAsphyxiating, Poisonous or Other 

Gases, and of Bacteriological Methods ofWarfare, June 17, 1925,26 U.S.T. 571, T.I.A.S. No. 8061 

[hereinafter Gas Protocol]. The Gas Protocol bans the use of "asphyxiating, poisonous, or other gases, and 

all analogous liquids, materials, and devices" during war. The United States is a party to this treaty, but 

asserts that neither herbicides nor riot control agents (RCA) are chemicals, as defined by the Gas Protocol. 

See Exec. Order No.ll,850, 40 Fed. Reg. 16,187 (Apr. 8, 1975) [hereinafter Exec. Order No. 11,850] 

(stating U.S. policy on the use of chemical, herbicides, and RCAs, and setting out rules on the use of 

chemical weapons and herbicides). 

301 See OEF/OIF LL, Vol. II, supra note 89, at 145. 

302 Exec. Order No. 11,850, supra note 300; Memorandum, White House, to the Secretary for Defense, 

subject: Use of Riot Control Agents to Protect or Recover Nuclear Weapons. (10 Jan. 1976). 

303 COMBINED JOINT CHIEFS OF STAFF, INSTR. 3110.07C, GUIDANCE CONCERNING CHEMICAL, BIOLOGICAL, 

RADIOLOGICAL, AND NUCLEAR DEFENSE AND EMPLOYMENT OF RIOT CONTROL AGENTS AND HERBICIDES 

(22 Nov. 2006) (providing guidance to the combatant commanders for preparing and coordinating plans to 

conduct nuclear, biological, and chemical (NBC) defense, and for the use of RCAs and herbicides). 

84 
use in both OEF and 01F. 304 The types of circumstances where approval is possible 

include: 

•	 to control rioting enemy prisoners ofwar; 

•	 to reduce or avoid civilian casualties, where enemy forces use civilians to 

mask or screen attacks; 

•	 during rescue missions for downed aircrew and passengers and escaping 

pnsoners; 

•	 in rear echelon areas to protect convoys from civil disturbances, terrorists and 

paramilitary activities; and 

•	 for security operations for the protection or recovery of nuclear weapons.

305 

Riot control agent use is rare during military operations, but RCA issues playa 

large part in their planning and execution.306 Discussion and decisions on the use of 

RCAs usually appears within the rules of engagement (ROE). Before deployment and 

during the shaping ofthe ROE annex, lAs must clearly understand the context ofthe 

operation in which they will be participating and ask their commanders whether they 

wish to retain the option ofRCA use.

307 If so, lAs should work to request the ROE 

include authority to employ RCAs, and delegates release authority down to the suitable 

level of command. Further, to minimize the need to adjust tactics, training, and ROE in 

midstream to meet a crisis, commanders and lAs should also plan for the deployment and 

304 Nicholas Wade & Eric Schmitt, Bush Approves Use ofTear Gas in Battlefield, N.Y. TIMES, Apr. 2, 

2003, available at http://www.commondreams.org/headlines03/0402-01.htm;KerryBoyd.Military 

Authorized to Use Riot Control Agents in Iraq, ARMS CONTROL TODAY, May 2003, available at 

http://www.armscontrol.org/act/2003_05/nonlethal_may03.asp. 

305 Exec. Order No. 11,850, supra note 300. Australia has a similar viewpoint regarding RCA use during 

armed conflict: 

This does not mean riot control agents cannot be used at all in times of conflict; however, 

use ofsuch agents should be authorized by the Chief ofDefence Forces and only then in 

specific circumstances. When considering the use of riot control agents, specialist legal 

advice should be sought. Situations where the use ofriot control agents may be 

considered are: 

a. to control rioting prisoners ofwar (PWs); 

b. rescue missions involving downed aircrew or escaped PWs; 

c. protection of supply depots, military convoys and other rear echelon 

areas from civil disturbances and terrorist activities; 

d. civil disturbance where the ADF is providing aid to the civil power; 

and 

e. during humanitarian evacuations involving Australian or foreign 

nationals. 

ROYAL AUSTRALIAN AIR FORCE, OPERATIONS LAW FOR RAAF COMMANDERS, DI(AF) AAP 1003 para. 

9.16 (2d ed., 2004). 

306 See OEF/OIF LL, Vol. I, supra note 92, at 92. 

307 Ironically, RCA use is often quite a contentious issue. Anecdotal evidence is that, even when authority 

to use them exists, they are infrequently used. OEF/OIF LL, Vol. II, supra note 89, at 148. 

85 
employment of riot control measures (RCM), including RCA. 308 While MP units 

routinely train in the use ofRCM and RCA (riot/crowd control fits squarely within their 

mission set), not every infantry or logistics battalion may receive such training. Simply 

possessing the equipment does not ensure that the unit received training on its use. As a 

result, JAs should ensure units receive proper training before conducting operations 

where there is authorization for the use of RCA and RCM. 309 

Where there is RCA use authority, JAs have noted an extraordinary amount of 

time and planning effort goes into arguing over their use even though they are seldom 

used. This occurs because there are very few situations where use consistent with 

Executive Order No. 11,850 would further mission execution. However, there is never a 

shortage of proposed RCA uses clearly inconsistent with Executive Order No. 11,850. 

Arguing over these proposals often bogs down planning for missions that would likely 

receive relatively quick approval but for the arguments over RCAs. The bottom line is 

that, before wrangling over RCA use jeopardizes a planning effort entirely, JAs should 

critically examine the utility ofincluding a controversial RCA request.310 Also, take care 

when using RCAs to consider multinational partner concerns about their use, as many 

multinational partners have a different view on whether their use is permissible in 

military operations at all. 311 

During operations in the Balkans, the Supreme Allied Commander, Europe 

(SACEUR) delegated RCA release authority to the Commander, Implementation Force 

(COMIFOR), and later to the Commander, Stabilization Force (COMSFOR). Consistent 

with the SACEUR OPLAN, COMIFOR delegated RCA release authority to the 

Commander, Allied Rapid Reaction Corps (COMARRC). This meant that the 

commander of US. forces in Task Force Eagle (TFE) needed COMARRC approval to 

employ RCAs. Although this seemed simple, it was not. Executive Order No. 11,850 

required US. Presidential approval for US. Soldiers to use RCA. Yet the North Atlantic 

Council (NAC) had approved the IFOR ROE providing for RCA use. The question was 

whether NAC approval of IFOR ROE equated to Presidential approval of RCA use under 

Executive Order No. 11,850. This was unresolved through most of Operation JOINT 

ENDEAVOR, but ultimately, TFE Commanders, with specific COMSFOR approval, 

could utilize RCAs. 312 

[See also MULTINATIONAL OPERATIONS (Weapons) and INTERNATIONAL & 

OPERATIONAL LAW (Law ofWarlNonlethal Weapons).] 

308 RCMs include such tools as batons, shields, tear gas, pepper spray, rubber bullets, water cannons, etc. 

See BALKANS LL, supra note 26, at 70. 

309Id 

310 See OEF/OIF LL, Vol. II, supra note 89, at 145. 

311 For example, the UK view is that the CWC totally prohibits RCA use during an armed conflict. 

312 BALKANS LL, supra note 26, at 70. 

86 
LK.3. Status ofForces Agreements (SOFAs) 

Status of forces agreements (SOFAs) are international agreements between two or 

more governments that provide various privileges, immunities and responsibilities, and 

enumerate the rights and responsibilities ofindividual members of the deployed force. 

The necessity for a SOFA depends on the type of operation. Enforcement operations do 

not depend on, and may not have the consent of host nation (HN) authorities, so 

participating personnel will not necessarily have SOFA coverage, although SOFA-like 

protections may well be contained elsewhere.313 A SOFA or other international 

agreement to protect them from HN jurisdiction will cover personnel participating in 

most other operations. For example, personnel involved in UN missions typically benefit 

from special protections. In some cases, the HN grants "expert on mission" status. This 

refers to Article VI of the Convention on the Privileges and Immunities of the United 

Nations, and includes complete immunity from HN criminallaw.314 In other cases, the 

UN negotiates a SOFA-equivalent, referred to as a status of mission agreement (SOMA). 

The UN Model SOMA provides troop-contributing nations with exclusive criminal 

jurisdiction over their forces. 

During Operation UPHOLD DEMOCRACY in Haiti, as soon as the MultiNational Force (MNF) had established a secure and stable environment and the Aristide 

government had resumed power, some agreement became necessary to define the legal 

status of U.S. troops on Haitian soil. Without this, they would be subject to Haitian laws. 

These could impede their activities and frustrate the political, diplomatic, and strategic 

objectives that impelled their deployment. Yet for several reasons, rapid conclusion of a 

comprehensive and detailed SOFA is sometimes difficult. 

First, there is often the hope that the deployment will be short in duration (as well, 

the presence of many other pressing demands on diplomatic resources tends to make 

conclusion of a SOFA a less than urgent priority)? 15 Second, the HN - if it has a 

functioning government at all- will often not have a well-developed or efficient 

apparatus with authority to negotiate and conclude agreements. Third, even if the HN is 

ready, willing, and able to become party to a SOFA, U.S. laws and regulations place 

significant though understandable constraints on who may negotiate and conclude 

313 For example, UNMIK Reg. 200/47 (KFOR); Coalition Provisional Authority (CPA) Order No. 17 

(multinational forces in Iraq, expected to be superseded in late 2008, at least as far as US. forces are 

concerned, by a bilateral agreement between the United States and Iraq). 

314 Convention on the Privileges and Immunities ofthe United Nations, Feb. 13, 1946, 1 UN.T.S. 15. 

315 For small missions of a short duration, standing authority exists for the DOD to negotiate and conclude 

simple Status of Forces Agreements that provide members ofthe contingent the same status as members of 

the technical and administrative staff ofthe US. Embassy, who are granted criminal immunity and a few 

other limited privileges by preexisting international law. See Dep't of State, Action Memorandum, Circular 

175 Procedure: Request for Blanket Authority to Negotiate and Conclude Temporary Status of Forces 

Agreements with the Sudan and Other Countries (Nov. 4, 1981) (approved by Ambassador Stoessel on 

Nov. 6, 1981) (citing Vienna Convention on Diplomatic Relations, Apr. 18, 1961, arts. 27, 29-35, 23 

US.T. 3227, 500 UN.T.S. 95). 

87 
international agreements with foreign states and how that process must occur.

316 Fourth, 

U.S. forces may be participating in a multinational force, possibly creating a need for
 

multilateral as well as bilateral instruments.
 

Despite these obstacles, Haiti and the MNF's troop contributing nations finally 

reached an agreement on the status ofthe MNF in Haiti inDecember 1994. This 

agreement covered a number of topics, including, but not limited to: MNF member state 

flag and vehicle markings; communications; travel and transport; use of Haitian facilities 

by MNF personnel; obtaining goods and services on the local economy; local hirings; 

currency; status ofMNF personnel; identification; uniforms; military police arrest; 

jurisdiction; and settlement of disputes. When this agreement - the MNF SOFA - went 

into effect, early issues that arose included whether locally hired Haitians could use the 

Post Exchange, and whether U.S. servicemembers on military flights needed to pay a $25 

departure fee to Haitian authorities.317 

Eventually, three separate agreements governed the legal status ofU.S. Soldiers in 

Haiti. The MNF SOFA defined the privileges, immunities, and responsibilities ofMNF 

personnel; a UN SOMA defined the status of Americans serving with UNMIH; and a 

bilateral agreement between the United States and Haiti governed Americans who served 

in Haiti outside the umbrella of these international forces. 318 

When advising commanders or Soldiers on legal issues in a foreign country 

without the benefit of a SOFA, appreciation of that country's legal system takes on a new 

significance. Operational lawyers in Haiti appreciated the need for legal materials on 

Haiti and resourcefully solicited them from a variety of places. However, the paucity of 

material written in English limited the extent to which JAs could become knowledgeable 

of Haitian law. The need for JAs to have such knowledge - for example in the areas of 

claims and civil affairs - is distinct from the need for troops to be aware of local laws and 

customs. Both needs, however, reaffirm the wisdom of having prior and current country 

law studies and country studies available for distribution to deploying units. 

Even when there is a SOFA, it is often critical for JAs to understand HN legal and 

military culture. Judge Advocates must be aware ofthe "conflict of laws" and have an 

understanding of the differences between civil and common law legal systems. In some 

cases, language barriers, differing government and legal systems, and different 

understandings of terms used in an agreement may cause SOFA implementation 

316 See, e.g., Case Act of 1972, Pub. L. No. 92-403, 86 Stat. 619 (codified at 1 U.S.c. § 112b); U.S. DEP'T 

OF STATE, ORC. No. 175 PROCEDURE (1974); DOD DIR. 5530.3, supra note 275; AR 550-51, supra note 

275.
 

317 Passar AAR, supra note 11, para. 6h(iv).
 

318 Note that there were other agreements between the United States and the many nations and international 

organizations represented in Haiti. See, e.g., Agreement Between the United States of America and the 

United Nations Organization Concerning the Provision of Assistance on a Reimbursable Basis in support of 

the Operations of the UN in Haiti (Sept. 19, 1994), cited in Memorandum, Captain Fred K. Ford, Chief of 

Claims & Legal Assistance, Multinational Forces Haiti, MNF-SJA, to Director of the Combined Joint Staff, 

subject: Treatment of UN Personnel at MNF Medical Facilities (16 Feb. 1995). 

88 
problems. This was the case with Partnership for Peace (PfP) countries with little 

experience in implementing SOFA or transit agreements. Such countries, recently 

emerged from the stifling Soviet bureaucracy, were unfamiliar with the way in which a 

SOFA works (e.g., terms, conditions, responsibilities).319 For example, taxes were a very 

politically sensitive issue in Hungary as, at the time the operation began, the Hungarian 

government had only dealt with taxes in the seven years since the end of the Soviet 

regime. When Operation JOINT ENDEAYOR began in Bosnia, Hungary was the first 

PfP country to deal with thousands of deployed troops and civilians within its borders 

through application of a SOFA. Lack of detailed U.S. knowledge about the workings of 

the Hungarian system made the situation more challenging. To reduce future problems, 

U.S. commands should learn about the legal and military cultures of countries in their
 

areas ofresponsibility, and inform PfP countries about the terms and conditions ofthe
 

PfP and NATO SOFAs and their respective obligations.32o
 

Even where governments are familiar with the workings of a SOFA, JAs 

deploying in support of newly established missions should anticipate lower-level 

government officials will not necessarily be aware of and familiar with applicable 

agreements. For example, a transit agreement allowing U.S. forces to move through 

Austria may not mean much to the working level customs official or border guard. 321 As 

a result, JAs should provide key advance party personnel with copies of all necessary 

agreements prior to departure. 

In some cases, however, the problem will be the lack of any SOFA. In late 1998, 

the Allied Forces Southern Europe (AFSOUTH) Headquarters was immediately 

subordinate to the Supreme Headquarters Allied Powers Europe (SHAPE).322 Upon 

deployment of a verification force (KYCC) to the Former Yugoslav Republic of 

Macedonia (FYROM), SHAPE did not authorize the AFSOUTH Deputy Legal Advisor 

(KYCC-LA) to conduct formal SOFA negotiations with FYROM authorities. However, 

the KYCC-LA was encouraged to ascertain the FYROM posture towards a SOFA as well 

as its possible provisions. Acting pursuant to this nebulous charter, the KYCC-LA was 

able to broker tentative agreements between relevant KYCC staff members and FYROM 

authorities on issues typically addressed in a SOFA, including tax exclusion, criminal and 

civil status of the members of the force and those accompanying it, communications 

frequencies, road tolls, hiring procedures, foreign claims waivers, and airport access?23 

319 See Lieutenant Colonel Pribble, comments in OJE AAR, Vol. I, supra note 16. 

320Id. See also Lieutenant Colonel Pribble & Lieutenant Colonel Thompson, comments in Operation 

JOINT ENDEAVOR After Action Review, Volume II, Heidelberg, F.R.G. (24-26 Apr. 1997) [hereinafter 

OJE AAR, Vol. II]. 

321 See the European Command Legal Advisor's comments in OJE AAR, Vol. I, supra note 16. 

322 Kosovo LL, supra note 126. 

323 Lieutenant Colonel Virginia P. Prugh, former AFSOUTH Deputy Legal Adviser, AFSOUTH After 

Action Report (10 Sept. 2001) [hereinafter AFSOUTH 2001 AAR]. 

89 
At this point, the KVCC-LA reported to the NATO Legal Advisor through 

SHAPE and AFSOUTH legal channels that all parties concerned were prepared to enter 

into a SOFA. The NATO Legal Advisor determined an exchange of letters was more 

appropriate than a single-document SOFA, and the resulting documents were signed in 

December 1998. However, the roughly two-month legal void between the arrival of the 

first KVCC elements and final signature ofthe exchange of letters led to significant 

interim problems. For example, NATO funds could not be obligated for the lease and 

construction of facilities for the contingents arriving in theater absent a formal 

324 agreement. Faced with the untenable situation of not having a signed agreement, yet 

needing to establish suitable headquarters facilities before the onset of cold weather, ad 

hoc informal agreements sprang up between NATO units and FYROM army units. The 

resulting hodgepodge of agreements lacked uniformity and failed to address many key 

billing and cost-sharing concerns, contributing to a deterioration of relations between 

NATO and several FYROM government ministries. Many considered the exchange of 

letters, when it did come, as inadequate and lacking in clarity and detail. 

There are two lessons in the AFSOUTH experience. First, sending military forces 

into a host nation without the procedures and protections of a SOFA or like instrument is 

less than ideal. Judge Advocates should raise the need for a SOFA at the earliest possible 

opportunity. Furthermore, they must be prepared to assist those responsible for 

negotiating SOFAs, provide input into the issues that need addressing, and persist in 

requesting the conclusion of a SOFA in a timely fashion. Second, JAs should actively 

seek authority to negotiate SOFA provisions.325 The fact that the KVCC-LA reported 

meeting prohibitive resistance when taking these steps should not discourage other JAs 

from attempting the same in future. 

Similar issues arose in the same theater during the period between the February 

1999 disbanding of the UN mission in the FYROM (UNPREDEP) and the completion of 

the NATO bombing of Serbia, Operation ALLIED FORCE. The end of the UNPREDEP 

mission meant U.S. forces previously assigned to it would no longer enjoy the protections 

ofits UN SOMA,326 However, the December 1998 exchange of letters between NATO 

and FYROM only applied to the KVCC and its extraction force. It was not until April 

1999 that an extension applied even this inadequate exchange of letters to all NATO 

forces in FYROM.327 Thus, Task Forces Sabre and Falcon operated without a SOFA or 

like instrument in place for nearly two months. The absence of a SOFA resulted in a 

324 See id. at 5-8. Other examples included difficulties in securing the use of Skopje (Petrovec) airport for 

NATO forces and the unwillingness of FYROM authorities to grant tax exemptions for construction efforts 

absent a formal agreement. Id. 

325 Approval authorities and procedural requirements governing the involvement of DOD personnel in 

negotiating agreements are delineated in DOD DIR. 5530.3, supra note 275. 

326 See Lieutenant Colonel Mark S. Martins, Deputy StaffJudge Advocate, Ist Infantry Division, Task 

Force Falcon Interim After Action Review, PowerPoint Presentation to Operational Law CLE (3 Dec. 

1999) [hereinafter Martins Presentation]. 

327 See Information Paper, Lieutenant Colonel Jeff McKitrick, International Law & Operations Division, 

U.S. Army Europe, subject: Agreements with FYROM (2 Feb. 2000). 

90 
variety of challenges, including border-crossing issues (ranging from refusal to admit 

U.S. Soldiers, to demands for fees and refusal to allow the movement of contractor 

vehicles). The issue of criminal jurisdiction was unclear. Efforts to expand the existing 

infrastructure into a more robust staging base met with resistance328 and reaching 

agreement on runway usage fees and utility costs was a constant struggle.329 

Army JAs attempted to fill this legal void by proposing that the ptp SOFA330 

applied, and by negotiating a separate consignment agreement for the U.S. facility.33! 

They achieved a measure of success in arguing the ptp SOFA's applicability, as well as 

in hammering out the terms of the more detailed consignment agreement.332 However, 

one difficulty in negotiating with the FYROM government was that it did not function in 

a coordinated manner. This occurred in part because a government minister and his 

deputy could be from different political parties, making agreement difficult to achieve. 

JAs then faced an additional hurdle. Even though there was some level of 

consensus that the ptp SOFA applied, this information did not always filter down to 

lower levels. For example, FYROM border guards continued to demand fees and 

obstruct border crossings. In one case, a task force commander resorted to tasking a JA 

to accompany a particularly sensitive reconnaissance mission to ensure communication of 

the SOFA's terms to guards at a FYROM-Albania border station.333 

Despite JA efforts to apply the ptp SOFA and negotiate a consignment 

agreement, and despite the subsequent applicability of the December 1998 exchange of 

letters, many key details, particularly in the realm of contractor support, remained 

unanswered. 334 The exchange of letters anticipated a small force and was inadequate for 

the NATO force. The most notable example was the omission of any language clarifying 

the status of civilian contractors such as KBR (formerly Kellogg, Brown, and Root). 

Judge Advocates argued with varying degrees of success that KBR contractors should be 

328 See Martins Presentation, supra note 326. 

329 See E-mail fromCaptainJamesA. Bagwell, Operational Law Attorney, TaskForce Falcon (Rear), to 

Captain Alton L. Gwaltney, III, Center for Law & Military Operations (31 Mar. 2000). 

330 Agreement between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, June 

15, 1951, 4 U.S.T. 1792. See also Agreement Among the States Parties to the North Atlantic Treaty and 

the Other States Participating in the Partnership for Peace Regarding the Status of their Forces, June 19, 

1995, T.I.A.S. No. 12,666 [hereinafter ptp SOFA]. 

331 Accommodation Consignment Agreement for Army Compound "Strasho-Pindjur/Camp Able Sentry" at 

Petrovec Airfield, Skopje, U.S.-MK [FYROM Ministry ofDefense], Apr. 19, 1999. 

332 Lieutenant Colonel Mark Martins, the Task Force Falcon Legal Adviser and, at one point, the Task 

Force Falcon Chief of Staff, paints a vivid picture ofjust how these efforts transpired: "The last half of 

April for me was a series of smoke-filled rooms, Turkish coffee, and byzantine negotiations at the 

[FYROM] Ministry of Defense ...." Martins Presentation, supra note 326. 

333 Id. 

334 Broadening the application of the exchange ofletters did not eliminate all problems, even on points 

where its wording seemed quite clear to NATO personnel. For example, FYROM authorities refused to 

release a Norwegian officer involved in a fatal road traffic accident to Norwegian jurisdiction. 

91 
considered members of the force under the PiP SOFA and, later, under the technical 

annexes ofthe exchange ofletters.335 As members ofthe force, contractors would 

receive the same criminal procedural protections as US. Soldiers and face less resistance 

- such as licensing requirements and fees - when crossing FYROM borders. 

As had been the case with earlier operations in this theater, even though 

operations in Kosovo occurred under consent-based agreements, there was no SOFA 

between the U.S. and the FRY or NATO and the FRY or the UN Mission in Kosovo 

(UNMIK) when KFOR deployed in 1999. Despite the MTA reference to a "to be 

negotiated" SOFA, none existed during the first year of the operation. KFOR and 

UNMIK, through guidance included in a classified declaration, detailed SOFA-like 

provisions for Soldiers and civilians performing the KFOR mission in KoSOVO. 336 In 

August 2000, fourteen months after the start ofthe mission, the Special Representative of 

the Secretary General promulgated regulatory guidance concerning the status ofKFOR 

Soldiers.337 

Operating in the absence of a clearly applicable SOFA - or with a SOFA that was 

poorly drafted and did not adequately address key issues - gave JAs the opportunity to 

display their legal mettle through a combination of creative arguments and persistent 

negotiations. Such legal skills will be of value the next time US. forces deploy to a 

country where there is not a well-developed and functioning government and/or SOFA 

negotiation lags behind military requirements. Judge Advocates must also be prepared to 

advise and assist alliance and multinational partners in order to ensure contract logistic 

personnel receive recognition as a crucial extension ofUS. forces, requiring similar 

protections under SOFAs and similar agreements. 

LK.4. Acquisition and Cross-Servicing Agreements (ACSAs) 

[See CIVIL LA W (Fiscal Law Issues).] 

335 See Transcript of Kosovo After Action Review Conference, Center for Law & Military Operations, 

Charlottesville, Va. 360-61 (12-14 June 2000) [hereinafter Kosovo AAR Conference Transcript]. 

336 Joint Declaration, Commander KFOR & UN Special Representative ofthe Secretary General for 

Kosovo (17 Aug. 2000) (classified NATO document). 

337 See UNMIK Reg. 200/47. 

92 
I.L. LAWOF WARILAW OFARMED CONFLICT 

There has been much debate and confusing guidance issued concerning what, if 

any, aspects of the law of war (LOW) apply to certain operations involving US. forces in 

recent years. The Center for Law and Military Operations (CLAMO) publication Legal 

Lessons Learnedfrom Iraq andAfghanistan, Volume II describes the various 

machinations and discussions that occurred in Washington, D.C. regarding the 

characterization of the Global War on Terror (GWOT) and the resulting legal framework. 

Initially, varied and unclear guidance resulted, but a 2006 US. Supreme Court case, 

Hamdan v. Rumsjield, clarified the legal framework and reversed many ofthe 

administration's earlier decisions about detainee status and disposition. 

For the JA or paralegal assisting at the tip of the spear, success in previous 

operations centered upon JA reliance upon Department ofDefense (DOD) directives and 

memoranda as well as Joint Chiefs of Staff instructions. DOD Directive 5100.77, DOD 

Law ofWar Program was previously the centerpiece of this reliance. It instructed 

Soldiers to apply the LOW regardless ofthe type of armed conflict. A DOD policy 

amendment in May 2006 broadened the application ofthe LOW: "It is DoD policy that . 

. . [mJembers of the DoD Components comply with the law of war during all armed 

conflicts, however such conflicts are characterized, and in all other military 

operations.,,338 

The lesson echoed through every US. military operation during the last fourteen 

years is clear - apply the law o/war as the standard in every military operation. While 

it may be important for JAs to understand such an application ofthe LOW is a policy 

determination instead ofper se law, it is also likely irrelevant. The Hague and Geneva 

Conventions, UN Charter, and other documents that form the foundation of the LOW 

provide clear guidance on the treatment of detainees and prisoners ofwar, targeting, 

treatment of civilians, occupation law and countless other LOW topics. In the absence of 

guidance to the contrary, JAs should invoke DOD Directive 2311.01£, The DoD Law of 

War Program and Joint Chiefs ofStaffInstruction 5810.01C, Implementation ofthe DoD 

Law ofWar Program as authority to follow the time-honored LOW constraints described 

in these sources. 

338 DOD DIR. 2311.01 E, supra note 107, para. 4.1. DOD Directive 5100.77 was replaced by DOD Directive 

2311.01E, The DoD Law ofWar Program. There are two substantive differences between the two 

directives. The wording cited here replaced "U.S. military personnel must comply with the spirit and 

principles ofthe law of war during all armed conflicts, no matter how the conflict is characterized" (DOD 

DIR. 5100.77, para. 5.3.1). See also JCS INSTR. 5810.01C, supra note 107. See generally Major John T. 

Rawcliffe, Changes to the Department ofDefense Law ofWar Program, ARMY LAW., Aug. 2006, at 23 

(discussing the changes, including the types of operations during which U.S. forces will apply the LOW, 

and clarifYing reporting requirements for LOW violations). See also Mr. Geoffrey Com, "Snipers in the 

Minaret- What Is the Rule?" The Law ofWar and the Protection ofCultural Property: A Complex 

Equation, ARMY LAW., July 2005, at 28 (examining several ofthe legal issues related to determining the 

appropriate "rule of decision" for the employment ofmeans and methods of warfare within the context of 

current combat operations); Commander Albert S. Janin, Engaging Civilian Belligerents Leads to SelfDefense/Protocol I Marriage, ARMY LAW., July 2007, at 82 (discussing the AP I and self-defense 

differences that pertain to counterinsurgency or counterterrorism operations). 

93 
LL.l. Training 

In every operation since at least 1994, commanders have entrusted JAs with LOW 

training. Recent changes to LOW training require commanders to establish specific 

training objectives. Additionally, a qualified evaluator/instructor must conduct the 

training in a structured manner. Army Regulation 350-1, Army Training and Leadership 

Development contains additional guidance, as summarized here. 339 

Soldiers and leaders require LOW training throughout their military careers 

commensurate with their duties and responsibilities. The requirements for training at the 

following levels appear below: 

•	 Level A training occurs during initial entry training (lET) for all enlisted 

personnel and during basic courses for all warrant officers and officers. 

•	 Level B training occurs in MTOE units. 

•	 Level C training occurs in the Army school system (TASS). 

Level A training provides the minimum knowledge required for all members of
 

the Army. Instructors/trainers teach the following basic LOW rules (referred to as the
 

Soldier's rules, and stressing the importance of compliance with the LOW) during level
 

A training:
 

•	 Soldiers fight only enemy combatants. 

•	 Soldiers do not harm enemies who surrender. They disarm them and tum 

them over to their superior. 

•	 Soldiers do not kill or torture enemy prisoners of war. 

•	 Soldiers collect and care for the wounded, whether friend or foe. 

•	 Soldiers do not attack medical personnel, facilities, or equipment. 

•	 Soldiers do not destroy more than the mission requires. 

•	 Soldiers treat civilians humanely. 

•	 Soldiers do not steal. Soldiers respect private property and possessions. 

•	 Soldiers should do their best to prevent violations of the law of war. 

•	 Soldiers report all LOW violations to their superior. 

Level B training occurs in MTOE units for all unit personnel as follows: 

•	 Training occurs annually and again prior to deployment when directed by a 

deployment order or appropriate authority. 

•	 Commanders will establish specific training objectives. A qualified instructor 

will conduct training in a structured manner and evaluate performance using 

established training conditions and performance standards. For the purposes 

of this training, a qualified instructor is a Judge Advocate General's Corps 

339 U.S. DEP'T OF ARMY, REG. 350-1, ARMY TRAINING AND LEADERSHIP DEVELOPMENT para. 4-18 (3 Aug. 

2007). 

94 
(JAGC) officer, or a paralegal noncommissioned officer certified to conduct 

such training by a JAGC officer. 

•	 Training will reinforce the principles set forth in the Soldier's rules. 

Additionally, training will emphasize the proper treatment of detainees, to 

include the five Sand T (search, segregate, silence, and speed to safe area, 

safeguard and tag). Soldiers will be required to perform tasks to standard 

under realistic conditions. Training for unit leaders will stress their 

responsibility to establish adequate supervision and control processes to 

ensure proper treatment and prevent abuse of detainees. 

•	 In addition to the training described above, LOW and detention operations 

training will be integrated into other appropriate unit training activities, field 

training exercises, and unit external evaluations at home station, combat 

training centers (CTCs) and mobilization sites. 

Army schools will tailor LOW training to the tasks taught in those schools. Level 

C training will emphasize officer, warrant officer and NCO responsibilities for: 

•	 their performance of duties in accordance with U.S. LOW obligations. 

•	 LOW issues in command planning and execution of combat operations. 

•	 measures for the reporting of suspected or alleged war crimes committed by or 

against U.S. or allied personnel. 

A briefing package that meets these requirements is available on the JAG 

University website (Standard Training Packages) on JAGCNet. The Judge Advocate 

General's Legal Center and School (TJAGLCS) also runs the LOW and Operational Law 

(OPLAW) courses, which are both excellent vehicles to prepare JAs to teach the LOW to 

Soldiers or advise commanders on LOW issues. Course dates are available on the 

TJAGLCS website on JAGCNet. 

Given the degree to which DOD has institutionalized LOW training, it is perhaps 

unsurprising most recent AAR comments with respect to the LOW have focused on the 

need for U.S. forces to assist in providing LOW training to other security forces. For 

example, one OSJA reported that, as Iraqi Army units were required to adhere to the 

LOW (and U.S. rules of engagement (ROE) when under the operational or tactical 

control of U.S. forces), the OPLAW section ensured the Iraqi commander and staff 

operating in the task force area of operations received appropriate training. The OPLAW 

section taught classes on the LOW and an unclassified version of ROE, as well as 

developing a presentation that highlighted areas of specific concern and relevance to Iraqi 

forces. 34o 

In some cases, the units assigned to train Iraqi security forces did not seek JA 

assistance. As a result, a Marine JA recommended a requirement for all U.S. transition 

34°101st ABN DIV 2007 OIF AAR, supra note 73, at 107. See also Center for Law & Military Operations, 

Legal Supportfor the Afghan Army, ARMY LAW., Dec. 2003, at 33 (describing LOW training program for 

Afghan National Army). 

95 
teams to receive LOW, ROE, and detention operations training from the JA assigned to 

the commander responsible for that area of operations (AO). He suggested this would 

ensure all forces operating in that AO would share a common understanding of those 

issues. As well, commanders could consider assigning a JA to each Iraqi Army brigadelevel military transition team as a legal advisor?41 

LE.2. Code ofConduct 

Judge Advocates will also no doubt find themselves expected to provide Code of 

Conduct training prior to any contingency operation. A basic understanding of its tenets 

and background is important. The Code of Conduct is the guide for the behavior of 

servicemembers captured by hostile forces, and addresses those situations and decision 

areas that, to some degree, all such personnel could encounter. It includes basic 

information useful to U.S. paws in their efforts to survive honorably while resisting 

their captors' efforts to exploit. The Code of Conduct appears below and there is a 

standard training package available on the JAG University website on JAGCNet. 

Article I 

I am an American, fighting in the forces which guard my country and our way oflife. I 

am prepared to give my life in their defense. 

Article II 

I will never surrender ofmy own free will. Ifin command, I will never surrender the 

members ofmy command while they still have the means to resist. 

Article III 

IfI am captured I will continue to resist by all means available. I will make every effort 

to escape and to aid others to escape. I will accept neitherparole nor specialfavors .from 

my captors
 

Article IV
 

IfI become a prisoner ofwar, I will keep faith with myfellow prisoners. I will give no 

information or take part in any action which might be harmful to my comrades. IfI am 

senior, I will take command. Ifnot, I will obey the lawful orders ofthose appointed over 

me and will back them up in every way. 342 

Article V 

When questioned, should I become a prisoner ofwar, I am required to give name, rank, 

service number, and date ofbirth. I will evade answeringfurther questions to the utmost 

ofmy ability. I will make no oral or written statements disloyal to my country and its 

allies or harmful to their cause. 

341 Regimental Combat Team 7, Regimental Judge Advocate, After Action Report, Operation IRAQI 

FREEDOM, July 2006 - January 20078-9 (2 Apr. 2007) [hereinafter RCT-7 JA 2007 OIF AAR]. Both of 

the recommendations above (providing training to MiTTs and Iraqi Army personnel) were echoed by 

another Marine JA: see TF 1/7 JA 2006 OIF AAR, supra note 141, at 12. 

342 http://usmilitary.about.com/od/justicelawlegislation/a/codeofconduct6.htm. 

96 
Article VI 

I will neverforget that I am an American, fighting forfreedom, responsible for my 

actions, and dedicated to the principles which made my country free. I will trust in my 

God and in the United States ofAmerica. 

Training for contingency operations usually includes some combination of LOW, 

ROE, and Code of Conduct training. However, Code of Conduct training requires 

modification for peace operations.343 For example, Article III requires paws to make 

every effort to escape, but the Geneva Convention POW provisions may not apply in a 

peace operation. As a result, U.S. Soldiers detained by host nation (RN) forces during a 

peace operation may be subject to RN criminal law. Because escape from government 

detention is a crime in most countries, a failed escape attempt may provide further 

justification to prolong detention by adding additional criminal charges. Escape from 

detention is therefore discouraged under the peace operations variation of the Code of 

Conduct except under unique or life-threatening circumstances.344 Judge Advocates must 

understand these distinctions and be prepared to conduct the necessary training. 

LL.3. LOW Violations (War Crimes) 

Many ofthe future conflicts that will involve the U.S. Army will have ethnic, 

religious or cultural causes. Violations of the LOW, and the apprehension of those 

suspected of such violations, will continue to be major issues for JAs to address. While 

many legal issues may arise in the area of war crimes, two are ofparticular concern in 

this discussion: jurisdiction over war crimes, and the apprehension and detention of 

alleged war criminals. 

Jurisdiction over War Crimes 

The Geneva Conventions codified customary international law regarding 

universal jurisdiction over LOW violations occurring during armed conflicts of an 

international character. In the past two decades, there has been a superseding ofthe 

traditional view individual criminal responsibility does not arise in armed conflicts not of 

an international nature. The applicability of individual responsibility for acts during 

internal armed conflict stems from the International Criminal Tribunal for the Former 

Yugoslavia (ICTY) Tadic appeal chamber decision/45 which several other international 

criminal tribunals' decisions have cited with approval. Moreover, the statute of the 

International Criminal Court now includes a series of offences that are violations of the 

laws and customs applicable in armed conflicts not of an international character, all of 

343 See U.S. DEP'T OF DEFENSE, INSTR. 1300.21, CODE OF CONDUCT (COC) TRAINING AND EDUCATION para. 

E3.3 (8 Jan. 2001) [hereinafter DOD INSTR. 1300.21]; see also U.S. DEP'TOF DEFENSE, DIR. 1300.7, 

TRAINING AND EDUCATION TO SUPPORT THE CODE OF CONDUCT (COC) (8 Dec. 2000). 

344 See DOD INSTR. 1300.21, supra note 343, para. E3.10.5. 

345 Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on Defense Motion for Interlocutory Appeal on 

Jurisdiction (Oct. 2, 1995). 

97 
which create responsibility for the individual.346 The concept is now firmly established 

as customary international law. 

Apprehension of Alleged War Criminals 

As a party to the Geneva Conventions, the United States has a responsibility to 

search for and prosecute persons who have committed grave breaches of them, regardless 

of their nationality.347 The United States does so chiefly through three domestic 

mechanisms: general courts-martial/48 military commissions,349 and federal courtS?50 

Alternatively, the United States may assist an international tribunal in the prosecution of . 351

war cnmes suspects. 

DOD Directive 2311.01£, The DOD Law o/War Program, sets out 

responsibilities for the reporting and investigation of possible, suspected, or alleged 

violations of the law of war, and delegates to the Secretary of the Army responsibility for 

DOD-wide reporting and investigation policy.352 The directive defines a reportable 

incident as a "possible, suspected, or alleged violation of the law ofwar, for which there 

is credible information, or conduct during military operations other than war that would 

constitute a violation ofthe law of war ifit occurred during an armed conflict.,,353 

Pursuant to Army policy, the U.S. Army Criminal Investigation Division (CID)
 

has investigative jurisdiction over suspected war crimes in two instances: when the
 

suspected offense is a UCMJ violation, or when Department ofthe Army Headquarters
 

346 Rome Statute ofthe International Criminal Court, Art. 8(2)(b), July 17, 1998,2187 U.N.T.S. 90, 37 

I.L.M. 1002. 

347 Geneva Convention for the Amelioration ofthe Conditions ofthe Wounded and Sick in Armed Forces 

in the Field, art. 49, Aug. 12, 1949,6 U.S.T. 3114; Geneva Convention for the Amelioration of the 

Conditions of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, art. 50, Aug. 12, 

1949,6 U.S.T. 3217; GPW, supra note 51, art. 129. 

348 10 U.S.c. § 818 (2000) (UCMJ art. 18). To invoke this provision, however, the suspect must be subject 

to the Uniform Code of Military Justice. See THE JUDGE ADVOCATE GENERAL'S DEPARTMENT, UNITED 

STATES AIR FORCE, AIR FORCE OPERATIONS AND THE LAW: A GUIDE FOR AIR AND SPACE FORCES, 1st ed., 

144-46 (2002) (general discussion of forum selection issues). 

349 10 U.S.c. § 821 (2000) (UCMJ art. 21 ) (authorizing the use of military commissions, tribunals, or 

provost courts). 

350 War Crimes Act of 1997 (18 U.S.c. § 2401) (granting federal courts jurisdiction to prosecute any person 

inside or outside the United States for war crimes where a U.S. national or a member ofthe U.S. armed 

forces is either the accused or the victim). Generally, this would be the appropriate U.S. forum for persons 

not subject to UCMJ jurisdiction, although additional considerations would be necessary for a non-U.S. 

suspect apprehended in the United States when the alleged crimes did not involve any U.S. nationals. 

351 For example, through an ad hoc tribunal such as the International Criminal Tribunal for the Former 

Yugoslavia. S.C. Res. 827, U.N. Doc. S/Res/827 (May 25, 1993), or the International Criminal Court. 

352 DOD DIR. 2311.01E, supra note 107, para. 5.9. 

353Id. para. 3.2. See also Major Martin N. White, Charging War Crimes: A Primerfor the Practitioner, 

ARMY LAW., Feb. 2006, at 1 (providing a framework for determining the proper method for charging a U.S. 

servicemember accused of committing war crimes). 

98 
directs the investigation.354 Organic unit assets and legal support can also conduct war 

crimes investigations under Army Regulation 15-6, Procedures for Investigating Officers 

andBoards ofOfficers. 

There may be allegations ofwar crimes against HN authorities, hostile forces, or 

even U.S. or multinational forces. Such allegations, and the resulting investigations, 

often gain the attention of the media and human rights organizations. Responsibility for 

investigating must then be determined. Although such investigations are not normally 

within the military domain, in the absence of an international or local organization tasked 

and capable of conducting them, military investigators or service personnel must receive 

some training, as they may be required to step into the vacuum. Multinational forces may 

also receive the task to preserve sites of potential interest or provide security for those 

sites. 

Recent Operation Iraqi Freedom (OIF) AARs indicate most allegations of LOW 

violations involved detainee abuse and concerned actions occurring at the point of 

capture. Some OSJAs reported commanders initiated AR 15-6 investigations; others 

indicated allegations resulted in a CID investigation.355 Commands usually prosecuted 

any resulting cases under Articles 118 and 128 of the Uniform Code of Military Justice 

(UCMJ) rather than under the Geneva Conventions. These cases dealt with alleged 

conduct such as murder and/or assault of detainees, civilians on the battlefield, or enemy 

combatants "hors de combat.,,356 Units reported allegations regarding the conduct of 

Iraqi Army personnel through the SJA to Multi-National Corps - Iraq (MNC-I), for 

handling by Iraqi authorities. 357 The advent ofthe "concerned local citizen" groups, 

subsequently known as "Sons of Iraq," required JAs to consider LOW issues - for 

example, were those individuals subject to the LOW, and what actions should be taken if 

they violated it? A Marine JA used the MNC-I investigative template for LOW 

violations to analyze the issue. However, it ultimately went to the Iraqi Interior Ministry 

for action.358 

Judge Advocates may be required to support a war crimes investigation unit 

(WCIU). Primary responsibility for investigation of alleged war crimes in Iraq resided 

with the WCIU, 3d Military Police (CID) Group. Based in Kuwait, its role was to 

investigate and prepare cases for the prosecution of all war crimes, crimes against 

354 U.S. DEP'T OF ARMY, REG. 195-2, CRIMINAL INVESTIGATION ACTIVITIES para. 3-3a(7), app. B (30 Oct. 

1985). 

355 4ID 2007 OIF AAR, supra note 70, at 16 (4ID initiated at least an AR 15-6 investigation); IOlst ABN 

DIV 2007 OIF AAR, supra note 73, at 25 (CID was lead investigative agency). RCT-7 JA 2007 OIF AAR, 

supra note 34 I, at 6 (also reporting that allegations arose during the course of detention operations). 

356101st ABN DIV 2007 OIF AAR, supra note 73, at 25. 

357 !d. 

358 TF 2/7 JA 2008 OIF AAR, supra note 123, at 10-11. The JA framed the issues as determining who 

needed to investigate and the disciplinary mechanism available to punish the conduct. The requirement to 

consider the matter arose after members of a local group tortured another Iraqi, leading to his demise. Id. 

99 
humanity, and atrocities committed by officials ofthe former Iraqi regime. 359 In early 

April 2003, the four JAs assigned to the WCIU's legal support cell undertook the 

following tasks during their first month: 

•	 drafting a field guide of substantive war crimes offenses for CID; 

•	 providing investigative and legal guidance in high-profile matters including 

the ambush and subsequent treatment ofmembers of 507th Maintenance 

Company, and crimes by the "55 Most Wanted;" 

•	 leading and coordinating investigative efforts in An Nasiriyah, Iraq, that 

ultimately led to the identification and detention of several potential war 

crimes suspects; and 

•	 providing guidance on the investigation ofmass gravesites. 

There were several challenges to WCIU effectiveness in this early stage. It was 

not clear in which forum any potential suspect would eventually undergo prosecution. 

Consequently, JAs had to provide legal guidance without the benefit of knowing either 

the precise elements of offenses or the particular evidentiary requirements. The WCIU 

approach was to use the offenses drafted for the military commissions as guidance, as 

these were unique to the war crimes environment. However, WCIU JAs felt the lack of 

jurisdictional certainty detracted from the effectiveness of investigations. Resolving the 

question of forum needs to be a high priority for JAs assigned to future WCIUs. 

A practical challenge for the legal support cell was integration into the CID 

structure. The WCIU was essentially a CID activity and the existing CID structure of 

field agents and case managers did not anticipate close interaction between CID and JAs 

during the investigation phase. Rather, there was an expectation that the JA role was to 

review the material collected once the investigation was complete. Judge Advocates 

should be aware of this expectation when determining the best way to liaise with CID. 

Finally, the WCIU's location outside Iraq made it difficult to influence high-level 

decision-making, contact witnesses, and collect evidence. Resource constraints affected 

the speed of pursuing investigative leads. Accordingly, while the WCIU theoretically 

had primacy over war crimes investigations, other units formed their own investigative 

teams. 360 Judge Advocates supporting a WCIU should prepare for less than ideal 

conditions and plan accordingly. 

LL.4. Legal Review ofWeapons 

Department of Defense regulations require weapons used by U.S. forces to 

comply with the LOW. The origins of this requirement can be traced back to the legal 

principle described as "humanity." Article 22 ofthe Hague Convention Respecting the 

Law and Customs of War on Land and its Annex (Hague IV) states that the right of 

belligerents to adopt means of injuring the enemy is not unlimited. Article 23 goes on to 

359 Whitford & Klein Interview, supra note 93, at 132. 

360 12th L80 2004 OIF AAR Conference, supra note 114. 

100 
set out several prohibitions on methods of waging warfare, including one against the use 

of arms, projectiles, or materials calculated to cause unnecessary suffering. Legal review 

of new weapons is also required under Article 36 ofthe Additional Protocol to the 

Geneva Conventions (AP 1).361 

Non-Lethal Weapons 

Non-lethal weapons (NLW) are weapons explicitly designed and primarily 

employed to incapacitate personnel or material, while minimizing fatalities, Rermanent 

injury to personnel, and undesired damage to property and the environment. 62 Nonlethal weapons include riot control agents (RCAs); riot control batons ("night sticks"); 

kinetic energy rounds (e.g., foam rubber, wooden baton, and rubber ball projectiles) for 

various projectile weapons (such as the 12-gauge shotgun and the 40mm grenade 

launcher); high intensity lights; anti-vehicle barricades; and more. Prior to acquisition, 

each NLW receives a legal review by the Department of the Army's Office of The Judge 

Advocate General (OTJAG). As with RCAs, the primary issues are determining when 

NLW use can occur and how to train troops to use them. 363 

Numerous AARs mention legal issues arising from use of an NLW, be it an RCA 

(e.g., pepper spray), a taser, some type of spray on restraint (such as sticky foam) or 

various types of laser weapons. Not only must NLWs first receive legal review, but there 

are other legal concerns. It is important to remember that NLWs are not necessarily nonlethal. Someone can use virtually any weapon in a manner to cause death or great bodily 

injury. As a result, there is no requirement NLWs have zero probability of producing 

fatalities or permanent injuries. 

Non-lethal weapons may be categorized into "systems": 

361 U.S. DEP'T OF DEFENSE, DIR. 5000.01, THE DEFENSE ACQUISITION SYSTEM para. ELl.15 (12 May 

2003); U.S. DEP'TOF DEFENSE, DIR. 2060.1, IMPLEMENTATION OF, AND COMPLIANCE WITH, ARMS 

CONTROL AGREEMENTS (9 Jan. 2001); U.S. DEP'T OF ARMY, REG. 27-53, REVIEW OF LEGALITY OF 

WEAPONS UNDER INTERNATIONAL LAW (1 Jan. 1979); U.S. DEP'T OF AIR FORCE, INSTR. 51-402, WEAPONS 

REVIEW (13 May 1994); U.S. DEP'TOFNAVY, SEC'Y OF THE NAVY INSTR. 5000.2C, IMPLEMENTATION AND 

OPERATION OF THE DEFENSE ACQUISITION SYSTEM AND THE JOINT CAPABILITIES INTEGRATION AND 

DEVELOPMENT SYSTEM (19 Nov. 2004). A recent AAR noted that, while the review requirement and 

process is set out in AR 27-53, it is not always easy to ascertain whether a weapon has already been 

subjected to legal review. It suggested that a list of approved weapons systems should be accessible to 

deployed JAs. WIst ABN DIY 2007 OIF AAR, supra note 73, at 17. But see Major R. Craig Burton, 

Recent Issues with the Use ofMatchKing Bullets and White Phosphorous Weapons in Iraq, ARMY LAW., 

Aug. 2006, at 19 (analyzing the LOW issues involved in use of these munitions, and noting that JAs may 

assume that a weapon issued through standard supply channels is lawful). The International and 

Operational Law Division of the Office of the Judge Advocate General (OTJAG) may be able to provide 

more information in this area. See the International and Operational Law Knowledge Center on JAGCNet. 

362 U.S. DEP'T OF DEFENSE, DIR. 3000.3, POLICY FOR NON-LETHAL WEAPONS (9 July 1996). 

363 See U.S. DEP'T OF ARMY, FIELD MANUAL, MULTI-SERVICE TACTICS, TECHNIQUES, AND PROCEDURES 

FOR THE TACTICAL EMPLOYMENT OF NONLETHAL WEAPONS (24 Oct. 2007); Lieutenant Colonel James C. 

Duncan, A Primer on the Employment ofNon-Lethal Weapons, NAVAL LAW REv. (1998). 

101 
•	 Personnel Effectors. Items such as riot batons, stingball grenades, pepper 

sprays, and kinetic energy rounds, designed to, at a minimum, deter, 

discourage, or at most, incapacitate individuals or groups; 

•	 Mission Enhancers. Items such as bullhorns, combat optics, spotlights, and 

caltrops,364 designed to facilitate target identification and crowd control, and 

provide a limited ability to affect vehicular movement. 

NLW capabilities may include: 

(1) counter-personnel: 

•	 influencing behavior and activities of a potentially hostile crowd. 

•	 incapacitate personnel. 

•	 seize personnel. 

•	 deny personnel access to an area. 

(2) counter-material: 

•	 disable or neutralize vehicles or facilities without destroying them. 

•	 deny vehicle access to certain areas or facilities. 

Unless restricted by ROE, fire control measures, orders, or lack of availability, 

commanders and troops may employ NLWs (other than RCAs) any time there is 

authorization for the use of force. Non-lethal weapon use may also occur in conjunction 

with lethal weapons to enhance the effectiveness and efficiency ofthe lethal weapons, 

even in combat. Lessons learned in the employment ofNLWs in operations such as those 

conducted by U. S. forces in Somalia and Haiti include: 

•	 there is no legal requirement to resort to NLW use where deadly force is 

warranted by the circumstances ruling at the time. 

•	 NLWs should not be used when doing so will place troops in undue danger. 

•	 deadly force should always be available in support ofNLWs. 

Non-lethal weapons do not replace traditional means of deadly force, but are 

merely another option. The availability ofNLWs does not limit a Soldier's inherent right 

of self-defense, nor does it limit a commander's inherent authority and obligation to use 

all necessary means available and to take all appropriate action in self-defense. Troops 

must still have deadly force available as an option when the mission so dictates. ROE 

must clearly articulate and Soldiers must understand (i.e., through training) that NLWs 

are an additional means of employing force for the particular purpose of limiting the 

probability of death or serious injury to noncombatants or belligerents. 

364 Caltrop is a term of art for spiked weapons or barriers, such as spiked impediments placed on a road to 

prevent vehicular access to a given area. 

102 
Commanders and troops alike must be prepared to handle media inquiries. 

Commanders should consider whether an information operations campaign addressing 

NLW is advisable. Preemptive engagement of the media can clarify the role and effects 

of NLWs. A second reason to consider such a campaign is the potential deterrent effect. 

If civilians know that U.S. forces permit the use ofNLWs, they may hesitate to provoke a 

confrontation. If they believe NLWs are not available, they may be more likely to harass 

Soldiers or Marines, knowing they will not use deadly force unless absolutely necessary. 

Non-lethal weapons may be particularly useful in the following operational 

environments: domestic support operations involving riot control, military operations in 

urban terrain, and peacekeeping and peace enforcement. Use ofNLWs can favorably 

influence both the immediate situation and the overall operational environment by 

reducing the risk of noncombatant fatalities and collateral damage and their 

accompanying negative effects on the attitudes and actions of noncombatants and even 

combatants (less anger and therefore justification to join an insurgency, alienation, 

remorse). The effect ofNLW employment will often hinge on the local culture. In some 

circumstances, NLW use may act as a provocation. As always, leaders on the scene must 

exercise good judgment. 

Successful employment ofNLWs depends on the chosen tactics, techniques and 

procedures (TTP) and on the training of the troops using them. Improper use ofNLWs 

can be worse than not having NLWs available. Training with NLWs must occur at the 

individual, unit, and leader levels. Individual training topics should include the LOW, 

ROE, force continuum, crowd dynamics and control, crowd control formations, barriers 

and physical security measures, tactics, communication skills, oleoresin capsicum aerosol 

(pepper spray) use, open-hand control, impact weapons, working dogs, and apprehension 

and control operations. 

According to recent AARs from Iraq, NLWs can be a key tool for dealing with 

escalation offorce (EOF) scenarios. One brigade JA described the circumstances and 

procedures involved in obtaining authority for their use, and emphasized the need for 

appropriate training prior to employment: 

When we arrived in Baghdad in Aug 06, it became clear that this was a different 

operating environment than Mosul; here, crowds of hostile children surrounded 

our strykers throwing everything from rocks to glass bottles filled with black 

liquids.... As the line between harassing and hostile became blurred, we 

realized we needed RCMs [riot control measures]. ... CPT Matt Hover and I 

worked to get approval for the use of FN 303 paint shell guns, which proved 

extremely accurate up to 100m and very useful for EOF incidents. We also 

received approval for use ofM203 nerfrounds and rubber shotgun rounds. 

Surprisingly, never before had brigades requested these capabilities. We found it 

imperative to use the non-lethal weapons.... [P]rior to employment of these 

weapons, we trained every soldier that would be potentially using one - two 

soldiers per stryker vehicle. The MP shop and the [BCT legal team] went around 

to our various FOBs and trained our soldiers on the capabilities and the ROE 

associated with employment of these weapons. Our MPs also took the Soldiers 

103 
out to the range and test fired all the weapons. This training was key to
 

successful employment.365
 

The Multi-National Division - Baghdad (MND-B) aSIA AAR for that area of 

operations in the same timeframe provides additional details regarding the circumstances 

in which NLW use occurred: 

Non-lethal munitions have proven extremely valuable during the typical EOP 

scenario of vehicles speeding towards a US convoy or control point. The vast 

majority ofvehicles that cause EOPs contain inattentive, unskilled, visually 

impaired, intoxicated, or reckless drivers. A non-lethal round impacting against 

the vehicle has proven effective in getting the driver's attention and avoiding the 

use of lethal force. This is important, because the next step in EOP is warning 

shots, followed by disabling shots, followed by killing shots. Experience shows 

that once Soldiers begin shooting, the situation becomes extremely unpredictable, 

and of course there is the risk of collateral damage. There were many cases 

where the driver increased speed (due to fright) once he heard warning shots 

fired and even when rounds were impacting the vehicle. Unfortunately, the 

increased speed would then be construed by the soldiers firing warning shots as 

hostile intent, which then led to lethal fires. Non-lethal rounds provided a viable 

alternative to stop the situation before soldiers discharged their weapons. Hostile 

crowds have also become an increasing issue, and the use ofRCM can be critical 

in de-escalating a situation while still protecting U.S. personnel and 

equipment. 366 

365 l72d SBCT OIF AAR, supra note 139, at 11-12. The JA further noted that "We are in a quasi-domestic 

law enforcement role. We need these weapons to deal with a counterinsurgency. JAGs have got to be 

familiar with the different RCMs and ensure that they have approval prior to employing them. Particular 

attention must be paid to how and when they can be employed in the escalation of force. Pre-deployment 

training with RCMs should be absolutely mandatory." Id. at 12. 

366 4ID 2007 OIF AAR, supra note 70, at 2. The OSJA noted that the following framework applied: 

RCMs were used during the deployment in tactical settings. Pursuant to the ROE, RCM 

includes non-lethal munitions used during Escalation of Force (EOF), to control hostile 

crowds, and as a non-lethal response to a hostile act or display of hostile intent that does 

not threaten soldiers with death or serious bodily injury, e.g. rock throwers. The MND-B 

CG was the approval authority to deploy and use RCM. He delegated release authority to 

Brigade Commanders for M203 bean bag rounds, M203 sponge rounds, shotgun nonlethal rounds, FN303 paint rounds, M84 stun grenades, and the Long Range Acoustic 

Device (LRAD). Brigade Commanders had to certify that their soldiers were properly 

trained prior to releasing the non-lethal rounds for use. Once released, the on scene 

commander (OSC) was the approval authority for use on a particular mission. RCM may 

be used (1) to protect US and/or designated personnel and facilities from civil 

disturbance, (2) to control rioting prisoners and detainees, and (3) to protect US personnel 

during EOF incidents at TCPs, on convoys, and on patrols. 

Id. 

104 
The NATO-led force in Kosovo (KFOR) also recently used similar NLWs (e.g.,
 

rubber bullets) when confronted by hostile demonstrators throwing stones and Molotov
 

cocktails.367
 

LL.5. Occupation Law 

Prior to Operation IRAQI FREEDOM (OIF), occupation law occupied a rarelydiscussed, long-neglected place on the spectrum of support to military operations. Not 

since the end of World War II had the United States undertaken the immense 

responsibility of administering an occupied territory for a prolonged period. The lack of 

U.S. Government familiarity with the concept and its accompanying responsibilities led
 

to significant initial difficulties. Confusion increased as the U.S. Government prevented
 

U.S. personnel from using the legal term "occupation" to describe the situation in Iraq
 

(occupation was instead referred to as "the a word").
 

The fall of the Saddam Hussein regime and the lack of an easily identifiable and 

legitimate replacement Iraqi government resulted in U.S. and Coalition forces governing 

Iraq until establishment of a new Iraqi government. This situation raised the issue of 

whether the international law of occupation, as set out in the 1907 Fourth Hague 

Convention (Hague IV) and the 1949 Fourth Geneva Convention (GC), should apply.368 

Article 42 of Hague IV states, "Territory is considered occupied when it is actually 

placed under the authority of the hostile army." The two principal Coalition members, 

the United States and the UK, indirectly acknowledged the application ofthese 

conventions to their activities in Iraq in communications with and votes in the UN 

Security Council. In a 8 May 2003 joint letter to the President ofthe UN Security 

Council, the United States and the UK stated: 

The States participating in the Coalition will strictly abide by their obligations 

under international law, including those relating to the essential humanitarian 

needs of the people ofIraq .... In order to meet these objectives and obligations 

in the post-conflict period in Iraq, the United States, the United Kingdom and 

Coalition partners, acting under existing command and control arrangements 

through the Commander of Coalition Forces, have created the Coalition 

Provisional Authority, which includes the Office of Reconstruction and 

Humanitarian Assistance, to exercise powers of government temporarily, and, as 

necessary, especially to provide security, to allow the delivery ofhumanitarian 

aid, and to eliminate weapons of mass destruction ....369 

Both countries, as permanent members of the UN Security Council, voted on 22 

May 2003 for UNSCR 1483.370 It "recogniz[ed] the specific authorities, responsibilities, 

367 Lieutenant Colonel Gilles Castel, "17 March 2008 in Mitrovica North, Kosovo, " NATO LEGAL 

GAZETTE, 15 July 2008, 2. 

368 GC, supra note 111. 

369 Letter from the Permanent Representatives of the United States ofAmerica and the United Kingdom of 

Great Britain and Northern Ireland, to the President ofthe United Nations Security Council (May 8, 2003). 

370 S.C. Res. 1483, U.N. Doc. SlRESI1483 (May 22, 2003) [hereinafter S.C. Res. 1483]. 

105 
and obligations under applicable international law of [the United States and the United
 

Kingdom] as occupying powers under unified command ... " and called upon "all
 

concerned to comply fully with their obligations under international law including in
 

particular the Geneva Conventions of 1949 and the Hague Regulations of 1907.,,371
 

Hague IV sets out a mixture of authorities (with limitations), responsibilities, and 

prohibitions that apply to an occupying power. An occupying power is permitted to, inter 

alia, collect taxes for the administration of the occupied territory, requisition in kind and 

service contributions for the needs of the army of occupation, and take possession ofthe 

property of the occupied state and seize all means of transmitting news, persons or things 

and munitions. 372 Responsibilities include taking all measures in its power to restore and 

ensure public order and safety, respecting, unless absolutely prevented, the laws in force 

in the occupied country, respecting family rights, lives, private property and religious 

practices, and treating municipal property and cultural institutions, even if state-owned, 

as private property.373 There is specific prohibition against an occupying power pillaging 

and forcing the inhabitants to furnish information about the country's army or swear 

allegiance to the occupying power.374 

The GC rules for occupying powers expand upon and add to the Hague IV 

provisions. Of special significance in Iraq were the provisions on guaranteed rights, the 

applicable internal law and limits on its modification, and the treatment of protected 

persons. Reflecting the negative experiences with "puppet" governments set up by the 

Nazis in occupied Norway and France during World War II, GC Article 47 declares that 

protected persons in the occupied territory cannot be deprived oftheir rights under the 

Convention by any changes in the government ofthe occupied territory or by agreements 

between that government and the Occupying Power.375 Article 64 addressed the 

domestic law applicable in Iraq. It provides: 

[T]he penal laws of the occupied territory shall remain in force, with the 

exception that they may be repealed or suspended by the Occupying Power in 

cases where they constitute a threat to its security or an obstacle to the 

application of the present Convention. Subject to the latter consideration and to 

the necessity for ensuring the effective administration ofjustice, the tribunals of 

the occupied territory shall continue to function in respect of all offences covered 

by the said laws. The Occupying Power may, however, subject the population of 

the occupied territory to provisions which are essential to enable the Occupying 

Power to fulfill its obligations under the present Convention, to maintain the 

orderly government of the territory, and to ensure the security of the Occupying 

371 Hague Convention No. IV Respecting the Laws and Customs of War on Land and its Annex: Regulation
 

Concerning the Laws and Customs of War on Land, Oct. 18, 1907,36 Stat. 2277, T.S. No. 539.
 

372 Id. arts. 48, 49, 53.
 

373 Id. arts. 43, 46, 56.
 

374Id. arts. 44, 45, 47.
 

375 GC, supra note 111, art. 47. 

106 
Power, of the members and property of the occupying forces or administration, 376 and likewise of the establishments and lines of communication used by them.

Article 65 goes on to require that any new laws be published and notice given to 

the inhabitants in their own language prior to coming into force and that such laws may 

not be retroactive.377 It prohibits the forcible transfers or deportations of protected 

persons and requires the occupying power, inter alia, to ensure education and care of 

children; ensure hygiene and public health; protect and respect property; and permit relief 

consignments.378 The occupying power may intern protected persons ifthey meet the 

qualifications ofGC Articles 41, 42, 43,68 or 78. Section IV ofPart III contains the 

regulations for their treatment (e.g., internment location, food and clothing, hygiene and 

medical attention, and religious, physical and intellectual activities). 

In May 2003, the Coalition partners established the Coalition Provisional 

Authority (CPA) to administer Iraq until there was a reconstituted government. UNSCR 

1483 specifically acknowledged the CPA as the civil authority in Iraq?79 It granted the 

CPA an extraordinary amount ofpower with regard to Iraq's political and economic 

affairs, including complete control over Iraq's oil revenues, until the installation of a 

representative, internationally recognized government,380 The CPA head was responsible 

for overseeing and coordinating all executive, legislative, and judicial functions necessary 

for temporary governance of Iraq. These functions included humanitarian relief, 

reconstruction, and assistance in forming an Iraqi interim authority. The CPA's 

immediate goal was to provide basic humanitarian aid and services such as water, 

electricity, and sanitation. 

Over the fourteen months of its existence, the CPA focused on four pillars: 

security, governance, essential services, and the economy. In the governance area, the 

CPA worked with Iraqis to restore sovereignty to the Iraqi people. The July 2003 

establishment of a Governing Council and the June 2004 establishment of the Interim 

Iraqi Government were major steps toward that goal. With regard to essential services, 

the CPA attempted to reconstitute Iraq's infrastructure, maintain oil production, ensure 

food security, improve water and sanitation infrastructure, improve health care quality 

376Id. art. 64. 

377 Id. art. 65. CPA Order No.7 revived the third edition of the 1969 Iraqi Penal Code with Amendments, 

except for parts ofPart II and for capital punishment, which was suspended. CPA Memorandum No.3 

revived the 1971 Criminal Procedure rules with numerous suspensions and the addition of a rights warning. 

Major Sean Watts, The Law of Occupation, PowerPoint Presentation to the 43rd Operational Law Course 

(10 Mar. 2005). 

378 GC, supra note 111, arts. 50-62. 

379 S.C. Res. 1483, supra note 370. 

380 Id. Proceeds from the sale ofpetroleum went into the Development Fund for Iraq, the goal ofwhich 

was to support the economic, humanitarian, and administrative needs ofIraqis. The CPA had complete 

discretion over the expenditure ofthese funds in accordance with those goals. Representatives of the 

International Advisory and Monitoring Board, whose members included UN, International Monetary Fund, 

World Bank, and Arab Fund for Social and Economic Development representatives, audited the fund. 

107 
and access, rehabilitate key infrastructures such as transportation and communications, 

improve education, and improve housing-quality and access. Finally, the CPA tried to 

help Iraq build a market-based economy by: modernizing the Central Bank; 

strengthening the commercial banking sector and re-establishing the Stock Exchange and 

securities market; developing transparent budgeting and accounting arrangements, and a 

framework for sound public sector finances and resource allocation; laying the 

foundation for an open economy by drafting company, labor and intellectual property 

laws and streamlining existing commercial codes and regulations; and promoting private 

business through building up the domestic banking sector and credit arrangements. 381 

Article 6(3) of the GC addresses the issue ofwhen an occupation ends. The 

Article provides that application of the GC, except for selected articles, ceases one year 

after the "general close ofmilitary operations.,,382 This rule was modified by AP I, to 

which the United States is not a party but which the United States recognizes (with 

certain exceptions), as generally reflecting customary international law. Article 3 of AP I 

provides that the application ceases when the occupation terminates.383 

In any case, the UN Security Council, acting under Chapter VII of the UN 

Charter, recognized in UNSCR 1546 that "by 30 June 2004, the occupation will end and 

the Coalition Provisional Authority will cease to exist, and that Iraq will reassert its full 

sovereignty.,,384 Due to security concerns, the United States and Coalition partners 

dissolved the CPA early and returned authority for governing Iraq to the Interim Iraqi 

Government on 28 June 2004.385 The new body shared responsibility for running the 

country under UNSCR 1483, which continued to grant the CPA ultimate authority until 

the election of a sovereign government ratification of a new constitution. 

Under Saddam Hussein's rule, the minority Sunni population had dominated the 

national political scene. In contrast, the CPA appointed a twenty-five member Governing 

Council in July 2003 which was broadly representative ofIraq's population and included 

women and representatives of various religious and ethnic groups. On 1 September 

2003, a twenty-five member cabinet, composed of Iraqis appointed by the Governing 

Council, assumed responsibility for day-to-day government operations of the government 

using the previous Iraqi government organization.386 On 15 November 2003, agreement 

was reached to restore full Iraqi sovereignty by 30 June 2004, to create an interim and 

then permanent constitution, and to hold national elections. 

381 Coalition Provisional Authority, http://en.wikipedia.org/wiki/Coalition_ProvisionaLAuthority (last 

visited Aug. 22, 2008). 

382 GC, supra note 111, art. 6(3). On 1 May 2003, President Bush declared that major combat operations 

had ceased in Iraq. 

383 AP I, supra note 79, art. 3. 

384 S.C. Res. 1546, U.N. Doc. S/RES/1546 (June 8, 2004) [hereinafter S.C. Res. 1546]. 

385 Iraqi Governing Council, http://www.globalsecurity.org/military/world/iraq/igc.htm (last visited Aug. 

24,2008). 

386 Iraqi Cabinet, http://www.globalsecurity.org/military/world/iraq/cabinet-intro.htm (last visited Aug. 24, 

2008). 

108 
The interim constitution or Transitional Administrative Law (TAL) was signed on 

8 March 2004. It defined the structures of a transitional government and the procedures 

for electing delegates to a constitutional convention. The TAL guaranteed freedom of 

speech, the press, and religion, but still respected the Islamic identity of most Iraqis. On 

28 June 2004, the Iraqi Interim Government assumed all governmental authority from the 

CPA, and the TAL became the supreme law ofIraq.387 

387 The TAL was succeeded in its tum by a constitution approved in October 2005. See KENNETH 

KATZMAN, CONGRESSIONAL RESEARCH SERVICE, RS21968, IRAQ: RECONCILIATION AND BENCHMARKS 

(Aug. 4, 2008), available at http://fpc.state.gov/documents/organization/l08305.pdf. 

109 
LM. LEGAL BASIS FOR OPERATIONS 

The "lesson learned" most frequently encountered in contingency operations is 

the importance of understanding the legal basis for the operation, including the authority 

to use force. This is a critical lesson for all JAs and paralegals to understand, as it is a 

question frequently asked by the media. The key questions are often: 

(a) What is the mission? 

(b) How do domestic and international law support the mission? 

Within the context of the mission, it has been necessary for JAs to understand the 

command structure, particularly when conducting operations within an alliance (e.g., 

NATO) or coalition construct. The existence of international agreements that constrain 

or empower operations may well tie into the command and control of deployed forces. 

Accordingly, JAs must understand the domestic and international law and agreements 

that authorize the conduct of the operation and how they affect the military's ability to 

prosecute the mission to a successful conclusion. 

The legal basis for an operation may initially be somewhat fluid, but JAs must be 

prepared to explain with precision the underpinnings of the operation. Generally, 

international law prohibits the use of force by one state against another.388 However, 

there are limited exceptions to this general prohibition.389 While it is relatively easy from 

an academic perspective to describe the limited instances when force may be used, this is 

not always the case in the practical reality of national and international politics. 

LM.l. Operations in Haiti 

Haiti first achieved independence in 1804, but has since suffered from internal 

tension and strain. After a series of successive coups, a presidential election occured on 

16 December 1990. This election, which considered to have been free and fair, elected 

Jean-Bertrand Aristide to the office of president. However, a military coup led by 

Lieutenant General Raoul Cedras removed President Aristide from power in September 

1991. Concern over the repressive Cedras regime led the UN Security Council to 

implement a series ofresolutions in 1993 and 1994 designed to encourage Aristide's 

return to the presidency.39o As a result, General Cedras and President Aristide signed an 

agreement for the resignation of Cedras and the return of Aristide by 30 October 1993 at 

Governors Island, New York. 

Despite this, 1993 concluded without Aristide's return to the Presidency. Given 

the violence and instability, a steadily growing number of Haitians boarded boats and set 

out for the United States. Despite additional international pressure, Haiti's de facto 

388 U.N. Charter art. 2, para. 4. 

389Id. art. 51. 

390 Between 16 June 1994 and 30 January 1995, the Security Council adopted fourteen resolutions on Haiti. 

110 
leaders increased politically-motivated intimidation and repression against Aristide 

supporters using four main instruments: 1) the Haitian armed forces, or Forces Armees 

d'Haiti (FAd'H), which had constitutional responsibility for public security and law 

enforcement and which included a police force; 2) a group ofparamilitary personnel in 

civilian clothes known as "attaches;" 3) a group of provincial section chiefs known as 

"Tontons Macoutes," whom military regulations declared to be adjuncts to the FAd'H; 

and 4) the Revolutionary Front for Advancement and Progress of Haiti (FRAPH), which 

emerged in 1993 and had infiltrated poorer neighborhoods and opened offices in most 

towns and villages. 

Given the increasing number ofHaitians seeking asylum in the United States, the 

United States opened a refuge-processing center at Guantanamo Bay Naval Base, Cuba in 

June 1994. Shortly thereafter, U.S. policy on permitting Haitian migrants to seek asylum 

within the United States changed: The United States would now return Haitians to Haiti 

or take them to "safe havens" in Guantanamo Bay, Panama, and elsewhere. Finally, on 

31 July 1994, the UN Security Council authorized its member states to: 

[F]onn a multinational force under unified command and control and, in this 

framework, to use all necessary means to facilitate the departure from Haiti of the 

military leadership, consistent with the Governors Island agreement, the prompt 

return ofthe legitimately elected President and the restoration of the legitimate 

authorities ofthe Government of Haiti, and to establish and maintain a secure and 

stable environment that will pennit implementation of the Governors Island 

agreement. 391 

On 15 September 1994, President Clinton declared that the United States would 

use force to remove the Cedras regime from power. On 18 September, as 82d Airborne 

Division paratroopers were enroute to Haitian drop zones to remove the regime by force, 

Cedras agreed to step down. However, unwilling to take him at his word, U.S. forces 

began entering Haiti in large numbers beginning on 19 September 1994. 

The series of UNSCRs addressing the crisis in Haiti provided ample guidance to 

JAs on the ground. In particular, UNSCR 940 authorized the multinational force "to use 

all necessary means" to restore the Aristide government and "establish and maintain a 

secure and stable environment", and UNSCR 944 ~rovided further guidance and shaped 

the timing of the UN Mission in Haiti (UNMIH).3 2 Finally, the Carter-Jonassaint 

agreement of 18 September - on its face a bilateral instrument - incorporated UNSCRs 

940 and 917 by reference and instructed U.S. forces that "the Haitian military and police 

forces will work in close cooperation with the U.S. Military Mission" and that "[t]his 

cooperation, conducted with mutual respect, will last during the transitional period 

required for insuring vital institutions ofthe country." UNSCR 940 then, was the 

underlying document that approved the use of force against the military junta within the 

parameters provided by international law. 

391 S.c. Res. 940, U.N. Doc. S/RES/940 (July 31,1994). 

392 ld.; S.c. Res. 944, paras. 1,2, U.N. Doc. S/RES/944 (Sept. 29, 1994). 

111 
LM.2. Operations in Bosnia 

The country of Yugoslavia has had a history of ethnic tension and bloodshed. 

Following World War II, Prime Minister Josip Tito declared it the Federal People's 

Republic of Yugoslavia. It consisted of six republics based on geography and historical 

precedent. These six - Serbia, Croatia, Slovenia, Bosnia and Herzegovina (BiH), 

Montenegro, and Macedonia - did not reflect the natural boundaries of the different 

ethnic groups, but were held together by Tito's iron-fisted rule. 

With Tito's death and the dissolution ofthe Soviet Union, Yugoslavia again 

succumbed to ethnic bloodshed. Slovenia declared its independence in 1991. Though 

the Serb-dominated Yugoslav National Army (JNA) attempted to prevent the breakaway, it was unable to defeat the better prepared Slovenians. Croatia also declared 

independence but did not fare as well. Croatian Serb nationalists, with apparent JNA 

backing, seized about thirty percent of Croatia and proclaimed the independent Republic 

of Serb Krajina. Savage fighting, to include ethnic cleansing and the near destruction of 

historical Dubrovnik, Vukovar, and other population centers, set the tone for the conflict. 

On September 25, 1991, the UN imposed a weapons embargo on all of the former 

Yugoslavia.393 At the end of 1991, the JNA withdrew from Croatia pursuant to a UNsponsored ceasefire between Croatia and Croatian Serbs which left these last in control of 

roughly one-third ofCroatia. 

The UN established the United Nations Protection Force (UNPROFOR).394 

Following international recognition of Slovenia, Croatia, and Macedonia,395 BiH held a 

referendum on independence. On AprilS, 1992, people from all three Bosnian ethnic 

groups - Croats, Muslims, and Serbs - demonstrated in Sarajevo calling for peace. JNAbacked Serb nationalist snipers opened fire into the crowd. The next day, the Bosnian 

war began in earnest between Bosnian government forces and Bosnian Serbs, while the 

JNA laid siege to Sarajevo. The UN authorized full deployment ofUNPROFOR, 

sending approximately 15,000 peacekeeping troops first into Croatia, and later into BiH 

and the Former Yugoslav Republic of Macedonia (FYROM). On May 22, 1992, the UN 

admitted BiH as a member state.396 

With JNA backing, however, the militarily superior Bosnian Serbs controlled 

roughly sixty percent ofBiH by the end of May. Because of continued Serb aggression, 

the UN imposed economic sanctions against Serbia.397 In December 1992, the UN 

expanded UNPROFOR's mandate to include monitoring the border between FYROM 

393 S.c. Res. 713, UN. Doc. S/RES/713 (Sept. 25, 1991). 

394 S.c. Res. 743, UN. Doc. S/RES/743 (Feb. 21,1992). 

395 In January 1992, the then-European Community (now the European Union) recognized Croatian and 

Slovenian independence. US. Dep't of State, Fact Sheet, Chronology of the Balkan Conflict, Dec. 6, 1995. 

Macedonia later received formal recognition as the Former Yugoslav Republic of Macedonia (FYROM). 

396 S.C. Res. 755, UN. Doc. S/RES/755 (May 20, 1992) (recommending to the General Assembly that BiH 

be admitted to UN membership). 

397 S.c. Res. 757, U.N. Doc. S/RES/757 (May 30, 1992). 

112 
and the Federal Republic of Yugoslavia (FRY), now consisting only of Serbia and 

Montenegro. 398 Fighting continued throughout 1993 and the two-sided conflict in BiHMuslim-dominated government forces against Bosnian Serb forces - expanded as war 

also broke out between Muslims and Bosnian Croats. In an effort to help contain the 

conflict, the United States committed several hundred troops to the UNPROFOR mission 

in FYROM.399 

On February 1994, an artillery shell killed sixty-eight civilians in a Sarajevo
 

market. This attack and the continued siege of previously declared UN safe areas led
 

NATO, at the UN's request, to step up its involvement. The North Atlantic Council
 

(NAC) authorized NATO air strikes against artillery and mortar positions around
 

Sarajevo, and declared that any heavy weapons not under UNPROFOR control found
 

within a twenty-kilometer exclusion zone around Sarajevo would be subject to strikes.
 

In 1994, establishment of the U.S.-brokered Muslim-Croat federation ended 

hostilities between those two factions and set the conditions for the Croatian army to 

support the Bosnian Muslims against the Bosnian Serbs. The General Framework 

Agreement for Peace (GFAP) would later reflect this federation.4oo While 1994 ended 

without a viable peace plan, it saw greater NATO involvement, a decrease in the number 

offactions from three to two, and a four-month ceasefire. 

Fighting resumed in 1995, resulting in NATO air strikes that led Bosnian Serbs to 

hold 370 UNPROFOR troops hostage as human shields at potential NATO air targets. In 

June, the NAC approved a plan for a NATO-led operation to withdraw UNPROFOR 

from BiH and Croatia.401 However, before its execution, the Muslim-Croat federation 

seized and held territory in the northwest. This, coupled with a month-long NATO 

bombing campaign, damaged Bosnian Serb military capabilities and by November 1995 

had reduced the territory under their control to one-half ofBiH.402 

With the parity in territory came renewed diplomatic efforts. A U.S.-led 

mediation produced an October 1995 ceasefire and brought the parties to Dayton, Ohio to 

work on a peace settlement.403 On November 21, 1995, the presidents ofCroatia, Serbia, 

and BiH initialed the Dayton Peace Accords (DPA). The DPA, also referred to as the 

General Framework Agreement for Peace in Bosnia and Herzegovina (GFAP), is a wide398 S.C. Res. 795, U.N. Doc. S/RES1795 (Dec. 11, 1992). 

399 S.c. Res. 842, U.N. Doc. S/RES/842 (June 18,1993). This was known as the UN Preventive 

Deployment Force (UNPREDEP). 

400 GFAP, supra note 21. 

401 AFSOUTH OPLAN 40104 provided for the extraction ofUNPROFOR under hostile conditions. At 

USAREUR direction, SETAF developed OPLAN Daring Lion. EUCOM issued a warning order to SETAF 

for OPLAN Daring Lion and CINCSOUTH released OPLAN 40104. As the Bosnia Peace Plan and the 5 

October 1995 ceasefire held, NATO decided not to use OPLAN Daring Lion. Operation JOINT 

ENDEAVOR: USAREUR Headquarters After Action Report, Vol. I at 27 (May 1997). 

402 This bombing campaign was titled Operation DELIBERATE FORCE. 

403 Peace talks opened at Wright-Patterson Air Force Base, near Dayton, Ohio, on 1 November 1995. 

113 
ranging peace agreement that gave birth to a single Bosnian state, with the Bosnian Serb 

Republika Srpska controlling forty-nine and the Muslim-Croat Federation controlling 

fifty-one percent of the territory. There was agreement to schedule federal elections 

within nine months of the formal signing ofthe agreement. 

With the initialing of the DPA, NATO expedited planning for a multinational 

Implementation Force (IFOR). On December 5, 1995, NATO endorsed OPLAN 10405, 

setting the stage for what was then the largest military operation in its history.404 On 

December 14,1995, the parties signed the GFAP.405 The following day, the UN passed 

UNSCR 1031, giving NATO a peace enforcement mandate under Chapter VII of the UN 

Charter to implement the GFAP's military aspects. On December 16,1995, the NATOled IFOR deployed, numbering 60,000 by February 1996, and including troops from all 

sixteen NATO members as well as from eighteen other countries, including Russia. 

As IFOR's mandate - to implement peace - drew to a close, the NAC concluded 

that a reduced military presence406 - a Stabilization Force (SFOR) - was required to 

stabilize the region and allow continued implementation of the civilian aspects ofthe 

GFAP. The UN authorized SFOR to succeed IFOR in December 1996, giving it the 

same authority to implement the GFAP's military aspects.407 

The legal basis for both IFOR and SFOR was the UNSCR authorizing each to use 

force to enforce the GFAP. Annex lA to the GFAP invited the Security Council to 

"establish a multinational military implementation Force" with its purpose to "establish a 

durable cessation of hostilities", and authorized IFOR to "take such actions as required, 

including the use of necessary measures to ensure compliance" with the GFAP.408 In 

UNSCR 1031, the Security Council then authorized member states participating in IFOR 

"to take all necessary measures to effect the implementation of and to ensure 

compliance" with the GFAP.409 

I.M.3. Operations in Kosovo 

The Balkans are historically significant for a number of ethnic groups. The 

province of Kosovo, however, holds special significant for two ethnic groups in 

404 US. Dep't of State, Bureau of European and Canadian Affairs, Fact Sheet, NATO Involvement in the 

Balkan Crisis, May 8, 1997. 

405 BiH, Croatia, and the Federal Republic of Yugoslavia (FRY) were the parties that initialed the Dayton 

Peace Accords on 21 November 1995. Presidents Alija Izetbegovic (BiH), Franjo Tudjman (Croatia), and 

Slobodan Milosevic (FRY) formally signed in Paris, France, on 14 December 1995. The base document is 

known as the General Framework Agreement for Peace in Bosnia-Herzegovina, and contains Articles I-XI 

and eleven annexes. The entity armed forces (EAFs) include the forces of the Bosnian Serbs, Bosnian 

Muslims, and Croatian national factions. GFAP, supra note 21. 

406 From 60,000 to about 31,000 in BiH. 

407 S.C. Res. 1088, UN. Doc. S/RES/l 088 (Dec. 12, 1996). 

408 GFAP, supra note 21, annex la, para. 2.b. 

409 S.C. Res. 1031, paras. 14-15, UN. Doc. S/RES/1031 (Dec. 15, 1995). 

114 
particular, Serbs and Albanians. Serbs view the province as the birthplace of their 

civilization, for it is here that many of the defining events of their history have occurred. 

Accordingly, maintaining control over Kosovo as a Serb province is a fundamental aspect 

of Serb national identity.410 Conversely, the Albanians claim Kosovo based on their 

status as direct descendants of the ancient Illyrian tribes which inhabited a considerable 

amount of land in the Balkans - to include Kosovo - over 2,000 years ago, prior to the 

Greeks and centuries before the Slavic people, including the Serbs, migrated south into 

the Balkans. Today Albanians represent a significant majority - almost 90% - of the 

province's population.411 Two themes emerge regarding Kosovo: the crisis arising in the 

1990s had its roots in events occurring centuries before, and Kosovo holds significant 

value for both Serbs and Albanians.412 

After Tito's death in 1980, the region experienced great destabilization, 

culminating in full-fledged civil war between Serbia and Kosovo by 1998. Battles 

between Serb police and military against the Albanian Kosovo Liberation Army (KLA) 

resulted in the death ofthousands and the displacement of hundreds ofthousands.413 A 

six-country "Contact Group,,414 called for negotiations on autonomy. Former Serb and 

then Yugoslav President Slobodan Milosevic rejected calls for Serbia to cease all military 

action in Kosovo and instead sent in more troops, escalating the fighting. 415 The UN 

Security Council adopted UNSCR 1199 on 23 September 1998.416 It called for an 

immediate ceasefire, an international presence, and the immediate withdrawal of Serb 

troops from Kosovo. NATO authorized air strikes in the event that Milosevic and Serbia 

failed to comply. On 16 October, Milosevic agreed to withdraw his forces from Kosovo. 

NATO suspended the activation of its air strike order and the Organization for Security 

and Cooperation in Europe (OSCE) established the Kosovo Verification Mission 

(KVM).417 

410 See ASSOCIATION OF THE UNITED STATES ARMY, INSTITUTE OF LAND WARFARE, AUSA BACKGROUND 

BRIEF: ROOTS OF THE INSURGENCY IN Kosovo 1(June 1999). 

411 STEPHEN SCHWARTZ, Kosovo: BACKGROUNDTOA WAR at 8, 12-13 (2000). 

412 See Kosovo LL, supra note 126, at 8-43 (describing the history of the region). 

413 Id. at 34. 

414 The six-member group included representatives from France, Germany, Italy, Russia, the UK, and the 

United States. It was established by the 1992 London Conference on the Former Yugoslavia, which sought 

to give the international community a "better foundation to defuse, contain, and bring to an end the conflict 

in the former Yugoslavia" by establishing "a new, permanent negotiating forum, co-chaired by the United 

Nations and European Community." Press Release, Statement by Press Secretary Fitzwater on the London 

Conference on the Former Yugoslavia (Aug. 28, 1992), available at 

http://bushlibrary.tamu .edu/papersI1992/92082802.html. 

415 Kosovo LL, supra note 126, at 34, citing ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE 

(OSCE), Kosovo: THE HISTORICAL AND POLITICAL BACKGROUND, Kosovo/KoSOVA: As SEEN, As TOLD 

4-5 (1999). 

416 S.c. Res. 1199, U.N. Doc. S/RESI1199 (Sept. 23, 1998). The Security Council acted pursuant to its 

authority under Chapter VII of the UN Charter. The vote was unanimous, with China abstaining. 

417 Kosovo LL, supra note 126, at 35. 

115 
The international community subsequently received reports of a January 1999 

Serb massacre offorty-five Albanians in the village ofRacak. NATO issued a warning 

to both sides that it would resort to military force ifthey did not heed the terms ofthe 

16 October ceasefire. The Contact Group announced a February 1999 peace conference 

in Rambouillet, France. Serbia and the Kosovar Albanians received draft proposals on a 

potential resolution and had the opportunity to comment on them. 418 

While Serbia initially indicated a willingness to sign the draft proposal, it 

subsequently reneged. As the negotiations ended, the violence in Kosovo intensified, the 

KVM withdrew, and NATO again threatened a military response.

419 The U.S. negotiator, 

Richard Holbrooke, attempted one last time to convince Milosevic to sign the agreement 

and prevent the use of military force, but his efforts failed. On 24 March, NATO forces 

initiated air strikes against Serb targets. These did not immediately achieve the intended 

effect, and initially led to intensification of Serb assaults on Albanians. However, on 

3 June 1999, Milosevic and the Serb National Assembly accepted a peace plan. On 

9 June, the Federal Republic of Yugoslavia and Republic of Serbia signed the Military 

Technical Agreement (MTA) with NATO and on 10 June 1999, seventy-eight days after 

the bombing had begun, Operation ALLIED FORCE ended with the withdrawal of Serb 

forces from Kosovo. 

UNSCR 1244 endorsed the peace plan, which created an international civilian 

presence (UN Interim Administration Mission in Kosovo (UNMIK)) and an international 

security force (KFOR), and delineated their separate responsibilities.42o The UNSCR 

also provided the Special Representative of the Secretary General with tremendous 

authority, including the ability to change, suspend, or repeal existing laws; appoint 

persons to perform functions within the interim administration; and issue legislation in 

the form of regulations. These regulations addressed a broad spectrum of government 

responsibilities, and many had significant legal implications.42 

The MTA required all FRY military forces to leave Kosovo and withdraw five 

kilometers behind the Kosovo-Serbia border, beyond an area described as the "ground 

safety zone." It also required all FRY aircraft and air defense systems to remain at least 

twenty-five kilometers beyond the Kosovo border, creating an "air safety zone." The 

MTA gave the KFOR Commander the authority to "take all action necessary to establish 

418 See Rambouillet Accords: Interim Agreement for Peace and Self-Government in Kosovo, unsigned, 

Fed. Rep. Yugo.-Serb.-Kosovo, U.N. Doc. S/1999/648 (1999). The Rambouillet Accords were a threeyear interim agreement designed to provide democratic self-government, peace, and security for Kosovo. 

U.S. Dep't of State, Bureau ofEuropean Aff., Understanding the Rambouillet Accords (Mar. 1, 1999), 

available at http://www.state.gov/www/regions/eur/fs_990301Jambouillet.htm!. The Accords set forth a 

framework to transform Kosovo into an autonomous province within the Yugoslav federation and achieve a 

final settlement for Kosovo in three years. Id. at 1-2. Pursuant to the agreement, the FRY would withdraw 

its forces from Kosovo, the KLA would disarm, and NATO troops would enter Kosovo to keep the peace. 

419 Kosovo LL, supra note 126, at 37. 

420 S.C. Res. 1244, U.N. Doc. S/RES/1244 (June 10, 1999) [hereinafter S.C. Res. 1244]. 

421 For additional information on the UNMIK mission, see http://www.unmikonline.org/intro.htm (last 

visited Aug. 4, 2008). 

116 
and maintain a secure environment" for all citizens ofKosovo.422 Broad interpretation of 

this clause, originally intended for use against uncooperative FRY and Serb forces, 

provided the KFOR Commander with great flexibility in addressing a multitude of 

problems including Kosovar Albanian violence.423 

As in Bosnia, the NATO-led force in Kosovo operated under the authority of an
 

international peace agreement subsequently endorsed by the UN Security Council in
 

UNSCR 1244.
 

LM.4. Operations in Afghanistan 

On September 11,2001, terrorists hijacked four planes, flew two of them into the 

twin towers of the World Trade Center, and one of them into the Pentagon, and crashed 

the fourth in a Pennsylvania field. More than 3,000 civilians from over eighty different 

nations died in the attack.424 

The international community quickly rallied to the aid of the United States. On 

12 September, the UN Security Council issued UNSCR 1368, unequivocally condemning 

the attacks, regarding them as "threat to international peace and security," and 

recognizing the "inherent right ofindividual or collective self-defense in accordance with 

[Article 51] ofthe Charter.,,425 That same day, NATO invoked Article V of its treaty for 

the first time in its history. In doing so, NATO recognized the individual and collective 

right of self defense, as described in Article 51 ofthe UN Charter, allowing its members 

to come to the aid of the United States through armed force, if necessary, to restore and 

maintain the security ofthe North Atlantic area.

426 Shortly thereafter, the Security 

Council reaffirmed the "need to combat by all means, in accordance with the Charter of 

the United Nations, threats to international peace and security caused by terrorist acts.,,427 

422 Military Technical Agreement between the International Security Force ("KFOR") and The 

Governments of the Federal Republic of Yugoslavia and the Republic of Serbia, June 9, 1999 [hereinafter 

KFOR MTA], available at http://www.nato.int/kosovo/docu/a990609a.htm. A copy of the MTA is also 

included in Kosovo LL, supra note 126, app. IV-I. 

423 See Martins Presentation, supra note 326. 

424 THE WHITE HOUSE, THE GLOBAL WAR ON TERRORISM: THE FIRST 100 DAYS 3 (Dec. 2001), available at 

http://www.whitehouse.gov/news/releases/2001/12/100dayreport.html (last visited Aug. 25, 2008). 

425 S.c. Res. 1368, U.N. Doc. S/RES/1368 (Sept. 12,2001). 

426 Article V ofthe NATO Treaty states that: 

The Parties agree that an armed attack against one or more ofthem in Europe or North 

America shall be considered an attack against them all and consequently they agree that, 

if such an armed attack occurs, each ofthem, in exercise of the right of individual or 

collective self-defense recognized by Article 51 ofthe Charter ofthe United Nations, will 

assist the Party or Parties so attacked by taking forthwith, individually and in concert 

with the other Parties, such action as it deems necessary, including the use of armed 

force, to restore and maintain the security ofthe North Atlantic area. 

427 S.c. Res. 1373, U.N. Doc. S.RES/1373 (Sept. 28, 2001). 

117 
On 18 September 2001, the U.S. Congress passed a Joint Resolution, by a vote of 

98-0 in the Senate and 420-1 in the House of Representatives, authorizing the President 

"to use all necessary and appropriate force against those nations, organizations, or 

persons he determines planned, authorized, committed or aided the terrorist attacks ... or 

harbored such organizations or persons.,,428 President George W. Bush then issued an 

Executive Order blocking the property of, and prohibiting transactions with, persons who 

commit, threaten to commit, or support terrorism.429 Echoing this, the UN Security 

Council issued a second UNSCR calling on states to prevent and suppress the financing 

of terrorist acts and to freeze funds and other assets of persons who commit, or attempt to 

commit, terrorist acts or participate in or facilitate such acts. The UNSCR also asked 

states to prohibit their nationals or persons within their territories from making funds and 

other assets available for the benefit of terrorists.430 

The United States quickly identified the al Qaeda terrorist group as being 

responsible for the attack and in a 20 September 2001 speech to Congress, President 

Bush called on the Taliban to close all terrorist training camps and tum over Osama bin 

Laden and his supporters.431 The United States began forming a coalition to capture 

Osama bin Laden, destroy al-Qaeda in Afghanistan, and remove the Taliban regime. At 

one point, more than 14,000 troops from twenty-seven nations participated in the 

resulting U.S.-led Operation ENDURING FREEDOM (OEF).432 The OEF campaign 

plan proposed that the United States would "destroy the al Qaeda network inside 

Afghanistan along with the illegitimate Taliban regime which was harboring and 

protecting the terrorists.,,433 The plan was to attack Taliban military installations and al 

Qaeda terrorist camps with aircraft and cruise missiles, while using Special Forces to 

direct and support Afghan Northern Alliance resistance forces with air-delivered 

precision weapons. Simultaneously, humanitarian aid would be air-dropped to the 

Afghan people.434 

428 Authorization to Use Military Force, Pub. 1. 107-40,115 Stat. 224 (Sept. 18,2001). Congress declared 

the intent of this section was to constitute specific statutory authorization within the meaning of section 

5(b) of the War Powers Resolution. Id. § 2(b). 

429 Exec. Order No. 13,224,66 Fed. Reg. 49,079 (Sept. 25, 2001) (blocking property and prohibiting 

transactions with persons who commit, threaten to commit, or support terrorism). 

430 S.c. Res. 1373, para. 1, UN. Doc S/RES/1373 (Sept. 28, 2001). The UNSCR also called upon states to 

refrain from providing any support to terrorists, take steps to prevent the commission of terrorists acts or 

provide safe havens, prevent movement of terrorists or terrorist groups by effective border controls, and 

find ways to intensify and accelerate the exchange of operational information. Id. para. 2, 3. 

431 President George W. Bush, Address to the Joint Session of Congress and the American People 

(September 20, 2001), http://www.whitehouse.gov/news/releases/200 1/09/200 10920-8.html. 

432 Operation ENDURING FREEDOM: One Year of Accomplishment, 

www.whitehouse.gov/infocus/defense/enduringfreedom.html(last visited Aug. 25, 2008). 

433 Operation ENDURING FREEDOM - Afghanistan, 

http://www.globalsecurity.org/military/ops/enduring-freedom.htm (last visited Aug. 25, 2008) [hereinafter 

OEF Operations]. 

434 Id. 

118 
On 7 October 2001, U.S. forces began combat operations in Afghanistan,435 and 

Ambassador John Negroponte, US. Permanent Representative to the UN, informed the 

UN Security Council of the US. actions and their legal basis, Article 51 ofthe UN 

Charter.436 Two weeks of around-the-clock attacks followed, at the end of which most al 

Qaeda training camps had been severely damaged, Taliban air defenses destroyed, and 

command and control assets severely degraded.437 On the night of 19 October, the 

ground war began in earnest with a strike on the Kandahar residence of Taliban leader 

Mullah Omar and on an airfield south ofthe city. At the same time, special forces were 

helicoptered in to link up with Northern Alliance forces. 438 On 9 November 2001, the 

Northern Alliance began its offensive with a push on Mazar-e-Sharif. The city fell, after 

only one day of fighting, to the forces of Generals Rashid Dostum and Mohammed Atta, 

triggering the collapse of Ta1iban forces throughout northern Afghanistan.439 Four days 

later, the Northern Alliance army of General Fahim Khan moved into Kabul. They 

encountered only light resistance, the Taliban having fled the city the previous night. 

On 25 November, the first extensive US. ground forces entered Afghanistan 

when Combined Task Force 58 (CTF-58) seized Forward Operating Base (FOB) Rhino, a 

dirt airfield near Kandahar. On 1 December 2001, General Hamid Karzai's forces began 

to close on Kandahar from the north while the forces of commander Gu1 Agha Sherizai 

moved in from the south. Kandahar fell on 7 December, marking the end ofthe Taliban 

regime. However, Taliban leader Mullah Omar escaped prior to the capture ofthe city. 

The United States and the Northern Alliance stepped up attacks on al Qaeda remnants in 

the Tora Bora Mountains, killing hundreds of al Qaeda fighters during two weeks of 

heavy ground fighting and air strikes. By 17 December, the remainder fled to Pakistan, 

marking the end of the first phase of combat in Afghanistan. 

On 29 January 2002, Task Force (TF) Rakkasan formed. Combined Joint Task 

Force 180 (CJTF-180), commanded by the XVIII Airborne Corps Commander assumed 

435 See Letter from the President to the Speaker of the House of Representatives and the President Pro 

Tempore of the Senate (Oct. 7, 2001), available at www.whitehouse.gove/news/releases/200l/1 0/200 II09­

6.html. See also Exec. Order 13,239,66 Fed. Reg. 64,907 (Dec. 14,2001) (designating September 19, 

2001, as the date of commencement of combat activities in that zone for purposes of section 112 of the 

Internal Revenue Code (26 U.S.C. § 112)). 

436 See Letter from John D. Negroponte, United States Permanent Representative to the United Nations, to 

Richard Ryan, President of the U.N. Security Council, Oct. 7,2001, available at 

http://www.usembassy.it/file2001_10/alia/all00807.htm. Ambassador Negroponte stated: 

In accordance with Article 51 ofthe Charter ofthe United Nations, I wish, on behalf of 

my Government, to report that the United States of America, together with other States, 

has initiated actions in the exercise of its inherent right of individual and collective self 

defense following armed attacks that were carried out against the United States on 

September 11, 2001. 

437 Encyclopedia: U.S. Invasion of Afghanistan, http://www.nationmaster.comlencyclopedia/U.S.­

Invasion-of-Afghanistan (last visited Aug. 25, 2008) [hereinafter Encyclopedia: Afghanistan]. 

438 Frontline: Campaign Against Terror: Chronology, 

http://www.pbs.org/wgbh/pages/frontline/shows/campaignletc/cron.html (last visited Aug. 25, 2008). 

439 Encyclopedia: Afghanistan, supra note 437. 

119 
responsibility for U.S. forces in Afghanistan in mid-May 2002.440 In April 2004, CJTF 

180 became CJTF-76 (succeeded in its tum by CJTF-82 and CJTF-I0l).441 

Afghan factions met in Bonn, Germany in December 2001 to discuss the 

restoration of stability and governance to Afghanistan.442 The ensuing Bonn Agreement 

included a request to the Security Council for a UN-mandated military force. 443 This led 

to UNSCR 1386, which authorized the presence ofa security assistance force under 

Chapter VII of the UN Charter.444 The resulting NATO-led International Security 

Assistance Force (ISAF) is carrying out NATO's first mission outside the Euro-Atlantic 

445 

area. Thirty-seven nations contribute forces to ISAF. While ISAF's original mandate 

was to operate in and around Kabul, the ISAF area of operations gradually expanded to 

include all of Afghanistan by 2006.446 The United States is the largest troop contributor, 

but some U.S. forces continue to operate under the separate OEF mandate. 

The Bonn Agreement also established the Afghan Interim Authority (AlA) and 

Hamid Karzai took office in Kabul on December 22, 2001 as its head. The AlA 

remained in power for approximately six months while laying the foundation for a 

nationwide "Loya Jirga" (Grand Council) in mid-June 2002. This election decided the 

structure of a Transitional Authority, again headed by Hamid Karzai. One ofthe 

Transitional Authority's primary achievements was the drafting of a constitution ratified 

by a Loya Jirga on January 4,2004. Afghanistan held its first democratic presidential 

election on October 9,2004. More than 8 million Afghans voted, forty-one percent of 

whom were women. Hamid Karzai took office on December 7 for a five-year term as 

president. Elections were held for the lower house ofAfghanistan's bicameral National 

Assembly on September 18, 2005 and the first democratically elected National Assembly 

since 1969 was inaugurated on December 19,2005.447 

The legal basis for OEF operations continues to be that of individual and 

collective self-defense under Article 51 of the UN Charter. While the Taliban regime has 

fallen, and al Qaeda's operations are disrupted, OEF operations deny the enemy 

440 OEF Operations, supra note 433. 

441 This change reflected the fact that the XVIII Airborne Corps Commander was no longer in command as 

XVIII Airborne Corps Soldiers had been replaced by members of the 25th Infantry Division. See 

Combined Joint Task Force 76, http://www.globalsecurity.org/military/agency/dod/jtf-180.htm (last visited 

Aug. 25, 2008). 

442 U.S. Dep't of State, Bureau of South Asian Affairs, Background Note: Afghanistan, 

http://www.state.gov/r/pa/ei/bgn/5380.htm (last visited Aug. 25,2008). 

443 See Bonn Agreement, supra note 278. 

444 S.c. Res. 1386, supra note 280. 

445 See ISAF website, http://www.nato.int/issues/isaf/index.html (last visited Aug. 25, 2008). NATO has 

since become involved in Iraq, where it provides a training mission, and Sudan (assistance to the AU). 

446 Jd. 

447 Jd. 

120 
sanctuary in Afghanistan.448 Additionally, OEF forces operate within Afghanistan at the 

request of, and with the consent of, the Afghan government. Finally, OEF forces 

participate in international efforts to deliver humanitarian aid, train the Afghan National 

Army, and provide security to the Afghan government and society.449 UNSCRs 1386, 

1510, and 1776, all under Chapter VII of the UN Charter provide the legal basis for 

ISAF's presence in Afghanistan.45o In sum, U.S. forces carry out military operations in 

Afghanistan with the consent ofthe Afghan government, under the Article 51 right of 

individual and collective self-defense, and pursuant to ISAF's Chapter VII mandate. 

I.M.5. Operations in Iraq 

To understand the legal justification for the U.S. use offorce against Iraq in 2003, 

it is helpful to begin with Iraq's 1990 invasion of Kuwait, in response to which the UN 

Security Council adopted UNSCRs 660 (demanding Iraq's withdrawal) and 678 

(authorizing the use of "all necessary means" to expel Iraq from Kuwait).451 With UN 

Security Council approval, the U.S.-led coalition launched Operation DESERT STORM 

on 17 January 1991, rapidly and forcefully ejecting Iraqi forces from Kuwait. 

In April 1991, the Security Council adopted UNSCR 687. It formalized the 

ceasefire between Iraqi and Coalition forces, and obliged Iraq to "unconditionally accept 

the destruction, removal, or rendering harmless under international supervision," ofits 

chemical and biological weapons and long-range ballistic missile capabilities. It also 

prohibited Iraq from acquiring or developing nuclear weapons.

452 Iraq initially complied 

with these requirements, but over the next eight years became incrementally less 

observant ofits obligations, culminating in 1998 with the cessation of all cooperation 

with the UN Special Commission and the International Atomic Energy Agency. 

The Security Council imposed sanctions, and continued Iraqi noncompliance with 

UN requirements, particularly the refusal to allow weapons inspectors full freedom of 

action in dismantling the WMD program, caused these to remain in place until the U.S.­

led Coalition removed the Ba'ath regime in 2003. Under the UN oil-for-food program, 

448 See Testimony on Operation Enduring Freedom, Hearing Before the Senate Armed Services Comm., 

107th Congo 3, July 31, 2002, available at 

http://www.senate.gov/~anned_services/statemnt/2002/July/Rumsfeld2.pdf (statement of Donald H. 

Rumsfeld, U.S. Secretary of Defense) (referring to continuing U.S. military operations in Afghanistan: 

"Our goal in Afghanistan is to ensure that the country does not, again, become a terrorist training ground. 

That work, of course, is by no means complete. Taliban and Al Qaeda fugitives are still at large."). 

449 See Joint Declaration ofthe United States-Afghanistan Strategic Partnership, May 23, 2005, 

http://www.whitehouse.gov/news/releasesI2005/05/20050523-2.html. 

450 See generally NINA M. SERAFINO, CONGRESSIONAL RESEARCH SERVICE, PUB. No. IB94040, 

PEACEKEEPING: ISSUES OF U.S. MILITARY INVOLVEMENT 4-5 (Mar. 14,2003), available at 

http://www.ncseonline.org/nle/crsreports/03Apr/IB94040.pdf. 

451 S.c. Res. 660, U.N. Doc. S/RES/660 (Aug. 2, 1990) [hereinafter S.C. Res. 660]; S.C. Res. 678, U.N. 

Doc. S/RES/678 (Nov. 29,1990). 

452 S.c. Res. 687, U.N. Doc. S/RES/687 (Apr. 3, 1991) [hereinafter S.C. Res. 687]. 

121 
however, Iraq could export oil and use the proceeds to purchase goods to meet essential 

civilian needs, including food, medicine, and infrastructure spare parts.453 

The 1991 ceasefire did not mean an end to hostilities. In August 1992, "no-fly 

zones" were established over Iraq north of the 36th parallel and south of the 32nd (later 

expanded to the 33rd) parallel in response to Saddam Hussein's attacks on Iraq's Kurdish 

minority in the northern part of the country and Shia Muslims in the southern part in 

violation ofUNSCR 688.454 The Combined Task Force (United States, UK, and Turkey) 

under Operations PROVIDE COMFORT (1992-96) and NORTHERN WATCH (1997­

2003) enforced the northern no-fly zone. Joint Task Force Southwest Asia (United 

States, UK, France and Saudi Arabia) under Operation SOUTHERN WATCH (1992­

2003) enforced the southern no-fly zone. 

Tensions flared in 1996 as Saddam Hussein again attacked Kurdish areas in 

Northern Iraq. The Coalition response consisted of sea- and air-launched cruise missile 

attacks.455 Similarly, on 16 December 1998, in response to Iraq's halting of UN weapons 

inspections, the United States and UK launched four days of air strikes with cruise 

missiles and aircraft (Operation DESERT FOX).456 Following these strikes, the Coalition 

began a four-year "low-profile" war of attrition against Iraqi air defense and military 

targets that lasted until the onset of Operation IRAQI FREEDOM (OIF).457 

Following Operation DESERT FOX, Iraq continued to deny access to UN 

weapons inspectors, resulting in growing concern that Saddam Hussein was 

reconstituting chemical and biological weapons stockpiles and advancing a nuclear 

weapons program. The events of 11 September 2001 led some to urge immediate action 

against Saddam Hussein's regime. However, U.S. efforts focused initially on 

Afghanistan. Soon after the fall ofthe Taliban, however, President George W. Bush, in 

his January 2002 State of the Union address, identified Iraq as part of "an axis of evil" 

and stated that the United States "would not permit the world's most dangerous regimes 

to threaten us with the world's most destructive weapons. ,,458 

In the face of continued Iraqi intransigence over revealing and destroying its 

WMD program, President Bush appeared before the UN General Assembly on 

12 September 2002 to urge the UN to acknowledge the danger posed by Iraq. President 

Bush made it clear the "United States [would] work with the U.N. Security Council for 

453 See S.c. Res. 986, U.N. Doc. S/RES/986 (Apr. 14, 1995). 

454 S.c. Res. 688, U.N. Doc. S/RES/688 (Apr. 5, 1991). 

455 Operation DESERT STRIKE, http://www.globalsecurity.org/military/ops/desert_strike.htm (last visited 

Aug. 22, 2008). 

456 Operation DESERT FOX, http://www.globalsecurity.org/military/ops/desertjox.htm (last visited Aug. 

22,2008). 

457American Friends Service Committee, Iraq War Timeline (Sept. 2003). 

458 President George W. Bush, State of the Union Address, Jan. 29,2002, available at 

http://www.whitehouse.gov/news/releases/2002/0 1120020 l29-11.html. 

122 
the necessary resolutions. But the resolutions [would] be enforced ... or action [would]
 

be unavoidable.,,459 This confirmed the United States would seek Security Council
 

authorization for the use offorce against Iraq. However, if the Security Council did not
 

grant such authorization, it mi?cht well pursue unilateral action to enforce previous
 

Security Council resolutions.4 

0
 

A 10 October 2002 Joint Resolution of Congress authorizing the use of force 

against Iraq followed this speech.461 The UN Security Council also passed UNSCR 

1441, which imposed tough new inspections on Iraq, precisely defined the actions that 

Iraq had to take to avoid being in material breach ofthe resolution, and threatened 

"serious consequences" in the event ofIraqi non-compliance. The Security Council noted 

Iraq had been and remained in material breach ofthe obligations imposed by UNSCR 

687 and subsequent UNSCRs, and gave Iraq "a final opportunity" to comply with its 

disarmament obligations and submit to an "enhanced" inspection regime.462 UNSCR 

1441, however, did not authorize the use of force. 

After continued Iraqi government opposition to inspections and inspectors, the 

United States, UK, and Spain proposed on 24 February 2003 that the Security Council 

authorize the use of force. This effort was unsuccessful due to strong resistance from 

Russia, France, and Germany, but the United States decided to proceed with a "coalition 

ofthe willing" and commenced combat operations against Iraq on 19 March 2003.463 

The U.S. Government's asserted legal basis for the use of force in Iraq was that 

U.S. and Coalition actions were a continuation of those authorized by the UN for the first 

Gulf War.464 UNSCR 678 authorized member states to use "all necessary means to 

459 President George W. Bush, Address to the United Nations General Assembly, Sept. 12,2002, available 

at http://www.whitehouse.gov/news/releases/2002/09/print/20020912-1.html. 

460 OEF/OIF LL, Vol. I, supra note 92, at 20. 

461 H.R.J. Res. 114. 107th Congo (2002). 

462 S.C. Res. 1441, U.N. Doc. S/RES/1441 (Nov. 8,2002) [hereinafter S.C. Res. 1441]. 

463 OEF/OIF LL, Vol. I, supra note 92, at 21. 

464 The inherent right of self defense, codified in Article 51 ofthe UN Charter, has also been cited as a basis 

for OIF. In his 2004 State of the Union Address President Bush said that: 

Our greatest responsibility is the active defense ofthe American people.... As part of 

the offensive against terror, we are also confronting the regimes that harbor and support 

terrorists, and could supply them with nuclear, chemical, or biological weapons. The 

United States and our allies are determined: We refuse to live in the shadow of this 

ultimate danger. ... After the chaos and carnage of September the 11 th, it is not enough 

to serve our enemies with legal papers. The terrorists and their supporters declared war 

on the United States, and war is what they got. ... From the beginning, America has 

sought international support for our operations in Afghanistan and Iraq, and we have 

gained much support. There is a difference, however, between leading a coalition of 

many nations, and submitting to the objections of a few. America will never seek a 

permission slip to defend the security of our country. 

President George W. Bush, State ofthe Union Address (Jan. 20, 2004), available at 

http://www.whitehouse.gov/news/releases/2004/0 1/print/20040 120-7.html. 

123 
uphold and implement UNSCR 660 and all subsequent relevant resolutions and to restore 

international peace and security in the area.,,465 UNSCR 687 then formalized the 1991 

ceasefire and placed corresponding obligations on Iraq with respect to its WMD 

capabilities.466 UNSCR 1441 declared Iraq in material breach ofUNSCRs 660,687, and 

others, gave Iraq a final opportunity to comply, and warned that Iraq would face "serious 

consequences" if violations continued.467 Since Iraq had not complied with its 

obligations pursuant to these resolutions and because Iraq had breached its obligations 

under UNSCR 687 (which never terminated the authorization for the use of force in 

UNSCR 678), the ceasefire was null and void and the authorization to use "all necessary 

means" to return peace and stability to the region contained in UNSCR 678 remained in 

effect. Although a UNSCR explicitly authorizing the use of force might have been 

helpful, it was the U.S. position that such a resolution was not legally necessary.468 

Critics argued that UNSCR 1441 did not provide authority to use force against 

Iraq and that acquiring such authority required a new UNSCR.469 They further contended 

Article 51 states that "Nothing in the present Charter shall impair the inherent right of individual or 

collective self-defense if an armed attack occurs against a Member of the United Nations." Under Art. 51, 

exercising the right of self-defense does not require explicit authorization, but it does require a predicate 

armed attack. Indeed, the United States exercised its inherent right of self-defense through OEF without 

explicit Security Council authorization in response to the armed attacks of 11 September 2001. Assuming 

that OIF was conducted wholly or partly in self-defense, it must have been anticipatory self-defense. The 

concept of anticipatory self-defense is not discussed in the UN Charter but is recognized in many 

international legal experts as part of customary international law though some disagree and believe that the 

concept was incorporated into, or superseded by, Art. 51. Anticipatory self-defense appears to be explicitly 

recognized by the United States, as its National Security Strategy of2002 contemplates that although the 

United States will "constantly strive to enlist the support of the international community, we will not 

hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively against such 

terrorists, to prevent them from doing harm against our people and country." See NATIONAL SECURITY 

COUNCIL, THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA 6 (Sept. 2002), 

http://whitehouse.gov/nsc/nss.html. 

465 See S.c. Res. 660, supra note 451. 

466 See S.c. Res. 687, supra note 452. 

467 See S.c. Res. 1441, supra note 462. 

468 In response to a reporter's question (in Spanish) concerning apparent French opposition to a draft 

UNSCR specifically authorizing the use of force in Iraq, the U.S. Representative to the UN, Ambassador 

Negroponte, stated (in Spanish): 

In the first place, I do not agree with you that the majority of the [Security] Council is 

against [the proposed Resolution authorizing force]. As I said before, we believe that ifit 

were not for the threat of a veto [from France and Russia], it would have been very 

possible to win passage of our resolution. But, in the second instance, as I said in English, 

we think that there is full authority in Resolution 1441, Resolution 687 and 678 with 

regard to the possible use of force [against Iraq]. 

United States Permanent Representative to the United Nations, John D. Negroponte, Public Remarks 

following Security Council Consultations on Iraq, 17 Mar. 2003, available at 

http://www.un.int/usa/03_035.htm. 

469 See Julia Preston, Threats and Responses: United Nations; Security Council Votes, 15-0, For Tough 

Iraq Resolution; Bush Calls it a 'Final Test', N.Y. TIMES, Nov. 9,2002, at Al ("France led the way in 

124 
that the U.S. Government position, in the absence of an explicit authorization ofthe use 

of force (as was the case for the first Gulf War in UNSCR 678) depended upon its own 

interpretation ofthe UNSCR. This, they contended, ran counter to the plain language of 

Article 39 of the UN Charter, particularly given the markedly different interpretations of 

co-equal permanent members ofthe Council: 

The Security Council shall detennine the existence of any threat to the peace, 

breach of the peace, or act of aggression and shall make recommendations, or 

decide what measures shall be taken ... to maintain or restore international peace 

and security.470 

Although examination of the nuances ofthis disagreement is beyond the scope of 

this publication, it is important to note that this debate continues. As one author notes: 

Iraq has become an occasion to revisit the issue [of the preemptive use of force]. 

Iraq had not attacked the U.S., nor did it appear to pose an imminent threat of 

attack in traditional military tenns. As a consequence, it seems doubtful that the 

use of force against Iraq could be deemed to meet the traditional legal tests 

justifYing preemptive attack. But Iraq may have possessed WMD, and it may 

have had ties to terrorist groups that seek to use such weapons against the U.S. If 

evidence is forthcoming on both of those issues, then the situation necessarily 

raises the question that the Bush Administration articulated in its national 

security strategy, i. e., whether the traditional law ofpreemption ought to be 

recast in light of the realities ofWMD, rogue states, and terrorism. Iraq likely 

will not resolve that question, but it is an occasion to crystallize the debate. 471 

However, U.S. political and military leaders took the position that UNSCR 

1441, as well as the series of UNSCRs dating back to 1990, when the Secuirty 

Council first passed UNSCR 660, provided sufficient authority to invade Iraq. 

Since then, the UN Security Council has passed several UNSCRs in relation to 

Iraq. In May 2003, UNSCR 1483 called upon member states to contribute to 

establishing stability and security in Iraq; in October 2003, UNSCR 1511 

authorized a multinational force under unified command, and urged member 

states to contribute to it. The resulting force is known as Multi-National Force ­

Iraq (MNF-I). 

Recent OIF AARs have reiterated the requirement for JAs to ensure early in the 

deployment that commanders are familiar with relevant UNSCRs and aware ofthe 

limitations that they impose upon operations, particularly detention operations.472 A 4ID 

OSJA AAR also observed that, while JAs had generally interpreted the mandate set out in 

insisting that military action could be authorized only in a second stage, after the weapons inspectors did 

their work and if and when they detected Iraqi violations ofthe inspections regime."). 

470 UN. Charter art. 39. 

471 DAVID M. ACKERMAN, CONGRESSIONAL RESEARCH SERVICE, RS21314, INTERNATIONAL LAW AND THE 

PREEMPTIVE USE OF FORCE AGAINST IRAQ 6 (Apr. 11,2003). 

472 101st ABN DIV 2007 OIF AAR, supra note 73, at 17. 

125 
UNSCR 1546 very broadly to allow most military operations and policies (as long as they 

were in compliance with the LOW and ROE), any policies that the Coalition sought to 

enforce upon the Iraqi population - e.g., weapons control measures or curfews - were 

coordinated with the Iraqi government to ensure buy_in.473 

If, as seems likely, a bilateral agreement between Iraq and the United States 

replaces the UN Security Council mandate in early 2009, JAs will need to ensure 

commanders are aware of its provisions and any resulting constraints upon the conduct of 

operations.474 

473 This approach is somewhat different from that taken by NATO, which places policy restrictions upon 

ISAF-assigned forces through its series of operational plans (OPLANs), as well as the ROE. As a result, 

ISAF commanders may only conduct operations that are consistent with the UN mandate, comply with the 

OPLANs, and are permissible under ISAF ROE. 

474 Judge Advocates advising commanders planning combined operations with Iraqi forces may also wish 

to have some understanding of the legal basis for Iraqi operations to ensure that those operations will be in 

accordance with Iraqi law. 

126 
LN. RULE OF LAW (ROL) 

The planning of and support to rule of law (RoL) initiatives must begin with a 

thorough understanding ofU.S. policy,475 the roles and resources of other U.S. 

Government (USG) agencies, and rapidly evolving stability, support, transition and 

reconstruction (SSTR) doctrine. The confluence ofrecent policy developments, coupled 

with the growing recognition ofthe role ofRoL activities, will lead to greater command 

emphasis in this area. Staff Judge Advocates preparing for an upcoming deployment 

should anticipate commanders and staffs will expect the OSJA, along with CA and MP 

representatives, to take on operational responsibilities for RoL activities. Furthermore, 

the emphasis on RoL is likely to continue to grow, given that DOD Directive 3000. 05 

establishes DOD policy that stability operations, including support to SSTR activities, are 

a core U.S. military mission with a priority comparable to combat operations.476 

Although this is an area ofrapid doctrinal evolution, JAs confronted with a 

requirement to develop or execute a RoL component of an SSTR plan477 

can consult the 

Rule ofLaw Handbook: A Practitioner's Guide to leverage an increasingly sophisticated 

understanding ofthe planning and implementation ofRoL activities.478 Other USG 

agencies and non-governmental organizations (NGOs) can also provide reports and 

materials with additional insights.479 

To be successful in this arena, JAs must: 

•	 become familiar with SSTR doctrine and policies; 

•	 identifY early all ofthe agencies involved in RoL projects and establish liaison 

between the command, local officials, and these entities; aggressively pursue 

the development of an interagency working group to synchronize efforts and 

resources even if it is ad hoc in nature;480 

475 NATIONAL SECURITY PRESIDENTIAL DIRECTIVE (NSPD) 44, MANAGEMENT OF INTERAGENCY EFFORTS 

CONCERNING RECONSTRUCTION AND STABILIZATION (7 Dec. 2005) [hereinafter NSPD-44]. See also U. S. 

Dep't of State, Fact Sheet, President Issues Directive to Improve the United States' Capacity to Manage 

Reconstruction and Stabilization Efforts, Dec. 14,2005, www.state.gov/r/pa/prs/ps/2005/58067.htm. 

476 See U.S. DEP'T OF DEFENSE, DIR. 3000.05, MILITARY SUPPORT FOR STABILITY, SECURITY, TRANSITION, 

AND RECONSTRUCTION (SSTR) (28 Nov. 2005) [hereinafter DOD DIR. 3000.05]. 

477 It is likely units will be carve up and place SSTR initiatives in their appropriate line of operation during 

the planning process. For example, RoL efforts may appear in a governance line of operations and projects 

designed to restart an economy could be in an economic development line of operation. 

478 ROL HANDBOOK 2008, supra note 32. 

479 Both USAID and USIP have excellent webpages that provide access to a large collection of specialized 

materials that can aid operational planners in a host of topics ranging from RoL programs specifically to 

governance and civil society broadly. See www.usaid.gov and www.usip.org. 

480 OEF/OIF LL, Vol. II, supra note 89, at 24-5. 

127 
•	 understand the role RoL activities play in strengthening the host nation 

government's ability to quell insurgency;481 

•	 understand the significant procedural differences between common law and 

civil law jurisdictions; develop an understanding ofrelevant substantive 

criminal and civil law concepts;482 

•	 develop a network of contacts, forming personal relationships with key 

players in the local legal community and identifying their key centers of 

gravity;483 

•	 assess and constantly reassess the capabilities and resources needed by the 

local legal community, to include physical plant, systems, and training . 484 reqUIrements; 

•	 assess the ability of key players to communicate and synchronize operations, 

with a particular focus on the relationship among the police, the courts, and 

those responsible for prisoners;485 and 

•	 be prepared to develop and execute programs designed to increase respect for 

the RoL, and coordinate closely with other staff sections, USG agencies, or 

NGOs in the process.

486 

Furthermore, senior JAs should push for the development of a RoL plan prior to the 

deployment offorces, although tactical-level JAs should expect to execute operations in a 

487 

vacuum. 

1,N.I, Understand Developing Doctrine 

Judge Advocates must understand the evolving roles and responsibilities of 

commanders within the context ofthe policies, procedures, and interagency coordination 

required to execute potential SSTR responsibilities. The Department of State (DOS) is 

481 For an excellent treatise on counterinsurgency doctrine, see David Galula, COUNTERINSURGENCY 

WARFARE: THEORY & PRACTICE (Preager 1964) [hereinafter COUNTERINSURGENCY WARFARE). 

482 BALKANS LL, supra note 26, at 95-98. As the DOD takes on greater responsibility for SSTR operations, 

JAs may find commanders concerned with areas of foreign law JAs might never consider under U.S. law. 

For example, commanders involved in operations in transitional societies such as Iraq will place great 

emphasis on improving the underlying economic opportunity for local nationals. See Major General Peter 

W. Chiarelli & Major Patrick R. Michaelis, Winning the Peace: The Requirementfor Full Spectrum 

Operations, MIL. REv. 4,13 (July-Aug. 2005) [hereinafter Winning the Peace). This will lead to a myriad 

oflegal questions such as: what kind of business organizations are permitted; can foreigners own land or 

stock or serve as joint venture partners; how are commercial disputes resolved and is the system 

functioning; how are squatters removed from buildings, etc. Answers to these questions may require the 

translation of documents, meetings with local attorneys and judges, or assistance from other agencies or 

organizations. 

483 OEF/OIF LL, Vol. II, supra note 89, at 27-29. 

484Id. at 36-39. 

485 HAITI LL, supra note 9, at 102-05. 

486 OEF/OIF LL, Vol. II, supra note 89, at 31-32, 41-42. 

487 Id at 23-5. 

128 
responsible for leading efforts to integrate interagency efforts to "prepare, plan for, and 

conduct" SSTR operations and to "harmonize" these with US military plans and 

operations.488 The procedures outlined in NSPD-l ~ovem this interagency process during 

active "contingency response" or SSTR missions.48 

Notwithstanding the lead responsibility assigned to DOS by NSPD-44, DOD 

Directive 3000.05 requires DOD to integrate stability operations into contingency 

planning and operations. Further, the broad definition ofstability operations includes 

competencies beyond those associated with traditional military operations and planning, 

and include police, prison and judicial system reconstruction, activities designed to 

reconstitute economic vitality, and efforts to promote representative govemment.490 The 

lack of significant expertise in these areas may lead commanders to look to lAs and CA 

personnel for assistance with the planning and execution of such operations. 

Consistent with NSPD-44, DOD Directive 3000.05 notes that "indigenous, 

foreign, or U.S. civilian professionals" are the most suitable elements to conduct SSTR 

operations. However, this does not relieve military commanders oftheir responsibility to 

plan for, and potentially execute stability operations unilaterally if necessary. The 

directive also states, "[M]ilitary forces shall be prepared to perform all tasks necessary to 

establish or maintain order when civilians cannot do SO.,,491 

LN.2. Interagency Coordination and an Integrated RoL Plan 

Interagency coordination in SSTR operations is both recognized and required.492 

The linkages necessary to establish such a coordinated response are not fully developed 

and lAs involved in RoL initiatives will need to aggressively identify and make contact 

with counterparts in other agencies.493 However, the need to coordinate with other USG 

agencies does not relieve U.S. forces ofthe requirement to execute such operations 

unilaterally ifnecessary.494 Further, although other USG agencies may have 

responsibility for developing comprehensive RoL programs and strategies, delays in their 

development, problems in translating plans into action, or a lack of funding may prevent 

execution by "lead agencies" for a significant period. As a result, lAs at all levels must 

be prepared to begin executing such programs immediately until they are able to merge 

into a larger framework. Consequently, attempts to synchronize operations with other 

488 NSPD-44, supra note 475. 

489Id. 

490 DOD DIR. 3000.05, supra note 476, paras. 4.1, 4.3.1, 4.3.2, 4.3.3. Note this may quickly lead to 

circumstances in which commanders expect tactical-level lAs to provide briefings on host nation 

commercial, banking, or private property ownership laws. Prior to deployment, it warrants great effort to 

gather all available translations of local laws and regulations to facilitate this analysis as required. 

491 Id. para. 4.3. 

492 See, e.g., id.; NSPD-44, supra note 475. 

493 OEF/OIF LL, Vol. II, supra note 89, at 23-24. 

494 DOD DIR 3000.05, supra note 476. 

129 
USG agencies need to occur to the fullest extent possible while also developing a 

vertically integrated strategy within military command channels to begin action 

unilaterally if necessary. Units should carefully design and integrate these operations 

into the campaign planning process and tie them to the accomplishment of desired 

effects. Tactical-level commanders and their JAs need to be prepared to respond to 

breakdowns in the legal system without the benefit of guidance or assistance.495 

When entering mature theaters such as Iraq, Afghanistan, or the Balkans, it is 

critical for JAs to become aware of existing RoL activities. In Iraq, the MNF-I OSJA has 

developed a fully integrated relationship with the broader RoL community. They have 

also compiled a detailed roster of offices and individuals involved injustice operations, 

as well as a guide to the various activities conducted by various governmental and nongovernmental actors supporting the ROL mission.496 The MNF-I RoL inventory notes 

coordination among the stakeholders in this arena has "proven difficult" and the guide's 

purpose is to provide an overview of participants as well as points of contact to facilitate 

coordination.497 This MNF-I product should be considered as a model for use in other 

theaters. Effective interagency coordination such as this will help operators strengthen 

RoL efforts that suffer from "a lack of strategy and a lack of capacity.,,498 

I.N.3. Understand How RoL Initiatives Are Part ofthe Counterinsurgency Mission 

Classic counterinsurgency (COIN) warfare theory and practice focuses upon the 

requirement for the legitimate government to build up the institutions necessary to defeat 

the insurgency without setting conditions favorable to the enemy's recruiting efforts.499 

While more traditional kinetic operations continue to playa role through full spectrum 

operations, commanders recognize the need to rely heavily on their non-kinetic lines of 

operations to achieve stability and other desired effects. 500 Further, the enemy will 

attempt to create instability to damage the government's legitimacy, while also seeking to 

present itself as the solution to the very problems created. In Iraq, the Shiite political 

figure Muqtada Al Sadr achieved various degrees of success through the application of 

495 OEF/OIF LL, Vol. II, supra note 89, at 24-28. 

496 MNFI (aSIA), Rule of Law Programs in Iraq: March 2006 Inventory (March 2006). 

497Id. at 4. 

498 LAUREL MILLER & ROBERT PERITO, SPECIAL REPORT: ESTABLISHING THE RULE OF LAW IN 

AFGHANISTAN 6 (USIP 2004) [hereinafter AFGHANISTAN REpORT]. It is worth noting that no agency 

appears to have an organic capability to conduct RoL operations. At best, one can cobble together such a 

capability from skill sets from among the various agencies. In environments where active combat 

operations are ongoing, the military may be the only agency that can provide the force protection necessary 

to maintain freedom of movement. Efforts to conduct RoL operations from the relatively safe confines of a 

"green zone" by having local judicial personnel travel to the FOB for meetings is ineffective and may 

signal fear or a lack of commitment. 

499 See COUNTERINSURGENCY WARFARE, supra note 481, at 115-21 (the basis of much ofthis section is an 

extract from an article by Major Jeff Spears entitled Hammarabi 's Hammer: Justice Operations in 

Counterinsurgency Warfare). 

500 See Winning the Peace, supra note 482, at 4. 

130 
this strategy. Sadr created instability and challenged the legitimacy of the Iraqi 

government through an information operations campaign. He coupled this with attempts 

to portray his forces as the providers of security and essential services, to include . fh' SOl operatIOn 0 IS own court system. 

Judge Advocates involved in the development of RoL initiatives must understand 

their importance in the larger strategic context in order to function effectively as part of 

the staff. If the government is not able to develop a legitimate and effective justice 

system, the insurgents will seek to develop a de/acto system ofjustice.502 Once this is in 

place, insurgents will use it to punish criminals and intimidate (or try and execute) locals 

who support the government. 503 Although many successful or enduring insurgencies 

from Algeria to Nepal have utilized these tactics to varying degrees, many planners do 

not immediately recognize the connection of RoL programs to the ultimate aim of 

defeating the insurgency. Establishment of an effective justice system can assist in the 

defeat of the insurgency by providing a forum for the legitimate processing of captured 

insurgents, while also denying "key terrain" to the insurgents who can only take on such 

roles to the extent that a vacuum exists. 504 

LN.4. Develop Comparative Law Knowledge 

Given the prevalence of civil law systems, it is helpful for JAs to have a basic 

understanding of how they work. 505 While the substantive law may appear similar, the 

procedures to process a case through trial, protect the rights of the accused, or attack the 

validity of evidence may differ significantly from those employed in common law 

jurisdictions. Commanders may also have concerns about the resolution of various legal 

issues for a variety of operational reasons. This could require JAs to understand 

applicable local laws, the procedures used to enforce them, and if the court system is 

functioning effectively. Commanders often require advice about arrest and release 

procedures used by local courts; a wide variety of issues related to commercial and 

business law, the resolution ofwhich may affect operations designed to improve the 

economy; and how to access the judicial system (e.g., to resolve issues related to 

squatters). 506 

501 Id. at 6; Ellen Knickmeyer, Rights Under Assault in Iraq, U.N Unit Says, WASH. POST, May 24,2006, 

at A 18 [hereinafter Rights Under Assault in Iraq]. Sadr seized opportunities to enter vacuums and present 

himself as an alternative to the legitimate government by providing security during periods of increased 

violence. 

502 Id. 

503 Rights Under Assault in Iraq, supra note 501, at A 18 (citing evidence that Mahdi's army operated an 

illegal court to investigate and try individuals). 

504 See COUNTERINSURGENCY WARFARE, supra note 481, at 78-79 (noting that popular support is 

conditional and that this support can only occur after achieving effective "military and police operations 

against the guerrilla units"). See also John A. Nagl, LEARNING TO EAT SOUP WITH AKNIFE xiv-xvi 

(Chicago ed. 2005). 

505 OEF/OIF LL, Vol. II, supra note 89, at 29-30. 

506 This can be a very difficult undertaking and relates to the need to establish a good network of contacts 

within the legal community. For example, there is a significant problem with squatters in Iraq but it is a 

131 
Judge Advocates and others involved in various RoL projects in Afghanistan 

found bridging the gap between common law jurisdictions and the Afghan civil law 

system difficult. As with Iraq, a series of invading armies and occupiers influenced the 

Afghanistan legal tradition. However, unlike Iraq, Afghanistan continues to maintain a 

strong Sharia law influence. An early lack of understanding of Afghan legal traditions 

hampered efforts to establish a military justice system for the Afghan Army. In 

particular, Afghan JAs were committed to the concept that prosecutors could appeal an 

acquittal or other final outcome perceived as favorable to the defense. When Afghan 

advocates learned this prosecutorial appellate right did not appear in the final draft as 

enacted, there was an intellectual, if not more concrete, uproar from Afghan jurists. 

Furthermore, translation errors and other misunderstandings caused significant 

difficulties after reforms came into force. 507 

LN.5. Build Local Relationships 

Although often a difficult task to achieve within the relatively short timeframe of 

a deployment, the development ofrelationships with key members ofthe local bar is of 

great assistance. In both Iraq and Afghanistan, the personal relationships and 

professional respect that developed among local and Western attorneys helped to keep the 

process moving forward even when controversial topics would cause progress to come to 

a temporary halt. This was particularly true with regard to the lengthy and at times 

heated process of building consensus in the context of Afghan military justice reform. 50S 

The development ofrelationships also facilitates the continuing process of system 

assessment and improvement.509 

Prior to engaging local lawyers, judges, or community leaders, JAs should work 

with cultural advisors to gain an understanding of local social customs and protocols. 5

10 

This is particularly important in societies such as Afghanistan where the local population 

has historically been suspicious of outsiders or the judiciary. 511 

difficult area of the law to develop. One unit was able to utilize its connectivity to obtain a copy of a preinvasion Ministerial Order that served to provide severe criminal punishment for squatting without a color 

ofright. Once obtained and translated, the unit was able to better advise Iraqis with disputes on how to 

utilize the courts as a tool for the resolution of such issues. 

507 Major Sean M. Watts & Captain Christopher E. Martin, Nation Building in Afghanistan: Lessons 

Identified in Military Justice Reform, ARMY LAW., May 2006, at 1 [hereinafter Nation Building in 

Afghanistan). See also Lieutenant Colonel Daniel J. Hill & Lieutenant Colonel Kevin Jones, Mentoring 

Afghan National Army Judge Advocates: An Operational Law Mission in Afghanistan and Beyond, ARMY 

LAW., Mar. 2007, at 12 (describing the issues involved in carrying out this new task); Major Steve Cullen, 

Starting Over - The New Iraqi Code ofMilitary Discipline, ARMY LAW., Sept. 2004, at 44 (describing the 

Iraqi Army's Code ofMilitary Justice). 

508 See Nation Building in Afghanistan, supra note 507. 

509 OEF/OIF LL, Vol. II, supra note 89, at 27. 

510 JUDY BARSALOU, TRAUMA AND TRANSITIONAL JUSTICE IN DIVIDED SOCIETIES 8 (USIP 2005). 

511 See AFGHANISTAN REpORT, supra note 498, at 5. 

132 
LN.6. Assess Key Justice Sector Institutions & Their Interaction with Each Other 

For a justice system to function efficiently, its constituent parts must be able to 

work together effectively. Assessments must consider both the internal functioning of 

police, courts, and prisons, and the manner in which they interact with one another. 512 A 

court system may be effective at applying the law and trying cases. However, if the 

justice system lacks the ability to ensure the presence of an accused at trial, or to transfer 

a prisoner effectively for incarceration in a manner that guarantees his release at the end 

of his sentence, it is not actually effective. Conducting assessments is a specialized skill, 

but JAs and other military subject matter experts may be the only persons available to 

provide any insight into the functioning ofthe judicial system. They should therefore be 

prepared to conduct rudimentary assessments in order to determine the extent to which 

the system is functioning until specialists are able to undertake a comprehensive . 513 reVIew. 

LN. 7. Develop Initiatives to Increase Public Supportfor the Rule ofLaw 

Establishing connectivity with the various local legal constituencies can be an 

effective precursor to the development of RoL programs. Further, close interaction with 

other U.S. Government agencies and non-governmental organizations can be fruitful in 

assisting local attorneys to develop programs targeted for their communities. 

Understanding the needs and desires of local lawyers and institutions as well as the 

capabilities and resources of other organizations is essential. In Iraq, tactical-level JAs 

assisted in identifying local attorneys to support RoL or human rights training programs 

for local lawyers and professionals, and contributed to the establishment of legal aid 

clinics in areas of Baghdad plagued by violence and corruption. 

LN.8. Lessons Learned 

Although RoL efforts have recently received increased emphasis, JAs have 

previously been involved in the establishment or reform ofjudicial systems during postconflict operations. 

In Haiti, JAs served as judicial mentors as well as courthouse building inspectors. 

During the assessment phase of the mentorship program, the team conducted on-site 

evaluations of one hundred and seventy-eight justices ofthe peace, fifteen prosecutors, 

fifteen courts of first instance, fifteen investigating judges, and over one hundred civil 

registrars, as well as completing a photographic survey of courthouses. In furtherance of 

the professional mentorship program in Haiti, JAs advocated the establishment of a 

national judicial training center on the grounds ofthe former military academy, as well as 

the creation of a supervision program to audit judicial processes, investigate corruption 

complaints, monitor training, and develop a code ofjudicial ethics. Finally, JAs obtained 

512 See HAITI LL, supra note 9, at 102-05. 

513 OEF/OIF LL, Vol. II, supra note 89, at 40-41. 

133 
and passed out 208 sets of legal codes containing Haitian laws, and created, reproduced, 

and distributed more than 25,000 legal forms. Sl4 

Judge Advocates in Iraq later took on similar challenges on a larger scale. In the 

south ofIraq, for instance, the I Marine Expeditionary Force (MEF) found that no courts 

in any of the seven provinces in its area were operational. In the absence of policy 

guidance, commanders and JAs used varying approaches, usually involving phases of 

assessment, recommendation, and implementation. For example, in April 2003, the V 

Corps SJA formed the Judicial Reconstruction Assistance Team (JRAT) to begin 

assessing the structural condition of each courthouse in the Baghdad area of operation. 

Its members traveled to each courthouse in the Baghdad area and met with the judges and 

other court personnel. Judge Advocates then wrote numerous fragmentary orders 

directing units to secure courthouses and public facilities, and prepared a final report with 

specific recommendations as to a course of action, which went forward to the Ministry of 

Justice and the Coalition Provisional Authority (CPA) to support funding requests. 515 

Similarly, the 101st Airborne Division (Air Assault) legal team formed the 

Northern Iraq Office of Judicial Operations (NIOJO). Members ofNOIJO traveled 

throughout their area of operation, overseeing inspections and assessments of 

courthouses, and helping draft detailed schematic building plans and bills of quantities to 

facilitate reconstruction.Sl6 

The CPA attempted to coordinate initial efforts to reconstitute the Iraqi judiciary 

through its Ministry of Justice Advisory Team (MOJAT). The MOJAT consisted of 

personnel from a variety of backgrounds, including U.S. Department of Justice personnel, 

lawyers from various U.S. Attorney offices and JAs. Its activities included supporting 

efforts to vet Iraqi judges and prosecutors, establishing and supporting training programs 

for lawyers and judges, and conducting court assessments. 

Establishments of the Central Criminal Court of Iraq (CCCI) occurred in order to 

leverage the domestic criminal justice system to target insurgent activity as well as public 

corruption. CPA Order No. 13 established the CCCI, and it has since integrated into the 

Iraqi judicial system. Because of the nature of the cases - those involving insurgent 

attacks - Coalition Soldiers and civilians are often critical witnesses in the prosecution of 

these cases and play an important role in identifying and preserving evidence. 

The CCCI has been effective at combating insurgency activity, prosecuting more 

than 4000 cases in 2007. 517 Proper preparation of cases for the CCCI requires JAs to 

514 HAITI LL, supra note 9, at 105-06. 

515 OEF/OIF LL, Vol. II, supra note 89, at 34. 

516 !d. However, the 101st Airborne Division (Air Assault), which had established the NIOJO in 2003 

found that nothing resembling the NIOJO existed when the division returned to Iraq in 2005. 101st ABN 

DIV 2007 OIF AAR, supra note 73, at 107. 

517 Major General Kevin Bergner, Multi-National Force - Iraq, Dec. 26, 2007, http://www.rnnfiraq.com/index.php?option=com_content&task=view&id=16052&Itemid=131). 

134 
familiarize themselves with the fundamentals ofIraqi substantive and procedural criminal 

law, as well as the working practices of the judges. 518 Commanders and tactical units 

will look to JAs for advice on what evidence needs to be preserved and how to maintain 

it for admissibility in court. Further, JAs may find themselves serving as prosecutors 

before an investigative chamber or with the responsibility of identifying and preserving 

evidence and preparing witnesses to testify in cases involving their units. 

Pragmatic considerations related to the security ofjudges and their families are 

required when establishing courts such as the CCCI. As CCCI judges handle cases that 

by their nature relate to some of the most dangerous insurgent forces in Iraq, they are 

naturally concerned about the safety ofthemselves and their families. At times, this leads 

to acquittals or dismissals tainted by the specter that they were the result of intimidation, 

as opposed to reliance on the evidence. Solutions may include housing judges and their 

families in fortified compounds or holding investigative chamber hearings at internment 

facilities. 519 

In Afghanistan, RoL planners recognized the need to synchronize Office of 

Security Cooperation - Afghanistan (OSC-A) efforts with those ofthe Afghan 

government. 520 Initial discussions were held in Kabul, resulting in a commitment to 

training in key areas (e.g., the LOW), and planning for military justice reform. An April 

2004 high-level planning meeting in Washington, DC followed these efforts. Key 

participants included the equivalent of the DOD General Counsel for Afghanistan, as 

well as the Judge Advocate General of the Afghan National Army. The event included 

briefings and a visit to The Judge Advocate General's Legal Center and School in 

Charlottesville, and culminated with agreement on the part of the Afghan delegation to 

pursue targeted initiatives. These included those calculated to strengthen the concept of 

civilian control of the armed forces and the jurisdiction ofmilitary courts. These early 

efforts set the conditions for successful execution of a variety of programs, to include the 

execution of broadly attended seminars focused on procedural and substantive reform of 

the Afghan military justice system. 521 

Beginning in early 2006, the convergence of increased USG emphasis on SSTR, 

DOD policy changes, and the COIN context meant that JAs in both Iraq and Afghanistan 

had to come to grips with implementing RoL plans. One brigade combat team (BCT) JA 

candidly admitted that he did not even recall having heard the term used prior to 

518 See E-mail from Major Chris McKinney. Major McKinney has processed cases into the CCCI's 

Investigative Chamber, and notes that some of its investigative judges interpreted Iraqi procedural law 

differently from others. For example, some permitted U.S. CCCI prosecutors to ask questions ofthe 

accused whereas others limited direct questioning to the judge. 

519 I d. 

520 Previously the Office of Military Cooperation - Afghanistan (OMC-A), responsible for training and 

equipping the ANA, the name was changed to the Office of Security Cooperation - Afghanistan (OSC-A), 

when policing was added to its mandate, and later to the Combined Security Transition Command ­

Afghanistan (CSTC-A). 

521 See DIlLS Programs with Afghanistan: February 2004 - May 2006 at 1-2. 

135 
deployment. Once in Iraq, however, he found that a provincial reconstruction team 

(PRT) had become a vital part of his BCT's operations.S22 Nonetheless, even those 

already familiar with the concept ofRoL have acknowledged the difficulty of working in 

this area: "The phrase Rule of Law can have several different meanings for one person. 

Multiply those several different meanings by the number of people working for the 

Multi-National Force - Iraq (MNF-I) and the US Mission - Iraq (USM-I) and the 

resulting collection of divergent meanings is a close approximation of typical Rule of 

Law operations in Iraq."s23 

Once senior leaders decided to place increased emphasis upon RoL, USG officials 

began taking steps to establish interagency coordination mechanisms in Baghdad, as well 

as develop and disseminate a joint (military-civilian) strategic plan.s24 This addressed a 

number of problems. Given the previous lack of an overall USG RoL plan or 

coordination mechanism, various agencies and departments had initiated "spotty, shortterm RoL endeavors."s2s In some cases, military units and USG agencies hardly knew 

the others were there, let alone what they were doing. This occurred because efforts were 

not centrally tracked, resulting in a "willy-nilly unequal, haphazard RoL effort."s26 

Tactical RoL efforts reflected the lack of strategic focus. The 101st Airborne 

Division (Air Assault) noted that, "for most ofthe deployment, MNC-I [Multi-National 

Corps - Iraq] and MNF-I had no RoL strategy or guidance for the MNDs [Multi-National 

Divisions]. MNC-I favored a decentralized approach that allowed major subordinate 

commands (MSC) to identify what they perceived as the ROL issues in that MSC's [area 

of operations]; the MSC was allowed to address [these issues] in any fashion it 

522 BCT 2008 OIF AAR Interview, supra note 123, at 3. See generally ROL HANDBOOK 2008, supra note 

32 (describing PRTs). In some cases, units in Iraq will work with a "embedded PRT" (ePRT), a civilianmilitary cell attached to a BCT. Where that occurs, the 3ID OSJA recommended integrating the ePRT RoL 

assets into the JA or S9 RoL effort early, as joint planning and agreement on brigade priorities would help 

to make the ePRT "value added." 3ID 2008 OIF AAR, supra note 132, at 23. 

523 V Corps 2006 OIF AAR, supra note 150, at 23. 

524 There were also steps to increase USG coordination in Afghanistan, but the large number of players 

there complicated the system: the various levels of the Afghan government, international and nongovernmental organizations, two international military forces, a number of donor countries, and several 

USG agencies. The result has been that "[j]ustice sector and Rule of Law (RoL) reform efforts in 

Afghanistan are uncoordinated and unsynchronized. This leads to gaps in some areas and unnecessary 

duplication of effort in others. The reason for the lack of synchronization and coordination is that there is 

no single entity that has command and control over all the disparate RoL actors." For USG agencies 

including DOD, however, the U.S. Embassy Special Committee on the Rule of Law (SCROL) has assumed 

the lead role for coordinating U.S. efforts and integrating them with those of the international community. 

One proposal requiring such coordination resulted from a subordinate task force FRAGO requiring each 

PRT within its command to hire an Afghan attorney to conduct and supervise basic RoL initiatives, carry 

out RoL assessments, and provide cultural advice to the PRT commander. This was an excellent 

demonstration of initiative, but required coordination to alleviate any perceived overlap between Afghan 

attorneys hired by the PRTs and those hired by the UN. 

525 CENTER FOR ARMY LESSONS LEARNED, V CORPS AS MULTI-NATIONAL CORPS - IRAQ, JANUARY 2006­

JANUARY 2007: INITIAL IMPRESSIONS REPORT 105 (June 2007) [hereinafter CALL V CORPS AS MNC-I]. 

526 !d. 

136 
wished."S27 This hands-off approach meant RoL initiatives were not necessarily 

considered to be an important part of the mission, which carried with it certain 

consequences: 

Because ROL is an emerging, non-doctrinal LOO [line of operation], it required 

a commander to recognize its importance and properly resource it with existing 

assets.... It was common to hear military and civilian officials from [the 

Department of State] and [the Coalition] emphasize the importance ofROL, but 

no real pressure or encouragement was brought to bear on MSCs to pursue ROL. 

In the absence of command emphasis neither commands nor staffs were inclined 

to take ROL seriously unless they independently recognized its importance. 

Even then, it was difficult to do because the command emphasis on other LOOs 

prevented adequate resourcing for a meaningful ROL effort. This translated into 

the failure ofBCTs to dedicate JA, civil affair, or police training assets to engage 

judicial and other relevant local officials on ROL initiatives. Most BCTs had 

either commanders or senior staff members who recognized the value of the ROL 

LOO, and as a result, they had fairly robust engagement strategies, especially 

when combined with the efforts ofthe PRTs. Some BCTs and PRTs could even 

boast of regularly scheduled meetings with judicial officials, though sometimes 

these amounted to social calls that did involve discussing ROL issues. 528 

However, RoL assumed increasing importance throughout 2006 and 2007. A 

Marine JA described the dramatic change that he witnessed at his unit in 2007: "Reestablishing the Rule of Law (RoL) within RCT-2's Area of Operations (AO) grew into a 

top priority and significant focus of effort for the RCT Commander (as it did for MultiNational Force - West).... RoL was for the first time designated as a separate Line of 

Operation, broken out from the broader category of Governance due to the importance 

commanders attached to it."s29 This move, duplicated in other units and theaters, made 

RoL a focus of staff efforts, and significantly improved staff coordination. As the 82d 

ABN DIV OSJA observed, "RoL efforts involve significant interaction with other staff 

sections and elements (e.g., CJ-5, CJ-9, POTF [PSYOP Task Force]), critical to 

incorporating RoL priorities into OPORDS, synchronizing desired effects, and executing 

527 101 st ABN DIV 2007 OIF AAR, supra note 73, at 102. One problem with this "hands off' approach 

was that it sometimes gave rise to "conflicting or duplicating reconstruction projects". In one case, an 

MNC-I subordinate unit and the Multi-National Security Transition Command - Iraq (MNSTC-I) were 

each involved in plans to build a government center in the same neighborhood in Baghdad. Fortunately, 

identification ofthe duplication occurred in time. CALL V CORPS AS MNC-I, supra note 525, at 124. 

MNC-I responded to such problems by forming the "C24," a concerted effort by the C7, C8, and C9 staff 

sections "to fully integrate their reconstruction efforts and positively influence nation building throughout 

Iraq." The type of project determined the stafflead. Nominated projects went to the CG for approval and 

resourcing through the Effects Coordination Board. This worked well at the corps level but was not usually 

employed at the division level where planning was handled in one case by civil-military operations and in 

another case by the engineers. In any event, the important principle was the requirement for staff 

integration ofreconstruction efforts. The exact mechanism was less important than the fact that the 

coordination occurred. Id. 

528 lOlst ABN DIV 2007 OIF AAR, supra note 73, at 103. 

529 Regimental Combat Team 2, Regimental Judge Advocate, After Action Report, Operation IRAQI 

FREEDOM, January 2007 - July 2007 1 (22 Oct. 2007) [hereinafter RCT-2 JA 2007 OIF AAR]. 

137 
RoL initiatives at the operational level." However, the OSJA AAR cautioned, RoL 

attorneys may have to strike a balance between the time required for staff interaction and 

that required for project implementation: 

While staff interaction is critical to success, it can also become extremely timeconsuming. During the course of this deployment, RoL attorneys participated in 

at least eight weekly staff meetings, including the Joint Assessments Working 

Group, the Future Plans Joint Planning Group, the Joint Effects Working Group, 

the Joint Effects Synchronization Meeting, the R&D [reconstruction and 

development] Coordination Meeting, and the Joint Effects Coordination Board. 

Many of the meetings overlapped in substance. Most often, RoL has a small part 

or was not a topic of discussion. Nevertheless, it was important to attend these 

meetings to ensure that RoL issues were being properly defined and discussed. 

For example, on a few occasions, other staff members had placed RoL bullets 

into briefing slides that had not been seen or discussed. On other occasions, staff 

members expressed confusion as to what RoL is or does. As a result, many staff 

members incorrectly defined RoL as anything involving a lawyer. It is important 

to tie into the CJTF staff early. Attend internal staff meetings frequently, and 

ensure that the staff understands the definition ofRoL. Equally important, ensure 

that they understand what RoL is not. Find a balance between attending internal 

staff meetings, inter-agency RoL meetings, and coordinating with the subordinate 

task forces on RoL initiatives. Do not allow internal staff planning to take up all 

your time or it will. 530 

Further integration ofUSG efforts at the tactical level became possible through 

the establishment, beginning in late 2005, of civilian-military PRTs in Iraq.531 As a 

result, JAs received exposure to PRTs and began learning how to exploit PRT 

capabilities. One BeT JA described the relationship as follows: 

Upon arrival to Iraq, the PRT was embraced by the BCT Commander: "We are 

their BCT, they are our PRT." The PRT stood up in May [2007]. The PRT 

needed money and the BCT provided CERP [Commander's Emergency 

Response Program] funds. Job #1 for the BCT was to get the Iraqi judges back 

to work. The effort was to provide for their safety ble practicing judges were 

530 82d ABN DIV 2008 OEF AAR, supra note 123. 

531 This was a new development for Iraq, but not for Afghanistan, where the first establishment ofPRTs 

occurred in 2002. Those PRTs initially supported Operation Enduring Freedom (OEF), but all now fall 

under the NATO-led International Security Assistance Force (ISAF). See CENTER FOR ARMY LESSONS 

LEARNED, HANDBOOK 07-34, PROVINCIAL RECONSTRUCTION TEAM (PRT) PLAYBOOK (Sept. 2007); 

CENTER FOR ARMY LESSONS LEARNED, PROVINCIAL RECONSTRUCTION TEAMS, OPERATION IRAQI 

FREEDOM (OIF): INITIAL IMPRESSIONS REpORT (Dec. 2007); USAID, OFFICE OF INSPECTOR GENERAL, 

AUDIT REPORT No. E-267-07-008-P, AUDIT OF USAID/IRAQ'S PARTICIPATION IN PROVINCIAL 

RECONSTRUCTION TEAMS IN IRAQ (27 Sept. 2007); OFFICE OF THE SPECIAL INSPECTOR GENERAL FOR IRAQ 

RECONSTRUCTION, SIGIR-07-015, REVIEW OF THE EFFECTIVENESS OF THE PROVINCIAL RECONSTRUCTION 

TEAM PROGRAM IN IRAQ (18 Oct. 2007); CENTER FOR ARMY LESSONS LEARNED, PROVINCIAL 

RECONSTRUCTION TEAMS IN AFGHANISTAN (2007); INTERNATIONAL SECURITY ASSISTANCE FORCE, 

PROVINCIAL RECONSTRUCTION TEAM HANDBOOK (3d ed. 3 Feb. 2007); ROBERT M. PERITO, SPECIAL 

REPORT 185: PROVINCIAL RECONSTRUCTION TEAMS IN IRAQ (USIP Mar. 2007). 

138 
regularly kidnapped and killed, rendering the system useless. The BCT/PRT 

built a "Major Crimes Court" (MCC) [a regional version ofCCCI].532 

This BCT commander backed up his commitment by dedicating a platoon 

exclusively to the PRT for security and support. Although CA personnel had nominal 

responsibility for RoL operations, the PRT RoL coordinator - a Department of Justice 

Assistant U.S. Attorney - and the BCT JA actually implemented the RoL program. 

However, the BCT JA's role was to support the PRT RoL coordinator with resources 

(e.g., CERP funds, logistic support, a security platoon), not run the RoL program from 

the BCT or spend inordinate amounts of time learning Iraqi law. The BCT JA in fact 

observed that that the civilian RoL coordinator had more credibility with Iraqi lawyers 

and judges than a uniformed lawyer, and the PRT used this to their advantage by 

portraying the RoL coordinator as a "big important civilian" brought in for RoL 

development. The RoL program was not limited to courts. In order to present wellorganized cases to the judge, the RoL coordinator also began training local investigators 

on collecting evidence and properly documenting crimes.533 

Where strategic RoL guidance is available, it will be general in nature by 

necessity. Judge Advocates and others at the tactical level will therefore need to set goals 

and priorities. When doing so, one OSJA AAR cautions that they should be realistic: 

Initial ROL efforts and expectations were probably unreasonable. The Iraqi 

system was operating at a level akin to the judicial system in the 19th Century in 

the United States. Paper records were stored locally and ledgers were used to 

track cases. Additionally, the judiciary had been operating in the shadow of a 

fascist regime for thirty years. It was not prepared to immediately perform all the 

functions or operate in the same manner as a modern western court. There was 

inadequate infrastructure to support such things as computerized databases and 

case tracking systems. Electricity was frequently sporadic and the Iraqis are not 

computer literate at this time. Although infrastructure and education may remedy 

this over time, the more immediate problem was to get courts to realize what 

their role was in the new Gal [Government ofIraq] and to operate in accordance 

with some basic due process standards and civil rights protections contained in 

existing Iraqi law, while recognizing their role in ensuring that the Gal survived 

as a constitutional democracy. The judiciary and police have not traditionally 

been inclined to assist in anti-corruption efforts or protect the rights of Iraqi 

citizens. 534 

532 BCT 2008 OIF AAR Interview, supra note 123, at 3. Following an earlier deployment, the IOlst 

Airborne Division OSJA suggested that BCTs and CA units conduct regular courthouse evaluations and 

form a working group to determine what measures were in place and what measures needed to be 

implemented to deter attacks against judicial infrastructure (to avoid an incident such as had occurred in 

Kirkuk, where a suicide bombing had crippled that area's judicial system for several weeks). Obviously, 

such a working group should include personnel with backgrounds in engineering and force protection. 

IOlst ABN DIV 2007 OIF AAR, supra note 73, at 107. 

533 BCT 2008 OIF AAR Interview, supra note 123, at 3. 

534 IOlst ABN DIV 2007 OIF AAR, supra note 73, at 104-05. 

139 
The AAR went on to describe what that OSJA concluded were more suitable
 

objectives:
 

Initial ROL efforts should focus on using existing resources and laws to protect 

Iraqi citizens and the fledging Iraqi state. Grandiose plans to computerize the 

Iraqi judicial system or ensure that every Iraqi pretrial detention facility 

scrupulously meets western standards will result in wasted time and resources. 

The Iraqi judiciary should be encouraged to enforce the laws it has using the 

assets available. Prisoners and accuseds should be afforded facilities and due 

process consistent with existing Iraqi standards and laws. Once these standards 

are achieved the Iraqis can be encouraged to evolve to a higher set of 

standards. 535 

Evidently, the security situation in a given area must further temper RoL
 

expectations and efforts. A Marine JA succinctly described the situation faced by his
 

unit:
 

From the first day of deployment until the final day of departure, TF 2/7 was 

driving out the final vestiges of coordinated and sustained insurgent activity in at 

least one area of its AO. Even in the areas where this was largely achieved 

during the course of deployment and some modicum of stability existed ­

Saqlawiyah and Zaidon - other areas such as Karmah and Sitcher remained hotly 

contested throughout. In none of these four main areas was the security situation 

mature enough to begin the arduous process of recruiting investigative judges, 

assessing/establishing courthouses and providing security for all parties and 

structures involved. Whereas many of my contemporaries were expending a 

significant portion of their efforts in this regard, this was certainly not my 

situation. 536 

Where RoL activities were possible, some JAs soon realized that RoL 

encompassed far more than judges and courts. For example, 101st Airborne Division 

OSJA RoL lawyers observed a tendency for Iraqi officials to do the "right thing" through 

extra-legal measures. It suggested that senior Coalition personnel should try to impress 

upon Iraqi Security Force (ISF) leaders the wisdom and practicality of scrupulously 

following the law to avoid providing their political enemies with a means of 

marginalizing them through legal attacks, and noted that problem conduct ranged from 

confiscating criminal property to abusing detainees. 537 

The lOlst Airborne Division OSJA also recognized the BCTs in its AO might 

already be dealing with ISF units in ways that could be used to further the RoL plan. As 

the OSJA AAR observed, the BCTs "differed substantially with regard to the level, 

frequency, and thoroughness of interaction with and training of their respective IA units 

to include legal advisors and commanders." Consequently, the OSJA RoL attorneys 

535 101st ABN DIV 2007 OIF AAR, supra note 73, at 105. 

536 TF 2/7 JA 2008 OIF AAR, supra note 123, at 14. 

537 101st ABN DIV 2007 OIF AAR, supra note 73, at 105-06. 

140 
concluded that they had missed a RoL opportunity, and sketched out a plan that would
 

have addressed this gap:
 

During the initial stages of the deployment, the Operational Law Section should 

have prepared comprehensive training packages for the BCTs to use as a base in 

developing their own AO specific training packages for IA [Iraqi Army] units. 

Guidance on specific subjects should likewise have been covered. After 

establishing a base line training package and training requirements, reporting 

requirements from [BCT legal teams] to the SJA through the Operational Law 

Section should also have been imposed. This would have minimized the 

disparity amongst brigades in the quality and quantity of training conducted and 

ensured that the SJA's vision for IA training objectives materialized. A 

standardized and comprehensive plan for the training of the IA should be 

prepared and distributed to BCTs within one month of the TOA. The plan should 

include a pathway to the IA legal advisors and IA commanders assuming primary 

teaching and training roles in the areas ofROE, LOW, and detention operations. 

These training requirements should be implemented via FRAGO in order to 

stress the importance of training of the IA. 538 

The 101 st Airborne Division OPLAW section, however, did host a May 2006 

training conference. Based on a "train the trainer" concept, the conference gathered the 

Iraqi Army legal advisors from all four IA divisions as well as all BCT JAs in the 101 st 

Airborne Division AO, and included presentations on the LOW, Iraqi and U.S. ROE, the 

Iraqi Discipline Code, and detention operations. The OSJA AAR noted the conference 

provided a rare opportunity for attorneys to discuss topics of interest to both parties and 

exchange ideas on how to assist commanders and staff in accomplishing the mission. 

Furthermore, it became apparent during the conference that lack of proper educational 

background, manpower, and focus were issues for many IA legal advisors and their 

offices. As a result, the AAR suggested that similar conferences should occur early in a 

deployment to provide time to adequately address these shortfalls.539 

In a similar vein, the 101st Airborne Division OSJA realized the efforts of 

military transition teams (MiTTs), police transition teams, and international police liaison 

officers (IPLOs) in the division's AO could also contribute towards the RoL LOO: "Too 

often, the PTTs and IPLOS acted merely as teachers of basic police procedures like 

station operations, patrolling, etc., but not as mentors on how to be part of a 

comprehensive criminal justice system. This failure was comEounded by their 

fundamental ignorance of the Iraqi criminal justice system.,,54 In order to increase their 

ability to influence their Iraqi counterparts, the 101st OSJA suggested JAs involved in 

538Id. at 108. See also JOINT CENTER FOR INTERNATIONAL SECURITY ASSISTANCE, COMMANDER'S 

HANDBOOK FOR SECURITY FORCE ASSISTANCE (14 July 2008), 

hrtp://usacac.anny.mil/cac2/Repository/Materials/SFA.pdf (useful reference for Judge Advocates involved 

in briefing host nation security forces). 

539 101st ABN DIV 2007 OIF AAR, supra note 73, at 106. 

54°Id. at 104. 

141 
RoL operations could brief these and other relevant groups and sections, emphasizing the 

importance ofthe RoL mission and explaining each group's and section's role in it. 541 

Each JA will no doubt have a different RoL experience, depending on the 

particular operational context. Regardless, what no longer appears to be in dispute is that 

JAs do have a role to play in this area. As a Marine JA concluded, 

The RoL function, in my view, is appropriately within the purview of battalion 

and RCT judge advocates. While one may accurately argue that development of 

the Rule of Law in a foreign country is a function ofthe State Department, not 

the Department of Defense, the reality remains that the State Department does 

not have the resources or personnel in place to run an effective RoL program 

with any degree of independence, creating a void that military commanders must 

and will fill. Commanders are increasingly looking to JAs to lead the effort in 

filling this void; JAs have been stepping up and performing well. In my view, 

JAs are the best-suited Marines to fill this role - at all levels - and it is a duty we 

should welcome. 542 

[See INTERNATIONAL & OPERATIONAL LAW (Civil Affairs) & (Stability 

Operations) and INTERAGENCY COORDINATION.] 

541Id. See generally CENTER FOR ARMY LESSONS LEARNED, MILlTARY POLlCE AND COUNTERINSURGENCY 

OPERATIONS, OPERATION IRAQI FREEDOM: INITIAL IMPRESSIONS REpORT (July 2008) (describing MP 

perspective on RoL activities). 

542 RCT-2 JA 2007 OIF AAR, supra note 529, at 1-2. 

142 
LO. RULES OFENGAGEMENT (ROE) 

LO.l. Rules ofEngagement (ROE) Planning & Application 

Military operations over the last fifty years amply demonstrate that significant and 

recurring issues will arise regarding the creation, training, and implementation ofrules of 

engagement (ROE). The fundamental question of how to apply force and against whom 

routinely challenges commanders, staff officers, and Soldiers during combat, stability and 

reconstruction, and even disaster relief operations.543 The context of each operation will 

markedly affect the designing of the ROE. Clearly, ROE for a disaster relief operation 

will differ markedly from those used for combat operations. For that matter, the ROE in 

effect for a disaster relief operation performed outside U.S. borders will differ 

substantially from the rules for the use of force used when providing relief from natural 

and man-made disasters within the United States. 

Despite the fact the ROE will largely depend upon the context of the current
 

military operation, the lessons captured by JAs about ROE are remarkably consistent
 

from operation to operation. These recurring lessons appear below and if limited time is
 

available to prepare before deployment, they are the ones that SJAs should focus on.
 

ROE delivery will occur "just in time" 

Rules of engagement generally draw from three distinct, but supporting 

categories: policy, legal, and military.544 Each of these categories contributes to 

frustrations and delays in producing an ROE annex. However, the legal and military 

components of an ROE annex pale in comparison to the policy issues that must be 

resolved before such an annex is approved and released. The President or Secretary of 

Defense (SECDEF) decide the most significant U.S. policy issues.545 Adding a layer of 

complexity is the negotiation that must take place among multinational partners 

contributing forces to an operation.546 As a result, JAs must prepare commanders and 

staffs for the issuance of "just in time" ROE. This preparation should include a plan for 

production of ROE pocket cards while deployed to intermediate staging bases 

immediately before combat operations commence, as well as a plan for the coordinated 

production of such pocket cards for coalition partner forces. 547 

543 See, e.g., HAITI LL, supra note 9; BALKANS LL, supra note 26; Kosovo LL, supra note 126; OEF/OIF 

LL, Vol. I, supra note 92; OEF/OIF LL, Vol. II, supra note 89. 

544 See Captain Ashley Roach, U.S. Navy, Rules ofEngagement, NAVAL WAR C. REv. 46,48 (1983). 

545 Such a basic question as to whether a force is declared hostile is a decision withheld to the President and 

quite clearly carries with it great domestic and international political implications. 

546 BALKANS LL, supra note 26, at 60; Kosovo LL, supra note 126, at 128 (KFOR ROE required the 

consensus of all NATO member nations through NAC approval). 

547 BALKANS LL, supra note 26, at 62. 

143 
Judge Advocates must take the lead in drafting and modifying ROE 

Although the ROE annex is unlikely to receive approval until just before an 

operation commences, its drafting typically occurs at the tactical or operational level of 

command. Commanders and planners understand the ROE are ultimately their 

responsibility. But, given that ROE frequently deal with legal issues, they often default 

to JAs to ensure obtaining, understanding, and forwarding the annex to subordinate units 

for training. Given this, JAs must energetically pursue the drafting and coordination of 

the ROE annex with all military elements expected to be participating in the operation. 

This is particularly true when dealing with coalition partners, and particularly difficult 

given the likely security classification of the ROE when still in draft form. 548 Despite 

this, JAs are best able to influence ROE development when the annex is undergoing 

drafting. 549 Key to this process is coordination between higher and lower levels of 

command and, to the extent possible, with coalition partners.550 Judge Advocates serve 

their commanders well when proactively coordinating and drafting the ROE annex and 

any necessary changes to it. 

The absence of an approved ROE annex does not prevent ROE training 

Recognizing that ROE for coalition operations take time to create and coordinate, 

JAs must be prepared to deploy without the final approved ROE. 55l This means that 

precisely tailoring training undertaken at home station to include all instances of possible 

ROE testing is impossible. Recognizing this, however, unit should still pursue a robust 

training plan using scenario-based training before and during the deployment. 552 Not 

having a final ROE annex approved does not constrain commanders from engaging in 

such training. 

As a general rule, U.S. forces operate under standing rules of engagement (SROE) 

that are in effect until modified by supplemental measures.

553 The SROE recognize the 

inherent right of self-defense and permit the use of force in response to a demonstration 

of hostile intent or upon the commitment of a hostile act. Separate from actions taken in 

self-defense, offensive operations generally include the identification of a hostile force. 

Once designated as hostile, Soldiers can target and eliminate on sight an opposing 

548 See OEF/OIF LL, Vol. I, supra note 92, at 91 (noting that OEF ROE were classified Top Secret when 

originally approved, and were downgraded to Secret only immediately prior to the commencement of 

hostilities, preventing JAs without a Top Secret clearance from accessing them until just before combat 

operations began). 

549 See HAITI LL, supra note 9, at 43. 

550 !d. at 43-44; OEF/OIF LL, Vol. I, supra note 92, at 91. 

551 BALKANS LL, supra note 26, at 60. 

552 !d. at 66; Kosovo LL, supra note 126, at 133. 

553 See INT'L & OPERATIONAL LAW DEP'T, THE JUDGE ADVOCATE GENERAL'S LEGAL CENTER & SCHOOL, 

U.S. ARMY, STANDARD TRAINING PACKAGE, THE STANDING RULES OF ENGAGEMENT (SROE) (1 June 

2008) (available on the JAG University webpage on JAGCNet). 

144 
force. 554 Soldiers generally understand the concept of a designated hostile force. Even in 

the absence of an approved ROE annex, commanders and planners can relatively easily 

plan for and conduct training against a hostile force that is, as yet, unidentified. For 

example, it is not difficult when planning offensive operations against a particular regime 

to expect that its military forces will carry a hostile force designation. 

What has proven to be more problematic is the training of the proper reaction to a 

demonstration of hostile intent or to the commission of a hostile act. While Soldiers 

understand these concepts, their application presents myriad difficulties. Experience has 

demonstrated this is an area that trainers should stress during pre-deployment scenariobased training. This training can easily focus on the vast majority of Soldiers, who 

simply need to understand shoot/don't shoot decisions. Training on higher-level ROE, 

such as the withhold authority for a certain type of artillery munition, can occur as 

necessary after approval ofthe final ROE annex. The very nature of this latter type of 

ROE makes it applicable to a small subset of the force and making it easier to train them 

rapidly and efficiently. Realistic scenario-based training for Soldiers faced with hostile 

intent/hostile act self-defense situations has proven to be quite effective and is something 

that JAs should strongly recommend to commanders.555 

Understand the definitions of terms used in ROE annexes as well as their source 

A simple lesson often learned during contingency operations is the need for JAs 

to have a clear understanding of the doctrinal terms used in ROE annexes. Judge 

Advocates must also understand when drafters create non-doctrinal terms for operational 

reasons. When new terms take life, JAs must ensure that higher and subordinate 

organizations, as well as other services within DOD, share a common understanding of 

them. Decisions by commanders on the targeting of certain individuals or structures 

often hinge on how JAs interpret and apply the terms found within the ROE annex. 

Given this, JAs must possess a developed and nuanced comprehension ofterms such as 

"positive identification," "likely identifiable threat," "time sensitive target," "troops in 

contact," "no strike list," "observed fires, and "templated targets,,556 A simple but useful 

starting point is the DOD Dictionary, which contains approved DOD definitions.55? If a 

term is not included in the dictionary or in another Joint doctrine publication, JAs should 

not assume that different services and levels of command share a common understanding 

554 JOINT CHIEFS OF STAFF, INSTR. 3121.01 B, STANDING RULES OF ENGAGEMENT/STANDING RULES FOR 

THE USE OF FORCE FOR U.S. FORCES (13 June 2005) [hereinafter JCS INSTR. 3121.0lB]. While it is 

generally true that U.S. forces operate under the SROE, as modified by supplemental ROE measures, this is 

not always the case. For example, U.S. Soldiers assigned to the NATO-led Implementation Force (IFOR) 

or Stabilization Force (SFOR) operated under the applicable NATO ROE rather than the SROE. 

555 BALKANS LL, supra note 26, at 63; HAITI LL, supra note 9, at 40-42; HURRICANE MITCH LL, supra note 

193, at 98-100; Kosovo LL, supra note 126, at 132-33; OEF/OIF LL, Vol. I, supra note 92, at 89-92; 

OEF/OIF LL, Vol. II, supra note 89, at 145. 

556 OEF/OIF LL, Vol. I, supra note 92, at 96-103; OEF/OIF LL, Vol. II, supra note 89, at 137-39; Kosovo 

LL, supra note 126, at 63. 

557 JOINT CHIEFS OF STAFF, JOINT PUB. 1-02, DEP'T OF DEFENSE DICTIONARY OF MILITARY AND 

ASSOCIATED TERMS 416 (1 April 2001) [hereinafter JOINT PUB. 1-02]. 

145 
of its meaning. When this is the case, JAs must anticipate and work to resolve any lack 

of clarity. 

Anticipate questions regarding protection of foreign nationals 

A significant issue that has often arisen in peace enforcement operations is the 

level of force permissible for use in the protection of host nation personnel. Many may 

recall the images of Haitian police forces clubbing a Haitian coconut vendor to death by 

within full view ofU.S. forces. While there was a prior, recent promulgation of ROE for 

such an event, the dissemination of ROE to u.s. forces did not occur before the capture 

ofthe brutal beating on television.558 There are two important points to take from this: 

anticipate such issues during the drafting of the ROE annex, and once approved ROE 

allow intervention in such situations, disseminate and train them as quickly as possible. 

Recognize that a single document will not contain the ROE 

Judge Advocates, commanders, and planners frequently expect to find all ROE to 

in one particular document - the ROE annex. While it is true most ofthe ROE are there, 

it is not true that it includes all applicable directives. By definition, ROE are "[d]irectives 

issued by competent military authority that delineate the circumstances and limitations 

under which United States forces will initiate and/or continue combat engagement with 

other forces encountered.,,559 Clearly then, ROE can derive from multiple sources and 

JAs must be diligent in identifying them.560 These sources include, but are not limited to, 

the SROE, mission-specific ROE authorization serials issued by higher commands, 

execute orders (EXORDS), fragmentary orders (FRAGOS), special instructions (SPINS) 

for air operations, the CENTCOM collateral damage estimation policy methodology 

(CDEM), and fire support control measure (FSCM) documents. Some have argued that 

FSCM do not constitute ROE but review of the DOD Dictionary definition indicates 

these control measures are ROE.561 Confusion occurs when JAs assume that ROE appear 

only in serial messages containing supplemental measures to the SROE, and JAs must 

guard against this mentality. 

Understand that, generally, only the issuing authority can rescind ROE 

If ROE are "directives issued by competent military authority" it stands to reason 

that amendment of them in a manner that materially alters their intent can only be done 

558 HAITI LL, supra note 9, at 38. This particular issue was the subject of a November 2005 exchange 

between the Chairman of the Joint Chiefs of Staff and the Secretary of Defense (SECDEF). The Chairman, 

in response to a question, indicated that U.S. forces had a responsibility to prevent the inhumane treatment 

ofIraqi citizens by Iraqi police forces. SECDEF, however, believed that there was only a need to report 

such treatment to the appropriate Iraqi authorities. See Dana Milbank, Rumsfeld's War on Insurgents, 

WASH. POST, Nov. 30,2005. 

559 See JOINT PUB. 1-02, supra note 557. 

560 OEF/OIF LL, Vol. I, supra note 92, at 80-89. 

561 As an example, a division commander may withhold authority to his level to use illumination rounds 

over populated areas. 

146 
by the commander who issued the directive or his superior commander. In other words, 

generally, if a corps commander withholds the authority to use illumination rounds to his 

level, a division commander uses such rounds at his peril if he does not obtain release 

authority. The converse of this is not necessarily true: if a corps commander has not 

withheld the authority to use illumination rounds, a subordinate division commander may 

choose to do so. However, lAs must nonetheless understand that while subordinate 

commanders may have the authority to restrict the applicable ROE further, some 

combatant commanders require coordinating such restrictions with them before 

implementation. 562 As a result, lAs should expect to coordinate with higher headquarters 

any material tightening of any ROE delivered as a supplemental measure to the SROE. 

There is also a requirement in the SROE to report to the SECDEF any measures taken by 

the command to "restrict" ROE, although this has been interpreted very broadly in the 

field. 

Targeting procedures & weapons capabilities 

In addition to the requirement for JAs to possess an in-depth knowledge ofthe 

ROE, including key documents for lethal targeting, several AARs have emphasized the 

need for JAs to understand the targeting process, including the collateral damage estimate 

(CDE) methodology. Where possible, at least one operational law (OPLAW) attorney 

should attend the CDE methodology course early in the deployment. Others have 

suggested that lAs should also be familiar with the capabilities of the various weapons 

systems that may be used. 563 The V Corps OSJA found it helpful to have a memo setting 

out this information in the Joint Operations Center (JOC). Addition of new weapons to 

the memo occurred whenever someone requested their use.

564 Finally, JAs should have 

some understanding of intelligence products and processes, in order to understand how 

much reliance to place upon any intelligence used for targeting purposes.

565 Given the 

classification of the intelligence that supports the targeting process, the SJA, Deputy SJA, 

and all OPLAW attorneys should request Top Secret security clearances well in advance 

of deployment. 566 

Positive identification (PID) vs. hostile act or hostile intent 

In Iraq, the ROE authorize the use of force based upon status or conduct. 

Commanders, JAs, and Soldiers must all clearly understand the difference between the 

two. As the lOist OSJA AAR observed, groups designated as hostile (status) were 

proper subjects of attack regardless of their actions. The authority to use force against 

these groups was separate and distinct from the authority to use force in self-defense in 

562 The OIF USCENTCOM message provided that, "if operationally required, subordinate commanders 

will promulgate additional ROE and/or amplified ROE guidance applicable to forces under their command 

and submit them to CDR USCENTCOM for review and/or approval." 

563 3ID 2008 OIF AAR, supra note 132, at 19. 

564 V Corps 2006 OIF AAR, supra note 150, at 19. 

565 10lst ABN DIV 2007 OIF AAR, supra note 73, at 22. 

566 3ID 2008 OIF AAR, supra note 132, at 16. 

147 
response to a hostile act or hostile intent (conduct). Personnel could, therefore, engage
 

and destroy any member of a designated hostile force, constrained only by LOW
 

principles and any ROE restrictions. However, using force against a member of a
 

designated hostile force required positive identification (PID), based on a standard of
 

"reasonable certainty." As a result ofthis requirement, the lOlst OSJA AAR
 

recommended that OPLAW sections develop a close relationship with the their
 

intelligence counterparts: "[r]eliable intelligence that PIDs an individual or group as a
 

member of a designated terrorist organization must be painstakingly complete and
 

thoroughly documented.,,567
 

Terrain denial 

Judge Advocates may find it useful to obtain andlor promulgate guidance about
 

terrain denial early in the deployment. According to the lOlst OSJA, "[t]here was
 

probably no single ROE topic that caused as much debate, consternation, and confusion
 

as terrain denial. There were concerns surrounding its definition, appropriate use, and
 

approval levels." The OSJA described the situation that it encountered upon arrival:
 

BCTs were routinely striking points of origin (POOs) at relatively consistent 

intervals in hopes of deterring AIF [anti-Iraqi forces] from returning to that same 

POO in order to conduct indirect fire attacks. These strikes were taking place 

days, weeks, and even months after an attack had been launched from a specific 

location without taking into consideration when it was likely that the enemy 

would be at that particular POO. About a month following our transfer of 

authority, the Operational Law Section published an information paper providing 

guidance on terrain denial. By this time, there had been a series of detailed 

discussions with several parties, including brigade JAs, brigade paralegals, the 

Fire and Effects Coordination Cell (FECC), and a host of other company, field 

grade, and flag officers. 568 

Warning shots 

The use ofwarning shots is also often a contentious issue with commanders. Two 

camps exist: those who believe in their use in certain situations and those who do not 

believe that they are ever an effective tool. Whether warning shots are effective or not is 

567 WIst ABN DIV 2007 OIF AAR, supra note 73, at 23. Further to this issue, a BCT JA noted that he had 

to ensure that snipers were aware that neither a sniper team nor a company commander had the authority to 

designate an individual as hostile (the division withheld that authority to its level). As a result, the snipers 

could only use deadly force in defense of themselves or others. 172d SBCT OIF AAR, supra note 139, at 

9-10. The distinction between PID and hostile intent was also relevant to proper understanding ofEOF 

measures that a Marine JA noted personnel were improperly applying in order to clear traffic or discourage 

Iraqis from loitering near Marine positions. A Marine, in order to use EOF measures properly, had to 

understand that the measures were only for use when he or she perceived a threat (i.e., hostile intent). 

Regimental Combat Team 5, Regimental Judge Advocate, After Action Report, Operation IRAQI 

FREEDOM 05-07.1 4-5 (undated). 

568 WIst ABN DIV 2007 OIF AAR, supra note 73, at 24. 

148 
not the critical issue for JAs. Judge Advocates must simply know whether the ROE 

authorizes them, and the position of their particular commander regarding their use. 

Riot control agents 

Questions regarding the use of riot control agents are a staple in nearly every
 

contingency operation.
 

[See INTERNATIONAL & OPERATIONAL LAW (International Agreements) and 

MULTINATIONAL OPERATIONS (Weapons).] 

Cross border operations 

Cross border operations into the sovereign territory of a non-party to the conflict 

have the potential to cause an international incident and result in a media frenzy, but the 

issue of the ability to conduct such operations nonetheless frequently arises. 569 As a 

result, the ROE generally tightly regulate such operations - kinetic or non-kinetic. 

Though specifics about such operations are classified, a few generic lessons are 

identifiable. 

Non-kinetic cross border effects are generally the results of either strategic 

communications (STRATCOM) or information operations (IO) effects. When evaluating 

STRATCOM/IO plans, JAs must first identify the target audience and the desired effect. 

Often during both OEF and OIF, u.s. planners were interested in spreading such 

messages across the borders of neighboring countries. When the 10 plan has a target 

audience that may be across an international border, it is critical to examine the method 

of dissemination (e.g., leaflet drop, radio or television broadcast, internet messages, hand 

bills, etc.). In all such cases, JAs must be prepared to give accurate advice on 

permissions and limitations under both the ROE and internationallaw.57o A simple 

solution is to obtain the permission ofthe affected country, but this is often difficult. As 

a result, JAs must understand the level at which the authority to approve cross-border 

operations resides, and be prepared to ensure commanders and staffs understand this 

during the course of mission planning. 

Non-kinetic effects may also cross international borders in the areas of electronic 

warfare (EW) and computer network operations (CNO). Judge Advocates must be aware 

that both require specific ROE authorizations. 571 The most common form of EW is 

569 See, e.g., OEF/OIF LL, Vol. I, supra note 92, at 109; OEF/OIF LL, Vol. II, supra note 89, at 146-48. 

570 JAs also need to be very conscious of international borders when reviewing electronic warfare plans and 

computer network operations. See the International Telecommunication Convention, Nov. 6, 1982, 32 

U.S.T. 3821, T.I.A.S. 9920 (entered into force for the United States on Jan. 10, 1986) (implications of 

intentionally broadcasting into sovereign nations without their consent and the effect of a state of 

international armed conflict). See also the United Nations Convention on the Law ofthe Sea, Dec. 10, 

1982, U.N. Doc. AlCONF.62/122, 21 I.L.M. 1261 (entered into force on Nov. 16, 1994) (implications of 

broadcasting from the high seas into sovereign nations without their consent). 

571 See JCS INSTR. 3121.01B, supra note 554. 

149 
jamming of communications or radar signals. Such actions may seem harmless to 

operators and planners, who may not realize or appreciate that others normally consider 

this hostile, and it can therefore justify a proportional response up to and including deadly 

force. Accordingly, JAs should review EW plans and ensure adequate authority exists to 

execute as planned or, if needed, help draft the required request for EW authorities. 

Similarly, CNO have great potential to cross international borders. Before proceeding 

with CNO, JAs must work closely with special technical operations (STO) 

representatives, who should be able to put them in touch with their legal advisors. Prior 

to execution, every STO goes through a review and approval process that includes a legal 

review. In cases where an operational level command without a JA (or a JA read into the 

program) executes a STO, the next level in the chain of command with a JA read into 

STO programs performs the legal review. Judge Advocates should be aggressive in 

insisting upon having access to all programs in which their unit is participating. 

Producing kinetic effects across international borders is an area where JAs must
 

be confident they have the most current guidance from the combatant command and
 

below. Judge Advocates must make sure that they synchronize with the operations
 

section with respect to cross border operations, and must quickly resolve any
 

discrepancies. Judge Advocates should not accept answers involving ROE classified
 

above their "need to know." If such a thing exists, JAs must have access to evaluate the
 

message content in order to provide accurate advice on cross border operations.
 

LO.2. ROE Training 

Recent AARs from Iraq have emphasized the need for units, once deployed, to 

conduct ROE refresher training. Such training usually relies upon vignettes, which are 

most effective when based upon situations that have actually occurred in that area of 

operations (AO). Training must deal not only with the ROE themselves, but also with the 

proper use of escalation of force (EOF) procedures. Any change to the ROE should also 

trigger a training requirement. 

The 1st Cavalry Division OSJA offered the following observations and 

recommendations about the conduct of ROE and EOF training, both prior to and during 

the deployment: 

•	 develop packages for different individuals/groups (e.g., leaders, Soldiers, 

staffs), highlighting those aspects of ROE/EOF that apply to those individuals; 

•	 "train the trainer" - once leaders are trained, they should deliver the training 

to their personnel (it will have greater impact than if delivered by staff); 

•	 deliver the training as close as possible to deployment; 

•	 periodically conduct refresher training in theater, highlighting lessons learned 

based on real operations; 

•	 provide training to new units entering theater or units newly-attached; and 

•	 the more ROE/EOF training, the better. 572 

572 leD 2007 OlF AAR, supra note 137, at 4. 

150 
The OPLAW section of the 101st Airborne Division (Air Assault) reported that it 

prepared ROE training slides on a monthly basis. This was particularly necessary when 

there had been changes to the ROE, such as the approval authority for striking declared 

hostile forces and designated terrorists. The section developed one package to train 

Soldiers and another for JAs, as well as a subsequent package oftraining aids focused on 

issues of import to commanders, such as the approval authorities for time sensitive 

targeting. The OPLAW section also compiled several recommendations: 

•	 divisions should consider requiring BCTs to conduct monthly ROE training 

beginning upon arrival in theater; 

•	 OPLAW sections should look ahead to prepare materials (e.g., for upcoming 

elections which resulted in ROE modifications); 

•	 training materials should use real world, theater-specific examples and 

vignettes (e.g., based on facts taken from actual SIGACTs); and 

•	 specific ROE training should be developed for air assets. 573 

In many cases, brigade combat team (BCT) JAs were also heavily involved with 

ROE training. The 4ID OSJA reported many company commanders asked BCT JAs for 

pre-deployment training, and some JAs provided this in conjunction with lane training. 

Once in Iraq, BCT JAs provided LOW and ROE training to arriving Soldiers, as well as 

refresher training upon request. 574 The 2d BCT from the 101 st Airborne Division 

required each of its battalions to schedule a time for one officer and one NCO from each 

company to attend an ROE briefing with the BCT trial counsel (TC). The TC conducted 

the training using a roundtable format, topics covered included proper use ofwarning 

shots, identifying hostile acts and hostile intent, and recognizing issues that had arisen 

during the past month in the BCT AO. The officers and NCOs then had to take this 

training back to their companies to ensure each Soldier received monthly ROE training. 

This increased Soldier confidence in applying the ROE, and enabled the TC to recognize 

potential ROE issues early. 575 

In some cases, the ROE training requirement extended to the U.S. training teams 

assisting Iraqi military and police forces, and even to Iraqi forces. A Marine JA noted 

military and police transition teams (MiTTs and PiTTs) had to devote extra attention to 

their Iraqi Security Force (ISF) counterparts regarding fire discipline, particularly with 

573 101st ABN DIV 2007 OIF AAR, supra note 73, at 19-21. Further to the air assets issue, the 101st OSJA 

AAR noted that the 159th Combat Aviation Brigade JA had created an ROE training package that provided 

aviation-specific ROE scenarios, and was later adopted by Multi-National Corps - Iraq (MNC-I). Id. 

574 4ID 2007 OIF AAR, supra note 70, at 14. Judge Advocates may not always be directly responsible for 

training. A Marine JA noted he had not conducted ROE training, and recommended detennining 

responsibility for doing so pre-deployment or as the unit arrived in theater. He suggested that a battalion 

JA whom the unit does not ask to conduct the training should, at minimum, be present at the first instance 

oftraining for each company or platoon. This would allow the JA to be readily available to unit leaders for 

any questions that require additional clarification, and ensure that any updates to the training presentations 

or guidance disseminated from higher headquarters reach those performing the training. TF 2/7 JA 2008 

OIF AAR, supra note 123, at 15-16. 

575 101st ABN DIV 2007 OIF AAR, supra note 73, at 19-20. 

151 
regard to warning shots, because the act of firing a weapon simply did not have the same 

gravity for ISF as for US. Soldiers.576 As the lOlst Airborne Division OSJA noted, ISF 

units were sometimes under operational or tactical control ofUS. forces. Where this 

occurred, they were subject to Multi-National Force - Iraq (MNF-I) ROE. In the case of 

the lOlst, all ISF units in the division's AO were subject to US. ROE, but did not have 

access to any classified portions ofthem. In such instances, the OSJA recommended the 

development and dissemination of standardized unclassified ROE. 

With the appearance of the 2007 "Awakening Movement," one JA received a 

request to coordinate ROE training for the resulting civilian groups. While he had access 

to training briefs used by MiTTs and PiTTs, he hesitated to provide them because it was 

unclear the civilian group (which was independent ofthe ISF or Iraqi government) had a 

requirement to adhere to the ROE.577 Of course, members of such groups could act only 

in accordance with Iraqi law (e.g., any provisions recognizing a right to self-defense), so 

developing training material for them would require considerable knowledge in this area. 

In addition to preparing training materials and delivering training, most OSJA 

OPLAW sections were also involved in identifying and monitoring trends. 578 This 

allowed them to tailor training materials in response to any common problems arising 

from ROE application. For example, the 4ID OPLAW section used reports of alleged 

LOW or ROE violations to produce information papers and vignettes to pass out to all 

subordinate units for training. The OSJA noted the majority of alleged violations 

occurred during the first three months and the final three months: "Most ofthe incidents 

in the first three months were due to inexperience and over-aggressiveness. The final 

three months are a dangerous time as soldiers may wear down physically and mentally 

under the difficult operational conditions.,,579 

{See INTERNATIONAL & OPERATIONAL LAW (International Agreements) & (Law 

ofWar) and MULTINATIONAL OPERATIONS (Rules ofEngagement).] 

576 RCT-6 JA 2007 OIF AAR, supra note 154, at 10. 

577 TF 2/7 JA 2008 OIF AAR, supra note 123, at 13-14. 

578 See, e.g., 41D 2007 OIF AAR, supra note 70, at 14-15. 

579 !d. Likewise, a BCT JA noted that, "[i]t takes time for soldiers to get comfortable with their 

environment and truly identify the unusual potentiaIly hostile conduct from the normal civilian/innocent 

behavior. It will take the discipline of senior NCOs along with their [platoons] and company commanders 

to avoid overly aggressive behavior." 172d SBCT OIF AAR, supra note 139, at 12-13. This JA 

recommended keeping statistics on EOF incidents, to allow analysis to determine which units were having 

trouble, in order to target them with additional training. Id. at 13. 

152 
LP. STABILITY OPERATIONS 

You can fly over a landforever; you may bomb it, atomize it, pulverize it and 

wipe it clean oflife - but ifyou desire to defend it, protect it, and keep itfor 

civilization, you must do this on the ground, the way the Roman Legions did, by . . h d 580 puttmg your young men m t e mu . 

The goal of the U.S. Army is to fight and win America's wars. However, recent 

operations have shown that the mission does not always end when the major war fighting 

against regular armed forces is over. During or after hostilities, U.S. forces may be 

required to conduct stability operations. These can include a wide array of activities, the 

purpose of which is to promote and sustain regional and global stability.58! Army forces 

conduct many types of stability operations, but this section will focus on peace 

operations.582 

Peace operations are military operations to support diplomatic efforts to reach a 

long-term political settlement and fall under the categories ofpeacekeeping operations 

(PKO) or peace enforcement operations (PEO). Peacekeeping operations are military 

operations undertaken with the consent of all major parties to a dispute, designed to 

monitor and facilitate implementation of a ceasefire or other peace agreement, and 

support diplomatic efforts to reach a long-term political settlement. Peace enforcement 

operations involve the application ofmilitary force, or the threat ofits use, normally 

pursuant to an international authorization to compel compliance with resolutions or 

sanctions designed to maintain or restore peace and order. Peace enforcement operations 

do not require the consent of the states involved or other parties to the conflict. Other 

types of stability operations, such as humanitarian assistance and non-combatant 

evacuation operations, may complement peace operations. Participation in peace 

operations supports U.S. political and diplomatic objectives.583 Key peace operation 

concepts include consent, impartiality, transparency, restraint, credibility, freedom of 

movement, flexibility, civil-military operations, legitimacy, and perseverance.

584 

Judge Advocates supporting a peace operation must understand both the mission 

and the legal authority that underlies it. The legal mandate sets the mission parameters, 

580 T.R. FEHRENBACH, THIS KIND OF WAR (1963). 

581 U.S. DEP'T OF ARMY, FIELD MANUAL 3-0, OPERATIONS (27 Feb. 2008). 

582 See id; U.S. DEP'T OF ARMY, FIELD MANUAL 3-07, STABILITY AND SUPPORT OPERATIONS (20 Feb. 

2003) [hereinafter FM 3-07]. The ten types of stability operations are peace operations, foreign internal 

defense, security assistance, humanitarian and civic assistance, support to insurgencies, support to counter 

drug operations, combating terrorism, noncombatant evacuation operations, arms control, and show of 

force. 

583 JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.3, PEACE OPERATIONS (17 Oct. 2007); U.S. DEP'T OF ARMY, 

FIELD MANUAL 100-23, PEACE OPERATIONS (30 Dec. 2004); U.S. DEP'T OF ARMY, FIELD MANUAL 3-07.31, 

MULTI-SERVICE TACTICS, TECHNIQUES, AND PROCEDURES FOR CONDUCTING PEACE OPERATlONS (26 Oct. 

2003). 

584 FM 3-07, supra note 582, para. 4-14. 

153 
and often establishes both the political and military objectives as well as the scope of the 

force's authority.585 A clear mandate shapes not only the mission the unit performs, but 

also the way in which it is to be carried out.586 However, the mandate for a peace 

operation may be broad, allowing and instructing a force to do "whatever is necessary" to 

enforce the peace. For example, in Bosnia, the Implementation Force (IFOR) struggled 

to define the parameters of its mission, which consisted ofimplementing Annex I-A of 

the General Framework Agreement for Peace (GFAP).587 In the absence of a welldefined mission statement, resourceful lAs gained insight into the nature of the mission 

by turning to other sources of information. 

The reality of stability operations is that a mission will rarely fit neatly into a 

specific doctrinal category. Most operations occur in a fluid environment, and involve 

multi-faceted and interrelated missions. Peace operations, whether PKO or PEO, present 

significant legal challenges to lAs, who must understand and apply relevant national and 

international law and policy. Because the primary body of law intended to guide conduct 

during military operations - the LOW - may not be triggered during peace operations, 

lAs must tum to other sources oflaw.588 Determining what laws apply to U.S. conduct 

requires specific knowledge of the exact nature ofthe operation. Various international 

agreements and operational documents broadly defined the scope of the IFOR mission in 

Bosnia and how Soldiers could use force. In that case, lAs needed to consider Chapter 

VII of the UN Charter, applicable UNSCRs, the GFAP and all relevant annexes, 

OPLANs and ROE annexes, and U.S. policy on the application of the LOW to peace 

operations.589 

In Haiti, the mandate of the Multi-National Force (MNF) was neither military 

victory nor occupation of hostile territory, but rather "to establish and maintain a secure 

and stable environment.,,59o Moreover, the MNF deployed with the consent of the Haitian 

government. Under these circumstances, the treaties and customary legal rules 

constituting the LOW did not apply.591 The LOW includes rules pertaining to the 

conduct of hostilities as well as safeguards required in time ofwar for the wounded and 

585 Id. at 4-2. 

586 See KENNETH ALLARD, INSTITUTE FOR NATIONAL STRATEGIC STUDIES, SOMALIA OPERATIONS: 

LESSONS LEARNED 22 (1995). 

587 See Dayton Accord, Annex 1A, arts I and VI. - (l) prevent "interface with the movement of civilian 

population, refugees, and displaced persons, and respond appropriately to deliberate violence to life and 

person," and (2) ensure that the parties "provide a safe and secure environment for all persons in their 

respective jurisdictions, by maintaining civilian law enforcement agencies operating in accordance with 

internationally recognized standards and with respect for internationally recognized human rights and 

fundamental freedoms. 

588 But see DOD DIR. 2311.01 E, supra note 107 (indicating that DOD policy is now to apply the LOW to 

all military operations, even when conducted in the absence of an armed conflict). 

589 See generally OPLAW HANDBOOK, supra note 3, ch. 4 (discussing LOW across the conflict spectrum). 

590 S.C. Res. 940, supra note 391, para. 4. 

591 See, e.g., GPW, supra note 51, art. 2. 

154 
sick, prisoners ofwar, and civilians.592 As a matter of policy rather than legal obligation, 

U.S. forces elected to treat potentially hostile persons detained during the operation as if 

they were prisoners of war. Humanitarian organizations and scholars commended this 

approach, but JAs discovered that many Geneva Convention provisions did not translate 

neatly from their intended armed conflict context to a peacekeeping context.593 Because 

the LOW did not apply, Haitian public property that fell into the hands ofD.S. Soldiers 

remained Haitian public property, unless sold through the weapons buyback program.

594 

General Order (GO) No. l(c) stipulated that "no weapon, munitions, or military article of 

equipment captured or acquired by any means other than official issue may be retained 

for personal use or shipped out of the [joint operations area] for personal retention or 

control".595 In the absence of an armed conflict, there was no authority to seize public 

property, so GO No. l(c) made it clear that conduct that violated this acquisition 

provision was punishable under the Uniform Code of Military Justice. 

In Kosovo, the UN Security Council authorized the deployment of the 

international security force (KFOR) under Chapter VII of the UN Charter.596 A Military 

Technical Agreement (MTA) between KFOR and the Federal Republic ofYugoslavia 

provided the framework for the PEO.59

? The initial KFOR mission was four-pronged: 1) 

monitor, verify, and enforce as necessary the provisions ofthe MTA and to create a safe 

and secure environment; 2) provide humanitarian assistance in support of UNHCR 

efforts; 3) initially enforce basic law and order, transitioning this function to the to-beformed designated agency as soon as possible; and 4) establish/support resumption of 

core civil functions. 598 Every aspect ofthe KFOR mission was legally intensive. The 

first prong required the interpretation and enforcement of legal obligations. The second 

prong made KFOR responsible for providing humanitarian assistance in support of 

UNHCR efforts (a markedly broader mandate than that in Bosnia). The third prong 

placed JAs at the center of the effort to enforce law and order because of their skills and 

training. The final prong - to support resumption of core civil functions - led to 

numerous requests for support. 

JAs must anticipate that stability operations may involve U.S. forces in 

establishing and enforcing the rule of law, and assisting in rule of law reconstruction. 

Commanders will expect JAs to be subject matter experts in these areas so JAs should, 

prior to deployment, become familiar with host nation law and the justice system. 

592 U.S. DEP'T OF ARMY, FIELD MANUAL 27-10, THE LAW OF LAND WARFARE (18 July 1956) (e1, 15 July 

1976). 

593 See, e.g., GPW, supra note 51, art. 2. 

594 Restatement (Third) ofthe Foreign Relations Law of the United States § 206. 

595 See HAITI LL, supra note 9, at 129. 

596 S.c. Res. 1244, supra note 420. 

597 KFOR MTA, supra note 422. 

598 Martins Presentation, supra note 326. 

155 
[See also INTERNATIONAL & OPERATIONAL LAW (Legal Basis for Operations) & 

(Rule ofLaw).] 

156 
IL ADMINISTRATIVE LAW 

Whatever the nature ofthe operation, deployed Judge Advocates (lAs) have been 

had to provide administrative law (ADLAW) support to a variety ofunits. In fact, one of 

the responsibilities falling within this area - support to investigations ­

occupies a great deal oftime on the part of both ADLAW and brigade combat team 

(BCT) attorneys. This section, therefore, summarizes many of the lessons relating to 

investigations identified by such JAs. 

One ofthe challenges in the ADLAW area is ensuring all are aware of the most 

up-to-date Department ofDefense (DOD), Army, and theater policy and guidance. In 

Iraq, 101st Airborne Division (Air Assault) (101st) ADLAW section JAs found it useful 

to check Multi-National Force - Iraq (MNF-I) and Multi-National Corps - Iraq (MNC-I) 

and SIPRNet websites on a daily basis, looking for new fragmentary orders (FRAGOs) 

involving ADLAW issues. When a relevant FRAGO appeared, they inserted it into a 

notebook and downloaded it into a folder on the SIPRNet desktop. This provided Office 

ofthe StaffJudge Advocate (OSJA) personnel situational awareness, allowed ADLAW 

section personnel to get deploying JAs up to speed on MNF-I/MNC-I matters, and 

permitted ADLAW personnel to respond quickly to emailed questions from BCTs by 

using electronic versions. In addition, theADLAW section found it helpful to monitor 

the Army Publishing Directorate website (www.usapa.army.mil) for updated ADLAW 

guidance. l 

1 lOIst Airborne Division (Air Assault), Office of the StaffJudge Advocate, Operation IRAQI FREEDOM 

05-07 After Action Report, November 2005 - November 2006) 43 (2006) [hereinafter lOIst ABN DIV 

2007 OIF AAR]. 

157 
ILA. ARMY& AIR FORCE EXCHANGE SERVICE 

(AAFES)/MARINE CORPS COMMUNITY 

SERVICES (MCCS) 

Whenever u.s. forces remain deployed for any significant length oftime, the 

Army and Air Force Exchange Service (AAFES) is sure to follow in short order. As 

soon as the first field exchange is established, the issue of access to exchange facilities by 

non-DOD personnel will present itself.2 Fortunately, Army Regulation 215-8 and Marine 

Corps Order P1700.27A address this issue in detai1.3 In addition to these regulations, 

lAs should examine applicable status of forces agreements (SOFAs) and contracts that 

may address access to exchange facilities. 4 As with many other administrative law 

issues, preparing for this issue prior to deployment by establishing clear guidance and 

policies in advance will lessen the possibility it will distract lAs during operations. 

Other anticipated issues associated with military exchanges include dealing with 

AAFES or Marine Corps Community Services (MCCS) complaints of competition from 

local vendors who may have gained access to forward operating bases before AAFES or 

MCCS, as well as the level of support units will provide to exchange activities in remote 

locations. In Iraq and Afghanistan, units resolved these issues by executing memoranda 

of understanding with the respective exchange systems. These memoranda outlined the 

procedures the exchange and unit would follow. 5 

2 See CENTER FOR LAW & MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS IN HAITI, 1994-1995: 

LESSONS LEARNED FOR JUDGE ADVOCATES 407 (11 Dec. 1995) [hereinafter HAITI LL]; CENTER FOR LAW 

& MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS IN THE BALKANS, 1995 -1998: LESSONS 

LEARNED FORJUDGE ADVOCATES 184 (13 Nov. 1998) [hereinafter BALKANS LL]; CENTER FOR LAW & 

MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS IN CENTRAL AMERICA: HURRICANE MITCH 

RELIEF EFFORTS, 1998-1999: LESSONS LEARNED FOR JUDGE ADVOCATES 91 (15 September 2000) 

[hereinafter HURRICANE MITCH LL]; CENTER FOR LAW & MILITARY OPERATIONS, LAW AND MILITARY 

OPERATIONS IN Kosovo, 1999-2001: LESSONS LEARNED FOR JUDGE ADVOCATES 159 (15 December 2001) 

[hereinafter Kosovo LL]. 

3 U.S. DEP'T OF ARMY, REG. 215-8, ARMY AND AIR FORCE EXCHANGE SERVICE OPERATIONS (30 July 

2008). 

4 Be vigilant for contract terms for locally hired employees that conflict with Service regulations and 

SOFAs. See BALKANS LL, supra note 2, at 184. 

5 See CENTER FOR LAW & MILITARY OPERATIONS, LEGAL LESSONS LEARNED FROM AFGHANISTAN AND 

IRAQ, VOLUME II: FULL SPECTRUM OPERATIONS (2 May 2003 - 30 June 2004) 236 (1 Sept. 2005) 

[hereinafter OEF/OIF LL, Vol. II]. 

158 
ILB. ETHICS/JOINTETHICS REGULATION (JER) 

Without exception, the most frequently reported ethics issue from deployed 

theaters is acceptance offoreign gifts.6 Nearly every after action report (AAR) includes 

information papers and products produced to inform commanders about the rules and 

regulations associated with accepting foreign gifts. DOD Directive 1005.13 spells out the 

relevant policies and procedures.? As well, the General Services Administration (GSA) 

re-establishes what constitutes gifts of "minimal value" every three years and most 

recently, as of I January 2008, established "minimum value" gifts as those that have a 

fair market value in the United States of US$335 or less at the time of donation. 8 

Recent AARs have identified some of the procedures implemented by units to 

deal with foreign gifts. For example, the 101st ADLAW section published an 

information paper that set out guidance on reporting foreign gifts to Human Resources 

Command (HRC) and provided it to the brigades. The operational law (OPLAW) section 

was then responsible for gathering information about the circumstances in which each 

gift occurred (e.g., date, donor, donor's title, etc.). The ADLAW section typically asked 

a local vendor to provide an estimate for the gift's value before conducting a legal review 

advising the commander whether to report the gift to HRC. They then recorded the gifts 

in a notebook and secured them in a locked tough box. Before packing the MILVAN for 

redeployment, the ADLAW section paralegal documented the condition ofthe gifts by 

taking digital photos ofthem, although the AAR noted it would be better to do this upon . 9 receIpt. 

The 10 Ist OSJA recommended ADLAW sections have a plan in place for 

handling foreign gifts before arrival in theater, to include publication of a FRAGO and 

coordination with commanders' aide to determine how to account for gifts. Each brigade 

should consider designating a gift officerlNCO. Aides for general officers should also 

6 See BALKANS LL, supra note 2, at 185; HURRICANE MITCH LL, supra note 2, at 33; Kosovo LL, supra 

note 2, at 161; CENTER FOR LAW & MILITARY OPERATIONS, LEGAL LESSONS LEARNED FROM 

AFGHANISTAN AND IRAQ, VOLUME I: MAJOR COMBAT OPERATIONS (11 September 2001 - 1 May 2003) 

213 (1 Aug. 2004) [hereinafter OEF/OIF LL, Vol. I]; OEF/OIF LL, Vol. II, supra note 5, at 233. 

7 U.S. DEP'T OF DEFENSE, DIR. 1005.13, GIFTS AND DECORATIONS FROM FOREIGN GOVERNMENTS para. 4 

(19 Feb. 2002) (Cl, 6 Dec. 2002). See also 5 U.S.C § 7342, Receipt and Disposition of Foreign Gifts and 

Decorations (20 Dec. 2006); U.S. DEP'T OF DEFENSE, REG. 5500.7, JOINT ETHICS REGULATION para. 2­

300.b (1 Aug. 1993) (Cl, 2 Nov. 1994) (C2, 25 Mar. 1996) (C3, 12 Dec. 1997) (C4, 16 Sept. 1998) (C5, 25 

Oct. 2005) (C6, 23 Mar. 2006) [hereinafter DOD REG. 5500.7]; U.S. MARINE CORPS, ORDER P5800.16A, 

MARINE CORPS MANUAL FOR LEGAL ADMINISTRATION (LEGADMINMAN) ch. 12 (31 Aug. 1999) (C 1-5) 

[hereinafter MCO P5800.16A]; INT'L & OPERATIONAL LAW DEP'T, THE JUDGE ADVOCATE GENERAL'S 

LEGAL CENTER & SCHOOL, U.S. ARMY, JA 422, OPERATIONAL LAW HANDBOOK ch. 21 (2008) [hereinafter 

OPLAW HANDBOOK 2008] (summary of rules applicable to gifts). 

841 C.F.R pt. 102-42 (Feb. 8,2008). Some Washington, D.C. appraisers are able to provide an assessment 

affair market value based upon a photograph (units may pay for the appraisal itself from operations and 

maintenance (O&M) funds). 

9 10 Ist ABN DIV 2007 OIF AAR, supra note 1, at 30-31. 

159 
receive a special block of instruction, and the OSJA should periodically check with them 

to ensure that those general officers are complying with gift requirements. 10 

The 4th Infantry Division (4ID) OSJA reported another gift issue: unsolicited 

gifts of firearms, which technically placed the recipients in violation ofD.S. Central 

Command (CENTCOM) General Order (GO) No. IB. ll Although some commanders 

were interested in retaining such gifts, existing guidance does not permit an exception to 

GO No. IB for demilitarized weapons. Available options in such circumstances were 

therefore to destroy the gift or retain it as a unit gift. Where a commander wishes to 

pursue the larter course of action, the 4ID recommended processing the request as soon as 

possible. Demilitarizing the weapon and the review by the MNC-I Provost Marshal's 

Office - Customs (PMO Customs) required a considerable length oftime. 12 

Confidential financial disclosure reports follow closely behind foreign gifts as a 

commonly reported ethics issue. 13 The 1st Cavalry Division (lCD) OSJA noted persons 

who participate personally and substantially in procurement decisions must file aGE 

Form 450, Confidential Financial Disclosure with an "agency ethics official" (likely the 

Command JA, pursuant to authority granted by ethics counselor appointment orders) by 

15 February. Such reports remain on file locally with ethics counselors to help identify 

and prevent conflicts of interest. Filers can receive a combat zone extension, which lasts 

until ninety days after a filer's last day in the combat zone. Once a filer completes aGE 

Form 450, ethics counselors must report the filing to Forces Command (FORSCOM) and 

the Chief of the Army Standards of Conduct Office (DA SOCO). The ICD OSJA 

recommended identifying and requiring aGE Form 450 filers to file before deployment, 

and noted typical filers included division chiefs of staff and G4 officers, as well as BCT 

commanders. 14 

10 !d. The 10th Mountain Division (10th MTN DIV) OSJA reiterated the importance of educating 

commanders' aides and other key staff officers, allowing them to spot issues, in order to determiny whether 

it was necessary to contact the ethics advisor for assistance. 10th Mountain Division (Light Infantry), 

Office of the Staff Judge Advocate, After Action Report, Operation ENDURING FREEDOM, February 

2006 - February 2007 12-13 (2007) [hereinafter 10th MTN DIV 2007 OEF AAR]. 

11 Headquarters, U.S. Central Command, Gen. Order No. lB, para. 2(1)(1) (13 Mar. 2006) [hereinafter 

CENTCOM GO No. lB]. 

12 4th Infantry Division, Office of the Staff Judge Advocate, After Action Review, Operation IRAQI 

FREEDOM, January 2006 - March 2007) 17 (2007) [hereinafter 4ID 2007 OIF AAR]. The 4ID AAR also 

noted that an MNC-I "Gifted Unit Weapons" Policy Letter (14 Sept. 2006) authorizes each brigade to ship 

one gifted weapon back to the United States. Id. The 82d Airborne Division (82d ABN DIV) OSJA also 

experienced problems with expended ammunition casings given as plaques, awards, or mementos. These 

caused problems when servicemembers attempted to remove them from theater. In that case, the PMO and 

Customs developed a policy outlining the steps required to obtain permission to remove them from theater. 

82d Airborne Division, Office of the Staff Judge Advocate, After Action Report, Operation ENDURING 

FREEDOM, February 2007 - April 2008 3 (2008) [hereinafter 82d ABN DIV 2008 OEF AAR]. 

13 See BALKANS LL, supra note 2, at 186; OEF/OIF LL, Vol. I, supra note 6, at 217; OEF/OIF LL, Vol. II, 

supra note 5, at 231. 

14 1st Cavalry Division, Office ofthe Staff Judge Advocate, After-Action Review, Operation IRAQI 

FREEDOM, November 2006 - December 20079-10 (20 Nov. 2007) [hereinafter ICD 2007 OIF AAR]. 

160 
While a ninety-day extension is available for those required to report while in a 

combat zone,15 it may be better to advise required filers to consider reporting without the 

extension, since it will only get more difficult with time to accurately track and report 

financial information beyond fifteen months. This is especially true when required filers 

are unlikely to see a significant reduction in operational tempo upon return to home 

station. 

Another ethics issue that merits mention is that of gifts to the troops. 16 A flood of 

donations and gifts to deployed servicemembers may accompany the wave of patriotism 

that often follows the initial period of engagement in foreign conflicts. The most 

important thing to remember is Soldiers may not solicit gifts. Subsequent issues include 

identification ofthe appropriate gift acceptance authority, as well as ensuring no one 

improperly solicited the gifts. 17 

15 50 U.S.c. App. 101 § (g)(2)(A)(2000); Exec. Order 12,744, 56 Fed. Reg. 2,663 (Jan. 23, 1991); Exec. 

Order 13,239, 66 Fed. Reg. 64,907 (Dec. 14,2001); 5 C.F.R. § 2634.903(d)(2)(i) (2008) 

16 Kosovo LL,supra note 2, at 211; OEF/OIF LL, Vol. II, supra note 5, at 231. 

17 10 U.S.C §2601, General Gift Funds; U.S. DEP'T OF ARMY, REG. 1-100, GIFTS AND DONATIONS para. 

5(e) (15 Nov. 1983) [hereinafter AR 1-100]; U.S. DEP'T OF ARMY, REG. 1-101, GIFTS FOR DISTRIBUTION 

TO INDIVIDUALS paras. 6, 7 (1 May 1981) [hereinafter AR 1-101]; MCO P5800.16A, supra note 7, at 12-3, 

12-10 to 12-11. When identifying the appropriate gift acceptance authority, it is helpful to remember that 

MWR and/or MCCS can often serve as a gift acceptance authority when a commander is unable to. For 

example, Service regulations prohibit accepting gifts of alcohol, but MWRlMCCS may be able to do so. 

Transportation ofgifts to MWR/MCCS via MILAIR may also prove more advantageous in certain 

circumstances. Finally, MWR/MCCS may be able to solicit corporate gifts or sponsorships. See U.S. 

DEP'T OF ARMY, REG. 215-1, MORALE, WELFARE, AND RECREATION ACTIVITIES AND NONAPPROPRIATED 

FUND INSTRUMENTALITIES paras. 7-39, 7-47 (31 July 2007) [hereinafter AR 215-1]; U.S. MARINE CORPS, . 

ORDER P1700.27B, MARINE CORPS COMMUNITY SERVICES POLICY MANUAL (9 Mar. 2007) (C1, 22 Mar. 

2008) [hereinafter MCO P1700.27B]. 

161 
ILC. FREEDOM OF INFORMATION (FOIA)/ 

PRIVACYACT (PA) 

Freedom of Information Act (FOIA) and Privacy Act (PA) issues will not 

disappear when a unit deploys. 18 Judge Advocates can expect at least the same volume of 

FOIA requests and PA questions to arise while deployed as are routinely fielded in 

garrison. However, a few FOIA and PA issues are relatively unique to the deployed 

environment. 

First, databases for non-U.S. persons, such as detainees and/or medical patients,
 

are not subject to the PA. 19
 

Second, units must redact investigation reports into the death of servicemembers 

(e.g., friendly fire or hostile fire death investigations) in accordance with the FOIA as 

well as the PA before providing them to family members.2o While safety investigations 

certainly are not unique to deployed settings, they are very prominent in deployments. In 

safety investigations, confidentiality of witnesses and statements is paramount. This is 

necessary for obtaining an open and honest evaluation ofthe facts and circumstances 

surrounding an accident or mishap and providing lessons learned to prevent the same or 

similar accident or mishap from happening again. However, while the government will 

do everything it can to protect the confidentiality of witnesses, it cannot promise it will 

not disclose statements made during safety investigations in response to a valid FOIA 

request. 2

I 

In view of the volume ofFOIA requests received by deployed units, recent AARs 

suggest JAs educate themselves in this area prior to deployment.22 They may also wish 

to consider preparing and distributing a sample Army Regulation (AR) 15-6 investigation 

report, showing how it looks before and after redaction. The 3d Infantry Division (3ID) 

OSJA suggested divisions consider purchasing additional software licenses for the 

18 See HAITI LL, supra note 2, at 125. A standard training package on government information practices is 

available on the JAG University website on JAGCNet. 

19Id. at 68 n.222. 

20 See OEF/OIF LL, Vol. I, supra note 6, at 208. 

21Id. at 394-95; see also U.S. DEP'T OF ARMY, REG. 385-10, THE ARMY SAFETY PROGRAM para. 3-10 (23 

Aug. 2007). 

22 3d Infantry Division (Mechanized), Office of the Staff Judge Advocate, After Action Review, Operation 

IRAQI FREEDOM, March 2007 - June 20085 (2008) [hereinafter 3ID 2008 OIF AAR]; 10th MTN DIV 

2007 OEF AAR, supra note 10, at 11-12. In particular, one BCT JA found that casualty officers were often 

unfamiliar with the FOIA process to obtain hostile death AR 15-6 investigations. The CENTCOM FRAGO 

which directed AR 15-6 investigations into hostile deaths gave the CENTCOM FOIA office as the point of 

contact for all FOIA requests, but casualty officers were often unaware either the AR 15-6 requirement or 

the CENTCOM FOIA office. The JA therefore recommended that JAs become familiar with the FOIA 

process in general and the procedures for release ofthese investigations in particular, as well as make 

contact with their division FOIA counterparts, and develop a BCT standard operating procedure for FOIA 

requests. 172d Stryker Brigade Combat Team, Brigade Judge Advocate, After Action Report, Operation 

IRAQI FREEDOM, August 2005 - December 200613-14 (undated) [hereinafter 172d SBCT OIF AAR]. 

162 
program used to redact documents (Adobe Redax) and provide them to BCTs. As well, 

OSJAs may wish to ensure that some oftheir personnel receive training in the use of this 

software before deployment. 23 

In Afghanistan, the 10th Mountain Division (Light Infantry) (lOth MTN DIV)
 

OSJA reported they redacted investigations to respond to FOIA requests or to provide
 

them to next of kin in conjunction with a briefing. In each case, the investigation
 

underwent review for PA information, as well as for security issues (the latter by the
 

Foreign Disclosure Office). A final redacted version ofthe investigation combined
 

recommendations in both areas. A copy of the original version, along with the three
 

redacted versions, then went to CENTCOM for release,z4
 

The 4th Infantry Division (4ID) OSJA reiterated the requirement for CENTCOM 

involvement, noting brigades and battalions were often the custodians of the requested 

documents. There was temptation for these units to redact and release information 

directly to the requestor. However, CENTCOM and MNC-I guidance clearly stated 

redacted and unredacted copies were to go through MNC-I and MNF-I to CENTCOM 

FOIA for processing and release. The OSJA noted, however, that brigades should, as 

required by an MNC-I FRAGO, redact the requested material before forwarding it to the 

division.25 

Division-level and higher level OSJAs may find it is necessary to track FOIA 

requests. The 10th Mountain Division (Light Infantry) (lOth MTN DIV) OSJA AAR 

recommended the establishment oftracking systems, and suggested scanning and storing 

electronic copies of the original and redacted versions of the documents. In some cases, 

requests concerned Top Secret material. While units could forward Top Secret 

documents through the Joint Worldwide Intelligence Communications System (JWICS), 

Top Secret items such as videotapes required hand-carrying to CENTCOM. The AAR 

also noted ADLAW attorneys expected to manage or redact investigations at this level 

will need Top Secret clearances.26 

The V Corps (MNC-I) OSJA AAR also referred to some of the difficulties that 

may arise in coordinating FOIA activity amongst a large staff. The AAR noted C6 was 

the lead section for FOIA requests, but that it may be helpful to create a FOIA working 

group, to include sections such as C2, C3, SJA, etc. While the OSJA should support C6 

with advice, it should avoid assuming responsibility for the FOIA role. Well in advance 

of deployment, the OSJA should also appoint someone to serve as its FOIA action 

officer. This allows that individual to obtain the necessary training, as well as get in 

23 3ID 2008 OIF AAR, supra note 22, at 5. 

24 10th MIN DIV 2007 OEF AAR, supra note 10, at 11-12. 

25 4ID 2007 OIF AAR, supra note 12, at 17-18. 

26 82d ABN DIV 2008 OEF AAR, supra note 12, at 2-3. 

163 
touch with FOIA points of contact in other sections and at higher headquarters before 

deployment, to "get on the same page" regarding FOIA policies.27 

27 V Corps, Office of the Staff Judge Advocate, Operation IRAQI FREEDOM (OIF) After Action Report 

(AAR), 17 January 2006 - 14 December 2006 7-9 (2006) [hereinafter V Corps 2006 OIF AAR]. 

164 
II.D. HISTORICAL ARTIFACTS & WAR TROPHIES 

From the first Center for Law and Military Operations (CLAMO) publication 

through to the most recent, one ofthe most consistently reported after action items within 

the ADLAW discipline is handling the seemingly insatiable desire to collect and take 

home war trophies or historical artifacts. How many times have deployed lAs heard 

something like the following: Judge, the boss wants to take home some AKs and RPG 

launchers. Make it happen and make sure we're all legal on this one. Units document 

the confusion and consternation created by the absence of clear policy on retention ofwar 

trophies or historical artifacts before redeployment each time they return.28 

ILD.l. Background 

The rules on retention of enemy property as souvenirs generally fall into two 

broad categories, each with its own separate regulatory scheme: (1) war trophies; and (2) 

historical artifacts. War trophies, sometimes also referred to as "war souvenirs," are 

items retained by individuals as personal property. Historical artifacts are items retained 

by armed forces museums, and they never become personal property. The law ofwar 

(LOW) authorizes the confiscation of enemy military property when required by military 

necessity, but U.s. domestic law and policy significantly restricts the acquisition and 

retention of captured or abandoned enemy materie1.29 

Army Regulation (AR) 870-20, Army Museums, Historical Artifacts, andArt sets 

out the regime for historical artifacts, and defines a historical artifact as: 

Any object that has been designated by appropriate authority as being historically 

significant because of its association with a person, organization, event, or place, 

or because it is a representative example ofmilitary equipment that has been 

accessioned into the Army Historical Collection. Artifacts will cease to perform 

their original function. 3o 

Army Regulation 870-20 also defines war trophies: 

Personal souvenirs acquired by individual Soldiers, which may include military 

weapons or objects acquired from the enemy. War trophies do not include U.S. 

or allied property, equipment name plates, live ammunition or explosives, 

weapons defined as "firearms" by the National Firearms Act, electronic 

equipment, flammable materials, nonpersonal government issue materials such as 

28 See HAITI LL, supra note 2, at 127; BALKANS LL, supra note 2, at 355-372; Kosovo LL, supra note 2, at 

146; OEF/OIF LL, Vol. I, supra note 6, at 194-200,243-49. 

29 10 U.S.c. § 2579 (2000) (authorizing the Secretary of Defense to prescribe regulations allowing 

servicemembers to retain as souvenirs enemy material captured or found abandoned). See also OPLAW 

HANDBOOK 2008, supra note 8, at 24-25 (summary of war trophy policy). 

30 U.S. DEP'T OF ARMY, REG. 870-20, ARMY MUSEUMS, HISTORICAL ARTIFACTS, AND ART 45 (11 Jan. 

1999) [hereinafter AR 870-20]. See also U.S. MARINE CORPS, ORDER P5750.lG, MANUAL FOR THE 

MARINE CORPS HISTORICAL PROGRAM (28 Feb. 1992) [hereinafter MCO P5750.1 G]. 

165 
vehicles, aircraft, or tools, household items such as furnishings, art, and cultural 

property, items required for intelligence purposes, items protected by law or 

treaty, and items designated as Army historical artifacts.3l 

The acquisition ofwar trophies must be in accordance with U.S.C. 10 § 2597, 

which requires turning over all captured or abandoned enemy materiel to "appropriate" 

personnel. AR 870-20 governs historic artifacts. Additional detail regarding both war 

trophies and historical artifacts usually appears in theater, country and command specific 

orders and policies, often published in general orders (GOs) or fragmentary orders 

(FRAGOs). Judge Advocates are usually involved in staffing and providing advice on 

the application or development oflocal policy in this area. As a result, SJAs anticipating 

deployment orders should ensure their ADLAW sections are familiar with the underlying 

regulations and collect any theater specific policies or FRAGOs before deployment. It 

may also be helpful to set expectations by publishing information papers or providing 

briefings well in advance. 

Once deployed, JAs need to be prepared to provide detailed advice and guidance 

on war trophies and historical artifacts. They should remain engaged in the request 

process, and advise any commanders wishing to bring historical artifacts back to home 

station to begin the process early in the deployment. In the Army, the Center ofMilitary 

History (CMH) has overall responsibility for the designation and recovery of historical 

artifacts in contingency operations, and generally deploys military and civilian personnel 

for this purpose.

32 The CMH recovery team, in coordination with unit commanders, is 

responsible for identifying, collecting, registering, and returning to the United States all 

significant historical artifacts. 33 For the Marine Corps, the Marine Corps Museums 

Branch Activity, Marine Corps Combat Development Command is responsible for 

designating captured enemy materiel as historical artifacts. 34 

Each theater of operation brings its own challenges, but JAs can expect to 

encounter the following issues: 

31 AR 870-20, supra note 30, at 47. "War trophy" is also defined in the Defense Transport Regulation as a 

"souvenir collected by an individual participating in a military engagement as a memento ofthe 

engagement, owned as individual personal property, and registered with a Department of Defense Form 

603-1." U.S. DEP'TOF DEFENSE, REG. 4500.9-R, DEFENSE TRANSPORTATION REGULATION pt. V, V-xxiv 

(Sept. 2007) [hereinafter DOD REG. 4500.9-R]. 

32 AR 870-20, supra note 30, paras. 1-4(b), 4-4(a). Local commanders are responsible for providing force 

protection and support services to these individuals. Id para. 4-4(b). 

33 Id para. 4-4(e). See also E-mail from RobertJ. Colbert, Bureau ofCustoms and Border Protection, to 

Lieutenant Colonel Laulie Powell, U.S. Marine Corps Forces Central Command, subject: Information: 

War Trophies Point of Contact with Customs and Border Protection (13 May 2003) (outlining procedures 

for importing historical artifacts into the United States). 

34 See MCO P5750.1G, supra note 30. 

166 
•	 Lawful Acquisition. Judge Advocates must understand what personnel and 

units mayor may not seize as a war trophy or historical artifact under the 

LOW. 35 

•	 Customs Regulations. Judge Advocates must be familiar with the u.s. 

customs regulations or those ofthe country where the unit's home station is 

located (e.g., Germany). Items units or personnel may take as war trophies or 

historical artifacts under the LOW or service regulations may nonetheless 

violate custom regulations. Soldiers redeploying are not exempt from 

customs regulations nor are commanders authorized to permit exceptions to 

customs regulations, even when using military transport to military bases.36 

•	 Numerous Requests. Judge Advocates should anticipate numerous requests 

from units to bring items back as historical artifacts. Many items will not be 

eligible for a variety of reasons. Judge Advocates should be aware of current 

policies as they relate to the processing of historical artifact requests, and 

educate commanders and Soldiers on them during and before deployment. 

•	 Lengthy Delays in Processing. Requests for a unit to redeploy with a 

historical artifact will require considerable time for approval. As a result, JAs 

should be proactive in encouraging their commands to submit such requests 

early in the deployment. 

ILD.2. Lessons Learned 

In Bosnia, the Stabilization Force (SFOR) and U.S. task force GOs No. I 

contained provisions concerning the acquisition of public and/or private property and war 

trophies. Commanders had to consult and comply with the provisions of these GOs, as 

well as U.S. law and military regulations regarding the importation of firearms, ordnance, 

and other dangerous items. The SFOR GO No. I prohibited SFOR members from taking, 

possessing, or shipping captured or confiscated public or private property (to include 

weapons seized in the course ofmilitary operations) for personal and/or private use. It 

also prohibited all personnel participating in the SFOR mission from importing, 

exporting, purchasing, or possessing weapons, ammunition, or ordnance (other than those 

officially issued) while in the SFOR theater of operations. As an exception to this rule, 

units could retain property other than firearms or ammunition obtained during the course 

of military operations within the SFOR theater of operations as historical artifacts. 

Higher headquarters provided guidance on historical artifacts. 

The regulatory framework in place at the time, AR 870-29, Historical Activities: 

Museums and Artifacts and AR 608-4, Control and Registration ofWar Trophies, 

addressed the acquisition of war trophies and historical artifacts. However, it did not 

35 OPLAW HANDBOOK 2008, supra note 8, at 24. 

36 DOD REG. 4500.9-R, supra note 31, pt. V. DOD Form 603-1, War Souvenir Registration/Authorization 

(May 2007) must accompany items. 

167 
provide specific guidance for retaining property confiscated during peacekeeping 

operations as historical artifacts. After discussion with the CMH, U.S. Army Europe 

(USAREUR) decided the task force should submit its requests through the chain of 

command to USAREUR for review and recommendation. USAREUR then forwarded 

the requests to the CMH for action as an exception to the policy. However, due to their 

sensitive nature, the CMH decided to forward all requests to the Army Vice Chief of 

Staff for review. 3? 

Processing unit requests to retain seized items for historical purposes consumed 

lA time during each ofthe first four rotations to Kosovo. Marines deployed there during 

the first month of the operation were unable to resolve the issue before redeployment. 38 

At the task force level, lAs were responsible for drafting and disseminating implementing 

procedures for the USAREUR policy. In conjunction with the Assistant Chief of Staff, 

G4 (Logistics), lAs detailed the internal procedures for requests in a FRAGO to task 

force units. 39 Exceptions to the policy processed slowly, with the task force receiving a 

final decision on the requests nine months after submission. As the units had already left 

Kosovo by then, providing the historical artifacts to them became extraordinarily 

difficult. 

Disposition of enemy military property became a major issue for lAs during 

Operations ENDURING FREEDOM (OEF) and IRAQI FREEDOM (OIF). Units and 

Soldiers wanted to retain such property as either historical artifacts or war trophies. As a 

result, CENTCOM issued guidance for units deployed to its area ofresponsibility (AOR), 

initially for those involved in OEF. This stipulated units were to request - through their 

service component commanders - CDRCENTCOM authorization to remove items from 

the CENTCOM AOR as historical artifacts. The request was to include confirmation 

from the appropriate official (the CMH in the case ofArmy units) that the requested item 

was of historic value and would receive acceptance or designation as an historical 

artifact.40 During the early stages ofOEF, several hundred artifacts received approval for 

transportation from Afghanistan to the United States. 

In April 2003, CENTCOM published similar guidance for OIF, but it allowed 

transportation out of the CENTCOM AOR as historical artifacts only unserviceable 

enemy equipment. As Iraq began to reconstitute its security forces, many weapons of 

37 See E-mail from John Alva, U.S. Anny Europe, ODCSLOG, to Major Steve Russell, Executive Officer, 

1-26 Infantry (30 May 2000). 

38 All infonnation on Marine Corps operations in Kosovo derives from Memorandum, StaffJudge 

Advocate, 26th Marine Expeditionary Unit (MEU) (SOC), to Commanding Officer, 26th MEU (SOC), 

subject: Quick Look After Action Report JOINT GUARDIAN para. 4 (18 July 1999). 

39 See Kosovo LL, supra note 2, app. IV-32. 

40 See Message, 04202lZ Mar02, USCENTCOM, subject: USCENTCOM Legal Guidance for Operation 

Enduring Freedom (Disposition of Captured Enemy Equipment), paras. I.D to I.E; see also OEF/OIF LL, 

Vol. I, supra note 6, app. G-2 (detailed OEF flow chart for disposal of captured property); Message, 

101604Z Sep 02, USCENTCOM, subject: USCENTCOM Legal Guidance for Operation Enduring 

Freedom (Disposition ofCaptured Enemy Equipment). 

168 
interest to units as historical artifacts were also in high demand by the developing Iraqi 

security forces. Consequently, there was a need for captured serviceable equipment, and 

it generally could not go to the United States as historical artifacts.41 

In October 2003, CENTCOM reissued legal guidance on the disposition of
 

captured enemy equipment. It restated earlier pronouncements that all requests for
 

authorization to transport unserviceable captured enemy equipment out ofthe
 

CENTCOM AOR go through service component commanders and include
 

documentation of compliance with: (1) appropriate component service regulations; (2)
 

requirements to demilitarize any weapons or weapons systems; and (3) customs
 

regulations on importing requested items into the United States.42
 

The guidance also reflected the fact many units did not understand the type of 

property they could seize under the LOW and CENTCOM GO No. IA.43 Private or 

public property is only eligible for seizure during operations on order ofthe commander 

when based on military necessity. However, units were requesting the designation of 

items as historical artifacts that clearly fell outside these rules. These included works of 

art, silver tea service sets, sculptures, china dining sets, glassware sets, serving platters, 

copies of the Koran, prayer rugs, wooden display cases, and even license plates. The 

CENTCOM guidance directed an explanation of the military necessity that required 

seizure (rather than a return to the Coalition Provisional Authority for the use and benefit 

ofthe Iraqi people) accompany the request for any such items.44 

Ultimately, MNF-I required unit commanders to appoint temporary artifact 

responsible officers (TAROs) to be responsible for the safety and security ofrequested 

items. The TARO served as the primary point of contact for all matters regarding items 

under consideration for designation as historical artifacts. 45 Because the approval process 

was lengthy, the 1st Cavalry Division OSJA recommended units initiate requests six 

41 Message, l8l558Z Apr 03, USCENTCOM, subject: Legal Guidance for OIF (Disposition of Captured 

Enemy Equipment), paras. I.D to I.F; see also OEF/OIF LL, Vol. I, supra note 6, app. G-3 (example ofa 

Marine Corps unit's request to retain captured Iraqi property). 

42 See Message, 07l657Z Oct 03, USCENTCOM, subject: Legal Guidance (Disposition of Captured 

Enemy Equipment), paras. I.E., I.F [hereinafter CENTCOM OIF CEE Message]. The CMH did not 

require, and therefore would not approve, requests for common items such as AK-series weapons, RPG 

launchers, anti-aircraft guns, and Soviet-style tanks and artillery pieces, unless a specific curator requested 

a specific item that had a clearly documented relationship to a unit or event that related to his story line. 

Memorandum, U.S. Army Center of Military History, subject: Acquisition of Weapons (23 Sept. 2003). 

43 See Hague Convention No. IV Respecting the Laws and Customs of War on Land and its Annex: 

Regulation Concerning the Laws and Customs of War on Land, art. 23(g), Oct. 18,1907,36 Stat. 2277, 

T.S. No. 539; Headquarters, U.S. Central Command, Gen. Order No. lA, para. 2(k)(l) (29 Dec. 2000), 

superseded by CENTCOM GO No. lB, supra note 11. 

44 CENTCOM OIF CEE Message, supra note 42, para. 2. 

45 HEADQUARTERS, MULTI-NATIONAL FORCE - IRAQ, FRAGMENTARY ORDER 259, MNF-I POLICY ON 

HISTORICAL PROPERTY, para. 3.C.3.E. (31 Aug. 2004) [hereinafter MNF-I FRAGO 259]; HEADQUARTERS, 

MULTI-NATIONAL CORPS - IRAQ, FRAGMENTARY ORDER 619, REMOVAL OF HISTORICAL PROPERTY FROM 

IRAQ, paras. C.3.A.6, C.3.A.7 (31 Aug. 2004). 

169 
months prior to redeployment.46 The legal team at III Corps noted that at their level of 

command (Combined Joint Task Force 7), reconciling and tracking the requests created 

many problems; once items received approval, the requesting unit required notification 

and then the unit had to make arrangements to return to theater to collect the items.47 

Reserve component (RC) units had particular difficulty in obtaining approval for 

historical artifacts because they often lacked DOD museums near their home stations. 

However, the CMH allowed them one weapon or weapons system per location (i.e., 

armory or drill hall). Furthermore, the CMH devised a system whereby an RC unit could 

request it to accept an historical artifact and earmark it specifically for that unit. The RC 

unit then shipped the item to the Army's museum clearinghouse in Anniston, Alabama. 

Once the item entered into the museum inventory system there, personnel forwarded it to 

the RC unit.48 

Current CENTCOM guidance for the Iraqi theater of operations prohibits removal 

from the CENTCOM AOR of items seized after 28 June 2004, the date upon which an 

Iraq government again began to exercise sovereignty.49 However, items acquired by 

other means may still qualify.50 Previous policies apply to equipment captured in Iraq 

before that date. 51 Judge Advocates should be familiar with the process for dealing with 

historical artifacts, and assist in drafting requests for their designation. 52 Any such 

request must make clear that the item in question is for unit, not individual, retention, and 

should indicate its historical importance and value to the unit. This is especially true if 

the item is not unique, such as an AK_47.53 Judge Advocates should also be prepared to 

46 After Action Report, Office ofthe Staff Judge Advocate, 1st Cavalry Division 5 (Feb. 2005). 

47 First After Action Report, Administrative Law AAR Topics, Office of the Staff Judge Advocate, 

Combined Joint Task Force 7 (III Corps) (Apr. 2004) [hereinafter III Corps First Quarter 2004 OIF AAR]. 

48 Information Paper, Multi-National Force - Iraq, subject: Historical Property Request Procedures, para. 5 

(24 Aug. 2004). 

49 Message, 29l9l7Z Sep 05, USCENTCOM, subject: Legal Guidance (Disposition of Captured Enemy 

Equipment) [hereinafter CENTCOM Legal Guidance (Disposition ofCEE)]. 

50 "Units seeking to remove historical property must obtain concurrence from the [CMH] and MultiNational Security Transition Command - Iraq (MNSTC-I). The unit must also obtain Customs approval 

from MNC-I [Multi-National Corps - Iraq] PMO-Customs. Once the aforementioned approvals occur, 

units staff the action through MNC-I and MNF-I to a Ministry of Defense official representing the 

Government ofIraq (GOI). If GO! concurrence occurs, the action goes to CENTCOM for final approval. 

Recommend starting the process as early in the deployment as possible, as it could take several months. 

4ID 2007 OIF AAR, supra note 12, at 3. 

51 See, e.g., MNF-I FRAGO 259, supra note 45. 

52 One unit suggested early designation of a division historian and a historical artifacts officer for every 

brigade-sized element is wise. If possible, the division historian should assist in the publication of predeployment guidance regarding items that will or will not qualify as historical artifacts, and should make 

contact with counterparts at higher headquarters. 10th MTN DIY 2007 OEF AAR, supra note 10, at 13-14. 

53 See, e.g., E-mail from Major Ian D. Brasure, U.S. Marine Corps, Staff Judge Advocate, 26th Marine 

Expeditionary Unit (Special Operations Capable), to Major Kevin M. Chenail, U.S. Marine Corps, Office 

of the Staff Judge Advocate, Coalition Forces Land Component Command (3 Apr. 2003) (during OEF it 

170 
answer command questions on transportation of historical artifacts back to the unit's 

horne station. The old legal assistance adage applies: an ounce of prevention is worth a 

pound of cure. Pushing for clear policy guidance and implementation before deployment 

will avoid wasted time and the hard feelings that accompany the process at redeployment 

time when commanders receive the bad news that the weapons are not corning horne with 

the unit. 

In contrast to historical artifacts, there was authority for the acquisition ofwar 

trophies in Iraq only for a brief period from February to July 2004, in accordance with 

interim guidance issued by the Deputy Secretary of Defense.54 The ensuing CENTCOM 

policy on acquisition and retention ofwar souvenirs applied to U.S. military personnel 

and civilians serving with, employed by, or accompanying the U.S. forces in the Iraqi 

theater of operations. It authorized the retention of specific items as war souvenirs, when 

approved in writing by a designated individua1. 55 

Items approved for retention as war souvenirs under that policy included: 

•	 helmets and head coverings; 

•	 uniforms and uniform items such as insignia and patches; 

•	 canteens, compasses, rucksacks, pouches, and load-bearing equipment; 

•	 flags; 

•	 knives or bayonets, except for those defined as "weaponry," below; 

•	 military training manuals, books, and pamphlets; 

•	 posters, placards, and photographs; 

•	 currency of the former regime; and 

•	 other similar items that clearly pose no safety or health risk, and are not 

otherwise prohibited by law or regulation. 56 

The policy also prohibited retention of several types of items: 

•	 items taken from the dead or prisoners of war or other detained individuals, 

including items bought or traded; 

•	 weaponry, including: 

was helpful to point out that a particular weapon, such as an AK-47, was so commonplace on the battlefield 

that it was not useful for Afghan follow-on forces). 

54 Memorandum, Deputy Secretary of Defense, to Commander, U.S. Central Command, subject: War 

Souvenirs (11 Feb. 2004). See also Memorandum, Deputy Commander in Chief, U.S. Central Command, 

subject: Partial Waiver of USCENTCOM General Order Number lA, War Souvenirs (14 Feb. 2004). 

55 See Message, 181630Z Mar 04, U.S. Central Command, subject: FRAGO 09-528, War Souvenirs in the 

ITO, paras. 3.Rl, 3.C.l [hereinafter CENTCOM War Souvenir Policy]. A war souvenir was "acquired" if 

captured, found abandoned, or obtained by any other lawful means. ld. para. 3.C.3. An item was 

"abandoned" if left behind by the enemy. ld. para. 3.C.2. See also CENTCOM Legal Guidance 

(Disposition ofCEE), supra note 49 (terminating the period specified for lawful retention of war 

souvenirs). 

56 CENTCOM War Souvenir Policy, supra note 55, para. 3.C.1. 

171 
o	 weapons; 

o	 weapons systems; 

o	 firearms; 

o	 ammunition; 

o	 cartridge casings; 

o	 explosives of any type; 

o	 switchblade knives; 

o	 knives with an automatic blade opener including knives in which the 

blade snaps forth from the grip on pressing a button or lever or on 

releasing a catch with which the blade can be locked (spring knife); or 

by weight or by swinging motion and is locked automatically (gravity 

knife); or by any operation, alone or in combination, of gravity or 

spring mechanism and can be locked; 

o	 club-type hand weapons, such as blackjacks, brass knuckles, or 

nunchaku; 

o	 blades that are particularly equipped to be collapsed, telescoped or 

shortened; or stripped beyond the normal extent required for hunting 

or sporting; or concealed in other devices, such as walking sticks, 

umbrellas, or tubes. 

•	 items deemed to be of value or serviceable for a future Iraqi national defense 

force; 

•	 items that have intelligence value; 

•	 items that pose a safety or health risk; 

•	 items obtained under circumstances that expose individual or coalition forces 

to unnecessary danger or are otherwise contrary to existing orders or policies, 

such as looting private or public property or wandering the battlefield or other 

unsecured area; or 

•	 personal items belonging to enemy combatants or civilians including letters, 

family pictures, identification cards, and "dog tags.,,57 

The current policy appears in CENTCOM GO No. IB, which applies to both the 

Afghanistan and Iraq theaters. It prohibits the retention of enemy or former enemy 

property as either war trophies or historical artifacts unless specifically authorized by 

CENTCOM. 58 Recent lessons from both countries reiterate the requirement to 

distinguish between historical artifacts and war trophies, because the process of 

obtaining, authorizing, and shipping is quite different for each. They suggest the use of 

information ~apers and FRAGOs to educate commanders and Soldiers on these 

differences. 5 The extensive availability ofweapons (including antique firearms) for sale 

in Afghanistan poses a further complication. One SJA suggested JAs deployed to that 

theater may, therefore, wish to work with other staff sections, such as military police, and 

57Id. paras. 3.BA, 3.B.S, 3.C.S. 

58 CENTCOM GO No. IB, supra note 11, para. 2(1). 

59 10th MTN DIY 2007 OEF AAR, supra note 10, at 13; see also Gidget Fuentes, Keeping War Trophies is 

a Slippery Slope, MIL. TIMES, http://www.militarytimes.com/news/2008/06/marine_wartrophies_06IS08w/ 

(listing prosecutions for unlawful possession of war trophies). 

172 
mail office and customs personnel, to establish - and brief unit commanders on - detailed 

policies and procedures.6o 

60 Combined Security Transition Command - Afghanistan, Legal Advisor Detainee Operations & Political 

Military Affairs, March - September 2007 2 (28 Dec. 2007). "Numerous laws apply to the import of 

antique weapons including Afghan law, US federal firearms law, DoD war souvenir policy, DoD mailable 

items rules, and others. The laws may require an approval authority, weapons affidavit, or other processing 

method." ld. 

173 
ILE. INSPECTIONS 

The issue of inspections is a relatively underreported area in most AARs received 

to date, possibly because administrative inspections are one of the first areas to go by the 

wayside during deployments. However, as theaters mature, a decision to jettison 

inspections may prove regrettable - eventually the Inspector General's office is going to 

show up. Most of the sparse information gathered focuses on personnel and equipment 

inspections leading to confiscation of contraband items under applicable GOS. 61 

In fact, the 101st OSJA commented in a recent AAR that Multi-National Division 

- North commanders were very concerned about the presence of alcohol, drugs, and other 

contraband in their accommodation areas. Most Soldiers and many contractors lived in 

containerized housing units (CHUs). Health and welfare inspections ofCHUs were 

common and routinely turned up significant quantities of alcohol and pornography. The 

biggest challenge was conducting such inspections pursuant to Military Rule of Evidence 

(MRE) 313 - i.e., ensuring that they were lawful inspections and not subterfuge searches. 

The OSJA military justice (MJ) division's general approach was to view them as a lawful 

exercise ofthe garrison commander's authority, provided there was no indication that 

they were a subterfuge.62 

The 101 st OSJA AAR also discussed the issue ofthird country national (TCN) 

contract employees who represent a majority ofthe contracted workforce on many 

contingency operating bases (COBs) or forward operating bases (FOBs) in Iraq. These 

contractors have a "chief of security," who often told garrison commanders he was 

required to be both forewarned of and present at all inspections of contractor living 

quarters. While contracts may generally mandate the Army give notice to such 

individuals, the OSJA noted this may be contemporaneous with the inspection. Also, it is 

helpful to ensure the chief of security or other contractor representative is present during 

the inspection to rebut any possible allegations of impropriety. 63 

Finally, the OSJA witnessed an increased Department of State (DOS) presence 

during its deployment, in the form of provincial reconstruction teams (PRTs) on larger 

bases such as COB Speicher. While DOS personnel and their contractors are not subject 

to GO No.1, they are nonetheless subject to rules and regulations promulgated by 

garrison commanders. It was therefore beneficial for the Chief, MJ to meet with the 

garrison commander and DOS, Air Force Security Forces/military police, KBR, and 

contractor representatives, to explain the nature and breadth of health and welfare 

inspections. The OSJA also suggested that MJ personnel work with the Army 

contracting officer to determine the precise limitations outlined in contracts.64 

61 See HAITILL,supra note 2, at 315,320,325,330; HURRICANE MITCHLL,supra note 2, at 97,343,345;
 

Kosovo LL,supra note 2, at 395; OEF/OIF LL, Vol. I, supra note 6, at 378.
 

62 101st ABN DIV 2007 OIF AAR, supra note 1, at 73-74.
 

63Id.
 

64Id.
 

174 
ILR INTERNET USE 

Very little has been reported on legal issues arising in connection with Internet 

use. The Joint Ethics Regulation,65 fonns the basis for Internet use policies, but Army 

Regulation (AR) 25-2, Information Assurance66 contains additional guidance. Deployed 

lAs should also be aware of DOD policy on the release ofinfonnation to the public,67 as 

well as the Anny guidance with respect to blogs contained inAR 530-1, Operations 

Security (OPSEC).68 

65 DOD REG. 5500.7, supra note 7, para. 2-301; see also U.S. DEP'TOF DEFENSE, OFFICE OF THE GENERAL 

COUNSEL, ETHICS COUNSELOR'S DESKBOOK (USE OF GOVERNMENT RESOURCES) (2007). 

66 U.S. DEP'T OF ARMY, REG. 25-2, INFORMATION ASSURANCE, app. B (24 Oct. 2007) (sample acceptable 

use policy). 

67 U.S. DEP'T OF DEFENSE, DIR. 5230.09, CLEARANCE OF DOD INFORMATION FOR PUBLIC RELEASE (22 

Aug. 2008); U.S. DEP'T OF DEFENSE, INSTR. 5230.29, SECURITY AND POLICY REVIEW OF DOD 

INFORMAnON FOR PUBLIC RELEASE (6 Aug. 1999). 

68 U.S. DEP'T OF ARMY, REG. 530-1, OPERATIONS SECURITY (OPSEC) (19 Apr. 2007). See also U.S. 

Army, Public Affairs, Fact Sheet, Army Operations Security: Soldier B10gging Unchanged, May 2, 2007 

(outlining AR 530-1 proponent intent with respect to blogs), http://fas.org/irp/agency/army/b1og050207.pdf; 

Noah Shachtman, Army's 1rifo-Cop Speaks, WIRED BLOG NETWORK, May 2,2007 (Q&A with AR 530-1 

drafter), http://blog.wired.com/defense/2007/05/the_army_has_is.html. 

175 
ILG. INVESTIGATIONS 

Judge Advocates often fail to adequately account for the time, effort, and 

resources required to process the large volume of all varieties of administrative 

investigations that arise from deployed operations.69 Recent AARs have once again 

highlighted the numbers of investigations and the amount of time required to process 

them at both the division and brigade level. The 4th Infantry Division OSJA reported 

that it tracked approximately 1,050 investigations during its deployment. A BeT JA 

estimated that processing investigations occupied forty to fifty percent of his time.7o The 

10th MTN DIV OSJA described the situation it faced as follows: 

The main administrative law focus during OEF VII was on investigations. In one 

90 day period, there were approximately 30 investigations that rose to the ... 

CJTF-76 [Combined Joint Task Force 76] level for either appointment, legal 

review, or visibility in some other respect. CJTF-76 or higher headquarters 

issued a range policy memorandum dictating the differing incidents for which an 

investigation was mandatory. The primary focus was on accidents which 

resulted in death or serious injury, friendly fire incidents, and escalation of force 

incidents. There were also a variety of investigations on misconduct by 

commanders or other senior leaders. Many of these incidents were high profile 

in nature and the investigating officers were typically Maj ors or Lieutenant 

Colonels. Administrative law was responsible for advising the [investigating 

officers], tracking the progress ofthe investigations, and conducting a legal 

review of the completed investigation. The SJA was frequently required to brief 

the Command on the results of investigations as well as participate in any 

disciplinary action that resulted. For death investigations, Administrative law 

was also tasked with creating the Family Brief for the deceased Soldier's 

Command. Finally, the OSJA received numerous requests for information on 

investigations which had occurred two or three rotations earlier. 7

! 

II.G.J. Army Regulation (AR) 15-6 & JAGMAN Investigations 

The burden of coping with such a large number of investigations has forced JAs 

to develop and implement methods to facilitate the process. First, senior headquarters in 

both Iraq and Afghanistan have developed matrices setting out the investigations required 

in particular circumstances.72 Second, OSJAs are taking more time to prepare resources 

69 See HAITI LL, supra note 2, at 131; BALKANS LL, supra note 2, at 185; Kosovo LL, supra note 2, 147­

48; OEF/OIF LL, Vol. I, supra note 6, at 200; OEF/OIF LL, Vol. II, supra note 5, at 223. 

70 Interview by Captain Michael Baileys, Center for Law & Military Operations, with Brigade Combat 

Team Legal Team (After Action Report, Operation IRAQI FREEDOM, July 2006 - November 2007), at 

Fort Bragg, N.C. (Jan. 2008). 

71 10th MTN DIV 2007 OEF AAR, supra note 10, at 10-11. 

n Id. The 10th MTN DIV ADLAW section created a one-page investigations matrix for brigades to use as 

a quick-reference guide to determine the type of investigation required for each incident. It listed the type 

of incident, references, minimum type of investigation required, and minimum level for approving 

authority. The matrix was amended five times during the deployment, then redistributed. However, the 

OSJA suggested publishing it in the daily FRAGO to ensure each staff section had situational awareness of 

176 
before arrival in theater. Third, legal teams are providing advice to commanders in a 

timely fashion about the type of investigation required. Fourth, JAs are preparing the 

investigating officer in order to ensure the investigation covers all relevant topics. Fifth, 

OSJAs are becoming increasingly skilled at using electronic means to track, transmit, and 

store investigations, both in theater and upon return to home station. 

Preparation of Investigation Resources 

Before deployment, the 101 st ADLAW section updated, printed, and converted to 

PDF format the most recent versions of investigation guides, so that they could easily 

distribute them once in theater. The ADLAW section also created a quick-reference CD 

with multiple folders labeled by ADLAW categories (e.g., AR 15-6 investigations, 

summary courts-martial, line of duty investigations, financial liability investigations of 

property loss, gifts, administrative separations, etc.). Each folder contained current 

regulations, all forms associated with the type of action, and template legal reviews. 73 

Similar systems worked well for BCT legal teams, which prepared digital folders with 

copies of relevant regulations, forms, and templates for findings and recommendations to 

provide to investigating officers who were not co-located with the BCT.74 The 101st 

ADLAW section also recommended establishment of a section-wide template database 

for legal reviews. 75 

Preparation of Investigating Officer 

In addition to such planning, OSJAs devoted increased resources to preparing 

investigating officers to conduct investigations. That it is beneficial to do so is not a new 

discovery. In fact, a consistent theme with respect to Army Regulation (AR) 15-6 and 

JAGMAN investigations76 has been the need for JAs to be proactive in advising 

it. !d.; see also Regimental Combat Team 6, Regimental Judge Advocate, After Action Report, Operation 

IRAQI FREEDOM, January 2007 - July 2007 (undated). (referring to MNC-I matrix which required 

investigation for specific incidents set out in it (e.g., escalation offorce incidents, collateral damage, 

incidents offratricide or possible fratricide, and allegations of law ofwar violations)). 

73 A Marine JA suggested that JAs avoid conducting investigations, as doing so made it difficult to conduct 

impartial reviews ofthem, but noted that JAs could provide an investigating officer with a pre-formatted 

report template in order to reduce his or her workload. Task Force 2d Battalion, 6th Marines, Battalion 

Judge Advocate, After Action Report, Operation IRAQI FREEDOM, November 2006 - November 20071­

2 (7 Dec. 2007) [hereinafter TF 2/6 JA 2007 OIF AAR]. 

74 The V Corps OSJA also suggested Iraq-based multi-national divisions maintain a database of sister 

service regulations for investigations, so that an investigating officer assigned to conduct an investigation 

concerning a member of another service could be briefed on and conduct the investigation with the sister 

service standard in mind. V Corps 2006 OIF AAR, supra note 27, at 6. 

75 101st ABN DIV 2007 OIF AAR, supra note 1, at 36-37, 42. The ADLAW section also developed draft 

appointment memoranda for Class A accidents and fratricides using AR 600-34 requirements as a guide, 

and suggested that generic appointment memoranda should also be created for use in unexpected incidents. 

Id. 

76 U.S. DEP'T OF ARMY, REG. 15-6, PROCEDURES FOR INVESTIGATING OFFICERS AND BOARDS OF OFFICERS 

(2 Oct. 2006) [hereinafter AR 15-6]; U.S. DEP'T OF NAVY, JUDGE ADVOCATE GEN. INSTR. 5800.7E, 

177 
investigating officers. 77 If a JA waits for an investigating officer to ask questions, it will 

often be too late in the process to correct problems without starting the investigation over 7s from the beginning. Most recently, given the emphasis on providing a briefing on an 

accidental death to the primary next of kin (PNOK), JAs have emphasized the benefits of 

ensuring coordination ofthe investigation with the PNOK briefing from the outset.79 

Otherwise, as the 101 st ADLAW section discovered, the PNOK briefing may need to 

cover certain topics the investigating officer did not cover, triggering a requirement for a 

collateral investigation. The ADLAW section, therefore, recommended the appointment 

letter for the investigating officer include all of the issues the PNOK briefing required.so 

Ensuring investigating officers asked the right questions represented only a small 

part ofthe support provided by OSJAs to the PNOK briefing process. The 1st Cavalry 

Division (lCD) OSJA recommended preparing the investigation report itself with an eye 

towards its eventual release to the PNOK: for example, ensuring all exhibits were legible 

and discernible, and anticipating questions family members might ask. The 1CD 

ADLAW section was responsible for submitting redacted and unredacted copies of the 

investigation report to Human Resources Command (HRC). They also prepared cover 

letters explaining those redactions to family members. In order to facilitate onward 

transmission to HRC, the ADLAW section suggested moving as much ofthe 

SI investigation report as possible to NIPRNet.

MANUAL OF THE JUDGE ADVOCATE GENERAL (JAGMAN) (20 June 2007) (C1, 5 May 2008) [hereinafter 

JAGMAN]. 

77 See HAITI LL, supra note 2, at 131; BALKANS LL,supra note 2, at 186; HURRICANE MITCH LL,supra 

note 2, at 429; Kosovo LL, supra note 2, at 147. 

78 For example, the investigating officer's recommendations applied to the entire task force unless 

otherwise stated. It was therefore important to work with the investigating officer to ensure that the 

recommendation accurately described the effect sought, and that it was phrased in a way that would allow 

the approval authority to respond. 101st ABN DIV 2007 OIF AAR, supra note 1, at 36. 

79 See U.S. DEP'T OF ARMY, REG. 600-34, FATAL TRAINING/OPERATION ACCIDENT PRESENTATIONS TO THE 

NEXT OF KIN (2 Jan. 2003) [hereinafter AR 600-34]. See also U.S. DEP'T OF DEFENSE, INSTR. 6055.07, 

ACCIDENT INVESTIGATION, REpORTING, AND RECORD KEEPING (3 Oct. 2000) (C1, 24 Apr. 2008); U.S. 

DEP'T OF ARMY, REG. 600-8-1, ARMY CASUALTY PROGRAM (30 Apr. 2007); U.S. DEP'T OF ARMY, 

PAM.385-40, ARMY ACCIDENT INVESTIGATION AND REpORTING (1 Nov. 1994). 

80 lOlst ABN DIV 2007 OIF AAR, supra note 1, at 35. The 101st OSJA noted para. 2-4c ofAR 600-34 

required PNOK briefings to address certain issues not previously addressed by investigating officers. Upon 

approval of the resulting collateral investigation, JAs prepared slides for the PNOK briefer and emailed 

these to the Human Resources Command (HRC) point of contact for relay to the briefer. Preparing the 

PNOK briefing meant that JAs became familiar with AR 600-34, and were therefore able to shape the 

collateral investigation. However, the ADLAW section recommended appointing authorities require 

investigating officers to address these additional issues to avoid the need for additional investigation. 

Finally, the ADLAW section concluded JAs should be familiar with ARs 600-34, 385-5, and 15-6 before 

deployment, and maintain communications with investigating officers during all phases of investigations. 

Id. The 10th MTN DIV OSJA likewise found that, by coordinating with an investigating officer, JAs could 

ensure the easy conversion of the final investigation into the PNOK brief or for easy use in supporting 

adverse action where appropriate. 10th MTN DIV 2007 OEF AAR, supra note 10, at 10-11. 

81 1CD 2007 OIF AAR, supra note 14, at 9. Some OSJAs have also suggested that, if possible, attaching 

any classified material in annexes so that removing it from the redacted version does not create large gaps 

in the narrative. As well, it is helpful to duplicate with nouns the names of individuals (that may require 

178 
The lCD OSJA also noted that a brigade-level commander typically leads the 

family presentation team in accordance with AR 600-34, Fatal Training/Operational 

Accident Presentations to the Next ofKin, but modular task organizations, which 

frequently detach battalions from brigade to which they are organic, complicates this 

requirement. 82 In such cases, the owning brigade at the time of the incident conducted 

the investigation, but the rear detachment ofthe organic brigade presented the 

investigation results to family members. 83 

The 1CD OSJA AAR suggested the following for PNOK briefing support: 

•	 ensure the G1 section is aware ofthe types ofincidents requiring PNOK 

briefings, and try to involve them in the process at an early stage; 

•	 assign responsibility for preparing the briefing slides to the investigating 

officer, but with review by the deceased's chain of command; 

•	 ask units to identifY rear detachment points of contact for PNOK briefings, 

which may require coordination with installation or corps offices (these rear 

detachment offices should also provide legal support to briefers); and 

•	 send an electronic copy of the investigation to the briefer as soon as 

possible. 84 

Determining Investigation Type 

Judge Advocates should understand when to advise convening authorities to 

consider an administrative investigation rather than a command investigation.85 Army 

Regulation 15-6 provides very clear guidance on factors for consideration when deciding 

the level of investigation to initiate. 86 Despite this, JAs must prepare for commanders to 

initiate full command investigations in order to document the actions oftheir units. In 

terms of selecting the appropriate type of investigation, the 4th Infantry Division OSJA 

recommended brigade commanders have authority to determine whether investigations of 

incidents of negligent discharge, when they involved no death or injury, required an AR 

15-6 investigation or a more simple commander's investigation. 87 

redaction) so the meaning of a sentence will not be lost after redaction (e.g., the driver, SOT JOBes, said 

that. 00)' 

82 AR 600-34, supra note 79, tbl. 2-1. 

83 lCD 2007 OIF AAR, supra note 14, at 9. 

841d. See also Memorandum, Under Secretary ofDefense Personnel & Readiness), to Secretary of the 

Military Departments, subject: Directive-Type Memorandum (DTM) 017-07, "Service Casualty Office 

Notification of Death Investigations" (21 Mar. 2008) (establishing a new policy for death investigations 

requiring the Service Casualty Office to be notified ofthe investigation within thirty days of its initiation, 

and updated (for transmission to family members) ofinvestigationstatus every thirty days thereafter). 

85 See OEF/OIF LL, Vol. II, supra note 5, at 203; OEF/OIF LL, Vol. I, supra note 6, at 200. Judge 

Advocates wishing to obtain general information about command investigations should see the JAG 

University website on JAGCNet, which offers a standard training package on such investigations. 

86 AR 15-6, supra note 76, para. 1-5.b.(l)(a)-(e); see also JAGMAN, supra note 76, para. 0204. 

87 4ID 2007 OIF AAR, supra note 12, at 18. 

179 
Tracking & Storing Investigations 

As JAs have long noted, standardizing administrative investigation procedures has 

proven to be invaluable.88 This is even truer as the volume of investigations begins to 

rise and the number of high profile investigations continues to grow. Standardization of 

tracking procedures is also necessary to provide accurate status updates to commanders, 

who receive constant queries on the progress and status of investigations. Several OSJA 

AARs confirmed the need to establish and maintain a system for tracking investigations. 

The 101st ADLAW section created an investigations database. They scanned and logged 

all actions, giving each a name and tracking number to facilitate searches. The database 

allowed personnel to search for an action, then pull up and view a scanned copy ofthe 

entire file. This meant the OSJA did not have to create or store multiple paper copies. 89 

Investigations Requiring Special Treatment 

In some cases, the lOlst ADLAW section found it necessary to track certain types 

of investigations separately (e.g., escalation of force (EOF), Class A accident, U.S. 

hostile death, etc.). They independently maintained paper and electronic copies ofthose 

files. 90 The lCD OSJA likewise discovered it was useful to maintain a summary table of 

all EOF investigations involving serious injury, serious property damage, or death, and a 

similar table for all negligent discharge investigations. The summary table was 

accessible to all relevant personnel (e.g., SJA, Deputy SJA, OPLAWand ADLAW 

attorneys, and BCT JAs). By ensuring the easy searching and querying of the data in 

each table, the OSJA was able respond to the frequent enquiries from commanders and 

staff sections at all levels. The information helped such commanders and their staffs to 

identify trends and adjust command policies as required. 91 

To avoid confusing, duplicative, and inconsistent reporting, the 1CD OSJA 

recommended the ADLAW section assume responsibility for tracking all EOF AR 15-6 

investigations and commanders' inquiries. Furthermore, the OSJA noted, the ADLAW 

section benefited from designating a single paralegal to track and gather this data from 

the brigades (which ideally will also make a single individual responsible for forwarding 

it to the OSJA).92 

The 3ID OSJA characterized friendly fire investigations as the most difficult 

because of the sensitivity of the subject matter. They identified three critical components 

regarding these: immediate reporting; appointment of a neutral and detached AR 15-6 

88 See Kosovo LL, supra note 2, at 147. 

89 101st ABN DIV 2007 OIF AAR, supra note 1, at 32-33. The 4ID OSIA noted the fact most units 

emailedscannedcopiesoftheircompletedinvestigationsfacilitatedthetrackingprocess.This worked 

well, particularly when they did so through the brigade legal team. 4ID 2007 OIF AAR, supra note 12, at 

18; see also 10th MTN DIV 2007 OEF AAR, supra note 10, at 10-11. 

90 101st ABN DIV 2007 OIF AAR, supra note 1, at 33. 

91 leD 2007 OIF AAR, supra note 14, at 10. 

92 101st ABN DIV 2007 OIF AAR, supra note 1, at 34. 

180 
investigating officer; and continued reporting and updates throughout the investigation 

process. The OSJA, in fact, recommended JAs receive pre-deployment training in this 

area, to include learning about casualty affairs, operational, and PNOK reporting 

requirements, how to properly advise the investigating officer, and dealing with scenarios 

of actual issues presented while in theater.93 Finally, the ICD OSJA stressed 

coordination with other staff sections is essential to all successful AR 15-6 

investigations.94 

As with friendly fire incidents, investigations into detainee abuse allegations are a 

category ofinvestigations that cross into the OPLAW realm. The 10 Ist OSJA suggested 

the detention operations (DETOPS) attorney playa role in the processing of such 

investigations in order to ensure sufficient visibility of developments in this area. In 

particular, the OSJA found the DETOPS attorney needed to be aware of trends at the 

brigades, and command actions to deal with allegations. In order to achieve this 

situational awareness, the OSJA recommended the DETOPS attorney track and review all 

detainee abuse investigations in order to spot patterns (i.e., systemic issues), 

inconsistencies, or inaccuracies in the findings. In addition, the DETOPS attorney should 

brief investigation results to the Deputy Commanding General through the detention 

operations working group.95 

Brigade Legal Team Support to Investigations 

The 101 st OSJA also provided several comments about brigade legal team 

support to investigations, suggesting they also should develop procedures for completing 

and tracking investigations before deployment. The OSJA recommended brigade legal 

teams determine, before arrival in theater, which acts or events would trigger 

investigations, and what recommendations each investigation mandates, so they could 

prepare all required templates and appointment orders in advance. 96 The OSJA 

93 3ID 2008 OIF AAR, supra note 22, at 4. In fact, The Judge Advocate General (TJAG) has mandated all 

deploying JAs watch a fifteen-minute video presentation available on the JAG University webpage on 

JAGCNet. The JAG University webpage also provides a compilation of all reference materials dealing 

with friendly fire investigations. 

94 1d. The 82d ABN DIV OSJA echoed this last comment, noting that Combined Joint Task Force 82 

(CJTF-82) had a requirement to report to its higher headquarters any incidents involving the deaths of or 

serious injury to civilians or friendly forces. The OSJA provided input to such investigations, and then had 

a requirement to report their results. It noted all staff sections responsible for monitoring and reporting 

information from investigations or reports into such incidents needed to integrate their efforts in order to 

provide complete and consistent reports. 82d ABN DIV 2008 OEF AAR, supra note 12, at 1. 

95 lCD 2007 OIF AAR, supra note 14, at 8. 

96 The 101st Airborne Division OSJA reported the 101st Combat Aviation Brigade (101 CAB) legal team 

had prepared, before deployment, appointment orders for AR 15-6 investigations into loss, destruction, or 

damage of sensitive items, knowing the AR 15-6 investigation would likely be used as supporting 

documentation in a concurrent financial liability into property loss investigation (FLIPL). These 

appointment orders addressed not just the "who," "what," "when," "where," "why" and "how" of the 

incident but also the responsibilities assigned to financial liability officers as outlined in AR 735-5. These 

investigations were a huge success and almost guaranteed a legally sufficient follow-on FLIPL. Likewise, 

101 CAB JAs crafted appointment orders for negligent discharges and EOF incidents. This strategy also 

181 
suggested, moreover, that brigade Trial Counsels assume responsibility for advising 

investigating officers who are members of their unit, based in their areas of operation, or 

conducting investigations involving their brigades.97 A BCT JA noted legal teams must 

train battalion personnel to ensure understanding ofAR 15-6 requirements, possibly 

through an easy-to-use chart, with any changes published through FRAGOs. In addition, 

that JA concluded it was worth dedicating one person at the brigade level, ideally the 

"best and brightest NCO," to tracking AR 15-6 investigations. 98 

Concluding an Investigation 

Of course, once an investigating officer had completed his work, the result needed 

approval by the appropriate authority. The 1st Cavalry Division OSJA noted AR 15-6 

allows a General Court-Martial Convening Authority (GCMCA) to delegate in writing 

the authority to appoint and approve hostile fire death investigations to a Special CourtMartial Convening Authority (SPCMCA) (e.g., brigade commanders). The OSJA 

commented that, without such delegation, the task of appointing such investigators and 

approving their results could rapidly overwhelm a GCMCA. As a result, the OSJA 

recommended this practice to others. 99 

The OSJA also suggested that good practice includes asking brigades to send 

approved investigations to the division for forwarding to HRC and MNC-I. The OSJA 

added a copy of the delegation memo when forwarding all such reports. The Division 

Commander also allowed SPCMCAs (mainly brigade commanders) to approve 

investigations of clearing barrel-type negligent discharges. Units reported their 

investigation findings and recommendations to the ADLAW section, which in tum 

briefed the Deputy Commanding General (Maneuver) (DCG(M), who retained approval 

authority. While the DCG(M) still approved more than 200 negligent discharge 

investigations during the deployment, the OSJA felt that the practice worked well. It 

allowed the command group to have oversight of the matter, but did not burden the 

Commanding General with additional investigations to review and approve. If possible, 

the OSJA suggested it is preferable to delegate all negligent discharge investigations to 

SPCMCAs, except those resulting in injury, death, or serious property damage, or those 

where the offender is an E8 or above. 100 

One BCT JA noted an additional complication with respect to approval 

authorities: circumstances in which elements are OPCON but not ADCON to a brigade. 

The solution adopted by his legal team was to communicate - as soon as they became 

aware that a battalion was being attached to another brigade - with that brigade's JA. 

proved successful, making the job easier for the legal team when it came time to conduct legal reviews. 

101 st ABN DIY 2007 OIF AAR, supra note 1, at 36. 

97Id. at 35-37. 

98 172d SBCT OIF AAR, supra note 22, at 14-15. 

99 1CD 2007 OIF AAR, supra note 14, at 7. 

100Id. 

182 
Once they had worked out a proposed course of action together, they submitted it to the 

brigade executive officer and commander for approval. It was also necessary to 

determine responsibility for investigations concerning elements attached to a Marine unit. 

For example, the BCT legal team might propose all investigations for the attached unit 

occur in accordance with AR 15-6, and through the brigade rather than the Marine unit. 

However, the brigade would pass courtesy copies to the Marine unit if the Marines 

required it. When in doubt, this JA suggested a unit conduct an AR 15-6 investigation in 

accordance with the MNF-IIMNC-I guidance for mandatory investigations. 

One easily overlooked aspect ofinvestigation is the need to deal with their results. 

The 4ID OSJA suggested units ensure they establish a system to capture and disseminate 

any lessons learned from investigations, as well as to implement recommendations. 101 In 

addition, as one Marine JA observed, it is important to notify Soldiers and Marines whose 

conduct an investigation has scrutinized that the investigation is complete and its contents 

endorsed by higher headquarters, so they are able to "rest easy.,,102 

This latter issue may seem like a small matter, but it could help to alleviate the 

common perception investigations are an "attempt to get Soldiers." The climate may be 

such that commanders continually expressed displeasure with requirements, 

overwhelmingly indicating that "their Soldiers did nothing wrong" and wondered, "why 

are we documenting clean actions?" Consequently, it is important to convey to both 

commanders and Soldiers that the primary intent in requiring investigations is to 

accurately document, in a timely fashion, that Soldiers acted appropriately. Doing so 

provides the necessary tools to allow MNC-I to tell a Soldier's side ofthe story, should 

questions arise. Those few circumstances where Soldiers act wrongly provide useful 

lessons to avoid repeating such mistakes. Senior commanders and JAs need to emphasize 

continually that the primary purpose ofthese investigations is to protect Soldiers from 

unsubstantiated allegations. The misconception that investigations occur to "get 

Soldiers" actually exposes Soldiers to potentially greater harm down the road. 103 

Storing Investigations 

A final lesson identified by several OSJAs is the need to plan sufficient storage 

space for electronic and paper copies ofinvestigations. The 1CD OSJA recommended 

that the ADLAW section deploy with at least a 500 GB external hard drive to back up the 

shared drive/portal and facilitate movement of files upon redeployment. 104 Offices 

should also make provisions for regular backups, and put a plan put in place for returning 

databases to home station. lOS The ADLAW section must also be prepared to carry paper 

101 4ID 2007 OIF AAR, supra note 12, at 18. 

102 TF 2/6 JA 2007 OIF AAR, supra note 73. 

103 CENTER FOR ARMY LESSONS LEARNED, V CORPS AS MULTI-NATIONAL CORPS - IRAQ, JANUARY 2006­

JANUARY 2007: INITIAL IMPRESSIONS REpORT 223 (June 2007) [hereinafter CALL V CORPS AS MNC-I]. 

104 lCD 2007 OIF AAR, supra note 14, at 8. The lCD OSJA noted that legal teams should coordinate the 

move of classified hard drives in and out of theater with the G2. Id. 

105 lOlst ABN DIV 2007 OIF AAR, supra note 1, at 33. 

183 
copies of important investigations to home station, including fatal accidents, serious EOF 

incidents, deaths of non-combatants in combat operations, senior leader misconduct, and 

substantiated detainee abuse cases.

106 

Some, however, counsel against removing completed investigations from theater, 

suggesting OSJAs should take copies of them home, at most The reason for this is 

twofold. First, units that rotate into theater in the future will receive queries by higher 

headquarters for information contained in the investigation reports, and there is an 

expectation they have them. Second, those in theater at the time should assume 

responsibility for any subsequent review and release because they are in a better position 

to assess the effect of any prospective release upon the mission. 107 

IL G.2. Line ofDuty Investigations 

The 4ID OSJA AAR indicated the ADLAW section reviewed line of duty 

investigations before the G1 approved hem. The OSJA sometimes found it necessary to 

remind brigade surgeons that, in the case of suicides, Army Regulation 600-8-4, Line of 

Duty Policy, Procedures, and Investigations, establishes a presumption ofmedical 

instability that ultimately su~ports a "within the line of duty" determination despite the 

wound being self-inflicted. I 8 . 

In past AARs, JAs have reported encountering line of duty investigations in 

increasing numbers in processing mobilized reserve component members for release from 

active duty (REFRAD).109 Prior to release from active duty, a mobilized reservist must 

have a line of duty determination made with respect to any injuries received while 

mobilized. This determination is critical to the reservist receiving the appropriate level of 

benefits. It is also important to the service because no one can fill the reservist's billet 

until the injured reservist obtains release from active duty. 

IL G.3. Mishap and Safety Investigations 

The lesson most frequently reported concerning safety investigations is that a 

command investigation (designed to get to the facts and circumstances surrounding an 

accident) and a safety investigation (intended to find out the cause ofthe accident to 

prevent repetition ofthe same or similar accidents) into the same accident or mishap 

occur simultaneously. Judge Advocates should coordinate investigative efforts to 

facilitate maximum evidence and statement sharing. I 10 While certain aspects of safety 

106 1CD 2007 OIF AAR, supra note 14, at 8. 

107 CALL V CORPS AS MNC-I, supra note 103, at 223-24. 

108 4ID 2007 OIF AAR, supra note 12, at 19. See also U.S. DEP'T OF ARMY, REG. 600-8-4, LINE OF DUTY 

POLICY, PROCEDURES, AND INVESTIGATIONS app. B (15 Apr. 2004); JAGMAN, supra note 76, para. 0220. 

109 See OEF/OIF LL, Vol. II, supra note 5, at 230. 

110 See HURRICANE MITCH LL, supra note 2, at 403; OEF/OIF LL, Vol. I, supra note 6, at 203. 

184 
investigations remain confidential,111 the majority ofthe evidence and facts not in dispute 

are available for sharing with the command investigation team. A separate friendly fire 

investigation may also occur concurrently.112 Media interest usually accompanies this 

type ofinvestigation and often further increases the tension between the investigative 

teams. Ifthe JA does not carefully coordinate and manage the investigative efforts, the 

situation could get out of control. 

An additional lesson learned about safety investigations is the need to be sensitive 

to the investigative requirements ofmultinational partners when an accident or mishap 

also involves their forces. l13 A multinational partner should have as much free access to 

witnesses and unclassified and/or releasable evidence as possible to facilitate completion 

of their independent investigation. 114 However, U.S. witnesses should seek JA advice in 

order to be fully cognizant of any potential liability before providing a statement to 

multinational partner investigators. 

IL G.4. Financial Liability Investigations ofProperty Loss (FLIPLs) 

A financial liability investigation ofproperty loss (FLIPL) is a requirement when 

property and equipment damage, loss, or theft occurS. 115 In June 2006, Department ofthe 

Army Headquarters (HQDA) raised the approval authority for FLIPLS for losses over 

$100,000 or losses involving a sensitive item to the 07 level, except when the loss was a 

result of battle damage. 116 The 31D OSJA noted, however, that units could not write off 

property loss simply because it occurred during combat operations. This means units that 

deploy to remote outposts having limited means to secure high-cost or sensitive items 

might still find themselves facing liability for a loss of government property. 

Since destruction ofproperty (e.g., from improvised explosive devices, IEDs) also 

requires FLIPLs, the volume ofFLIPLs generated during deployed operations has 

III AR 385-10, supra note 21, para. 3-10. Even though the intent of safety investigations is to protect the 

confidentiality ofwitnesses and statements in order to get to the actual cause of accidents and mishaps 

without fear ofprosecution or adverse administrative action, statements may still be subject to disclosure 

upon a valid FOIA request. !d. 

112 See Cindy Gleisberg, Collateral Investigations, ARMY LAW., July 2006, at 18. 

113 See Kosovo LL, supra note 2, at 379. Sensitivity to the requirements of multinational partner 

investigations is also greatly magnified during friendly fire investigations. 

114 In some cases, a Coalition Investigation Board has also conducted a combined investigation (e.g., 2002 

Tarnak Farms incident in Afghanistan, involving U.S. and Canadian forces). A NATO body may also 

investigate an incident involving the forces of more than one multinational partner (e.g., the 2006 A-1O 

strafing ofISAF Soldiers was reviewed by a NATO Bi-Strategic Analysis Lessons Learned team). 

115 See generally U.S. DEP'T OF DEFENSE, REG. 7000.14-R, Vol. 12, ch. 7, FINANCIAL LIABILTY FOR 

GOVERNMENT PROPERTY LOST, DAMAGED, DESTROYED, OR STOLEN (Mar. 2007); U.S. DEP'T OF ARMY, 

REG. 735-5, POLICIES AND PROCEDURES FOR PROPERTY ACCOUNTABILITY (28 Feb. 2005); U.S. DEP'T OF 

ARMY, PAM. 735-5, FINANCIAL LIABILITY OFFICER'S GUIDE (9 Apr. 2007); JAGMAN, supra note 76, para. 

0249. Judge Advocates wishing to obtain general information about FLIPLs should see the JAG University 

website on JAGCNet, which offers a standard training package on them. 

116 4ID 2007 OIF AAR, supra note 12, at 19. See also OPLAW HANDBOOK 2008, supra note 8, 403-08. 

185 
sometimes been significant. As a result, the 3ID aSJA suggested JAs responsible for 

such reviews should possess good general understanding ofAR 735-5, and recommended 

preparation of a FLIPL checklist before conducting any review. In some cases, JAs may 

also have a requirement to prepare FLIPL rebuttals. However, where battle damage 

causes losses and there is no suspicion of negligence, aSJAs may wish to consider a 

policy of not reviewing the resulting FLIPLs. 117 

117 3ID 2008 OIF AAR, supra note 22, at 6. 

186 
ILH. MEDICAL ISSUES 

Judge Advocates should anticipate that non-DOD personnel- ranging from local 

nationals to DOD contractors, other U.S. Government personnel, and multinational 

partner forces - will request medical care from U.S. military medical personnel and 

medical treatment facilities (MTFs). As a result, JAs must be prepared to assist their 

commanders in detennining who is entitled to medical care. 

118 To resolve this issue, JAs 

should become familiar with chapter 3 ofArmy Regulation 40-400, Patient 

Administration. 119 Valuable policy and procedure infonnation may also be found in 

DOD Manual 6010.15-M, Military Treatment Facility Uniform Business Office (UBO) 

Manual,120 and Army Regulation 40-3, Medical, Dental, and Veterinary Care. 121 

During 2003 combat operations in Iraq, U.S. military medical personnel nonnally 

treated non-Coalition personnel only for injuries that threatened their life, limbs, or 

eyesight, but usually treated individuals injured by Coalition forces, regardless oftheir 

injuries. 122 An associated issue is whether a person who is not nonnally entitled to 

treatment at a DOD MTF is eligible for air transport to and from the MTF. 123 Other 

118 See HAITI LL, supra note 2, at 129; OEF/OIF LL, Vol. II, supra note 5, at 242. 

119 U.S. DEP'T OF ARMY, REG. 40-400, PATIENT ADMINISTRATION (6 Feb. 2008). Ofparticular relevance is 

paragraph 3-20, which addresses medical care outside the continental United States, including care for 

certain foreign nationals. Paragraph 3-50, which addresses Secretary of the Army designees, is also very 

important. Service Secretaries and their designees may designate individuals as eligible for treatment at 

DOD MTFs when they do not fit into any other category of eligibility. See also id para. 3-53 ("In special 

circumstances, a major overseas commander ... may authorize care for an ineligible person in Army MTFs 

under his or her jurisdiction when he or she considers this to be in the best interest of his or her command. 

Charges for care provided under this paragraph will be at the full reimbursable rate and collection will be 

made locally."). Id. para. 3-55 ("Any person is authorized care in an emergency to prevent undue suffering 

or loss of life. Civilian emergency patients not authorized Army MTF services will be treated only during 

the period ofthe emergency. Action will be taken to transfer such patients as soon as the emergency 

ends."). Id. See also U.S. DEP'T OF DEFENSE, INSTR. 1400.32, DOD CIVILIAN WORK FORCE CONTINGENCY 

AND EMERGENCY PLANNING GUIDELINES AND PROCEDURES (24 Apr. 1995) [hereinafter DOD 

INSTR.1400.32]; Memorandum, Deputy Secretary of Defense, to Secretaries of the Military Departments, 

subject: Policy Guidance for Provision ofMedical Care to Department of Defense Civilian Employees 

Injured or Wounded While Forward Deployed in Support ofHostilities (24 Sept. 2007) ("The Under 

Secretary ofDefense (Personnel and Readiness), under compelling circumstances, is authorized to approve 

additional eligibility for care in MTFs for other U.S. Government civilian employees who become ill, 

contract diseases or are injured or wounded while forward deployed in support of U.S. military forces 

engaged in hostilities, or other DOD civilian employees overseas."); U.S. DEP'T OF DEFENSE, INSTR. 

3020.41, CONTRACTOR PERSONNEL AUTHORIZED TO ACCOMPANY THE U.S. ARMED FORCES para. 4.8 (3 

Oct. 2005) [hereinafter DOD INSTR. 3020.41] (medical support guidelines for contractors). 

120 U.S. DEP'T OF DEFENSE, MANUAL 6010.15-M, MILITARY TREATMENT FACILITY UNIFORM BUSINESS 

OFFICE MANUAL (Nov. 2006). 

121 U.S. DEP'T OF ARMY, REG. 40-3, MEDICAL, DENTAL, AND VETERINARY CARE (18 Oct. 2007). 

122 See OEF/OIF LL, Vol. II, supra note 5, app. G-6. 

123 U.S. DEP'T OF DEFENSE, INSTR. 6000.11, PATIENT MOVEMENT (9 Sept. 98); U.S. DEP'T OF DEFENSE, 

REG. 4515.13, AIR TRANSPORTATION ELIGIBILITY (Nov. 94) (Cl, 20 Oct. 1995) (C2, 18 Nov. 1996) (C3, 9 

Apr. 1998) [hereinafter DOD REG. 4515.13]; AR 40-400, supra note 119, para. 3-54. Remember to 

consider the passport and visa requirements associated with transporting foreign nationals out oftheater 

187 
commonly reported medical issues include pre-deployment vaccination programs

124 and 

medical support for detainees. 125 

A matrix such as the one below is an excellent way to inform commanders and 

medical personnel of those who are entitled to some level of care at a DOD MTF, the 

level of entitlement, and any requirement for reimbursement. However, always confirm 

eligibility by reviewing chapter 3 ofAR 40_400. 126 

MEDICAL CARE MATRIX 

CATEGORY MEDICALIDENTAL OTHER 

AAFES (local nationals) YES- Life, limb & evesight onlv 

AAFES (U.S. emplovees) YES-2 

American National Red Cross YES-l,2 

KBR (local nationals) YES- Life, limb & evesi,ght onlv 

KBR (US employees) YES-3 Contract 

DOD Civilian Employees YES-4,6 

ICTY YES- Life, limb & eyesight only 

NATO military personnel (wi ACSA) YES-5 

NATO military personnel (w/out ACSA) YES- ifhave reciprocal agreement wi the countryotherwise, life, limb & eyesight onlv- 5 

NAFI, MWR (local nationals) YES- Life, limb & eyesight only 

NAFI, MWR (US employees) YES Invitational Travel Orders 

Non-Governmental Organizations YES- Life, limb & eyesight only 

Non-NATO military (wi ACSA) YES-5 

Non-NATO military (w/out ACSA) YES- if have reciprocal agreement wi the countryotherwise, life, limb & eyesi,ght only- 5 

OSCE YES- Life, limb & evesight only 

Political Advisor (POLAD) YES-6 

TRW (US citizen employees/translators) YES-2 Contract 

TRW (local nationals) YES- Life, limb & eyesight only 

UN, including UNHCR YES-Life, limb & eyesight only 

US Congressional Staff (US citizen employees on official business) YES-6 

US Embassy Personnel (US citizen emplovees on official business) YES-6 

US Government Emplovees YES-6 

USAID (non-US citizen employees) YES-7 

1.	 DOD 1NSTR. 1400. 32, paras. 2.4, 6.1.10. See also AR 40-400, para. 3-42. 

2.	 Reimbursable. 

3.	 Reimbursable. DOD INSTR 3020.41, paras. 4.8.2, 4.8.3 (review contract.) 

4.	 DOD INSTR.1400.32, para. 6.1.4 ("Civilian employees shall receive the same immunizations as given to military personnel in theater. "); 

para. 6.1.10 ("Provisions shall be made for medical care ofcivilian employees in a theater ofoperations. "); para. 6.1.11 ("Civilians 

shall receive medical and dental examinations '" to ensure fitness for duty in the theater ofoperations to support the military mission. "). 

See also AR 40-400, paras. 3-14, 3-16, 3-24. 

5.	 NATO and many non-NATO partners are provided with medical treatment pursuant to ACSAs or reciprocal agreements. The amount of 

medical care provided must be accountedfor by the nation providing care and reported through appropriate channels. 

6.	 AR 40-400, paras. 3-16, 3-24 (authorizing medical treatment ofus citizens who are employees ofDOD or otherfederal agencies); 

DEPSECDEF Memorandum. 

7.	 AR 40-400, para. 3-27, medical treatment ofUSAIDI Department ofState personnel, without respect to nationality, is authorized. 

and back for treatment at a DOD MTF. See Kosovo LL,supra note 2, at 144 n.182; OEF/OIF LL, Vol. I, 

supra note 6, at 216. 

124 See DOD INSTR. 1400.32, supra note 119, para. 6.1.4; U.S. DEP'T OF DEFENSE, INSTR. 6205.4, 

IMMUNIZATION OF OTHER THAN U.S. FORCES (OTUSF) FOR BIOLOGICAL WARFARE DEFENSE (14 Apr. 

2000); DOD INSTR. 3020.41, supra note 119, para. 6.2.7.5 (authority to direct contractor immunizations). 

125 U.S. DEP'T OF DEFENSE, INSTR. 231 0.08E, MEDICAL SUPPORT FOR DETAINEE OPERAnONS (6 June 

2006); AR 40-400, supra note 119, paras. 3-38, 3-55 ("Detainees ... will receive medical care equal to that 

of Soldiers."). 

126 AR 40-400, supra note 119, ch. 3. 

188 
ILL MILITARYPERSONNEL LAW 

Military personnel law continues to be an important part ofthe deployed lA's
 

core competencies. The two issues most often discussed in AARs are administrative
 

separations and conscientious objectors. However, other issues also occasionally arise,
 

such as hazing, letters ofreprimand, and dealing with casualties.
 

ILLI. Administrative Separations 

Administrative separations in a deployed environment require a weighing ofthe 

pros and cons oftaking on the logistic challenges associated with an administrative 

separation in theater, waiting to process the separation until redeployment, or sending the 

individual back to home station for processing before redeployment. When the 

anticipation is the deployment will be of a brief duration, the tendency is to wait for 

redeployment. However, recent experience in Iraq has demonstrated that, when 

deployments are longer in duration and occur in a mature theater, it is more likely 

administrative separations will occur in theater rather than at home station. 127 One unit 

that recently returned from Iraq recommended as many ADLAW section attorneys as 

possible serve as legal advisors to separation boards. In addition, such advisors should 

coordinate with the court reporter before the convening ofthe board in order to facilitate 

the drafting ofthe findings and recommendations memo. 128 

[See also MILITARY JUSTICE (Alternatives to Court-Martial).] 

ILL2. Conscientious Objectors 

Preparation to deal with the "flood" of conscientious objectors before operational 

deployments often consumes more time, attention, and resources than dealing with the 

three or four packages that actually appear upon actual receipt of a deployment order. 129 

Recent experience has shown units are inclined to deploy with conscientious objectors 

while final adjudication oftheir status is pending. 130 

127 OEF/OIF LL, Vol. II, supra note 5, at 204-05. 

128 1 CD. Also suggests continually revising the script as necessary, with the most recent version including 

the legal advisor instruction to the board members on their findings to be delivered prior to adjourning for 

deliberations. The court reporter should obtain signature block information for all board members in 

advance, and use a draft memo, double-spaced, as a findings worksheet. Other units have indicated 

administrative separations do not normally occur in theater because not all ofthe required medical 

examinations are available. 

129 HAITI LL, supra note 2, at 125. See 50 U.S.c. App. § 456(j) (2000), implemented by U.S. DEP'T OF 

DEFENSE,INSTR. 1300.06, CONSCIENTIOUS OBJECTORS (5 May 2007); U.S. DEP'T OF ARMY, REG. 600-43, 

CONSCIENTIOUS OBJECTION (21 Aug. 2006) [hereinafter AR 600-43]; U.S. MARINE CORPS, ORDER 

1306.16E, CONSCIENTIOUS OBJECTORS (21 Nov. 1986); OPLAW HANDBOOK, supra note 8, at 408-410. 

Unsurprisingly, units report that the number of conscientious objector packages rises when more units 

deploy. OEF/OIF LL, Vol. II, supra note 5, at 242. 

130 OEF/OIF LL, Vol. I, supra note 6, at 215. 

189 
The 1st Cavalry Division OSJA found that conscientious objector application 

submissions tended to occur during the first half of deployment, and recommended that 

ADLAW attorneys be ready to assist the G1 section with checking them. The OSJA also 

suggested adoption of the following procedure: 

•	 have units scan and submit applications via NIPRNet to facilitate their onward 

transmission to HQDA; 

•	 ensure the chaplain who interviews the applicant and completes a report upon 

him or her does not have a pre-existing confidential relationship with that 

1131 III	 . di'dVI ua; 

•	 ifthe commander recommends denial of conscientious objector status, ensure 

the applicant receives notification ofthe denial and ten days to provide final 

rebuttal material (the applicant may receive the SJA review, but AR 600-43 

does not require this); 132 

•	 ensure the G1 submits all the documents in the application packet to HQDA 

(note the command may not comment on or rebut this final material from the 

applicant); and 

•	 given that scanner errors do sometimes occur, keep a record of when the 

packet was sent to the G1. 133 

11.1.3. Hazing 

A few months after the 101st Airborne Division deployed to Iraq in 2005, rumors 

began to surface of units hazing new Soldiers by forcing them to perform tasks unrelated 

to their mission. Some alleged hazing involved physical as well as emotional hardship, 

and even violence. In response, the commander signed a hazing prohibition policy letter, 

reinforcing to leaders at all levels that the command did not support hazing of any kind, 

as it detracted from the mission. The policy did distinguish between hazing and 

legitimate team-building activities, however, such as sports, hip pocket training, and 

combatives. It effectively ended hazing, at least any serious enough to receive notice at 

the Division level. Judge Advocates may wish to suggest to commanders drafting and 

promulgating a hazing policy before deployment. 134 

11.1.4. Letters ofReprimand 

The 101st OSJA AAR estimated the OSJA had processed an average of five 

general officer memoranda of reprimands (GOMORs) each month. Although considered 

an administrative action, the processing occurred through the military justice (MJ) 

division. The Division Commander delegated GOMOR signature authority to the 

Assistant Deputy Commander (Operations) (ADC-O). The MJ division created a 

131 AR 600-43, supra note 129, para. 2-3(a)(2). 

1321d. para. 2-8(d). 

133 leD 2007 OIF AAR, supra note 14, at 7-8. 

134 101st ABN DIV 2007 OIF AAR, supra note 1, at 38. 

190 
template GOMOR, which the brigades used to create a draft. 135 They would then scan 

and send the draft and the evidence to the Senior Trial Counsel (TC) or the MJ division. 

Once reviewed, the Chief, MJ forwarded the packet to the ADC-O for signature. The 

signed copy then went back to the brigade TC, via scanning, so the Soldier could 

acknowledge receipt and exercise his rebuttal rights. There was no strict enforcement of 

timelines because of the operational tempo and limited Trial Defense Service (TDS) 

presence. Close coordination between BCT legal teams and the MJ division will ensure 

the proper filing of all GOMORs. 136 

This last point was reiterated by the 3d Infantry Division OSJA, which noted a 

HRC had returned a GOMOR because it contained the chain of command 

recommendations and filing decision, but not the affected officer's acknowledgement or 

rebuttal submissions. This was due, the OSJA confessed, to a failure to implement a 

system to include the required documents in the packet once the proper authority made 

the decision to file the reprimand in the official military personnel file (OMPF). As a 

result, the OSJA recommended developing checklists for administrative tasks to ensure 

the inclusion of proper documentation in forwarded packets and for other actions. 137 

The 4th Infantry Division OSJA reported that Deputy Commanding Generals 

responsible for resolving negligent discharges and lost sensitive items often issued what 

became known as a general officer memorandum of admonishment (GOMOA). This was 

a less strongly worded reprimand filed in a Soldier's local file with no potential for filing 

in his or her OMPF. Thus, the command used traditional GOMORs for more serious 

incidents not rising to the level ofUCMJ action, while GOMOAs became a quick and 

effective way to warn Soldiers their actions were unacceptable and under scrutiny from 

that point forward. 138 

[See also MILITARY JUSTICE (Alternatives to Court-Martial).} 

ILL 5. Casualties 

Unfortunately, JAs had to become familiar with the procedures that govern the 

handling of casualties. The lOlst OSJA suggests that the day a death occurs is too late 

for BCT legal teams to find out about the summary court-martial officer (SCMO) for 

deaths, appointed pursuant to Army Regulation 638-2, Care and Disposition ofRemains 

and Disposition ofPersonal Effects. 139 The regulation requires appointing a SCMO to 

135 3ID also created a sample GOMOR for use while deployed. The OSIA found that misconduct that 

commonly resulted in a GOMOR or Article 15 with reprimand included adultery, violation of the GO No.1 

visitation policy, inappropriate relationships (AR 600-20), disrespect, dereliction of duty, and negligent 

discharges. 3ID 2008 OIF AAR, supra note 22, at 1I . 

136 lOIst ABN DIV 2007 OIF AAR, supra note 1, at 38-39. 

137 3ID 2008 OIF AAR, supra note 22, at 5. 

138 4ID 2007 OIF AAR, supra note 12, at 20. 

139 See generally U.S. DEP'T OF ARMY, REG. 638-2, CARE AND DISPOSITION OF REMAINS AND DISPOSITION 

OF PERSONAL EFFECTS (22 Dec. 2000). 

191 
inventory a deceased Soldier's personal effects. 14o Although appointment of an SCMO is 

normally an S-l or mortuary affairs function, BCT legal teams should be aware of the 

requirement. 

140 Id. para. 18-5. 

192 
ILJ. MORALE, WELFARE & RECREATION/
 

MARINE CORPS COMMUNITYSERVICES
 

The Morale, Welfare and Recreation (MWR)/Marine Corps Community Services 

(MCCS) issue most consistently reported is that of determining entitlement to obtain 

access to MWR/MCCS facilities and events. 141 The response typically appears in either 

the MWR regulation or the MCCS manual. 142 Other MWR/MCCS issues include the 

provision ofmedical support to MWRlMCCS personnel143 and logistic support to 

MWRlMCCS operations144 in the deployed environment. 

{See also ADMINISTRATIVE LAW (Medical Issues).] 

Another aspect ofMWR/MCCS JAs should not overlook is their ability to solicit 

commercial sponsors. 

145 While individual servicemembers normally cannot solicit 

donations or commercial sponsorships,146 MWRlMCCS has fewer constraints. 147 Beyond 

being able to solicit commercial sponsorships, MWRlMCCS also has the ability to obtain 

logistic support for the transportation and distribution of goods to Soldiers. For example, 

a commercial entity that wanted to donate steaks to deployed forces would be responsible 

- after finding a gift acceptance authority authorized to accept such a gift - for 

transporting and distributing them to the troops. However, if the gift were made to 

MWRlMCCS, it might be eligible for space available transportation via military airlift 

(MILAIR). Additionally, the civilian personnel who were going to cook and serve the 

steaks might also receive authorization to travel via MILAIR as overseas entertainers. 148 

141 See BALKANS LL, supra note 2, at 432; Kosovo LL, supra note 2, at 377; OEF/OIF LL, Vol. II, supra 

note 5, at 232-33. 

142 See AR 215-1, supra note 17, ch. 7; MCO PI700.27B, supra note 17, para. 1201. 

143 See AR 40-400, supra note 119, paras. 3-14, 3-16, 3-24. 

144 See AR 215-1, supra note 17; MCO PI700.27B, supra note 17; DOD REG. 4515.13, supra note 123. 

See also U.S. DEP'T OF ARMY, REG. 215-6, ARMED FORCES ENTERTAINMENT PROGRAM OVERSEAS (28 

Feb. 2005) [hereinafter AR 215-6]; U.S. MARINE CORPS, ORDER PI71O.23B, ARMED FORCES 

PROFESSIONAL ENTERTAINMENT PROGRAM OVERSEAS (15 Jan. 87) [hereinafter MCO PI71O.23B]. 

145 See AR 215-1, supra note 17; MCO PI700.27B, supra note 17; OEF/OIF LL, Vol. II, supra note 5, at 

232-33. 

146 AR 1-100, supra note 17, para. 5(e); AR 1-101, supra note 17, para. 7; MCO P5800.16A, supra note 7, 

para. 12002(2). 

147 AR 215-1, supra note 17, para. 7-47; MCO PI700.27B, supra note 17, para. 9608. 

148 See AR 215-6, supra note 144; MCO PI71O.23B, supra note 144. 

193 
I1.K. PASSPORTS & VISAS 

Even though deployed forces will usually be exempt from passport requirements 

and visa fees,149 lA should not overlook other passport and visa issues. 150 For example, 

contractors and DOD or other U.S. Government employees are not always exempt. 151 In 

addition to civilians either accompanying or assisting the force, there are others often 

forgotten until the last minute before they must travel. Included in this group are 

witnesses required for both military tribunals and courts-martial. 152 Close coordination 

with DOS officials is essential to resolving passport and visa issues quickly and 

efficiently.153 If an interagency coordination group and/or a joint interagency 

coordination group (JIACG) exists, lAs must ensure no one bypasses it. Leaving the 

JIACG out of the loop will only lead to duplication of effort at some point and create 

confusion for the DOS officials working on the issue. This ultimately will delay or stifle 

the processing of the passport or visa. 

Passport or visa issues can also arise in relation to local nationals undergoing 

medical evacuation to the United States. 

149 See HAITI LL, supra note 2, at 266, 283; BALKANS LL, supra note 2, at 276, 331. 

150 However, even where there is no requirement for personnel to have passports to enter the country via 

military aircraft, if any additional travel out of country is contemplated (e.g., to conferences, etc.), it may
 

still be useful to possess a passport. CSTC-A Legal Advisor 2007 OEF AAR, supra note 60, at 13.
 

151 See HURRICANE MITCH LL, supra note 2, at 53, OEF/OIF LL, Vol. II, supra note 5, at 175.
 

152 See Kosovo LL, supra note 2, at 144 n.182.
 

153 See OEF/OIF LL, Vol. II, supra note 5, at 242.
 

194 
IlL CIVIL LAW
 

Senior Judge Advocates (JAs) continue to indicate their desire to have more
 

contract and fiscal law familiarity amongst their attorneys.! Staff Judge Advocates
 

(SJAs) have noted junior JAs often have little or no exposure to contract and fiscal law
 

issues in the garrison environment. A partial explanation of this shortcoming is their
 

garrison responsibilities. Some Offices of the Staff Judge Advocate (OSJAs) do not
 

generally review contract actions while in garrison, and many others use civilian
 

attorneys in the contract law function.
 

A shortage of contract and fiscal law experience makes reviewing these actions 

while deployed more difficult - or at a minimum, more time consuming, as JAs must 

grapple with unfamiliar concepts and procedures before providing legal advice. In 

addition, unfamiliarity with this area of law is doubtless a greater burden in a deployed 

environment, where access to research materials is likely to be limited. Unfamiliarity 

with contract and fiscal law has the potential to affect legal support to military operations 

greatly. Based on lessons learned, offered are several suggestions to improve proficiency 

in contract and fiscal law. Before deployment: 

•	 identify an attorney to be the office contract and fiscal law "expert" to train 

and assist other JAs; 

•	 get administrative law (ADLAW) attorneys "school trained" by The Judge 

Advocate General's Legal Center and School (TJAGLCS);2 

•	 have ADLAWand operational law (OPLAW) attorneys practice some 

contract law in garrison as a matter of course; 

•	 assemble a toolkit of basic fiscal law references;3 and 

1 E-mail from Colonel Kathryn P. Sommerkamp, to Lieutenant Colonel Pamela M. Stahl, subject: 

Interagency Symposium, (17 Nov. 2004) [hereinafter Sommerkamp E-mail]; Lieutenant Colonel Thomas 

E. Ayres, Notes from After Action Review Conference, Office of the Staff Judge Advocate, 82d Airborne 

Division, and Center for Law & Military Operations, Fort Bragg, N.C. (17-19 June 2004) [hereinafter 

Ayres Notes]. 

2 4th Infantry Division, Office of the Staff Judge Advocate, After Action Review, Operation IRAQI 

FREEDOM, January 2006 - March 2007) 21 (2007) [hereinafter 4ID 2007 OIF AAR]; 10th Mountain 

Division (Light Infantry), Office ofthe Staff Judge Advocate, After Action Report, Operation ENDURING 

FREEDOM, February 2006 - February 200726-27 (2007) [hereinafter 10th MTN DIV 2007 OEF AAR]. 

See also Lieutenant Colonel Brian Godard, Lieutenant Colonel Tim Modeszto, Major Michael Mueller, & 

Mr. Karl Ellcessor, Operational Contract and Fiscal Law: Practice Tips, ARMY LAW., July 2006, at 24 

(providing a compilation of observations, lessons learned and common-sense advice provided by JAs 

deployed to contract or fiscal law positions). 

3 In addition to directives, regulations, and theater-specific policies, a number of general fiscal and contract 

resources are available to JAs. See generally CONTRACT & FISCAL LAW DEP'T, THE JUDGE ADVOCATE 

GENERAL'S LEGAL CENTER & SCHOOL, U.S. ARMY, FISCAL LAW COURSE DESKBOOK; CONTRACT & FISCAL 

LAW DEP'T, THE JUDGE ADVOCATE GENERAL'S LEGAL CENTER & SCHOOL, U.S. ARMY, CONTRACT 

ATTORNEYS COURSE DESKBOOK [hereinafter CONTRACT ATTORNEYS COURSE DESKBOOK]; CONTRACT & 

FISCAL LAW DEP'T, THE JUDGE ADVOCATE GENERAL'S LEGAL CENTER & SCHOOL, U.S. ARMY, 

OPERATIONAL CONTRACTING COURSE DESKBOOK; CONTRACT & FISCAL LAW DEP'T, THE JUDGE 

ADVOCATE GENERAL'S LEGAL CENTER & SCHOOL, U.S. ARMY, ADVANCED CONTRACT LAW COURSE 

195 
• stop civilianizing contract law positions. 

Once deployed, JAs should coordinate closely with G8 and contracting 

personne1.4 In the event of particularly complex fiscal law issues, they may wish to 

consult the "fiscal law reachback" group available via the TJAGLCS website on 

JAGCNet. 5 

DESKBOOK (deskbooks may be obtained from the "TJAGLCS Publications" webpage on JAGCNet). The 

Comptrollers Accreditation Course is available on the JAG University webpage on JAGCNet, as is a video 

lecture on operational contract and fiscal law at the tactical level. See also INT'L & OPERATIONAL LAW 

DEP'T, THE JUDGE ADVOCATE GENERAL'S LEGAL CENTER & SCHOOL, U.S. ARMY, JA 422, OPERATIONAL 

LAW HANDBOOK chs. 17, 18 (2008) [hereinafter OPLAW HANDBOOK 2008] (summarizing applicable law 

and references, as well as providing links to other useful websites); HEADQUARTERS, MULTI-NATIONAL 

CORPS - IRAQ, CJ8 STANDARD OPERATING PROCEDURE, MONEY AS AWEAPON SYSTEM (MAAWS) (15 

May 2008) [hereinafter MNC-I MAAWS]. At the very least, prior to deployment, JAs should become 

familiar with all available sources of funding and the limits attached to each. 10th MTN DIV 2007 OEF 

AAR, supra note 2, at 26-27. 

4 3d Infantry Division (Mechanized), Office of the Staff Judge Advocate, After Action Review, Operation 

IRAQI FREEDOM, March 2007 - June 2008 8-9 (2008) [hereinafter 3ID 2008 OIF AAR]. 

5 However, a V Corps AAR cautioned that, although the fiscal law reachback group is an "outstanding 

resource," division or brigade JAs should not use it ifthe issue in question requires corps approval 

(otherwise, it might simply result in competing advice). V Corps, Office of the Staff Judge Advocate, 

Operation IRAQI FREEDOM (OIF) After Action Report (AAR), 17 January 2006 - 14 December 2006 15 

(2006) [hereinafter V Corps 2006 OIF AAR]. 

196 
lILA. CONTINGENCY CONTRACTING 

IILA.l. Access to Contract Documents 

An issue running throughout the legal lessons identified in relation to contract 

formation and administration is that of acquiring access to contract documents. Judge 

Advocates have repeatedly mentioned the difficulty in acquiring copies of the contracts 

they received requests to review.6 They found it particularly difficult to locate contracts 

involving interagency transfers or the federal supply schedules, as the base contract 

formation and management usually occured somewhere in the United States.7 

Early in Operation IRAQI FREEDOM (OIF), the diversity of contracting 

agencies added to the difficulty oflocating and acquiring actual contracts. For example, 

a Combined Joint Task Force 7 (CJTF-7) JA noted that during his deployment he 

provided advice related to contacts created not only by his own command, but by U.S. 

Army Europe (USAREUR); Army Materiel Command; the Defense and Central 

Intelligence Agencies; the Coalition Provisional Authority (CPA); the Departments of 

State, Justice, and Interior; the u.S. Agency for International Development (USAID); and 

others. 8 Deployed JAs should anticipate that contract documents may be unavailable and 

identify points of contact to assist in locating them upon arrival in theater. 9 

lILA.2. Performance Work Statements (previously Statements ofWork (SOWs)) 

The performance work statement (PWS) is "[a] statement in the solicitation that 

identifies the technical, functional, and performance characteristics ofthe agency's 

requirements. The PWS is performance-based and describes the agency's needs (the 

"what"), not specific methods for meeting those needs (the "how"). The PWS identifies 

essential outcomes to be achieved, specifies the agency's required performance standards, 

and specifies the location, units, quality and timeliness ofthe work."IO The PWS is an 

essential element of government contract formation, as it serves as the baseline for 

6 See, e.g., Major Francis (Abe) Dymond, Notes from Interagency Symposium, Charlottesville, Va. (8-9 

Nov. 2004) [hereinafter Dymond Notes]; Major David T. Crawford, Notes from After Action Review 

Conference, Office ofthe Staff Judge Advocate, 10lst Airborne Division (Air Assault), and Center for Law 

& Military Operations, Fort Campbell, Ky. (20-21 Oct. 2004). 

7 Id This did not seem to be the case for contracts actually created by the command where the attorney 

worked, but with contracts initially created by other commands or agencies. 

8 Dymond Notes, supra note 6, at 131. 

9 The Joint Contracting Command - Iraq/Afghanistan (JCC-I/A) has now been established. See 

HEADQUARTERS, MULTI-NATIONAL FORCE - IRAQ, JOINT CONTRACTING COMMAND - IRAQ/AFGHANISTAN, 

ACQUISITION INSTRUCTION (15 Dec. 2007) (available on the fiscal law webpage on JAGCNet); see also 

U.S. DEP'T OF AIR FORCE, AIR FORCE LOGISTICS MANAGEMENT AGENCY, CONTINGENCY CONTRACTING: 

A JOINT HANDBOOK (Dec. 2007), http://www.aflma.hq.af.mil/lgj/CCO%20handbook_sec.pdf (handbook 

only), https://acc.dau.mil/CommunityBrowser.aspx?id=l7l482&lang=en-US (contingency contracting 

toolkit). 

10 U.S. OFFICE OF MANAGEMENT & BUDGET, CIRCULAR A-76, PERFORMANCE OF COMMERCIAL ACTIVITIES 

D-7 (29 May 2003) (Cl, 31 Oct. 2006). 

197 
measuring progress and subsequent contract changes during contract performance. 

Consequently, effective legal input in drafting the PWS pays dividends over the entire 

life of the contract. Indeed, the V Corps OSlA recommended legal personnel receive 

training in the drafting of PWSs in order to avoid future problems stemming from PWSs 

consisting of a few generic statements that lack metrics and are difficult to enforce. II 

Deployed lAs working with government contracts have, in fact, noted recurring 

problems with inadequate PWSs. The PWS appears in Part I. C. of standard government 

contracts and sets forth a description ofthe work, tasks, products, or deliverables 

requiring completion under the contract. 12 The contractor relies on the accuracy of the 

PWS when determining his price and submitting his offer to complete the work. 

Unfortunately, in the deployed environment, individuals with limited training and/or 

expertise in either government contracting or the particular supply or service involved 

must hastily put together contracts. 

Reviewing lAs faced a difficult challenge upon the identification of a deficient 

PWS. 13 They realized returning all deficient requirements documents for PWS 

clarification (or re-writing PWSs themselves) would slow the contracting process, 

probably appear as obstructionist, and delay filling the commander's requirements. One 

option was to address these shortcomings by using their judgment to weigh the 

desirability of complete technical compliance with the need for contracts to respond 

rapidly to the commander's requirements. Where lAs determine that PWSs contain only 

minor deficiencies or pose a relatively low risk oftrouble in contract administration, they 

can make minor corrections without having to return them for additional clarification. 14 

III.A.3. Contract Scope 

Another problem identified by lAs working in the contracting field in a deployed 

setting was that of scope. The term "contract scope" encompasses "all work that was 

fairly and reasonably within the contemplation of the parties at the time the contract was 

11 V Corps 2006 OIF AAR, supra note 5, at 14-15. The aSJA further noted that the Joint Contracting 

Command - Iraqi Afghanistan (JCC-I/A) is not responsible for writing PWSs, so the aSJA had a 

requirement to provide such support. The 10th Mountain Division (lOth MTN DIV) aSJA suggested legal 

personnel should be involved in the drafting of contracts (the contracting office was generally responsible 

for this, and disputes frequently resulted over project scope). The aSJA estimated seeking legal assistance 

could have avoided many conflicts. For example, one contract contained conflicting language about 

responsibility for insurance. The aSJA therefore took steps to ensure submission of contracts for legal 

review before signature. 10th MTN DIV 2007 aEF AAR, supra note 2, at 25-26. 

12 U.S. GENERAL SERVICES ADMINISTRATION, SF FORM 33, SOLICITATION aFFERAND AWARD (Sept. 

1997). 

13 ""Solicitation" means any request to submit offers or quotations to the Government. Solicitations under 

sealed bid procedures are known as "invitations for bids." Solicitations under negotiated procedures are 

known as "requests for proposals." Solicitations under simplified acquisition procedures may require 

submission of either a quotation or an offer." GENERAL SERVS. ADMIN. ET AL., FEDERAL ACQUISITION 

REG. 2.101 (July 2008) [hereinafter FAR]. 

14 See Dymond Notes, supra note 6. 

198 
made.,,15 Government procurement regulations permit contracting officers to make 

unilateral changes to existing contracts, so long as such changes fall within the original 

scope ofthe contract. This provision has obvious utility in a deployed environment, 

where evolving missions and conditions are likely to impact on contract requirements and 

performance. However, determining whether a change to a contract, or a task order 

placed against an existing contract, was within the scope of the original contract posed a 

daunting task for reviewing JAS. 16 

Scoping determinations were particularly difficult for contracts involving
 

interagency transfers or the federal supply schedules as the base contract, because
 

drafting and management of the PWS necessary to make an informed scoping
 

determination normally occurred somewhere in the United States.
 

The general scarcity of contract oversight in the deployed environment also 

further complicated the scoping problem. Reviewing attorneys noted a single contracting 

officer's representative (COR)17 might, as an additional duty, death with an expectation 

to oversee a contract under execution in locations all across Iraq and report back to a 

contracting officer in the United States. 18 As this situation made it difficult to obtain 

either timely or accurate information from the COR, contracting officers and reviewing 

attorneys sometimes had little information with which to work when making scoping 

determinations. 

As long as the military relies on contractors to meet deployed logistics 

requirements, advising contracting officers and their customers in scoping determinations 

will remain a frequent and challenging task for JAs. However, JAs can reduce its 

difficulty by taking preventative steps. These include communicating with contracting 

and ordering officers to identify and acquire copies of contracts used for repeated orders, 

and establishing contact with CaRs either directly or through other legal personnel. 

lILA. 4. Requirements Contracts 

Judge Advocates reviewing contract actions must anticipate, and advise 

contracting officers and commanders on, problems resulting from executing requirements 

15 RALPH C. JASH, JR. & STEVEN L. SCHOONER & KAREN R. O'BRIEN, THE GOVERNMENT CONTRACTS 

REFERENCE BOOK: A COMPREHENSIVE GUIDE TO THE LANGUAGE OF PROCUREMENT (2d ed. 1998) 

[hereinafter A COMPREHENSIVE GUIDE TO THE LANGUAGE OF PROCUREMENT] ; FAR, supra note 13, 43.201. 

16 A scoping determination has serious implications for contract performance. The contracting officer may 

order changes within the scope of the original contract by exercising the changes clause in the original 

contract. Changes that fall outside the scope of the contract are "cardinal changes" and require formation 

of a new contract, often causing significant delay. See CONTRACT ATTORNEYS COURSE DESKBOOK, supra 

note 3, ch. 21. 

17 The COR is an employee of a contracting activity designated by a contracting officer to perform certain 

contract administration activities. A COR is an authorized representative of a contracting officer within the 

scope of his or her authority, but rarely has the authority to enter into contractual agreements or 

modifications. A COMPREHENSIVE GUIDE TO THE LANGUAGE OF PROCUREMENT, supra note 15. 

18 Dymond Notes, supra note 6. 

199 
contracts. 19 Permitted by the Federal Acquisition Regulation (FAR), a requirements 

contract generally provides for the contractor to fulfill all the government contracting 

activity's actual requirements for the designated supply or service throughout the contract 

term.zo Use ofthis contract type during contingency operations "may be more difficult 

because customer needs may easily be overstated or understated."zl A requirements 

contract breach may occur if, after contract execution, the government purchases supplies 

or services within its scope from another source.

22 

An example provided by 101st Airborne Division (Air Assault) JAs illustrates this 

point. At the conclusion of major combat operations in OIF, the 101st Airborne Division 

conducted stability operations in the Mosul area, including the restoration of civil 

aviation to the Mosul airport. As part of this effort, the division contracted with a global 

express air delivery service to fly its mail and other express deliveries into Mosul. This 

operation proved successful, and provided a benefit to the local economy as well as 

helping to meet the division's logistic needs.23 This initial success spurred an attempt to 

contract with other air delivery services to expand further the civil aviation operations, 

but the type of contract initially used to procure air delivery services hindered the effort. 

This was a requirements contract, and the contractor correctly complained the division 

would violate the contract terms by contracting with others for the same services. 

The contractor made an additional complaint that reinforces contract formation 

lessons discussed earlier. As the PWS was broadly worded - presumably to maximize 

flexibility by permitting the command to use this express air delivery service for a wide 

variety of requirements - the contractor argued it should provide the exclusive nonmilitary means of air delivery.z4 Careful analysis ofwhether a requirements type contract 

best suits the mission might help to avoid such difficulties in the future. 

19 Requirements contracts provide for filling all actual purchase requirements of designated Government 

activities for specific supplies or services during a specified contract period, with deliveries scheduled as 

the Government places orders. The contractor is legally bound to such a contract because the 

Government's promise to buy its requirements constitutes consideration. A requirements contract may be 

used when the Government anticipates recurring requirements but cannot predetermine the precise 

quantities of supplies or services that designated Government activities will need. A COMPREHENSIVE 

GUIDE TO THE LANGUAGE OF PROCUREMENT, supra note 15. 

20 Cf JOHN OSINIC JR. & RALPH C. JASH, JR. FORMATION OF GOVERNMENT CONTRACTS (3d ed. 1998) 

(noting that requirements-type contracts have been used to purchase all supplies and services in excess of 

those that can be provided by a government activity or to purchase a stated percentage of the activity's 

requirements). 

21 U.S. DEP'T OF ARMY, ARMY FEDERAL ACQUISITION REGULATION MANUAL No.2, CONTINGENCY 

CONTRACTING para. 8-4(c) (Nov. 1997) [hereinafter AFAR MANUAL No.2]. 

22 Datalect Computer Servs. Inc. v. United States, 56 Fed. Cl. 178 (2003); see also CONTRACT ATTORNEYS 

COURSE DESKSOOK, supra note 3. 

23 Major David T. Crawford & Captain Savas T. Kyriakidis, Notes from After Action Review Conference, 

Office ofthe StaffJudge Advocate, 101st Airborne Division (Air Assault), and Center for Law & Military 

Operations, Fort Campbell, Ky. (17-19 May 2004). 

24 The issue of how broadly to interpret the contract's PWS never rose to the level of a formal dispute. ld. 

200 
IILA, 5, Acquisition Review Boards 

Deployed JAs working with contract and fiscal law issues reported the necessity 

of understanding the acquisition review board (ARB), corps acquisition review board 

(CARB), orjoint acquisition review board (JARB) process.

25 The assumption is a JARB 

in one form or another will be part of any joint command's logistic operation.26 

Understanding the JARB's purpose and process gives JAs who advise the JARB itself, or 

units submitting requirements to it, the opportunity to improve legal services by 

identifying acquisition problems early enough to avoid frustrating delays. 

The JARB assists the commander in making funding decisions, but does not 

determine or approve requirements. Subordinate commanders identify their 

requirements, and submit requests for recommendation. The JARB then reviews those 

proposed expenditures to "ensure they meet bona-fide needs ofthe command and reflect 

the best value to the United States to accomplish the mission and achieve required 

standards.,,27 The JARB is comprised of voting members and advisors as determined by 

the commander.28 A JA serves as a non-voting advisor to the JARB, and reviews all 

packets submitted to the JARB for legal sufficiency before presentation. The JARB's 

final product (sometimes called validation) is a recommendation to the commander on 

whether to fund a reviewed requirement. Not every logistic requirement must go to the 

JARB for consideration. A consistent policy for OIF forces required requirements 

costing more than $200,000 to go to the command's JARB for review and 

recommendation to the commander.29 

The JARB exists to assist the commander in best allocating limited financial 

resources to meet mission requirements, but it also helps to ensured certain purchases 

meet security and interoperability standards. To meet this goal, the JARB reviewed 

certain categories ofrequirements regardless of cost. Judge Advocates found they 

needed to stay current with these special categories to ensure the unit prepared for and 

routed requirements through the JARB when necessary: 

25 Lieutenant Colonel Dale N. Johnson, Notes from After Action Review Conference, Office of the Staff 

Judge Advocate, 1st Armored Division, and Center for Law & Military Operations, Wiesbaden, F.R.G. (13­

14 Dec. 2004); After Action Report: CJTF 180 OEF IV, 10th Mountain Division (Light) Office of the 

Staff Judge Advocate. 

26 AFAR MANUAL No.2, supra note 21, para. 2-1 (a)(6). 

27 STANDING OPERATING PROCEDURES, HEADQUARTERS, COMBINED JOINT TASK FORCE 7, ch. 8, annex A, 

para. 1 (CJTF-7 ACQUISITION REVIEW BOARD (CARB)) (13 Nov. 2003) [hereinafter CARB SOP]. 

28 See id. para. 8 (naming C1, C3, C4, C6, C7, and C8 representatives as voting members, and the SJA, 

contracting officer, and other subject matter experts as non-voting advisors). See also MULTI-NATIONAL 

CORPS - IRAQ C4, JARB FOR DUMMIES: THE UNOFFICIAL GUIDELINE AND HELPFUL HINTS MANUAL ch. 2 

(9 Aug. 2004) [hereinafter JARB FOR DUMMIES] (naming representatives from each staff section C1 

through C9 as voting members, and others with expertise in contracting and legal fields as advisors). 

29 See, e.g., CARB SOP, supra note 27; HEADQUARTERS, MULTI-NATIONAL FORCE - IRAQ, FRAGMENTARY 

ORDER 328, MNF-I FY-05 BUDGET EXECUTION POLICY AND FISCAL GUIDANCE (6 Oct. 2004) (requiring all 

expenditures over $200K to be approved by the CARB/JARB). 

201 
•	 requests for non-tactical vehicles (including buses and all-terrain vehicles);3o 

•	 requests for tactical communications equipment or encryption devices; 

•	 requests for automation equipment (computers, servers etc.); 

•	 requests for cell phone or satellite internet service; 

•	 requests for re-locatable buildings;3! 

•	 requests for base support services or improvements; 

•	 requests for replacements or augmentation to authorized MTOE equipment.32 

Judge Advocates advising units sending requirements to the JARB assisted them 

by reviewing documents and anticipating JARB questions.33 Judge Advocates found they 

needed to review all the documents prepared for JARB submission (a checklist was 

available to assist them in reviewing JARB requests for completeness), and if possible, 

consult with the attorney advising the JARB to help avoid legal deficiencies. 

The JARB required the following documents: 

•	 Justification Memorandum. This stated the requirement, to include the 

purpose, background information, scope ofwork, total cost, and impact if 

the requirement did not receive approval. Common errors cited included 

failing to include the entire project in the requirement, and failing to 

obtain the correct signature. 

•	 Funding Documentation. Requirements submitted to the JARB had to 

include properly completed and appropriate funding documents. These 

were either a purchase request and commitment (PR&C) for local 

purchases and new contracts or a military interdepartmental purchase 

request (generally used when placing an order against an existing 

contract). 

•	 Performance Work Statement. A complete PWS was necessary to 

describe the unit requirements and the performance standards for 

enforcement during the contract.34 

•	 Independent Government Cost Estimate (IGCE). The IGCE is the 

government estimate of the resources, and the projected cost ofthose 

30 See, e.g., Memorandum, Dep't ofArmy, Assistant Secretary ofthe Army (Financial Management & 

Comptroller), to Commander, Third Army/US Army Central, subject: Funding Guidance for Contracts 

Involving Non-Tactical Vehicles (28 Jun 2007) [hereinafter Funding Guidance for NTV Contracts]. 

31 See Fiscal Law website on JAGCNet for information paper and flow chart. 

32 JARB FOR DUMMIES, supra note 28, annex A. 

33 See CARB SOP, supra note 27, para. 9. 

34 CENTER FOR LAW & MILITARY OPERATIONS, LEGAL LESSONS LEARNED FROM AFGHANISTAN AND IRAQ, 

VOLUME II: FULL SPECTRUM OPERATIONS (2 May 2003 - 30 June 2004) app. D-l(l Sept. 2005) 

(CARB/BCARB Checklist). 

202 
resources, required by contractor to perfonn the contract. These include 

direct costs (e.g., labor, supplies, equipment, or transportation) and 

indirect costs (e.g., labor or material overhead, as well as general and 

administrative (G&A) expenses, profit or fee).35 Reviewing JAs found 

they had to ensure that the ICGE was actually the government's estimate 

rather than a cost estimate solicited from a potential contractor, a cited 

failure ofsome projects submitted to the JARB.36 

III.A.6. Unauthorized Commitments 

Unauthorized commitments were a problem encountered by a number of JAs. An 

unauthorized commitment is an agreement that is nonbinding solely because the 

government representative who entered into it lacked the authority to do SO.37 Only the 

heads of agencies, the heads of contracting activities, and certified contracting officers 

have authority to commit the expenditure of government funds. 38 Contracting officers 

may further delegate in writing to selected individuals, called ordering or purchasing 

officers, the authority to make micro-purchases. 

Unauthorized commitments were not usually the result ofindividuals with ill 

intent, but instead people with the "intention to do great things in the short time 

allotted.,,39 In an example provided by Task Force Olympia of such an unauthorized 

commitment, a young Anny specialist (E-4) with no purchasing authority bought a motor 

pool for $50,000. The post-major combat operations environment is rife with the 

temptation and opportunity for individuals to engage in unauthorized commitments. 

In Iraq, at least three factors contributed to this condition: 1) almost innumerable 

mission-related and force sustainment requirements challenged commanders and their 

action officers; 2) by definition, the U.S. Government acquisition process was foreign to 

local businesses that could supply goods and services in Iraq; and 3) military purchases in 

35 U.S. DEP'T OF ARMY, ARMY CONTRACTING AGENCY, INDEPENDENT GOVERNMENT COST ESTIMATE, 

http://www.carson.army.mil/doc/Independent%20Government%20Cost%20Estimate%20(IGCE).htm (last 

visited Aug. 29, 2008). 

36 JARB FOR DUMMIES, supra note 28, ch. 3.5. 

37 FAR, supra note 13, 1.602-3. 

38 1d. 1.602-1 (a), 1.603-3 (stating that contracting officers are appointed in writing on an SF 1402, 

Certificate ofAppointment (also known as a warrant), and have actual authority to commit the expenditure 

of government funds to the extent of their appointment). The 1st Cavalry Division OSJA recommended 

that units publish guidance on authority to enter into contracts early in the deployment, and noted this issue 

requires command emphasis from the outset. 1st Cavalry Division, Office ofthe Staff Judge Advocate, 

After-Action Review, Operation IRAQI FREEDOM, November 2006 - December 2007 app. 9 (20 Nov. 

2007) [hereinafter lCD 2007 OIF AAR]. 

39 Memorandum, Coalition Provisional Authority Baghdad, subject: Unauthorized Commitments (14 Apr. 

2004). 

203 
Iraq provided a direct benefit to the Iraqi population in terms of economic stimulus, and 

fostered good will between the military and the local population.4o 

In this context, it is easy to understand the occurrence of unauthorized 

commitments and to predict the explanation for many will be seeking an expeditious 

means to mission accomplishment. However, unauthorized commitments often 

ultimately become a hindrance to mission accomplishment because they cause a 

significant administrative burden. Commanders and other individuals in positions at risk 

of engaging in unauthorized commitments would benefit from pre-deployment training 

on the authority to commit government resources and the potential (and likely) 

ramifications of unauthorized commitments. 41 

III.A.7. LOGCAP Contracting 

The DOD uses contractors to provide deployed u.s. forces with a wide variety of 

services because of force limitations and a lack of required skills. The DOD meets these 

needs through the Logistics Civil Augmentation Program (LOGCAP), as well as through 

normal contracting procedures. 42 The types of services provided by contractors to 

deployed forces include communications, interpreters, base operations, weapons systems 

maintenance, gate and perimeter security, intelligence analysis, and oversight of other 

contractors. 

By design, the LOGCAP contract serves as a force multiplier by providing 

logistic support for the deployed force. 43 Although generally perceived to work well, lAs 

should be aware of certain potential problems. One such problem experienced in Bosnia 

was disunity of command. Without a centralized process for requesting logistic support, 

U.S. units yanked contractors from job to job. This was inefficient in terms ofthe work 

already contracted and added unanticipated costs to those jobs. Costs increased and 

productivity diminished as the unit pulled the contractor from Project A and sent him or 

her to Project B (sometimes an unauthorized project, a sort of "mission creep"). With no 

central authority to prioritize requests for logistic support, various commanders and 

senior officers in theater imposed their individual and sometimes conflicting priorities on 

40 Lieutenant Colonel Paul S. Wilson, Notes from After Action Review Conference, Office of the Staff 

Judge Advocate, WIst Airborne Division (Air Assault), and Center for Law & Military Operations, Fort 

Campbell, Ky. (20-21 Oct. 2004). 

41 Sommerkamp E-mail, supra note 1. 

42 See U.S. DEP'T OF ARMY, REG. 700-137, LOGISTICS CIVIL AUGMENTATION PROGRAM (16 Dec. 1985) 

[hereinafter AR 700-137]. MNC-I G4 staff have created an informal guide referred to as "LOGCAP for 

Dummies" to make non-contracting Soldiers aware of LOGCAP procedures and capabilities. 

43 1st Armored Division, Office Of The Staff Judge Advocate, After Action Report, September 1995 ­

December 1996 52 (1997). See AR 700-137, supra note 42. The Corps ofEngineers administers the 

contract. However, as one JA noted, units using LOGCAP services will want legal advice concerning the 

contract from their own contract attorney. The deploying contract attorney should therefore obtain a copy 

ofthe LOGCAP contract, as well as relevant contact information. Major Susan Tigner, comments in 

Operation JOINT ENDEAVOR After Action Review, Volume I, Heidelberg, F.R.G. 236 (24-26 Apr. 1997) 

[hereinafter OJE AAR, Vol. I]. See also LOGCAP for Dummies. 

204 
contractors.44 To administer the contract efficiently - and avoid unauthorized 

commitments - units established communication links between the headquarters and the 

contractor, and there was a requirement for units to seek LOGCAP support through the 

headquarters rather than going directly to the contractor. To enforce this from the 

contractor side, the unit made clear that it would not reimburse unauthorized work - that 

done at the request ofsomeone other than the designated point of contact.45 

The presence of such significant numbers of contractors in Iraq raised several 

issues deployed lAs had to address.46 This was not surprising, as after action reports 

(AARs) repeatedly indentifiedlegal issues concerning contractors.47 Great simplification 

(and occasional elimination) ofmany ofthese is possible ifthe contract itself would 

consider and address them. Though anticipation of every potential situation is unlikely, 

units should consider many for inclusion in any contract that anticipates contractor 

employees supporting deployed operations. These include: 

•	 areas of deployment, to include potential hostile areas, and their associated 

risks; 

44 Memorandum, Contract Law Division, Office ofthe Judge Advocate, U.S. Army Europe, subject: 

Lessons Learned (17 Jan. 1996). See also Memorandum, Major Paul D. Hancq, to Chief, International Law 

and Operations Division, subject: Problems with LOGCAP Contract (6 Jan. 1996). 

45 See Major Susan Tigner, comments in OJE AAR, Vol. I, supra note 43, at 237 ("That really got their 

attention."). The previous comments about scrutinizing contract terms apply equally to LOGCAP, as 

comments from Iraq illustrate. In one case, the V Corps OSJA learned KBR was under contract to move 

military equipment from one forward operating base (FOB) to another. While the majority of equipment 

delivery occurred, one truck failed to arrive. Consultation with LOGCAP revealed such an issue had never 

previously arisen. Judge Advocates should ensure contracts have clauses that hold the contractor 

responsible for performance ofthe contract. V Corps 2006 OIF AAR, supra note 5, at 13-14. The 101st 

OSJA encountered a similar scenario, where the LOGCAP contract did not adequately consider the 

possibility of base closures (e.g., the contract required a minimum of 150 personnel to occupy a base in 

order for KBR to provide life support). As the base was in the process of being closed, the number of 

personnel authorizing fell below this number, so that is was necessary to obtain life support from 

neighboring FOBs (e.g., convoying there for meals). Another issue which perplexed the 101st OSJA was 

fuel spills, as the contract provided no guidance about reimbursement for lost fuel, or responsibility for the 

cleanup of spills outside DOD facilities. 101 st Airborne Division (Air Assault), Office ofthe StaffJudge 

Advocate, Operation IRAQI FREEDOM 05-07 After Action Report, November 2005 - November 2006) 4, 

14-15,40 (2006) [hereinafter 101st ABN DIV 2007 OIF AAR]. 

46 The number of contractors in Iraq has given rise to considerable concern. See generally Defense 

Management (DOD Needs to Reexamine Its Extensive Reliance on Contractors and Continue to Improve 

Management and Oversight): Hearing Before the Subcomm. on Readiness ofthe H Comm. on Armed 

Services, 110th Congo (2008) (statement ofDavid M. Walker, Comptroller General of the United States); 

U.S. GEN. ACCOUNTING OFFICE, GAO-08-966, REBUILDING IRAQ: DOD AND STATE DEPARTMENT HAVE 

IMPROVED OVERSIGHT AND COORDINATION OF PRIVATE SECURITY CONTRACTORS IN IRAQ, BUT FURTHER 

ACTIONS ARE NEEDED TO SUSTAIN IMPROVEMENTS (July 2008). 

47 See CENTER FOR LAW & MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS IN THE BALKANS, 

1995 -1998: LESSONS LEARNED FOR JuDGE ADVOCATES 151 (13 Nov. 1998) [hereinafter BALKANS LL]; 

CENTER FOR LAW & MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS IN HAITI, 1994-1995: 

LESSONS LEARNED FOR JUDGE ADVOCATES 142 (11 Dec. 1995) [hereinafter HAITI LL]. 

205 
•	 physical/health limitations that may preclude contractor service in a theater of 

operations; 

•	 contractor personnel reporting and accountability systems, to include plans to 

address contractor personnel shortages due to injury, death, illness, or legal 

action; 

•	 specific training or qualification(s) required by contractors to perform within a 

theater of operations, e.g. vehicle licensing, NBC, weapons; 

•	 reimbursement for government-provided services, e.g. medical/dental; 

•	 a plan to transition responsibility for mission accomplishment back to military 

personnel ifthe situation requires removal of contractors. 

Future contracts may address many ofthe operational events that affect 

contractors accompanying the force by utilizing a current standardized clause developed 

for this precise purpose. This draft clause includes consideration of deployed contractor 

issues, ranging from clothing and equipment issue, to visas and customs. However, until 

including such clauses becomes standard practice, JAs should expect to continue advising 

commanders on difficult issues related to providing support to contractors during 

deployments. 

[See also INTERNATIONAL & OPERATIONAL LAW (Civilians & Contractors on 

the Battlefield).] 

IILA.8. International Contracts 

Judge Advocates have sometimes assisted in the negotiation of international 

contracts. During OIF, JAs from the 101st Airborne Division helped negotiate a multibillion dollar contract to provide electrical power to northern Iraq. This required them to 

become knowledgeable about the international electricity and oil product industries, 

educate the command on terms and concepts, and draft and negotiate contracts. In the 

end, these JAs helped strike a deal with a Turkish corporation for sufficient electricity to 

provide a reliable source of constant power to Mosul, something that had not been 

available for more than a decade. They also helped negotiate a deal with Syria to bring 

electrical power into Iraq in exchange for crude oi1.48 Finally, they tackled a difficult 

issue surrounding the unfreezing of assets of an Iraqi cement company by Syria and 

Jordan, allowing the company to access its accounts in those countries to pay for ongoing 

contracts and preventing its collapse.49 

48 Operation IRAQI FREEDOM After Action Review, Office of the StaffJudge Advocate, WIst Airborne 

Division (Air Assault) 66 (24 Sept. 2004). 

49 See Office of the Staff Judge Advocate, WIst Airborne Division (Air Assault), Northern Cement 

Company Contracts, PowerPoint Presentation (undated), 

206 
IILB. FISCAL LAW 

A recurring theme in recent after action reports is the importance of understanding 

fiscallaw,5o defined as the "application of domestic statutes and regulations to the 

funding of military operations, and support to non-federal agencies and organizations.,,51 

Not only do fiscal law questions abound during military operations, but also finding the 

answers is often difficult and requires coordination with higher levels of command. 

Throughout operations in Afghanistan and Iraq, JAs have continued to express concern 

about their comfort level in advising commanders on contract and fiscal law matters. Of 

the multitude ofrequests to CLAMO for assistance during OIF combat operations, by far 

the most represented legal discipline was civil law - in particular, fiscallaw. 52 

In addition to understanding fiscal law, there is a need to integrate fiscal law 

expertise into staffplanning. Many recent after action reports (AARs) have suggested 

that a fiscally savvy JA should always be present in tactical operations centers and should 

at least be a "back bencher" at every staff meeting. 53 In particular, brigade JAs take part 

in the planning process down to the battalion level, as they are best placed to identify 

issues early on and take action to properly orientate their commands. However, some 

further recommend JAs advising on fiscal law matters be strong-willed individuals given 

that this, at times, requires counseling "no" to a commander's proposed course of 

action.54 

IILB.l. Use ofO&M Fundsfor Development & Security Assistance 

The most common fiscal issue arising out ofrecent operations has been which 

"pot ofmoney" is appropriate for different purposes. In more precise terminology, the 

issue was how not to violate the Purpose Statute requirement that Congressional 

"[a]ppropriations shall be applied only to the objects for which the appropriations were 

50 See, e.g., Major Jeff Bovarnick, Chief, Operational Law, Combined Joint Task Force 180, CJTF-180 

Notes from the Combat Zone (2003) [hereinafter Bovarnick CJTF-180 Notes] ("Almost daily, a new fiscal 

law issue comes up, but there are many recurring issues"); Interview with Major Thomas Wagoner, former 

StaffJudge Advocate, 15th Expeditionary Unit (Special Operations Capable), in Charlottesville, Va. (Dec. 

2,2003) ("Fiscal law - it ain't sexy, but it's what the boss wants to know."). Additionally, Col William D. 

Durrett, the SJA for I Marine Expeditionary Force, opined at the November 2003 XVIII Airborne Corps 

Rules ofEngagement Conference that fiscal law issues were numerous during his initial deployment to 

Iraq, and that developing a sophisticated understanding of fiscal law was a priority for his unit's 

redeployment to Iraq in spring 2004. 

51 U.S. DEP'T OF ARMY, FIELD MANUAL 27-100, LEGAL SUPPORT TO OPERATIONS para. 3-6 (l Mar. 2000). 

52 The consensus among CLAMO staff is that fiscal law questions comprised at least one-third of all 

requests for assistance from the field during the periods of major combat hostilities in OEF and OIF. 

53 See, e.g., Transcript of After Action Review Conference, Office of the Staff Judge Advocate, XVIII 

Airborne Corps, Fort Bragg, N.C. (30 Sept. - 1 Oct. 2003). 

54 Id. But see Bovarnick CJTF-180 Notes ("The Fiscal Law attorney could easily make enemies on the 

staff by constantly saying no; however the Judge Advocate will quickly become an ally by working through 

the issue and finding a way to accomplish the mission with the proper finding source."). 

207 
made except as otherwise provided by law.,,55 This issue most often manifested itself in 

the context of whether operations and maintenance (O&M) dollars could fund certain 

aspects of the operation. Although Congress provides DOD with more than a hundred 

separate appropriations in a typical fiscal year, tactical units generally only receive O&M 

appropriations, which are for all day-to-day and "necessary and incident" operational 

expenses for which another funding source does not exist.56 Two ofthe more common 

activities for which other funding sources exist, yet in which DOD units often find 

themselves involved, are development assistance (providing food, education, agricultural 

assistance, health care, family planning, environmental, and other programs to resolve 

internal political unrest and poverty) and security assistance (providing supplies, training, 

and equipment to friendly foreign militaries). Under the Foreign Assistance Act (FAA), 

Congress determined that these activities - development assistance and security 

assistance - are Department of State (DOS) rather than DOD responsibilities.57 

A vexing question in deployment operations concerns when O&M dollars are 

appropriate to fund operations that have humanitarian motives or effects. Not 

surprisingly, the predominant fiscal issue during OIF and Operation ENDURING 

FREEDOM (OEF) was to what extent O&M dollars were available to fund activities that 

appeared to approach DOS development and security assistance under the FAA. 

Moreover, if O&M dollars were improper, what alternative funding sources were 

available? Issues regarding the proper DOD role within the FAA fiscal framework arose 

during OEF in three primary areas: 1) military provision of humanitarian assistance to 

the Afghan population; 2) training and support for the Afghan National Army (ANA); 

and 3) support for other Coalition forces. 

The FAA's development assistance prong includes activities often referred to by 

the military as humanitarian assistance. For OEF, U.S. Central Command (CENTCOM) 

issued a message outlining humanitarian assistance fiscal guidance.58 It identified three 

5531 U.S.c. § 1301(a) (2000). Separation of powers generally, and the so-called Purpose Statute 

specifically, prohibit the Army or any executive branch agency from spending federal money without 

Congressional authorization. 

56 The General Accounting Office (GAO), which oversees federal government expenditures and 

accounting, has set forth a three-part test for determining whether an expenditure is proper: 

1.	 An expenditure must fit an appropriation (or permanent statutory provision), or must be for a 

purpose that is necessary and incident to the general purpose of an appropriation; 

2.	 The expenditure is not prohibited by law; and 

3.	 The expenditure is not otherwise provided for, in other words, does not fall within the scope of 

some other appropriation. 

Secretary ofthe Interior, B-120676, 34 Compo Gen. 195 (1954). 

57 See Foreign Assistance Act 22 U.S.C. §§ 2151 et seq. (2003). For a more detailed explanation of the 

Foreign Assistance Act and its fiscal impact on the DOD, see OPLAW HANDBOOK 2008, supra note 3, at 

272-76. 

58 Message, 152020Z lui 02, U.S. Central Command, subject: USCINCCENT Guidance for Humanitarian 

Assistance During Operation ENDURING FREEDOM (OEF), in CENTER FOR LAW & MILITARY 

OPERATIONS, LEGAL LESSONS LEARNED FROM AFGHANISTAN AND IRAQ, VOLUME I: MAJOR COMBAT 

OPERATIONS (11 September 2001 - 1 May 2003) app. E-1 (I Aug. 2004) [hereinafter OEF/OIF LL, Vol. I]. 

208 
statutes as the possible legal authorities for military provision of humanitarian assistance 

for OEF purposes: 

•	 10 U.S.c. § 401 (humanitarian and civic assistance (RCA)), funded by service 

O&M or - if a "minimal" expenditure (known as de minimis RCA - by unit 

O&M (CENTCOM delegated to the Combined Joint Task Force 180 (CJTF180) Commander the authority to determine the appropriate minimal amount); 

•	 10 U.S.C. § 2557 (excess nonlethal supplies for humanitarian relief); and 

•	 10 U.S.C. § 2561 (humanitarian relief and other humanitarian purposes 

worldwide). Funding for activities under 10 U.S.C. §§ 2557 and 2561 would 

come from the overseas humanitarian, disaster, and civic aid (ORDACA) 

appropriation (in other words, not O&M).59 

The message set forth, as a policy matter, eleven approved categories of
 

permissible humanitarian assistance, specifying the legal authorities and appropriations
 

for each, as well as providing other requirements and guidance. The categories were:
 

•	 public health surveys and assessments; 

•	 water supply/sanitation; 

•	 well drilling; 

•	 medical support and supplies; 

•	 construction and repair of rudimentary surface transportation systems and 

public facilities; 

•	 electrical grid repair; 

•	 humanitarian mine action mine awareness training; 

•	 mine display boards; 

•	 essential repairs/rebuilding for orphanages, schools, or relief warehouses; 

•	 animal husbandry/veterinarian training; and 

•	 victim assistance training for mine victims.6o 

CENTCOM's fiscal guidance for activities whose primary purpose approached 

the realm of development assistance was to use traditional DOD humanitarian assistance 

statutory authorities and funding appropriations. The problem with these traditional 

options was that ORDACA funds had limited availability and required lead-time for 

project approval, and de minimis RCA, as the name suggests, supported only minimal 

RCA activities. 61 

Given the fiscal restrictions put in place by CENTCOM to prevent unfettered use 

ofO&M for humanitarian assistance during OEF, JAs played an important role in 

59 Id., para. 2. 

60Id. para. 3(H). 

61 OEF/OIF LL, Vol. I, supra note 58, at 147-49 

209 
ensuring proposed military humanitarian-assistance-like activities comported with fiscal 

law and the CENTCOM policy. If the proposed activity did not fit the rules, the JA had 

to advise the commander that it was not legally supportable. However, JAs first 

struggled to find creative ways to support their commanders within the bounds of fiscal 

law. 

One particular OEF fact pattern is illustrative. The lath Mountain Division SJA 

faced an issue arising from an operator-proposed raid tactic. In conjunction with raids in 

rural areas to locate weapons caches or enemy personnel, operators wanted to distribute 

supplies to the population in nearby villages to help keep the objective area clear of 

civilians and facilitate intelligence collection. Recognizing a potential problem in the use 

of unit O&M funds for this purpose, the SJA raised the fiscal issue through the chain of 

command, ultimately to the Office of the Legal Counsel (OLC) to the Chairman, Joint 

Chiefs of Staff. The problem was readily apparent: the provision of supplies to the local 

populace appeared to be an unauthorized form of humanitarian assistance unless it 

satisfied the CENTCOM guidance or somehow received characterization as an 

operational expense appropriately funded with O&M. Giving the supplies away did not 

seem to fit any of the eleven CENTCOM-approved humanitarian assistance categories. 

The only category that allowed materials to be given away was "medical support and 

supplies" under the statutory authority of 10 U.S.c. § 2557, whereas the other categories 

all contemplated the provision of some type of training or rudimentary repair work. The 

proposed raid tactic therefore appeared to violate the CENTCOM fiscal policy.62 

The 10th Mountain Division SJA argued that O&M use was proper because the 

unit provided the supplies to facilitate mission accomplishment, and any humanitarian 

benefit was merely incidental. This analysis did not persuade the OLC, which was 

concerned that this particular linkage of O&M funds to mission accomplishment was 

tenuous and could lead down a slippery slope offiscal analysis, particularly in a situation 

where other appropriations existed for the proposed activity. In this case, the OHDACA 

appropriation existed for the purpose of such expenditure, and the fact the CENTCOM 

policy did not authorize such an expense was irrelevant for purposes of the legal 

analysis.63 

62Id. at 147-49. Complicating the matter was the CENTCOM message that listed approved categories of 

humanitarian assistance, none ofwhich seemed to apply. According to the dictum expressio unius est 

exclusio alterius, CENTCOM had created a more restrictive policy for humanitarian assistance. As a legal 

matter, the OHDACA funds under the statutory authority of 10 U.S.C. § 2561 were appropriate for use to 

provide the supplies under the broad heading of "other humanitarian purposes." However, the CENTCOM 

categories imposed a more restrictive fiscal policy. See E-mail from Lieutenant Colonel Kelly. D. 

Wheaton, Office of Legal Counsel to Chairman, Joint Chiefs of Staff, to Lieutenant Colonel Charles N. 

Pede, Staff Judge Advocate, 10th Mountain Division (9 Aug. 2002) ("In theory, HA [OHDACA] funds 

could be used to purchase the basic supplies/equipment that you need .... I recognize that the HA program 

[§ 2561] is not currently executed in this manner. That is a process/policy issue, however, not a legal 

issue."). 

63Id. 

210 
In general terms, the argument ofjustifying O&M expenditure for any activity 

that supports the military mission seems to be a logic that, taken to its extreme, would 

violate the principles underlying fiscal law. The issuance of a military mission statement 

by the executive branch does not constitute independent fiscal authority to spend O&M 

funds in support of the mission when that mission begins to stray from "operations and 

maintenance" as traditionally understood by Congress.64 The OEF raid fact pattern 

demonstrates JAs should understand the considerations that go into determining which 

pot of money is appropriate for activities that approach the realm of development or 

humanitarian assistance. They must also be able to implement that understanding in 

fashioning fiscal law arguments to support the commander. 

Another example of the proper DOD role within the FAA fiscal framework was 

military provision of training and support to the newly formed ANA. The DOS has 

primary responsibility for security assistance, including training and supporting friendly 

foreign militaries, so O&M funds were not appropriate for the ANA. Instead, DOS funds 

- often referred to a "Title 22 funds" because the FAA falls under Title 22 ofthe U.S. 

Code - were the proper funds. In essence, when Title 22 funds a DOD unit, DOD assets 

(personnel and materials) can be used to accomplish DOS missions (in this instance, 

security assistance). In Afghanistan, the DOD unit on the ground would identify an ANA 

support requirement.65 They would confirm with the Office ofMilitary CooperationAfghanistan (OMC-A) comptroller that funding was available, and that Combined Task 

Force 82 (CTF-82) would receive reimbursement for the support provided. CTF-82 

would submit the request for support to the Joint Logistics Command (JLC), which 

would then source and task the appropriate organization to provide the support. Once the 

ANA received the support, JLC would report the costs to CJTF-180/CJ8, which would 

receive the fund cite from the OMC-A comptroller, then prepare the necessary cost 

transfer documentation to Army Central Command (ARCENT) for processing.66 

In addition to the lesson of understanding that training support to the ANA 

required DOS, not O&M funds, an issue arose regarding the funding ofANA operational 

missions once the forces received training. In order to avoid delays in employing forces 

trained through a security assistance program, JAs should help proactively resolve how 

those forces will receive funding once they are ready to conduct operations. 

The primary fiscal issue during the early months of OIF was how to fund the 

operation as it transitioned from a traditional O&M-funded combat mission to something 

64 !d. at 150, citing Colonel Richard D. Rosen, Funding Non-Traditional Military Operations: The Alluring 

Myth ofa Presidential Power ofthe Purse, 155 MIL. L. REV. 1 (1998). 

65 In this situation, the unit was Combined Task Force 82 (CTF-82), a subordinate command to CJTF-180. 

66 Mid-Point After Action Report, Office ofthe Staff Judge Advocate, Combined Task Force 82, at 6 (1 

Jan. 2003); OEF/OIF LL, Vol. I, supra note 58, at 151-52. Appendix E-2 contains a CJTF-180 information 

paper outlining the various Title 22 funding authorities and appropriations used for supporting the ANA. 

Id., app. E-2. For a classified discussion ofthe fiscal analyses behind the initial determinations of how 

ANA support would be funded, see Major Karen H. Carlisle, This Is Not Your Father's Fiscal Law: 

Funding the Global War on Terrorism 37-40 (2003) (unpublished manuscript, on file with CLAMO). 

211 
less than full-scale combat, an evolving situation that quickly began to look like a 

military occupation. As the level of combat decreased, the need to create a stable and 

secure environment called for measures that appeared to approach the realm of security 

assistance and development assistance as contemplated by the FAA. Funding was 

necessary "to hire, train, and equip the [Iraqi] police force; clear the rubble from 

government buildings and city streets; hire sanitation workers and other municipal 

employees; clean up the courts and hire judicial personnel" and reestablish "power, 

water, sewer, police, and fire support for Baghdad.,,67 

The question became what, if any, money was available to fund these necessities 

in the interim period before Congress had a chance to speak to the issue in a new 

appropriations act and while the military was the only presence on the ground with the 

capability to implement effective change.68 Judge Advocates examined three fiscal law 

options: using O&M to fulfill international legal obligations as an occupying power, 

traditional DOD humanitarian assistance funds, and/or Iraqi currency captured on the 

battlefield. 

Several DOD civilian attorneys and military JAs argued O&M was appropriate 

for development and security assistance-type activities because they would help stabilize 

the situation in Iraq, a task that appeared to fit within the military mission and, moreover, 

was an obligation of an occupying power. The typical four-pronged argument stated: 

•	 the U.S. is an occupying power in Iraq, whether de facto or de jure;69 

•	 occupying powers are required under international law to restore and maintain 

public order and safety and provide food and medical care to the population;70 

•	 fulfilling this requirement is necessary and incident to military operations; 

thus 

•	 O&M is an appropriate funding source, even for activities that otherwise 

would normally fall under the purview of DOS-funded development and 

security assistance. 

67 After Action Report, Operation IRAQI FREEDOM, 3d Infantry Division (Mechanized) 289 (2003) 

[hereinafter 31D 2003 OIF AAR]. 

68 OEF/OIF LL, Vol. I, supra note 58, at 150-51. 

69 See U.S. DEP'TOF ARMY, FIELD MANUAL 27-10, THE LAW OF LAND WARFARE para. 355 (18 July 1956) 

(C1, 15 July 1976) (setting forth the U.S. understanding of the international legal standard for a military 

occupation). 

70 See, e.g., Hague Convention No. IV Respecting the Laws and Customs ofWar on Land and its Annex: 

Regulation Concerning the Laws and Customs of War on Land, art. 43, Oct. 18, 1907,36 Stat. 2277, T.S. 

No. 539 [hereinafter Hague IV] ("[t]he authority ofthe legitimate power having passed into the hands of 

the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, 

public order and safety"); Geneva Convention Relative to the Protection of Civilian Persons in Time of 

War art. 55, Aug. 12, 1949,6 U.S.T. 3516,75 U.N.T.S. 287 [hereinafter GC] ("To the fullest extent ofthe 

means available to it, the Occupying Power has the duty of ensuring the food and medical supplies ofthe 

population ... "). 

212 
The DOD Office ofthe General Counsel subscribed to this view, ascertaining that 

DOD appropriations were available to: 

•	 plan and prepare for activities that DOD reasonably anticipated it might be 

required to perform during the post-conflict phase of Iraq operations; 

•	 respond to emergencies and protect the civilian populace, civil infrastructure 

and natural resources; and 

•	 carry out other actions that were reasonably necessary to fulfill DOD 

responsibilities, including those duties that occupying forces were required to 

perform under internationallaw. 71 

JAs advised commanders that O&M funds were appropriate to continue the 

prosecution ofthe war and when any development or security assistance-type effect was 

a secondary consequence of a more traditional military activity. 72 

Many JAs involved in OIF during the period of major combat operations did not 

conclude O&M was appropriate to fund the development and security assistance-type 

aspects of an occupation. Indeed, CENTCOM's fiscal guidance was that, in the realm of 

development assistance, traditional humanitarian assistance authorities and appropriations 

were more appropriate.73 That is not necessarily to say, however, that all JAs based their 

opinions on strict adherence to long-time legal limitations. Many used a more creative 

counterargument to using O&M to fund occupation activities: 

•	 international law imposes obligations on the occupying power; 

•	 the occupying power refers to the government, not the military; 

•	 U.S. domestic law thus must be consulted for fiscal guidance on how the 

international obligations will be funded and implemented, whether by DOD or 

another agency like DOS; and 

71 E-mail from Mr. Matt Reres, Deputy General Counsel (Ethics and Fiscal), Office ofthe General Counsel, 

U.S. Army, to Major Alton L. Gwaltney, III, Director, Training and Support, Center for Law & Military 

Operations (19 Mar. 2003) (quoting guidance from the Office of General Counsel, Department of Defense 

("Below [the quoted language] is what I received from DOD OGC.")). 

72 OEF/OIF LL, Vol. I, supra note 58, at151, 157. 

73 For example, CENTCOM issued March 2003 guidance that humanitarian assistance (HA) activities 

during operations in Iraq were to be funded with traditional HA appropriations, not with O&M (save for de 

minimis HCA). Message, 2220482 Mar 03, U.S. Central Command, subject: USCINCCENT Guidance for 

Humanitarian Assistance During Operation ENDURING FREEDOM (OEF) and Operation IRAQI 

FREEDOM (OIF) [hereinafter CENTCOM OEF & OIF HA Guidance]. See also Lieutenant Colonel Mark 

Martins, No Small Change ofSoldiering: The Commander's Emergency Response Program (CERP) in Iraq 

and Afghanistan, ARMY LAW., Feb. 2004, at 4-5 [hereinafter No Small Change ofSoldiering] ("Uncertainty 

concerning the nature and scope of projects that could be funded under this authority [O&M for occupation 

obligations], combined with the conservative mechanisms and habits of financial management, inhibited 

direct expenditure ofO&M funds to locally purchase goods or services for humanitarian requirements."). 

213 
•	 Congress has created separate authorizations and appropriations for 

development and security assistance that units should use, rather than O&M, 

until Congress states otherwise.74 

These conflicting viewpoints suggest that lAs at all levels should adopt a more 

proactive fiscal posture. Those working with subordinate units should anticipate 

activities where O&M use might be questionable, and push the issue higher for resolution 

and coordination. Those lAs advising higher headquarters should either anticipate the 

issue themselves or, once receiving a request for advice, seek the formulation of guidance 

appropriate for wide dissemination. 

However, there were other funding options for the occupation. CENTCOM's 

fiscal guidance for activities whose primary purpose approached the realm of 

development assistance was to use traditional DOD humanitarian assistance statutory 

authorities and funding appropriations. Similar to the 2002 OEF guidance, unit O&M 

could be used for de minimis HCA under 10 U.S.c. § 401, while OHDACA was to be 

used for other humanitarian purposes under 10 U.S.C. § 2561. The problem with these 

traditional humanitarian assistance options remained the same: OHDACA funds had 

limited availability and required lead-time for project approval, and de minimis HCS, as 

the name suggests, only supported minimal HCA activities. 75 Commanders and lAs then 

looked to a third possibility: captured Iraqi currency. Detailed discussion of the resulting 

Commander's Emergency Response Program (CERP) appears below. 

As the mission in Iraq transitioned to include stability operations, O&M funds 

were used for purposes that had development assistance-type effects despite the 

continued debate over the propriety of doing so. For example, an Army lA advised that 

unit O&M funds and assets were appropriate for use to unearth a large quantity of buried 

Iraqi gasoline and to distribute it to Iraqi motorists lined up at gasoline stations. The 

reasoning was these lines were impeding the free movement of Army tactical vehicles 

around Baghdad. The lA concluded that O&M was appropriate because the motivation 

to distribute the gasoline was to facilitate military tactical movement, and the 

humanitarian benefit to the local population was merely an incidental consequence.

76 

Along the same lines, a Marine Corps lA agreed that a unit could use O&M under 

a force protection rationale to purchase soccer balls for a Marine Corps-sponsored Iraqi 

soccer league, as the league made the area safer for Marines by fostering goodwill with 

74 See, e.g., No Small Change ofSoldiering, supra note 73, at 4 n.24 ("Still, authority to use DOD funds [to 

fund an occupation] attenuates as Congress undertakes to discharge the U.S. treaty obligation with 

legislation and funding apportioned to various executive branch agencies, thereby relieving DOD of the 

necessity of doing so."). 

75 Major MJ. Steele, Forward Deployed Comptroller, I Marine Expeditionary Force, Operation IRAQI 

FREEDOM Lessons Learned and After Action Report 16 (6 Aug. 2003) (stating that, to be effective, 

humanitarian assistance projects required "massive amounts of money"). 

76 Interview with Colonel Lyle Cayce, Staff Judge Advocate, 3d Infantry Division, in Charlottesville, Va. 

(Jan. 7, 2004). 

214 
the local population and by keeping athletic Iraqi males off the streets.77 As with many
 

of the fiscal issues in OEF and OIF, reasonable minds might disagree concerning this
 

analysis.
 

There have been significant improvements in interagency coordination in both 

Afghanistan and Iraq, primarily through the establishment of provincial reconstruction 

teams (PRTs). Moreover, additional appropriations specific to operations in those 

countries are now available. Consequently, recent AAR comments focus less on whether 

O&M use for a specific purpose is proper and more on the difficulty of determining the 

appropriate source of funds. 78 However, if anything, this has increased rather than 

decreased the importance of JA involvement: 

Color of money analysis is essential because in Iraq, the primary tool that staff 

officers initially considered for funding operations was O&M. However, many 

other types of funding existed: CERP funds, Iraqi Relief and Reconstruction 

Funds, Iraqi Security Forces Funds, and construction funding. Many times, 

commanders identified a project to which no legal objections existed, but 

incorrectly identified the proper source of funding. Judge Advocates must be 

familiar with all the different types of money, when use of each is appropriate, 

and proper level of authority for use and amount. 79 

The difficulties experienced during OEF and OIF in terms ofrestrictions on O&M 

use are not new. Judge Advocates supporting earlier operations wrestled with similar 

77 See Transcript of After Action Review Conference, Office of the Staff Judge Advocate, Task Force 

Tarawa, and Center for Law & Military Operations, at Camp Lejeune, N.C. 149,155 (2-3 Oct. 2003) 

[hereinafter TF Tarawa 2003 OIF AAR Conference Transcript]; Telephone Interview with Lieutenant 

Colonel William Perez, U.S. Marine Corps, Deputy Staff Judge Advocate, II Marine Expeditionary Force 

and Staff Judge Advocate, Task Force Tarawa (8 Jan. 2004). 

78 This was not the case when provincial reconstruction teams (PRTs) first appeared in Iraq, however. One 

AAR observed that, as DOS entities, O&M dollars could not fund them in the absence of an Economy Act 

agreement and a memorandum of understanding between DOD and DOS. As a result, PRTs remained 

unfunded until resolution of the issue. 101st ABN DIV 2007 OIF AAR, supra note 45, at 82. 

79 4ID 2007 OIF AAR, supra note 2, at 21. The CJTF AAR echoed these comments with respect to 

Afghanistan: "Commanders were faced with [a] confusing array of funding sources for their projects. 

Each fund was designed for specific purposes and each had its own set of limitations and procedures. It 

was imperative that a fiscally trained Judge Advocate be involved in reviewing all funding decisions." 10th 

MTN DIV 2007 OEF AAR, supra note 2, at 26. The 4ID OSJA AAR noted that "[Iraqi Security Force 

Funds (lSSF)] in a broad sense are the Iraqi Security Force equivalent to O&M funds. ISSF ... can be 

used to pay for construction, force protection, training, equipment, and sustainment ofIraqi Security 

Forces. Many of the barriers and other protective materials that military commanders wanted to emplace 

for operations such as the Baghdad Security Plan can be paid for using this money, provided that the Iraqi 

Security Forces will be manning and tending to the protective barriers." 4ID 2007 OIF AAR, supra note 2, 

at 21. Similar funding became available in Afghanistan, and commanders who wanted to move Afghan 

National Police in behind ANA operations, to maintain the rule oflaw once insurgents had been cleared 

out, sometimes used it. While Afghan Security Forces Funds were appropriate in some cases, the 

Combined Security Transition Command - A (CSTC-A), not the Combined Joint Task Force 76 (CJTF76), had to obligate them. Eventually, CSTC-A provided field ordering officers to CJTF-76 maneuver 

units, so that the field ordering officer (FOO) system was available to acquire basic life support for Afghan 

Security Forces participating in missions. 10th MTN DIV 2007 OEF AAR, supra note 2, at 27-28. 

215 
issues. For example, operations in Haiti presented fiscal law questions in the context of 

O&M and military construction (MILCON) appropriations. Anny JAs correctly 

identified that neither O&M nor MILCON funds were proper to build basketball courts 

for other nations' forces, provide supplies for members of the U.S. Department of Justice 

International Criminal Investigation and Training Assistance Program (ICITAP), or 

improve certain roads.8o Frequently, when requests originated from another U.S. agency 

providing support to the Haitian people, the proper approach was to elevate the issue to 

higher authorities so that appropriate transfers of funds could occur from that agency to 

the Anny pursuant to the Economy Act. 81 On other occasions, senior authorities 

determined operational needs justified the continued expenditure of O&M funds. 

In rare cases, development or security-type assistance is available in a manner that 

is not subject to U.S. fiscal law constraints because it does not involve U.S. resources. In 

Haiti, for example, newly formed police and military units received weapons obtained by 

U.S. forces through a weapons "buy-back" program, although careful documentation was 

necessary to establish the provenance of particular weapons. 82 

One of the biggest lessons learned from operations in Bosnia was the need for 

procurement and fiscal law expertise in peace operations.83 In the freewheeling world of 

a peace operation, the purpose requirement became a dangerous trap for well-intentioned 

commanders and staffs. During Operation JOINT ENDEAVOR, three limitations in 

particular proved troubling for U.S. forces: morale programs, civil-humanitarian affairs, 

and the special rules regarding construction. 

To maintain Soldier morale despite demanding work under difficult conditions, 

the command wished to establish a program based on DOD Directive 1327.5, Leave and 

Liberty, which authorizes rest and recuperation (R & R) programs. 84 Commanders 

initially intended to fly Soldiers to recreation centers in Germany, paying for their food 

and lodging, buses to take them back to their home stations, and hotel rooms there, ifthey 

had previously given up assigned quarters. 85 The problem was that DOD Directive 

1327.5 requires Soldiers in an R & R program to be on leave status once they arrive at the 

80 See HAITI LL, supra note 47, at 141. 

81 31 U.S.c. 1535. 

82 HAITI LL, supra note 47, at 75. 

83 Interview with Lieutenant Colonel Denise K. Vowell, Staff Judge Advocate, 1st Infantry Division (Fwd), 

F.R.G. (Jan. 27, 1998, Feb. 22, 1998); Interview with Captain Paul N. Brandau, Chief ofMilitary Justice & 

Administrative Law, 1st Armored Division (Fwd), Tuzla, Bosn. & Herz. (Feb. 5,1998). 

84 U.S. DEP'TOF DEFENSE, DIR. 1327.5, LEAVE AND LIBERTY (29 Nov. 2004). 

85 Major Paul Hancq's comments in OJE AAR, Vol. I, supra note 43. 

216 
R & R site.86 Judge Advocates had to infonn the command that Soldiers on leave status 

accumulate only personal expenses, which appropriated funds cannot pay.87 

A second fiscal difficulty arose in Bosnia because of the unusual intertwining of 

mission-directed spending (including force protection issues) and RCA (available only 

subject to its own statutory authority).88 Units arriving in the devastated area of 

operations quickly received requests to construct or rebuild everything from sewage 

pumps to garbage dumps. Judge Advocates advised commanders that most such projects 

were not pennissible expenditures of O&M funds. Because the Bosnian mission was not 

a RCA mission, rebuilding and relief for displaced persons and refugees was a mission 

for international and non-governmental organizations. The Implementation Force (IFOR) 

and the follow-on Stabilization Force (SFOR) were merely to provide a secure and safe 

environment for such organizations.89 Thus JAs in Bosnia had to object on fiscal law 

grounds to proposals such as using O&M funds to share the cost of building roads and 

bridges that were not necessary for military operations.9o Moreover, it was not proper to 

donate even bridges used by U.S. forces by leaving them in place at the conclusion of 

operations.91 

86 "Transportation to and from R & R areas shall be provided on a space-required basis, ... and travel time 

shall not be charged to the Service member's leave account. However, the actual leave period in the R & R 

area shall be charged to the Service member's leave account." U.S. DEP'T OF DEFENSE, INSTR. 1327.6, 

LEAVE AND LIBERTY PROCEDURES para. 6.15.2.1 (22 Apr. 2005). 

87 Major Paul Hancq, comments in OJE AAR, Vol. I, supra note 43, at 213. 

88 See 10 U.S.C. § 401 (a);U.S. DEP'T OF DEFENSE, DIR. 2205.2, HUMANITARIAN AND CIVIC ASSISTANCE 

(HCA) PROVIDED IN CONJUNCTION WITH MILITARY OPERATIONS (6 Oct. 1994). HCA activities that are 

more than de minimis in nature require Secretary of State approval. HCA activities must promote the 

security interests of both the United States and the assisted country, the operational readiness skills ofthe 

participating U.S. armed forces, and the foreign policy interests ofthe United States. There are also other 

limits (e.g., the HCA may not go directly or indirectly to any individual, group, or organization engaged in 

military or paramilitary activities). See also JOINT CHIEFS OF STAFF, JOINT PUB. 3-29, FOREIGN 

HUMANITARIAN ASSISTANCE (forthcoming 2008); U.S. DEP'T OF DEFENSE, INSTR. 2205.3, IMPLEMENTING 

PROCEDURES FOR THE HUMANITARIAN AND CIVIC ASSISTANCE (HCA) PROGRAM (27 Jan. 1995); RHODA 

MARGESSON, CONGRESSIONAL RESEARCH SERVICE, RL33769, INTERNATIONAL CRISES AND DISASTERS: 

U.S. HUMANITARIAN ASSISTANCE, BUDGET TRENDS, AND ISSUES FOR CONGRESS (Jan. 29, 2008), available 

at http://www.nationalaglawcenter.org/assets/crsIRL33769.pdf; Major Sharad A. Samy, Cry 

"Humanitarian Assistance," and Let Slip the Dogs a/War, ARMY LAW., Oct. 2007, at 52 (setting out the 

statutory basis for military involvement in humanitarian assistance activities). 

89 After Action Report September 1995 - December 1996, Office of the Staff Judge Advocate, 1st Armored 

Division (1997); Information Paper, Captain Ralph 1. Tremaglio, III, Office of the Staff Judge Advocate, 

subject: Support for Returnees and Displaced Persons (1 Jan. 1997) (concluding that, for example, support 

was limited to emergency medical treatment to save life or limb, and to distributing NGO medical supplies 

as "true volunteers," not pursuant to any official tasking). 

90 The prospect of using O&M funds in a cost-sharing enterprise with a host nation creates a no-win 

dichotomy: projects that are not operationally necessary are not a proper use of O&M funds, and projects 

that are operationally necessary receive augmentation from non-U.S. funds. 

91 BALKANS LL, supra note 47, at 147 n.383. 

217 
Election support was also a tricky issue. Under the General Framework 

Agreement for Peace (GFAP), IFOR and SFOR had the task to provide a secure 

environment for elections, in support of the lead agency, the Organization for Security 

and Cooperation in Europe. As a result, U.S. forces had to provide security at polling 

stations and along routes to and from the polling station, and even provide transportation 

to polling stations. This required significant military police, civil affairs (CA), and 

logistic support. 92 

A unique issue involved the purchase of donuts and coffee for host nation 

personnel.93 A U.S. task force commander wanted to purchase donuts and coffee for bus 

passengers subjected to searches - as an improvised force protection measure dubbed 

Operation IRON DONUT. 94 

The nature of the mission in Kosovo also sometimes led to justification for the 

spending of O&M funds for unusual items and services. For example, deployment into 

and out of Kosovo posed a logistic challenge for U.S. Kosovo Force (KFOR) planners. 95 

Many existing lines of communication were unable to support the movement ofU.S. 

heavy equipment. One such logistic issue arose with the need to improve a railway 

loading dock in Gerlick, Kosovo, to support a palletized loading system to offload U.S. 

goods shipped into Kosovo by rail. The U.S. could not get approval from Serbia for the 

necessary repairs because this immediately followed the Allied Force bombing campaign. 

Judge Advocates attempting to determine an appropriate authority for improving the rail 

facility looked to the Military Technical Agreement between Serbia and the KFOR 

Commander which gave KFOR authority to "take all necessary action" to carry out the 

mission. 96 The United States used this language as a basis for making the improvements. 

92 This raised questions about the use ofO&M funds in support of the OSCE. However, Task Force Eagle 

JAs determined that expending such funds was proper because election support had become a military 

mission and constituted civil-military actions rather than civil and humanitarian support. Id at 137 n.351. 

93 See Memorandum for Resources Management, subject: Operation IRON DONUT (6 Oct. 1996): 

During national elections, elements of 2BCT conducted operation 'Dobro Donut' at the 

bus transload points in their area of responsibility. At these points, civilians were 

offloaded from their buses and searched. Besides being time consuming, the process was 

invasive. Donuts and coffee were provided to give the civilians something to do while 

being searched, and to quell their hostilities toward both the searching and TF Eagle 

Soldiers involved in the process. The lack of violence at these 'feed and search' points 

speaks for the overwhelming success of this tactic. 

94 BALKANS LL, supra note 47, at 147 & n.385. 

95 The acting Operations Officer for Military Traffic and Management Control is quoted as saying, 

"[Kosovo] has got to be one ofthe hardest places to get to in the world." John R. Randt, Landing the 

Kosovo Force, http://www.fas.org/man/dod-l01/sys/ship/docs/000lOO-MS519.htm (last visited Aug. 22, 

2008). 

96 Military Technical Agreement between the International Security Force ("KFOR") and The Governments 

of the Federal Republic of Yugoslavia and the Republic of Serbia, June 9, 1999, available at 

http://www.nato.int/kosovo/docu/a990609a.htm (last visited Aug. 4, 2008). A copy of the MTA is also 

included in CENTER FOR LAW & MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS IN Kosovo, 

1999-2001: LESSONS LEARNED FOR JUDGE ADVOCATES app. IV-1 (15 December 2001) [hereinafter 

218 
The transportation of Serb schoolchildren in HMMWVs and non-tactical vehicles 

(NTVs) also hinged on interpretation ofthe SACEUR Operational Plan (OPLAN) to 

detennine whether such transportation was a necessary and incident expense to meet the 

requirements of the Purpose Statute.97 SACEUR, in an NAC-approved OPLAN, directed 

TFF to observe and prevent interference with the movement of civilian populations and 

to respond appropriately to deliberate threats to life and property as part of the overall 

TFF mission. Task Force Falcon believed it necessary to transport Serb schoolchildren 

because ofrecent attacks on Serb convoys, including the intentional bombing of a Serb 

shopping convoy.98 Based on this, the JA concluded that the support was appropriate. 99 

Judge Advocates deployed to Kosovo faced issues of using O&M funds for 

construction and humanitarian relief similar to those encountered in Bosnia. loo In the 

early days ofthe Kosovo mission, commanders - in response to urgent requests from the 

local population - used O&M funds for humanitarian relief to prevent the precarious 

situation from slipping into an even greater humanitarian disaster. 101 Almost 

immediately upon KFOR's entry into Kosovo, nearly 860,000 refugees flooded back into 

the province from camps in Albania and FYROM. I02 This resulted in clashes between 

Kosovar Albanians and Serbs. In addition, crops planted in the spring before the NATO 

bombing campaign were ripe and would spoil if not harvested, but fanners lacked fuel to 

carry out the harvest. 

Task Force Falcon viewed the employment of field workers as crucial to 

achieving both force protection and security, because workers in fields would not be 

Kosovo LL]. The MTA gave KFOR the authority to take all necessary action to establish and maintain a 

secure environment for all citizens ofKosovo. 

97 See Memorandum, Deputy Legal Advisor, Task Force Falcon, to Resource Management, Task Force 

Falcon, subject: Serb Escort Missions (17 Mar. 2000) [hereinafter Serb Escort Memo]. The fact-specific 

determinations frequent in fiscal law opinions often lend themselves to disagreements over appropriate use 

of funds. E-mails sent to various JAs asking for their technical expertise with this issue led to entirely 

different responses. 

98 Because Kosovar Serbs were not were not able to move freely around Kosovo, U.S. forces accompanied 

convoys of Kosovar Serbs to the Kosovo-Serbia border so they could shop for groceries and other items in 

Serbia. The convoys typically ran twice a week. 

99 Serb Escort Memo, supra note 97, para. 3a. The JA noted this support could not be indefinite: "[T]he 

ultimate goal is to transfer these types of actions to the United Nations Mission in Kosovo (UNMIK). 

Additionally, the Task Force, through the G-5, could attempt to coordinate with Non-Governmental 

Organizations for support for these missions until UNMIK is prepared to take responsibility." Id. para. 

4(i). 

100 Kosovo LL, supra note 96, at 69 ("The most persistent fiscal law issue faced by Task Force Hawk 

involved the donation of Army property to the civilian population."). 

10lId. at 159. 

102 A study commissioned by the United Nations High Commissioner for Refugees estimated that there 

were 444,600 refugees in Albania, 344,500 refugees in FYROM, and 69,900 refugees in Montenegro. 

ASTRI SUHRKE ET AL., THE Kosovo REFUGEE CRISIS: AN INDEPENDENT EVALUATION OF UNHCR'S 

EMERGENCY PREPAREDNESS AND RESPONSE para. 31 (Feb. 2000), 

http://www.unhcr.org/research/RESEARCH/3baObbeb4.pdf. 

219 
burning homes and fonnulating plans to remove Serbs from Kosovo. The TFF 

Commander felt that the situation was so dire that failing to act would lead to a 

widespread disaster and continue to threaten the safety ofUS. troopS.l03 Because no 

humanitarian funding was available, he acted under his inherent authority to protect the 

force and his authority to establish a secure environment in Kosovo, and distributed 

approximately 12,000 gallons of fuel over a two-week period. This type of factually 

specific decision should not occur before coordinating with higher headquarters, but 

DOD did eventually approve use of OHDACA funds based upon the TFF request. 104 

Commanders in Kosovo also faced pressure to support numerous humanitarian 

and civil support initiatives, and did receive funds from the OHDACA appropriation for 

urgent humanitarian assistance ($5,000,000 in a two-year appropriation). 105 Use of these 

funds had many restrictions, though, including project type, project cost limitations, and a 

requirement to use certain legal authorities for the expenditures. Task Force Falcon 

developed a system whereby the CA staff section prepared each potential project with 

cost estimates, photographs, and project details. A group of staff officers, including a JA 

reviewed the projects before they went to the commander for action. The JA review 

included consideration of the OHDACA appropriation constraints. 106 

Even with this system in place, problems still arose. For example, contractors 

perfonned work beyond that for which TFF had contracted. In one case, a contractor 

working on roof repairs to a school- a pennissible project under the OHDACA 

appropriation and approved by the TFF Commander - was contacted by the school 

administrator and asked to add new ceilings or lights to the school. Task Force Falcon 

had not requested these repairs, and in some circumstances, they exceeded the 

rudimentary repairs authorized by the DOD policy governing use of OHDACA funds. 107 

103 Kosovo LL, supra note 96, at 160. 

104 See Lieutenant Colonel Mark S. Martins, Deputy Staff Judge Advocate, 1st Infantry Division, Task 

Force Falcon Interim After Action Review, PowerPoint Presentation to Operational Law CLE (3 Dec. 

1999). . 

105 See Message, 1313lOZ Aug 99, USCINCEUR, subject: USKFOR Program Approval and Funding for 

Urgent Humanitarian Needs. 

106 Kosovo LL, supra note 96, at 156. Understanding the operations of the numerous NGOs within 

Kosovo aided in the overall quality of the legal review. Judge Advocates knowledgeable in the available 

NGO resources and understanding the legal restrictions placed on spending were able to provide better 

advice on the overall handling of humanitarian assistance projects. For example, because funding 

categories for humanitarian assistance by military forces were limited, only ajoint NGO/task force could 

undertake some projects. See Memorandum, Captain Paula Schasberger, Deputy Legal Advisor, Task 

Force Falcon, to Center for Law & Military Operations, subject: Comments to AAR for Kosovo, para. 1(t). 

107 One such "mission expansion" project included adding a new heating boiler to a school. The boiler was 

not compatible with the pipes in the school and when the boiler started, all the pipes blew apart. Other 

examples included adding indoor bathrooms to schools that previously had no indoor plumbing; retiling 

floors; and purchasing and installing electrical substation transformers, this improving the electrical system 

beyond its pre-conflict condition. 

220 
Although the contractor made the repairs and attempted to bill TFF for them, TFF denied 

such requests. 108 

Hurricane Mitch relief operations in Central American occurred under the 

auspices ofthe humanitarian assistance and HCA programs, both of which the Defense 

Security Cooperation Agency (DSCA) manages. The DOS must approve all HCA 

initiatives, and HCA may go (directly or indirectly) to any individual, group, or 

organization engaged in military or paramilitary activity. Typical HCA projects include 

medical, dental, and veterinary care provided in rural areas, construction ofrudimentary 

surface transport systems, well drilling and construction of basic sanitation facilities, 

rudimentary construction and repair ofpublic facilities, and other medical and 

engineering projects. 109 

IILB.2. Commander's Emergency Response Program (CERP) 

Possibly the most significant fiscal law development during full spectrum 

operations in Iraq, and later Afghanistan, was the creation and administration ofthe 

Commander's Emergency Response Program (CERP). During the initial stages ofOIF, 

units relied heavily on funds - in total, more than $1,000,000,000 in U.S. and Iraqi 

currency - captured by Army and Marine Corps units. 110 Customary and codified 

international law provides for the use of such captured resources for reconstruction and 

relief. 111 A Coalition Forces Land Component Command (CFLCC) policy that applied to 

both OEF and OIF dictated turning any captured enemy currency in to Army finance 

personnel for accounting and management. 112 However, JAs reported units relied on 

their trial counsels to supervise the processing of captured currency. Commanders then 

wanted to use the money to support operations. 1

13 

108 See Major Brian Goddard & Lieutenant Colonel Richard Sprunk, Operation JOINT GUARDIAN; 

Contract and Fiscal Law Issues, PowerPoint presentation (2000). 

109 Conduct of humanitarian and civic assistance (HCA) activities occurs in conjunction with authorized 

military operations and authorization comes from 10 USC § 40 I. 10 U.S.c. § 2551 authorizes the 

humanitarian assistance program and the overseas humanitarian, disaster, and civic aid (OHDACA) 

account funds its projects. See CENTER FOR LAW & MILITARY OPERATIONS, LAW AND MILITARY 

OPERATIONS IN CENTRAL AMERICA: HURRICANE MITCH RELIEF EFFORTS, 1998-1999: LESSONS LEARNED 

FOR JUDGE ADVOCATES 24 (15 September 2000). The Defense Security Cooperation Agency (DSCA) 

manages all HCA projects (see www.dsca.mil). See also Major Bradford B. Byrnes, Foreign Disaster 

Relief A Fiscal Focus, JOINT CENTER OPERATIONAL ANALYSIS 1., June 2008, at 48. 

110 OEF/OIF LL, Vol. I, supra note 58, at 159. See also 3ID 2003 OIF AAR, supra note 67, at 289 ("the 

division confiscated almost I billion dollars from Baghdad palaces"); TF Tarawa 2003 OIF AAR 

Conference Transcript, supra note 77, at 122-23; No Small Change ofSoldiering, supra note 73, at 3. 

III See, e.g., Hague IV, supra note 70, art. 53. 

112 See 10 U.S.c. § 3302(b) (2000) ("[A]n official or agent of the Government receiving money for the 

Government from any source shall deposit the money in the Treasury as soon as practicable without 

deduction for any charge or claim."). 

113 OEF/OIF LL, Vol. I, supra note 58, at 159 n.56. 

221 
Many JAs expressed concern (and noted frustration on the part oftheir 

commanders and comptrollers) about the inability to immediately use captured funds for 

the benefit of the Iraqi people, due to fiscal law concerns and bureaucratic obstacles. 

They argued international law authorized using captured enemy currency for military 

purposes, to include fulfilling the obligations of an occupying power. I 14 These 

sentiments were understandable in light of the instability encountered on the ground, but 

it was also understandable for higher commands to have policy reasons for centrally 

managing the money. For instance, it was preferable to establish a transparent 

centralized system that was better able to withstand public scrutiny than an ad hoc system 

in which individual units captured money and spent it on their own. As well, the higher 

level of command, with a broader perspective on overall operation requirements, was 

able to allocate the funds more effectively. I IS In any case, JAs recommended anticipating 

the capture of enemy currency in future and establishing a plan that could more quickly 

respond to both military necessity and policy concerns. I 16 

The genesis of CERP was the collection ofthe seized Iraqi cash into an Office of 

Reconstruction and Humanitarian Assistance (ORHA)-managed account known as the 

Commander's Discretionary Fund (CDF). As the U.S. military's normal financial 

controls, intended to protect the expenditure of Congressional appropriations, were 

inapplicable to seized Iraqi funds, establishment of a special procedure to administer 

them was necessary. I I? Taking over from the ORHA, the Coalition Provisional Authority 

(CPA) renamed the CDF the CERP. 1l8 

Combined Joint Task Force 7 (CJTF-7) put the seized Iraqi assets and the CERP
 

into action by issuing implementing guidance in a fragmentary order (FRAGO).119
 

114 See, e.g., Major Robert F. Resnick, Chief, Criminal Law, 3d Infantry Division, Operation IRAQI 

FREEDOM After Action Review 6 (25 Apr. 2003) ("CENTCOM/CFLCC unduly restricted the Division's 

use of captured money (both dinars and dollars) from the regime. I believe the law was much more clear 

than did CENTCOM regarding our ability to use this money for SASO [stability and support operations] 

projects. CENTCOM's conservatism in this area jeopardized all that we achieved."); TF Tarawa 2003 OIF 

AAR Conference Transcript, supra note 77, at 122. Hague IV, supra note 70, art. 53, states, "An army of 

occupation can only take possession of cash, funds, and realizable securities which are strictly the property 

ofthe States, depots of arms, means, of transport, stores and supplies, and generally, all movable property 

belonging to the State which may be used for operations of the war." 

115 Indeed, a 30 April 2003 memorandum from the President to the Secretary ofDefense directed DOD to 

consult with U.S. agencies to develop a transparent and well-documented system to govern the use, 

accounting, and auditing of seized Iraqi funds. See No Small Change ofSoldiering, supra note 73, at 3 

n.17. 

116 OEF/OIF LL, Vol. I, supra note 58, at 160-62. 

117 Memorandum, The President, to the Secretary of Defense, subject: Certain State-or Regime-Owned 

Property in Iraq (30 Apr. 2003). 

118 HEADQUARTERS, COMBINED JOINT TASK FORCE 7, FRAGMENTARY ORDER 89, COMMANDER'S 

EMERGENCY RESPONSE PROGRAM (CERP) FORMERLY THE BRIGADE COMMANDER'S DISCRETIONARY 

FUND, TO CJTF-7 OPORD 03-036 (19 June 2003) [hereinafter CJTF-7 FRAGO 89]. 

119 HEADQUARTERS, U.S. ARMY V CORPS, FRAGMENTARY ORDER 104M, BRIGADE COMMANDER'S 

DISCRETIONARY RECOVERY PROGRAM TO DIRECTLY BENEFIT THE IRAQI PEOPLE, TO OPORD FINAL 

Victory (7 May 2003). 

222 
Numerous additional FRAGOs implemented changes and expansions to the program in 

its first few months of existence. These gave commanders authority to use the funds to 

conduct "reconstruction assistance" in their areas of operation, defined broadly as "the 

building, repair, reconstitution, and reestablishment ofthe social and material 

infrastructure ofIraq,,,120 The FRAGOs permitted the purchase of goods and services to 

support a list of projects to address the humanitarian needs of the Iraqi people, including: 

•	 water and sanitation infrastructure; 

•	 food production and distribution; 

•	 healthcare; 

•	 education; 

•	 telecommunications; 

•	 transportation; 

•	 rule of law 

•	 effective governance; 

•	 irrigation; 

•	 purchase or repair of civic support vehicles; 

•	 repairs to civic or cultural facilities; and payments to day laborers to perform 

civic cleaning. 121 

Categories ofprojects prohibited by the CERP FRAGO included: 

•	 direct or indirect support to CJTF-7 forces, to include other Coalition forces; 

•	 entertainment of the Iraqi population; 

•	 any type ofweapons buy-back program or rewards program; 

•	 the removal of unexploded ordinance; 

•	 duplication of services available through local municipal governments; 

•	 support to individuals or private businesses; and 

•	 paying salaries or pensions to the civil work force. 122 

Judge Advocates helped commanders put CERP funds to use on an extremely 

broad range ofprojects throughout Iraq. Use ofCERP funds and the immediate benefits 

they provided to the Iraqi people gained national media attention. 123 The CERP was 

extraordinarily popular with commanders, and the CPA expanded it to include non-U.S. 

Coalition forces. Commanders approved thousands ofCERP-funded projects in the first 

few months of the program's existence, spending tens ofmillions of seized dollars in the 

process. 124 

120 CJTF-7 FRAGa 89, supra note 118, para. 3.B. 

12\ Id. 

\22Id. para. 3.D. 

\23 Ariana Eunjung Cha, Military Uses Hussein Hoardfor Swift Aid, WASH POST, Oct. 30,2003, at AOI. 

\24 No Small Change for Soldiering, supra note 73, at 8. 

223 
To help maintain the CERP's success, Congress appropriated $180 million to 

fund CERP projects on 30 September 2003. 125 The appropriated funds infused new cash 

into the program, and the appropriation's language continued to permit commanders to 

implement projects quickly - without the administrative strictures normally associated 

with acquisitions126 - by stating the funds were available for use "notwithstanding any 

other provision of law" although it limited their use to "urgent humanitarian relief and 

construction requirements.,,127 Recognizing the CERP as a valuable tool for mission 

accomplishment, the appropriation also authorized creation of a CERP to benefit the 

people ofAfghanistan. 128 

Although new guidance controlled administering the CERP with appropriated 

funds (CERP_APF),129 changes were minimal, and remained largely transparent to units 

in the field. l3O The new guidance emphasized that, as U.S. Government funds were the 

funding source for CERP-APF, it was liable to greater financial scrutiny and fiscal 

controls. The following example demonstrates how JAs applied the CERP-APF 

guidance. The 82d Airborne Division, operating in Iraq's Al Anbar province, identified 

the need for a trucking company to bring reconstruction supplies into the community, and 

fulfill some of the division's own logistic requirements. A functioning Al Anbar trucking 

company would have several benefits: the division could contract locally for hauling 

capacity, relieving some ofthe burden from its own limited capacity; the company would 

provide jobs for Iraqi citizens; and the interaction between the division and local business 

people would likely benefit the oft-mentioned "hearts and minds" element ofthe OIF 

mission. 13l A privately owned trucking company had operated in the area before the war, 

but the damage to its equipment was so bad that it no longer functioned. The command 

believed using CERP was permissible to provide start-up funds to the trucking company 

because ofthe obvious humanitarian benefit. 

125 Emergency Supplemental Appropriations Act for Defense and for the Reconstruction ofIraq and 

Afghanistan, 2004 Pub. L. No. 108-106, § 1110, 117 Sta. 1209, 1215 [hereinafter Emergency Supplemental 

Appropriation]. 

126 FAR, supra note 13,43.201; U.S. DEP'T OF ARMY, ARMY FEDERAL ACQUISITION REo. SUPP. (July 

2004). 

127 Emergency Supplemental Appropriation, supra note 125. 

128 Id; see also Message, 092041Z Dec. 03, Headquarters U.S. Central Command, subject: Combined 

Forces Command Fragmentary Order 07-231 Commander's Emergency Response Program (CERP)­

Appropriated Funds (CERP-APF). 

129 Message, 092024Z Dec 03, Headquarters U.S. Central Command, subject: Combined Forces Command 

Fragmentary Order 07-231 Commander's Emergency Response Program (CERP) - Appropriated Funds 

(CERP-APF); HEADQUARTERS, COMBINED JOINT TASKFoRCE 7, FRAOMENTARYORDER 107, TO OPORD 

03-036; Information Paper, CJTF-7A, subject: Sources of FY04 Funding for Projects Benefiting the 

Civilian Population ofIraq (5 Feb. 2004). 

130 Captain Timothy P. Hayes, Notes from After Action Review Conference, Office ofthe Staff Judge 

Advocate, 1st Armored Division, and Center for Law & Military Operations, Wiesbaden, F.R.G. (13-14 

Dec. 2004) [hereinafter Hayes Notes]. 

131 Ayres Notes, supra note 1. 

224 
However, the OSJA identified a potential violation ofthe CERP guidance, which 

prohibited use of CERP funds for the direct benefit of individuals or private 

businesses. 132 As the benefits of obtaining the services of a local trucking company were 

undeniable, the OSJA struggled to find a means of funding the start-up costs. Ultimately, 

it determined O&M funds could provide the trucking company's startup costs in an 

indirect manner. As no other trucking company was readily available, the division could 

contract with the company for some of its logistic needs. The trucking company would 

then use some of those funds for start-up costs, and once up and running, could use 

additional hauling capacity for the relief and reconstruction effort. 133 

The CERP continued to evolve in Iraq after the transfer of sovereignty. New 

FRAGOs tailored the program as operational needs evolved. However, it is clear that the 

CERP, from the outset, was a "powerful tool that contributed greatly to the 'occupation' 

mission and had a strong positive impact on winning hearts and minds.,,134 

After action reports received in recent months have touched on several additional 

issues in relation to CERP funds, three of which 4th Infantry Division (4ID) JAs 

highlighted. First, they stressed that JAs need to pay close attention to project proposals 

because of the tremendous pressure on commanders to execute CERP projects. As a 

result, some proposed projects were inappropriate for CERP funding. The most common 

error being projects that provided a benefit to u.s. rather than Iraqi forces. Second,4ID 

JAs witnessed gradual expansion of the purposes for which CERP funds were permissible 

(e.g., trash collection, which did not assist in reconstruction, but did provide Iraqi jobs). 

Third, 4ID noted there is inherent tension between JAs seeking to ensure spending is in 

accordance with authorities, and CIMIC personnel who want to initiate and complete 

projects before the end of the deployment (consequently, legal review should occur at an 

early stage ofproject planning). In the case of 4ID, brigade staffs or the division G9 

could approve requests for CERP funds. Those submitted through the division usually 

received JA review, but brigade JAs were not always part ofthe CERP approval 

process. 135 

132 See CJTF-7 FRAGa 89, supra note 118. 

133 See Ayres Notes, supra note 1. 

134 See Sommerkamp E-mail, supra note 1. 

135 4ID 2007 OIF AAR, supra note 2, at 21-22. The WIst AAR also observed that, when it redeployed to 

Iraq in late 2005, many commanders had to be educated on the difference between appropriated CERP and 

CERP based on confiscated cash. Judge Advocates did this by providing advice during a reconstruction 

conference, advising commanders and G-8, and drafting legal reviews. WIst ABN DIV 2007 OIF AAR, 

supra note 45, at 42. Judge Advocates from 3ID, noting the use ofCERP funds was essential to advances 

in the rule oflaw (RoL) area, recommended RoL actors develop the CERP forecast during the first thirty 

days of the deployment. 3ID 2008 OIF AAR, supra note 4, at 23. The lCD AAR reported that the OSJA 

reviewed an average of 1-7 CERP proposals daily (mostly due to the CERP role in promoting 

reconciliation efforts). The AAR noted the Secretary of Defense waiver of normal legal requirements in 

connection with the use ofCERP funds meant legal review focused on DOD policy and the MNC-I CERP 

standard operating procedure (SOP). Given that C8/G8 is the staff proponent for the CERP SOP, and 

should therefore be the subject matter expert for it, the AAR concluded that C8/G8 should be able to apply 

the SOP and assess whether a project is permissible. Requiring the OSJA to interpret and apply the SOP as 

well tended to produce inconsistencies and confusion. In particular, the AAR suggested, where a brigade 

225 
In other instances, JAs have reported that their units used CERP funds for 

purposes very much in line with "urgent humanitarian relief." For example, 4ID JAs 

reported units could use CERP funds to provide food if the unit in question satisfied five 

requirements: 

•	 the unit needed to explain why a particular location or segment of the 

population required food paid for with CERP; 

•	 the proposal had to involve a quantity or quality of food sufficient only to 

satisfy urgent humanitarian needs; 

•	 the initiative could not duplicate an ongoing DOS project; 

•	 the unit needed to draft an accountability and distribution plan to ensure 

that food would be delivered to needy individuals, not diverted to the 

black market or others; and 

•	 the plan had to include Iraqi distribution ofthe food with Coalition 

oversight (this served to promote local government, and avoided 

retribution against those accepting aid from Coalition forces). 136 

The most significant CERP development in recent months, however, has been the 

use of CERP funds in support of "concerned local citizens" or "Sons ofIraq.,,137 Once 

known as the Awakening Councils, a movement that first appeared in Anbar province in 

2007, these groups typically are made up mostly of former Sunni militants. Initially 

referred to by U.S. forces as "concerned local citizens" (CLCs), the name became "Sons 

of Iraq" (SOl) when the movement began to spread beyond Anbar because "concerned" 

does not translate well into Arabic (it sounds more like "worried"). The SOl serve 

multiple purposes, including increasing security in areas lacking an Iraqi security force 

(ISF) presence and reconciling disenfranchised tribal groups (primarily Sunni) with the 

Iraqi government. The SOl include Iraqi security volunteers (ISVs) and critical 

infrastructure security (CIS) guards. The former are volunteers eligible for reward 

JA had already conducted a legal review, a division should not need to do so, except in the rare cases where 

additional analysis was required or the division disapproved the request. 1CD 2007 OIF AAR, supra note 

38, at 5-6. In keeping with this proposal, the 4ID OSJA indicated the division had spent more than $240 

million dollars on more than 1,100 CERP projects, each ofwhich received review by a brigade or division 

JA. 4ID 2007 OIF AAR, supra note 2, at 21-22. The Combined Security Transition CommandAfghanistan (CSTC-A) SJA commented that only Combined Joint Task Force 82 (CJTF-82), and its 

successors had CERP approval authority; his command did not. However, other agencies did approach 

CSTC-A to commit CERP funds for new projects and one project previously initiated by Combined Forces 

Command - Afghanistan (no longer in existence). As a result, the SJA recommended that commands 

maintain CERP records as long as possible; that JAs become familiar with CERP authorities and recognize 

that prior recipients may have expectations of continued funding; and that JAs be prepared to inform 

interagency counterparts about the limits on DOD funds. Combined Security Transition Command ­

Afghanistan, Legal Advisor Detainee Operations & Political Military Affairs, March - September 20072-3 

(28 Dec. 2007). 

136 4ID 2007 OIF AAR, supra note 2, at 23. The AAR also noted that, when CERP is used for "Rhodes 

Packs" (pre-bundled contingency packs), JAs should find out exactly what items are included (to ensure 

that they satisfy CERP requirements), and must ensure that they are not diverted to Coalition force or other 

unauthorized uses. 

137 3ID 2008 OIF AAR, supra note 4, at 8-9. 

226 
money, while the latter are CERP-contracted individuals hired to protect "critical 

infrastructure.,,138 

Judge Advocates who advised on implementation of the SOl program stressed to 

commanders the need to distinguish between ISVs and CIS guards because each group is 

subject to different constraints under international and Iraqi law. Permissible Coalition 

force interaction with the groups also differs. For example, units may exchange 

information with SOl and coordinate operations with them (including coming to the aid 

of SOl under attack), but are not to conduct combined operations, nor share classified 

information. 139 

Division and brigade commanders and their staffs must be knowledgeable about 

the two categories and understand that consistent use ofthe proper term to refer to each 

group will protect the command both fiscally and under the law of war. 140 In order to 

ensure this level ofknowledge, 1st Cavalry Division (lCD) OPLAW attorneys drafted a 

FRAGO that distributed an information paper and bar chart describing and differentiating 

between the ISVs and CIS guards. The FRAGO also included CIS guard contract and 

PWS templates drafted by OPLAW attorneys in conjunction with the fiscal law 

attorney. 141 

The 3d Infantry Division (3ID) OSJA reported that the two primary fiscal 

mechanisms for funding Sal were CERP and the rewards program. CERP contracts 

under the CERP provision allowing the use of temporary civilian guards to protect 

critical infrastructure funded the CIS guards. The contracts were, therefore, short in 

duration, but renewal was possible. This prospect raised some concerns: did it mean that 

each renewal was an extension ofthe previous contract for funding purposes, or was it a 

new requirement, thus negating the need to aggregate costs? Ifthe costs were 

aggregated, they would easily exceed $500,000, creating the need for Commander MNCI approval as well as the involvement of a warranted contracting officer. 142 

138 1CD 2007 OlF AAR, supra note 38, at 5. 

139 Id.; 3ID 2008 OlF AAR, supra note 4, at 20. In addition, U.S. forces have been cautioned not to rely on 

uncorroborated CLC information. Besides being aware ofthe two types of Sal, JAs should be careful to 

distinguish between ISF and sal. In general, because SOl are not part of the ISF, their members lack ISF 

authority, have prohibitions under Iraqi law against certain activities, and are non-combatants under the law 

of war. 3ID 2008 OlF AAR, supra note 4, at 20. 

140 lCD 2007 OlF AAR, supra note 38, at 5. 

141 lCD 2007 OlF AAR, supra note 38, app. 9. The OSJA was also intimately involved in planning to 

implement a Civil Service Corps concept (this was ajob program targeting unemployed military-aged 

males who had worked as either ISV or CIS guards, but were not integrating into ISF). As part of the 

planning process, the OSJA provided comments on a memo asking JCC-I/A to clarify several provisions of 

a May 2007 memo giving CERP guidance. Id. See also Memorandum, Under Secretary of Defense 

(Comptroller), subject: "Commander's Emergency Response Program (CERP) Guidance" (9 May 2007). 

142 3ID 2008 OIF AAR, supra note 4, at 8. 

227 
Once implementation of the SOl concept occurred, JAs fielded additional 

questions and concerns. For example, units sought guidance regarding what was "critical 

infrastructure." Common choices within the 31D area of operations included market 

places, checkpoints on major transportation routes, schools, clinics, and religious sites. 

Units also complained about the difficulty of identifying SOl members (creating a 

potential for friendly fire incidents), and requested purchase oft-shirts or reflective belts 

for them, as well as vehicles for their transport. However, under CERP guidelines, U.S. 

forces could not provide any equipment or supplies. Nonetheless, JAs concluded that a 

CIS guard contract could include the cost of providing all necessary equipment. 143 

Because the SOl groups are a new concept, policy in this area will no doubt 

continue to evolve over the next several months. However, AARs suggest that Iraqbound fiscal and OPLAW JAs research the issue prior to deployment (including 

becoming familiar with the rules of engagement, law ofwar principles, and fiscal 

authorities and basic fiscal constraints - particularly for CERP and rewards funds), and 

once in theater, coordinate the provision of any advice. On this issue and on CERP issues 

more generally, fiscal law JAs should also consult extensively with G8 and G9 

representatives. 144 

[See also CLAIMS (Commander's Emergency Response Program).} 

IILB.3. Military Construction (MILCON) 

In Bosnia, the greatest number of fiscal issues arose in the construction area. 

Confusion often arose regarding the distinction between repair, maintenance, and 

construction, especially when it came to work on existing roads and bridges. However, 

engineers were useful in making that determination. 145 Such a determination has an 

impact upon the funds available to support the project. Roads and bridges also raised 

other issues. One commander wanted to pursue what seemed like a great idea - costsharing with Hungary the expense ofrepairing 380 kilometers ofa main supply route 

(MSR). However, JAs questioned whether U.S. forces had an operational need for the 

work. If so, U.S. forces had to pay all the costs, or risk violating the miscellaneous 

receipts statute or receiving prohibited augmentation of appropriations. 146 If not, U.S. 

forces could not contribute to the repairs. Another short-lived pro~osal was to donate 

U.S. bridges by leaving structures in place at the operation's end. 1 

7 

143 !d. 

144 !d. The 31D AAR also indicates that the division formed a reconciliation cell to publish SOl guidance to 

assist units in its area of operations. See 3ID 2008 OIF AAR, supra note 4, at 20. Another useful resource 

is the MNC-I MAAWS, supra note 3. 

145 See BALKANS LL, supra note 47, at 148. 

146 A detailed analysis of this issue was done by Major Paul D. Hancq, Deputy Chief, Contract Law 

Division, Office of the Judge Advocate, U.S. Army Europe. 

147 In MND-N alone, there were at least twenty AVLB bridges, four Bailey bridges, nine ARRC bridges, 

and two float bridges. Besides the funding restrictions, there was also a CINCUSAREUR directive 

requiring recovery of all U.S. bridging assets at the operation's conclusion, whenever that might be. 

228 
Many of the problems arose when commanders and staff officers sought to use 

O&M funding for construction projects in the $1,000,000 range. When JAs reminded 

them of the legal limits on their authority to spend funds for military construction 

(MILCON), they sometimes responded by stressing the need for the construction to 

accomplish their "Title 10 responsibilities.,,148 Adding to the confusion, the statutory 

ceiling for O&M used for construction rose from $300,000 to $500,000 during the 

deployment. 149 In an oversimplified view, this changed the three-tier "structure" of 

construction spending to O&M appropriations for $500,000 and less, minor military 

construction, Army, for $500,001-$1.5 million, and specific approval through the 

specified military construction program (MILCON appropriations) for amounts over $1.5 

million. 150 

An important lesson for JAs is the need to be knowledgeable about current law 

and use technical channels for complex fiscal issues, as there is no operational exception 

to fiscal law in the construction area. A 4ID AAR provided the following comment in 

this regard: "[MILCON] represented one of the more technical areas ofO&M funds for 

deployed JAs. Judge Advocates must be extremely mindful of the rules concerning 

project splitting and what constitutes a complete and useable facility. This area of fiscal 

law required constant interaction with the G8, division engineers, logistics personnel, and 

the fiscal law attorneys at MNC-I [Multi-National Corps - Iraq].,,151 

During the early stages of OIF, JAs needed to understand the relationship between 

construction appropriations, procurement appropriations, contingency construction, and 

leasing. At the outset, MILCON appropriations rather than O&M funds were necessary 

for construction projects exceeding $750,000. 152 Similarly, O&M dollars were not 

appropriate to purchase investment end items or systems exceeding $250,000, or any 

centrally managed item (such as tactical or non-tactical vehicles) regardless of cost. . . 153 I d nstea ,procurement appropnatlOns were necessary. 

A possible exception to this general rule is the use of O&M dollars for 

construction during combat or declared contingency operations. 154 After much 

discussion between DOD and the Army regarding the availability ofO&M funds, 

148 Major Paul D. Hancq, comments in OJE AAR, Vol. I, supra note 43, at 215. 

149 See 10 U.S.c. § 2805(c). The change was accomplished by Public Law 104-201 (1996). 

150 Major Paul D. Hancq, comments in OJE AAR, Vol. I, supra note 43, at 216. 

151 4ID 2007 OIF AAR, supra note 2, at 21. 

152 See 10 U.S.C. § 2805(c) (2000). See also U.S. DEP'T OF DEFENSE, DIR. 4270.5, MILITARY 

CONSTRUCTION (12 Feb. 2005); U.S. DEP'T OF ARMY, PAM. 420-11, PROJECT DEFINITION AND WORK 

CLASSIFICATION (7 OCT. 1994); Major Brian A. Hughes, Uses andAbuses ofO&MFunded Construction: 

Never Build on a Foundation ofSand, ARMY. LAW., Aug. 2005, 1. 

153 See, e.g., Department of Defense Appropriations Act for Fiscal Year 2004, Pub. L. No. 108-87, § 8040, 

117 Stat. 1054, 1081 (30 Sept. 2003) [hereinafter 2004 DOD Appropriations Act]; U.S. DEP'T OF DEFENSE, 

DOD FINANCIAL MANAGEMENT REGULATION, Vol. 2A, ch. 1, para. 010201 (D)(I) (June 2002). 

154 See 10 U.S.c. § 101(a)(13)(200) (defining contingency operation). 

229 
Congress stated in its April 2003 Emergency Wartime Supplemental Appropriation that 

MILCON funds were necessary for all operations regardless ofthe intended temporary 

use of the construction. 155 Then, in November 2003, Congress carved out a broad 

exception to this rule by providing temporary authority for the use of O&M for urgent 

operational construction requirements of a temporary nature in support of OIF and the 

Global War on Terror. 156 

As the 3ID AAR recently observed, the biggest challenge in the MILCON area 

lies in determining what qualifies as construction. In Iraq, most of the requests reviewed 

by the 3ID OSlA involved the purchase of gravel or construction of a patrol base. Where 

gravel is concerned, it is necessary to determine whether its spreading is to create a new 

area (parking lot, etc.) or merely to improve an existing area. Another issue arose with 

respect to the wiring infrastructure for a forward operating base (FOB). The unit in 

question submitted a request for the digging of trenches in which to place the wires, but 

created a separate request for the wire needed to complete the project. If combined, the 

cost ofthe two requests was over the O&M threshold, pushing the project to the 

MILCON leve1. 157 

lAs in Afghanistan encountered similar issues. One AAR recommended lAs 

must be alert to the possibility of project splitting, even between O&M and CERP funds. 

In one case, when MILCON funding for a FOB access road project ran out, the command 

sought to finish the project under CERP by justifying it as beneficial to the local 

population. As with the wiring example above, lAs also learned that related projects in 

the same area could lead to inadvertent contract splitting (e.g., by building huts, then 

submitting a proposal to provide power to them by tapping into the existing grid, then 

initiating a third project to provide an independent source of power). The recommended 

solution to this issue was for contract and fiscal law lAs, where possible, to become 

familiar with all projects ongoing at the various FOBs and track projects submitted to 

them for review. 158 

A type ofstructure that caused a construction verses procurement debate is the 

"relocatable building," one that is "designed to be readily moved, erected, disassembled, 

stored, and reused.,,159 Relocatable buildings are typically personal property, and thus 

155 See Emergency Wartime Supplemental Appropriation for the Fiscal Year 2003, Pub. L. No. 108-11, § 

1901, 117 Stat. 587 (2003). 

156 See Emergency Supplemental Appropriation for Defense and for the Reconstruction ofIraq and 

Afghanistan for Fiscal Year 2004, Pub. L. No. 108-106, § 1301, 117 Stat. 1209 (2003). See also OPLAW 

HANDBOOK, supra note 3, at 265-66. 

157 3ID 2008 OIF AAR, supra note 4, at 9. 

158 10th MTN DIV 2007 OEF AAR, supra note 2, at 27. 

159 U.S. DEP'T OF DEFENSE, INSTR. 4165.56, RELOCATABLE BUILDINGS paras. C(2)(a) (13 Apr. 1988) 

[hereinafter DOD INSTR. 4165.56]; see also U.S. DEP'T OF ARMY, REG. 420-1, ARMY FACILITIES 

MANAGEMENT (2 Dec. 2007); Memorandum, Assistant Chief of Staff for Installation Management, to US 

Army Forces Command and others, subject: Interim Policy Change on Relocatable Buildings for 

Paragraphs 6-13 through 6-17 in AR 420-1, Army Facilities Management (19 Feb. 2008). 

230 
funding with unit O&M dollars is proper. However, if over the $250,000 investment end 

item threshold, the use ofprocurement dollars is necessary. However, relocatable 

buildings used in place of permanent construction when the duration ofthe required use 

is unknown are real property items and funded under a construction analysis. 16o Judge 

Advocates had to determine whether a structure was a relocatable building; if so, whether 

the structure was personal or real property; and depending on the answer, the appropriate 

funding. 

IILB.4. Leases 

Another area that triggers fiscal rules is leases. During OEF and OIF, commercial 

non-tactical vehicles (NTVs) were a recurring example ofitems obtained through 

operating leases rather than purchase. Units determined they needed more NTVs to meet 

the transportation requirements of dispersed and fluid areas of operation. 161 However, 

vehicles require purchasing with procurement dollars because, even though they typically 

do not exceed the $250,000 threshold, they are centrally managed items. Central 

management of vehicle purchases is necessary because Congress sets a cap on the 

number that each service can acquire in a given fiscal year.

162 To avoid violating this, 

Afghanistan and Iraq-based units used O&M-funded operating leases to acquire the use 

ofNTVs. 163 However, such leases were often very expensive, and units had to wade 

through the detailed rules and restrictions which govern them, such as the level of 

command authorized to approve a lease (depends on its length).164 

IILB.5. Donation & Disposal ofProperty 

Units redeploying to Germany from the Balkans at the conclusion of operations 

there wished to leave behind certain materiel, for which JAs had to find exceptions to the 

general rule. One exception considered was 10 U.S.C. § 2557 (previously 10 U.S.c. § 

2547), under which the Secretary of Defense may make available for humanitarian relief 

purposes any DOD nonlethal excess supplies. 165 However, JAs must remain vigilant 

160 See DOD INSTR. 4165.56, supra note 159, para. 5.2.2. 

161 See, e.g., Lieutenant Colonel Paul Wilson, Deputy Staff Judge Advocate, 101 st Airborne Division (Air 

Assault), Thoughts on Contracting (6 Jan. 2004) (Microsoft Word document attached to E-mail from 

Lieutenant Colonel Richard M. Whitaker, StaffJudge Advocate, lOlst Airborne Division (Air Assault), to 

Lieutenant Colonel Pamela M. Stahl, Director, Center for Law & Military Operations (8 Jan. 2004)) 

[hereinafter Wilson E-mail]. 

162 See e.g., 2004 DOD Appropriations Act, 117 Stat. 1063 (authorizing the Anny to purchase four new 

vehicles required for personnel security, not to exceed $180,000 per vehicle). 

163 See e.g., Wilson E-mail. 

164 See U.S. DEP'T OF DEFENSE, REG. 4500.36-R, MANAGEMENT, ACQUISITION, AND USE OF MOTOR 

VEHICLES paras. C3.2.4.2 to C3.2.4.3 (29 Mar. 1994) (C1, 30 Sept. 1996) (distinguishing between shorttenn - 60 days or less - and long-term - greater than 60 days - leases, requiring, inter alia, approval of the 

head ofthe DOD component or designee for long-tenn lease of commercial vehicles outside the United 

States). See also Funding Guidance for NTV Contracts, supra note 30. 

165Id. "Nonlethal excess supplies" refers to property that is in Defense Reutilization and Management 

Office (DRMO) channels, and may include all property except real property, weapons, ammunition, and 

231 
against a tendency on the part of commanders to attempt to consider military property 

"excess" that is not truly excess under the statute. In Albania in 1999, Task Force Hawk 

had 80,000 gallons of aircraft fuel it no longer needed once its mission ended. Because 

the fuel was still useful to US. forces and not truly excess, Task Force Hawk transported 

30,000 gallons to TFF in Kosovo and transferred the remainder to the Albanians as 

"payment-in-kind" for services provided by Albania to US. forces. 166 

A different but related concept to excess materiel is evaluation of whether military 

property used in an operation is available for donation because the transportation and 

recovery costs outweigh the its value. Units redeploying from Albania also wished to 

transfer wooden guard towers and wooden tables and chairs built on-site to the Albanian 

govemment. 167 The property was of minimal value, and, once disassembled, would have 

amounted to scrap wood. Since the recovery cost exceeded the value, the unit could 

properly classify it as "consumed" by the operation. 168 

The US. Air Force reached a similar conclusion following Operation SHINING 

HOPE, also conducted in the Balkans. The Air Force compared the cost of recovering 

and redeploying certain tents and other materiel to the cost of replacement. The materiel 

had a value of approximately $6,000,000, while the cost of disassembling and 

transporting it was approximately $8,000,000. The Air Force, with the concurrence of 

the Joint Chiefs of Staff legal office, decided to leave the materiel in place. The transfer 

occurred using a third-party transfer under an acquisition and cross-servicing agreement 

(ACSA). As the United States did not yet have an ACSA with Albania, USAREUR 

transferred the fuel to the Supreme Allied Commander, Atlantic (SACLANT), who 

designated the Albanians as his agent for delivery. 169 

JAs in Iraq have also encountered the issue of transferring equipment - in this 

case, to Iraqi or other Coalition forces. A V Corps AAR cautioned that a first step is to 

confirm that DOD has proper authority to do so (e.g., pursuant to foreign excess personal 

property (FEPP) disposal provisions, emergency drawdown, special authority in the 

any other equipment or materiel designed to inflict bodily harm or death. Property is "excess" if it is no 

longer required for the needs and discharge of responsibilities of the relevant military service. Excess 

supplies furnished by the military under authority of 10 U.S.C. §2557 are transferred to the U.S. Agency 

for International Development (USAID). Funding authority for DOD transportation of the supplies may be 

provided from Overseas Humanitarian, Disaster, and Civic Assistance (OHDACA) under 10 U.S.c. §2561 

(previously 10 U.S.c.§ 2551). See U.S. DEP'T OF DEFENSE, MANUAL 4160.21-M, DEFENSE MATERIEL 

DISPOSITION ch. 8 (18 Aug. 1997) [DOD MANUAL 4160.21-M). The unwieldy process can be discouraging. 

166 Kosovo LL, supra note 96, at 70-71 (SACLANT required the Albanian Ministry of Defense to hold 

SACLANT harmless from any liability regarding the quality of the fuel). 

167 Id. at 71-72. 

168 See DOD MANUAL 4160.21-M, supra note 165, ch. 8. 

]69 However, in contrast to this example, Task Force Hawk units, faced with the difficulty of having 

nonperishable foodstuffs declared excess through veterinary channels and transferred to USAID, instead 

arranged to transport them to U.S. forces in Kosovo. Kosovo LL, supra note 96, at 72-73. 

232 
annual National Defense Authorization or Appropriations Act (limited), or foreign
 

military sales (FMS) grants or transfers (coordinated through the u.s. Embassy))Yo
 

An additional requirement is to ensure that proper end use and retransfer 

agreements are in place and signed by individuals with authority to conclude international 

agreements, in accordance with DOD, Joint Chiefs of Staff, and CENTCOM policy on 

such agreements (e.g., not battalion commanders). The V Corps AAR also suggested that 

units transferring sensitive equipment consider taking steps to make sure the recipients 

put in place appropriate management controls and physical security measures (for 

example, to minimize the possibility that equipment such as night vision goggles could 

subsequently fall into the hands of insurgents or others who could use it against U.S. 

forces). 171 

Finally, units contemplating transfers need to be aware of and comply with the 

Leahy Amendment, which places restrictions on aid to governments or units engaging in 

gross human rights abuses. The V Corps AAR reported the creation of a vetting system 

to identify any units with such a history. As well, where U.S. forces learned of a 

problem, it was possible to address it by informing the Iraqi government that the unit in 

question would cease to receive U.S. support until measures occurred to deal with it. 172 

In addition to these general comments, Iraq-based JAs should be aware that the 

Under Secretary ofDefense for Logistics and Materiel Readiness has authorized MultiNational Force - Iraq (MNF-I) to establish procedures for transferring certain types of 

installation property to ISF. 173 The 101 st Airborne Division AAR reported that, in 

accordance with the resulting MNF-I procedures, the division took the following steps: 

All personal property eligible for transfer was identified as Foreign Excess 

Personal Property (FEPP). All U.S. installation property was subject to a 100% 

inventory and valued at the fair market value (FMV). The FMV is the purchase 

price minus the depreciation rate. No more than $2 million ofFEPP could be 

transferred to the ISF from each FOB. Two common issues arose when 

commanders desired to transfer property as part of base closure: fair market 

value and opportunity cost. The G4 staff and their JA advisors must ensure that 

fair market value is not inflated. Commonly, containerized housing units 

(CHUs) were overvalued because 2005 prices were used to determine the value, 

when in fact, the CHUs were purchased in 2002. Opportunity cost was a more 

enduring issue. Units were regularly forced to relocate equipment from one FOB 

to another in order for the transitioning FOB to stay below the $2 million 

threshold. However, the cost of relocating the equipment often equaled or 

outweighed the value of the equipment. 174 

170 V Corps 2006 OIF AAR, supra note 5, at 16-17. 

171 !d. See generally DSCA Security Assistance Management Manual, http://www.dsca.mil/SAMM/. 

172 !d. at 17. 

173 101st ABN DIV 2007 OIF AAR, supra note 45, at 39. 

174 1d. 

233 
A related issue encountered by 10lst Airborne Division JAs was the requirement 

to deal with abandoned or confiscated weapons. The absence of policy in this area meant 

that brigades implemented their own procedures until MNC-I published a FRAGa 

detailing the proper means for weapons disposal. The IOlst JAs therefore recommended 

that JAs supporting an initial deployment consider putting in place before deployment a 

comprehensive policy allowing units to dispose of or transfer weapons and other items to 

host nation security forces. 175 

III.B.6. Acquisition & Cross-Servicing Agreements (ACSAs) 

An acquisition and cross-servicing agreement (ACSA) is an agreement with a 

foreign government or international organization that allows DOD to acquire and transfer 

logistic support without the need to resort to contracting procedures. 176 Under an ACSA, 

U.S. forces and those of an eligible country may provide logistics support, supplies and
 

services on a reciprocal basis upon coordination with the Secretaries of Defense and
 

State. The primary benefit of cross-servicing is that such support, supplies and services
 

may be reimbursed through cash; replacement in kind; or trade of support, supplies or
 

services of equal value. Much ofthe logistic support in a multinational setting occurs
 

through ACSAs.
 

The United States has ACSAs with many of the nations whose forces are most 

likely to operate with U.S. forces. 177 However, neither contracting personnel nor most 

JAs had significant training in ACSAs when U.S. forces began to operate in Bosnia. 178 

Task Force Eagle addressed this problem by designating a single point of contact for 

ACSAs during the operation. 179 Multinational forces in Kosovo also required extensive 

use of ACSAs for logistics support by and to the United States; for example, all countries 

drew fuel supplies from the French. While JAs were prepared to address ACSA issues 

based on the lessons learned in Bosnia,180 the operations ran smoothly at the task force 

level and required little JA involvement. The G-4 section identified an ACSA point of 

contact, and pre-deployment training prepared the task force to address ACSA issues. 181 

175 101st ABN DIV 2007 OIF AAR, supra note 45, at 28-29. The 101st claims office also had to draft a 

policy to deal with abandoned or confiscated vehicles. 

176 ACSAs allow DOD to enter into agreements with other eligible countries for the reciprocal provision of 

logistics support. Acquisitions and transfers are on a cash-reimbursable, replacement-in-kind, or equal 

value exchange basis. 10 U.S.C. §§ 2341-2350 (2000). See also U.S. DEP'T OF DEFENSE, DIR. 2010.9, 

ACQUISITION AND CROSS-SERVICING AGREEMENTS (28 Apr. 2003); JOINT CHIEFS OF STAFF, INSTR. 

2120.01A, ACQUISITION AND CROSS-SERVICING AGREEMENTS (27 Nov. 2006); JOINT CHIEFS OF STAFF, 

JOINT PUB. 4-08, JOINT DOCTRINE FOR LOGISTIC SUPPORT OF MULTINATIONAL OPERATIONS (25 Sept. 

2002). 

177 All NATO countries, plus non-NATO countries designated by the Secretary of Defense. 

178 Major Susan Tigner, comments in OJE AAR, Vol. I, supra note 43, at 238. 

179 Lieutenant Colonel Maher, comments in OJE AAR, Vol. I, supra note 43, at 240. 

180 BALKANS LL, supra note 47, at 152-53. 

181 Kosovo After Action Review Video Teleconference Read Ahead Packet, 1st Armored Division, and 

Center for Law & Military Operations § III, E (19 Mar. 200 I); Kosovo LL, supra note 96, at 150. 

234 
However, JAs must be prepared to advise on ACSA issues until trained logisticians arrive 

to provide ACSA support and accounting. 182 Further, broad coalitions may include 

countries with which the United States does not yet have ACSAs. 

The lack of an ACSA can cause problems. For example, in Bosnia, most ofthe 

troop contributing nations working with U.S. forces had ACSAs with the United States, 

but Russia, Romania and others did not. Thus, they were not supposed to use U.S. dining 

facilities nor receive any other support in kind. However, U.S. European Command 

(EUCOM) and Supreme Headquarters Allied Powers Europe (SHAPE) used a "work 

around." They considered that the EUCOM - SHAPE ACSA provided a basis for 

exchanging support with these nations as long as they agreed to abide by the 

reimbursement terms ofthat ACSA and the EUCOM J4. 

Judge Advocates must also be prepared to advise on the provision oflogistic 

support in the absence of an ACSA, because there is no legal authority to provide free 

logistic support to foreign militaries. There was severe testing ofthis axiom when troops 

from the Ukraine and the United Arab Emirates (UAE) arrived to participate in KFOR, 

with neither country having an ACSA with the United States. 183 In that case, USAREUR 

reviewed all logistic support requirements for the two forces, which included billeting, 

meals, communications, quality oflife, and, for the UAE, AH-64 aviation parts and 

maintenance facilities. Ultimately, the support came through foreign military sales 

(FMS) cases, normally used to provide military equipment to foreign nations but tailored, 

in this instance, to provide logistic support. 184 

Ukrainian forces arrived in Kosovo with short notice to DOD officials, and before 

any support agreements were in place. When the advance party showed up, USAREUR 

instructed TFF to provide the minimum level of support necessary (i.e., water, food, 

shelter), and track the costs. The day after the contingent arrived, U.S. Army Security 

Assistance Command initiated three FMS cases in support ofthe deployment. For TFF, 

the process of capturing the costs and forwarding the amounts to higher headquarters was 

the same as ifthe support occurred pursuant to an ACSA. 185 When the FMS cases were 

182 See Lieutenant Colonel Mark Martins, Deputy StaffJudge Advocate, 1st Infantry Division, comments in 

Transcript ofKosovo After Action Review Conference, Center for Law & Military Operations, 

Charlottesville, Va. 361 (12-14 June 2000) [hereinafter Kosovo AAR Conference Transcript]. "The 

agreement is just the first step. What doesn't happen a lot oftimes [early in the deployment] is you don't 

have the trained, the school-trained logistics personnel who know how to collect and who know how to 

account for the stuffthe other services are getting from you or you're getting from the other services. In 

some areas it worked well ... but there were a lot of other areas where I didn't see the tough accounting 

occurring." Id. 

183 The United States and the Ukraine entered into an ACSA on 19 November 1999. 

184 The FMS program is a security assistance mechanism by which the U.S. provides defense articles and 

training to further national policy. Eligible governments purchase defense items based on DOD-managed 

contracts as an FMS "case." 22 U.S.c. §§ 2761-62 (2000). See the DSCA website, www.dsca.mil. 

185 Kosovo LL, supra note 96, at 151-53. 

235 
completed, the accumulated costs went into them. 186 $700,000 from foreign military 18 financing (FMF) funds funded the FMS cases. ? In essence, the United States funded the 

Ukrainian deployment, and the $700,000 expenditure prudently provided basic life 

support. 

The Defense Security Cooperation Agency prepared two FMS cases for the UAE 

in August 1999. 188 The UAE funded the FMS cases with $11.3 million and received 

support pursuant to them. 189 The UAE participation in KFOR was unique in that its 

troops were not only part ofKFOR, but also served as part ofTFF. It was therefore 

necessary to prepare a memorandum of agreement (MOA) with detailed command and 

control, training, aircraft configuration, and claims provisions. USAREUR drafted the 

MOA as officials prepared the FMS cases, with the expectation that both documents 

would be complete before the UAE began deploying troops. The MOA also specified the 

types oflogistic support, by class, that USAREUR and TFF would provide. Subsequent 

issues regarding the cost of various forms ofsupport clearly demonstrated the desirability 

of a MOA that restates U.S. law concerning the provision of goods and services. As well, 

JAs participating in MOA negotiations should ensure that the recipient force is aware that 

the United States must capture all support costs and bill them to the country receiving the 

support. l9O Finally, JAs should be aware that the terms ofthe FMS case will control the 

transaction, with the MOA as a supporting instrument. 

Forces from the UAE again appeared, still in the absence of an ACSA, as part of 

the OEF Coalition. They arrived in Afghanistan with very little organic support and 

turned to CJTF-180 for assistance. Task force JAs requested CENTCOM guidance and, 

in the interim, the CJTF-180 commander authorized provision of basic life support 

materials - food, water, shelter, emergency medical care - to UAE forces, with 

instructions to carefully account for all costs. Ultimately, CENTCOM, in conjunction 

with DOS, negotiated a mission-specific agreement with the UAE (not an ACSA, which 

would have had general applicability beyond the OEF mission) outlining the type and 

amount of U.S. support to be provided and the extent to which the UAE would reimburse 

the costS.191 

186 E-mail from Lieutenant Colonel Richard Sprunk, Office of the Army General Counsel, to Major Cody 

Weston, Center for Law & Military Operations (16 Oct. 2001). 

187 FMF is a security assistance mechanism by which eligible governments receive Congressional 

appropriations to assist in purchasing U.S. defense items and training. 22 U.S.c. §§ 2363-64. The U.S. 

added another $4.3 million in FMF funds to the Ukraine's FMS case after the Ukrainian troops arrived in 

Kosovo. 

188 The FMS program is a security assistance method by which eligible governments purchase defense 

items based on contracts managed by DOD as an FMS "case." 22 U.S.c. §§ 2761-62 (2000). See 

generally DSCA Security Assistance Management Manual, http://www.dsca.mil/SAMM/. 

189 Kosovo AAR Conference Transcript, supra note 182. 

190 Kosovo LL, supra note 96, at 152-53. 

191 OEF/OIF LL, Vol. I, supra note 58, at 153. 

236 
In addition to ACSAs, recent appropriations have allowed DOD to use O&M 

funds to provide logistic support to Coalition forces supporting military and stability 

operations in Iraq. Appropriations have also provided over $1,000,000,000 to reimburse 

key cooperating nations for military and logistic support provided to U.S. military 

operations in connection with military action and Iraq and the Global War on Terror. 

IILB. 7. Visitors, Gifts, & Entertainment 

The TFF Joint Visitors Bureau maintained a robust schedule of visitors, including 

the U.S. President, leaders of foreign countries, military leaders, and entertainers. Judge 

Advocates constantly faced issues involving gifts - from coins, posters, hats, and jackets 

to bronze Falcon Statues - for these visitors. Commanders and staffs regularly desired to 

use appropriated funds, either directly or under the KBR contract, to purchase these gifts. 

While JAs vigilantly explained the gift-giving rules in a variety offormats, including 

information papers, legal reviews, e-mails, charts, and personal counseling, the message 

required constant repeating. 

More recently, 3ID fiscal attorneys reported that units wanted - as had previously 

been done - to purchase "yearbooks" to commemorate their deployment. The 3ID AAR 

further noted that some units may also want to produce a historical publication either 

alone or in conjunction with such a yearbook. The 3ID JAs concluded that, in 

accordance with Army Regulation (AR) 25-30, The Army Publishing Program, 

appropriated funds were not proper for yearbooks,l92 but production of a historical 

publication was easier to justify. Although the command wanted each Soldier to receive 

a copy, AR 870-5 prohibits using appropriate funds for personal distribution. 193 JAs 

advised distribution should be limited to commanders and staff sections. As a result of 

these constraints, the AAR recommended units research the possibility - prior to 

deployment - of having an organization donate funds to produce yearbooks. 194 

A second issue dealt with by 3ID JAs was requests from equal opportunity (EO) 

personnel to purchase t-shirts as items necessary to carry out their EO mission. The JAs 

reported that the key to approval of such requests was an explanation about how the tshirts related to the planned EO event. They suggested JAs preparing to deploy research 

exceptions allowing the use of appropriated funds for items such as t-shirts. 195 

A desire for novel awards, in the shape of combat spurs, required 1CD JAs to 

ensure that the G8 understood the applicable framework (i.e., unit coin medallion 

spending thresholds do not apply by analogy, and relevant dollar limits instead appear in 

AR 600_8_22 196).197 

192 U.S. DEP'T OF ARMY, REG. 25-30, THE ARMY PUBLISHING PROGRAM (27 Mar. 2006). 

193 U.S. DEP'T OF ARMY, REG. 870-5, MILITARY HISTORY: RESPONSIBILITIES, POLICIES, AND PROCEDURES 

(21 Sept. 2007). 

194 3ID 2008 OIF AAR, supra note 4, at 8. 

195Id. at 7. 

196 U.S. DEP'T OF ARMY, REG. 600-8-22, MILITARY AWARDS (11 Dec. 2006). 

237 
A final related issue handled by 1CD lAs in Iraq concerned the desire on the part 

of brigade and battalion commanders to improve relations with Shia and Sunni leaders by 

hosting an Iftar meal for them during Ramadan. However, units made the proposal only 

a week before Ramadan and because Ramadan occurred at the end of the u.s. fiscal year, 

funds were limited. Both official representation funds (ORF) and DOS money were 

largely unavailable, and paying for such a meal was not an appropriate use of CERP 

funds. Although Secretary of the Army emergency and extraordinary expense (E&E) 

funds might have been available, the request was made too late to staff a proposal that 

required support from higher headquarters. In the end, units sponsored only few Iftar 

meals. The 1CD lAs therefore recommended that divisions determine at least 90-120 

days prior to Ramadan whether they will support Iftar meals. If so, divisions should then 

determine the amount to be available to brigades and, if necessary, submit a request for 

additional funding to higher headquarters. 198 

197 ICD 2007 OIF AAR, supra note 38, app. 9. 

198 ICD 2007 OIF AAR, supra note 38, at 4. See also Lieutenant Colonel Maurice A. Lescault, Jr., Official 

Representation Funds: Fiscally Controlled Funds or "Easy Money"?, ARMY LAW., Dec. 2003, at 17 

(describing official representation funds and DOD administrative controls, and examining when and if 

fiscal controls apply). 

238 
I~ CLAIMS
 

The processing of claims for the personal injuries or property damage or loss that 

inevitably occur during military operations requires careful planning well in advance of 

deployment. Judge Advocates (JAs) usually rely on the Foreign Claims Act (FCA) 

during deployments to satisfy claims against U.S. forces, 1 but recent operations have 

required JAs to become familiar with claims paid under many other auspices. Comments 

from the 101st Airborne Division claims office, describing its 2005-2007 deployment to 

Iraq, illustrate the possible breadth and scope of the deployed claims mission: 

The mission of the TF Band of Brothers Division Claims Office was to supervise 

the processing, investigation, adjudication and the settlement of all claims filed 

pursuant to the Foreign Claims Act (FCA), Personnel Claims Act (PCA), and 

Military Claims Act (MCA) and all real estate claims within the TF Band of 

Brothers' AO [area of operations]. A total of2,855 claims were filed pursuant to 

the FCA resulting in a total of $1 ,638,590 paid. Operating out of a Civil and 

Military Operations Center (CMOC) on COB Speicher, the Division Claims 

Office created and implemented a system that effectively eliminated all 

backlogged and inactive foreign claims in the TF. The Office also served as the 

initial review authority for 255 claims filed pursuant to the PCA, resulting in the 

payment of over $343,000, and three claims filed pursuant to the MCA, resulting 

in payment of approximately $1,000. The Division Claims Office also served as 

the TF Band of Brothers liaison to the Contingency Real Estate Team (CREST) 

[now Gulf Regional Division (GRD)] and was the primary channel for the 

processing and settlement of all claims for the use and occupancy ofprivatelyowned real estate within the TF AO. The Division Claims Office created and 

implemented a workable system for the funding, processing, and payment of 

approximately 450 real estate claims throughout the AO. Responsible for 

maintaining oversight and providing guidance on the implementation of battle 

damage and condolence payments under the Commander's Emergency Response 

Program (CERP), the Office processed a total of 434 individual CERP payments 

made within the TF Band of Brothers totaling $490,812,z 

1 Foreign Claims Act (FCA). 10 U.S.C. § 2734. 10 U.S.C. § 2734 (a), allows settlement of claims for 

property losses, injury or death caused by servicemembers or the civilian component of U.S. forces to 

"promote and to maintain friendly relations." Id. 

2 10Ist Airborne Division (Air Assault), Office ofthe Staff Judge Advocate, Operation IRAQI FREEDOM 

05-07 After Action Report, November 2005 - November 2006) 43-44 (2006) [hereinafter 10lst ABN DIV 

2007 OIF AAR]. A Marine JA also listed two other possible types ofpayments: micro rewards (e.g., for 

tips leading to the capture of wanted persons, and the seizure ofIEDs, munitions, and weapons caches), and 

small rewards (used primarily to pay rewards to "neighborhood watch" personnel killed or wounded in the 

line of duty, or who otherwise demonstrated heroism, as well as to HN personnel who assisted U.S. or Iraqi 

forces in some way). Task Force 2d Battalion, 6th Marines, Battalion Judge Advocate, After Action 

Report, Operation IRAQI FREEDOM, November 2006 - November 2007 2-3 (7 Dec. 2007) [hereinafter 

TF 2/6 JA 2007 OIF AAR]. 

239 
When the claims process works well, paying legitimate claims works as a force 

multiplier capable of enhancing a unit's force protection in a hostile environment.3 

Conducting effective claims operations also helps foster positive relations with host 

nation (RN) personnel by preserving goodwil1.4 Judge Advocates should also be aware 

that the efficient and expeditious processing of personnel claims helps maintain Soldier 

morale. 5 It therefore behooves JAs to develop claims strategies that can and have 

historically proven to make an important contribution to the overall success ofthe 

mission.6 

3 See, e.g., CENTER FOR LAW & MILITARY OPERATIONS, LEGAL LESSONS LEARNED FROM AFGHANISTAN 

AND IRAQ, VOLUME I: MAJOR COMBAT OPERATIONS (11 September 2001 - 1 May 2003) 175, 180-81 nn.2­

3 & 32-33 (1 Aug. 2004) [hereinafter OEF/OIF LL, Vol. I]. 

4 See e.g., CENTER FOR LAW & MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS IN THE BALKANS, 

1995 -1998: LESSONS LEARNED FORJUDGE ADVOCATES 160 nA27 (13 Nov. 1998) [hereinafter BALKANS 

LL] (noting comments by one JA that claims payments were made to farmers for the deprivation of grazing 

land and spot repairs were made to roads damaged by military equipment). 

5 See e.g., id. at 162-63. 

6 See CENTER FOR LAW & MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS IN HAITI, 1994-1995: 

LESSONS LEARNED FOR JUDGE ADVOCATES 144 (11 Dec. 1995) [hereinafter HAITI LL] (noting that "prompt 

investigation, adjudication, and payment of foreign claims contributed to the goodwill ofthe Haitian people 

toward U.S. forces, which in tum contributed to the security ofthose forces."). See generally Colonel R. 

Peter Masterson, Managing a Claims Office, ARMY LAW., Sept. 2005, at 29 (providing an overview of 

claims operations, and tips on managing a claims office); Lieutenant Colonel Eugene E. Baime & Altha 

Friedel, A Pre-Deployment Guide to Ensuring a Successful Claims Operation in an Eastern European 

Country, ARMY LAW., Mar. 2006, at 15 (providing claims guidance for JAs deploying to Eastern European 

countries, and explaining the pre-deployment steps that a JA should take to ensure a smooth claims 

operation). 

240 
I~A. PRE-DEPLOYMENTPLANNING 

Determining the personnel composition of the claims section is a key component 

of pre-deployment planning. Once notified of an impending deployment, JAs should 

designate claims commissions and seek planning assistance from the U.S. Army Claims 

Service (USARCS).7 For claims operations in support of Operation UPHOLD 

DEMOCRACY (Haiti), USARCS provided deploying JAs with "off the shelf' 

appointment packages for individuals designated as foreign claims commissions (FCCs). 

The identification of FCCs and coordination oftheir appointments with USARCS is a 

vital part ofthe pre-deployment planning process. 

During Operation JOINT ENDEAVOR (Balkans), JAs acted as FCCs throughout 

a geographically dispersed AO. 8 Paralegals were also valuable in the effort to 

decentralize investigation and settlement offoreign claims9 and have since assumed 

significant claims responsibilities in support of Operation IRAQI FREEDOM (OIF).IO 

Training a large number of JAs and paralegals on claims operations before deployment 

will significantly improve the efficiency with which they investigate and process 

claims. II 

When the 101st Airborne Division (Air Assault) deployed to Iraq in late 2005, its 

claims office requested USARCS to appoint three division-level JAs and every brigade 

JA as FCCs. However, not every FCC received an activated account with funding 

7 Information about USARCS, including an foreign claims commission (FCC) SOP and a sample FCC 

appointment request, can be accessed through the JAGCNet website. See INT'L & OPERATIONAL LAW 

DEP'T, THE JUDGE ADVOCATE GENERAL'S LEGAL CENTER & SCHOOL, U.S. ARMY, JA 422, OPERATIONAL 

LAW HANDBOOK ch. 19 (2008) [hereinafter OPLAW HANDBOOK 2008]. See also sister service claims 

regulations and activities, e.g. U.S. DEP'T OF AIR FORCE, REG. 51-501, TORT CLAIMS (15 Dec. 2005); U.S. 

DEP'T OF NAVY, JUDGE ADVOCATE GENERAL, INSTR. 5890.lA, ADMINISTRATIVE PROCESSING AND 

CONSIDERATION OF CLAIMS ON BEHALF OF AND AGAINST THE UNITED STATES (18 June 2005). Pursuant to 

C.F.R. §750.l3, Claims: Single Service Responsibility, and U.S. DEP'T OF DEFENSE, INSTR. 5515.08, 

ASSIGNMENT OF CLAIMS RESPONSIBILITY (11 Nov. 2006), the Army, Air Force, or Navy is assigned 

responsibility for processing claims in different countries. At the beginning ofOEF and OIF, the USAF 

was assigned single service claims responsibility for both Afghanistan and Iraq. This meant that all claims 

were required to go through the USAF claims service for final adjudication. The Department ofthe Army 

is now responsible for claims in Iraq, Afghanistan, and any other country in the CENTCOM area of 

responsibility not specifically assigned to the Departments of the Air Force or Navy. 

8 See BALKANS LL, supra note 4, at 154. 

9ld at 160 n.428 (citing comments by Major Jody Prescott that Task Force Eagle was able to swiftly 

resolve foreign claims by decentralizing their investigation and settlement). 

1

0 See generally CENTER FOR LAW & MILITARYOPERATIONS, LEGAL LESSONS LEARNED FROM 

AFGHANISTAN AND IRAQ, VOLUME II: FULL SPECTRUM OPERATIONS (2 May 2003 - 30 June 2004) 187 

nn.17-19 (1 Sept. 2005) [hereinafter OEF/OIF LL, Vol. II] (noting that paralegals successfully performed 

most of the claims investigations and processing for several division SJA offices). 

II See U.S. DEP'T OF ARMY, REG. 27-20, CLAIMS para. 2-3(a)(1) (8 Feb. 2008) [hereinafter AR 27-20] 

(noting that commanders can appoint commissioned officers, warrant officers, noncommissioned officers, 

or qualified civilian employees to investigate claims incidents). See also U.S. DEP'T OF ARMY, PAM. 27­

162, CLAIMS PROCEDURES (21 Mar. 2008). 

241 
available, since every funded FCC account holder had to make a weekly report to 

USARCS. As a result, typically only one JA per brigade maintained an actively funded 

account, with payment for all claims for that unit coming from it, making multiple funded 

accounts for the same location unnecessary. When, for some reason, an unfunded 

account needed use, USARCS was always able to fund it within twenty-four hours. 12 

The 101 st claims office also had four FCA pay agents appointed before
 

deployment. While the claims office was usually able to use the same pay agent each
 

week, the others served as backups, so that a pay agent was always available at a
 

moment's notice whenever needed. The 101st claims office recommended appointing
 

pay agents before arrival in theater and suggested that, although it requires a waiver for
 

any NCO below the rank of sergeant first class to become a pay agent, paralegals with
 

rank of staff sergeant and above should receive certification as pay agents immediately
 

upon entering theater. In addition, at least one NCO in each brigade legal office should
 

receive certification as a pay agent. 13
 

The 4th Infantry Division (4ID) claims office noted that, as a pay agent had to be 

available to payout claims on a weekly basis, it was preferable to appoint the BCT 

NCOIC rather than the brigade JA. Obtaining authority to deal with other types of claims 

also required various designations. The division appointed those responsible for handling 

personnel claims. Making condolence payments required both a condolence pay agent 

and a project purchasing officer (PPO), who both required training by contracting and 

finance personnel. The 4ID claims office suggested that, since the foreign claims pay 

agent could not be the same individual as the condolence pay agent, the brigade trial 

counsel could perform this latter function in the absence of any other suitable individual. 

Regardless of the particular arrangement chosen by a legal office, it was preferable to 

have backups for all positions. As well, if possible, all pay agents should receive their 

appointment and training before deployment. 14 

Judge Advocates should also consider during pre-deployment planning how they 

will obtain the interpretation and translation services required to support the processing of 

foreign claims. While there may no be resolution ofthese issues before deployment, 

advance planning should occur to minimize potential delays. The development and 

reproduction of claims packets in the HN language is also a valid consideration. ls 

Claims personnel can expect to do a great deal oftraveling, sometimes under 

hazardous conditions. Combat operations during OIF and Operation ENDURING 

FREEDOM (OEF) illustrated the inherent hazards of vehicular movement in a hostile fire 

12 101 st ABN DIV 2007 OIF AAR, supra note 2, at 44. 

13 Jd. at 44-45. 

14 4th Infantry Division, Office ofthe Staff Judge Advocate, After Action Review, Operation IRAQI 

FREEDOM, January 2006 - March 2007) 23-24 (2007) [hereinafter 410 2007 OIF AAR]. 

15 See generally OEF/OIF LL, Vol. II, supra note 10, at 188-93 (commenting on the use of interpreters for 

claims intake/investigations and translators for translating claims-related paperwork, and that JAs 

developed pre-printed claims packets in Arabic before deployment in support of OIF). 

242 
zone. Judge Advocates and paralegals who conduct claims operations should emphasize 

skills such as weapons handling, convoy operations, map reading, and global positioning 

system (GPS) use during pre-deployment training. Since most claims teams do not have 

dedicated vehicle assets, pre-deployment planning can also address how claims teams 

will travel throughout the AO. 16 

Judge Advocates can assist commanders by recommending the establishment of 

personnel claims procedures before deployment. Soldiers can only recover payment for 

personal items lost or damaged during a deployment if the items were reasonable to 

possess. 

17 The task for JAs is to assist commanders with publishing a list ofthe personal 

items considered reasonable (or even unreasonable), so Soldiers are put on notice before 

they depart horne station about the handling ofpersonnel claims, should they need to file 

18 

one. 

Depending on the anticipated deployment length, Soldiers may have to place 

personal property in some type of long-term storage. The USARCS has reported the two 

most common personnel claims during OEF and OIF involve damage to personal 

vehicles and personal gear stolen or removed without accountability from barracks 

rooms. Judge Advocates can assist commanders by calling their attention to this problem 

and offering recommendations for preventative measures. 19 

161d. at 188-89.
 

17 See AR 27-20, supra note 11, para. II-II.d. ("The type of property claimed and the amount or quantity
 

claimed was reasonable or useful under the attendant circumstances for the claimant to have used or
 

possessed incident to military service or employment.").
 

18 BALKANS LL, supra note 4, at 162; OEF/OIF LL, Vol. I, supra note 3, at 190 n.89.
 

19 See OEF/OIF LL, Vol. I, supra note 3, at 191 nn.90-91.
 

243 
IKB. FOREIGN CLAIMS ACT (FCA) 

Judge Advocates have developed various techniques to assist HN personnel with 

filing foreign claims. Distributing claims forms printed in the HN language is a proven 

and successful technique for promoting claims intake. In Haiti, military drivers had 

preprinted forms for giving to claimants in the event of a traffic accident. Providing 

Soldiers with such documents helps facilitate the accurate recording of events 

surrounding a potential claims incident.20 Likewise, these forms can include important 

details about the foreign claims process and can demonstrate the command's willingness 

to address legitimate grievances. 

In the context of a counterinsurgency, the way in which U.S. forces deal with 

claims (and the incidents giving rise to them) takes on critical importance. The 101st 

claims office after action report (AAR) stressed that all personnel who deal with 

claimants should be aware that a claims interview may constitute a claimant's first real 

interaction with U.S. forces. In particular, claims personnel should realize claimants' 

experiences with them may have a lasting impact on their attitude toward U.S. forces. As 

a result, treating claimants (and their attorneys, where applicable) with respect is key to 

promoting a positive perception ofU.S. forces. Consequently, where claims denial was 

appropriate, claims personnel carefully explained the rationale for their decisions.21 

IV.B.I. Language & Culture Issues 

Conducting successful claims operations requires communicating with HN 

claimants in their language. 22 Since most claims offices do not have military linguists on 

staff, they will have to acquire language services either before or during a deployment. 

During Operation UPHOLD DEMOCRACY, JAs employed Haitian translators 

conversant in French and Creole to assist claimants with understanding the meaning of 

the various claims forms. 23 Where possible, it is helpful to obtain the services of an 

interpreter dedicated to claims operations, so that he or she becomes familiar with the 

terms used and the claims process itself. However, it is also helpful for claims personnel 

to learn a few words of the local language - for example, by working with the interpreter 

20 See HAITI LL, supra note 6, 151. 

21 WIst ABN DIV 2007 OIF AAR, supra note 2, at 45-46. In contrast, another JA suggested providing no 

explanation, as doing so often served as an invitation to argue. Task Force 3d Battalion, 6th Marines, 

Battalion Judge Advocate, After Action Report, Operation IRAQI FREEDOM, January 2007 - August 

2007 10-11 (9 Oct. 2007) [hereinafter TF 3/6 JA 2007 OIF AAR]. 

22 See e.g., See CENTER FOR LAW & MILITARY OPERATrONS, LAW AND MILITARY OPERATrONS IN Kosovo, 

1999-2001: LESSONS LEARNED FOR JUDGE ADVOCATES 69 (15 December 2001) [hereinafter Kosovo LL]; 

HAITI LL, supra note 6, at 148; OEF/OIF LL, Vol. I, supra note 3, at 186; OEF/OIF LL, Vol. II, supra note 

10, at 190. 

23 HAITI LL, supra note 6, at 148. 

244 
on a daily basis - as the ability to say a few words is an important method of winning 

confidence of claimants. 24 

Claims personnel should also make an effort to learn about local cultural views 

and practices that may affect claims adjudication, and interpreters may be very useful in 

this regard. After consulting with its interpreter, the 10th Mountain Division (Light 

Infantry) (10th MTN DIV) claims office amended its claims policy to recognize the 

increased status ofwomen. It also made the statement, as well as the method of payment, 

used in compensation for deaths and injury more culturally sensitive. 

Other cultural tips obtained by claims personnel suggested male claims personnel 

should not necessarily shake hands with female claimants, and that it is inappropriate to 

offer gelatin-based candy, which contains trace amounts ofpork, to adherents ofIslam. 25 

Furthermore, claims personnel operating in Afghanistan should be aware members ofthe 

Kochai tribe rarely exaggerate claims, and that a failure to understand and consider an 

elder's statement is considered insulting. Furthermore, as the Kochai must normally walk 

to the claims office, it is preferable not to make them return on multiple occasions. 

Finally, lAs in Afghanistan had initially suggested the owners of animals killed by U.S. 

forces eat the meat in order to mitigate the loss, but claims personnel should be aware this 

might not be possible because local tradition and Islamic law might restrict acceptable 

ways to slaughter and prepare animals.26 

In Kosovo, interpreters helped identify individuals who wanted to abuse or 

defraud claims personnel. 27 During OIF, one claims office hired a local mechanic to 

verify the authenticity of auto damage claims.28 Thus, the use of HN personnel promotes 

claimant access to the claims system and also can assist claims personnel with 

understanding local law and customs. Civil affairs (CA) or provincial reconstruction 

team (PRT) personnel may also be useful in this regard, as they usually understand local 

customs and possess some knowledge of local leaders. 

Iv'B.2. Providing Access to Claims Services 

Because they work closely with HN personnel, CA personnel may also be able to 

help with promoting claimant access to the foreign claims system. In Bosnia, CA 

personnel assisted with claims intake and facilitating claims investigations.29 During 

24 10th Mountain Division (Light Infantry), Office of the Staff Judge Advocate, After Action Report, 

Operation ENDURING FREEDOM, February 2006 - February 2007 21 (2007) [hereinafter 10th MIN 

DIV 2007 OEF AAR]. 

25 101st ABN DIV 2007 OIF AAR, supra note 2, at 46. 

26 10th MIN DIV 2007 OEF AAR, supra note 24, at 19-20. 

27 See generally Kosovo LL, supra note 22, at 69; OEF/OIF LL, Vol. II, supra note 10, at 19l. 

28 OEF/OIF LL, Vol. II, supra note 10, at 192 (indicating that use of an independent mechanic's estimate of 

auto damage claims saved the claims office more than $40,000). 

29 BALKANS LL, supra note 4, at 158 (commenting that CA personnel assisted with manning a claims office 

in Brcko at least one day per week). 

245 
OEF, CA personnel arranged convoy security and located interpreters to conduct claims 

operations. 3o In Iraq, lAs also worked with public affairs officers to publicize claimsrelated information using local radio, print and television media. 31 

In many cases, units provide claims services at a civil-military operations center
 

(CMOC). The 25th Infantry Division (25ID) claims office recommended the CMOC
 

days and hours of operation be set in response to the number of claims being received,
 

and that the claims paralegal NCO be responsible for manning it. The claims office
 

coordinated with supporting brigade combat teams (BCTs) or unit level assets to ensure
 

guards were present during CMOC operations. 32
 

The 101 st claims office organized its claims operations so that paydays for FCA 

funds occurred every Tuesday, with claimants notified one week in advance. Claims 

personnel procured funds from the finance office on the day before payment was due, and 

safeguarded them in the office strong box. When claimants arrived, they signed the 

required paperwork. Local attorneys could file claims at the CMOC two days per week, 

but the 101 st claims office recommended reserving a least one day per week for 

unrepresented claimants. 33 Some claims offices have pointed out that having telephone, 

SIPRNetINIPRNet, and photocopier access at the CMOC is very helpfu1. 34 

Some claims personnel paid claims from locations other than a CMOC. A Marine 

lA reported he used joint security stations (police stations shared by U.S. and Iraqi 

forces) as well as the Fallujah Development Center, so claimants would not need to travel 

35

across town. 

Claims personnel will sometimes have to travel outside of the defensive perimeter 

of a forward operating base to investigate and pay foreign claims. 36 When this occurs, 

30 See OEF/OIF LL, Vol. I, supra note 3, at 77 (noting that commanders combined CA, information 

operations, and claims activities for logistic and security reasons). 

31 See OEF/OIF LL, Vol. II, supra note 10, at 193 (indicating that claims personnel developed an 

information operations campaign to publicize claims-related information throughout local communities). 

32 25th Infantry Division, Office of the Staff Judge Advocate (Claims Division), After Action Report, 

Operation IRAQI FREEDOM, September 2006 - October 2007 2 (2007) [hereinafter 25ID 2007 OIF AAR 

(Claims Division)]. The claims office also suggested drafting a CMOC security SOP and that claims 

personnel ensure guards read and understood it. !d. 

33 101 st ABN DIV 2007 OIF AAR, supra note 2, at 52. Claims personnel later found out that the finance 

officer required only a single SF1034, public voucher for purchase and service, to draw a lump sum for 

payday, which avoided having to submit an SF 1034 for each claim. Id. at 45. 

34 25ID 2007 OIF AAR (Claims Division), supra note 32, at 8-9; WIst ABN DIV 2007 OIF AAR, supra 

note 2, at 53. The 10th MTN DIV claims office found it nearly impossible to adjudicate foreign claims 

without a cell phone. 10th MTN DIV 2007 OEF AAR, supra note 24, at 24. 

35 TF 2/6 JA 2007 OIF AAR, supra note 2, at 2. 

36 For example, a Marine JA found that prospective claimants might be unwilling to approach the CMOC 

after an incident. In one such case, the FCC worked with the battalion JA to determine the identity of 

possible claimants, obtained a pay agent from disbursing, and travelled with a patrol to the area where they 

lived. They found and paid three claimants and told them to pass word to other claimants to come to the 

246 
force protection concerns, limited vehicle assets, and a geographically dispersed 

population will require claims personnel to carefully plan the security and logistic aspects 

of delivering claims services.37 Judge Advocates largely rely on the combat units with 

which they serve to provide them with transportation support.38 In Kosovo, JAs enlisted 

military police support to obtain both convoy security and transportation to conduct 

claims operations.39 In Afghanistan, JAs were able to coordinate and combine claims 

missions with CA and psychological operations (PSYOP) missions.4o It is, therefore, 

helpful to establish solid working relationships with commanders and staff sections that 

control transportation assets.41 

Where the security situation permits, claims personnel may provide mobile claims 

services. In Bosnia, Task Force Eagle JAs delivered claims services to a largely rural and 

scattered population by conducting operations out of a military tactical vehicle. These 

"claims convoys," as they were known, would make scheduled stops along a 

predetermined route, where claimants could meet and file foreign claims. The claims 

convoy included, "a Class A agent, a translator, and support personnel traveling together 

to intake, investigate, and pay claims.,,42 

IV.B.3. Adjudicating Claims 

Some claims office AARs report that claimants often arrive without statements, 

photographs of the damage, or repair estimates. In contrast, the 101 st claims office found 

that Iraqi claimants typically brought in several documents, including witness statements, 

legal expert opinions, police reports, photographs, and statements from an Iraqi 

CMOC. The JA suggested FCCs should seek out claimants when there are legitimate claims needing 

adjudication. However, caution is necessary, as some claimants don't want U.S. forces coming to their 

homes for fear of insurgent intimidation. As a result, contact beforehand to arrange for a place to meet if 

both the home and the CMOC are unacceptable is sometimes necessary. Regimental Combat Team 7, 

Regimental Judge Advocate, After Action Report, Operation IRAQI FREEDOM, July 2006 - January 2007 

(2 Apr. 2007). Another Marine JA provided a similar recommendation, suggesting it is helpful to show up 

a few days after an incident with a payment for the individual, rather than waiting for someone to appear 

with the claim. TF 3/6 JA 2007 OIF AAR, supra note 21, at 10-11. 

37 See e.g., Kosovo LL, supra note 22, at 67 n.119 (a JA's account of how a claimant demanding 

compensation threatened her with physical harm). 

38 See OEF/OIF LL, Vol. I, supra note 3, at 188 n.75 (citing U.S. DEP'T OF ARMY, FIELD MANUAL 27-100, 

LEGAL SUPPORT TO OPERATIONS para. 4.4.2 (l Mar. 2000) as providing the doctrinal basis for legal 

personnel to rely on the unit to which they are attached for transportation support). 

39 Kosovo LL, supra note 22, at 67. 

40 See OEF/OIF LL, Vol. I, supra note 3, at 188. A Marine JA reported that he travelled with CA 

personnel. They made contracts and condolence payments at the same time, so that one disbursing agent 

could serve both purposes. The JA suggested that designation of a PPO and pay agent at the company level 

allows smaller claims to be paid very quickly. TF 3/6 JA 2007 OIF AAR, supra note 21, at 2-3. 

41 See generally OEF/OIF LL, Vol. II, supra note 10, at 190 (citing a JA's observation that tactical 

commanders supported claims personnel and welcomed the distribution of claims payments to the local 

populace). 

42 See BALKANS LL, supra note 4, at 157-58. 

247 
investigative court indicating review of the claimant's case. However, the claims office 

concluded these items warranted little weight unless the claimant also provided a U.S. 

claims card.43 Several units instituted the use of such cards, providing a claimant with 

information in the HN language about how to put forward a claim. When properly used 

by Soldiers, they provided good evidence that U.S. forces were involved in the alleged 

incident, the first step in a successful claim. 44 

However, implementing a system of claims cards requires a comprehensive 

educational program to ensure that Soldiers understand their purpose and use them 

appropriately. The 10lst claims office calculated fewer than five percent of claimants 

presented claims cards or slips ofpaper with a Soldier's name. The office suspected this 

was because Soldiers feared liability if they left claims cards or any other evidence of 

involvement in an incident. As a result, IOlst claims personnel suggested brigade legal 

teams should work with commanders and Soldiers to explain the rationale behind claims 

cards and ensure wide distribution to ,g0tential claimants as a useful mechanism for 

confirming that an incident occurred. 5 

The 10lst claims office also found it helpful to consult SIGACTs, intelligence
 

summaries, and detention facility records to corroborate a claimant's account or
 

determine whether a claimant was credible. As a result, it suggested claims personnel
 

develop and sustain relationships with unit commanders and division and brigade
 

intelligence assets.46
 

Whether or not a claimant produced a claims card, claims personnel usually
 

interviewed him or her to obtain as much information as possible about relevant
 

43 10lst ABN DIV 2007 OIF AAR, supra note 2, at 46-47. 

44 Id. at 50. 

45 Id. Claims cards may confuse, rather than clarify, when Soldiers who do not understand their purpose 

simply hand them out to placate HN personnel who allege an incident occurred. In such cases, the cards 

lose their value as evidence and create an expectation of assured payment. TF 2/6 JA 2007 OIF AAR, 

supra note 2. The 25ID claims office suggested commanders require Soldiers to report accidents with HN 

personnel to claims personnel. 25ID 2007 OIF AAR (Claims Division), supra note 32, at 6. While use of 

claims cards may assist with vehicle accidents, several other types of claims are more difficult. The 101 st 

ABN DIV claims office noted some claimants described wrongful acts allegedly committed by US 

servicemembers (e.g., theft of money and jewelry during search, theft of cell phone, drive by shooting of 

livestock, etc.). These allegations were almost impossible to prove, as Soldiers would deny any 

involvement. Other claims arose in relation to personal property confiscated during an individual's 

detention. While the brigade-level detention facility would itemize any property received, the capturing 

unit would rarely do so. As a result, the claims office recommended training capturing units to itemize and 

tum over all confiscated property to detention facility personnel. 10lst ABN DIV 2007 OIF AAR, supra 

note 2, at 51,56. 

46 !d. at 47-48. However, a Marine JA suggested discouraging the battalion staff from accepting claims 

documents directly from Iraqis. He instead recommended requiring all claimants to go through the normal 

claims procedures. Otherwise, he felt U.S. forces risked creating a perception that access to a high-ranking 

officer would speed up or increase the likelihood of claims payment. The JA had observed that Iraqis 

already believed that those with power live under different rules, and suggested that U.S. forces should not 

reinforce this belief. TF 2/6 JA 2007 OIF AAR, supra note 2. 

248 
circumstances, clear up any inconsistencies, and assess credibility.47 Claims personnel 

then took down the details of the incident on an intake form. The interpreter or translator 

wrote a summary of any document contents in the margins or on attached pages, and 

stapled the documents themselves to the claims folder to prevent them from falling out or 

mixing in with other claims. The 10 Ist claims office recommended asking claimants to 

show original documents (e.g., death certificates, identification card, vehicle ownership 

card, etc.), as well as provide photographs of any damage sustained.48 The claims office 

retained the original claims card, as well as any other documents that the claimant did not 

require. Where they had to return the original document to the claimant (e.g., 

identification card), they made a photocopy and annotated it with the words "original 

seen.,,49 

Claims offices used several methods for obtaining an assessment ofthe value of 

the damaged property. Some claimants provided "legal expert opinions" in support of 

their claims, but the 25ID claims office found such opinions usually inflated and they did 

not factor in the purchase price. As a result, that claims office requested claimants 

provide purchase contracts and receipts. It also consulted with other claims offices, 

Multi-National Corps - Iraq (MNC-I), and CA and PRT representatives, as the latter had 

cultural advisors who could obtain information from reliable HN personne1.50 

Once there was the assertion of a claim, JAs faced the challenge of applying HN 

liability standards to determine whether payment was appropriate and in what amount. 

Judge Advocates may wish to seek HN interpreters or attorneys to assist with this. In 

Haiti, locally hired interpreters acquired information about Haitian law. 51 During OIF, 

one unit hired local lawyers to help in determining local law. However, one Staff Judge 

Advocate (SJA) who hired Iraqi attorneys to assist in processing foreign claims cautions 

that such individuals require careful oversight.52 

In some cases, determining or applying HN law raises considerable difficulties. 

During the early stages ofOEF, one JA noted that Islamic religious (Sharia) law was the 

only law widely applied throughout Afghanistan. Since the JA was unfamiliar with how 

47 See, e.g., 25ID 2007 OIF AAR (Claims Division), supra note 32, at 4-5; TF 3/6 JA 2007 OIF AAR, 

supra note 21, at 10-11. 

48 WIst ABN DlV 2007 OIF AAR, supra note 2, at 49. In Afghanistan, a claims office decided to assist 

claimants in providing photos by locating a local photographer near the camp gate. The claim adjudication 

could factor in the cost of obtaining the photos. 10th MTN DIV 2007 OEF AAR, supra note 24, at 22-23. 

Where the claimant brings the vehicle to the gate, claims personnel may be able to photograph it 

themselves. 

49 25ID 2007 OIF AAR (Claims Division), supra note 32, at 3-4. 

50 Id. 

51 See HAITI LL, supra note 6, at 148. See also OEF/OIF LL, Vol. I, supra note 3, at 187 (observing that 

one unit claims officer was able to accurately ascertain the value of a donkey only after consulting with an 

interpreter). 

52 See OEF/OIF LL, Vol. II, supra note 10, at 191 (noting that local attorneys provided inconsistent legal 

advice and allowed personal bias to affect recommended judgments). 

249 
to apply Sharia principles to pay for a donkey's death, he relied upon more familiar 

general tort principles to analyze the claim.53 For JAs supporting operations in Kosovo, 

verifying property ownership in Albania also proved to be difficult. 54 In Bosnia, 

bypassing HN law was necessary to hold contractors liable for accidents caused while 

operating military vehicles. 55 

A final procedural step is necessary to close abandoned claims. The 101 st claims 

office, noting that AR 27_2056 requires claimants receive notification before closure of 

their claims, implemented a mechanism for doing so. The claims office required each 

brigade to post the names of inactive claimants inside its CMOC and the closest joint 

coordination center. For new claims, a waiver of notification document was part of each 

intake folder, notifying claimants they had sixty days to submit all required 

documentation to the CMOC and return for notification. If they failed to do so, the office 

would administratively close the claim. Claimants signed the waiver to acknowledge 

notification ofthe closure period. MNC-I later adopted this measure, and USARCS 

indicated it intended to issue policy guidance to implement it theater-wide. 57 

IV.BA. Detecting Fraudulent Claims 

Claims personnel operating in a deployed environment should remain vigilant for 

fraudulent and exaggerated claims. In Haiti, JAs realized the best approach to combating 

fraudulent claims was essentially a preventive one. By requiring the submission of 

authentic records, detailed documentation, pictures, and other "hard" evidence to 

substantiate filed claims, they were able to implement a rigorous, but fair, claims 

system. 58 

In Iraq, there have been numerous claims for accidents between civilian and 

military vehicles. 59 To discourage multiple claimants from seeking compensation arising 

from a single accident, one claims office implemented a policy that only the registered 

vehicle owner, and not the driver, could properly bring a claim against U. S. forces. After 

proving ownership of the vehicle, claimants also had to produce pictures ofthe alleged 

vehicle damage and a picture of the front license plate. Judge Advocates can also avoid 

53 See OEF/OIF LL, Vol. I, supra note 3, at 187 n.69. 

54 See Kosovo LL, supra note 22, at 68. 

55 See BALKANS LL, supra note 4, at 156 (observing that claims personnel had to rely on general tort 

liability principles to bypass host nation law so that tort liability could rest with the contractor drivers and 

not the vehicle owners - the U.S. military). 

56 AR 27-20, supra note 11. 

57 101st ABN DIV 2007 OIF AAR, supra note 2, at 50-51. 

58 HAITI LL, supra note 6, at 151. 

59 OEF/OIF LL, Vol. II, supra note la, at 188-89. 

250 
paying out duplicate claims by reviewing the USARCS foreign claims database.6o 

During the early stages ofOIF, however, access to the USARCS foreign claims database 

was not always readily available to claims personne1.61 In addition, claims payment may 

occur under the FCA or via other means. As a result, JAs should be prepared to develop 

and use a foreign claims log or database to track paid claims, and then coordinate the 

sharing of such logs and databases with other deployed claims offices to reduce the 

opportunity for claimants to file multiple claims.62 

For example, the 101st claims office created an Excel spreadsheet database to 

monitor claim status and prevent payment of duplicate claims (at the very least, division 

claims offices needed to check with brigade- and battalion-level units in their AO to 

confirm they had not already paid a claim with CERP funds before paying out under 

either the FCA or CERP).63 Some claims personnel observed it was difficult to verify 

whether someone had already dealt with a claim based on the claimant's name alone, as 

the same name might have many different spellings. However, the 4ID claims office 

found it was also possible to track claimants based on national ID card number. 64 As 

well, the 101 st claims office suggested units should adopt a policy of accepting FCA 

claims only in the province or battlespace in which the claim occurred.65 

The V Corps claims office identified three types of problem claims: duplicate 

(genuine claim submitted to multiple claims offices); fraudulent (incident never 

occurred); and bolstered (genuine claim but claimant added fraudulent evidence to the 

file to increase its credibility or the amount claimed). It suggested reducing the incidence 

offraud by an awareness ofpossible techniques, close observation of claimants and Iraqi 

claims intake personnel, proper utilization of the interpreter, and frequent communication 

with other claims offices.66 

The 101 st claims office took several measures to combat fraud with respect to 

vehicle accidents, the area in which that office most often encountered fraud during its 

operations in Iraq. Claims personnel required claimants to show their original vehicle 

ownership card (equivalent to U.S. vehicle title registration). However, since forged 

copies of such documents were available, a claimant whose name did not appear on the 

card, or whose card appeared too new, also to produce an original sales contract. 

Claimants also had to provide a photograph of the vehicle's chassis plate in order to 

60 Those JAs appointed as FCCs can obtain access to the database by requesting pennission through 

USARCS, Tort Claims Division, Foreign Torts Branch, Fort Meade, Maryland 20755-5360 (Comm 301­

677-7009/DSN 923-7009) and for further infonnation and guidance. 

61 See OPLAW HANDBOOK 2008, supra note 7, at 372 (example of foreign claims log). 

62 See OEF/OIF LL, Vo!. II, supra note 10, at 188-93. 

63 101 st ABN DIV 2007 OIF AAR, supra note 2, at 49-50. 

64 410 2007 OIF AAR, supra note 14, at 24. 

65 101st ABN DIV 2007 OIF AAR, supra note 2, 49-50. 

66 V Corps, Office of the Staff Judge Advocate, Operation IRAQI FREEDOM (OIF) After Action Report 

(AAR), 17 January 2006 - 14 December 2006 10-11 (2006) [hereinafter V Corps 2006 OIF AAR]. 

251 
verify that the plate number matched the number on the ownership card. The claims 

office also used a paint scratch website to verify the car color matched the paint code on 

the chassis plate.67 

The claims office also retained copies of photos provided by claimants to show 

vehicle damage, having discovered that claimants sometimes used the same photos in 

support of new claims. It was also necessary to be the alert for alteration of digital photos 

(e.g., cutting and pasting the number from the claimant's chassis plate to match the plate 

of the damaged vehicle). The claims office found that the quality of such alterations 

ranged from amateurish to professional. It recommended training claims office personnel 

in spotting digitally-altered photographs and fake ownership documents, and constantly 

seeking ways to distinguish fraudulent from genuine claims.68 

Iv'B.5. Combat Exclusion 

One of the most challenging aspects of claims operations is addressing the issues 

caused by the FCA combat activities exception to paying foreign claims.69 As at least 

one JA has noted, "there is a gray area between combat and combat-related activity.,,7o 

In Bosnia, where U.S. forces participated in a peace enforcement operation,71 

commanders struggled to resolve the tension between paying foreign claims arising from 

combat-like activities and command policy dictating non-payment of such claims. 72 

The debate has continued during operations in both Afghanistan and Iraq.73 In 

Iraq, before 1 May 2003, the policy was to consider all foreign claims as excludable 

combat claims unless proven otherwise.74 As the extent of combat operations in Iraq and 

Afghanistan has decreased, the number offoreign claims adjudicated by claims personnel 

has significantly increased. However, JAs cannot rely on operational descriptions such as 

"full spectrum" or "stability" operations to determine whether the combat activities 

exclusion applies in a given circumstance. The reality of these operations is that Soldiers 

are still conducting combat activities and claims personnel will have to decide each claim 

on its own merits.75 

67 101st ABN DIV 2007 OIF AAR, supra note 2, at 49. 

681d. 

69 See generally 10 U.S.C. § 2734 (the FCA provides for the settlement and payment of claims caused by or 

incident to non-combat activities). 

70 BALKANS LL, supra note 4, at 159 n.425. 

711d. at 41 n.102 (UNSCR 1031 gave NATO a peace enforcement mandate under Chapter VII ofthe UN
 

Charter).
 

72 See generally id. at 159-60.
 

73 See generally OEF/OIF LL, Vol. I, supra note 3, at 179.
 

741d. at 180 n.26 (citing the CJTF-7 Claims SOP for Iraq). 

75 See generally OEF/OIF LL, Vol. II, supra note 10, at 197 (noting that the FCA combat activities 

exception is still applied in Iraq to exclude shooting incidents at traffic control points and when 

servicemembers justifiably return fire in other self-defense situations). But see 101 st ABN DIV 2007 OIF 

252 
When claims are not payable for reasons of law or policy, commanders have 

developed various means to compensate HN personnel as a show of goodwill. In 

Kosovo, Soldiers routinely performed minor repairs to roads and bridges damaged by the 

heavy vehicles operated by U.S. forces (a.k.a., "maneuver damage,,).76 In Iraq, an SJA 

was able to recast creatively an otherwise excludable combat claim for the consumption 

of a large volume of soda by thirsty Soldiers as a contract issue. In that instance, the SJA 

was able to obtain contract ratification from a contract officer and thereby resolved the 

dispute, allowing his commander and the Iraqi businessman to maintain positive 

relations. 77 

In both Iraq and Afghanistan, units have used humanitarian assistance and 

humanitarian and civic assistance funds to assist villages and neighborhoods where one 

or more combat-excluded claims have arisen.78 While use of such funds to make a 

payment directly to an aggrieved person or family is improper, their use to build schools 

or hospitals, or otherwise provide humanitarian assistance in the area where the incident 

occurred is not. In OEF, this type of payment built a school in memory of several 

children killed by Afghan forces who were training with U.S. forces. 79 Thus, 

commanders can acknowledge the impact an action may have on a particular community 

without necessarily treating the underlying incident as a claim against U.S. forces. 

For units in Iraq and Afghanistan, Commander's Emergency Response Program 

(CERP) funds have provided an alternate funding source to deal with certain types of 

claims.8o These funds have allowed commanders to pay claims that are not compensable 

under the FCA (e.g., because payment is barred under the combat exclusion) and do not 

AAR, supra note 2, at 55-56 (indicating that units within the division AO applied different interpretations, 

ranging from considering all acts, including wrongful acts, committed during combat operations as noncompensable, to considering whether the damage arose from an act committed inside or outside the scope 

of combat). As a result of these inconsistencies, the 101 st ABN DIV claims office suggested it would be 

helpful to have more guidance on this issue when U.S. forces conduct stability operations, and that claims 

personnel should receive training to ensure a degree of consistency across an AO. Id. The 25ID claims 

office echoed these recommendations. 25ID 2007 OIF AAR (Claims Division), supra note 32, at 11. The 

contrary view is that the absence of specific guidance provides commanders and JAs with increased 

flexibility. 

76 See e.g., Kosovo LL, supra note 22, at 163 (if a tracked vehicle knocked down a wall, then combat 

engineers might be dispatched to make repairs to it); see also BALKANS LL, supra note 4, at 160 

(describing how spot repairs were made on a roadway damaged by U.S. military equipment). 

77 OEF/OIF LL, Vol. I, supra note 3, at 181-82 (describing how a soda factory owner demanded 

compensation when servicemembers consumed large amounts of soda while occupying the factory as a 

temporary headquarters). 

78 See id. (noting that JAs tried to coordinate the delivery of humanitarian assistance through CA channels 

when they could not pay claims due to combat-related activity). 

79 I d. at 182 nAl. 

80 Id. at 185; see also HEADQUARTERS, MULTI-NATIONAL CORPS - IRAQ, CJ8 STANDARD OPERATING 

PROCEDURE, MONEY AS AWEAPON SYSTEM (MAAWS) 10-12, app. B (15 May 2008) [hereinafter MNC-I 

MAAWS]. 

253 
qualify for solatia).81 Judge Advocates, therefore, play an instrumental role in advising 

commanders when CERP fund use is appropriate to pay claims that would otherwise be 

improper under the FCA. 82 

In addition to its use for condolence payments and to compensate for property 

damage, CERP funds have reimbursed homeowners whose homes were temporarily 

occupied by US forces. However, because CERP is not appropriate where its payment 

provides direct benefit to U.S. forces, units characterized such payments as 

reimbursement for the damage caused to homes and yards. Judge Advocates working in 

the same AO may wish to develop common standards regarding appropriate payments in 

such circumstances.83 

Iv'B.6. Claims Resultingfrom the Actions ofOthers 

Claims personnel should be prepared to develop strategies for handling claims
 

arising from the actions of others participating in the same operation. During peace
 

enforcement operations in the Balkans, claims personnel received a flood of claims for
 

damages caused by non-U.S. military forces. 84 While NATO command policies
 

precluded the payment of claims, U.S. military commanders preferred to settle them in
 

order to maintain good relations with HN communities.85 In Iraq, one JA noted that
 

several Coalition partners lacked any process for addressing the negligent acts oftheir
 

own forces. As in the Balkans, U.S. commanders sought ways to settle claims resulting
 

from the actions of non-U.S. military personnel to promote goodwill between Coalition
 

forces and the Iraqi people.86
 

In contrast, JAs should not attempt to pay claims filed against the U.S. for damage 

caused by contractors because such claims are not payable under the Federal Torts 

Claims Act (FTCA).87 However, JAs may be able to coordinate claims processing 

procedures with the contractor. For example, an Afghanistan-based claims office 

sometimes received claims against KBR, a U.S. contractor. In such instances, the claims 

81 See Captain Karin Tackaberry, Judge Advocates Playa Major Role in Rebuilding Iraq: The Foreign 

Claims Act and Implementation ofthe Commander's Emergency Response Program, ARMY LAW., Feb. 

2004, at 42. Authority to use CERP funds in these circumstances extends to damage caused by U.S., 

Coalition, or supporting military forces. MNC-I MAAWS, supra note 80, at 10-12, app. B. A Marine JA 

invited the company commander to be present when making CERP payments for claims purposes, so that 

he would be the beneficiary of any resulting goodwill. TF 3/6 JA 2007 OIF AAR, supra note 21, at 2-3. 

82 See OEF/OIF LL, Vol. II, supra note 10, at 195-97. 

83 Task Force 2d Battalion, 7th Marines, Battalion Judge Advocate, After Action Report, Operation IRAQI 

FREEDOM, 27 January 2007 - 25 August 2007 (5 Mar. 2008). "Temporary" refers to use for less than 

thirty days. Signature of a lease is the normal disposition for use for more than thirty days. 

84 See BALKANS LL, supra note 4, at 156. 

85 Id. at 160. 

86 See OEF/OIF LL, Vol. II, supra note 10, at 194 n.65 (one JA concluded that the complete absence of any 

compensatory scheme on the part of non-U.S. military forces eroded good relations with the Iraqi people). 

87 AR 27-20, supra note 11, para. 2-40. 

254 
office would take down the claimant's details and description of the incident and then 

direct the claim to the KBR claims office for payment. Doing so made the process 

smoother and more efficient for claimants. In addition, claims office personnel 

persuaded KBR to require all KBR contractors traveling offbase to carry KBR claims 

cards similar to those used by U.S. forces. 88 

[See also CIVIL LAW (Fiscal Law) for additional information concerning CERP.] 

88 10th MTN DIV 2007 OEF AAR, supra note 24, at 20. 

255 
I~C. DEATH CLAIMS & SOLATIA PAYMENTS 

One of the most challenging aspects of deployed claims operations is handling 

compensatory claims or solatia payments to surviving family members for the 

unintentional deaths ofHN personnel.89 As a policy matter, claims personnel may make 

solatia payments only in those geographic regions where such payments are widely 

recognized as a customary cultural norm. 90 Neither solatia nor condolence payments are 

an admission of liability; instead, commanders use them as an expression of sympathy 

towards surviving family members. Both commanders and JAs have observed that 

condolence and solatia payments contribute to a unit's overall force protection and 

mission accomplishment by acknowledging unintentional injuries and deaths inflicted 

upon HN personnel. 91 

In Haiti, where civil code traditions form the basis ofthe law, JAs deployed in 

support of Operation UPHOLD DEMOCRACY discovered they did not have a body of 

local law upon which to discern compensatory amounts for the loss of a life. 92 Judge 

Advocates, therefore, had to develop their own system for making payments to surviving 

family members. Judge Advocates who find themselves in such situations should 

coordinate with USARCS in developing a compensation system for consistent application 

throughout the deployed AO. 

In Iraq and Afghanistan, claims funds were not available to compensate for 

accidental injury or death caused by U.S. forces until declaration of the end ofmajor 

combat operations. 93 However, once the prohibition lifted, claims personnel sought the 

assistance of local attorneys to determine the value of death or injury claims based on 

local law and customs. 94 A November 2004 DOD policy memorandum confirmed 

commanders in both countries could make solatia payments. 95 Solatia payments have 

continued in Afghanistan, but one JA noted that there has been considerable confusion 

89 See generally HAITI LL, supra note 6, at 149 n.514 (units make solatia payments to the surviving family 

members of an individual who has been killed, and represent an expression of sympathy without regard to 

liability or fault, in accordance with local law and custom). See also HEADQUARTERS, COMBINED FORCES 

COMMAND - AFGHANISTAN, FRAGMENTARY ORDER 224 para. 3.B.5.H.1. (26 Apr. 2006) (information on 

CERP condolence payments in Afghanistan). 

90 But see OEF/OIF LL, Vol. I, supra note 3, at 183-84. 

91 OEF/OIF LL, Vol. II, supra note 10, at 196. 

92 HAITI LL, supra note 6, at 149. 

93 See generally OEF/OIF LL, Vol. I, supra note 3, at 179 n.23 (citing a Combined Forces Land 

Component Command (CFLCC) information paper that declared all FCA claims arising within Iraq to be 

automatically classified and prohibited as combat activity claims). 

94 OEFIOIF LL, Vol. II, supra note 10, at 194. 

95 See Memorandum, Department of Defense, Office of General Counsel, to Staff Judge Advocate, U.S. 

Central Command, through Legal Counsel to the Chairman of the Joint Chiefs of Staff, subject: Solatia (24 

Nov. 2004); Captain Christopher M. Ford, The Practice o/Law at the Brigade Combat Team (BCT): 

Boneyards, Hitting/or the Cycle, and All Aspects 0/a Full Spectrum Practice, ARMY LAW., Dec. 2004, at 

35-36. 

256 
regarding the use of solatia, particularly at forward operating bases. He found that many, 

including solatia pay agents, did not understand how, when, where, and in what amounts 

solatia was appropriate. As a result, he produced a solatia briefing for distribution to 

claims officers and the 10th MTN DIV claims office began to track all solatia 

payments.96 

In Iraq, JAs have used CERP funds to make solatia-like payments for death and 

injury claims otherwise non-compensable under the FCA's combat exclusion (solatia 

payments there occur only in the death of a member of the "Sons of Iraq" (SOl), where 

the insurgent action caused the death or it occurred while carrying out SOl duties under a 

CERP contract).97 Before making a solatia or solatia-like payment using CERP funds, 

JAs can assist commanders by investigating the circumstances giving rise to the claim to 

ensure payment will not go to individuals who were conducting combat activities against 

U.S. forces, or to their families. 98 

Judge Advocates advising on condolence payments should also be aware of the 

basis for payment (i.e., expression ofregret rather than compensation for loss or injury),99 

the circumstances in which such payments can be made (e.g., death or injury caused by 

U.S. forces or where anti-Iraqi forces (AIF) were responsible for the death or injury of a 

HN individual who had been assisting U.S. forces), and the various authority levels 

involved (e.g., brigade commander had authority to approve CERP condolence payments 

of up to $2,500 while division commander could approve up to $10,000).100 

In Iraq, JAs have reported that the typical death or injury claim scenario arises 

from use of escalation of force (EOF) measures at a traffic control point. In such 

circumstances, some Iraqis, despite signs and warnings, fail to observe proper 

procedures, leading to engagement by U.S. forces. Collateral damage stemming from the 

use ofEOF procedures also kills or injures some civilians. One problem that arises in 

such cases occurs when Soldiers who observe the incident give a claims card to a 

surviving family member and promise compensation. The family member then files a 

claim that claims personnel usually deny under the FCA because it involves a death that 

96 10th MTN DIV 2007 OEF AAR, supra note 24, at 23. 

97 MNC-I MAAWS, supra note 80. 

98 OEF/OIF LL, Vol. II, supra note 10, at 198 (noting one JA's observation that, while the solatia-like 

payments were nominal in amount, they were nonetheless "received well by both the individual claimants 

and local leaders"). 

99 Personnel making the payment must stress this distinction as, in some cases, family members will view 

the amount provided as inadequate compensation for a death ("the Iraqi people have gotten frustrated with 

that amount for deaths, and that frustration is passed along to the JAs making condolence payments."). 

Regimental Combat Team 6, Regimental Judge Advocate, After Action Report, Operation IRAQI 

FREEDOM, January 2007 - July 20073 (undated) [hereinafter RCT-6 JA 2007 OIF AAR]. 

100 101st ABN DIV 2007 OIF AAR, supra note 2, at 57-58. The 101st claims office created an SOP for 

brigades to request an exemption from the normal $2,500 brigade approval limit on condolence payments 

resulting from death. Brigade legal personnel prepared the request, the brigade commander signed it, and 

then forwarded it to the division claims office for review and presentation to the division Chief of Staff. !d. 

257 
directly or indirectly relates to combat action. 101 However, a condolence payment might 

be appropriate, and recent AARs have highlighted the need to integrate the FCA and 

condolence payment processes. 

In some cases, CA personnel have responsibility for issuing CERP condolence 

payments - this was the experience of the 25ID claims office, among others. The claims 

office noted this caused certain difficulties because the FCC had trouble communicating 

with CA personnel. As a result, the 25ID AAR recommended brigade commanders 

require those to whom they have delegated CERP authority to contact the FCC before 

making payments (except for on-the-spot payments), as MNC-I guidelines require CERP 

payments first receive FCC consideration. 102 

Despite this problem, some JAs found the involvement of CA personnel to be 

very helpful. One brigade JA commented his unit used CA teams attached to battalions 

to make condolence payments following EOF/combat incidents, and this proved 

extremely effective at making amends with neighborhoods where there innocent civilian 

deaths or serious injuries. This allowed battalions that were often located hundreds of 

miles from the brigade commander and JAs to make quick and more personal payments. 

The CA team would travel with battalion personnel out to the family's home to make the 

payment face-to-face, often within twenty-four to thirty-six hours after the incident. The 

JA suggested adjudication by CA teams is appropriate in EOF cases or when there is 

battle damage verified by the unit. Such payments are generally the result of a proactive 

initiative on the part of the battalion, rather than a response to a filed claim. 103 

The 4ID claims office noted that, in its case, condolence payment initiation 

occurred through or by the 09. The office suggested that the FCCs could instead 

incorporate the issue into the foreign claim program, so that resort to 09 was no longer a 

requirement. This would mean the claims JA would review the incident, determine 

whether payment under the FCA was possible and, if not, make the payment under 

CERP. Ifthis were the process, each claims office would also require the appointment 

and training of condolence pay agents and PPOs. The 4ID claims office also reported 

that, even where an incident was properly payable under the FCA, the unit might 

nonetheless request the amount paid to the claimant be the amount available under CERP 

in order to avoid an appearance of inequity. 104 

Where a death or injury claim comes into the CMOC, a brigade JA suggested the 

PPO review the file with the legal representative (JA or paralegal), who ideally is 

collocated with the CMOC for claims adjudication. The brigade JA also recommended 

101 V Corps 2006 OIF AAR, supra note 66, at 9-10. 

102 25ID 2007 OIF AAR (Claims Division), supra note 32, at 9. 

103 l72d Stryker Brigade Combat Team, Brigade Judge Advocate, After Action Report, Operation IRAQI 

FREEDOM, August 2005 - December 200616-17 (undated). 

104 4ID 2007 OIF AAR, supra note 14, at 25-26. However, in extraordinary circumstances (e.g., violent 

crimes by U.S. servicemembers against HN personnel, the 4ID claims office paid (under the FCA) the full 

amount available. Id. 

258 
legal personnel carry out constant battle tracking. Then, if an incident occurs, they are 

able to communicate quickly with the brigade commander, brigade and battalion 

executive officers, and CA teams in order to assist with determining the payment amount 

and making payment. The JA noted the Army Regulation 15_6105 investigation's 

completion often occurs more than two weeks after the incident, which is too late to form 

the basis of a prompt payment. As well, battalion CA teams generally have a PPO at the 

rank of major who is capable of determining the proper amount based on brigade 

guidelines developed for EOF/battle incidents. Finally, the JA stressed the need for 

flexibility in dealing with very sensitive incidents. 106 

105 U.S. DEP'T OF ARMY, REG. 15-6, PROCEDURES FOR INVESTIGATING OFFICERS AND BOARDS OF OFFICERS 

(2 Oct. 2006). 

1061d. A Marine JA suggested that pre-deployment COIN training for staffs include instruction on the use 

of CERP to make condolence payments. His unit instituted a practice of having the PPO travel to the scene 

of an EOF incident in order to make the payment on the spot. RCT-6 JA 2007 OIF AAR, supra note 99, at 

3-5. 

259 
IV.D. CLAIMS ARISING FROM LAND USE 

Recent AARs indicate that Iraq-based claims personnel have had to deal with 

claims arising from the use and occupancy ofland for more than thirty days. The lOist 

claims office reported that, because such claims are not compensable under the FCA and 

there was no standard operating procedure (SOP) in place for paying via other means, 

some claims extended back to the 2003 invasion. Unfortunately, the unit occupying the 

land had often told the claimant to return later, then left without paying for the land use. 

In other cases, FCCs erroneously used FCA funds to pay for land claims. 107 

In order to resolve the issue, the lOist claims office took the following steps: 

Upon arriving in Theater, the Division Claims Office gathered information on the 

total amount ofland claims in the TF's [Task Force's] AO, coordinated with 

personnel from the Contingency Real Estate Team (CREST) in Baghdad and 

drafted an SOP for units in the TF Band of Brothers' AO to follow when 

resolving land claims. This SOP required the occupying BCTs to pay rent for 

current and past years using current and expired sources of [operations and 

maintenance] funding, respectively. Some BCTs were reluctant to follow the 

SOP because payment of land claims was extremely expensive and represented a 

significant portion ofthe BCT's operating budget for that fiscal year. One BCT 

later agreed to pay for the current year's use but refused to pay for the units who 

occupied the land prior to their arrival. Other units absolutely refused to pay for 

any land claims, including any current use, absent a FRAGO [fragmentary order] 

mandating payment of real estate claims. Close coordination by the Division 

Claims Office with the Division Comptroller resulted in a TF Band of Brothers' 

FRAGO mandating payment of land claims. This FRAGO essentially mirrored 

the MNC-I FRAGO that mandated payment ofland claims but included language 

that unequivocally made the occupying BCT responsible for payment. The 

FRAGO was issued, and BCTs submitted requests for funding through the 

Division Comptroller. 108 

The 101st claims office reported than an additional complication in resolving this 

issue was the lack of knowledge about the different types ofIraqi land ownership: 

The claims team received a large number of claims from Iraqis who claimed 

ownership based on several different Iraqi laws. Consultation with Iraqi 

attorneys cleared up the state ofIraqi property law. Claimants owning the land 

pursuant to Iraqi Law 117 did so in a manner analogous to a fee simple. 

Claimants occupying the land pursuant to Iraqi Law 35 merely rented the land 

from the government. Under this law, the claimant could apply for a grant of 

absolute ownership after a period of 10 to 12 years. A few claimants claimed 

ownership under Iraqi Law 364, which gave absolute ownership to members of 

the military upon completion of their military service. After consultation with 

CREST [now Gulf Region Division (GRD)], the decision was made by CREST 

107 WIst ABN DIV 2007 OIF AAR, supra note 2, at 59. 

108 !d. 

260 
that only claimants who owned the land under absolute title (fee simple) were 

proper claimants. A large number of claims were summarily denied because the 

claimant merely rented the land. 109 

The 101 st claims office recommended that other units publish a FRAGO upon 

arrival in theater requiring BCTs to pay for land claims, and that claims personnel be 

cognizant ofthe types of ownership interest under Iraqi law and adjudicate land claims 

accordingly.IIO The 25ID claims office subsequently reported a conference occurred in 

Baghdad, involving representatives from MNC-I, GRD, and various BCTs throughout 

Iraq. It led to a new MNC-I FRAGO, which 25ID followed with its own FRAGO. The 

25ID claims office suggested that units continue to pay land claims; cultivate carefully 

the relationship with GRD; and that incoming claims personnel receive a briefing on the 

status of land claims and the land claims process. III The 3ID claims office commented 

that division engineers were also key players in dealing with these issues, as claims 

paperwork went through the division engineers to C7, and then up to GRD. The 3ID 

claims office reiterated the requirement for coordination between incoming and outgoing 

units to determine the extent of outstanding land claims, and suggested that both the SJA 

and division engineers designate a representative to act as their real estate subject matter 

IIZ expert. 

109Id. 

110 Id. 

III 25ID 2007 OIF AAR (Claims Division), supra note 32, at 9-10. 

112 3d Infantry Division (Mechanized), Office ofthe StaffJudge Advocate, After Action Review, Operation 

IRAQI FREEDOM, March 2007 - June 2008 9 (2008). 

261 
I~E. MILITARY CLAIMS ACT (MCA) 

Judge Advocates have rarely reported dealing with claims under the Military 

Claims Act, but they sometimes arise in relation to lost baggage belonging to U.S. 

contractors or visiting morale, welfare, and recreation (MWR) personnel. The division 

claims office in theater adjudicated such claims, with funding added by USARCS to the 

requesting JA's FCC account. ll3 

113 101st ABN DIV 2007 OIF AAR, supra note 2, at 58. 

262 
IV.E PERSONNEL CLAIMS ACT (PCA) 

The number of personal items Soldiers acquire before and during a deployment is 

usually proportionate to the length of that deployment. Experience has demonstrated that 

Soldiers who have access to a Post Exchange (PX) or Base Exchange (BX) are likely to 

purchase high-value items like digital cameras or televisions. Problems can arise when 

commanders refuse to compensate Soldiers for the loss or damage of such property. If a 

commander does not establish a reasonable personal property list before deployment, 

subsequent decisions to compensate some personnel claims but not others may appear 

wholly arbitrary. 

To mitigate this problem, JAs should work with commanders to establish a predeployment list and/or information paper to provide guidance on the items accepted as 

reasonable when paying personnel claims. Soldiers who wish to bring items not 

considered reasonable under the peA should receive encouragement to ship them via the 

U.S. Postal Service with appropriate insurance. 1l4 The list, as well as an explanation of 

the personnel claims process, should appear in pre-deployment briefings, or in materials 

provided to commanders for distribution to Soldiers. Developing the ability to pay 

personnel claims before re-deployment significantly improves servicemember morale and 

enhances trust in the command. 115 

Once deployed, the 4ID claims office recommended that JAs who become aware 

of significant losses (e.g., tent fires) push claims packets containing DD 1842 and 

DD1844 forms, as well as instructions for filling them out, directly to commanders and 

Soldiers. This reduces the number of trips that Soldiers must make to their local legal 

offices to fill out claim forms, and ensures all units receive the same information. 116 

Many legal offices find it difficult to adjudicate personnel claims in theater, 

instead establishing a procedure whereby copies of all completed claims forms travel 

back to the rear detachment for processing. 117 The 101 st claims office developed a plan 

for processing personnel claims that called for each brigade legal office to take in the 

completed forms (DD1842 and DD1844) and forward them to the division claims office. 

Once there, they underwent review for completeness and then went to the rear 

detachment claims office for adjudication. The rear detachment claims office then sent a 

copy of their tracker to the division claims office on a weekly basis, so that Soldiers 

could track the status of their claims. lls 

114 I d. 

115 See BALKANS LL, supra note 4, at 161-62; OEF/OIF LL, Vol. I, supra note 3, at 198-99; OEF/OIF LL, 

Vol. II, supra note 10, at 189-90. 

116 4ID 2007 OIF AAR, supra note 14, at 24. 

117 10th MTN DIV 2007 OEF AAR, supra note 24, at 23. However, this is more difficult when Soldiers 

belong to units that are unfamiliar with handling claims arising from deployment. 

118 101st ABN DIV 2007 OIF AAR, supra note 2, at 56-57. 

263 
264
 
Ii:" LEGAL ASSISTANCE
 

Legal Assistance is the provision ofpersonal civil legal services to 

[military members], theirfamily members, and other eligible personnel.! 

Legal assistance is the commander's tool to help Soldiers and their families 

resolve their personal legal problems,2 and it is an especially important legal mission 

before and during a deployment. 3 When deployed Soldiers have their legal affairs in 

order, they are better able to focus on and accomplish their mission.4 Troublesome legal 

issues concerning child custody, divorce, civil lawsuits, debt collection, and other issues 

often have a negative impact on a servicemember's morale and performance of duty, 

regardless of rank. Personal legal issues left unresolved may not only reduce combat 

effectiveness, but may also grow into disciplinary issues requiring greater command 

attention. 5 When deployed, legal personnel should be prepared to handle many of the 

same legal assistance issues commonly seen in garrison. 6 

I U.S. DEP'T OF ARMY, FIELD MANUAL 27-100, LEGAL SUPPORT TO OPERATIONS para. 3-13 (1 Mar. 2000) 

[hereinafter FM 27-100]; U.S. DEP'T OF ARMY, REG. 27-3, THE ARMY LEGAL ASSISTANCE PROGRAM (21 

Feb. 1996) [hereinafter AR 27-3]. One JA commented that, "JAs should familiarize themselves with those 

groups of individuals entitled to legal assistance as well as the limitations placed thereon." E-mail from 

Captain Fredrick Horton, Jr., 4th Infantry Division, Office of the Staff Judge Advocate (13 May 2004). 

2 FM 27-100, supra note 1, para. 3-14. 

3 See INT'L & OPERATIONAL LAW DEP'T, THE JUDGE ADVOCATE GENERAL'S LEGAL CENTER & SCHOOL, 

U.S. ARMY, JA 422, OPERATIONAL LAWHANDBOOK 429 (2008) [hereinafter OPLAW HANDBOOK 2008] 

("From an operational standpoint, servicing Judge Advocates (JAs) must ensure that Soldiers' personal 

legal affairs are in order before deployment. Once deployed, JAs assist Soldiers in resolving their problems 

quickly and efficiently."). 

4 CENTER FOR LAW & MILITARY OPERATIONS, DEPLOYED MARINE AIR-GROUND TASK FORCE (MAGTF) 

JUDGE ADVOCATE HANDBOOK 164 (15 July 2002) [hereinafter MAGTF LL]; see also CENTER FOR LAW & 

MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS IN HAITI, 1994 -1995: LESSONS LEARNED FOR 

JUDGE ADVOCATES (11 Dec. 1995) [hereinafter HAITI LL]. 

5 OPLAW HANDBOOK 2008, supra note 3, at 429. 

6 See, e.g., Interview with Lieutenant Colonel Sharon E. Riley, Staff Judge Advocate, 1st Amiored 

Division, in Charlottesville, Va. (Oct. 10,2003) [hereinafter Riley Interview]. 

265 
KA. PREVENTIVE LAWPROGRAMS 

An aggressive preventive law program can significantly reduce the detrimental 

effects ofthe most common legal pitfalls deployed Soldiers frequently encounter. Army 

legal doctrine suggests time-tested methods such as soldier readiness program (SRP) 

processing, legal briefings, radio and television advertisements, bulletin-board postings, 

and newspaper articles.? Other methods to "get the word out" include community 

meetings and fairs, and family readiness group (FRG) briefings incorporating on-the-spot 

will counseling and power of attorney (POA) preparation and execution. 8 

The legal assistance office (LAO) at each base or station often has an existing 

preventive law program lAs can orient to the needs of deploying Soldiers. The LAO 

should also educate the military community on legal issues that may arise in connection 

with deployments (e.g., the court process involved in adoption cases requires a significant 

period of time, usually more than forty-five days, and once deployment looms closer than 

that, adoptions will not occur before a Soldier departs).9 Arrangements are often possible 

to allow offering the preventive law period of instruction at the LAO on a recurring basis. 

If this is not feasible, a legal assistance attorney should attempt to go directly to units 

during block training periods and schedule times when lAs and/or paralegals can conduct 

legal briefings. 

The most efficient method for reaching Soldiers and Marines is the "train the 

trainer" method. This method requires units to nominate a representative to receive a 

period of instruction and return to the unit to conduct further instruction. To lend 

credibility to the message, NCOs and/or company grade officers are preferred. Getting 

the command group behind a preventive law program is essential to the program's 

success. Finally, a preventive law program can also appear on a deploying unit's 

website. By coordinating with the communications officer (G-6 or S-6) and public affairs 

officer (PAO), lAs can easily establish an SlA section on the website where both 

Soldiers and their families can access preventive law information. 10 

V.A.l. Soldier Readiness Programs (SRPs) 

Placing Soldiers' legal affairs in order is one of many tasks units should 

accomplish before deploying. Recent operations have shown accomplishment of many 

legal assistance tasks is possible en masse as part of SRP. 11 Soldiers must receive a legal 

7 AR 27-3, supra note 1. 

8 lOlst Airborne Division (Air Assault), Office ofthe Staff Judge Advocate, Operation IRAQI FREEDOM 

05-07 After Action Report, November 2005 - November 2006) 62-64 (2006) [hereinafter lOlst ABN DIY 

2007 OIF AAR]. 

9 101 st ABN DIY 2007 OIF AAR, supra note 8, at 66. 

10 MAGTF LL, supra note 4, at 171. 

11 The term "SRP" is often used interchangeably with others, such as "EDRE" (emergency deployment 

readiness exercise), "SRC" (soldier readiness check), and "CRC" (contingency readiness check). These 

terms all refer to the same or similar method of processing large groups of personnel. For clarity, this 

266 
briefing concerning wills and POAs and have the opportunity to make or update them 

before deployment. 12 Legal assistance counseling must also be available. 13 

Legal processing as part of SRP causes tension between the need to advise large 

numbers of Soldiers and the duties of confidentialityI

4 and diligence. 15 lAs should 

consider drafting and distributing pre-deployment legal packets with information on 

wills, powers of attorney, and other relevant topics to company-size units. This allows 

Soldiers to arrive at the SRP with all the necessary documents and information for 

efficient processing. Pre-deployment legal packets also allow Soldiers and family 

members to talk and think about their legal needs. They can then prepare questions and 

gather the information necessary to designate beneficiaries and make other important 

designations. 16 

Before Operation IRAQI FREEDOM (OIF), the 3d Infantry Division 

(Mechanized) (3ID) LAO implemented a comprehensive and innovative legal assistance 

program. The 3ID LAO processed thousands of active and reserve component Soldiers 

for deployment,17 with 3ID lAs conducting SRP briefings for large groups of Soldiers on 

publication will use "SRP" throughout. FM 27-100, supra note 1, para. 3-14. See also U.S. DEP'T. OF 

ARMY, REG. 600-8-101, PERSONNEL PROCESSING (IN-, OUT-, SOLDIER READINESS, MOBILIZATION, AND 

DEPLOYMENT PROCESSING) paras. 4-1 to 4-6 (18 July 2003) [hereinafter AR 600-8-101] (describing SRP 

operations). 

12 AR 600-8-101, supra note 11, para. 4-6(b); U.S. DEP'T OF NAVY, OFFICE OF THE JUDGE ADVOCATE 

GENERAL, INSTR. 5801.2, NAVY-MARINE CORPS LEGAL ASSISTANCE PROGRAM para. 7-2b(1)(a) (26 Oct. 

2005) ("A legal assistance attorney will individually and privately interview each client who requests a will 

(it is recognized that in some emergency situations or under field conditions, 'individually and privately' 

may involve the attorney and client meeting at a table in a gymnasium or in a mess tent, for example, 

instead of a private office, however, in all circumstances there must be a one-on-one meeting between 

attorney and client)."). See generally U.S. DEP'T OF NAVY, OFFICE OF THE JUDGE ADVOCATE GENERAL 

INSTR. 5800.7E, MANUAL OF THE JUDGE ADVOCATE GENERAL ch. VII (20 June 2007) [hereinafter 

JAGMAN] (describing Navy/Marine Corps legal assistance program). 

13 See AR 600-8-101, supra note 11, para. 4-6. The regulation does not specifically state that Soldiers must 

be able to consult with an attorney on site. 

14 See U.S. DEP'T OF ARMY, REG. 27-26, RULES OF PROFESSIONAL CONDUCT FOR LAWYERS rule 1.6 (1 

May 1992) [hereinafter AR 27-26] (providing that an Army attorney owes a duty of confidentiality to his or 

her client); AR27-3, supra note 1, para. 4-8; U.S. DEP'T OF NAVY, OFFICE OF THE JUDGE ADVOCATE 

GENERAL, INSTR. 5803.1 C, PROFESSIONAL CONDUCT OF ATTORNEYS PRACTICING UNDER THE COGNIZANCE 

AND SUPERVISION OF THE JUDGE ADVOCATE GENERAL, rule 1.6 (9 Nov. 2004) [hereinafter JAG INSTR. 

5803.1C] (providing that Navy and Marine Corps attorneys owe a duty of confidentiality to their clients). 

The Army and Navy/Marine Corps confidentiality provisions are extremely similar. 

15 See AR 27-26, supra note 14, rule 1.3 ("A lawyer shall act with reasonable diligence and promptness in 

representing a client and in every case will consult with a client as soon as practicable and as often as 

necessary after undertaking representation."). See also id. rule 8.5(f) ("Every Army lawyer subject to these 

Rules is also subject to rules promulgated by his or her licensing authority or authorities."). 

16 See CENTER FOR LAW & MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS IN THE BALKANS, 

1995 - 1998: LESSONS LEARNED FOR JUDGE ADVOCATES 183,494 (13 Nov. 1998) [hereinafter BALKANS 

LL]. 

17 See Transcript of After Action Review Conference, Office of the Staff Judge Advocate, 3d Infantry 

Division, and Center for Law & Military Operations, at Fort Stewart, Ga. 117 (18-19 Nov. 2003) 

267 
basic legal assistance topics such as wills, pOAS,18 and the Servicemembers Civil Relief 

Act (SCRA).19 After receiving their initial legal briefing, personnel moved to the SRP 

legal station, where paralegals conducted an initial screening. Identification of Soldiers 

with no legal needs occurred quickly and they moved on to the next non-legal station, but 

others were able to execute POAs at a table near the front of the SRP line. Two lAs at 

computer workstations worked solely on will preparations. Modular dividers provided a 

private atmosphere for will consultation and execution. The primary purpose of SRP 

legal operations was to execute POAs - and wills as appropriate - but lAs also provided 

individual advice on minor legal matters (the limitations of the SRP setting prohibited 

legal counseling on anything more complicated). Clients with issues requiring more 

privacy, research, or time received regular office appointments with a legal assistance 

attorney?O 

The 101st Airborne Division (Air Assault) LAO, noting the requirement for legal 

assistance before deployment far outstripped its resources, suggested legal readiness (e.g., 

wills, POAs, estate and financial planning, etc.) should be an ongoing command mission. 

Requiring Soldiers to visit the LAO during in- or out-processing (upon arrival at or 

departure from) the installation would accomplish this. They would then receive 

screening to determine whether they would need a will or POA. The Soldier would leave 

with either an appointment for that purpose or a memo (to be placed in his or her records) 

stating screening was complete and he or she neither wanted nor needed those 

documents. 

In addition to this type of program, the 101 st LAO suggested battalion-sized units 

could set a day aside to send personnel to the LAO for wills and POAs, beginning 

approximately six months before deployment. Finally, it recommended brigade combat 

team (BCT) legal teams be fully engaged in the legal readiness preparation of their 

Soldiers. At a minimum, this would entail maintaining a detailed picture ofthe state of 

readiness in their units by tracking in-processing statistics, communicating with unit 

commanders, and proactively seeking assistance from the LAO, if required?I 

[hereinafter 3ID 2003 OIF AAR Conference Transcript]. The augmented 3ID LAO processed thousands of 

Soldiers and prepared more than 1,200 wills and 6,700 powers-of-attorney. Id. 

18 Legal personnel conducting briefings explained what wills and POAs are and when there may be a need 

for one, but also explained that Soldiers should not grant a general POA when a special POA would suffice. 

Judge Advocates also explained that Soldiers might not need a will if they are unmarried with no 

dependents and have few assets. See id. 

19 Servicemembers Civil Relief Act, 50 U.S.C. §§ 510-594 (2003) [hereinafter SCRA). The purpose ofthe 

SCRA is to postpone or suspend some ofthe civil obligations of military personnel to allow them to give 

full attention to their military duties. It was formerly titled the Soldiers' and Sailors' Civil Relief Act 

(SSCRA) of 1940. For a more detailed discussion of the SCRA, see John T. Meixell, Servicemembers Civil 

ReliefAct Replaces Soldiers' and Sailors' Civil ReliefAct, ARMY LAW., Dec. 2003, at 38. 

20 3ID 2003 OIF AAR Conference Transcript, supra note 17, at 118, 120. 

21 101st ABN DIV 2007 OIF AAR, supra note 8, at 65. 

268 
VA. 2. Debtor/Creditor Issues & Financial Management 

Preventive law briefings should orient toward the legal challenges typically 

experienced by deployed Soldiers. Debt collection, financial management, and consumer 

rights issues are some ofthe most common problems, but Soldiers should also be aware 

ofthe issues involved in making major purchases while deployed, including the purchase 

ofa home. 22 

A debt collector is a business or individual who is in the business of collecting 

debts. A creditor is the business or individual to whom the individual originally owed 

the debt. The distinctions between these two entities are important, since state and 

federal laws often focus on the status and relationship with the debtor. 23 For example, the 

Fair Debt Collection Practices Act24 prohibits a debt collector from contacting an 

unrelated third party concerning the debt (e.g., commanding officer or sergeant major), 

but laws pertaining to creditor contact with third parties may permit such contact. 

While most debt collection agencies are very reputable and follow the law to the 

letter, some regularly cross the line in their collection efforts. Judge Advocates dealing 

with such agencies should note they frequently become very receptive to alternative 

dispositions for a client's case when reminded of violations that may affect their ability to 

conduct business.25 

Financial management is truly the key for Soldiers to avoid many ofthe pitfalls of 

maintaining credit accounts and other financial obligations. Title 15, Chapter 41, 

addresses consumer credit protection and includes the Fair Credit Billing and the Truth in 

Lending ActS. 26 During deployments, many issues arise simply due to a Soldier's 

inability to pay debts consistently in a timely manner.

27 While concerned and 

knowledgeable NCOs at the unit level can most appropriately address this problem, 

preventive law programs and unit briefs should mention financial management. 

Furthermore, most major Army installations have regularly scheduled classes on the 

subject. Legal assistance offices may also offer similar classes. With the advent of 

online banking and bill payment services, Soldiers have few excuses when asserting an 

inability to make payments in a timely fashion. Using such services is simple, provided 

Soldiers are aware ofsuch options. 

22 Id. at 62. The lOlst ABN DIV LAO reported several Soldiers purchased houses while deployed without 

having viewed them. Id. 

23 MAGTF LL, supra note 4, at 178. 

24 Fair Debt Collection Practices Act, 15 U.S.C.S. § 1692 (2008). 

25 Id.; see also Major James S. Tripp, Army Regulation 600-15, Indebtedness ofMilitary Personnel: Time 

for an Update, ARMY LAW., Nov. 2005, at 1 (analyzing AR 600-15). 

26 See 15 U.S.c. §§ 1601-1644, 1661-1665 (2002). 

27 MAGTF LL, supra note 4, at 181. 

269 
Perhaps one ofthe bigger challenges faced by JAs and other family care services 

is not the Soldiers, but equipping military spouses with budgeting skills, debt 

restructuring information, and a clear understanding of the career and life consequences 

of failing to employ sound financial management strategies.zs During the deployment in 

Haiti, many families experienced financial strain because the civilian spouse suddenly 

inherited responsibility for balancing the checkbook while lacking the skills or maturity 

to make ends meet.29 

Consumer issues are numerous and run the gamut from product warranty 

problems to door-to-door sales transactions. Frauds involving Soldiers are abundant. 

Many fall into familiar categories, including magazine offers, vacuum cleaners, and 

encyclopedia sales. 

Additionally, some units reported dealing with significant debt-related legal 

problems upon reintegration. The most common issues related to accounts Soldiers were 

unaware had gone into collection, such as outstanding utility bills, as well as debt related 

to overspending during the deployment because of the extra money earned. Addressing 

these issues best occurs before deployment, with an ongoing issuing of fiscal 

responsibility reminders throughout the deployment. 30 

28 HAITI LL, supra note 4, at 121. See also U.S. DEP'T OF ARMY, REG. 608-1, ARMY COMMUNITY SERVICE 

CENTER ch. 4 (19 Sept. 2007) (describing the basic prevention education program, the financial counseling 

program, and the debt liquidation assistance program); David D. Lennon, Bankruptcy Overviewfor 

Military Legal Assistance Attorneys (1992) (on file with The Judge Advocate General's Legal Center & 

School library). 

29 HAITI LL, supra note 4, at 122. See also U.S. DEP'T OF ARMY, REG. 600-15, INDEBTEDNESS OF 

MILITARY PERSONNEL para. 1-5 (14 Mar. 1986); AR 27-3, supra note 1, paras. 3-4. 

30 See Office of the Staff Judge Advocate, lOIst Airborne Division (Air Assault) Operation IRAQI 

FREEDOM (OIF) After Action Review (AAR) 40 (24 Sept. 2004) [hereinafter lOIst ABN DIV 2004 OIF 

AAR]; After Action Review Conference (Legal Assistance PowerPoint Presentation), 1st Armored 

Division, Office ofthe Staff Judge Advocate, 1st Armored Division, and Center for Law & Military 

Operations, in Weisbaden, F.R.G. (13-15 Dec. 2004) [hereinafter lAD 2004 OIF AAR Conference]. 

270 
Jl:B. ISSUES DURING DEPLOYMENT 

V.B.l. Family Law 

Issues arising from separation and divorce are among those most frequently 

encountered by deployed JAs. Many Soldiers seek advice regarding both the process and 

their rights or obligations.31 Soldiers often want to know whether it is possible to obtain 

a divorce while deployed; others request review of settlement agreements and divorce 

decrees before sending them back for filing with the court.32 

Since marital discord is often very debilitating to deployed Soldiers, JAs must be 

able to provide assistance in a manner that is both professional and sensitive. 

Experienced and sincere counseling is one of a JA's most important roles in separation 

and divorce cases. Anger or despair often blinds clients and a JA's ability to bring some 

semblance of order to the situation is often an important step towards resolution. There is 

no single cause for marital discord. However, geographic separation, often for long 

periods, is always a contributing factor and the cause for much frustration on the part of 

deployed Soldiers. 

Separation agreement worksheets can often be a useful measure ofwhether a 

couple is serious about separation or divorce. 33 The separation agreement worksheet will 

also give the JA and client an important indication ofwhether the husband and wife can 

agree on serious matters. These matters include property and asset/debt distribution, and 

child custody, and whether they might be good candidates for an uncontested divorce. 

The 3ID LAO noted that agreeing to an uncontested divorce is the only means of 

obtaining a divorce while in theater, but suggested a better way to proceed is for the nondeployed spouse to visit the LAO at the nearest Army installation and obtain the 

necessary forms. 34 Judge Advocates advising on divorce should be aware that state law 

in this area may vary, including the length of the required waiting periods (e.g., New 

York has a one-year waiting period).35 

Initiation of divorce by a deployed Soldier is rare, since retaining counsel, court 

appearances, and other obstacles make meaningful progress difficult. However, with the 

JA's assistance, the client can effectively set the conditions for a divorce upon return to 

home station. Judge Advocates should discuss with the client applicable divorce laws 

31 lOlst ABN DlV 2007 OIF AAR, supra note 8, at 62. 

32Id. The lOlst ABN DlV LAO used a "Divorce and Deployment" Fact Sheet to inform Soldiers ofthe 

process for obtaining a divorce. The 3ID LAO also recommended preparation of a divorce briefing for 

Soldiers. 3d Infantry Division (Mechanized), Office ofthe Staff Judge Advocate, After Action Review, 

Operation IRAQI FREEDOM, March 2007 - June 200824 (2008) [hereinafter 3ID 2008 OIF AAR]. 

33 MAGTF LL, supra note 4, at 184. 

34 3ID 2008 OIF AAR, supra note 32, at 24. 

35Id. 

271 
pertaining to anticipated issues to ensure his or her ability to take action when time and 

circumstances permit. Finally, a client may invoke the SCRA before issuance of a final 

decree in these (and all other) civil actions. 36 A more detailed discussion of the SCRA 

appears below. 

Occasionally, Soldiers seek to wed rather than divorce while deployed. In some 

states, marriages by proxy or video teleconferencing (VTC) are acceptable.3

? Four states 

offer this service: Texas, Montana, Colorado, and - solely for Soldiers stationed abroad 

- California. Montana also offers double-proxy marriages where one party to the 

marriage is a Montana resident, or a member ofthe armed forces on federal activity duty. 

A double-proxy marriage means that neither party need be physically present to bind one 

another in a valid marriage. 38 This occurs by having two people stand in for both the 

bride and the groom at the marriage ceremony. The 3ID LAO reported some Soldiers 

used "Marriage by Proxy" (www.mariagebyproxy.com) to marry while both were in 

deployed locations. It provides the required forms, arranges the appearance of two 

designated proxies, provides the services of a municipal judge to perform the marriage 

ceremony, and delivers two certified copies of the marriage certificate within three 

weeks. The cost of this service is approximately $1,000. 

One less common legal assistance issue occurs when Soldiers who relied upon
 

redeployment guidance when making wedding and travel plans have to cancel, delay, or
 

alter those plans because of last-minute extensions in theater.
 

Non-Support of Dependents 

Claims against Soldiers for non-support of dependents tend to get the attention of 

the command very quickly. A non-deployed spouse typically initiates non-support claims 

through a legal assistance attorney, letters to the command, or complaints to 

congressional representatives. There is an expectation all Soldiers will comply with the 

terms of separation agreements and court orders and provide adequate and continuous 

support for their lawful dependents. When there is a separation agreement or court order, 

JAs should simply compare the facts of the case to the written obligations. In the absence 

36 Servicemembers may use the SCRA to deal with child custody and support hearings. 3ID 2008 OIF 

AAR, supra note 32, at 24. 

37 See lAD 2004 OIF AAR Conference, supra note 30, at 5-6; Office of the Staff Judge Advocate, WIst 

Airborne Division (Air Assault), Operation IRAQI FREEDOM Lessons Learned 38 (2003). 

38Id The California proxy marriage law is limited to servicemembers serving abroad. It allows marriageby-proxy in California for members ofthe armed forces stationed far away in wars or conflicts. It allows 

them to give their POA for someone to stand in forthem during their wedding ceremony. Documents 

require signature and acknowledgement by a notary or by two military officers. See also MONT. CODE 

ANN. § 40-1-301(2) which provides: "If a party to a marriage is unable to be present at the solemnization, 

the party may authorize in writing a third person to act as proxy. If the person solemnizing the marriage is 

satisfied that the absent party is unable to be present and has consented to the marriage, the person may 

solemnize the marriage by proxy. If the person solemnizing the marriage is not satisfied, the parties may 

petition the district court for an order permitting the marriage to be solemnized by proxy." 

272 
ofthese, Soldiers must provide monetary support pursuant to the regulation, particularly 

ifthey are not currently providing adequate support.39 

Last Minute (Pre-Deployment) Family Care Plan Failures 

Commanders must follow the guidance in Army Regulation 600-20, Army 

Command Policy, concerning family care plans.4o Even so, when faced with the specter 

of long-term deployments, many family care plans will fail just before departure. Many 

failures are legitimate - care providers will often back out at the last minute - but some 

Soldiers view family care failures as a means of avoiding deployment. Commanders 

have options. Among others, they can deploy Soldiers, keep them in the rear, or keep 

them in the rear and begin separation procedures. Deploying the Soldier may leave a 

family member without care, but leaving the Soldier behind may cause a critical gap in 

the unit, especially if the Soldier is in a critical or shortage MOS. This situation can hurt 

morale if Soldiers perceive the family care plan failure was an intentional act to get out of 

the deployment, or if another Soldier, possibly untrained for a particular MOS, has to 

pick up the slack as an additional duty. Regularly validating family care plans before 

deployment will serve to minimize last-minute family care plan failures. 41 

v'B.2. Landlord & Tenant Issues 

Landlord and tenant problems frequently arise several months into the 

deployment. While many deployed Soldiers have spouses that can take care of such 

problems by visiting the home station LAO, many Soldiers do not have family member 

representation back home and must rely on deployed JAs for assistance. The most 

common problems concern security deposits and lease termination due to deployment.42 

Loss of a security deposit can be either significant or inconsequential, depending 

on the amount in question and the servicemember's pay. All states have specific laws 

governing the proper amount and use of security deposits. In many states, upon proper 

termination ofthe lease, property owners must return security deposits within a required 

amount of time, or must provide a full accounting of security deposit deductions in 

writing to the tenant. If the property owner does not meet prescribed timelines, the tenant 

must receive the entire amount ofthe security deposit, regardless ofwhether the property 

owner has justification to make certain deductions. Even ifthe client has improperly 

terminated the lease, or the property owner is entitled to the security deposit, a polite 

39 See U.S. DEP'T. OF ARMY, REG. 608-99, FAMILY SUPPORT, CHILD CUSTODY, AND PATERNITY (23 Oct. 

2003). 

40 See U.S. DEP'T. OF ARMY, REG. 600-20, ARMY COMMAND POLICY (18 Mar. 2008). 

41 See BALKANS LL, supra note 16, at 492,494. Legal assistance attorneys further recommend discussing 

this with commanders and encouraging them to provide Soldiers with an adequate amount of time to 

remedy a deficient family care plan while being mindful that some may attempt to use this as a subterfuge 

to depart theater. 

42 MAGTF LL, supra note 4, at 193. 

273 
professional request to the property owner to consider its return has often been successful 

in the past.43 

Proper lease tennination can come in many different fonns. Tennination by 

expiration of the lease tenn is the most common means and one that generally does not 

result in legal problems. However, early tennination frequently presents problems if not 

handled correctly. Use of a military lease clause detailing the circumstances of 

pennissible early lease tennination is essential to any military tenant. Military lease 

clauses are often addendums to a lease and are usually accepted by property owners when 

negotiated before signature. Typical military lease clause provisions pennit early 

tennination if the tenant receives orders for a new assignment, deployment, etc. As with 

any contract, much ofthe content of a military lease clause is negotiable. Finally, while 

leases may not address the subject of early tennination by military tenants, many state 

laws pennit early tennination under certain circumstances for military tenants.44 

V.B.3. Vehicle Repossession 

Deployed lAs will likely encounter vehicle repossession issues while deployed. 

Repossessions usually occur due to a client's inability to manage a vehicle loan 

properly.45 With a few minor exceptions, once a vehicle undergoes repossession, neither 

the client nor the lA will likely have much success in getting it back into the client's 

possession, as resale usually occurs quickly. If a client has lost a vehicle to repossession, 

the lA should detennine whether the circumstances ofthe repossession were proper 

under the law. The SCRA may be very useful in repossession cases, depending on when 

the Soldier entered into the installment contract for the vehicle. If entered into before the 

Soldier came on active duty, a court must have first granted repossession approval to the 

repossessing agent.46 However, many Soldiers enter into vehicle loan installment 

contracts after they begin active military service. 

V.B.4. Servicemembers Civil ReliefAct (SeRA) 

The SCRA47 is useful legislation that can work on behalf of Soldiers, and 

knowledge ofits many parts can yield significant rewards for clients.48 Both Soldiers and 

their family members should receive education on the SCRA's protections and its 

limitations (e.g., through the publication of newspaper articles and the provision of 

briefings at community meetings, fairs, FRG meetings, etc.).49 For example, some 

43 Id at 193-94. 

44Id. at 195. 

45Id. at 191. 

46 SCRA, 50 U.S.c. App. § 531 (2002). 

47 50 U.S.C. App. §§ 501-94 (2002). 

48 See Lieutenant Colonel Jeffrey P. Sexton, New Resources for seRA and USERRA Practitioners, ARMY 

LAW., May 2006, at 20. 

49 101st ABN DIV 2007 OIF AAR, supra note 8, at 63-64. 

274 
Soldiers have discovered upon redeployment that they owed back rent because they failed 

to terminate their leases properly before deploying. Soldiers should also understand the 

SCRA does not allow civilian spouses to break leases in order to return to their 

hometowns during deployments. 50 

Servicemembers most commonly invoke the SCRA in two circumstances: to
 

initiate a stay of proceedings and to enforce maximum interest rate charges in revolving
 

accounts. 5

I
 

Deployed Soldiers may receive notice they are party to a lawsuit in which the 

court requires their presence at a trial or hearing scheduled to occur during the 

deployment. Barring extenuating circumstances, leave is likely possible, so lAs should 

take advantage of the SCRA stay of proceedings provision to assist clients in submitting 

timely notification to the court. Ifthe court decides to deny a stay ofproceedings and 

grants a default judgment to the opposing party, the SCRA may allow in certain instances 

the reopening of the judgment. 

Several units noted pre-existing court dates became an issue later in the 

deployment. Soldiers began to seek legal assistance on how to handle them once the 

dates approached (they had often been aware of the issue before deployment, but failed to 

seek legal assistance at that point). Unfortunately, communication with home station was 

sometimes problematic due to reduced or unreliable communication means and time zone 

differences. These make it more difficult to resolve such problems once deployed. One 

possible means of addressing this issue is to stress during the pre-deployment legal 

briefing that it may be possible to reschedule court dates before deployment ifthe Soldier 

visits the LAO before departure. Another is to educate the chain of command that 

Soldiers who are aware of court dates should seek legal assistance sooner rather than 

later. 52 

One simple way to save Soldiers money is to educate them about the SCRA 

provisions relating to the maximum rate of interest. The SCRA permits Soldiers to 

reduce interest rates on debts incurred before entering active military service ifmilitary 

service has materially affected their ability to pay the obligation. Credit cards, car loans, 

or almost any other type of financial obligation incurred before coming on active duty 

should have interest rates capped at six percent. 53 

50 Id. 

51 See MAGTF LL, supra note 4, at 186; CENTER FOR LAW & MILITARY OPERATIONS, LEGAL LESSONS 

LEARNED FROM AFGHANISTAN AND IRAQ, VOLUME I: MAJOR COMBAT OPERATIONS (11 September 2001 ­

1 May 2003) (l Aug. 2004) [hereinafter OEF/OIF LL, Vol. I]. 

52 OEFIOIF LL, Vol. I, supra note 51, at 219; see also lAD 2004 OIF AAR Conference, supra note 30. 

The 101 st ABN DIV LAO recommended that DA Form 7425 (Readiness & Deployment Checklist) be 

amended to include pending legal actions (many Soldiers deployed with pending District Court dates, and 

failed to notify the court that they would be absent due to deployment). WIst ABN DIV 2007 OIF AAR, 

supra note 8, at 86. 

53 50 U.S.C. App. § 526 (2002). 

275 
KC. ESTATE PLANNING 

In a deployed context, estate planning nonnally consists only ofpreparation of
 

wills and POAs. Most Soldiers should receive their wills and POAs from the home
 

station LAO before deployment or as part of the SRP.
 

V.Cl. Wills 

The drafting and execution of a simple will is a relatively easy process. The 

process begins with providing simple estate planning infonnation to Soldiers and 

identifying those who are likely candidates for wills. The JA should provide those 

needing wills with will worksheets. Time pennitting, the JA should then review the will 

worksheet with the client; this ensures the worksheet is filled out correctly, pennits the 

client to ask questions, and satisfies the JA's professional responsibility requirements.54 

Once the worksheet is complete, the JA or a legal clerk can draft the will using the DL 

Wills program. The client can then execute the will. Obviously, wills that exceed the 

capabilities of the DL Wills program and/or the JA's experience have to have a 

professionally competent preparer. 

In some cases, Soldiers will not require wills. As the 101 st Airborne Division 

LAO observed, every state has intestacy statutes that govern distribution of an 

individual's property after death. These often provide for distribution of property exactly 

as the individual wishes. The process for transferring title pursuant to these statutes is 

quick and relatively inexpensive. Conversely, most states require in-court probate of 

known wills, which costs more and can take quite a bit longer than transferring title under 

an intestacy statute. Single Soldiers who want all of their property to go to their parents 

will find this happens by operation oflaw in every state even without a will. 

Consequently, such Soldiers, unless they own significant assets or real property, do not 

need a will. 

The 101st LAO found hundreds of single Soldiers sought unnecessary wills 

before deployment, reducing its capacity to handle the increased pre-deployment demand 

for legal services. Moreover, Soldiers often indicated their chain of command told them 

"not [to] come back without a will.,,55 Although the LAO had published a fact sheet 

expanding on this issue before deployment, it took note of the requirement for further 

education of Soldiers and the chain of command. For example, infonnation could be a 

part ofthe newcomer's brief at Replacement Company, published in a G-3 fragmentary 

order (FRAGO) one month before deployment, or published as an unclassified part ofthe 

legal annex to the deployment OPORD, etc.).56 

54 MAGTF LL, supra note 4, at 189. 

55 101st ABN DIV 2007 OIF AAR, supra note 8, at 64. 

56 !d. 

276 
Even when a vigorous SRP process occurs, LAOs should expect a rush in demand 

for wills when units receive official notice of deployment. 57 For instance, in preparing 

for deployment to Haiti, 10th Mountain Division JAs prepared and supervised the 

execution of approximately 1600 wills at the around-the-clock Soldier readiness check 

site, despite earlier efforts to draft and execute wills at scheduled SRPS. 58 

V.C.2. Powers ofAttorney (POAs) 

Drafting and executing POAs requires a similar process, including personal 

interaction between JAs and clients. These are among the most useful tools for deployed 

Soldiers, and they frequently request them before and during deployment for many 

different reasons. Special POAs are the preferred type and are able to suit a client's 

individual needs, including the authority to register a car, purchase a house, or access 

bank accounts. Special POAs present fewer problems than general POAs, which can 

confer almost unlimited power over the affairs of a deployed Soldier. It is a failure of the 

JA's fiduciary duties and likely an ethical violation to provide a client with a powerful 

general POA without first explaining the sizeable authority that the client is extending to 

the designated attomey-in-fact.59 

The 4th Infantry Division (4ID) LAO assessed that many Soldiers and
 

commanders do not appreciate the harm that can result from granting POAs. Not
 

surprisingly, the LAO observed the worst abuses in relation to general POAs, with
 

spouses, friends, and even their own mothers emptying Soldiers' bank accounts. Yet
 

Soldiers continued to request POAs, especially general POAs. 60
 

57 See HAITI LL, supra note 4, at 118. 

58 Id These predominantly simple wills excluded trusts or specific bequests. Soldiers with families or 

more complicated estates and preferences received services by exception, through individual appointments 

at the LAO. 

59 MAGTF LL, supra note 4, at 190. See also HAITI LL, supra note 4, at 122. This describes a general 

POA that went bad. The client was a staff sergeant, married but childless, who deployed to Saudi Arabia 

with the WIst Airborne Division (Air Assault) in late 1990. The spouse remained in the Fort Campbell 

area and possessed a general POA the staff sergeant had obtained from the legal assistance office and 

delivered to the spouse before deployment. In the space of a few months, the spouse used the POA to 

purchase a home, a car, and elaborate furnishings. The spouse then abandoned the home, taking the car and 

many ofthe furnishings to another state. The Soldier returned to find no money in the joint checking 

account held with the spouse. He also faced numerous creditors who were unhappy because payments on 

the furnishings and automobiles had lapsed and the property in which they held security interests had 

vanished. Even as the country was celebrating the victory over Saddam Hussein's forces, this combat 

veteran was preparing to file a petition in bankruptcy court. Similar cases arise in all military services, and 

may involve abuse of special powers. A young airman stationed at Hurlburt Field, Fla., about to deploy to 

Saudi Arabia for six months in 1991, obtained a special POA for his girlfriend so that she could manage his 

financial affairs while he was away. Though he received advice concerning the potential risks involved, he 

nevertheless insisted he wanted her to have the ability to access money in his accounts. Toward the end of 

his deployment, letters from his girlfriend stopped, and he began to receive calls from his First Sergeant 

regarding inquiries from creditors about delinquent bills. Upon return, the airman learned his girlfriend had 

removed all funds from his accounts and moved to California with another man. Id 

60 4th Infantry Division, Office ofthe Staff Judge Advocate, After Action Review, Operation IRAQI 

FREEDOM, January 2006 - March 2007) 27 (2007) [hereinafter 4ID 2007 OIF AAR]. 

277 
The 4ID LAO concluded this was due to several factors: 1) Someone in their 

chain of command tells Soldiers they cannot deploy without a POA; 2) they are unaware 

of the legal consequences of a POA; and 3) they are unaware of how to meet their needs 

without resorting to a POA. The LAO identified two options to reduce the number of 

POAs: 1) brigade JAs should educate commanders about POAs before deployment, 

including potential problems and their lack of authority to compel Soldiers to obtain 

them; and 2) legal assistance attorneys should educate Soldiers during pre-deployment 

briefings and when screening individuals for legal assistance needs (e.g., by asking 

whether or not a Soldier truly needed a POA, and explaining about online banking, 

61 etc..) 

During redeployment briefings, the 4ID LAO encouraged Soldiers who 

previously granted POAs to check their credit reports to ensure there was no misuse of 

the POA, and that no identity theft issues occurred during their absence. 62 Additionally, 

the 1st Cavalry Division (1 CD) LAO adopted a policy of assisting with general POAs 

only when Soldiers had been counseled by a JA or paralegal about the meaning of the 

document and its consequences. Moreover, the LAO encouraged Soldiers granting 

general POAs to take steps to prevent their misuse, including making arrangements for 

online banking and placing fraud alerts with credit agencies. Finally, the 1CD LAO 

recommended, upon arrival in theater, coordinating with the PAO to release preventive 

law articles and messages to Soldiers (e.g., monitoring POA use, and simple steps to 

prevent identity theft).63 

The 101st LAO also dealt with problems caused by POAs. Later on in the 

deployment, the LAO estimated it saw an average of one Soldier per day because of POA 

abuse (the misconduct ranged from unpaid bills or sale of personal property to outright 

theft of a Soldier's money). The LAO noted providing assistance in these matters was 

sometimes difficult because ofa Soldier's remote deployed location. However, the LAO 

did assist Soldiers in filling out POA revocations and mailing them to the attorneys-infact and all financial institutions where the Soldier maintained individual accounts, 

although this did not guarantee the attorney-in-fact would cease using the POA. The 

LAO found special POAs to be much more effective, as they provided greater protection, 

and received more general acceptance. Again, the 101st LAO suggested JAs should brief 

Soldiers on this issue, discussing the dangers of both general and special POAs, and 

suggest alternative ways to deal with financial matters while deployed.64 

Deployment Extensions 

During the early stages ofOIF, 1st Armored Division (lAD) received an 

unexpected extension just short of its redeployment date. Powers of Attorney typically 

61 !d. 

62 Id. 

63 1st Cavalry Division, Office ofthe Staff Judge Advocate, After-Action Review, Operation IRAQI 

FREEDOM, November 2006 - December 2007 12 (20 Nov. 2007) [hereinafter 1CD 2007 OIF AAR]. 

64 101st ABN DIV 2007 OIF AAR, supra note 8, at 63. 

278 
designed to expire at the end of one year were insufficient to cover the extension, and 

several families had difficulties when agencies would not accept the expired POA. To 

acquire a new POA with a raised notary seal in its original form from Iraq would have 

taken several weeks. The lAD LAO instead created a system to solve the problems by 

scanning original POAs and e-mailing them to families as well as communicating with 

local agencies and banks to ensure compliance with the scanned POAs. 65 In light of 

lAD's extension, and the earlier extension of3ID, LAOs must anticipate unit extensions 

in theater and plan to ensure coverage for the entire period of a Soldier's absence.66 

Notarial Services 

The performance of notarial acts pursuant to 10 U.s.c. § 1044a does not require 

the use of a seal.67 Despite this federal exemption, businesses occasionally may not 

recognize a POA unless it has a raised seal. While a seal provides no additional legal 

efficacy to legal documents notarized by a Soldier, many businesses have become 

accustomed to seeing a seal on documents that purport to be "legal." 

65 See lAD 2004 OIF AAR Conference, supra note 30. 

66 See OEF/OIF LL, Vol. I, supra note 51, at 228. 

67 See 10 U.S.c. § 1044a. 

279 
KD. NATURALIZATION 

Many Soldiers deployed to either Iraq or Afghanistan have wanted to take 

advantage of changes in U.S. naturalization policy pursuant to Executive Order No. 

13,269. It expedites the naturalization of non-citizen nationals on active military service 

during the Global War on Terror by making them eligible for immediate citizenship.68 In 

Iraq, for example, deployed JAs quickly faced large numbers of Soldiers interested in 

becoming citizens once major combat operations had ceased.69 In Afghanistan, JAs 

organized "citizenship days" to assist non-citizen Soldiers at several locations. 70 

More recently, 1CD reported naturalization ceremonies are now occurring in Iraq 

approximately four times a year at various locations. Units should ensure information 

about the citizenship program receives wide dissemination during the early stages of a 

deployment (e.g., by encouraging NCOs to speak to their Soldiers about the program and 

identifying those eligible for it).71 

68 Exec. Order 13,269,67 Fed. Reg. 45,287 (July 8, 2002). For an in-depth discussion of contemporary 

immigration issues as they relate to military personnel and their dependents, see Lieutenant Colonel Pamela 

M. Stahl, The Legal Assistance Attorney's Guide to Immigration and Naturalization, 177 MIL. L. REv. 1 

(2003), available at https:llwww.jagcnet.army.mil [hereinafter The Legal Assistance Attorney's Guide to 

Immigration and Naturalization]. See also Major Marc Defreyn & First Lieutenant Darrell Baughn, 

Immigration and Naturalization Issues in the Deployed Environment, ARMY LAW., Oct. 2005, at 47 

(addressing naturalization issues relevant to servicemembers, with an emphasis on procedures and advice 

for legal assistance office personnel in the deployed environment); Major Michael Kent Herring, A 

Soldier's Road to u.s. Citizenship -Is a Conviction a Speed Bump or a Stop Sign?, ARMY LAW., June 

2004, at 20 (providing the legal assistance or defense counsel practitioner with information to answer 

questions from a Soldier facing a court-martial or administrative separation and who is naturalized or who 

is not yet naturalized but hopes to become a naturalized U.S. citizen). 

69 See OEFIOIF LL, Vol. I, supra note 51, at 230 (noting that large numbers of Soldiers expressed interest 

in expedited citizenship and instinctively went to JAs for assistance rather than to their servicing personnel 

office); see also Riley Interview, supra note 6 (observing that the number of non-citizen Soldiers assigned 

or attached to the lAD was over 2,000 and JAs played a large part in helping them prepare for citizenship). 

70 Id. For example, CJTF-180 LA JA Captain (CPT) James Hill organized a successful "Immigration Day" 

event on 16 September 2002. Before the event, CPT Hill's staff posted flyers at the U.S. base at Bagram 

and at smaller bases nearby. After the event, he wrote a detailed after action review. The biggest 

challenges were helping servicemembers fill out numerous forms and taking photographs and fingerprints. 

Legal assistance attorneys should be prepared to field immigration law questions relating to military 

dependents. In his after action review, CPT Hill listed two helpful publications, U.S. Citizenship and 

Immigration Services, A Guide to Naturalization (M-576, rev. 02/08), available at 

www.uscis.gov/files/article/M-476.pdfand Office of Citizenship, Naturalization Information for Military 

Personnel (M-599), available at www.uscis.gov/files/articlelMilitaryBrochure7.pdf. See also 

Memorandum, U.S. Dep't of Justice, Immigration and Naturalization Service, subject: Removal of 

Conditional Resident Status if Conditional Resident is the Spouse of an Individual Serving Abroad in the 

U.S. Armed Forces as Part of Operation Enduring Freedom (7 Jan. 2002); Human Resources Command, 

The Soldier's Guide to Citizenship (July 2007), available at 

www.hrc.army.mil/site/Active/TAGD/A_soldiers_guide_to_citizenship.htm. 

71 lCD 2007 OIF AAR, supra note 63, at 13. 

280 
The degree to which a LAO supports the naturalization process varies. The 101 st 

LAO, although initially unprepared to provide support in this area, reported addressing 

immigration and naturalization issues proved to be one of its most important and popular 

services. The LAO first determined the type of guidance that it could provide to Soldiers, 

then identified relevant agencies. Ultimately, the LAO coordinated with the Criminal 

Investigation Division (CID) to arrange for fingerprinting services, and with the G-l to 

arrange for interviews via VTC (the final step in the process before becoming eligible for 

swearing in as an American citizen). The LAO also coordinated with the G-l and 

brigade JAs to assist in monitoring specific cases, and with units to ensure Soldiers could 

attend one of the swearing-in ceremonies. Finally, the LAO published an information 

paper for Soldiers, including step-by-step guidance and pertinent points of contact. 

Based on this experience, the 101 st LAO recommended coordination with G-l and CID 

before deployment to establish standard operating procedures for immigration and 

naturalization issues, in addition to publishing an information paper. 72 

The 4ID LAO also provided support to ensure qualifying Soldiers were receiving 

any assistance required to allow them to obtain citizenship. The LAO stressed the need 

for brigade JAs and legal assistance attorneys to at least be aware of the process so they 

could brief commanders on it and identify and inform eligible Soldiers (for example, 

when requesting legal assistance). 73 

An additional complication in Afghanistan was the need to coordinate with the 

U.S. Embassy in Pakistan, which is responsible for processing the applications. 

Nonetheless, the 10th Mountain Division (Light Infantry) (lOth MTN DIV) LAO 

reported holding two ceremonies during its deployment, on in July and one in November, 

with more than 100 Soldiers becoming citizens. The 10th MTN DIV LAO urged that, 

although naturalization is a CJ-l (G-l) function, LAOs should continue to play an active 

role. 74 

The experience of Marine JAs was somewhat different. One battalion JA 

assumed responsibility for immigration issues, then contacted the Marine Legal Service 

Support Team - Iraq (LSST-Iraq) for assistance. The LSST-I sent a team to conduct 

classes and help with completing immigration applications, then worked with the 

battalion JA to coordinate the attendance ofMarines at the swearing-in ceremony. The 

JA also coordinated online interviews between U.S. immigration officials in Europe with 

Marines via Skype and Yahoo Messenger. 75 However, other Marine JAs found "[t]he 

high rate of turnover between battalions and regiments makes it difficult to track the 

72 WIst ABN DIV 2007 OIF AAR, supra note 8, at 61. 

73 4ID 2007 OIF AAR, supra note 60, at 26. 

74 10th Mountain Division (Light Infantry), Office of the Staff Judge Advocate, After Action Report, 

Operation ENDURING FREEDOM, February 2006 - February 2007 (2007). The LAO assisted by 

informing Soldiers ofthe fast-track program and coordinating the necessary paperwork. This entailed a 

significant amount ofliaison with the U.S. Embassy in Pakistan. Id. 

75 Task Force 1st Battalion, 7th Marines, Battalion Judge Advocate, After Action Report, Operation IRAQI 

FREEDOM, February 2006 - September 200614 (undated) [hereinafter TF 1/7 JA 2006 OIF AAR]. 

281 
status of immigration packages, and recommended "responsibility for this program 

should be centralized outside ofthe [area of operations] to insure proper tracking.,,76 

Another citizenship-related issue arises when Soldiers wish to marry or adopt 

foreign nationals.77 Finally, lAs may receive requests to assist with processing special 

immigrant visas for interpreters and should set up guidelines for doing SO.78 

76 Regimental Combat Team 7, Regimental Judge Advocate, After Action Report, Operation IRAQI 

FREEDOM, July 2006 - January 2007 (2 Apr. 2007); Regimental Combat Team 6, Regimental Judge 

Advocate, After Action Report, Operation IRAQI FREEDOM, January 2007 - July 2007 (undated) 

(seconding the recommendation to centralize responsibility for this program outside the area of operations 

to ensure proper tracking). 

77 See The Legal Assistance Attorney's Guide to Immigration and Naturalization, supra note 68, at 31-33 

(detailed discussion of the effect of a servicemember's deployment upon a dependent's petition for removal 

of conditional permanent resident status). 

78 Combined Security Transition Command - Afghanistan, Legal Advisor Detainee Operations & Political 

Military Affairs, March - September 200715-16 (28 Dec. 2007). See U.S. Dep't of State, Frequently 

Asked Questions for Iraqi and Afghan Translator/Interpreter Special Immigrant Visa Applicants, 

http://travel.state.gov/visa/immigrants/info/info_3738.html (last visited Aug. 30,2008). 

282 
Jl:E. DEPLOYING THE LEGAL ASSISTANCE OFFICE 

v.E.1. Provision ofLegal Assistance 

Before deployment, LAOs may wish to consider who is entitled to legal
 

assistance, and who will be responsible for providing it to those individuals.
 

The 3ID LAO suggested deployed units publish guidance about the entitlement to 

receive legal assistance. For example, contractors are not entitled, unless it is specifically 

part oftheir contracts. The LAO noted, in particular, that legal assistance attorneys 

should be aware ofthe liability issues that could arise ifthey provide advice to those not 

entitled to receive it. 79 

Some recent AARs have commented on the ability of BCT legal teams to provide 

legal assistance. According to 1CD, most BCT legal offices are not well equipped to 

handle legal assistance issues and, in some cases, are unable to provide legal assistance 

due to conflicts of interest. As a result, the 1CD LAO recommended OSlAs develop a 

legal assistance support plan for their BCTs. For example, this could consist of 

producing and disseminating information papers and any required forms to BCTs for use 

by legal personnel, and providing legal assistance by telephone and email to Soldiers 

without access to an LAO. 8o The 4ID LAO suggested that BCT legal teams should 

provide legal assistance whenever not prevented from doing so by a conflict, as this 

would avoid requiring Soldiers to make extra trips outside their compounds.8l 

V.E.2. Potential Conflicts ofInterest 

Many lAs find themselves working as the sole command attorney or in a small 

group of attorneys far from dedicated legal assistance or trial defense attorneys.82 This 

predictably creates potential conflicts of interest. The first step to avoiding these is to 

study applicable service regulations and relevant state bar guidance (service regulations 

do not provide a "combat exception" from conflict rules, and even ifthey did, state bar 

guidance would still apply).83 A lA who enters into an attorney-client relationship with a 

servicemember may not then be able to provide legal advice to the commander, and there 

may be a prohibition against discussing an issue with that commander.84 No regulation 

prohibits an attorney from establishing an attorney-client relationship with a 

servicemember, but lAs should exercise care to prevent conflicting themselves out of 

79 3ID 2008 OIF AAR, supra note 32, at 25. 

80 1CD 2007 OIF AAR, supra note 63, at 13. The infonnation papers could deal with relatively simple
 

issues, such as citizenship, identity theft, pro se divorce, and SCRA matters. Id.
 

814ID 2007 OIF AAR, supra note 60, at 26.
 

82 See OEF/OIF LL, Vol. I, supra note 51 at 226.
 

83 See AR 27-26, supra note 14, rule 1.7 (providing rules governing conflicts-of-interest for Anny legal
 

personnel); JAG INST 5803.lC, supra note 13.
 

84 See, e.g., AR 27-26, supra note 14, rule 1.7; JAG INSTR. 5803.lC, supra note 13. 

283 
giving legal advice to their commanders. As well, JAs must remember their client is 

normally their service (e.g., Department ofthe Army), and not their commander. 85 

The 3ID LAO noted a real or perceived conflict often arises with respect to 

financial liability investigation of property loss (FLIPL) and general officer memorandum 

ofreprimand (GOMOR) rebuttals because brigade legal offices typically advise the 

command on those issues. However, the LAO suggested there might not be an automatic 

disqualification thatfrevents brigade JAs from assisting Soldiers with FLIPL and 

GOMOR rebuttals. 8 The division LAO should provide guidance with respect to what 

constitutes a conflict when one brigade JA advises the command on a FLIPL or GOMOR 

and another brigade JA assists the Soldier in question with the rebuttal. 

The best way to avoid conflicts of interest is through implementation of an 

automated tracking system. Although routine and thorough client tracking is something 

all LAOs take very seriously in garrison, there are obstacles to effective client tracking in 

a deployed environment, particularly for geographically dispersed units. 87 During OIF 

and OEF, individual attorneys at various levels sometimes conducted legal assistance 

locally with little or no tracking. The lack of a system to consolidate client information 

across a unit obviously raises the risk of a conflict of interest. For a variety ofreasons, 

many units have reported significant problems tracking clients in a deployed 

environment. 88 

The 10th Mountain Division LAO, for instance, did not implement the client 

information system (CIS) in Afghanistan due to geographical dispersion ofunits and 

limited computer connectivity. Instead, all legal assistance attorneys completed client 

cards with the intent of entering the data in the Fort Drum CIS system upon 

redeployment. Prior experience had indicated that merging two CIS databases (i.e., the 

deployed database with the garrison database), would be difficult. Some units have 

recommended instituting a system of mailing client cards to the rear. However, both 

85 See AR 27-26, supra note 14, rule 1.13 ("Except when representing an individual client ... an Army 

lawyer represents the Department ofthe Army acting through its authorized officials."); JAG INSTR. 

5803.1C, supra note 13, para. 6(a) ("The executive agency to which assigned ([the Department ofthe 

Navy] in most cases) is the client served by each covered USG attorney unless detailed to represent another 

client by competent authority."). 

86 3ID 2008 OIF AAR, supra note 32, at 25. 

87 See CENTER FOR LAW & MILITARY OPERATIONS, LEGAL LESSONS LEARNED FROM AFGHANISTAN AND 

IRAQ, VOLUME II: FULL SPECTRUM OPERATIONS (2 May 2003 - 30 June 2004) 216 (l Sept. 2005). See 

also OEF/OIF LL, Vol. I, supra note 51, at 225; After Action Review Conference (PowerPoint 

Presentation), Office ofthe Staff Judge Advocate, 10th Mountain Division, and Center for Law & Military 

Operations, at Fort Drum, N.Y. 53 (17 June 2004) [hereinafter 10th MTN DIV 2004 OEF AAR 

Conference] . 

88 OEF/OIF LL, Vol. I, supra note 51, at 226-28; see also After Action Review Conference Notes, Office 

of the Staff Judge Advocate, 82d Airborne Division, and Center for Law & Military Operations 4 (22 June 

2004) [hereinafter 82d ABN DIV 2004 OIF AAR Conference]; 10th MTN DIV 2004 OEF AAR 

Conference, supra note 87, at 53. 

284 
options may fail to protect against conflict if, for instance, the home station LAO advises 

the spouse while the deployed LAO advises the servicemember.89 

Establishing a real-time system for client tracking at all logical units (e.g.,
 

brigades, LAO, and rear detachment) may diminish the risk of conflict. Ifreliable
 

NIPRNet access is available, LAOs should consider developing a web-based client
 

information system - for example, through a shared document posted to the Army
 

Knowledge Online (AKO) website - that allows entry from remote locations.9o
 

Another possibility is to ensure that the Office of the Staff Judge Advocate
 

(OSJA) deploys a Chief of Client Services. In the case of 10th Mountain Division,
 

although several attorneys practiced both legal assistance and claims, no single JA had
 

overarching responsibility for managing services, conflicts, or reporting. Their
 

recommendation was therefore to identify one person to manage the division's legal
 

assistance workload, thereby avoiding conflicts. 91
 

V.E.3. Tax Assistance 

Units consider a number of variables when deciding whether to provide tax 

services, ranging from the availability oftechnology for electronic filing to personnel 

issues. If a unit is on deplyment during tax-filing season, Soldiers will likely expect legal 

personnel to offer tax-preparation assistance. Deployed legal personnel should therefore 

develop a plan to manage this issue. 92 

V.E.4. Space & Equipment 

Many units do not have easy access to unclassified internet and phone lines. In 

fact, several legal teams have reported in the past that the LAO competed with the 

89 OEF/OIF LL, Vol. I, supra note 51, at 217. 

90 See id.; see also 82d ABN DIV 2004 OIF AAR Conference, supra note 88, at 1. Lieutenant Colonel 

Thomas A. Ayres, 82d Airborne Division (ABN DIV) Staff Judge Advocate, reported that the 82d ABN 

DIV effectively used a collaboration site, although in this case for criminal law. The Division Commander 

took his flag with him and left no rear commander with General Court Martial Convening Authority 

(GCMCA). The home station OSJA scanned all documents and posted them on the AKO collaboration site 

for retrieval and action. The deployed OSJA then reciprocated once the documents bore the Commander's 

signature. By analogy, and depending on NIPRNet access, the AKO collaboration site might be one way 

for deployed legal assistance JAs and the home station LAO to track clients effectively. 

91 See 10th MTN DIV 2004 OEF AAR Conference, supra note 87, at 53-54; OEFIOIF LL, Vol. I, supra 

note 51, at 217. 

92 See Riley Interview, supra note 6 (noting that, despite the availability of filing deadline extensions, 

Soldiers wanted to file their taxes as soon as possible so that their families could use their refunds). The 

3ID LAO also suggested pre-deployment planning should include the provision oftax assistance (e.g., to 

ensure designation of sufficient space, equipment, and personnel for it). 3ID 2008 OIF AAR, supra note 

32, at 27. The lCD LAO similarly recommended LAOs be prepared to provide tax assistance to Soldiers 

on a large scale (and to travel to other FOBs as well). The lCD LAO found it helpful to use online filing 

programs available through the Internal Revenue Service (IRS) website, many of which are free for 

military personnel. lCD 2007 OIF AAR, supra note 63, at 13. 

285 
morale, welfare, and recreation (MWR) lines. At some locations, JAs even resorted to, 

using MWR lines to conduct legal research, because they provided the only unclassified 

internet access. 93 In addition, some units had no designated confidential area in which to 

conduct legal assistance.94 When possible, legal assistance personnel should have a 

dedicated workspace with sufficient cover to maintain confidentiality, as well as a 

dedicated priority phone line and unclassified internet terminal. 95 Discuss space and 

equipment requirements with the unit before deployment and factor it in during predeployment exercises to make it more likely to occur when the unit deploys. 

The experience of the 101st LAO suggests deployed legal assistance personnel 

may still face significant communications difficulties. In that case, LAO personnel 

needed to assist clients by making calls to the United States, but DSN operators would 

not always transfer calls off post when a long-distance call was necessary, or allow a call 

to last more than ten minutes (using the rear detachment OSJA was also problematic 

because ofthe unreliability ofDSN lines). On some occasions, LAO personnel resorted 

to calling the DOD switchboard in Washington, but it sometimes took more than thirty 

minutes to connect to an operator. As a result, LAO personnel eventually resorted to 

using personal calling cards.96 

The LAO commented it would have been helpful to have had unrestricted long 

distance telephone use, as well as access to a rear detachment telephone that could have 

switched DSN calls to an off-post or long-distance line. An alternative solution to the 

problems they faced would be to provide phone cards to LAO personnel for office use. 

An additional frustration was that LAO personnel could only access a Soldier's 

information via telephone or internet while Soldier was present in the LAO. 

Furthermore, because the LAO lacked fax capabilities, JAs could not fax 

documents to financial institutions to confirm the existence of an attorney-client 

relationship. While the LAO could scan and email documents, several businesses would 

not accept documents via email. The LAO suggested LAO personnel could work around 

this issue by establishing a point of contact in the rear detachment LAO. Deployed LAO 

personnel could scan and email documents to this individual, who could then transmit 

them to the business in question. Finally, the 101st LAO noted that full internet access 

would be beneficial in some circumstances (e.g., to allow access to e-Bay, where bids 

were being made in a Soldier's name without his consent).97 

93 See 10th MTN DIV 2004 OEF AAR Conference, supra note 87, at 6; 82d ABN DIV 2004 OIF AAR 

Conference, supra note 88, at 1; 10lst ABN DIV 2004 OIF AAR, supra note 30, at 41. 

94 See After Action Review Conference, Office of the Staff Judge Advocate, V Corps and Center For Law 

& Military Operations, Heidelberg, F.R.G. (17-19 May 2004) [hereinafter V Corps 2004 OIF AAR 

Conference]. See also 82d ABN DIV 2004 OIF AAR Conference, supra note 88, at 6 (briefing by Major 

Dan Froehlich, 3/82d ABN DIV, emphasizing the lack of communication resources at remote FOBs 

scattered in and around Fallujah, Iraq in mid-2003). 

95 See V Corps 2004 OIF AAR Conference, supra note 94, at 23. 

96 101st ABN DIV 2007 OIF AAR, supra note 8, at 66. 

97 I d. at 66-67. 

286 
V.E.5. Paralegals at Dispersed Locations 

The Army JAG Corps continues to undergo transformation into BCTs pursuant to 

the Army modular force structure.98 During OIF, the 3d BCT (3BCT), 82d Airborne 

Division, occupied four forward operating bases (FOBs) scattered in and around Fallujah. 

By mid-2003, 3BCT's area of operations included Fallujah and two comers ofthe Sunni 

triangle. The area was notoriously dangerous, so there was scarcely any travel between 

the various units that comprised 3BCT. As well, for a significant period, there were no 

TA-1042A/U digital non-secure voice terminal (DNVT) communications between BCT 

units. The only means by which the JA could communicate with battalions and other 

subordinate units was through tactical communication satellite (TACSAT). In addition, 

there was no internet access for several months. Given this operational environment, it 

was very difficult to exercise legal visibility over FOBs. Paralegals in outlying areas 

therefore required empowering to become the JA's eyes and ears on various issues, 

including legal assistance. 99 

98 Memorandum, The Judge Advocate General, u.s. Army, subject: Location, Supervision, Evaluation, 

and Assignment of Judge Advocates in modular Force Brigade Combat Teams (10 Jan. 2006); TJAG 

Sends, Army Strategic Planning Guidance 2005 (31 Jan. 2006); TJAG Sends, Empowering Our Paralegals 

(9 Dec. 2005). 

99 See 82d ABN DIV 2004 DIF AAR Conference, supra note 88, at 6 (briefing by Major Dan Froehlich, 

3/82d ABN DIV). 

287 
288
 
VL MILITARYJUSTICE
 

Military Justice is the administration ofthe Uniform Code ofMilitary Justice 

(UCMJ), and the disposition ofalleged violations byjudicial (courts-martial) or 

nonjudicial (Article 15, UCMJ) means. 

1 

The purpose ofmilitary law is to promote justice, to assist in maintaining good 

order and discipline in the armedforces, to promote efficiency and effectiveness 

in the military establishment, and thereby to strengthen the national security of 

the United States. 2 

The UCMJ3 and implementing regulations4 place high due process standards on
 

the military justice (MJ) system. During times of conflict, as always, military members
 

deserve the highest protections. Judge Advocates (JAs) continue to work with
 

commanders during contingency operations to exercise swift and sound justice in
 

sometimes austere conditions.
 

Unfortunately, every deployment includes a small minority ofmilitary members 

who choose to discredit themselves through misconduct. In the words of one JA, 

"Wherever there are troops, there will be criminal activity."s The Manual for CourtsMartial (MCM) mandates commanders address misconduct quickly,6 while observing due 

process standards. 

Deployed MJ is challenging, but units must be prepared to handle MJ successfully in 

difficult environments. 7 In recent contingency operations, MJ has "shut down" during the heat 

1 FIELD MANUAL 27-100, LEGAL SUPPORT TO OPERATIONS para. 3-3 (1 Mar. 2000) [hereinafter FM 27­

100]. 

2 MANUAL FOR COURTS-MARTIAL, UNITED STATES, PREAMBLE pt. I, 3 (2008) [hereinafter MCM]. 

3 10 U.S.C.S. §§ 801-946 (2008) [hereinafter UCMJ]. 

4 See U.S. DEP'T OF ARMY, REG. 27-10, MILITARY JUSTICE (16 Nov. 2005) [hereinafter AR 27-10]; U.S. 

DEP'T OF AIR FORCE, INSTR. 51-201, ADMINISTRATION OF MILITARY JUSTICE (26 Nov. 2003) [hereinafter 

AFI 51-201]; U.S. DEP'T OF AIR FORCE, INSTR. 51-202, NONJUDICIAL PUNISHMENT (7 Nov. 2003) 

[hereinafter AFI 51-202]; U.S. DEP'T OF NAVY, OFFICE OF THE JUDGE ADVOCATE GEN. INSTR. 5800.7E, 

MANUAL OF THE JUDGE ADVOCATE GENERAL (JAGMAN) (20 June 2007) [hereinafter JAGMAN]. 

5 Mid-Point AAR, Office ofthe Staff Judge Advocate, Combined Task Force-82 5 (1 Jan. 2003) 

[hereinafter CTF-82 2003 OEF Mid-Point AAR]. 

6 See MCM, at R.C.M. 303 ("Upon receipt of information that a member ofthe command is accused or 

suspected of committing an offense or offenses triable by court-martial, the immediate commander shall 

make or cause to be made a preliminary inquiry into the charges or suspected offenses."). R.C.M. 303 is 

only one example ofthe many obligations the MCM places upon commanders to handle expeditiously 

suspected UCMJ violations. See also U.S. DEP'T. OF ARMY, REG. 600-20, ARMY COMMAND POLICY para. 

4-6(a) (18 Mar. 2008) ("Military authority is [to be] exercised promptly, firmly, courteously and fairly.") 

(emphasis added). 

7 See, e.g., Interview with Major Robert F. Resnick & Captain Charles L. Pritchard, Chief of Criminal Law 

& Senior Trial Counsel, 3d Infantry Division, in Charlottesville, Va. (Nov. 20, 2003) [hereinafter Resnick 

& Pritchard Interview] (noting that many factors made processing MJ difficult during OIF, including 

289 
ofbattle,8 but resumed almost immediately after heavy combat ended.9 During full spectrum 

operations, MJ actions pose greater challenges than those encountered during combat operations. 

This is due to the increased frequency and severity of misconduct.!O The logic in conducting MJ 

while deployed is that Soldiers "need to see the results of misconduct"!! to deter future 

misconduct. Units must decide whether to handle misconduct in the deployed theater or to send 

Soldiers suspected of more serious offenses back to home station for prosecution. 

sometimes unreliable communication and automation equipment, geographically dispersed JAs and 

commanders, and the fast-moving pace of operations). See also E-mail from Major Laura K. Klein, 

Advanced Operational Law Studies Officer, Center for Law & Military Operations, to Lieutenant Colonel 

Pamela M. Stahl, Director, Center for Law & Military Operations (22 Oct. 2003) ("[Commanders] know 

and understand the logistical challenges in the field vs. garrison - multiply the [article] 15, chapter, courtmartial witness/investigation challenges faced in garrison by 100 in a field environment."). 

8 See, e.g., Interview with Colonel Richard O. Hatch, former Staff Judge Advocate, 101st Airborne 

Division, in Charlottesville, Va. (Oct. 8,2003) [hereinafter Hatch Interview] (noting that JAs and 

commanders were too busy to handle MJ during combat). 

9 See, e.g., Captain Dennis C. Carletta, Trial Counsel, Third Infantry Division, Division Artillery, Brigade 

Operational Law Team, Operation IRAQI FREEDOM After Action Review 5 (24 Apr. 2003) (noting that 

MJ actions resumed during stability operations for a variety of infractions). 

10 See, e.g., Interview with Captain Jason Denney, DREAR Trial Counsel, 82d Airborne Division, in Fort 

Bragg, N.C. (June 22,2004) (noting that MJ actions increased during stability operations). 

1\ Resnick & Pritchard Interview, supra note 7. See also MCM, R.C.M. 1001(g) (discussing the "generally 

accepted" sentencing philosophy of general deterrence). 

290 
VLA. JURISDICTION 

Dividing a unit into a deployed main body and a non-deployed rear detachment
 

creates MJ jurisdictional and processing challenges. Fortunately, past operations have
 

shown how to manage these challenges effectively.12 During most deployments, Army
 

commanders have considered the following four deployment-tested courses of action
 

when addressing jurisdictional issues. Each has advantages and disadvantages. 13
 

•	 transfer rear detachment jurisdiction to another General Court-Martial 

Convening Authority (GCMCA); 

•	 leave the "division flag" (GCMCA) behind (a rear detachment general officer 

assumes command); 

•	 set up a rear provisional command with GCMCA (requires Secretary of the 

Army (SECARMY) approval); or 

•	 change nothing and shuttle MJ actions between the deployed setting and home 

station. 

JAs commonly use the term "jurisdiction" to refer broadly to the closely related
 

concepts of "venue" and "jurisdiction.,,14 The following clarifies the distinction:
 

The term jurisdiction is being used to describe venue (which commander should 

act as a convening authority in a given case), not to describe a court-martial's 

legal authority to render a binding verdict and sentence. Under the UCMJ [Rule 

for Court-Martial601(b) (discussion)] any [convening authority] may refer any 

case to trial. However, as a matter ofpolicy, JAs should ensure the [convening 

authority] with administrative control (ADCON) over the accused 

servicemember exercises primary UCMJ authority. 15 

12 See generally INT'L & OPERATIONAL LAW DEP'T, THE JUDGE ADVOCATE GENERAL'S LEGAL CENTER & 

SCHOOL, U.S. ARMY, JA 422, OPERATIONAL LAW HANDBOOK 441-43 (2008) [hereinafter OPLAW 

HANDBOOK 2008]. See also Interview with Colonel Lyle Cayce, former StaffJudge Advocate, 3d Infantry 

Division, in Charlottesville, Va. (Jan. 7,2004) (mentioning CLAMO's series oflessons learned 

publications for JAs, including MJ lessons learned, and noting that deploying JAs regularly refer to these 

when considering possible jurisdictional alignment options). 

13 See OPLAW HANDBOOK 2008, supra note 12, at 442; see also CENTER FOR LAW & MILITARY 

OPERATIONS, LAW AND MILITARY OPERATIONS IN THE BALKANS, 1995 -1998: LESSONS LEARNED FOR 

JUDGE ADVOCATES 170 (13 Nov. 1998) [hereinafter BALKANS LL] (discussing four available court-martial 

jurisdictional alignment options for deploying units). 

14 Telephone Interview with Major Christopher T. Fredrikson, Professor of Criminal Law, The Army Judge 

Advocate General's Legal Center & School (12 Apr. 2004). 

15See OPLAW HANDBOOK 2008, supra note 12, at 442 (discussing MJ in the deployed setting). One OSJA 

commented further that: 

There is no single source of authority for commanders, G 1, G3, and OSJA personnel on 

this topic. Instead, each staff proponent receives different implementing guidance from 

its own technical chain, often resulting in a unit that is created without the true legal 

authority to handle disciplinary cases in a punitive manner. To this day, units continue to 

create what they believe are proper provisional rear commands [in accordance with Army 

Regulation] 220-5, but they fail to take the necessary steps to ensure the "commanders" 

291 
Identifying jurisdictional authority for imposing punishment through MJ actions 

continues to be a highly debated and contentious topic among commanders as well. 

While it is understandable commanders wish to retain the authority to punish Soldiers 

under their command, regardless of the location of such Soldiers, it is often more 

beneficial - due to geography and various other factors - to employ an "area 

jurisdiction" concept. 16 

The only way to avoid the issue entirely is to ensure attachment orders clearly 

state the relationship between units while clearly delineating UCMJ authority. 17 

However, it is unlikely all attachment orders will always specifically address UCMJ 

authority. Therefore, it is important for JAs to identify early on orders that are unclear as 

of such units possess actual UCMJ authority. [Headquarters, Department ofthe Army} 

shouldpublish a single, offiCial source ofdefinitive guidance on this issue. 

E-mail from Colonel Kevan F. Jacobson, Staff Judge Advocate, 21st Theater Support Command (14 May 

2004) (emphasis added). 

16 See generally U.S. ARMY EUROPE, REG. 27-10, LEGAL SERVICES (MILITARY JUSTICE) (16 July 2007) 

(stating that area courts-martial jurisdiction bases GCMCAjurisdiction upon the physical location within 

U.S. Army Europe (USAREUR). Jurisdiction extends over USAREUR commands and their subordinate 

units, as well as individual U.S. Army personnel or personnel assigned to U.S. Army units, including U.S. 

Army National Guard (ARNG) and U.S. Army Reserve (USAR) units attached to USAREUR. 

17 For example, orders designate the majority of attached units as being under either operational or tactical 

control of the assigned "parent" unit. See Joint CHIEFS OF STAFF, JOINT PUB. 1-02, DOD DICTIONARY OF 

MILITARY AND ASSOCIATED TERMS (12 Apr. 2001) (as amended through 4 Mar. 2008) [hereinafter JOINT 

PUB. 1-02], which defines operational control (OPCON) as: 

[T]he authority to perform those functions of command over subordinate forces involving 

organizing and employing commands and forces, assigning tasks, designating objectives, 

and giving authoritative direction necessary to accomplish the mission. Operational 

control includes authoritative direction over all aspects ofmilitary operations and joint 

training necessary to accomplish missions assigned to the command.... Operational 

control normally provides full authority to organize commands and forces and to employ 

those forces as the commander in operational control considers necessary to accomplish 

assigned missions; it does not, in and of itself, include authoritative direction for logistics 

or matters of administration, discipline, internal organization, or unit training. 

Contrast OPCON with Tactical Control (TACON), which is defined as: 

[C]ommand authority over assigned or attached forces or commands, or military 

capability or forces made available for tasking, that is limited to the detailed direction and 

control of movements or maneuvers within the operational area necessary to accomplish 

missions or tasks assigned. Tactical control is inherent in operational control. Tactical 

control may be delegated to, and exercised at any level at or below the level of combatant 

command. Tactical control provides sufficient authority for controlling and directing the 

application of force or tactical use of combat support assets within the assigned mission 

or task. 

Finally, Administrative Control (ADCON) is defined as: 

[The] direction or exercise of authority over subordinate or other organizations in respect 

to administration and support, including organization of Service forces, control of 

resources and equipment, personnel management, unit logistics, individual and unit 

training, readiness, mobilization, demobilization, discipline, and other matters not 

included in the operational missions of the subordinate or other organizations. 

292 
to jurisdictional issues and establish proper UCMJ authority before any misconduct 

occurs. Although it is fair to say a significant number ofUCMJ jurisdictional issues arise 

among U.S. Army Reserve (USAR) and Army National Guard (ARNG) units, active duty 

units are certainly not immune to this problem. This is particularly true of those units 

having assets assigned to them in a variety oflocations within an area of operations 

(AO).18 

Specific examples ofjurisdictional alignment, where Army and Marine JAs
 

deployed to Operations ENDURING FREEDOM (OEF) and IRAQI FREEDOM (OIF)
 

implemented formal and informal measures to clarify matters of MJ venue/jurisdiction
 

(hereinafter "jurisdiction" generally), appear below. 19
 

VLA.l. Operation ENDURING FREEDOM (OEF) 

Initial OEF deployments happened so quickly after 11 September 2001 there was 

scarcely any time to plan jurisdictional alignments.2o In fact, there was very little MJ 

during the initial combat operations phase?! In its aftermath, Combined Joint Task Force 

180 (CJTF-180), commanded by an Army lieutenant general, formed in May 2002 as the 

combined joint operational headquarters in Afghanistan. The CJTF-180 commanding 

general (CG) requested GCMCA status from the Secretary ofDefense (SECDEF).22 The 

SECDEF approved the request on 8 October 2002, almost six months after submission. 

Requests for approval of GCMCA status for a joint task force commander should proceed 

only after great deliberation. After the CTJF-180 CG gained GCMCA status, creation of 

18 As an example, many military intelligence and military police units have assets spread out over large 

geographical areas within the theater of operations. 

19 This chapter focuses on issues ofjurisdiction/venue associated with courts-martial, which are distinct 

from the related issue of authority to impose nonjudicial punishment (discussed in AR 27-10, supra note 4). 

20 Telephone Interview with Colonel Kathryn Stone, former Staff Judge Advocate, 10th Mountain Division 

(Apr. 14,2004). Because the 10th Mountain commander took his MJ flag with him to Afghanistan, 

Colonel Stone remained the SJA for home station (Fort Drum, N.Y.) MJ actions. Coordinating these 

actions from Uzbekistan (initially) and then Afghanistan with poor communications resources and, at times, 

a lack of first hand case knowledge, proved challenging. Soldiers often arrived with orders simply 

assigning them to the "CENTCOM AOR." Once in theater, Colonel Stone briefed all arriving unit 

commanders that Soldiers would receive assignment to a local GCMCA if a case ofminor misconduct 

occurred, or sent back to their home station in instances ofmore serious misconduct. Judge Advocates 

tried to maintain a UCMJ summary and special courts-martial jurisdictional alignment chart, but this 

proved impractical. Despite these challenges, MJ operations generally caused few problems during this 

initial phase, probably because of the intense focus on combat operations. 

21 See Interview with Colonel Kathryn Stone, former Staff Judge Advocate, 10th Mountain Division, in 

Charlottesville, Va. (Oct. 7, 2003). 

22 UCMJ, art. 22(a) (2008) ("General courts-martial may be convened by ... [following a list of 

specifically designated positions and types of commanders] any other commanding officer designated by 

the Secretary concerned ...."). Because CJTF-180 was ajoint command, the SECDEF was the proper 

authority to approve this request. 

293 
special and summary court-martial jurisdictional alignments occurred within the
 

command. 23
 

Elements of the 82d Airborne Division (82d) deployed to Afghanistan in June
 

2002. When the 82d CG deployed, he brought his MJ flag with him. Before deploying,
 

the 82d considered several jurisdictional alignment options, including seeking GCMCA
 

status for the 82d rear detachment commander at Fort Bragg. The CG did not pursue this
 

option, primarily because the future status of the 82d in Afghanistan was initially
 

uncertain. The 82d CG, in accordance with the recommendation of his Staff Judge
 

Advocate (SJA), decided to manage all court-martial actions from Afghanistan.
 

Technology made this manageable. 24
 

Shortly after his arrival in Afghanistan, the 82d CG learned Combined Task Force 

82 (CTF-82) (consisting of the 82d Division headquarters and a brigade task force from the 

82d) would remain in theater as an Army two-star command subordinate to CJTF-180?5 

He asked his SJA to prepare a request to SECARMy 26 to designate the CTF-82 CG as a 

GCMCA. Even though the CG believed CTF-82 was unlikely to convene a court-martial 

in the deployed theater, he sought GCMCA status in large part to enable him to appoint 

investigating officers in special circumstances in accordance with Army Regulation (AR) 

15-6.27 When the CTF-82 CG's request for GCMCA status received approval, he 

23 Interview with Colonel David L. Hayden, fonner Staff Judge Advocate, XVIII Airborne Corps, in
 

Charlottesville, Va. (Oct. 8, 2003) [hereinafter Hayden Interview] (noting that the slow progress ofthis
 

request was disconcerting).
 

24 See CTF-82 2003 OEF Mid-Point AAR, supra note 5. 

Nearly all actions were scanned by the OSJA Rear [Bragg] to the OSJA Forward 

[Afghanistan] for action by the GCMCA. Thus, [r]eferral packets, Chapter 10 

[administrative separation in lieu of court-martial] requests, and Pre-Trial Agreements 

were all scanned and emailedtotheSJA.printed off by the SJA, acted upon and signed 

by the GCMCA, then scanned again and emailed back to the OSJA Rear. The original 

documents were also mailed back to Fort Bragg. Post Trial Recommendations and Final 

Actions were emailed in word documents for the SJA or SJA and CG signature, then 

scanned and emailed back. The one caveat was that for final action in order to meet the 

requirement to have the Record of Trial available for GCMCA review, the [record of 

trial] was burned to a CD by the OSJA Rear and mailed to OSJA Forward. We believe 

the system worked well overall and no case suffered undue delay as a result of the 

measures taken while deployed. 

Id. at 10. 

25 !d. 

26 Because CTF-82 was an Anny command, SECARMY was the proper authority to approve this request. 

27 Although any general officer may initiate an investigation under AR 15-6, it also states that: 

Only a general court-martial convening authority may appoint a fonnal investigation or 

board ... or an infonnal investigation or board ... for incidents resulting in property 

damage of$l,OOO,OOO or more, the loss or destruction of an Anny aircraft or missile, an 

injury and/or illness resulting in, or likely to result in, pennanent total disability, the 

death of one or more persons, and the death of one or more persons by fratricide/friendly 

fire. 

294 
promulgated a MJ policy creating special and summary court-martial jurisdictional 

alignments within the command. 28 This document required continuous review and 

updating because units from different locations comprised the subordinate task forces. The 

language also had to be general enough to account for frequent rotations of subordinate 

units.29 

The CTF-82 CG returned briefly to Fort Bragg, and in October 2002, relinquished 

command of the 82d (while retaining command ofCTF-82). This required staff sections, 

including the SJA, to provide two separate staffs. The 82d Deputy SJA at Fort Bragg 

served as the SJA to the new 82d CG, while the lieutenant colonel who normally served 

as the 82d SJA remained in Afghanistan as the CTF-82 SJA. This command structure 

remained in place until the end of major hostilities (and beyond) in Afghanistan on 1 May 

2003. 30 

Although neither CJTF-180 nor CTF-82 convened any general or special courtsmartial in Afghanistan, they did handle a moderate volume of less serious misconduct, 

including one summary court-martial. The command transferred cases involving 

misconduct of a more serious nature to the United States for prosecution, due in part to 

the austere conditions in Afghanistan at the time. 3 

! The command structure and 

jurisdictional alignments in Afghanistan had reached a mature state by the fall of 2002. 

VLA.2. Operation IRAQI FREEDOM (OIF) 

Coalition Forces Land Component Command (CFLCC) 

The Coalition Forces Land Component Command (CFLCC) was the combined 

OIF (and OEF) land component command. An Army lieutenant general commanded it, 

and its headquarters was at Camp Doha, Kuwait. To achieve unity of command for OIF 

ground forces, the CFLCC CG also commanded the U.S. Third Army and U.S. Army 

Forces Central Command (ARCENT). 

The CFLCC CG elected to bring his Third Army MJ flag with him to Kuwait. 32 

Thus, he was the GCMCA for all subordinate units not organic to a unit commanded by a 

u.s. DEP'T OF ARMY, REG. 15-6, PROCEDURES FOR INVESTIGATING OFFICERS AND BOARDS OF OFFICERS 

para. 2-1 a(3) (2 Oct. 2006) [hereinafter AR 15-6] (emphasis added). 

28 CTF-82 2003 OEF Mid-Point AAR, supra note 5, at 10. See also AR 27-10, supra note 4, para. 5­

2(a)(2) ("Contingency Commands. Commanders exercising GCM authority may establish deployment 

contingency plans that, when ordered into execution, designate provisional units under AR 220-5.") 

(emphasis in original). 

29 See CTF-82 2003 OEF Mid-Point AAR, supra note 5, at 10. 

30Id. 

31 At the mid-point of its deployment, the CTF-82 legal staff had processed seventeen summarized 

nonjudicial punishment (NJP) proceedings, seventy-three company grade NJP proceedings, and fifty-seven 

field grade NJP proceedings. Id. 

32 After Action Review Conference, 12th Legal Support Organization and Center for Law & Military 

Operations, in Charlottesville, Va. (12-13 Feb. 2004) [hereinafter 12th LSO 2004 OIF AAR Conference]. 

295 
GCMCA or attached to such a unit for MJ jurisdictional purposes. As such, the CFLCC 

CG did not act as the GCMCA for large units like the 3d Infantry Division and the 1st 

Marine Expeditionary Force (each had their own GCMCA in theater), but did act as the 

GCMCA for all other subordinate Army units not attached to a unit commanded by a 

GCMCA. Unlike other large deployed units, CFLCC did not publish a policy creating 

special and summary court-martial jurisdictional alignments within the deployed 

command. 

Although CFLCC commanded all OIF ground forces, the CFLCC/Third Army 

permanent legal staff was small.33 Thus, when reserve component (RC) legal personnel 

from the 12th Legal Support Organization (l2th LSO) arrived in Kuwait in early March 

2003, they quickly integrated into CFLCC legal operations, including MJ.34 

CFLCC differed from other major deployed units in that a sizable contingent of 

its active duty military personnel were under permanent assignment to Camp Doha, 

Kuwait. Most deployed units planned to return Soldiers suspected of serious misconduct 

to their home station for prosecution, but Kuwait was the home station for those assigned 

to Camp Doha. Despite the lack of a courtroom or confinement facility in Kuwait, 

CFLCC held three UCMJ Article 32 pretrial investigations for several Soldiers 

permanently assigned to Camp Doha. In addition, the CFLCC CG selected general and 

special courts-martial panels before combat operations began.35 

Combat operations tested the CFLCC MJ plan. CFLCC JAs coordinated MJ 

actions with (at times) up to six geographically dispersed brigade command Judge 

Advocates (CJAs). In most cases, these CJAs were not experienced MJ practitioners and 

relied upon CFLCC for advice and guidance. Perhaps the larger lesson is that SJAs 

should consider committing experienced personnel to MJ operations in a deployed 

theater, even when experienced legal personnel are in high demand. One CFLCC JA 

observed that the "focus on criminal law needs to be there, even during war.,,36 

u.s. Army Europe (USAREUR) & V Corps 

A lieutenant general based in Heidelberg, Germany commands the Army's V 

Corps. In October 2002, V Corps advance elements began deploying to Qatar, and by 

late February 2003, virtually the entire V Corps Office ofthe SJA (OSJA) had deployed 

33 There are only six military attorneys permanently assigned to the OSJA for U.S. Third Army/ARCENT 

at Fort McPherson, Ga. 

34 12th LSO 2004 OIF AAR Conference, supra note 32 (noting that a 12th LSO JA became the Chief, MJ 

for CFLCC). 

35 Id. Both these deficiencies were later rectified (the investigations were held in full chemical protective 

gear). The CFLCC CG selected more than one panel because the constant rotation of personnel through 

Kuwait quickly made panel selections obsolete. Id. 

36 I d. (noting that although most of these CJAs were RC JAs, active duty JAs frequently also lacked 

sufficient MJ experience to act independently). 

296 
to Kuwait. 37 Before deploying, the V Corps CG weighed his jurisdictional alignment 

options and decided to request SECARMY create a rear provisional unit, with the 

commander ofthat unit designated as a GCMCA. SECARMY granted both requests, 

designating the provisional unit "V Corps Rear (Provisional)." A brigadier general 

commanded the unit.38 

Military case law calls attention to the potential jurisdictional pitfalls inherent in 

handling courts-martial during deployments?9 With these challenges in mind, V Corps 

JAs took great care to help convening authorities establish a framework for all pending 

courts-martial by taking the following measures: 

•	 the V Corps rear commander memorialized his assumption of command by 

memorandum; 

•	 USAREUR and Seventh Army revised the existing USAREUR GCMCA area 

jurisdiction policy to account for the creation of new subordinate provisional 

units; 

•	 the V Corps rear commander promulgated a policy aligning special and 

summary courts-martial jurisdictions within his Command; and 

•	 the V Corps CG requested, in writing and by individual case name, that the V 

Corps rear commander take jurisdiction of courts-martial at the post-trial 

phase, and the V Corps rear commander similarly memorialized his 

acceptance ofjurisdiction.40 

Although SECARMY approved the creation of V Corps Rear as a provisional 

command with a GCMCA on 30 January 2003,41 the V Corps rear commander did not 

immediately take command. In the interim, V Corps courts-martial continued with the 

panel previously selected by the V Corps CG. 42 V Corps JAs carefully monitored the 

37 See Interview with Lieutenant Colonel Jeffery R. Nance, fonner Chief of Operational Law, V Corps, in 

Charlottesville, Va. (Oct. 8,2003). 

38 See CENTER FOR LAW & MILITARY OPERATIONS, LEGAL LESSONS LEARNED FROM AFGHANISTAN AND 

IRAQ, VOLUME I: MAJOR COMBAT OPERATIONS (11 September 2001 - 1 May 2003) app. 1-2, 1-3 (1 Aug. 

2004) [hereinafter OEF/OIF LL, Vol. I]. When SECARMY approved the creation ofthe V Corps Rear 

(Provisional) Command with a commander having GCMCA status, he did the same for the 21st Theater 

Support Command, the 1st Infantry Division (at the time both ofthese units were preparing for possible 

deployment to Turkey), and the Southern European Task Force (SETAF). See also OPLAW HANDBOOK, 

supra note 12, ch. 23, app. A (Preparingjor Deployment: A Handbookjor the ChiejojMilitary Justice). 

39 See, e.g., United States v. Newlove, No. 2002-0536 (Anny Ct. Crim. App. Aug. 20, 2003) (a unit 

commander and a rear provisional commander both with GCMCA status are separate convening authorities 

and cannot exercise their authority interchangeably). 

40 Note that in this instance, the V Corps commander (a lieutenant general) asked the V Corps rear 

commander (a brigadier general) to accept jurisdiction and take action "as you deem appropriate" 

(emphasis added). It would seem advisable to include this language to avoid any appearance of unlawful 

command influence. See MCM, R.eM. 104 (defining unlawful command influence). 

41 See OEF/OIF LL, Vol. I, supra note 38, at 92. 

42 See Interview with Major Tiernan Dolan, fonner Senior Trial Counsel, V Corps, in Charlottesville, Va. 

(Jan. 22, 2004) [hereinafter Dolan Interview]. 

297 
status of deployable panel members to ensure the availability of a court-martial panel at 

all times. The V Corps CG did not transfer jurisdiction of those cases with preferred 

charges before 21 February 2003, although he later transferred jurisdiction for post-trial 

matters. This required the V Corps CG to take action on cases while deployed, and 

reliable communications made this possible.43 The V Corps rear commander 

subsequently selected a court-martial panel and began referring cases to trial in his own . 44 capacIty. 

Due to careful forethought and proactive measures, V Corps courts-martial 

continued with few problems. The most difficult MJ challenge was carefully monitoring 

rear detachment special and summary court-martial jurisdictional alignments as units 

deployed. In the words of one V Corps JA, "You need to do it early and often.,,45 

Throughout the deployment, the V Corps Rear (Provisional) command handled all 

general and special courts-martial, but deployed JAs handled less serious misconduct. 

Deployed JAs also faced challenges trying to manage jurisdictional alignments. Before 

combat operations began, they attempted to maintain a "jurisdiction book" to track 

alignments, but with the number of attachments and fast-moving events, the task quickly 

became difficult. In the event of a serious incident ofmisconduct, the V Corps SJA plan 

was to seek to attach the accused Soldier to the nearest unit commanded by a GCMCA, if 

the Soldier was not already a member of or attached to such a unit.46 

lst Armored Division (lAD) 

A major general based in Wiesbaden, Germany commands the Army's 1st 

Armored Division (lAD). In late April 2003, lAD JAs began deploying to Iraq. Before 

deployment, lAD and V Corps Rear JAs worked together to resolve many MJ issues. 

The lAD CG decided not to establish a rear provisional unit, instead taking advantage of 

the existing V Corps Rear jurisdictional structure. This proved relatively easy, as lAD 

normally falls within the V Corps command structure. The USAREUR CG published a 

memorandum through his SJA establishing that non-deployed lAD units and Soldiers 

would fall under the V Corps Rear jurisdictional structure. The lAD CG then used the 

process described above to request the V Corps rear commander accept jurisdiction of all 

lAD cases at the post-trial stage, which the V Corps rear commander did. The lAD CG 

kept jurisdiction of cases with preferred charges but transferred cases once they reached 

the post-trial phase.47 

43 Id. (noting that the V Corps CG took actions such as considering requests for administrative separation in
 

lieu of court-martial, expert witness requests, and panel member excusals).
 

44 See Dolan Interview, supra note 42.
 

45 See id.
 

46 See Interview with Lieutenant Colonel James 1. Diliberti, former V Corps Deputy Staff Judge Advocate,
 

in Charlottesville, Va. (Oct. 9,2003).
 

47 See Dolan Interview, supra note 42. 

298 
lAD deployed during the investigation oftwo murder cases. After nearly all lAD 

JAs had departed, V Corps Rear JAs took responsibility for these two cases and brought 

them to court-martial with the benefit of pre-trial agreements. Although defense counsel 

in both cases asked the government to produce many deployed witnesses, they were able 

to resolve all witness availability issues without motion litigation.48 Nonetheless, JAs 

must be sensitive to the difficulty involved in producing deployed court-martial 

witnesses. 

3d Infantry Division (3ID) 

A major general based at Fort Stewart, GA commands the Army's 3d Infantry 

Division (Mechanized) (3ID). In September 2002, 3ID's 2d Brigade (2BDE) deployed to 

Kuwait as part of Operation DESERT SPRING,49 where it remained until the rest of the 

Division joined it in January 2003. During Operation DESERT SPRING, 2BDE 

conducted MJ as a deployed special court-martial convening authority (SPCMCA), 

sending serious cases of misconduct back to Fort Stewart for prosecution. Before 

deploying to Kuwait, the 3ID CG decided to bring his UCMJ flag with him. Establishing 

a rear provisional command was unnecessary. At the time OIF planning was occurring, a 

SECARMY General Order (GO) designated the Fort Stewart installation commander as a 

GCMCA. Normally, the 3ID CG is also the Fort Stewart installation commander, and a 

colonel commands the Fort Stewart garrison (managing daily operations). When the 3ID 

CG deployed, the 3ID CG transferred command of the installation to the garrison 

commander, who immediately became a GCMCA by virtue of the SECARMY GO. The 

garrison commander took action on existing courts-martial in his capacity as the acting 

installation commander until the 3ID CG returned to Fort Stewart.50 

When 3ID reconstituted in Kuwait, the 3ID CG issued a policy memorandum 

revising the special and summary court-martial jurisdictional alignment for forces in the 

deployed theater. In garrison, jurisdictional alignment normally followed the five brigade 

structure of the division, hut the revised alignment followed the deployed brigade combat 

team (BCT) structure. 51 Although 3ID handled minor misconduct during the 

48 See id. 

49 See GlobalSecurity.org, available at http://www.globalsecurity.org/military/ops/desert_spring.htm 

(Operation DESERT SPRING was part of an ongoing operation that provided a forward presence and 

control and force protection over Army forces in Kuwait.) (last visited Aug. 15,2008). 

50 See E-mail fromMajorRobertResnick.Chief of Military Justice, 3d Infantry Division, to Captain Daniel 

Saumur, Deputy Director, Center for Law & Military Operations (27 Jan. 2004) [hereinafter Resnick 27 

Jan. 2004 E-mail]. On a typical large Army installation, the installation commander is a major general to 

whom the garrison commander (typically a colonel), responsible for day-to-day management of the 

installation, reports. Id. 

51 See E-mail fromMajorRobertResnick.Chief of Military Justice, 3d Infantry Division, to Captain Daniel 

Saumur, Deputy Director, Center for Law & Military Operations (21 Jan. 2004). 

The CG is the only GCMCA for the Division. All Brigade commanders are SPCMCA, 

subordinate to the CG. Thus, in Garrison, everything worked out with Brigade 

jurisdiction. Companies were assigned to battalions which were assigned to brigades. In 

deployment, per [Army doctrine], we have the [brigade combat teams]. The issue there is 

299 
deployment, it did not try any general or special courts-martial in the deployed theater 

before it redeployed in August 2003. 52 

10lst Airborne Division (Air Assault) (IOIst) 

A major general based at Fort Campbell, KY commands the 10lst Airborne 

Division (Air Assault) (1OIst). Before deployment, the 10lst CG chose to bring his MJ 

flag with him to Iraq. As at Fort Stewart, the Fort Campbell garrison commander (a 

colonel) became the acting installation commander and acquired GCMCA status by 

virtue of the same SECARMY GO. Before deploying, the 10lst CG issued a policy 

designating rear provisional units. 53 

Unlike other large deployed units, the I0Ist had an extremely serious act of 

misconduct before the Iraq invasion. In the early hours of 23 March 2003, a Soldier 

rolled grenades into each ofthree tents occupied by the leadership ofthe Ist Brigade 

(IBDE). In addition, small arms fire struck two officers as they emerged from their tents. 

In the attack, two officers dies, and fifteen others received wounds, induding the IBDE 

Trial Counsel. The perpetrator, Army Sergeant Hasan Akbar, returned to Fort Campbell 

for prosecution, due in part to the lack of a confinement facility in Kuwait and the need to 

focus on military operations.54 

that battalions from DISCOM [Division Support Command], DIVARTY [Division 

Artillery], and DIVENG [Division Engineers] get sliced over to the maneuver brigades. 

This changes the UCMJ alignment for those units from their organic brigade to the BCT 

commander. The organic brigade commanders would have preferred to keep UCMJ 

jurisdiction, but with their battalions dispersed, it was not feasible. As to the CG's 

authority, as the GCMCA and as the commander, this clearly falls under his authority. 

These are his subordinate units. [The Department ofthe Army] determined who to slice 

to the [brigade combat teams]. 

Id. 

52 See Resnick & Pritchard Interview, supra note 7. 

53 See Interview with Colonel Richard O. Hatch, former StaffJudge Advocate, 101 st Airborne Division, in 

Charlottesville, Va. (Feb. 20, 2004) [hereinafter Supplementary Hatch Interview] (noting that the JAproposed jurisdictional alignment scheme served as the framework document for creating the rear 

detachment unit structure). 

54 See Hatch Interview, supra note 8. CFLCC and V Corps JAs assisted with the Akbar pre-trial 

confinement process. The unit initially confined SGT Akbar at the U.S. Army confinement facility at 

Mannheim, F.R.G., but when it appeared that the Akbar case might go to trial as a capital case, the unit 

moved SGT Akbar to the U.S. Army confinement facility at Fort Knox, Kentucky. See also Supplementary 

Hatch Interview, supra note 53; Memorandum, Majors Nicholas F. Lancaster & 1. "Harper" Cook, Office 

ofthe Staff Judge Advocate, 101st Airborne Division (Air Assault), for Record, subject: MAJ Lancaster 

(101st ABN DIV (AASLT) Operational Law) Comments on CLAMO OEF/OIF DRAFT Lessons Learned 

para. 5 (18 May 2004). 

The 101st Chief of Justice [COJ] and [Deputy Staff Judge Advocate (DSJA)] were made 

aware of the situation a couple hours later at the [Division Rear Command Post]. By the 

time the sun came up, the DSJA, LTC Rich Whitaker, and COJ, CPT Lancaster, along 

with the Senior Defense Counsel, MAJ Dan Brookhart, were at the crime scene. While 

CPT Lancaster walked the scene with [Army Criminal Investigators], MAJ Brookhart 

counseled the accused for the first time. Later that night, all three 101st JAs traveled to 

300 
Although the 10 Ist CG decided not to try any general or special courts-martial in 

the deployed theater, the 101 st did handle some minor to moderately severe misconduct 

with nonjudicial punishment, summary courts-martial, and administrative reprimands. 55 

Special and summary court-martial jurisdiction followed the functional deployed brigade 

structure, and the CG selected deployed general and special courts-martial panels in late 

April 2003.56 

Marine Corps Units 

Due to their expeditionary mission and structure, deployed Marine units took a 

different approach to GCM jurisdictional alignment in 2003 than the Army units 

described above. The experience ofTask Force (TF) Tarawa is illustrative. It was 

formed specifically for deployment to Iraq and consisted ofthe 2d Marine Expeditionary 

Brigade (2d MEB) headquarters and attached units. A Marine brigadier general 

commanded TF Tarawa, which fell under the 1st Marine Expeditionary Force (I MEF) 

during the Iraq deployment.57 A MEF is roughly equivalent to an Army Corps and has a 

major general as commander.58 The TF Tarawa and I MEF CGs were statutory 

GCMCAs, and both brought their UCMJ flags to Iraq.59 

Camp Virginia, Kuwait, where CPT Lancaster and MAJ Brookhart represented the 

government and defense respectively at the [pretrial confinement] hearing. The hearing 

was held in a tent at Camp Virginia. That night Akbar was transported to Camp Doha 

and held in a temporary confinement facility until he could be flown to Mannheim F.R.G. 

V Corps JAs were ofgreat assistance by providing a military magistrate, CPT Jeannie 

Smith, a place to conduct the hearing, and assisting the lOlst with several [U.S. Army 

Europe] specific forms required in order to get Akbar into confinement in Mannheim. 

Much of this coordination was done over the partially reliable [tactical] phone and the 

rest was accomplished by scanning and email, as there was no fax capability with the 

lOlst. The entire pre-trial process in US v. Akbar is a case-study in how to conduct 

deployed military justice from a technology standpoint, and our experience echoes that of 

every other deployed unit in that scanning and emailing capability was absolutely 

essential. Without the ability to scan and email documents.military justice would revert 

back to stone tablets and chisels in a deployed environment. 

Id. 

55 See Hatch Interview, supra note 8. 

56 See id. (noting that although the lOIst CG did not want to convene a special or general court-martial in 

theater, at his SJA's urging he took the time to pick SPCM and GCMpanels to ensure they were available 

if needed). 

57 Transcript ofAfter Action Review Conference, Office ofth~ Staff Judge Advocate, Task Force Tarawa, 

and Center for Law & Military Operations, Camp Lejeune, N.C. 5 (2-3 Oct. 2003). 

58 Telephone Interview with Lieutenant Colonel William Perez, U.S. Marine Corps, former StaffJudge 

Advocate, Task Force Tarawa (Jan. 28, 2004) [hereinafter Perez Interview]. 

59Id. Although a major general normally commands a MEF, I MEF had a lieutenant general commander 

during OIF. See UCMJ, art. 22(a)(5) (2008) ("General courts-martial may be convened by - ... (5) the 

commanding officer of ... an Army Group, an Army, an Army Corps, a division, a separate brigade, or a 

corresponding unit ofthe Army or Marine Corps.") (emphasis added). 

301 
During peacetime, 2d MEB is a notional headquarters unit embedded within 2d 

MEF (II MEF) at Camp Lejeune, N.C. In Iraq, 2d MEB/TF Tarawa took command of 

attached elements of 2d Marine Aircraft Wing (II MAW) and 2d Fleet Service Support 

Group (2d FSSG). Both II MAW and 2d FSSG are normally part of II MEF, and their 

CGs have statutory GCMCA status. Nevertheless, in accordance with the TF Tarawa 

operational plan legal annex, all Marines attached to TF Tarawa fell under the GCMCA 

ofthe TF Tarawa CG.60 The TF Tarawa CG promulgated a policy providing that 

subordinate commanders retained special and summary court-martial convening authority 

over the Marines under their operational control. 

The Marines were able to avoid the horne station GCM jurisdictional 

alignment challenges encountered by Army units because nearly all Marine Corps 

installations with large deployable units have a non-deployable installation 

commander (normally a major general) with GCMCA status. This eliminates the 

need to create a rear provisional command or have a garrison commander assume 

command as an acting installation commander. The expeditionary nature ofthe 

Marine Corps means that Marine lAs are comfortable dealing with the 

jurisdictional implications of deployments and complicated task organizations. 

GCMCA jurisdiction generally follows the functional arrangement described 

above, and resolution of potential jurisdictional conflicts usually occurs 

informally.61 TF Tarawa's experience followed standard Marine practice, and it 

resulted in no problems.62 

Although the TF Tarawa deployment involved very little misconduct, 

commanders administered some nonjudicial punishment aboard ship, in Kuwait, 

and in Iraq.63 In a more serious case, a male Marine was under suspicion of 

sexually assaulting a female Marine in Kuwait. The male Marine returned to 

60 See id. (Several months before deploying, the II MAW, II FSSG, and 2d MEB SJAs met to discuss and 

settle these jurisdictional issues informally). 

61 Telephone Interview with Major Ernest H. Harper, U.S. Marine Corps, Professor of Criminal Law, Judge 

Advocate General's Legal Center & School (Jan. 28, 2004). 

62 See Perez Interview, supra note 58. 

63 Id. See also CENTER FOR LAW & MILITARY OPERATIONS, DEPLOYED MARINE AIR-GROUND TASK FORCE 

(MAGTF) JUDGE ADVOCATE HANDBOOK at 89 (2002) (discussing nonjudicial punishment administration 

while aboard ship). A senior Marine JA deployed to OIF adds: 

Because Marines and Sailors do have the right to refuse [nonjudicial punishment] even in 

a combat environment (despite not having the right to refuse when attached to or 

embarked in a vessel), the [Marine Logistics Command] determined that the presence of 

[an Legal Services Support Section (LSSS)] capable oftrying court-martial cases in the 

field was essential to preventing the potential wholesale refusal of nonjudicial 

punishment. 

A Marine LSSS deployed to Kuwait during OIF with the 1st FSSG (part of! MEF). Elements of another 

LSSS deployed as part of the Marine Logistics Command, also in Kuwait. E-mail from Lieutenant Colonel 

Bruce Landrum, U.S. Marine Corps, to Lieutenant Colonel Pamela Stahl, Director, Center for Law & 

Military Operations (7 May 2004). 

302 
Camp Lejeune for trial. By the time of preferral of charges against him, his CG
 

had returned to Camp Lejeune and was able to take action as the GCMCA. 64
 

During the initial stages ofOIF, USAR civil affairs (CA) units had particular 

problems administering justice, as no command took responsibility for them as GCMCA 

or SPCMCA. Neither V Corps, the Marines, nor the reserve headquarters (USACAPOC) 

provided MJ support or accepted GCMCA authority, leading to a jurisdictional vacuum. 

Recent AAR comments about jurisdictional issues in Iraq focus on the
 

impact of the Army's modular force concept. For example, the WIst OSJA
 

indicated that:
 

The UCMJ jurisdiction matched the task organization in [Multi-National 

Division - North]. This made sense, particularly given the "plug and play" 

nature of modularity where BCTs not organic to the 101st Airborne Division (Air 

Assault) still fell under its GCMCA. [However, t]he MJD [MJ Division] failed 

to encourage BCT commanders to continually monitor the task organization and 

the constant flow of units into and out ofMND-N for possible changes in the 

jurisdictional scheme. As a result, it was several months into the deployment 

before many BCTs knew or understood that they were responsible for processing 

UCMJ actions for units that were attached to their BCT by virtue of the task 

organization. For example, 1-32 CAV from 1BCT fell under the 3rd Heavy 

Brigade Combat Team from the 4th Infantry Division (3HBCT/4ID), which in 

tum fell under [Task Force] Band of Brothers. Yet it took several months before 

3HBCT understood that it was the SPCMCA for 1-32 CAY.... The Chief of 

Military Justice (COJ) and/or Senior TC [Trial Counsel] must be in close contact 

with the Chief of the Operational Law Section and receive the most current 

deployment task organization. From that, the COJ and/or Senior TC must 

contact the servicing [BCT legal teams] and bring them into the fold, informing 

them of their anticipated role with subordinate/non-organic units and adjacent 

units. 65 

64 See Perez Interview, supra note 58. 

65 10lst Airborne Division (Air Assault), Office of the Staff Judge Advocate, Operation IRAQI FREEDOM 

05-07 After Action Report, November 2005 - November 2006) 70 (2006) [hereinafter 101 st ABN DIV 

2007 OIF AAR]. A related issue identified by the 10lst ABN DIV OSJA was the impact ofmodularity 

upon existing policy authorizations: 

As the CG, 10lst Airborne Division (Air Assault) deployed as the CG, Task Force Band 

of Brothers, which included several non-organic units, his previous command policies as 

the Division Commander were inapplicable to a large percentage of the Task Force. 

Moreover, all CAM Supplements were inapplicable as they only governed Soldiers 

resident on Fort Campbell. Therefore, the MJD needed to quickly republish Command 

Policy Letters and also republish all guidance in CAM Pubs relevant to military justice 

(e.g., delegation of authority). The Chief, MJD worked with the Operational Law 

attorneys to republish policy letters and republish delegation authority in FRAGO. 

Id. at 71. 

303 
Other OSJAs experiencing the same phenomenon recommended coordination
 

with the staff section responsible for publishing the task organization, as well as
 

subordinate units, to ensure MJ jurisdiction is up to date. They also suggested having a
 

good grasp of both units and alignment before deployment.66
 

The 10 Ist OSJA also found that it was necessary to be alert to jurisdictional issues 

upon return to garrison. In its case, four brigades normally organic to the IOlst, but 

falling under other GCMCAs while deployed, fell back under command of the 101 st CG 

upon their return to horne station. As a result, the WIst OSJA needed awareness of and 

accountability for any pending courts-martial. 

VI.A.3. Provisional Units 

Before deployment, formation of any provisional (rear detachment) unit requires 

approval by the Forces Command (FORSCOM) CG. In the case of4th Infantry Division 

(4ID), the command created provisional units for the six brigades that were deploying, as 

well as the division special troops battalion (STB) to capture division headquarters 

personnel. The 4ID administrative law and MJ sections worked with the G I to ensure all 

provisional units had derivative UICs. Before submitting the request for provisional units 

to FORSCOM through III Corps, 4ID sent the draft to the FORSCOM OSJA to ensure 

there were no problems. 67 Other OSJAs caution the request requires several months for 

processing, and should therefore go to FORSCOM at least three to four months before 

deployment to ensure approval of rear detachment units before departure. 68 

Once provisional units exist, units must reassign non-deploying Soldiers to them 

in order to allow the provisional unit commanders to exercise UCMJ jurisdiction. The 

10th Mountain Division OSJA coordinated with rear detachments to ensure all nondeploying Soldiers had orders assigning them to those units, and recommended Trial 

Counsels (TCs) assist their commands in identifying such Soldiers. As well, it was 

helpful to identify rear detachment commanders early so they could receive any 

necessary training regarding their UCMJ responsibilities. 69 

66 4th Infantry Division, Office of the Staff Judge Advocate, After Action Review, Operation IRAQI 

FREEDOM, January 2006 - March 2007) 30 (2007) [hereinafter 4ID 2007 OIF AAR]; 25th Infantry 

Division, Office of the Staff Judge Advocate (Military Justice Division), After Action Report, Operation 

IRAQI FREEDOM, September 2006 - October 2007 5-6 (2007) [hereinafter 25ID 2007 OIF AAR (MJ 

Division)]. See also OPLAW HANDBOOK, supra note 12, ch. 23, app. A (containing A Handbookfor the 

ChiefofMilitary Justice, providing a step-by-step guide for the creation of provisional units, transferring 

cases to different GCMCAs, and establishing new jurisdictional schemes, also available on JAGCNet under 

the title Deploying Justice). 

67 4ID 2007 OIF AAR, supra note 66, at 30-31. 

68 1st Cavalry Division, Office of the Staff Judge Advocate, After-Action Review, Operation IRAQI 

FREEDOM, November 2006 - December 2007 10-11 (20 Nov. 2007) [hereinafter 1CD 2007 OIF AAR]. 

FORSCOM will also assign a mc code, valid for a maximum of two years. 10th Mountain Division 

(Light Infantry), Office ofthe StaffJudge Advocate, After Action Report, Operation ENDURING 

FREEDOM, February 2006 - February 2007 16 (2007) [hereinafter 10th MTN DIV 2007 OEF AAR]. 

69 10th MTN DIV 2007 OEF AAR, supra note 68, at 16. 

304 
Issues identified in relation to provisional units include dealing with their 

termination. The 10Ist issued orders to its provisional units attaching them to the Fort 

Campbell installation commander for the administration ofUCMJ and adverse 

administrative actions. Each of the orders had a common provision indicating it 

terminated upon redeployment of the 101 st CG unless terminated earlier. This caused 

problems for one BCT organic to the 101 st that deployed after the division and 

consequently remained longer in Iraq. The termination clause resulted in non-deployed 

Soldiers from that BCT returning to it for UCMJ purposes, even though it was still in 

Iraq. The solution was to amend the attachment order to reactivate the provisional unit 

until the BCT returned to home station.70 

70 101st ABN DIV 2007 OIF AAR, supra note 65, at 72-73. 

305 
VLB. MANAGING A DEPLOYED MILITARYJUSTICE 

OFFICE 

Preparing to conduct MJ in a deployed environment requires a determination of 

the required personnel numbers and the order in which MJ personnel will deploy or 

redeploy. This is a calculation somewhat unique to the MJ area. There may still be a 

requirement for personnel to support ongoing MJ activities at horne station, at least 

initially, while the pace ofMJ operations in theater may pick up only a few weeks into 

the deployment. The 1st Cavalry Division (lCD) OSJA therefore decided its senior TC, 

pre-trial NCO, and post-trial NCO would remain in the rear for 60-120 days after 

deployment of the division to close out pending cases and assist the rear detachment in 

prosecuting and processing other cases. 71 

In the case of the 25th Infantry Division (25ID), the Chief, MJ deployed on the 

TORCH party as the first OSJA asset in theater. This allowed him to meet BCT legal 

teams, assess pending actions, and publish panel and board nomination requirements 

before the transfer of authority (TOA). He also updated the 25ID and MND-N GO No.1, 

SJA policies, the confinement facility standard operating procedure (SOP), and the AR 

27-10 supplement at least one week before TOA. He concluded these measures (ensuring 

that necessary lines of communication were open and that the MJ framework was in place 

well before TOA) allowed his MJ team to "hit the ground running."n 

Taking such steps is a wise precaution. Recent AARs have highlighted the 

requirement for deployed JAs to deal with a significant volume of actions, particularly 

investigations, including developing tracking systems to manage their status. Similar 

issues arise in the MJ area. As the 25ID OSJA remarked: 

The Division Military Justice Office was flooded with thousands of [requests for 

assistance], investigations, Senior Misconduct, Negligent Discharge, 

Classified/Sensitive Media Infraction reports, and other matters that required the 

CG's action or endorsement. Moreover, the MJ office compiled multiple reports, 

including, but not limited to: the CG's various misconduct trackers, the pretrial 

and post-trial trackers, Corps' JAAR Report, JAG II, and SJA Update. Key to 

processing such actions is to foster solid lines of communication with the remote 

brigades and ensure a rapid response to all actions submitted to the Military 

Justice Office for processing. Military Justice must maintain a comprehensive 

action database, tracking the location and status of all pending and completed 

actions. Moreover, redundant storage and management devices should be 

7\ 1CD 2007 OIF AAR, supra note 68, at 11. 

12 25ID 2007 OIF AAR (MJ Division), supra note 66, at 5. The 25ID OSJA suggested the MJ division 

should consist of a Chief of Justice, senior TC, NCOIC, senior court reporter, and two junior enlisted 

Soldiers/NCOs; depending on case load, another TC might be necessary. Id. at 1. Military justice 

personnel may also wish to consider establishing liaison with investigative assets (e.g., Criminal 

Investigation Division or military police investigators), making sure they are available on all FOB/COB 

locations in the area of operations at TOA, and developing a strategy to coordinate the efforts of the various 

law enforcement agencies supporting the MJ mission. Id. at 9. 

306 
employed. Such tools include creating an electronic database of scanned 

investigations (ensuring proper segregation of classified vs. unclassified 

materials), maintaining hard copies, and forwarding copies/originals to the unit of . . 73 

ongm. 

In order to manage some ofthe multitude of actions, the 3ID OSJA established 

two trackers, one for courts-martial, the other for senior leader misconduct). They 

suggested other OSJAs may wish to implement such tools in advance of deployment to 

allow accurate record-keeping from the outset. Timely establishment of electronic and 

physical filing systems (with sufficient electronic and physical storage space) was also 

helpful. Where possible, shared folders allowed attorneys and paralegals to access a 

document someone else drafted. 74 

The difficulty ofmaintaining the upper hand over such an overwhelming number 

of issues increased when units under the division's control were located elsewhere. For 

example, the 4ID OSJA reported its 1st Brigade Combat Team (lBCT) headquarters, 

including the JAs and paralegals, were at Camp Taji, but IBCT also had elements at 

other locations, such as Camp Liberty. As a result, IBCT assigned a paralegal to live at 

Camp Liberty and handle Article 15 paperwork; a TC at Camp Liberty assisted 

commanders when IBCT JAs were unavailable. Any TCs or paralegals providing 

assistance outside of their own units in such circumstances should ensure the parent 

brigade is aware ofthis. 75 

In some cases, newly-arrived brigades were unfamiliar with procedures for 

processing actions in theater, as opposed to at home station. The 3ID OSJA 

recommended MJ personnel develop an SOP for all brigades falling under the division. 

It should include copies of all relevant documentation, such as convening orders, docket 

request forms, sample CG actions, report timelines and examples, and information on 

pre- and post-trial confinement in Kuwait, as well as a detailed description of brigade and 

division responsibilities. 76 

73Id. at 5. 

74 3d Infantry Division (Mechanized), Office ofthe Staff Judge Advocate, After Action Review, Operation 

IRAQI FREEDOM, March 2007 - June 2008 10 (2008) [hereinafter 3ID 2008 OIF AAR]. The 3ID OSJA 

noted MJ activity occurs mostly on the NIPRNet due to limited TDS access to SIPRNet, but NIPRNet 

offered no file sharing capability, resulting in documents being retyped when different attorneys or 

paralegals were out to brigades. Id. 

75 4ID 2007 OIF AAR, supra note 66, at 30. 

76 3ID 2008 OIF AAR, supra note 74, at 12. 

307 
VI.C. MILITARYJUSTICE ATHOME STATION 

During a deployment, the command's attention focuses on operations in the
 

forward setting, but experience demonstrates JAs must also prepare to handle MJ at a
 

deployed unit's home station.77 As discussed above, these preparations should include
 

clarifying command relationships for non-deployed personnel, establishing rear
 

detachment jurisdictional alignments, and (as necessary) transferring active court-martial
 

cases to a rear detachment GCMCA. Deployed units should be able to handle MJ in the
 

rear successfully by taking the following additional measures:
 

•	 developing habitual relationships with RC legal personnel and integrating 

them into deployment planning; 

•	 leaving experienced active duty legal personnel at the home station; and 

•	 taking measures to dispose of ongoing MJ matters before deployment. 

In many contingency operations, units deploy the majority oftheir active duty legal 

personnel, with RC personnel stepping in to help handle legal affairs at the home station.78 For 

example, members of the 174th LSO helped manage legal affairs at Fort Stewart during 3ID's 

deployment to Iraq.79 Likewise, the 139th LSO and 3397th Garrison Support Unit (GSU) 

managed legal affairs at Fort Campbell during the 101st deployment there. These three units 

were successful in large part because of existing relationships with the Fort Stewart and Fort 

Campbell OSJAs. In addition, their activation occurred in time to work with deploying active 

duty JAs before 3ID and the 101st deployed. Although some of the 174th LSO JAs were 

experienced civilian criminal law advocates, they were sometimes unfamiliar with the details of 

court-martial practice and the fact patterns of ongoing cases. They successfully overcame these 

challenges by discussing cases and court-martial practice with active duty JAs.8o 

Other SJAs choose to leave experienced active duty JAs at the home station to 

manage MJ matters. For instance, the V Corps Senior Trial Counsel remained in 

Germany and managed MJ matters for the V Corps Rear Command when the corps 

deployed in support of OIF. Similarly, the 3ID Deputy SJA did not deploy to Iraq in 

2003, but stayed at Fort Stewart to help manage legal affairs there, including MJ. Units 

77 See, e.g., BALKANS LL, supra note 13, at 178 (discussing the challenges associated with handling rear 

detachment MJ actions). 

78 See Dolan Interview, supra note 42; Hatch Interview, supra note 8; Transcript of After Action Review 

Conference, Office ofthe Staff Judge Advocate, 3d Infantry Division, and Center for Law & Military 

Operations, at Fort Stewart, Ga. 1 (18-19 Nov. 2003) [hereinafter 3ID 2003 OIF AAR Conference 

Transcript]. 

79 The term "reserve component" in this publication refers to both USAR and ARNG Soldiers. Many RC 

legal personnel also deployed to Iraq and Afghanistan, often for long periods, with involvement in all 

aspects of military operations. See, e.g., Lieutenant Colonel Kirk G. Warner, 12th Legal Support 

Organization Senior Deployed Judge Advocate, The 12th LSO Team in Support of Operation IRAQI 

FREEDOM (7 February to 12 October 2003) (2003). 

80 See 3ID 2003 OIF AAR Conference Transcript, supra note 78; Supplementary Hatch Interview, supra 

note 53. 

308 
should attempt to leave at least one experienced active duty MJ practitioner at the home 

. MJ 81 statIOn to manage . 

Before a deployment, mission constraints often factor more heavily into case 

disposition than they otherwise might. 82 Commanders resolve MJ matters on a case-bycase basis, weighing many factors, including the merits and equities of the case, the 

SJA's advice, and mission requirements. Witness availability and deployment of active 

legal personnel can make trying courts-martial challenging. In addition, non-deployed 

personnel awaiting court-martial or administrative separation often present disciplinary 

challenges.83 Commanders preparing to deploy can minimize these potential distractions 

by resolving cases through pre-trial agreements, requests for discharge in lieu of courtmartial, and administrative separations. While commanders and SJAs should be careful 

not to hold wholesale MJ "fire sales," taking reasonable measures to expeditiously 

resolve cases is always advisable. 84 

81 See 3ID 2003 OIF AAR Conference Transcript, supra note 78; 12th LSO 2004 OIF AAR Conference, 

supra note 32 (noting that RC legal personnel typically do not have experience conducting courts-martial 

unless they have been on active duty, and this generally proved true during OIF). 

82 See 12th LSO 2004 OIF AAR Conference, supra note 32; Dolan Interview, supra note 42. 

83 See, e.g., Supplementary Hatch Interview, supra note 53 ("Do not underestimate the amount of work 

these Soldiers will cause to rear detachment [officers-in-charge] and stay-behind trial counsels."). Many of 

these Soldiers committed further misconduct while the division remained deployed forward. Id. 

84 V Corps lAs approached defense counsel in many cases and explicitly stated they were willing to dispose 

of cases more generously (to the accused) than they otherwise might. In some instances, defense counsel 

may have mistaken these overtures as the government's unwillingness or inability to prove the case rather 

than a straightforward desire to dispose of the case expeditiously. See Dolan Interview, supra note 42. The 

lOlst CG wanted to attempt to separate Soldiers with disciplinary problems, as appropriate, in order to fill 

"slots" with other personnel. See Supplementary Hatch Interview, supra note 53. 

309 
VID. CONDUCTING DEPLOYED COURTS-MARTIAL 

VI.D.l. Court-Martial Convening Orders (CMCOs) 

Both the lOlst and 3ID OSJAs received a reminder ofthe need for precision when 

drafting a court-martial convening order (CMCO). In the case of the lOlst, it was 

incorrect to refer to GO No.3, whereby SECARMY designated as a GCMCA the 

"Commander of the lOlst Airborne Division (Air Assault) and Fort Campbell, 

Kentucky." As the Commander ofthe 101st Airborne Division was no longer in 

command ofthe Fort Campbell installation while deployed, his GCMCA authority 

instead flowed from UCMJ art. 22(a)(5), which designates any division commander as a 

GCMCA. 85 For 3ID, on the other hand, the issue arose because the CG assumed 

command of Multi-National Division - Center (MND-C) which, as a new MND, did not 

have a GO granting it authority to convene general courts-martial. As a result, in order to 

cite UCMJ art. 22(a)(5), the CMCO had to indicate MND-C was also a numbered 

division, i.e., "Multi-National Division - Center and 3rd Infantry Division.,,86 

VI.D.2. Panels 

After action reports often describe the measures implemented by OSJAs to select 

panels as quickly as possible once deployed. The 4ID and 25ID OSJAs reported starting 

the process before deployment by soliciting nominations from subordinate brigades. 

Although some BCTs were outside the CG's authority at the time ofthe request, they 

recognized the benefits of voluntary compliance. The 25ID Chief, MJ also broadened the 

normal nomination criteria, asking for more senior officers and NCOs than previously 

solicited for panels selected in the rear. This created a wider pool from which the CG 

could select panel members. The early nomination process allowed the 4ID CG to pick a 

new panel at his first MJ appointment without having to wait for units to provide 

nominations. This prevented the development of any backlog of courts-martial.87 

The lOlst OSJA also counseled advance preparation, regarding it as optimal to 

have a CMCO and panel within weeks of TOA. Again, this required close coordination 

between the MJ division and BCT JAs to gather the requisite names and supporting 

documentation. The OSJA noted that, although the convening authority cannot sign the 

CMCO until after such units fall under the GCMCA at TOA, drafting and acquiring the 

panel nominees, supporting documents, and SJA advice occur beforehand to the extent 

possible. 

Location was a second consideration with respect to panel selection, with 

preference given to members located on or near a main base (having to fly in panel 

members would have created logistic challenges, particularly given the uncertainty of air 

85 lOlst ABN DIV 2007 OIF AAR, supra note 65, at 71. The OSJA did note, however, that the error was 

not fatal, as any error would have been of form rather than substance. Id. 

86 3ID 2008 OIF AAR, supra note 74, at 12. 

87 4ID 2007 OIF AAR, supra note 66, at 29-30; 25ID 2007 OIF AAR (MJ Division), supra note 66, at 2. 

310 
flow).88 Selecting panel members from non-organic units required strict attention to
 

anticipated redeployments, changes to the task organization, and any other factors that
 

might cause those individuals to drop offthe panel.89
 

However, panel membership did tend to fluctuate over the course of the 

deployment. The 3ID aSIA reported the initial panel included members previously 

selected by brigades already in theater when the division deployed. Additional panel 

members came on as alternates to supplement the panel as brigades rotated in and out of 

theater. Doing so allowed all representation of all brigades without having to pick an 

entire new panel (this was done only after substantial changeover occurred and affected 

the number of panel members).90 

VLD.3. Choice ofVenue 

Given the maturity of the Afghan and Iraqi theaters, commanders now have a
 

choice ofwhether to conduct courts-martial in theater or at home station. The 25ID
 

aSIA AAR described some of the relevant considerations:
 

During this deployment, the [CG] and his subordinate commanders had to decide 

whether to disrupt combat operations and transport witnesses to COB Speicher 

for courts-martial, as well as placing civilian and non-deployed military 

personnel in harm's way by traveling to testifY. Often the decision was made to 

try contested and complex cases in rear, where the Accused could exercise all of 

his or her due-process rights with minimal intrusion on the unit or danger to 

civilian and non-deployed DoD personnel. This Course of Action should be 

considered when doing so would not frustrate good order and discipline or send a 

message that committing misconduct results in a trip out of the combat zone.

91 

VLD.4. Media Issues 

Complex cases, such as murder, may garner significant media attention. This 

requires MI personnel to work closely with public affairs officers to ensure the release of 

appropriate information without affecting the command's ability to move forward with 

the prosecution (e.g., preventing any perception of undue command influence). The 25ID 

aSIA noted that media plans might need implementation for both Article 32 

investigations and court-martial proceedings, and recommended the Chief, MI come 

prepared with draft media plans and other resources. As well, the Department ofthe 

88 101 st ABN DIV 2007 OIF AAR, supra note 65, at 78; 3ID 2008 OIF AAR, supra note 74, at 12. 

89 1CD 2007 OIF AAR, supra note 68, at 11. 

90 3ID 2008 OIF AAR, supra note 74, at 12. 

91 25ID 2007 OIF AAR (MJ Division), supra note 66, at 2-3. The 25ID Chief, MJ also reported that 

several BCTs deployed Soldiers they knew would face courts-martial in Iraq. He suggested making 

determinations regarding deployment in such circumstances on a case-by-case basis (e.g., if all the 

witnesses are within the unit and are also deploying to Iraq, "there is an obvious economy to deploying 

with the case and trying it in Iraq"). ld. at 8-9; see also 10lst ABN DIV 2007 OIF AAR, supra note 65, at 

79. 

311 
Army public affairs office publishes a media guide for high-visibility cases that provides 

a framework for addressing many ofthe attendant media issues.92 

VI.D.5. Classified Information 

The 3ID OSJA suggested MJ personnel who encounter a file appearing to contain 

classified information have G2 personnel screen it. When classified material is at issue in 

a proceeding, legal personnel should become familiar with Military Rule of Evidence 

(MRE) 505 and RCM 405(g)(6). It is also important to know which rules apply before 

and after charge referral. Contact with the original classification authority is important at 

an early stage, because MJ personnel will need to work closely with that individual to 

assert the MRE 505 privilege. MJ personnel should request the convening authority (prereferral) or military judge (post-referral) issue protective orders. The convening authority 

should also appoint a qualified security officer to manage the flow of classified 

information and should ensure all members ofthe court have the appropriate clearances 

to participate in the proceedings.93 . 

If MJ personnel have a requirement to transmit classified records, the easiest way 

to ensure safe transportation is to obtain a courier order for hand-carrying them. When 

dispatching a record to the clerk of court, legal personnel should coordinate with the unit 

mailroom to ensure proper preparation ofthe required memos. Additionally, personnel 

should check AR 380-5, Department ofthe Army Information Security Program, for the 

procedures involved in handling and mailing classified information. 94 

VI.D.6. Logistic Issues 

Preparation to hold courts-martial in theater may begin well in advance of 

deployment. The 25ID OSJA recommended MJ personnel set out all court-martial 

requirements - everything from pre-trial support to post-trial transport to the theater field 

detention facility - in the legal annex and the AR 27-100 supplement before TOA.95 This 

may also be an opportune time to ensure brigade JAs understand their court-martial 

obligations.96 The 3ID OSJA indicated it had encountered confusion over the respective 

responsibilities of division and brigade JAs: "Many brigades were not accustomed to 

working with a remote division office. The brigades assumed that division would cover 

specific responsibilities. Division assumed that the brigade had handled most logistics. 

This resulted in work being delayed and people scrambling at the last minute to make 

arrangements.,,97 

92 25ID 2007 OIF AAR (MJ Division), supra note 66, at 4. 

93 3ID 2008 OIF AAR, supra note 74, at 14. 

94/d at 15; U.S. DEP'TOF ARMY, REG. 380-5, DEPARTMENT OF THE ARMY INFORMATION SECURITY 

PROGRAM ch. 8 (29 Sept. 2000). 

95 25ID 2007 OIF AAR (MJ Division), supra note 66, at 9-10. 

96 101st ABN DlV 2007 OIF AAR, supra note 65, at 78. 

97 3ID 2008 OIF AAR, supra note 74, at 12. 

312 
Once a convening authority decides to hold a court-martial, some OSJAs suggest 

publication of a fragmentary order (FRAGO). The order should detail when required 

personnel (e.g., witnesses, counsel, judge, bailiffs, escorts, etc.) should fly to the forward 

operating base (FOB) hosting the court-martial, as well as direct provision of lodring for 

those that require it, and coordinate a non-tactical vehicle for the military judge.9 As the 

101st OSJA observed, "The logistical aspects of Court-Martial operations [are] 

exponentially more difficult in the deployed setting than compared to the rear.,,99 

As the ICD OSJA reported, many ofthe difficulties revolved around witness
 

production:
 

Witness production in Iraq is resource intensive. Even moving Soldiers in 

theater for a court-martial will tax line units when the Soldiers live and work off 

Victory Base Complex. Every witness movement requires either a seat on 

helicopter or a convoy. A contested rape case shut down a line company for 

almost a week as they moved witnesses and managed the other logistics 

associated with trial. In addition, plan to coordinate billeting for panel members 

and witnesses. . .. Plan early for witness travel (at least three weeks) - it will 

take longer and be more involved than initially expected. Designate an NCO to 

become the expert on production of out oftheater witnesses, but have a back-up 

Paralegal who knows how to work the system. Closely coordinate with the LNO 

in Kuwait to help move witnesses quickly when coming from out of theater.... 

Witnesses, particularly Iraqi civilian witnesses, will disappear before trial. 

Additionally, military witnesses, especially law enforcement personnel, will 

rotate on different timelines. Plan for witnesses to be absent. Always ask two 

questions of witnesses: When is your [environmental and morale leave]? and 

when is your unit redeploying? ... [C]arefully track witness movements. 

Develop plans to depose Iraqi witnesses after preferral. 100 

Iraqi witnesses required special consideration. The 101st OSJA handled two 

high-profile murder cases during its deployment, both with multiple accused and 

involving Iraqi witnesses at the UCMJ Article 32 investigations. In order to ensure equal 

access to each witness by various defense teams, the convening authority for each Article 

32 hearing assigned an interpreter to each team. Given the possibility the MJ division 

would not be able to compel or convince the witness to testify at trial in the United States, 

there was a verbatim record of each hearing. This required nine interpreters, but ensured 

98 25ID 2007 OIF AAR (MJ Division), supra note 66, at 9-10. In some cases, the type of court-martial 

dictated the choice of location. The 4ID aSJA indicated they tried contested and panel cases at the Camp 

Liberty courtroom to facilitate transportation of witnesses and panel members (the Legal Center was 

responsible for arranging all temporary rooms for witnesses and panel members through the Mayor's Cell). 

All judge-alone cases, with the exception ofthose involving large numbers of witnesses, went to trial at the 

Camp Victory courtroom. 4ID 2007 OIF AAR, supra note 66, at 29. 

99 101st ABN DIV 2007 OIF AAR, supra note 65, at 78. 

100 1CD 2007 OIF AAR, supra note 68, at 12. To minimize the impact of courts-martial upon units, the 

101 st ABN DIV aSJA suggested requiring all accused Soldiers pleading guilty to stipulate to the expected 

testimony of any witness located on a base distant from the courtroom. 101 st ABN DIV 2007 OIF AAR, 

supra note 65, at 81. 

313 
the testimony would be available at trial if the witness were not. The aSJA suggested 

use of such practices in any MJ action involving Iraqi witnesses. The MJ division also 

had to be prepared to provide a Koran to each witness, and be familiar with the process of 

swearing an Iraqi to his or her testimony. 101 

A further layer of complexity in logistic preparations was present when a court­


martial involved civilian personnel- whether lawyers or witnesses - from outside
 

theater. In the case of the former, the 10th Mountain Division (Light Infantry) (10th
 

MTN DIV) AAR described the ensuing obligations upon the TC:
 

Civilian counsel was retained by an accused in theater, to provide representation 

at a general court-martial and related proceedings. Since an accused has the right 

to retain civilian counsel at no expense to the Government, Trial Counsel must 

provide assistance necessary to facilitate counsel's entry into theater. In order to 

bring civilian counsel into theater, the Government must provide counsel with 

invitational travel orders, obtain a country clearance from U.S. Central 

Command, arrange for counsel's lodging, and potentially military air and ground 

transportation. Additionally Trial Counsel should research passport and visa 

requirements for a civilian counsel to travel into theater. Such requirements may 

include passport, visa, and other immigration documents. . .. Each deployed 

aSJA should develop an information paper or policy regarding civilian counsel 

entering theater to provide trial defense service. The policy should address 

invitational travel orders, country clearances, lodging, theater specific 

immigration requirements, and travel for counsel. The policy should also address 

reimbursement and hold harmless agreements that civilian counsel must 

voluntarily enter into with the Government prior to entering theater. Finally, 

such policies should include the steps required for the Government to seek 

reimbursement from counsel for all government benefits (i.e., food, lodging, 

travel, and meals) conferred upon counsel during his visit to theater. 102 

In the case of the latter, a video-teleconference (VTC) was sometimes possible. 

The 4ID aSJA dealt with a witness unable to travel back to Iraq from the United States 

due to medical conditions resulting from an improvised explosive device (lED) attack. 

Both the government and defense requested VTC testimony, and the judge allowed it for 

the merits. The Camp Victory courtroom is the only one in Iraq equipped to hold a VTC. 

To use it, the government must first coordinate with Camp Victory, then with the home .. . 103 statIon III questIOn. 

101 101st ABN DIV 2007 OIF AAR, supra note 65, at 80-81. 

102 10th MTN DIV 2007 OEF AAR, supra note 68, at 18. 

103 4ID 2007 OIF AAR, supra note 66, at 29. According to the 101st ABN DIV OSJA, the TC or legal 

administrator is responsible for arranging for the VTC. Generally, although the legal administrator will 

know the G-6 personnel responsible, it will be incumbent on the TC to work with the operational law 

attorneys to publish the VTC in the division daily FRAGO to ensure that everyone is aware of it. The legal 

administrator should meet with the G-6 Soldiers and contractors responsible for VTC scheduling at an early 

date to coordinate all the VTC setup. Finally, the OSJA recommended TCs request VTC use whenever 

possible. 101st ABN DIV 2007 OIF AAR, supra note 65, at 77. However, the 4ID OSJA suggested TCs 

also be prepared to produce civilian witnesses from the United States. In at least one case, the judge 

ordered production of a civilian witness after the government had denied it. In order to deal with this 

314 
The 101st OSJA AAR explained, however, that VTC use for U.S.-based 

witnesses is likely to be the exception rather than the rule: 

An accused in a Court-Martial has a 6th amendment right to confront the 

witnesses against him or her. The 6th amendment's guarantees boil down to this: 

the government needs to produce all its witnesses in person. Videoteleconference or telephonic testimony may not satisfy the 6th amendment. 

While the accused may waive their 6th amendment right of confrontation, they 

have no incentive to do so in a contested case. Additionally, the defense is 

entitled to the production of relevant and necessary witnesses of its own, adding 

further burdens on the government when trying a contested case in Iraq. Thus, 

the most challenging aspect oftrying cases in Iraq was the specter of calling 

witnesses forward from outside Iraq to testify and the possibility that the need to 

obtain such witnesses would derail the Court-Martial. This dynamic came into 

play most often for Soldiers who engaged in misconduct before deploying and 

then were deployed forward with their units. In those cases, many of the 

significant witnesses were in CONUS at or near the unit's home station. 104 

Where civilian witnesses did travel into theater, as with civilian counsel, the 

government had to provide for their travel and obtain country clearance for them. A final 

complication with respect to civilian witnesses was the lack of authority to compel their 

production outside U.S. territorial limits. 105 

possibility, TCs should request that the judge set an early deadline for witness requests; this will ensure that 

any civilian witnesses have time to obtain passports, if needed. If the government plans to oppose the 

production of witnesses, TCs should request a telephonic 802 session to litigate the issue well before trial. 

4ID 2007 OIF AAR, supra note 66, at 29. The converse of this issue occurred when counsel sought the 

presence of a deployed witness at judicial proceedings in the United States. Before requesting production, 

counsel received guidance to thoroughly evaluate their relevance and necessity, as well as negotiate with 

defense counsel regarding alternatives to live testimony. The written request for production submitted to 

the witness's commander should canvass both issues, Where negotiations were unsuccessful, and witness 

production was difficult, or likely to have a substantial impact on operations, counsel received advise to 

raise the issue of witness production with the military judge. Where the judge ordered production and the 

unit was unwilling or unable to comply, the convening authority should withdraw the referred charges 

without prejudice until a later date when the witness would be available. 10th MTN DIY 2007 OEF AAR, 

supra note 68, at 17-18. 

104 101st ABN DIY 2007 OIF AAR, supra note 65, at 79. The 101st ABN DIY OSIA AAR noted, 

however, that because most courts-martial during deployment were guilty pleas pursuant to an offer to 

plead guilty, the need to arrange travel for civilian witnesses arose on only a few occasions. The 101 st 

OSIA did in fact find that, while the government suggested to defense counsel on several occasions 

arranging a YTC for witnesses, defense counsel never agreed, and case law supported their refusal if the 

witness was a merits witness during the court-martial. Nonetheless, YTC was an acceptable alternative 

during Article 29(2) hearings and presentencing, if allowed by the judge. ld. at 77. 

1051d. at 79. The 101st ABN DIY OSIA also commented that any case requiring forensic testimony 

regarding urinalysis, blood test, or chemical analysis required the government to produce an expert witness 

to lay the necessary evidentiary foundation, and such experts invariably had to come from the United 

States. ld. at 79-80. 

315 
VLE. MAGISTRATES & JUDGES 

VIE.I. Judges 

Recent AARs have provided some insight into the logistic challenges associated 

with ensuring the availability of military judges to conducts courts-martial in Iraq. The 

101st, for example, held six court-martial terms at Contingency Operating Base (COB) 

Speicher during its deployment, each typically lasting three to five days. The military 

judge flew in from Germany for each term, and would usually hear motions and three to 

five courts-martial. Because a court-martial term was usually occured between other trial 

terms occurring within other GCMCAs/FOBs in Iraq and Kuwait, careful planning and 

coordination with the judge was necessary to ensure the trying of all referred cases during 

each term. 106 

At times, this required the judge to block out space on the docket for cases the 

command had not yet referred. Consequently, inaccurate forecasting of numbers and/or 

types of courts-martial by the MJ division caused significant amounts of time toward the 

end of deployment where the judge was present at COB Speicher, but had nothing to do. 

However, judges were generally very accommodating of the challenges faced by both 

government and the defense in the deployed environment. The 101st OSJA 

recommended maintaining close coordination between the MJ division, Trial Defense 

Service (TDS), and judges in order to forecast accurately the length of time a judge will 

need to spend at a particular FOB or COB. This also ensures judges do not travel to 

oversee trials only to find empty dockets. 107 

Military judges stayed during trial terms in COB Speicher's distinguished 

visitors' quarters, several miles from both courtroom and dining facilities. Obtaining a 

non-tactical vehicle for their use required prior coordination. The 101 st suggested 

coordinating administrative arrangements for judges with the garrison commander and 

formalizing it in a FRAGO. At a minimum, judges require in-theater telephone 

capabilities, but preferably worldwide telephone access, as well as basic internet for insession research and email communications (e.g., a laptop for the bench with access to 

the Military Judges Benchbook). As well, VTC capability is helpful to avoid 

unnecessary witness travel. 108 

The 4ID OSJA likewise reported judges from Germany on a roving docket that 

included Iraq and Kuwait tried all of their courts-martial. Once a judge landed in 

Baghdad, Iraq-based personnel were responsible for making travel arrangements. In 

4ID's case, the judge stayed at the Camp Victory courthouse and Multi-National CorpsIraq (MNC-I) was responsible for transportation to and from the helipad. 

106Id. 

107Id. 

108Id. 

316 
The judge sent out the docket through his Gennany-based clerk in advance, to 

give all Iraq-based parties an opportunity to docket cases. Judges were generally very 

flexible about trying multiple cases in one day or trying cases through the evening to 

complete as many as possible. Most communication with judges was via email, with info 

copies to clerks to ensure the docket was up to date. It is imperative for judges to know a 

unit's redeployment dates early, especially when the expectation is two divisions will 

depart theater at approximately the same time. 

Military justice divisions and judges also need to remember that, under the 

modular force concept, BCTs arrive and depart theater at different times than the 

supervising headquarters. They need to plan accordingly when docketing cases at the end 

ofBCT and division deployments. Finally, the 4ID aSJA found requesting a judge to 

travel to Baghdad before redeployment allowed final issues to be resolved without having 

to withdraw court-martial charges or risking not meeting the 120-day speedy trial 

clock. 109 

VLE.2. Magistrates 

The 4ID aSJA deployed to Iraq with three magistrates, all stationed at the 

division headquarters at Camp Liberty. To ensure that magistrates remained neutral and 

detached, the division did not nominate any at the brigade level. Midway through the 

deployment, chiefjudge in Gennany appointed new magistrates due to changedjob 

assignments that conflicted with magistrate duties. Most magistrates perfonned their 

duties by telephone due to the geographic dispersal of the BCTs in the Aa. Magistrates 

sent their quarterly reports and all pre-trial confinement memos to the chiefjudge and his 

clerk in Gennany. In the event of conflict, or when a division magistrate was 

unavailable, MNC-I magistrates assisted. IIO 

The 101 st aSJA recommended units avoid using military magistrates to backfill 

positions that might at some point prevent them from continuing to act as magistrates 

(e.g., TC). Ifthis is unavoidable, units should implement a plan to appoint new 

magistrates as JAs change jobs or redeploy. I I I The 1CD aSJA AAR suggested it is good 

practice to require all part-time military magistrates to bring electronic copies oftheir 

signed appointment memoranda with them. 112 

109 4ID 2007 OIF AAR, supra note 66, at 28-29. 

II0Id. 

III 101st ABN DIV 2007 OIF AAR, supra note 65, at 30. 

112 1CD 2007 OIF AAR, supra note 68, at 10. 

317 
VLR INVESTIGATIONS & SEARCHES 

In a deployed setting, Criminal Investigation Division (CID) involvement is 

necessary in a number of investigations, including war crime allegations and non-combatrelated U.S. servicemember deaths. As a result of this expanded role, CID has less time 

to focus on conducting "traditional" investigations into criminal misconduct committed 

by u.s. Soldiers. l13 Accordingly, individual units often must conduct their own 

preliminary investigations under RCM 303. 114 In addition, military police investigators, 

those responsible for investigating lower-level crimes, generally do not deploy. Legal 

teams must therefore be prepared to advise their commanders to conduct their own 

investigations. Judge Advocates then assume the burden of advising investigating 

officers regarding the scope of investigation, preserving evidence, and adhering to 

applicable regulations. 115 

Where an investigation results in a search, the 4ID OSJA found careful 

coordination between units, JAs, magistrates, and law enforcement personnel was 

essential. Most units chose to have a magistrate, rather than the commander, approve the 

search. This helped ensure the authorization would more likely withstand a challenge. 

All magistrate assignments were at Camp Liberty (Iraq). When CID personnel requested 

a search, they emailed a completed warrant and supporting documentation to the 

magistrate. CID maintained a roster of magistrates, and usually communicated with them 

by phone or email. 116 

113 The 101st ABN DIV OSJA reported COB Speicher CID investigated only felony-type offenses, but an 

Air Force Security Forces detachment arrived to fill the investigative void. 101st ABN DIV 2007 OIF 

AAR, supra note 65, at 78. 

114 See MCM, R.C.M. 303 (2002) (stating that "Upon receipt of information that a member of the command 

is accused or suspected of committing an offense or offenses triable by court-martial, the immediate 

commander shall make or cause to be made a preliminary inquiry into the charges or suspected offenses."). 

The Discussion section ofR.C.M. 303 continues, stating: 

The preliminary inquiry is usually informal. It may be an examination of the charges and 

an investigative report or other summary of expected evidence. In other cases a more 

extensive investigation may be necessary. Although the commander may conduct the 

investigation personally or with members ofthe command, in serious or complex cases 

the commander should consider whether to seek the assistance of law enforcement 

personnel in conducting any inquiry or further investigation. 

Under AR 15-6, a commander may choose to order members of his/her command to conduct a formal or 

informal investigation into allegations of misconduct. 

liS See CENTER FOR LAW& M1L1TARY OPERATIONS, LEGAL LESSONS LEARNED FROM AFGHANISTAN AND 

IRAQ, VOLUME II: FULL SPECTRUM OPERATIONS (2 May 2003 - 30 June 2004) 200 (l Sept. 2005) 

[hereinafter OEF/OIF LL, Vol. II]. 

116 4ID 2007 OIF AAR, supra note 66, at 31. 

318 
VL G. CONFINEMENT 

When Soldiers commit serious crimes, commanders may want to place the 

offender in pretrial confinement. 1

17 In a deployed environment, confinement facilities 

may not be easily accessible. 1

18 This may be due to a number ofreasons, including the 

type ofterrain the offender must travel, distance to the confinement facility, guard and/or 

escort requirements, time constraints, administrative processing requirements, and a 

scarcity of the vehicles and/or aircraft needed to transport the accused to the confinement 

facility. Although all commanders want to be able to confine a Soldier when necessary, 

they often do not consider these factors. Before deployment, lAs should explain to 

commanders the obligations and logistic limitations placed upon units when they put a 

servicemember in confinement. Furthermore, paralegals must understand confinement 

procedures and have the ability to coordinate with confinement facilities both within and 

outside the theater of operations. It is invaluable to have a knowledgeable paralegal 

responsible for coordinating all the details to properly confine an accused, from inprocessing to release. 1

19 

The 4ID OSlA reported all Soldiers requiring in pre-trial or post-trial confinement 

during its deployment to Iraq went to the theater field detention facility (TDF) in Arifjan, 

Kuwait. In order to ensure compliance with TDF requirements, the OSlA suggested the 

deployed Chief, Ml coordinate prospective confinements with the Chief, Ml at Arifjan. 

As well, units should ensure all confinement paperwork uses the current form flow files, 

and contains all required information. The TDF normally allows pre-trial confinees to 

remain a maximum ofthirty days. Units wanting to extend pre-trial confinement past this 

point must submit a request signed by the GCMCA explaining why it should continue. 

Units that do not coordinate this with the Arifjan Chief, Ml risk encountering problems. 

These may include finding out - when arranging transportation for a Soldier to attend his 

or her court-martial - that he or she has gone to a confinement facility in the United 

States or Germany. 120 

117 See MCM, R.C.M. 304 (defining pretrial restraint as the "moral or physical restraint on a person's 

liberty which is imposed before and during disposition of offenses. Pretrial restraint may consist of 

conditions on liberty, restriction in lieu of arrest, arrest, or confinement."). 

118 See After Action Review Conference, Office of the StaffJudge Advocate, 1st Armored Division (lAD), 

and Center for Law & Military Operations, in Wiesbaden, Germany (8 Sept. 2004) [hereinafter lAD AAR]. 

119 OEF/OIF LL, Vol. II, supra note 115, at 201. 

120 4ID 2007 OIF AAR, supra note 66, at 32. 

319 
VLH. GENERAL ORDERS (GOs) 

Every U.S. Army operation during the last fourteen years has featured at least one 

general order (GO), usually drafted by the SJA, prohibiting members ofthe command 

from activities deemed by the CG to be harmful to the mission. 121 A GO's provisions 

often govern gambling, alcohol consumption, possession of unauthorized weapons and 

other munitions, currency exchange, war trophies, and respect for local culture. 

General orders can be the source of many legal and morale issues, so careful and 

deliberate crafting of the document by the SJA is a must. 122 Examples from past 

operations may provide useful templates. 123 The blanket alcohol prohibition caused 

difficulties in Bosnia almost immediately. Local culture considered consumption of 

some alcohol to be a necessary part ofpolitical and business negotiations. 124 Local 

officials viewed failure to accept an offered drink as a sign ofweakness or impotence, 

and they could consider it an insult. As a result, those serving with the British 

headquarters at Zagreb and the French headquarters at Sarajevo received waivers to the 

prohibition. 125 These extended to others who deemed it advisable to consume alcohol in 

their dealings with allies or host nation personnel, and those sent on leave to cities and 

islands in Croatia. 126 However, it has become accepted practice for a GO to prohibit the 

consumption of alcohol on the basis of force protection and good order and discipline in 

an unstable environment. 

Relationships are another contentious issue with which a GO often deals. Recent 

AARs indicate commanders continue to struggle with this issue. Should the GO prohibit 

or restrict the relationships between Soldiers and between Soldiers and host nation and 

perhaps even third country nation personnel? The decision rests solely on the 

commander's intent for the overall mission. Stability operations will require considerable 

interaction with the local population. 

121 UCMJ art. 92c(l)(a) (2008). 

122 Memorandum, Headquarters, U.S. Army Europe, subject: General Order #1, Operation Balkan 

Endeavor, Title: Prohibited Activities for U.S. Personnel Serving in Operation BALKAN ENDEAVOR 

(28 Dec. 1995). 

123 See, e.g., BALKANS LL, supra note 13. One OSJA has observed GO No.1 drafters should tailor it to the 

geographic location and cultural environment in which the unit will operate, and that coordination with G5 

and U.S. personnel permanently stationed in that location (e.g., Defense Attaches, MILREPs, FAOs, etc.) is 

critical before issuing a GO No.1. 

124 Memorandum, General William W. Crouch, Commander in Chief, Headquarters, U.S. Army Europe and 

Seventh Army, for HQ USEUCOM, ATTN: USEUCOM Legal Adviser, subject: Exception to USEUCOM 

General Order 1. 

125 Memorandum, General William W. Crouch, Commander in Chief, Headquarters, U.S. Army Europe and 

Seventh Army, for HQ USEUCOM, ATTN: USEUCOM Legal Adviser, subject: Exception to USEUCOM 

General Order 1 (20 Jan. 1997). 

126 Memorandum, General William W. Crouch, Commander in Chief, Headquarters, U.S. Army Europe and 

Seventh Army, for HQ USEUCOM, ATTN: USEUCOM Legal Adviser, subject: Exception to USEUCOM 

General Order 1 (19 May 1997). 

320 
Before deployment, the 101st OSJA learned it was not the MNC-I Commander's 

intent to implement a broad prohibition against U.S. forces in Iraq engaging in sexual 

relations. As a result, the 101st GO No.1 addressed cohabitation, but did not specifically 

prohibit sexual relations that did not constitute fraternization under AR 600-20. 127 The 

4ID GO No.1 adopted the previous 3ID policy of not allowing visitors of opposite sex in 

each other's room, and requiring married deployed military couples to have written chain 

of command permission for their spouses to enter their living quarters. The 3ID CG was 

the approval authority for 3ID exceptions to policy; 4ID chose to delegate this authority 

to the first 0-6 in the chain of command. This created some pro.blems as some brigade 

commanders allowed married spouses to live together or visit each other in their rooms, 

while others did not. 128 

In May 2006, 4ID amended its GO No.1 with new guidance intended to address 

this consistency: it allowed prohibiting cohabitation or visitation between married 

deployed couples only in extraordinary circumstances such as domestic disputes. Before 

amending the GO, the CG thoroughly canvassed the visitation issue with respect to all 

Soldiers and received feedback on it from brigade commanders and sergeants major. 

Although the policy was unpopular with some Soldiers, the chain of command's 

consensus was that its value in preventing sexual assaults and harassment far outweighed 

whatever aggravation it caused in unit ranks. 129 

A third difficult issue often tackled via GO is a prohibition against the collection 

ofweapons, ammunition, and military gear, as well as inert mementos made from the 

like. Such provisions require extremely careful wording. The initial GO No. 1 for 

operations in Bosnia, intended to prevent acquisition of such items by outlawing the 

retention ofproperty "seized or captured during military operations," failed to accomplish 

its goal. Soldiers proceeded to find and retain abandoned property, as well as to purchase 

such items from host nation personnel. 130 The command resolved the issue through 

127 Wist ABN DIV 2007 OIF AAR, supra note 65, at 68; AR 600-20, supra note 6. The Wist OSJA 

reported that more than 40 Soldiers returned to home station due to pregnancy, but it was unclear this was a 

direct result ofthe lack of a "no sex" order. The OSJA recommended future GOs should neither address 

issue ofpregnancy nor make it punitive, but JAs should nonetheless be prepared to address command 

questions about pregnancy. Another issue was that of Soldier relationships with non-U.S. persons. The 

10 Ist ABN DIV GO No. 1 initially prohibited "intimate or sexual" relationships between Soldiers and all 

local nationals (LNs) and third country nationals (TCNs). A subsequent amendment limited that restriction 

to LNs and TCNs not members of any Coalition forces. Neither prohibition restricted marriage. A Soldier 

married an LN under local custom with the assistance of an Army Chaplain, and received an Article 15 for 

violating Go No. 1 by having an intimate relationship with the LN. The Soldier initiated a Congressional 

inquiry, alleging the command was not helping him to obtain a green card for his new wife. As a result of 

these issues, the OSJA recommended GO No.1 specifically address and prohibit marriage between 

Soldiers and LNs or TCNs (such spouses could become tools for insurgent blackmail as U.S. forces would 

not be able to guarantee their security). Wist ABN DIV 2007 OIF AAR, supra note 65, at 68-69. 

128 4ID 2007 OIF AAR, supra note 66, at 27-28. 

129Id. 

130 1st Armored Division, Office Of The Staff Judge Advocate, After Action Report, September 1995 ­

December 1996 42-43 (1997) [hereinafter lAD 1997 Bosnia AAR]. Especially popular were mortar 

casings and small arms shells which had been polished and stamped with words or pictures - such as flags 

321 
publication of a FRAGO, but forces deploying in the future need to be sensitive to the 

importance of clarity in these situations. 

In a similar vein, an AAR from Afghanistan observed that, while the command's 

GO No. 1 prohibited sexual relations and intimate behavior between individuals not 

married, it failed to define either. The AAR concluded that clearly defining the terms 

would more adequately serve to place Soldiers on notice of prohibited conduct. It would 

avoid future requests for bills of particular and motions by defense counsel alleging the 

prohibition was unconstitutional because of its vague and overbroad language. 131 

As alluded to above, difficulties with GOs arise not just in their drafting, but also in their 

implementation. Although prosecution for violation of a GO does not require specific 

knowledge of its existence, at least one court has held that as a matter of fairness, commands 

should not punish servicemembers for violating a GO about which they had no knowledge. 132 

Thus, it is incumbent upon commanders and lAs, beginning during pre-deployment preparations 

and continuing throughout the deployment, to educate members of the command (including, if 

applicable, civilians accompanying the force) about the existence and contents of any GOs. 133 A 

- to commemorate the operation. Captain Matthew D. Ramsey, comments in Operation JOINT 

ENDEAVOR After Action Review, Volume II, Heidelberg, F.R.G. 153 (24-26 Apr. 1997) [hereinafter OJE 

AAR, Vol. II]. There continues to be difficulty in employing a consistent standard across units and ranks in 

this area. See Memorandum, Captain John L. Clifton, IV, to Commander, Division Engineer, subject: 

Legal Opinion (2 Aug. 1996) (opining that a colonel could accept gifts of an inert mine and mine probe 

without violating GO No.1). 

131 10th MTN DIV 2007 OEF AAR, supra note 68, at 15. 

m See UCMJ, art. 92(3)b(l) (2008). But see United States v. Charles Anthony Bright, 20 MJ. 661, 663 

(N.M.C.M.R. 1985) ("It is abundantly clear that the courts are not willing to give punitive effect to general 

orders (the knowledge of which is conclusively presumed) when there is inadequate notice of such effect, . 

. .fundamentalfairness dictates that the intended punitive effect be nullified.") (emphasis added). 

133 See, e.g., BALKANS LL, supra note 13, at 177 ("[J]udge advocates and commanders must continually 

educate Soldiers on the provisions of GO #1."). Issues may also arise concerning its applicability to 

civilians accompanying the force. See 101 st Airborne Division (Air Assault), Operation IRAQI 

FREEDOM Lessons Learned 14 (2003). 

4. ISSUE 

Civilians crossing the berm into Iraq were required to sign statements acknowledging that 

[CENTCOM] General Order #1 applied to them. 

RECOMMENDAnON 

Do better research before deployment into whether or not the language in the waiver 

existed already in the contracts of civilians. If higher headquarters still feel compelled to 

reinforce particular areas of a civilian's employment contract, then some type of training 

should be scheduled to emphasize those areas. As an absolute last resort, signing waivers 

should occur before deployment, not hours before [crossing the line of departure (LD)]. 

DISCUSSION 

Hours before the scheduled LD of the Division, higher headquarters circulated a 

document for the signature of every civilian that would travel across the berm into Iraq. 

These signatures were required prior to allowing civilians across the border. Higher 

headquarters gave G1 responsibility for compliance. A frantic several hours ensued 

322 
3ID OSJA AAR noted its command's GO No.1 reached its final form only upon deployment, 

and that most Soldiers knew that it included "no drinking," but they were unfamiliar with other 

portions of it. The AAR suggested signing all policy memos in time for presentation at predeployment briefings. 134 

Since U.S. Central Command's December 2000 publication of GO No. lA,135 

many subordinate general officers in Iraq and Afghanistan have chosen to issue their own 

supplemental GO No. 1. 136 Judge Advocates preparing for future deployments in these 

areas of operations should refer to these and Gas from previous operations. 137 Moreover, 

once deployed, in view of the Army's modular force structure, brigade JAs may have to 

obtain and adapt to new division-level Gas because of realignments in theater. Ifthis 

occurs, the JA must read the new GO carefully and ensure commanders are aware of any 

differences as well as their implications, particularly where the GO's provisions diverge 

from those of the more familiar MNC-I and Multi-National Force - Iraq (MNF-I) Gas. 

Finally, the JA should ensure the command disseminates the new division-level GO to all 

Soldiers. 138 

In lengthy operations, commanders must remember to reissue GO No.1 for each 

TOA or change of operation. One would not want a court to dismiss a court-martial 

where G1 personnel attempted to identify 1) what civilians we had with us, 2) where they 

were currently located, 3) whether or not each individual civilian would travel into Iraq, 

and 4) how to get the document to the civilian for a signature. The requirement, which 

was completely unforeseen by anyone on division staff, surfaced so late as to serve as a 

serious distractor from operational planning and preparation and to offend many, ifnot 

most, ofthe civilian employees who already understood the "rules" under which they 

were serving their country. 

ld at 14. See also Hatch Interview, supra note 8; AR 27-10, supra note 4 (noting the importance of predeployment briefings on GO No.1). 

134 3ID 2008 OIF AAR, supra note 74, at 10. A Marine JA provided an example of unfamiliarity with GO 

provisions. He reported that, after someone took digital photos of deceased Iraqis for investigative 

purpose, he notified the senior warrant officer (SWO) ofthe GO No. l/CENTCOM policy letter prohibition 

against photographing detainees, injured, and deceased persons for other than official purposes, simply to 

ensure that all were aware of it. It turned out not everyone had been aware of the prohibition. The JA 

concluded that one cannot assume this knowledge and that, given the prevalence of digital cameras, it is 

wise to emphasize a punitive policy such as this one early in a deployment. Regimental Combat Team 6, 

Regimental Judge Advocate, After Action Report, Operation IRAQI FREEDOM, January 2007 - July 2007 

(undated). 

135 See Headquarters, U.S. Central Command, Gen. Order No. 1A (19 Dec. 2000) [hereinafter CENTCOM 

GO No. IA]. CENTCOM GO No. 1A predated both OEF and OIF, and has now been superseded by 

Headquarters, U.S. Central Command, Gen. Order No. IB (13 Mar. 2006). 

136 Subordinate general officers in command may wish to publish their own GOs to prohibit conduct not 

prohibited by GOs issued by higher military authority, or merely to reemphasize preexisting GOs with their 

personal authority. 

137 See OPLAW HANDBOOK 2008, supra note 12, ch. 23 (examples of GO No. I from previous operations 

other than OEF or OIF). 

138 172d Stryker Brigade Combat Team, Brigade Judge Advocate, After Action Report, Operation IRAQI 

FREEDOM, August 2005 - December 20067-8 (undated). 

323 
charge of violating Article 92 by disobeying the GO for Operation JOINT ENDEAVOR 

because the violation occurred after the change to Operation JOINT GUARD. 139 

139 This was a lesson learned cited by Lieutenant Colonel Manuel Supervielle, Chair, International and 

Operational Law Department, The Judge Advocate General's School, based on court cases arising during 

Operations DESERT SHIELD and DESERT STORM. No documents to date have cited a similar problem 

in the Balkan operations, but it is one to remember given the ever-changing operations. 

324 
VLL MILITARYJUSTICE - JOINT ENVIRONMENT 

Due to the increasingly joint nature ofmilitary operations,140 JAs must be ready to 

advise commanders on the implications of handling MJ in a joint environment. This 

lesson has perhaps its greatest application in the special operations community. The 

experience ofthe Army's 5th Special Forces Group (5th Group) in Afghanistan and Iraq 

illustrates the lesson.141 During OEF and OIF, 5th Group formed the core of a joint 

special operations task force (JSOTF), incorporating members of other military services, 

and commanded by an Army colonel (the 5th Group commander). 

Before deployment, the JSOTF commander, with the advice of his CJA, decided 

to keep MJ along service command lines. In other words, the JSOTF/5th Group 

commander would handle MJ matters for Army personnel, and cases involving members 

of other services would go to the appropriate service for resolution. Interestingly, the 5th 

Group commander requested SPCMCA from U.S. Army Special Operations Command 

(USASOC), but they denied the request.142 

Most ofJSOTF's non-Army members were Air Force (AP) personnel. The 

JSOTF commander was well-positioned to handle potential misconduct by AF members 

in Iraq because one ofthe JAs attached to the JSOTF in Iraq was an AF JA. Before 

deploying, the JSOTF CJA and the AF JA made detailed plans to handle potential 

investigations and misconduct involving AF personnel. The 5th Group CJA made similar 

plans with appropriate Navy JAs. He was thus ready to handle misconduct by any 

JSOTF military personnel. 143 

The 5th Group legal NCO brought copies of the UCMJ, as well as service-specific 

MJ regulations to Afghanistan and Iraq. However, JAs need not make themselves 

experts in sister service regulations. Rather, they need only know where to look for 

guidance, and how to de-conflict items when comparing one service's regulations to 

those of another. 144 A commander offering nonjudicial punishment must generally 

follow the applicable service regulation of the servicemember to whom he or she offers 

140 See JOINT PUB. 1-02, supra note 17 (defining 'joint" as "activities, operations, organizations, etc., in 

which elements of two or more Military Departments participate"). In his Arrival Message to the Army 

upon his swearing in as the 35th Army Chief of Staff, GEN Peter 1. Schoomaker reflected upon how the 

Army has changed in the last twenty years. He stated (drawing upon his involvement in the failed 1980 

attempt to rescue U.S. hostages in Iran), "We did not know that we were at the start of an unprecedented 

movement to jointness in every aspect ofour military culture, structure, and operations ... a movement that 

must continue." See General Peter 1. Schoomaker, Arrival Message (1 Aug. 2003), available at 

http://www.army.mil/leaders/csa/messages/laug03.htm (emphasis added). 

141 The 5th Group deployed for OEF, returned to its home station at Fort Campbell, Ky., and deployed 

again for OIF. See Interview with Major Dean L. Whitford & Staff Sergeant Jerome D. Klein, Command 

Judge Advocate & Legal NCOIC, 5th Special Forces Group, in Charlottesville, Va. (Aug. 19,2003). 

142Id. 

143Id. 

144 See AR 27-10, supra note 4; AFI 51-201, supra note 4; JAGMAN, supra note 4. 

325 
the punishment. 145 For example, if an Army commander wishes to offer nonjudicial 

punishment to an AF member, the JA should refer to both the AF and Army regulations, 

but the commander must follow the AF nonjudicial punishment regulation. 146 

Despite several years ofjoint operations in both Iraq and Afghanistan, JAs may 

still encounter challenges relating to MJ in a joint environment. For example, the V 

Corps OSJA observed most Army commanders were unaware they did not have 

jurisdiction to impose UCMJ punishment over joint personnel of other services, or they 

attempted to use Army law and procedures to impose punishment. As of 2006, each 

service has responsibility for disciplining its own personnel in Iraq, with established 

"catch-all" convening authorities to handle misconduct for personnel assigned to a sister 

service unit. However, these authorities often change without notice to sister service JAs. 

Furthermore, the V Corps OSJA found many JAs -let alone commanders - did not 

understand either the system or the procedures, leading to commanders taking action 

without jurisdiction. As a result, the V Corps AAR cautioned that JAs assigned to 

multiservice units should ensure they have a good understanding of the jurisdictional 

scheme. As well, it emphasized the continued need to establish and maintain a service 

point of contact framework. 147 

145 AR 27-10 states: 

An Anny commander is not prohibited from imposing nonjudicial punishment on a 

military member of his or her command solely because the member is a member of 

another anned service. . . . An Anny Commander may impose punishment upon a 

member of another Service only under the circumstances, and according to the 

procedures, prescribed by the member's parent Service. 

Id. para. 3-8c. AFI 51-202 states: 

The multiservice commander, when imposing [nonjudicial punishment] on an Air Force 

member, follows this instruction, including the guidance applicable to joint force 

commanders ... Before initiating any [nonjudicial punishment] action, ensure the 

multiservice commander has command authority over the member involved, the appellate 

authority is identified, and administrative processing issues are understood. 

Id. para. 2.6 (citations omitted). See also JAGMAN: 

A multiservice commander or [officer in charge] to whose staff, command or unit 

members of the naval service are assigned may impose nonjudicial punishment upon such 

individuals. A multiservice commander, alternatively, may designate, in writing, one or 

more Naval units, and shall for each such Naval unit designate a commissioned officer of 

the Naval service as [commanding officer] for the administration of discipline under 

Article 15, UCMJ. 

1d. para. 01 06d. 

146Id. For further discussion on this subject, see also Major Mark W. Holzer, Purple Haze: Military 

Justice in Support ofJoint Operations, ARMY LAW., July 2002, at 1; Captain William H. Walsh & Captain 

Thomas A. Dukes, Jr., Note & Comment: The Joint Commander as Convening Authority: Analysis ofa 

Test Case, 46 A.F. L. REv. 195 (1999). 

147 V Corps 2006 OIF AAR, supra note 66, at 11. 

326 
Judge Advocates supporting a multiservice deployed command where the MJ framework 

is not yet established may find useful the following comments by an Afghanistan-based 

SJA in relation to Combined Security Transition Command - Afghanistan (CSTC-A): 

There continues to be tension within a joint force command (JFC) between the 

goal ofjoint integration and the desire for service autonomy on [MJ] matters.... 

There are many competing authorities on the issue of [MJ] in a JFC. The [Joint 

Publication] JP-l states that matters within a JFC that involve only one service 

should be handled by that service component commander subject to service 

regulations, but that matters involving multiple services could be handled by 

either the JFC or the service commander. This guidance is difficult to apply, 

because a typical [MJ] case involves not just a suspect, but also witnesses, 

investigators, OIC's, and others - often from different services. Although there 

may be a form of concurrent jurisdiction between JFC and Service commanders 

over joint [MJ] issues, there are many factors that weigh against joint justice. 

Service specific administrative regulations such as the JAGMAN, AR 15-6, and 

API 51-202 give the service component an automatic expertise in the matter. 

Also different service cultures about the appropriate handling of a particular 

infraction weigh in favor of service component jurisdiction. On the other hand, 

weighing heavily against service component handling is that the JFC Commander 

is on-scene, responsible for day to day operations, and does not like limits being 

placed on his authority. The JFC [JA] will have to determine, in consultation 

with his chain-of-command and technical chain, which process to use to handle 

[MJ] matters. The Marine [JA], even a junior one, within a JFC will be 

considered the Marine expert on [MJ] and will be asked to process or provide 

advice on cases involving Marines. . .. There are two suggestions that will 

partially resolve this issue. The first is advance agreement from all the 

stakeholders within the joint and service commands. The JFC SJA should 

immediately consult with the JFC commander to explain the issue looming in the 

future. The JFC SJA should then coordinate, with the Service component SJAs 

at the higher headquarters to ensure that they agree with the JFC commanders 

plan. The JFC SJA may utilize his junior [JAs] from each ofthe services to 

accomplish this task. The Marine JA in a JFC should consult with MARCENT 

SJA. If the JFC plans to exercise maximum jurisdiction, then he will likely meet 

resistance from the Air Force, which has a large staff presence in all the theaters, 

but does not usually hold JFC command billets. There will not likely be 

resistance from the Army due to the fact that the JFC commander is usually from 

the Army. There will not likely be resistance from the Navy, as the Navy has 

very little command presence on the ground in [U.S. Central Command]. ... If 

the JFC commander plans to submit [MJ] matters to the services, then this will 

alleviate the conflicts, however the management of [MJ] within the JFC will be 

slower and inconsistent. The second suggestion that will partially help to resolve 

the problem ofjoint justice is to have the JFC commander appoint a service 

detachment commander for each ofthe services in accordance with the 

JAGMAN 0106d and other service regs. This will help the JFC commander to 

manage [MJ] and may satisfy the higher service component's requirement to 

have service involvement. 148 

148 Task Force Ist Battalion, 7th Marines, Battalion Judge Advocate, After Action Report, Operation 

IRAQI FREEDOM, February 2006 - September 2006 (undated). 

327 
VLJ. SUMMARY COURTS-MARTIAL 

Measures other than general and/or special courts-martial are also available to
 

address less serious misconduct - e.g., administrative reprimands, nonjudicial
 

punishment, and summary courts-martial. Common misconduct which might warrant
 

such measures includes violations ofGO No. 1 (especially alcohol consumption),
 

violations ofprohibitions against sexual activity ("no-sex orders"), military offenses
 

(especially disrespect), and drug offenses (to a limited extent). 149 Deployed units have
 

often found summary courts to be the best way of handling minor misconduct.
 

"The function of a summary court-martial is to promptly adjudicate minor
 

offensesl5o under a simple procedure.,,151 UCMJ Article 24 details who may convene a
 

summary court-martial,152 and Rule for Court-Martial (RCM) 1301 153 gives further
 

guidance. Implementing service regulations also apply.154
 

149 See Hayden Interview, supra note 23; 3ID 2003 OIF AAR Conference Transcript, supra note 78. 

Almost all units noted that misconduct was very rare, especially during the combat phase of operations. 

See, e.g., Hatch Interview, supra note 8. However, certain misconduct and offenses among 

servicemembers was more common than others were. For an OIF example, see After Action Review 

Conference, Office ofthe Staff Judge Advocate, 4th Infantry Division (Task Force Ironhorse), and Center 

for Law & Military Operations, in Ft. Hood, Tx. (8 Sept. 2004) [hereinafter 4ID 2004 OIF AAR 

Conference] (stating in part that many Article 15s concerned GO No.1 violations, including alcohol, 

fraternization, and disrespect. Courts-martial included those for drugs (in particular valium, which could be 

purchased at local pharmacies), wrongful appropriation, AWOL and desertion (the CG deployed Soldiers 

charged with the last two offenses).). 

150 The MCM defines minor misconduct. 

Whether an offense is minor depends on several factors: the nature ofthe offense and the 

circumstances surrounding its commission; the offender's age, rank, duty assignment, 

record and experience; and the maximum sentence imposable for the offense iftried by 

general court-martial. Ordinarily, a minor offense is an offense which the maximum 

sentence imposable would not include a dishonorable discharge or confinement for 

longer than 1 year iftried by a general court-martial. The decision whether an offense is 

"minor" is [ultimately] a matter of discretion for the commander. 

151 MCM, R.C.M. 1103(b), pt. V, l(e). 

152 The UCMJ provides: 

Summary courts-martial may be convened by - (1) any person who may convene a 

general or special court-martial; (2) the commanding officer of a detached company or 

other detachment of the Army; (3) the commanding officer of a detached squadron or 

other detachment of the Air Force; or (4) the commanding officer or officer in charge of 

any other command when empowered by the Secretary concerned. 

UCMJ, art. 24(a) (2000). 

153 See MCM, R.C.M. 1301 (concerning Summary Courts-Martial). 

154 See also U.S. DEP'TOF ARMY, PAM. 27-7, GUIDE FOR SUMMARY COURT-MARTIAL TRIAL PROCEDURE 

(15 Apr. 1985); Faculty, The Judge Advocate General's School, Summary Court-Martial, Using the Right 

Toolfor the Job, ARMY LAW., July 2002, at 52. 

328 
Summary courts offer streamlined procedures and a flexible range of 

punishments. Most significantly, the accused does not have the right to counsel, although 

there is no prohibition against representation by military or civilian defense counsel. 155 

In addition, the summary court officer need not be a military judge or JA,156 The 

accused's right to decline trial by summary court-martial balances this generally relaxed 

due process. 15? The relatively light authorized punishments also moderates the potential 

for injustice. 158 

In 2003, 3ID used summary courts extensively in Iraq.159 Given the lack of a 

confinement facility in theater, executing sentences to confinement proved impractical 

(confinement would have required two military escorts to bring the Soldier to the Army 

confinement facility in Mannheim, Germany, and reversal of the process at the end of the 

period of confinement). 160 Commanders did not want to "reward" Soldiers for their 

misconduct with a "free trip" to Germany.161 One solution to this paradox was approval 

of sentences of hard labor without confinement, 162 This allowed execution of punishment 

in theater and deterred other misconduct because Soldiers saw the potentially unpleasant 

results. 163 

During 2003, hard labor without confinement in Iraq proved an especially 

effective punishment for several reasons. The authorized nonjudicial punishment of extra 

duty might appear equally appropriate. "Extra duties [as a result of nonjudicial 

155 See MCM. But see AR 27-10, supra note 4, para. 5-23(b) ("Except when military exigencies require 

otherwise, the [summary court-martial] officer will grant the accused an opportunity to consult with 

qualified defense counsel before the trial date ...") (emphasis added). MJ practitioners should note the 

distinction between the opportunity to consult with defense counsel before trial and the right to 

representation b)( defense counsel at trial. Note also that AR 27-10 does not state consultation with defense 

counsel need be in person. Consultation by telephone would seem to satisfY the rule. Id. 

156 MCM, R.C.M. 1301, para. (a) ("A summary court-martial is composed of one commissioned officer on 

active duty."). 

157 MCM, R.C.M. 1303. 

158Id. at MCM, R.C.M. 1301, para. (d) Discussion: 

(1) The maximum penalty which can be adjudged in a summary court-martial is 

confinement for 30 days, forfeiture oftwo-thirds pay per month for one month, and 

reduction to the lowest pay grade. 

(2) In the case of enlisted members above the fourth enlisted pay grade, summary courtsmartial may not adjudge confinement, hard labor without confinement, or reduction 

except to the next pay grade. 

Id. 

159 See Resnick & Pritchard Interview, supra note 7. 

160 There is now a confinement facility at Camp Arifjan, Kuwait, capable of separately housing officer and 

enlisted pre-trial and post-trial confinees of both sexes for up to six months. 

161 See Resnick & Pritchard Interview, supra note 7. 

162 See id.; see also MCM, R.C.M. 1003(b)(6) (and discussion) (defining hard labor without confinement). 

163 See Resnick & Pritchard Interview, supra note 7. 

329 
punishment] involve the performance of those duties in addition to those normally 

assigned."164 Although the definition of hard labor without confinement is similar,165 in 

practice, 3ID JAs in Iraq viewed the latter as qualitatively different (worse) than the 

former. Commands gave those Soldiers sentenced to hard labor without confinement the 

most unpleasant tasks to perform. 166 It is important to note that everyone in Iraq was 

working extremely long hours, and someone had to perform those unpleasant jobs. Other 

authorized summary court punishments were inappropriate. Restriction to specified 

limits had little meaning when everyone was restricted to base camps, and monetary 

forfeitures would likely only hurt family members. At least for 3ID, summary courts 

were the tool of choice to rectify common misconduct such as disrespect and 

malingering. Performing unpleasant tasks in the desert had a strong tendency to deter 

further misconduct. 167 

More recently, the 10lst OSJA reported that, during its deployment to Iraq, units 

initiated several summary courts-martial as bad conduct discharge specials. The battalion 

commander referred them to summary court-martial pursuant to the accused's agreement 

to plead guilty and waive any subsequent administrative separation boards, even if an 

under other than honorable conditions (OTH) discharge occurred. The 10lst OSJA 

concluded this was an effective tool for disposing of those offenses meriting a brief stint 

of confinement in addition to an OTH discharge. However, advice to commanders often 

cautioned that a thirty-day sentence of confinement from a summary court-martial, 

usually served in Kuwait, was a vacation in many ways.168 

164 MCM, part V, para. 5c(6). 

165 See id R.CM. 1003(b)(6) (discussion) (describing hard labor without confinement as "performed in 

addition to other regular duties."). With 3ID, common punishments following a summary court sentence of 

hard labor without confinement included filling sandbags and cleaning latrines. See Resnick & Pritchard 

Interview, supra note 7. 

166 See Resnick & Pritchard Interview, supra note 7. But see 12th LSO 2004 OIF AAR Conference, supra 

note 32 (explaining why the 12th LSO did not like summary-courts, as summarized below). 

lAs should work with commanders responsible for the execution of punishments of hard 

labor without confinement to ensure that punishments are carried out legally. The 

punishment certainly must not be of a nature to cause physical harm or the undue risk 

thereof. This was an important concern in the hot desert conditions ofIraq. For this 

reason, some lAs disfavored hard labor without confinement (and therefore summarycourts) because Soldiers were only able to work outside for about ten minutes of each 

daylight hour. In addition, other Soldiers were taken away from their tasks to oversee 

Soldiers performing hard labor. 

!d. 

167 See 12th LSO 2004 OIF AAR Conference, supra note 32. 

168 101st ABN DIV 2007 OIF AAR, supra note 65, at 67-68. 

330 
VLK. URINALYSIS 

Commanders often want the ability to conduct urinalysis testing to maintain good 

order and discipline, but units are often unable to do so until operations in a theater 

169 mature. Setting up a system through which urinalyses is possible is not normally a JA 

function. However, it is an unwritten rule that "it [normally] wouldn't have happened 

without JA support and coordination with brigade commanders, the Division Surgeon 

(DIVSURG) and the Provost Marshall's Office (PMO).,,170 Coordination with one of the 

CONUS-based drug testing labs to perform the actual drug testing is also necessary. 171 

Each unit is responsible for providing a qualified unit prevention leader (UPL) to 

oversee the urinalysis program. The UPL is responsible for obtaining the necessary 

resources for urinalysis testing, such as bottles and UA monitors, as well as logistic 

support to maintain the proper chain of custody for the samples. l72 

The 101st OSJA reported the command increased the frequency of urinalysis 

testing when they realized that Soldiers were acquiring valium from Iraqi pharmacies. 

However, medical personnel were reluctant to conduct a probable cause-based blood 

draw if they knew it was likely see use as criminal evidence, citing patient confidentiality 

concerns. In other instances, individuals without requisite authority (e.g., squad leaders 

or first sergeants) ordered blood or urine draws. In at least one case, this led to key 

evidence of drug use being useless at trial. The 101 st OSJA therefore recommend 

brigade S-l s, in conjunction with the brigade medical operations officer and TCs, devise 

a feasible urinalysis program before deployment. This includes deploying with adequate 

supplies at company level for at least two 100% urinalysis tests, and ensuring every 

company has at least one trained UPL whose certification extends throughout the 

deployment. 173 

The Marine Legal Services Support Team (LSST) has tried two fully contested 

special courts-martial in Iraq involving drug offenses. The trials required flying a drug 

expert from the Naval Drug Screening Laboratory in San Diego, Cal., to Iraq, as well as 

169 See After Action Review Conference, Office of the Staff Judge Advocate, WIst Airborne Division (Air 

Assault), and Center for Law & Military Operations at Ft. Campbell, Ky. 43 (21 Oct. 2004); see also After 

Action Review Conference, Office of the Staff Judge Advocate, 1st Armored Division, in Wiesbaden, 

F.R.G. (8 Sept. 2004). 

170 See OEF/OIF LL, Vol. II, supra note 115, at 198-99. 

171 Fort Meade Drug Testing Lab (Fort Meade, Md.) and TripIer Drug Testing Lab (Honolulu, Haw.). 

172 See U.S. DEP'T OF ARMY, REG. 600-85, ARMY SUBSTANCE ABUSE PROGRAM (24 Mar. 2006). The term 

"UADC" is another commonly used acronym for UPL. 

173 WIst ABN DlV 2007 OIF AAR, supra note 65, at 77. The 4ID OSJA reported that the G-l managed its 

division's urinalysis program, but the Chief, MJ assisted the G-l in publishing a FRAGa implementing it. 

Some units conducted 100% urinalysis testing for Soldiers returning from rest and recuperation (R & R) 

leave, emergency leave, or passes to Qatar. This usually satisfied the monthly 10% quota for units. The 

4ID OSJA reiterated units must plan for executing a program by ensuring they deploy with trained 

personnel and all necessary materials. 4ID 2007 OIF AAR, supra note 66, at 31. 

331 
the production of unit urinalysis coordinators and observers who had not deployed with 

their respective units. Early determination ofthe drug expert's availability for trial and 

the timely production of drug lab documents were essential for successful prosecution of 

these cases.

174 

174 Lieutenant Colonel Mark K. Jamison, U.S. Marine Corps, Legal Services Support Team (Iraq), 

Operation IRAQI FREEDOM II, After Action Report (13 Nov 2004). 

332 
VLL. ALTERNATIVES TO COURT-MARTIAL 

VLL.l.	 Nonjudicial Punishment (NJP) 

Nonjudicial punishment provides commanders with an essential and 

prompt means ofmaintaining good order and discipline and also promotes 

positive 

court-martial 

martial 

Although 

conviction. 

behavior 

and 

changes 

legal 

NJP 

175 

procedures 

considerations 

in servicemembers 

remain 

may 

largely 

differ 

without 

depending 

unchanged 

the stigma 

on 

in 

the 

a 

of

deployed 

mission, 

a courtsetting. Judge Advocates should beware the "field due process" myth that leads 

some commanders to believe the rules are different in a deployed environment. 176 

Judge Advocates should employ a broad range of alternatives to courts-martial in 

order to allow commanders to maintain good order and discipline during deployments. 

During combat operations in Iraq and Afghanistan, Soldiers spent their time attending to 

pressing needs such as maintaining their weapons or equipment and carrying out the 

mission. However, once stability operations became the focus, Soldiers were able to 

establish daily routines that often included more free time. When combined with 

restricted movement, few organized activities, and other limited constructive alternatives, 

this free time occasionally resulted in Soldiers engaging in misconduct. 177 

Judge Advocates must strive to conduct MJ as ifthey were still in garrison and 

avoid the appearance "field due process" is in effect. This extends to processing times 

and the proper level of disposition for each case, as well as ensuring the punishment fits 

the crime. The phrase "field due process" suggests there are instances when Soldiers are 

given lighter punishment for misconduct than they would receive in a non-deployed 

setting. Although many JAs found they were able to process MJ actions consistently 

through adjudication in a fair and proper manner, many also stated they knew of 

examples of "field due process" use. 178 

Of course, commanders ultimately determine the nature and extent of punishment 

Soldiers receive for committing certain offenses. However, JAs must continue to 

emphasize to commanders the importance of avoiding the appearance ofinconsistent 

treatment while in a deployed environment versus case resolution in garrison. The best 

way for JAs to accomplish this is to provide commanders with the ability to designate the 

appropriate level of disposition (including court-martial, nonjudicial punishment, etc.), 

and by processing each action fairly and efficiently, even during combat operations. 179 

175 See MeM, pt. V, para. I.e. 

176 OPLAW HANDBOOK 2008, supra note 12, at 441. 

177 OEF/OIF LL, Vol. II, supra note 115, at 203. 

178 See OEF/OIF LL, Vol. I, supra note 38, at 233. 

179 1d. Although there will undoubtedly be some administrative and logistic considerations when 

processing MJ actions during hostilities, treating even difficult cases consistently is possible with prior 

333 
VI.L.2. Administrative Separations 

Numerous provisions allow the administrative separation of Soldiers from the Army, but 

commands separate Soldiers most often for displaying a pattern of misconduct or committing 

serious misconduct not rising to the level of court-martial. Nonetheless, JAs encountered 

significant obstacles when processing Soldiers for administrative separations in a deployed 

environment. For example, Army Regulation (AR) 635-200, Active Duty Enlisted Administrative 

Separations requires Soldiers to undergo medical examinations and mental evaluations when 

separating administratively in certain circumstances. 180 

Deployed legal teams have encountered difficulties in attempting to meet the 

regulatory requirements relating to medical examinations and/or mental evaluations 

before administratively separating a servicemember. In some cases, there were not a 

great number of physicians in theater. Even where there were sufficient physicians, they 

were often more concerned about combat casualties than administrative separations. 

Finally, as difficult as it was to locate a medical doctor, it was nearly impossible to locate 

mental health specialists, such as psychologists or psychiatrists, to perform mental health 

evaluations, as required in certain cases. 

181 

Judge Advocates found several solutions to these difficulties. One was to 

personally approach medical personnel and establish an informal system whereby 

Soldiers undergoing administrative separation received priority for examinations. 182 

planning (i.e., it may not be realistic to try courts-martial while deployed, but if servicemembers who have 

committed serious misconduct quickly return to the rear detachment for trial, the message to others is that 

the command deals with offenses committed while deployed in the same manner as at home station). For 

less serious misconduct handled through non-judicial means, JAs can encourage commanders to maximize 

good order and discipline within their units by using different ways to impose punishment. For example, 

an alternative to immediately executing imposed punishment is to suspend all or a portion of the 

punishment. The commander can inform the offending servicemember the punishment will remain 

suspended for a certain amount of time and, without further misconduct, the punishment will be 

"rescinded." The servicemember then has a reason to behave properly to avoid having hislher pay docked, 

rank reduced, etc. See AR 27-10, supra note 4, paras. 3-21 to 3-28 (discussing execution, clemency, 

suspension, vacation, mitigation, remission, setting aside and restoration of punishment). The 3ID OSJA 

also noted that AR 27-10 allows delegation ofthe Article 15 hearing ifthe Soldier and commander are at 

different remote locations. 3ID 2008 OIF AAR, supra note 74, at 10; AR 27-10, supra note 4, paras. 3­

18(g)(1). 

180 See generally U.S. DEP'T OF ARMY, REG. 635-200, ACTIVE DUTY ENLISTED ADMINISTRATIVE 

SEPARATIONS para. 1-32 (6 June 2005). "Soldiers being considered for separation under paragraph 5-13 

must have the diagnosis of personality disorder established by a psychiatrist or doctoral-level clinical 

psychologist with necessary and appropriate professional credentials who is privileged to conduct mental 

health evaluations for the DOD components." Id. para. 1-32(e). "A command-directed mental health 

evaluation performed in connection with separation under paragraph 5-17 will be performed by a 

psychiatrist, doctoral-level clinical psychologist, or doctoral-level clinical social worker with necessary and 

appropriate professional credentials who is privileged to conduct mental health evaluations for the DOD 

components." Id. para. 1-32(f). See also U.S. DEP'T OF ARMY, REG. 40-501, STANDARDS OF MEDICAL 

FITNESS para. 8-23, tb1.8-2 (14 Dec. 2007). 

181 See After Action Review Interim Report, Office of the Staff Judge Advocate, 1st Infantry Division, 

(2004) [hereinafter lID 2004 OIF AAR]. 

182 See After Action Review Conference, Office ofthe Staff Judge Advocate, V Corps, and Center for 

334 
Other JAs took advantage of the AR 635-200 language stating "separation will not be 

delayed for completion of the physical" by completing all of the administrative 

requirements for separation except the medical examination and/or mental evaluation. 183 

Soldiers then went back to home station for these, allowing the separation process to 

occur expeditiously. 

Aside from the difficulties involved in obtaining medical support, recent AAR 

comments have focused on the location and composition of administrative separation 

boards, noting it may be helpful to select board members based in a single location. For 

example, the 25ID OSJA reported board members were organic to the COB or FOB that 

was home to the command in question. 184 The 3ID OSJA added that its command 

established separate boards in two locations: "This allowed for a majority ofthe MND-C 

brigades to have a standing board at their FOB. This decreased unnecessary travel and 

allowed for smoother planning for witnesses, board members, and counsel. .. , Selecting 

administrative separation boards based in part on board member location will minimize 

travel requirements and expedite boards."'85 

An additional complication in the administrative separation process is the 

requirement for Soldiers, before completing out-processing, to participate in the Army 

Career and Alumni Program (ACAP) at home station. 186 

VLL.3. Letters ofReprimand 

[See ADMINISTRATIVE LAW (Military Personnel Law).] 

Law & Military Operations, in Heidelberg, F.R.G. (27 Apr. 2004).
 

183 See OEF/OIF LL, Vol. II, supra note 115, at 206.
 

184 25ID 2007 OIF AAR (M] Division), supra note 66, at 4.
 

185 3ID 2008 OIF AAR, supra note 74, at 11.
 

186 25ID 2007 OIF AAR (M] Division), supra note 66, at 4.
 

335 
VLM. CIVILIANS ACCOMPANYING THE FORCE 

Commands may exercise jurisdiction over civilians and contractors accompanying 

the force in a number ofways. 187 The Military Extraterritorial Jurisdiction Act of 2000 

(MEJA) establishes federal jurisdiction over offenses committed outside the United 

States by persons employed by or accompanying U.S. forces. It also includes former 

servicemembers released or separated from active duty before identification and 

prosecution for the commission of such offenses, and for other purposes. 188 Persons 

"serving with or accompanying the force" may also be subject to trial by court-martial for 

offenses under the UCMl 189 The charged offense(s) against a person accompanying the 

force previously had to occur under a war formally declared by Congress, but may now 

also occur during a contingency operation. 190 Determining whether criminal jurisdiction 

exists over contractors may depend upon the type of contractor, as well as any applicable .. 191 contract provlSlons. 

Commanders also have several options for offenses that do not rise to the level of 

criminal conduct for prosecution under MEJA. These include barring the offender from 

military installations in the area or theater of operations, sending the offender back to the 

continental United States (CONUS), requesting they receive a reprimand, or requesting 

the contracting agency terminate the offender's position. Furthermore, contractors need 

to understand with what, in accordance with their contracts, they must be familiar and 

comply. These include applicable DOD regulations, directives, instructions, general 

orders, policies and procedures, U.S. and host nation laws, international law, and all 

applicable treaties and international agreements (e.g., status of forces agreements, host 

nation support agreements, Geneva Conventions, and defense technical agreements) 

relating to safety, health, force protection, and operations.In 

[See also International & Operational Law (Civilians & Contractors on the Battlefield).] 

187 See OPLAW HANDBOOK, supra note 12, at 249-53. 

188 See U.S. DEP'T OF DEFENSE, INSTR. 5525.11, CRIMINAL JURISDICTION OVER CIVILIANS EMPLOYED BY 

OR ACCOMPANYING THE ARMED FORCES OUTSIDE THE UNITED STATES, CERTAIN SERVICEMEMBERS, AND 

FORMER SERVICEMEMBERS (3 Mar. 2005) (implementing 18 U.S.c. 3261-67, Military Extraterritorial 

Jurisdiction Act (MEJA). 

189 See UCMJ art. 2(a)(l0) (2002). 

190 National Defense Authorization Act for Fiscal Year 2007, amending UCMJ Art. 2(a)(1O) addressing 

UCMJ jurisdiction over civilians accompanying the armed forces from "time of war" to "time of declared 

war or contingency operation." See also Memorandum, Sec'y of Defense, to Secetaries ofthe Military 

Departments and others, subject: UCMJ Jurisdiction Over DOD Civilian Employees, DOD Contractor 

Personnel, and Other Persons Serving With or Accompanying the Armed Forces Overseas During 

Decleared War and in Contingency Operations (lOMar. 2008) (implementation guidance). 

191 See U.S. DEP'T OF ARMY, FIELD MANUAL 3-100.21, CONTRACTORS ON THE BATTLEFIELD (3 Jan. 2003); 

U.S. DEP'T OF ARMY, REG. 715-9, CONTRACTORS ACCOMPANYING THE FORCE (29 Oct. 1999). 

192 See Solicitations Provisions and Contract Clauses, 48 CFR § 5152.225-74-9000(a)(3) (2004); U.S. 

DEP'T OF DEFENSE, INSTR. 3020.41, CONTRACTOR PERSONNEL AUTHORIZED TO ACCOMPANY THE U.S. 

ARMED FORCES para. 6.1 (3 Oct. 2005). 

336 
VLN. TRIAL DEFENSE SERVICE (TDS) 

In 1970, with all the [1st Cavalry Division] lawyers located at the division main 

headquarters, such activities as interviewing witnesses for trial, advising 

convening authorities located outside ofPhuoc Vinh and, in some instances, 

actively conducting trials atfirebases, required traveling by air. Additionally, 

troops normally did not come into headquarters for personal legal assistance or 

to file claims; Judge Advocates brought legal services to them . .. [T]hanks to 

the division chiefofstaff, Col. Edward C. Meyer, a helicopter was dedicated onehalfday a weekfor use by the Army lawyers. It was known as the "lawbird" on . jl 193 teays h d zt ew. 

At some time during every deployment, commanders become aware of the 

importance of having one or more Trial Defense Service (TDS) attorneys available to 

counsel Soldiers on their legal rights and responsibilities. Recent deployments have 

confirmed TDS attorneys are a valuable commodity, as evidenced by the large number of 

clients seen during OEF and OIF, and coupled with very full work schedules. 194 

To make matters more difficult, many large units (sometimes in excess of 3000­

4000 Soldiers) often deploy without TDS legal support, increasing the burden on defense 

counsel in theater. Accordingly, TDS attorney availability is often limited, at best. 

Furthermore, having a small number ofTDS attorneys in theater often requires them to 

travel extensively throughout the AO to meet with clients. 195 

Solutions to help avoid having TDS attorneys constantly on the road include using 

telephones and video teleconferencing (VTC) units whenever possible. Another 

possibility is consolidating TDS offices at major bases and/or life support areas, 

establishing TDS "cells." This provides a geographical "area" for legal support that 

allows defense counsel to provide legal services to a large number of deployed Soldiers 

while establishing consistent office hours. 196 However, TDS attorneys could also visit 

FOBs and COBs where multiple Soldiers are in need of their assistance. 197 

193 COLONEL FREDERIC L. BORCH III, JUDGE ADVOCATES IN COMBAT: ARMY LAWYERS IN MILITARY 

OPERATIONS FROM VIETNAM TO HAITI 46 (2001). 

194 OEF/OIF LL, Vol. II, supra note 115, at 209. 

195Id. See also 4ID 2004 OIF AAR Conference, supra note 149, at 5 (comments by Major Nathan Ratcliff, 

Regional Defense Counsel, Region IX, regarding the limitations placed on TDS attorneys in the Iraq theater 

of operations). A recent AAR has suggested the SJA, before deployment, should contact the deployed 

Chief, MJ, to obtain a realistic assessment of trial defense needs in theater, and should then coordinate with 

the Senior Defense Counsel (SDC) and Regional Defense Counsel (RDC) to ensure an appropriate level of 

support. 10th MTN DIV 2007 OEF AAR, supra note 68, at 17. 

196 See 4ID 2004 OIF AAR Conference, supra note 149. For example, during a recent rotation, the MultiNational Division - Baghdad (MND-B) TDS office was centrally located in one office on Camp Liberty, 

but one attorney moved to Camp Taji at the beginning of the deployment to accommodate the large number 

of clients there. The TDS office operated with very flexible hours and was able to see clients on a walk-in 

or appointment basis. For conflict cases, defense counsel came from Camp Victory, or from other locations 

such as Kuwait or COB Speicher. 4ID 2007 OIF AAR, supra note 66, at 31. 

197 101st ABN DIV 2007 OIF AAR, supra note 65, at 75. 

337 
As soon as a legal team receives notice of deployment, its leaders should contact 

TDS to determine what TDS office and which attorneys will support their units and how 

the office intends to provide that support. One OSJA commented it took over a month to 

obtain a decision on which office would support one of their outlying brigades and to get 

a TDS attorney to visit the unit. Before deploying, the legal team must also determine the 

TDS SOP for seeing clients (e.g., will TDS attorneys travel to different FOBs for Article 

15 counseling or will servicemembers go to the division FOB for counseling?).198 

Identification of paralegal support to TDS must also occur as far as possible in 

advance of deployment so these personnel can begin training on their new mission and 

are able to assimilate quickly into TDS operations upon arrival in theater. Moreover, if 

TDS RC augmentees mobilize, they must receive their orders well in advance of 

deployment to ensure they are able to deploy with the supported unit. 199 

Although TDS attorneys may need to travel in order to assist their clients, the 

101st OSJA AAR commented that, as it was unclear from whom TDS was to obtain 

logistic support, they had trouble obtaining vehicles. In that case, the OSJA allowed TDS 

to borrow a vehicle when one was available, but the lack of transport was a major 

hindrance. Similarly, TDS had insufficient laptops, and they lost those when the 101st 

redeployed because the incoming division failed to provide any. Moreover, most TDS 

offices lacked access to computers and printers capable of handling classified documents. 

The 101st OSJA also provided technical support to TDS equipment.2oo 

The 101st OSJA recommends that, to the extent possible, TDS attorneys deploy 

with the division they support and remain with that division for the duration of its tour 

(otherwise, to avoid forming attorney-client relationships before redeploying, defense 

counsel essentially stopped taking cases for forty-five to sixty days before redeployment. 

This caused the division to seek assistance from TDS attorneys outside its AO)?OI 

198 aEF/OIF LL, Vol. II, supra note 115, at 280.
 

199Id.
 

200 lOlst ABN DIV 2007 OIF AAR, supra note 65, at 75-76.
 

201 Id. at 74. The AAR also noted including TDS attorneys in aSIA social and professional activities had
 

fostered positive relations between TDS and aSIA personnel. Id. at 76.
 

338 
VLO. REDEPLOYMENT 

It is important units "return to normal" as quickly as possible upon redeployment. 

As stated in Field Manual (FM) 27-100, Legal Support to Operations, upon returning to 

home station, units should strive to conduct their business in the same manner as before 

deployment. 202 However, changing jurisdictional alignments, rescinding GOs, and 

making other required adjustments can often be a difficult process. Deployed legal teams 

must also keep in mind that upon redeployment there may be a significant number of 

individual cases that they must transfer back to the appropriate, realigned jurisdiction 

before adjudication. One of the most valuable lessons for JAs to take away from the 

wide variety of MJ issues arising during deployments is the importance of addressing as 

many of these concerns as possible before redeployment. 

202 See FM 27-100, supra note 4; see also OEF/OIF LL, Vol. I, supra note 38, at 214; OPLAW HANDBOOK 

2008, supra note 12, at 445 (summary of required actions upon redeployment). 

339 
340
 
VIL MULTINATIONAL OPERATIONS
 

Almost every time militaryforces have deployedfrom the United States it has 

. been as a member of-most often to lead - coalition operations.] 

The United States began laying the legal and political framework for building a 

coalition to conduct Operation ENDURING FREEDOM (OEF) in Afghanistan soon after 

the attacks of 11 September 2001. Both OEF and Operation IRAQI FREEDOM (OIF) 

are U.S.-led coalitions, consisting ofmultiple willing states.2 The NATO-led ISAF 

mission in Afghanistan, while alliance-led, includes a broad coalition ofstates that are 

not NATO members. Multinational operations pose unique challenges, as each partner's 

military capabilities, national interests, political will, and legal limitations influence its 

role.3 The challenge for commanders is to synchronize partner contributions to project 

focused capabilities that present no seams or vulnerabilities to an enemy for exploitation. 4 

The JA is involved in this synchronization process through identifying legal "friction 

points" between multinational partners and proposing solutions to eliminate or reduce 

their impact on the operation.5 Both the United States and its multinational partners place 

high importance on this process. 6 

I General Robert W. RisCassi, Principles/or Coalition War/are, JOINT FORCE Q., Summer 1993. 

2 The basis of this section is the work ofLt Col Richard Barty, British Army, Adjutant General's Corps 

(Army Legal Services), former Director, Coalition Legal Operations, Center for Law & Military Operations 

(CLAMO), The Judge Advocate General's Legal Center & School (TJAGLCS), and previous work by 

Squadron Leader Catherine Wallis, Legal Officer, Royal Australian Air Force, previous Director, Coalition 

Legal Operations, CLAMO, TJAGLCS. 

3 OEF and OIF are examples of multinational operations and coalition action. Multinational operations 

occur "[b]etween two or more forces or agencies oftwo or more nations or coalition partners." 

Multinational operations may occur within the structure of a coalition or an alliance. An alliance is "[t]he 

relationship that results from a formal agreement (e.g., treaty) between two or more nations for broad longterm objectives that further the common interests of the members)." A coalition is "[a]n ad hoc 

arrangement between two or more nations for common action". JOINT CHIEFS OF STAFF, JOINT PUB. 1-02, 

DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED TERMS (12 Apr. 2001) (as amended 

through 4 Mar. 2008) [hereinafter JOINT PUB. 1-02]. 

4 See JOINT CHIEFS OF STAFF, JOINT PUB. 3-16, MULTINATIONAL OPERATIONS, at xiv (7 Mar. 2007) 

[hereinafter JOINT PUB. 3-16]; U.S. DEP'T OF ARMY, FIELD MANUAL 100-8, THE ARMY IN MULTINATIONAL 

OPERATIONS (24 Nov. 1997); ABCA, COALITION OPERATIONS HANDBOOK (11 Apr. 2005) [hereinafter 

COALITION OPERATIONS HANDBOOK]. 

5 See INT'L & OPERATIONAL LAW DEP'T, THE JUDGE ADVOCATE GENERAL'S LEGAL CENTER & SCHOOL, 

U.S. ARMY, JA 422, OPERATIONAL LAW HANDBOOK 592-98 (2008) [hereinafter OPLAW HANDBOOK 

2008]. 

6 See JOINT PUB. 3-16, supra note 4, at 1-7 ("Interoperability is an essential requirement for multinational 

operations."); Ministry of Defence (UK), Operations in Iraq: Lessons for the Future (11 Dec. 2003), 

http://www.mod.uk/NRJrdonlyres/734920BA-6ADE-461F-A809-7E5A754990D7/O/opsinira'Llessons_dec03.pdf 

(UK forces must be organized, trained and resourced for interoperability with partners); Minister for 

Defence (Australia): 

The memberships of allied groups and coalitions will vary, depending on the nature of 

the threat and the nature of the necessary response. These coalition parties will be 

operating under varied domestic and intemationallegal obligations. This dilemma 

341 
In OIF, Coalition partner contributions ranged from direct military participation to 

logistic and intelligence support, specialized chemical/biological response teams, overflight rights, humanitarian and reconstruction aid, and political support. Judge Advocates 

need to keep up to date on the identity of the countries participating in a multinational 

operation, and must take care to ensure that they are aware of those that are contributing 

in only a limited way, such as training security forces or providing engineers for civil 

projects. 

Language difficulties, training differences, and lack of communications 

interoperability may exacerbate complex legal and policy issues. 7 Further, there can be 

no expectation multinational partners will have the same level of legal support as 

deployed u.s. forces. 8 For example, most multinational partner forces do not have 

paralegal support, their attorneys may be of higher (or lower) rank than U.S. JAs with a 

similar U.S. unit, and in some cases, they may even be deployed civilian attorneys. 

highlights the critical importance of ongoing constructive engagement by Australians, 

including our military lawyers, with the forces of our allies and coalition partners. 

Minister for Defence (Australia) Senator Robert Hill, speech to the Defence Legal Service Conference (28 

Jan. 2004) at http://www.minister.defence.gov.au/HillSpeechtpl.efm?CurrentId=3478. 

7 Joint doctrine expresses the challenges of operating in a coalition. "Often, the MNFC [Multinational 

Force Commander] will be required to accomplish the mission through coordination, communication, and 

consensus, in addition to traditional command concepts. Political sensitivities must be recognized and 

acknowledged." JOINT PUB. 3-16, supra note 4, at III-6. Because of the need for ongoing cooperation to 

overcome such obstacles, the United States participates in the Multinational Interoperability Council 

(MIC), a key senior operator-led multinational forum between the United States and selected multinational 

partners for addressing coalition and multinational interoperability issues. See JOINT CHIEFS OF STAFF, 

INSTR. 3165.01, MULTINATIONAL INTEROPERABILITY COUNCIL (24 Jan. 2006). The MIC website is at 

http://www.jcs.mil/j3/mic/. and includes a guide to building coalitions. 

8 See THE JUDGE ADVOCATE GENERAL'S DEPARTMENT, UNITED STATES AIR FORCE, AIR FORCE 

OPERATIONS AND THE LAW: A GUIDE FOR AIR AND SPACE FORCES 339-340 (1st ed. 2002) [hereinafter 

USAF OPLAW] (discussing the different roles and rank structures of other legal services). 

342 
VILA. LEGAL ISSUES 

VII.A.l. International & Operational Law 

Legal Basis for Use of Force 

Judge Advocates must understand how other multinational partners view the legal 

basis for the use of force for a particular operation. At the outset of OIP, the United 

States relied inter alia on the inherent right of national self-defense, while the British 

Government justified the use offorce solely on breaches ofprevious UN Security 

Council resolutions (UNSCRs). Indeed, states participating in a multinational operation 

may hold different views of its legal framework. At the end of major combat operations 

in OIF, the British Government determined an armed conflict no longer existed and its 

troops could only use force in self-defense. 9 This contrasted with the U.S. position that a 

state of international armed conflict continued to exist in Iraq. 

Similar issues arise between states participating in the NATO-led International 

Security Assistance Force in Afghanistan. Where a state assesses the security situation 

does not rise to the level of armed conflict, it may restrict its forces to the use of force in 

self-defense, which potentially affects their employment. Judge Advocates must be 

cognizant of the possibility oftaking a different legal approach to a situation, aware of 

actual differences in national legal positions, either major or subtle, and capable of 

explaining those positions to both Soldiers and commanders. It requires great effort to 

stay current on the positions ofmultinational partners as they evolve over time. 

Multinational partner legal advisors should also endeavor to inform fellow legal advisors, 

as well as operational planners, of changes in their respective legal and policy positions, 

and the potential impact of such changes upon operations. 

ROE 

The United States places an importance on the ROE that other nations may not 

share, attaches meaning to terms with which other nations'forces may not be 

familiar, and implements ROE within a context ofdoctrine that may differ 

markedlyfrom that ofother nations. When operating with forces from nonEnglish-speaking countries, these differences will be accentuated. 10 

Drafting & Approval 

Formal alliances such as NATO often develop and train with standard ROE, 

although development of specific ROE for each mission does occur. In the case of 

NATO, the North Atlantic Council (NAC), NATO's political body, approves mission9 This position changed for a short period in 2004. The tempo of operations led the British Government to 

conclude that its troops were engaged in an internal armed conflict. 

10 U.S. DEP'T OF ARMY, FIELD MANUAL 27-100, LEGAL SUPPORT TO OPERATIONS 8.4.2 (l Mar. 2000). 

343 
specific ROE. These represent consensus among NATO members. Any change to the 

ROE requires NAC approvaL 

In coalition operations outside formal alliances, each nation drafts and approves 

its own ROE. Thus, the national chain of command approves changes to the ROE. In 

OIF, Coalition partner ROE were different from US. ROE, reflecting each partner's law · 11 and po1ICY. 

Information Sharing 

Judge Advocates assisting with the drafting of national ROE should ensure the 

marking ofthe ROE with the least restrictive classification possible in order to permit the 

sharing of information with multinational partners. 12 Inability to share ROE with 

multinational partners operating in the same area of operations or participating in the 

same mission may raise inoperability concerns. 

The contrasting experience ofAustralian forces in OEF and OIF illustrates this. 

For OEF, the short planning timeframe prevented access to US. ROE. As a result, 

Australian ROE were inconsistent with US. ROE. In contrast, during the more 

deliberate planning for OIF, UK and Australian attorneys attended a number of US. 

Central Command (CENTCOM)-sponsored ROE conferences. 13 Australia and the UK 

were then able to draft their ROE with knowledge of the likely U.S. ROE, ensuring the 

ROE could be as consistent as possible. 

II Coalition national ROE for OEF and OIF can be viewed on SIPRNET at http://www.centcom.smil.mil. 

This is in contrast to the Kosovo mission, where NATO ROE were issued. See CENTER FOR LAW & 

MILITARY OPERATrONS, LAW AND MILITARY OPERATrONS IN Kosovo, 1999-2001: LESSONS LEARNED FOR 

JUDGE ADVOCATES 127-35 (15 December 2001) [hereinafter Kosovo LL]. 

12 Judge Advocates from Combined Joint Task Force 76 (CJTF-76) provided a 2006 OEF example ofthe 

difficulties caused when ROE are classified in an excessively restrictive manner. They were asked to 

provide a S//REL GCTF (Global Counter-Terrorism Force) version of US. ROE to place on CENTRIXS, a 

Coalition network classified at that level. However, as ROE are a compilation of orders and messages from 

U.S. Central Command (CENTCOM) and its subordinate formations, JAs could not simply "reclassify" 

them. The CJTF-76 JAs did redraft the ROE so that each paragraph was properly classified, based upon 

the classification of its source document, then requested originators to reconsider their classification levels. 

Eventually, CJTF-76 was allowed to release the document to multinational partners which had troops in 

Afghanistan, but not to GCTF as a whole, so that the ROE could not be posted on CENTRIXS. The CJTF76 JAs concluded that JAs must better understand "writing for release" when preparing ROE and other 

documents, and commented that, in multinational operations, "it is not acceptable to simply classify a 

document as Secret because it is convenient to do so." Where information may not be released, JAs should 

do their best to isolate and identify it, so that the remaining information may be released. 10th MTN DlV 

2007 OEF AAR, supra note 68. 

13 Group Captain Paul Cronan, Royal Australian Air Force, J06, Headquarters Australian Theatre, 

Interview with Squadron Leader Catherine Wallis, Royal Australian Air Force, Director, Coalition Legal 

Operations, Center for Law & Military Operations (Feb. 18,2004) [hereinafter Cronan Interview]. 

344 
Judge Advocates asked to release U.S. ROE to multinational partners must direct 

such requests to the relevant approval authority (e.g., CENTCOM).14 In some cases, 

unclassified versions ofROE may be available for release to host nation security forces 

with which U.S. forces expect to conduct combined operations. However, during OEF, 

because U.S. forces trained and operated with Afghan forces, but could not share U.S. 

ROE with them. Consequently, U.S. personnel assisted in the creation ofAfghan ROE 

sufficiently similar to U.S. ROE to allow participation in combined operations. IS 

Differences in Terminology & Meaning 

Independently drafted national ROE will contain not only variations resulting 

from differences in national law and policy, but also variations resulting from different 

drafting styles and terminology. While the former is unavoidable, the latter creates extra 

and often unnecessary hurdles to interoperability. 

Ideally, JAs should be aware of and able to advise on the terms used in both 

national and multinational partner ROE. Even where terms familiar to U.S. JAs appear in 

multinational partner ROE, JAs should verify their meaning. 16 For example, U.S. 

doctrine defines the phrase "hostile intent" as "[t]he threat ofimminent use of force by a 

foreign force or terrorist unit against the United States, U.S. forces, or other designated 

persons or property."I? U.S. rules always authorize the use oflethal force in response to 

a demonstration of hostile intent. 18 In contrast, British doctrine describes hostile intent in 

the following terms: 

14 See Major Jeff Bovarnick, Chief, Operational Law, CJTF-180, CJTF-180 Notes from the Combat Zone 4 

(2003). 

[T]he vast majority ofthe coalition forces have not engaged in combat operations since 

WWII. In joining the Global War on Terrorism, they join the coalition ready to help 

capture and kill Al Qaeda and Taliban. Fighting alongside the United States, 

understandably they want to review the U.S. ROE. Because ofthe classification ofthe 

ROE, we cannot simply hand it over. On a nation by nation basis, CENTCOM will 

determine what nation we can release redacted versions ofthe ROE to, usually reserved 

for those nations performing large combat operations with the United States. 

But see JOINT CHIEFS OF STAFF, INSTR. 5221.0lB, DELEGATION OF AUTHORITY TO COMMANDERS 

OF COMBATANT COMMANDS TO DISCLOSE CLASSIFIED MILITARY INFORMATION TO FOREIGN 

GOVERNMENTS AND INTERNATIONAL ORGANIZATIONS (1 Dec. 2003) (C1, 13 Feb. 2006) 

(delegating to the commanders of combatant commands the authority to disclose classified 

military information to foreign governments and international organizations in certain 

circumstances). 

15 E-mail from Colonel DavidL. Hayden, former Staff Judge Advocate, XVIII Airborne Corps, to 

Squadron Leader Catherine M. Wallis, Royal Australian Air Force, Director, Coalition Legal Operations, 

Center for Law & Military Operations (5 Mar. 2004) [hereinafter Hayden E-mail]. 

16 See Major Michael L. Roberts, A Call/or Multinational ROE Doctrine 16-18 (unpublished manuscript) 

(discussing the confusion that arises from a lack ofstandardization of ROE terminology). 

17 JOINT CHIEFS OF STAFF, INSTR. 3121.0lB, STANDING RULES OF ENGAGEMENT/STANDING RULES FOR THE 

USE OF FORCE FOR U.S. FORCES (13 June 2005) [hereinafter JCS INSTR. 3121.D1B]. 

18 Id. 

345 
The ROE profile must give guidance on events that can be interpreted as a 

demonstration of hostile intent. These may include: Detection of heavy 

jamming of communications emanating from hostile or potentially hostile 

territory. Units moving into weapon launch positions and preparing to fire, 

launch or release of weapons against forces, shipping, aircraft or territory of own 

or designated friendly nations. 19 

Moreover, from a British perspective the use of force in response to hostile intent 

is not automatic, but requires specific authorization in the ROE?O Where possible, JAs 

should identify such differences and assess their impact.21 

Similarly, when a multinational partner adopts a new term, it is helpful to provide 

others with an explanation of the rationale for the change and how to interpret the term. 

For example, the term "positive identification" first appeared in U.S. OEF ROE, and then 

appeared in OIF ROE. In addition, the United States introduced the term "likely and 

identifiable threat" in OEF ROE. 22 As this was a new term, unfamiliar to multinational 

partners, their ROE did not use it. 

Restrictions (National Caveats) 

Recent operations have revealed significant differences in national perspectives 

regarding the application of military force through the ROE. These factors can influence 

19 UK Ministry of Defence, Joint Service Publication 398 app. AI. 

20 I d. 

21 See, e.g., Interview with Colonel Kathryn Stone, former Staff Judge Advocate, 10th Mountain Division, 

in Charlottesville, Va. (Oct. 7, 2003) (needed to be cognizant of coordinating and understanding the 

different ROE in effect for various units). A useful checklist for identifying issues concerning ROE is 

contained in the COALITION OPERATIONS HANDBOOK, supra note 4, at 13-11 to 13-12. 

1. Are there generic ROE that all nations have agreed to? 

2. What is the impact on each participating nation of the ROE? 

3. How does each nation disseminate ROE to its Soldiers? 

4. Have the ROE been distributed to the Soldiers and training conducted prior to deployment? 

5. What are the key differences in ROE across the coalition? 

6. Are there national "red cards" or points of contention concerning ROE that the commander 

must know? 

7. Are there ROE on the use of indirect fire? 

8. Is there a dichotomy between force ROE on the use of indirect fire and national force 

protection? 

9. Does each nation have a common or clear understanding of the terms used in the ROE? 

10. Has the use of certain systems or equipment - such as defoliants, riot control agents, land 

mines - been evaluated for its impact in relation to the ROE? 

22 See CENTER FOR LAW & MILITARY OPERATIONS, LEGAL LESSONS LEARNED FROM AFGHANISTAN AND 

IRAQ, VOLUME I: MAJOR COMBAT OPERATIONS (11 September 2001 - 1 May 2003) 96-103 (1 Aug. 2004) 

[hereinafter OEF/OIF LL, Vol. I]. 

346 
a multinational commander's ability to use a national contingent's capabilities. 

Furthermore, identifying differences can help ensure that they do not place multinational 

partners in politically difficult situations.23 Where there are multiple partners involved, 

this process can become complicated. During OIF, Combined Joint Task Force 7 (CJTF7) maintained an ROE matrix for all contingents to assist in planning.24 Where issued 

NATO ROE exists, commanders and staffs will track any additional restrictions to which 

a contingent is subject (referred to as national caveats).25 

However, ROE differences may also have positive consequences. During OIF,
 

US. special forces possessed weapons not in the UK. or Australian inventory, but that
 

were operationally significant for an OIF mission. Accordingly, the command attached
 

U.S. special forces personnel to British and Australian special forces teams to provide
 

that particular capability.26 In other situations, where US. ROE were constrained or
 

unclear, coalition partners could execute the mission
 

Training 

Judge Advocates should ensure ROE training includes reference to multinational 

partner ROE, where relevant. Where security caveats permit, JAs should consider 

assisting other multinational JAs in their ROE training by sharing vignettes and 

informing major combat partners of any request for ROE changes or any changes made. 

Self-Defense 

Self-defense is another area where significant national differences occur. The 

United States describes self-defense as follows: 

A commander has the authority and obligation to use all necessary means 

available and to take all appropriate action to defend that commander's unit and 

other US forces in the vicinity from a hostile act or hostile intent. Force used 

23 This consideration did affect OEF planning and operations: Hayden E-mail, supra note 15. 

24 Major Patricio Tafoya U.S.M.e. Judge Advocate Combined Joint Task Force 7, Notes from III Corps 

Pre-deployment Conference (12-14 Nov. 2003). Similarly, Major Dean Whitford reported that he "had 

copies of all three ROE side by side in a six-sided binder at my desk at all times, and did a read-through of 

each with coalition members of the command." E-mail from Major Dean Whitford, Staff Judge Advocate, 

Joint Special Operations Task Force Dagger (OEF) & Staff Judge Advocate, Combined Joint Special 

Operations Task Force - West (OIF), to Squadron Leader Catherine Wallis, Royal Australian Air Force, 

Director, Coalition Legal Operations, Center for Law & Military Operations (14 May 2004) [hereinafter 

Whitford E-mail]. 

25 See Captain Chris Hamers, Royal Netherlands Army, After Action Report (15 Mar. 2005) [hereinafter 

Hamers AAR]. Captain Hamers noted that the ISAF ROE matrix divisions of "use of force caveats" and 

"employment caveats." Consultation and communication between multinational partners on ROE ensured 

similar conduct and proved useful for some new NATO members, including Estonia, Lithuania, Latvia and 

Bulgaria, none of which issued "soldier cards" to their troops. To facilitate this, units introduced and 

issued a standard ISAF "soldier card" at newcomers' briefings and to national contingent commanders and 

senior national representatives, and incorporated it in the OPLAN. Id. 

26 Whitford E-mail, supra note 24. 

347 
should not exceed that which is necessary to decisively counter the hostile act or 

intent and ensure the continued safety of US forces or other persons and property 

they are ordered to protect. US forces may employ such force in self-defense 

only so long as the hostile force continues to present an imminent threat. 27 

Some multinational partners require specific ROE to authorize self-defense. 

Others believe the right of self-defense is inherent but have different criteria its trigger. 28 

Differences in interpretation may also arise in relation to a commander's ability to limit 

the right of self-defense, the use of or requirement for warning shots, and the ability to 

defend multinational forces in the absence of specific ROE.29 Self-defense rules in 

3o relation to protection of property may also differ. Where self-defense is a primary basis 

for the use of force, it is important not to assume that multinational partner forces have 

the same understanding of the term as U.S. forces. One solution is to discuss the mission 

in advance and clarify how each partner would respond to particular situations. 31 

27 JOINT PUB. 1-02, supra note 3. See also JCS INSTR. 3121.0lB, supra note 17. 

28 For an example ofpossible interoperability issues, see Kosovo LL, supra note II, at 129-30 (concerning 

the French interpretation that only a hostile act (and not hostile intent) may trigger self-defense). 

29 Many states classify their precise self-defense rules, but the following example illustrates in general 

terms the range of possible responses: 

A man approaches a coalition position and fires at the position. Before any person 

returns fire, he lowers the weapon so that it points toward the ground and runs away. The 

man is not part of a declared hostile force and coalition forces must act in accordance 

with self-defense in responding to this situation. 

Three possible responses to this situation are: 

• Shoot the man immediately - he continues to be a threat to life and personnel may kill him in 

self-defense. 

• Potentially shoot the man, but not immediately - he continues to be a threat to life but the Soldier 

must use graduated force to remove the threat, such as calling him to stop and/or firing a warning 

shot, prior to making a decision to shoot. 

• Cannot shoot the man - as the weapon is not pointing at any person he is no longer a threat to 

life and the Soldier therefore, cannot kill him in self-defense. He is, however, subject to arrest and 

if he becomes a threat to life in the course ofthe arrest, the Soldier may kill him. 

While U.S. forces would adopt the first response, certain multinational partner forces would adopt one of 

the other two. Note that this might change, however, if the same circumstances arose in the context of an 

armed conflict. 

30 For example, British forces may not use force in the defense of property unless the loss of or damage to 

the property results in an imminent threat to life. 

31 Colonel Kathryn Stone, former Staff Judge Advocate, 10th Mountain Division, related the following 

incident during OEF: "Once, the Brits came to me and outlined a plan for a hut-to-hut search for weapons 

in a particular village. We walked through the ROE - what they could and could not do - and they were 

satisfied." E-mail from Colonel Kathryn Stone, former Staff Judge Advocate, 10th Mountain Division, to 

Squadron Leader Catherine Wallis, Royal Australian Air Force, Director, Coalition Legal Operations, 

Center for Law & Military Operations (22 Mar. 2004) [hereinafter Stone E-mail]. 

348 
Targeting 

We need to understand going in the limitations that our coalition partners will 

place upon themselves and upon us. There are nations that will not attack 

targets that my nation will attack. There are nations that do not share with us a 

definition ofwhat is a valid military target, and we need to know that up front. 32 

Multinational partners are likely to have different targeting limitations because of 

their individual legal and policy constraints. Due to security classification, discussion of 

these differences may only occur in general terms. However, as with ROE, it is 

important to know the differences occur and their potential impact on operations. Major 

Thomas Cluff, USAF, former lA, Combat Plans Division, Combined Air Operations 

Center, described the role ofUSAF lAs in understanding and explaining Coalition 

partner targeting and ROE frameworks to U.S. planning staff; 

The U.S. lAs assigned to combat plans and strategy had a round table discussion 

early on with the UK and AUS lAs concerning each country's ROE and approval 

authorities for the various types of targets. We also discussed UK and AUS 

political sensitivities, which helped us to better understand their ROEs. Of 

course, this also helped develop good working relationships b/f alP began. 

Because of their small numbers, they were not as involved in combat plans as we 

were. We were able to use our knowledge of their ROE to spot/resolve/explain 

coalition unique targeting concerns to U.S. planners. 33 

Multinational partners may also corne to different conclusions regarding the 

legitimacy of a specific target on factual, legal, or policy grounds. Each partner will 

assess a target based on the intelligence available to it, and this assessment will form the 

factual basis to which partners apply the law and policy (e.g., the particular role assigned 

to an individual in the enemy regime, or whether a particular building is or is not an 

ammunition factory). Information sharing to the extent permitted by classification 

restrictions can reduce the possibility of factual differences. 34 Legal differences may 

32 Lieutenant General Michael Short USAF, Commander of Allied Air Forces, Southern Europe, cited in 

Colonel Michael Kelly, Legal Factors in Military Planningfor Coalition Warfare and Military 

Interoperability: Some Implications for the Australian Defence Force, 2 AUSTL. ARMY 1. 161 (2005), 

available at http://www.defence.gov.au/army/lwsc/docs/AAJ_Autumn05 .pdf. 

33 Comments of Major Thomas 1. Cluff, U.S. Air Force, former Judge Advocate, Combat Plans Division, 

Combined Air Operations Center in E-mail from Major Philip Wold, U.S. Air Force, former Chief, 

Operations Law, 9 AFIUSCENTAF, to Squadron Leader Catherine Wallis, Royal Australian Air Force, 

Director, Coalition Legal Operations, Center for Law & Military Operations (12 Apr. 2004). 

34 This is particularly difficult to address in the case of a time sensitive target (TST), a "joint force 

commander designated target requiring immediate response because it is a highly lucrative, fleeting target 

or it poses (or will soon pose) a danger to friendly forces." JOINT PUB. 1-02, supra note 3. In Iraq, the U.S. 

made some TST targeting decisions alone, with Coalition partners only being able to check a GOINO GO 

box without being privy to all of the information in the U.S. decision matrix. Where coalition forces are 

involved in a shooting or supporting role, sharing targeting information fully may result in more GO than 

NO GO boxes. E-mail from Squadron Leader Patrick Keane, Royal Australian Air Force, former Legal 

Officer, Combined Air Operation Center, to Squadron Leader Catherine Wallis, Royal Australian Air 

Force, Director, Coalition Legal Operations, Center for Law & Military Operations (18 Feb. 2004). Note, 

however, that there is no operational impact where the boxes are solely to deconflict friendly forces. 

349 
arise due to a multinational partner being subject to different treaty obligations/5 or 

interpreting the same obligations differently. For example, there are differences of 

opinion amongst Additional Protocol I signatories concerning its Article 52(2) definition 

of a military objective. 36 Finally, some multinational partners may reject or place 

restrictions upon some legally permissible targets on policy grounds. 37 

Because of these factors, during OIF, some Coalition partners could attack some 

targets, but other partners could not. Those targets particularly susceptible to variations 

in national viewpoint were regime symbols, such as royal palaces and statues of Saddam 

Hussein; communications facilities, such as television and radio stations; and nonuniformed government officials?8 During Operation ALLIED FORCE, NATO aircraft 

had also targeted both military and dual-purpose objects, the latter resulting in much 

public debate. 39 

Weapons Capabilities 

Some multinational partners may not have or may not have permission to use the 

full range ofweapons available to U.S. forces, due to resource, policy, or legal 

constraints. A multinational partner may have different legal obligations, such as being a 

signatory to a treaty to which the United States is not a party and does not representative 

of customary international law. Alternatively, the United States and a multinational 

35 For example, the United States is not among the III nations that have expressed a willingness to sign the 

forthcoming treaty prohibiting the use of cluster munitions. 

36 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of 

Victims ofIntemational Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 48 [hereinafter AP I]. 

Although the United States is not a party to AP I, it is bound by this article to the extent that it codifies 

customary law. Article 52(2) provides, in part, that "military objectives are limited to those objects which 

by their nature, location, purpose or use make an effective contribution to military action and whose total or 

partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite 

military advantage." States may come to different conclusions regarding whether certain objects are 

military objectives (commonly disputed ones include television and radio stations). See Kosovo LL, supra 

note 11, at 51-53. See further Theodore Meron, The Humanization ofInternational Law, 94 AM. 1. INT'L L. 

239,276-77 (2000). 

37 Australian targeting requirements illustrate this point. Australia received targets on the U.S.-developed 

strike lists but assessed them according to Australian legal requirements. Several target categories were 

subject to Australian ministerial approval before Australians could engage them. Department of Defence 

(Australia), The War in Iraq: ADF Operations in the Middle East 2003 13 (23 Feb. 2004), available at 

http://www.defence.gov.au/publications/lessons.pdf. 

38 Widely reported as destroyed for psychological effect, e.g., BBC News, UKforce 'destroy' Saddam 

statues (29 Mar. 2003). See discussion at Anthony Dworkin, Iraqi Television: A Legitimate Target? 

Crimes of War Project (27 Mar. 2003), available at http://www.crimesofwar.org/special/Iraq/brief-tv.html. 

For example, the non-uniformed regime officials who appeared on the "Personality Identification Playing 

Cards," available at http://www.defenselink.mil/news/Apr2003/pipcl0042003.html(last visited Aug. 13, 

2008). The United States announced that these 55 individuals could be "pursued, killed or captured." 

Brigadier General Brooks, as reported in Associated Press, Us. Distributes Most Wanted List (11 Apr. 

2003), available at http://www.foxnews.com/story/0.2933.83894.00.html. 

39 Squadron Leader Catherine Wallis, Legitimate Targets ofAttack: Considerations When Targeting in a 

Coalition, ARMY LAW., Dec. 2004, at 44. 

350 
partner may both be bound by a provision of international law (treaty or custom), but may 

interpret their obligations differently. Finally, differences may result of from national 

policy rather than any legal obligations. The weapon capabilities most affected by such 

differences include anti-personnellandmines (APL), riot control agents (RCAs), and 

cluster munitions.4o Judge Advocates must be prepared to explain the rationale for the 

use ofweapons that other multinational partners may not have or may not be able to use, 

but must also plan for alternatives. 

Anti-Personnel Landmines (APL) 

The key document concerning APL is the 1997 Ottawa Convention.41 It prohibits 

states parties from developing, producing, acquiring, stockpiling, retaining or transferring 

APL, either directly or indirectly, and from assisting, encouraging or inducing any of 

these activities.42 Most major multinational partners have ratified the Ottawa 

Convention,43 but the United States is not a party and does not consider it to represent 

customary international law. Rather, the United States is subject to the provisions of 

Amended Protocol II to the Certain Conventional Weapons Convention44 and domestic 

policy,45 which restrict rather than prohibit APL use. As a result, the United States could 

employ APL during OEF and OIF, but most Coalition partners could not.46 

When the issue ofAPL employment arises in multinational operations, JAs must 

determine the parameters ofthe APL prohibition for each partner. Determining what 

constitutes "assistance" is often a difficult question to resolve when employing APL in a 

40 Cluster munitions will soon appear on this list. It is likely that several major multinational partners, 

although not the United States, will become parties to a convention banning some uses of cluster munitions. 

41 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel 

Landmines and on Their Destruction, Sept. 18, 1997,36 LL.M. 1507. 

42Id. art 1(1). The treaty defines "anti-personnel mine" as "a mine designed to be exploded by the 

presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons. 

Mines designed to be detonated by the presence, proximity or contact of a vehicle as opposed to a person, 

that are equipped with anti-handling devices, are not considered anti-personnel mines as a result of being so 

equipped." Id. art 2. 

43 As of 18 November 2007, there were 156 states parties, including Afghanistan and Iraq (for current 

statistics, see http://www.icbl.org/treaty/). 

44 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be 

Deemed to be Excessively Injurious or to Have Indiscriminate Effects (and Protocols), Oct. 201980, 1342 

U.N.T.S. 137, 19 LL.M. 1523; Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps 

and Other Devices, amended May 3, 1996, S. TREATY DOc. No. 105-1,35 LL.M. 1206 (U.S. ratification on 

May 24, 1999). 

45 The policy in effect during the initial phases of OEF and OIF was President William Jefferson Clinton, 

Statement at the White House (16 May 1996) available in LEXIS, News library, ARCNWS file. The 

current U.S. policy is outlined in U.S. DEP'T OF STATE, LANDMINE POLICY WHITE PAPER (27 Feb. 2004) 

http://www.state.gov/tJpm/ris/fs/30047.htm. 

46 See Major Christopher W. Jacobs, Taking the Next Step: An Analysis ofthe Effects the Ottawa 

Convention May Have on the Interoperability ofUnited States Forces with the ArmedForces ofAustralia, 

Great Britain, and Canada, 180 MIL. L. REV. 49 (2004). 

351 
multinational context. A multinational partner's interpretation of it may affect that 

partner's willingness to be involved in air-to-air refueling, transport or even mission 

planning. Where U.S. forces rely on a multinational partner to provide such support, it is 

imperative to establish "workarounds" early.47 While several major multinational 

partners have issued unclassified guidance on their interpretation of their obligations,48 

there is insufficient detail in these documents for mission planning. In many cases, 

countries may classify the precise national interpretation and policy, as is the case for 

both the UK and Australia.49 Judge Advocates should consult with multinational partner 

legal advisors to determine their state's position. 

Riot Control Agents (RCAs) 

The Chemical Weapons Convention (CWC) prohibits riot control agents (RCAs) 

from being used "as a method of warfare," an undefined concept.50 The United States 

and its major multinational partners are all parties to the CWC,51 but interoperability 

issues may arise due to differing national legal interpretations and policy. For example, 

U.S. policy allows the use of RCAs in armed conflicts when the chain of command grants 

permission. There has been approval in the past for the use ofCS (tear gas) in Iraq by 

U.S. forces. 

An alternative interpretation of the term "method ofwarfare" places a total 

prohibition on RCA use in an armed conflict. The UK subscribes to this interpretation. 

Consequently, British forces in Iraq could neither transport RCAs, nor take part in 

operations using them. 52 A multinational partner's assessment as to whether the situation 

47 In relation to U.S. special forces operating with UK and Australian special forces during OEF and OIF, 

Major Whitford reported the establishment of guidelines ahead of time to avoid assistance issues where, for 

example, a Coalition officer might be the fires coordinator on duty. The guidelines also recognized the 

difference between calling fires (use function) and clearing fires (safety function). Whitford E-mail, supra 

note 24. 

48 In relation to APL, see Landmines Act 1998 (UK) (as long as the UK military member does not actually 

lay the APL, the statute does not prohibit participation in the operation); Anti-Personnel Mines Convention 

Implementation Act 1997 (Canada) (can participate in an operation with a state that uses APL but may not 

actively assist). Australian declaration to the Ottawa Convention: "Australia will interpret the word 

"assist" to mean the actual and direct physical participation in any activity prohibited by the Convention but 

does not include permissible indirect support such as the provision of security for the personnel of a State 

not party to the Convention engaging in such activities." 

49 A classified national policy may nevertheless be releasable to the United States. Copies of such policies 

are on file with the International & Operations Law Department, The Judge Advocate General's Legal 

Center & School. 

50 Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical 

Weapons and on Their Destruction, art. 1(5), Jan. 13,1993,32 LL.M. 800 [hereinafter CWe]. 

51 182 states have ratified the CWC. Non-signatories include Angola, Iraq, North Korea, Syria, Lebanon, 

Somalia, and Egypt. See http://www.opcw.org (last visited July 1,2008). 

52 UK Defence Minister Hoon briefed the press on 27 March 2003 that RCAs "would not be used by the 

United Kingdom in any military operations or on any battlefield", available at 

http://www.operations.mod.uk/telic/press_27march.htm. See also OPLAW HANDBOOK 2008, supra note 5, 

at 596 (noting that Germany also prohibits any use of RCAs in armed conflict). 

352 
amounts to anned conflict, therefore, may affect the partner's ability to use RCAs. It is 

critical JAs understand these differences and assist planners in assessing their potential 

mission impact. 53 Multinational partners may also lack the necessary training to 

adequately deal with a difficult enforcement situation, or may have domestic legal or 

policy limitations more restrictive than those ofD.S forces. 54 As with APL, these 

differences in national viewpoints may affect multinational operations. 

Cluster Munitions 

A 2008 conference in Dublin led to a draft convention outlawing the use,
 

production, retention or transfer of cluster munitions. The convention, which opens for
 

signature in late 2008, uses very wide terms akin to the CWC.55 The convention will
 

enjoy wide support from the international community and there is an anticipation many
 

multinational partners will ratify it.56
 

{See also INTERNATIONAL & OPERATIONAL LAW(International Agreements).] 

Detention & Human Rights 

Perhaps the greatest single potential friction point between multinational partners 

concerns detention. A discussion of national views must occur as early as possible 

during the planning phase. Judge Advocates need to be aware of not only their own law 

and policy, but also that ofmajor multinational partners. This is particularly true when a 

single partner provides the majority of detention facilities and accepts detainees from 

other partners. Early and regular contact between JAs from the various nations is the best 

way to address this matter. 

However, JAs will not always have the luxury of extensive preparation time. In 

Kosovo, legal advisors from NATO nations had a requirement to advise on training 

Soldiers to perform basic law and order functions, including arresting civilians, evidence 

53 See OEF/OIF LL, Vol. I, supra note 22, at 92. 

54 Interview with Colonel Gerard A. St. Amand, former V Corps Staff Judge Advocate, in Charlottesville, 

Va. (Oct. 2, 1998) (The situation in Northern Ireland has influenced British law). See also Interview with 

Lieutenant Colonel Denise K. Vowell, Staff Judge Advocate, 1st Infantry Division (Fwd), F.R.G. (Jan. 27, 

1998; Feb. 22, 1998). 

55 Article 1 provides that a State Party undertakes never under any circumstances to: 

(a) Use cluster munitions; 

(b) Develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or 

indirectly, cluster munitions; 

(c) Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under 

this Convention. 

56 Australia, Canada, New Zealand, and the UK have all expressed an intention to ratify. This may not be 

significant, as NATO, for example, does not currently use cluster munitions in any of its operations, and the 

draft text was in any case amended to allow parties to "engage in military cooperation and operations with 

States not parties to the Convention that might engage in activities prohibited to a State party." Commander 

(Navy) James Orr, Draft Convention/or Cluster Munitions, NATO LEGAL GAZETTE, 15 July 2008, 19-20. 

353 
collection, and running detention facilities at a standard acceptable to the local and
 

international communities. 57
 

In both OEF and OIF, detention operations occupy lAs perhaps more than any 

other issue. 58 It is a complex subject area and potentially sensitive between multinational 

partners. If there is the establishment of multinational detention facilities, or the 

assignment of responsibility for detention to a single multinational partner, a number of 

issues arise. These include different national interpretations of enemy prisoner of war 

(EPW) status, and the procedures used to determine this status. In Afghanistan, while all 

Coalition partners agreed to treat detainees as EPWs, their actual status was more 

problematic. National interpretations differed on whether a particular category of person 

was an EPW, and whether there was a requirement for an Article 5 tribunal. 59 The 

British Government withheld its position from the public, but expressed the view each 

state should make its own status determination.60 

A state that captures an EPW retains responsibility for that individual and must
 

have a method of tracking all detainees (as potential EPWs), even when transferred to a
 

multinational partner facility.6l During OEF, Australia and the UK conducted early
 

57 See Kosovo LL, supra note 11, at 97-120 for details. 

58 As of August 2008, there were approximately 600 internees held at the Bagram theater internment
 

facility (TIF). Steps are underway to construct a new facility following a 2008 CENTCOM review of the
 

TIF.
 

59 Geneva Convention Relative to the Treatment of Prisoners of War art. 5, Aug. 12,1949,6 U.S.T. 3316,
 

75 U.N.T.S. 135 [hereinafter GPW]. For details of the U.S. position, see OEF/OIF LL, Vol. I, supra note
 

22, at 51-59.
 

60 Mr. Geoff Hoon, UK Secretary of State for Defence, in the House of Commons (12 Feb. 2002): 

Ann Clwyd: To ask the Secretary of State for Defence, ... if he will specify the 

appropriate guidance to the UK forces operating in Afghanistan to ensure compliance 

with the UK's international legal obligations; and if prisoners captured in Afghanistan by 

UK forces will be accorded prisoner of war status under the Geneva Convention. 

Mr. Hoon: I am withholding the specific details of the guidance referred to, in 

accordance with Exemption (la) of the Code of Practice on Access to Government 

Information. Whether any detainee is a prisoner of war depends on the facts of each 

individual case. It is for the Detaining Power in the first instance to take a view. 

Available at http://www.publications.parliament.uk/pa/cm200l02/cmhansrd/vo0202l2/text/202l2w09.htm. 

61 Article 12 of the GPW provides that: 

Prisoners of war may only be transferred by the Detaining Power to a Power which is a 

party to the Convention and after the Detaining Power has satisfied itself of the 

willingness and ability of such transferee power to apply the Convention. When 

prisoners of war are transferred under such circumstances, responsibility for the 

application of the Convention rests on the Power accepting them while they are in its 

custody. Nevertheless, if that Power fails to carry out the provisions of the Convention in 

any important respect, the Power by whom the prisoners of war were transferred shall, 

upon being notified by the Protecting Power, take effective measures to correct the 

situation or shall request the return of the prisoners of war. Such requests must be 

complied with. 

354 
negotiations concerning detainees. As only the United States had adequate detention 

facilities, the determination was the United States would take detainees into U.S. custody, 

including those detained during a multinational operation. However, the U.S. would not 

take detainees seized during a unilateral (i.e., no U.S. participation) operation. The UK 

made plans to send detainees home if necessary, but that eventuality never occurred.62 

During OIF, Coalition policy regarding capturing detainees has varied greatly. 

Differences in Coalition partner terminology and practice increased the possibility of 

complications and misunderstandings. While U.S. forces used "detainee" to describe 

both detainees and security internees, the UK classified detained persons as either 

detainees or security internees. Detainees were those suspected of committing criminal 

offences; security internees were those deemed to pose an imperative threat to security.63 

Both the United States and the UK relied upon UNSCR 1546 as legal authority for their 

forces to apprehend, detain, and intern persons for the maintenance of security and 

stability in Iraq.64 An individual was subject to detention if there was a reasonable 

suspicion he or she had committed a criminal offence, but units had to transfer such 

individuals to the Iraqi criminal justice system or release them. 65 British forces, unlike 

U.S. forces, had no authority to detain for the sole purpose of intelligence exploitation. 

GPWart. 12, supra note 59. 

There was also a question regarding the legal obligations of a state that transports EPWs on behalf of 

another state. Under GPW, Detaining Powers and Accepting Powers have obligations. It is unclear 

whether a multinational partner that merely transports an EPW on behalf ofthe Detaining Power is an agent 

of the Detaining Power or becomes obligated under GPW as an Accepting Power for the period of 

transportation. See E-mail from Squadron Leader Belinda Crooks-Bums, Royal Australian Air Force, 

former Legal Officer, 86 Wing, to Squadron Leader Catherine Wallis, Royal Australian Air Force, 

Director, Coalition Legal Operations, Center for Law & Military Operations (9 Mar. 2004). Other 

detention issues include procedures for the investigation ofthe death of an EPW under circumstances 

where the cause of death is unknown or cannot be determined; what special conditions of combat prevent 

the taking of EPWs; and the treatment of surrendered places or forces under local cease-fire agreements or 

articles of capitulation. See Whitford E-mail, supra note 24. 

62 Interview with Colonel David L. Hayden, former Staff Judge Advocate, XVIII Airborne Corps, in 

Charlottesville, Va. (Oct. 8,2003); Hayden E-mail, supra note 15. 

63 See Interview with Captain Mynors, Army Legal Services, British Army, at Headquarters, MND SE, Iraq 

(Mar. 14,2005). 

64 S.c. Res. 1546, U.N. Doc. S/RES/1546 (June 8, 2004), extended most recently by S.c. Res. 1790, U.N. 

Doc. S/RES/1790 (Nov. 18,2007). 

65 See E-mail fromLieutenantColonelWhitwham.Chief.Military Operations Law, Office of the Staff 

Judge Advocate, Multi-National Corps - Iraq, to Center for Law & Military Operations (2 June 2005) 

[hereinafter Whitwham E-mail]. Lieutenant Colonel Whitwham noted that many U.S. practices had 

changed during the period of his deployment. Prison facilities had improved and there had been more 

appeals and reviews resulting in many releases; U.S. detainee numbers had dropped from about 7,000 to 

5,000 by the end of his tour (UK detainees had dropped from about 100 to 27). He arrived in Iraq a few 

weeks after the Abu Ghraib publicity, and did not have any internee or detainee issues of any significance. 

The matter became a strategic rather than a tactical issue for persons held for longer periods). Id. By 

summer 2008, the United States retained approximately 20,000 security internees, and the British had all 

but closed their detention facility in Basra. 

355 
It is imperative for JAs in multinational operations to be familiar with the 

principal international human rights instruments including, in particular, the European 

Convention on Human Rights (ECHR). This includes the extent to which it applies to the 

operations of those multinational partners bound by it, and the resulting operational 

impact.66 Where it applies, the ECHR imposes obligations regarding the duration of 

detention and the transfer of detainees to a jurisdiction where there is a real risk they may 

be subject to the death penalty or inhumane treatment.67 Human rights obligations under 

the ECHR apply to areas under the effective control of a state party, provided it is within 

the legal space of the convention, and to those under the authority of a state agent. 

Parties generally view the legal space of the convention as limited to the continent of 

Europe, yet the application of convention rights to individuals under the authority of a 

state agent applies throughout the world. Thus an individual, irrespective of his 

nationality, may be able to assert rights under the ECHR if detained by Soldiers from an 

ECHR signatory.68 

Human rights obligations have shaped the detention policy for NATO-led ISAF 

forces in Afghanistan. The ISAF detention SOP (362) provides that forces may only hold 

detainees for 96 hours before either releasing them or transferring them to Afghan 

authorities. This time limits stems directly from ECHR obligations. Moreover, Canadian 

forces temporarily suspended the transfer of detainees to Afghan authorities in late 2007 

due to concerns their subsequent treatment breached human rights standards. 

During planning for OIF, the United States, UK, and Australia negotiated a 

trilateral arrangement establishing procedures for the transfer of EPWs, civilian internees, 

and civilian detainees.69 Key aspects included: 

66 See Hamers AAR, supra note 25 (drafting an ISAF detention policy led to differences of opinion 

between U.S. and European legal advisors. Inclusion of European law and jurisprudence in operational law 

handbooks, would have saved a considerable amount of time and misunderstanding in developing ISAF 

detention policy in such key areas as transferring detainees to local authorities; the role of the LEGAD and 

POLAD before, during and after detention; cooperation with the ICRC; standards of detention facility 

operations; and duration of detention). 

67 Relevant treaties, legislation and case law include: Protocol No.6 to the Convention for the Protection of 

Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty, Apr. 28, 1983 

Council Eur. T.S. No. 114; Protocol No. 13 to the Convention for the Protection of Human Rights and 

Fundamental Freedoms concerning the Abolition of the Death Penalty in all Circumstances, May 3, 2002, 

Council Eur. T.S. No. 187; Extradition Treaty (UK-U.S.) art. IV; Human Rights Act 1998 (UK); Soering v. 

UK (1989) Eur. Hum. Rts. Rep. 439 (finding that, where imposition of the death penalty was likely, 

extradition to the United States was a likely breach of the ECHR). Colonel Stone, 10th Mountain Division 

SJA, indicated this was an important consideration in her area during OEF. Because the United States had 

set up its Guantanamo Bay detention facility, and there was potential for tribunals with the possibility of 

the death penalty, the UK commander worried his government would not permit him to tum over detainees 

captured by his troops to U.S. forces, even if the detainees included Osama bin Laden himself. Stone Email, supra note 31. 

68 See AI-Skeini and Others v. Secretary of State for Defence, [2007] UKHL 26. 

69 An Arrangement for the Transfer of Prisoners of War, Civilian Internees, and Civilian Detainees 

Between the Forces of the United States of America, The United Kingdom of Great Britain and Northern 

Ireland, and Australia, Mar. 23, 2003, available at 

http://www.smh.com.au/articles/2004/06/03/l086203552597.htm!. Once the wrongdoing in Abu Ghraib 

356 
•	 the ability to transfer these persons as mutually determined; 

•	 a requirement for the accepting power to return the person to the detaining 

power on request; 

•	 release or removal outside Iraq solely by mutual agreement; 

•	 full rights of access by the detaining power, while the person is in the custody 

of the accepting power; 

•	 sole responsibility of the detaining power for classification of potential EPWs; 

•	 primary jurisdiction ofthe detaining power over pre-capture offences but with 

favorable consideration to a request by the accepting power to waive 

jurisdiction; and 

•	 costs met by the detaining power. 

This workable solution addressed major issues and it may provide a model for
 

future operations. However, Coalition partners were unable to resolve completely
 

difficulties associated with detainee handling and information sharing in relation to
 

detainees captured during multinational operations. One JA commented that:
 

[T]here never was a good solution for ... the issue ofproviding infonnation on 

detainees captured in operations with coalition participation. When coalition 

forces were part of an operation that resulted in the capture of detainees, they 

sometimes expressed a need for infonnation on those detainees, however once 

the detainees were inside the STHF [short-tenn handling facility], almost no 

infonnation was pennitted to be shared. This also greatly hampered intelligence 

gathering, as members of the capturing units were never allowed inside the 

STHF, and the [military intelligence] personnel that handled most interrogations 

rarely left their [joint intelligence facility].7o 

Multinational partner legal advisors should expect to receive requests for 

information about detainees from other partner legal advisors, as well as higher 

headquarters, the International Committee for the Red Cross (JCRC), and the media. 

They should also be aware of the possibility a detainee will be a citizen of a multinational 

partner, leading to the possibility of political ramifications and an impact upon public 

opinion in that partner state. There was detention ofBritish and Australian citizens at 

Guantanamo Bay Naval Base, Cuba while both countries operated alongside U.S. forces 

in OEF. 

[See also INTERNATIONAL & OPERATIONALLAW(Detention) & (Human 

Rights).] 

became public, however, the transfer of a security internee from British custody to U.S. authorities required 

ministerial approval. 

70 Memorandum, Major Nicholas F. Lancaster, Chief, Operational Law Division, 10lst Airborne Division, 

for Record, subject: MAl Lancaster (101st ABN DIV (AASLT) Operational Law) Comments on CLAMO 

OEF/OIF DRAFT Lessons Learned (18 May 2004) [hereinafter Lancaster AAR]. 

357 
VILA. 2. Administrative & Civil Law 

Infrastructure, Equipment, Logistic Support 

Cooperation and uniformity of approach and practice concerning the use of 

property and facilities is beneficial to all multinational partners. It is helpful to maintain 

a repository of relevant archives and a documentary trail of the use and responsibilities of 

areas and facilities, because multinational partners may change or move between 

facilities. 71 In Kosovo, the importance of KBR operations was not necessarily 

understood by NATO staff or multinational partners, but required consideration during 

border and customs negotiations, as well as when determining the status of contractors 

providing vital logistic support. In many cases, U.S. forces will provide logistic support 

to other multinational partner forces, often through an acquisition and cross-servicing 

Agreement (ACSA), but sometimes through another mechanism, such as a foreign 

military sales (FMS) case or through foreign military financing (FMF) funds. 72 

[See CIVIL LAW (Fiscal Law) for further information on ACSAs and other logistic 

support mechanisms.] 

Fiscal Constraints 

Some countries, such as the U.S., have very strict fiscal rules concerning what its 

forces can and cannot do with mission funds. For examf:le, support to the UN requires 

reimbursement. Other nations may not have such rules. 3 For example, a British 

commander may have great personal discretion as to how to apply funds for the overall 

success of a mission. Judge Advocates should be aware of such variations, as they may 

be useful in resolving short-term fiscal issues. 

71 See Hamers AAR, supra note 25. Captain Hamers noted that there was considerable discussion about this 

issue in Afghanistan. The Afghan Transitional Authority (ATA) had granted various leases, but their terms 

were not always clear with regard to review of them at a given time, or when there was a change of 

incumbent nation or unit. Important paperwork was often also missing. These issues affected camp 

development and expansion. Difficulties also arose between multinational partners regarding ownership 

and control of buildings and the cost of improving them (in some cases, multinational partners wish to sell 

buildings to other multinational partners when their forces leave or relocate). Id. 

72 Ukraine and the United Arab Emirates both participated in the NATO-led force in Kosovo (KFOR). 

Neither country had an ACSA with the United States. This made capturing costs and forwarding them to 

higher headquarters necessary. Support then went to the UAE through a Foreign Military Sales (FMS) case 

funded by the UAE. For the Ukraine, foreign military financing funds were initially available, after this 

period Ukrainian forces moved from the U.S. Camp Bondsteel to the Polish camp in order to save money. 

Regardless ofthe mechanism for providing logistic support, the country receiving it must be aware of the 

anticipated cost. 

73 For example, the budget for the deployment of the British-led NATO Corps HQ for KFOR I 

(Headquarters Allied Rapid Reaction Corps) received approval after the mission was complete, seemingly 

without any major problems. 

358 
Investigations 

Investigations in a coalition or alliance setting can be complex. Incidents that
 

give rise to investigations often involve the personnel ofmore than one multinational
 

partner, such as friendly fire incidents.74 When such incidents lead to a loss of life, they
 

also become high profile. Judge Advocates advising u.s. forces in such circumstances
 

should be aware multinational partners will often have their own national investigation
 

requirements,75 and for this reason it may not be possible for all partners to adopt the
 

same policies. A V Corps JA described the impact of these differences during the early
 

stages of OIF:
 

What should and should not be reported through legal channels and command 

channels was a constant source of tension. While this issue remains unresolved I 

feel it is important that lAs discuss what incidents each coalition partner will 

investigate and what information will be released. For example blue on blue 

incidents, check point shootings, and engagement of apparently unarmed 

civilians, were all issues that coalition partners each had distinctly different 

approaches to the identification, investigations, and release of information. 

Coalition partners felt no obligation to follow CJTF7 SOP absent some 

affirmative agreement from their national element.76 

While there is no simple solution, early discussion of incident handling procedures may 

minimize the impact of national policy differences. 77 

VILA.3 Military Justice 

Military justice is central to unit cohesion and discipline. Moreover, the manner 

in which multinational partners deal with criminal and administrative misconduct by their 

forces can also shape public opinion. Military justice will therefore play an important 

role in maintaining coalition or alliance cohesion. Consequently, an understanding of 

74 See Michael Moran, "Friendly Fire" Is All Too Common: British Know Better Than Most the Dangers of 

Teaming With u.s. Military, MSNBC, Mar. 23, 2003 (e.g., the April 2002 bombing of a Canadian unit by a 

U.S. F-16 in Afghanistan and the 23 March 2003 shoot-down ofa UK warplane by a U.S. Patriot missile 

battery near the Iraq-Kuwait border). 

75 Ifthe fratricide leads to the death of a British servicemember, it will result in the holding of a coroner's 

inquest in the UK. In the past, U.S. servicemembers involved in such incidents have refused to attend the 

hearing to give evidence, resulting in some public criticism 

76 E-mail from Lieutenant Colonel Jonathan Kent, Chief,Administrative and Civil Law, V Corps, to 

Squadron Leader Catherine M. Wallis, Royal Australian Air Force, Director, Coalition Legal Operations, 

Center for Law & Military Operations (6 Apr. 2004). In some cases, in addition to national investigations, 

a Coalition Investigation Board has conducted a combined investigation (e.g., 2002 Tarnak Farms incident 

in Afghanistan, involving U.S. and Canadian forces). A NATO body may also investigate an incident 

involving forces from more than one multinational partner (e.g., a NATO Bi-Strategic Analysis Lessons 

Learned team reviewed the 2006 A-lO strafing ofISAF Soldiers). 

77 See E-mail from Major Philip Wold, U.S. Air Force, former Chief, Operations Law, 9 AFIUSCENTAF, 

to Squadron Leader Catherine Wallis, Royal Australian Air Force, Director, Coalition Legal Operations, 

Center for Law & Military Operations (7 Apr. 2004) [hereinafter Wold E-mail] ("[N]ot discussing how 

these types of incidents will be handled beforehand just makes the job tougher later on."). 

359 
multinational partner military justice systems is desirable. Establishing close ties with 

other multinational partner legal advisors will assist in identifying prevalent offences, as 

well as in reaching and maintaining consensus on how to deal with any problems, thereby 

reducing any friction between partners. 

Nonetheless, operating in close proximity to multinational partners exacerbates 

any tension resulting from different national approaches. While u.s. forces are generally 

subject to overarching orders detailing minimum standards of behavior, multinational 

partners will not necessarily issue such orders, or may issue ones that differ in 

strictness.78 For example, u.s. forces in support of both OEF and OIF are subject to 

CENTCOM GO No. lB, which prohibits several forms of conduct, including the 

consumption of alcohol in some countries. However, some Coalition partners faced no 

such restriction. During OEF, this tempted some U.S. Soldiers to drink alcohol around 

Coalition forces, and this became a growing discipline problem in some areas.

79 

Multinational partners may also take differing approaches to war trophies. During 

Operation JOINT GUARDIAN (Kosovo), multinational partners did not adopt a common 

policy, although there was some support for doing SO.80 The lack of consistency created 

dissatisfaction. This was also the case with OEF forces subject to restrictions on the 

purchase of antique firearms and other weapons and souvenirs while on the same base as 

others who were not. 8

! In contrast, one JA reported the Coalition forces in his area took a 

harsh approach to motor vehicle accidents, resulting in more severe punishment than U.S. 

forces would have imposed in similar circumstances.82 While the United States cannot 

impose its standards on coalition forces, liaison on these issues is appropriate. 

Behavioral standards may affect discipline or the coalition relationship with the local 

population. Local commanders may well be sympathetic and agreeable to the application 

of consistent standards.83 While differences in national approaches to these matters can 

lead to tension, minimizing this is possible if multinational partners understand other 

national positions, and treat them with discretion and respect. 84 

78 See USAF OPLAW, supra note 8, at 346. 

79 Hayden E-mail, supra note 15. 

80 See Squadron Leader Renee Jensen, Royal Australian Air Force, After Action Report (27 Jan. 2005). 

Squadron Leader Jensen favored a uniform Coalition approach. Australia initially allowed war trophies, 

albeit with limitations, but individuals found ways around the rules, eventually leading to an unpopular ban. 

8l Stone E-mail, supra note 31. 

82 Hayden E-mail, supra note 15. 

83 See E-mail from Flight Lieutenant Robert Kalnins, Royal Australian Air Force, former Legal Officer, 

Task Group 633.2, to Squadron Leader Catherine Wallis, Royal Australian Air Force, Director, Coalition 

Legal Operations, Center for Law & Military Operations (29 Mar. 2004) (reporting that Coalition attorneys 

met weekly to discuss camp management of common issues including alcohol and other disciplinary 

matters). 

84 See E-mail from Lieutenant Colonel Graham Coombes, Office of the General Counsel, Coalition 

Provisional Authority, to Center for Law & Military Operations (18 Apr. 2005) [hereinafter Coombes Email]. 

360 
Misconduct investigations require careful consideration in multinational 

operations. The chain of command must be aware of who has the authority to investigate 

and take administrative and disciplinary action.85 In many cases, contingents will be 

responsible for setting their own standards of conduct and dealing with any resulting 

disciplinary issues. However, during both OEF and OIF, some Coalition elements lived 

on u.S.-controlled bases. At Bagram Air Force Base, the U.S. base commander had 

coordinating authority over the location of Coalition forces on the base, as well as their 

conduct and security.86 These Coalition forces were, therefore, subject to some U.S. 

orders and publications that applied to them as "tenants," but their own commanders 

remained responsible for their discipline.87 The same division ofresponsibilities might 

occur at a NATO-run camp. 

VII.A.4 Exchange Personnel 

Commanders should be aware that exchange personnel must comply with their 

own domestic law while deployed. Accordingly, problems may arise if an exchange 

officer is subject to domestic law more restrictive than that of the exchange nation. Issues 

may arise for multinational personnel serving with U.S. forces in areas such as use of 

lethal force, induding self-defense, and APL and RCAs. 88 For example, an Australian 

Soldier on exchange with a U.S. unit could not use APL, and might need an exclusion 

from a mission involving APL use. 

lAs should make commanders aware ofrestrictions upon their exchange 

personnel from the outset of a deployment in order to ensure this issue does not detract 

from mission success. 

85 See Hamers AAR, supra note 25. Captain Hamers noted that this issue arose after allegations of 

misconduct by ISAF HQ personnel. There was a "requirement to remind some that the HQ command is 

authorised to initiate a fact finding mission but this must be done in close cooperation and coordination 

with the national contingent commander or senior national representative ofthe accused to recognise 

national legal issues since the authority to conduct disciplinary or administrative action lies with the 

national contingent." 

86 Hayden E-mail, supra note IS. 

8? See OEF/OIF LL, Vol. I, supra note 22, at 129. 

88 An example ofthese restrictions (classified SECRET) is on file with CLAMO. See also Comments by 

General Peter Cosgrove, Chief ofDefence Force (Australia), as reported in Cynthia Banham, We learnt our 

lesson in Iraq, says ADF, SYDNEY MORNING HERALD (24 Feb. 2004), available at 

hrtp://www.smh.com.au/articles/2004/02/23/l077497517476.html(Australian personnel on exchange with 

the U.S. or UK forces needed to abide by Australian rules: "we just needed to ensure that our officers ­

working very usefully with coalition forces - knew what the differences were, conveyed those to their 

superiors, and that that was factored into their tasking. "). 

361 
VILB. Policy Issues 

VILB.] History, Legal System, Politics, Culture 

Judge Advocates should have some awareness of the legal systems of major 

multinational partners, as well as of fundamental laws that may affect their operations. 

British and Australian legal officers have the benefit of similar procedures and 

approaches to legal issues but these differ from those ofthe United States and European 

partners. Both U.S. and multinational partner officers benefit from basic awareness of 

the others' history, constitution, force size, and structure, as well as cultural differences. 

They need to anticipate how these factors will affect decisions, interpretations and 

conduct. 89 

It may not be necessary for multinational partner legal advisors to have detailed 

knowledge of the applicable domestic law and policy of other partners, but even limited 

comprehension can increase understanding, such as the reason for delays in implementing 

requested actions. For U.S. personnel, Executive Orders, Presidential findings, and 

official statements by the President effectively constitute orders, in contrast to decisions 

by British Ministers, which do not carry quite the same weight for UK forces. The reason 

for this is that the U.S. President is the commander in chief of U.S. forces as well as head 

of the executive branch of government. He has almost exclusive authority in the area of 

international affairs, so his policy decisions carry great weight for U.S. officers. In the 

UK, however, the Queen is the titular head ofthe armed forces, while the Prime Minister 

and government have actual authority. However, the latter are seen as politicians, rather 

than being atop the chain of command. 

Similarly, a more developed understanding ofthe different cultural backgrounds 

multinational partners bring to such operations is crucial. A telling example is evident in 

comparing the U. S. concept of the duty day not ending until all missions are complete 

with that of other nations. Identifying and understanding such cultural differences is 

necessary to make multinational operations more effective.9o 

Finally, JAs should be aware of multinational partner political concerns and 

public sensitivities. It is as essential for JAs to be as culturally, politically, and legally 

aware oftheir multinational partners as they are ofthe enemy, otherwise they run the risk 

of losing partner support. This awareness is only possible through interaction and sharing 

of information and opinions between multinational partner JAs. Understanding the 

89 See Major Nick Simpson, Legal Advisor HQ 1 Mechanized Brigade, After Action Report. (3 Nov. 

2004); E-mail from Major John Bridley, to Center for Law & Military Operations (11 Mar. 2005) 

(recognizing that, perhaps understandably, U.S. JAs would not realize Australian politicians had 

considerable ability to reach deployed personnel because the force was so small). 

90 See, e.g., Coombes E-mail, supra note 84. Lieutenant Colonel Coombes noted many U.S. colleagues at 

the CPA worked close to l8-hour days with almost a missionary zeal, a practice which Lt Col Coombes did 

not adopt. The U.S. culture appeared to be such that, if the boss was in the office, so were all of his staff. 

In his opinion, this practice could be counter-productive because some staff were simply too tired to be 

effective. 

362 
differing views, both for and against, ofthe use of force and the related policy 

considerations will help lAs provide informed advice to commanders and will strengthen 

the coalition or alliance. Regular meetings and contact with multinational partner lAs 

will assist, as well as keeping an eye on the international media, opinions of the 

international legal community, other governments and other bodies such as the UN. 

VILB.2. Legal Networking 

Regular interaction between multinational partner legal advisors increases
 

understanding between those partners and improves the likelihood of mission success.
 

This could include:
 

•	 early and ongoing liaison to identify any differences; 

•	 resolution of those differences where possible; and 

•	 where resolution is impossible, ensuring no one overstates the differences and 

everyone properly factors them into mission planning and execution. 91 

The development of relationships between multinational partner legal advisors is 

an important aspect ofthis process, as personnel have observed in more than one theater. 

When the international security force (KFOR) deployed to Kosovo, it soon 

became clear absolutely no government functions existed. There was no police, courts, 

postal system, schools, health care, water/sewage, or electricity. Moreover, there was no 

sign the civil administration intended to run the country under the Special Representative 

of the Secretary General was going to be able to provide these any time soon. The Rule 

of Law mission (which had not been anticipated, as the UN was expected to immediately 

fill that role), took on huge importance. The task fell to five multinational brigades, with 

troops from nineteen nations. Considerable coordination was necessary to ensure some 

uniformity ofpractice and consistency. Weekly KFOR legal meetings became the norm, 

and entailed much sharing of information amongst lAs. 

During OEF and OIF, several Coalition partners had both deployed legal staff and 

legal "reach back" capabilities. Some of these Coalition attorneys were stationed at 

Coalition Forces Land Component Command (CFLCC), Coalition Forces Special 

Operations Component Command (CFSOCC) and Combined Forces Air Component 

Command (CFACe). Others encountered U.S. lAs because their units co-located with 

U.S. forces. 92 Some Coalition attorneys made contact with U.S. lAs on a daily basis, 

particularly during mission planning stages, and several reported developing good 

91 E-mail from Squadron Leader Chris Hanna, Royal Australian Air Force, former Legal Officer, Strategic 

Operations Division, to Squadron Leader Catherine Wallis, Royal Australian Air Force, Director, Coalition 

Legal Operations, Center for Law & Military Operations (21 Apr. 2004). 

92 See, e.g., Lancaster AAR, supra note 70 (reporting that U.S. lAs in Kandahar shared an office with the 

Canadian lA assigned to 3rd Princess Patricia's Canadian Light Infantry). See also Whitford E-mail, supra 

note 24 (reporting that, with regard to OEF's Task Force Dagger, U.S. lAs were co-located with their 

coalition counterparts, while in OIF, there was a combined joint special operations task force headquarters 

for various U.S., UK, and Australian infantry and special forces units). 

363 
relations with Coalition partner colleagues as early as possible was of great benefit to the 

overall success of the operation. 

During the initial stages of both OEF and OIF, many Coalition personnel worked 

with each other for the first time, but apparently without significant multinational legal 

exercises or specific legal pre-deployment training for these particular operations. 93 

Since the u.S. was by far the biggest contributor of forces to the Coalition, non-U.S. 

Coalition lawyers would have benefited from working with U.S. forces before ground 

combat began. 94 For example, the senior Australian attorney in OIF commented that 

attending CENTCOM conferences with his U.S. and UK counterparts immediately before 

OIF allowed him to "hit the ground running" upon commencement of operations. This 

was both in terms of preparation for specific issues and more generally because of the 

rapport developed between them. 95 

Regardless of the degree of preparation, once in theater, a USAF JA reported that, 

"on any number of occasions we were able to discuss developing situations and ensure all 

parties were aware of potential coalition limitations before they became "showstoppers" 

because of this proximity and our interaction.,,96 Accordingly, JAs should become 

familiar with the legal resources of multinational partners whose forces are operating in 

their commander's area of operations, and ensure lines of communication are open to 

deal with substantive issues as they arise. 97 

VIl.B.3. Communications & Cohesion 

For a coalition, unlike an alliance, one ofthe key obstacles to achieving and 

maintaining cohesion is the lack of common communications networks and standard 

operating procedures. During OIF, several Coalition legal advisors serving in U.S.­

dominated multinational headquarters commented their lack of access to JAGCNet and 

SIPRNet significantly diminished their effectiveness.98 Without SIPRNet access, they 

93 See Coombes E-mail, supra note 84 (noting the absence of this type of training but stating that Coalition 

legal officers seemed to find real value in any previous multinational experience). 

94 Whitwham E-mail, supra note 65. At times Lt Col Whitwham felt as ifhe was doing a U.S. officer's job 

in a U.S. HQ rather than a coalition officer's job in a coalition HQ. He often received questions on U.S. 

policy, regulations, or investigations - areas not properly within his area of expertise. Id. 

95 Cronan Interview, supra note 13. 

96 Wold E-mail, supra note 77. 

97 A novel approach was take of Major Dean Whitford, Staff Judge Advocate, Combined Joint Special 

Operations Task Force - West (OIF), and Major John Bridley, Australian Army, Command Legal Officer, 

Special Operations Command: "We also formed a local bar association, which made for somewhat of a 

novelty, but encouraged contact among all the attorneys either stationed or passing through our command, 

including base support, civil affairs, coalition, and even civilian attorneys serving in line positions." 

Whitford E-mail, supra note 24. 

98 See, e.g., Wold E-mail, supra note 77: 

A large amount of operational information - obviously classified - is transmitted via 

SIPRNET on U.S. systems. However, access to the SIPRNET is strictly controlled. If 

you anticipate that the SIPRNETIU.S. classified computer systems are going to form the 

364 
felt "blind" and disadvantaged (or at the very least, poorly informed). Where 

multinational partner legal advisors had positions ofresponsibility, including 

responsibility for other legal advisors, this could affect their credibility, as well as their 

ability to contribute fully and be effective managers. As well, it wasted time for non-U.S. 

JAs to have to ask questions and receive briefings on the current situation or other 

matters everyone else in the office already knew through their SIPRNet access. 99 It 

appears the CPA multinational lawyers who had access to an internal e-mail system did 

not have quite the same communication problems. 

Even in June 2004 there were not particularly good communications between the 

Multi-National Corps - Iraq Office ofthe SJA (MNC-I aSJA) and the UK and MultiNational Division - Southeast (MND SE).IOO This made it more difficult for UK Army 

Legal Services (ALS) officers to obtain a UK or other Coalition partner's viewpoint, or 

for Coalition partners to consult with each other. Furthermore, it inhibited the potentially 

beneficial contribution ofviews other than those held by U.S. forces. It was therefore 

important for ALS officers to remain aware ofthe British perspective on any particular 

matter and not "go native." Doing so would defeat the purpose of having a UK officer 

doing the job. 101 However, with poor communications and their small numbers, 

core for how information is transmitted, an effort must be made to have sufficiently 

authorized coalition members have access to the systems if they want to have access to 

the same kind of information/situational awareness as their counterparts. 

Id. This was also an important issue for Combined Joint Special Operations Task Force - West (OIF): 

The most critical issue was access to or use of SIPRNET or other classified means or modes of 

operational tracking, planning, and execution. This was never satisfactorily resolved in terms of 

clear authority. JCS and CENTCOM issued clear authority down only so far as the component 

commands (e.g., CJSOCC, CFLCC, CFACC), and subordinate combined commands such as ours 

had extreme difficulty in obtaining clear guidance on permissible applications. Our situation was 

enhanced by SOCOM authorities, but the problems were systemic. We established firewalls, 

protocols, reporting and investigation requirements where problems arose, and successfully 

prosecuted the mission without loss of life or injury due to lack of communication. Clearer rules 

and authority on the sharing of classified information and access to classified systems are needed 

for task forces such as our combined joint special operations task force established over three U.S. 

SF battalions, one UK SAS, and one AUS SAS. 

Whitford E-mail, supra note 24. 

99 Whitwham E-mail, supra note 65 (noting that the divisions were primarily using SIPR). Coalition 

partner access to SIPRNet was apparently not contemplated; instead, the United States fielded a system 

known as "CENTRIXS" for Coalition information sharing. See Coombes E-mail, supra note 84 (stating 

that many units did not have CENTRIXS workstation so it was hardly used, but this was the system to 

which embedded Coalition officers had access; in addition, CENTRIXS could be used to contact fellow 

staff in the same HQ, as they knew that this was what was used, but as others outside the HQ did not know 

this, there often would not be a reply to a question posed using this means). 

100 See id. This did improve with time. The situation may have occurred partially as a result of it being a 

U.S.-dominated HQ and therefore it was designed and primarily set up for U.S. business. 

101 See Whitwham E-mail, supra note 65. As a result of his location, it was straightforward for Lieutenant 

Colonel Whitwham to keep in regular contact with the British Deputy Commanding General at MNC-I, but 

this may not always be the case. 

365 
Coalition officers did not always feel like part of a multinational team. 102 Other Coalition 

officers noted the same sentiment. 103 It is unlikely US. personnel had a similar 

experience. In fact, the predominance of US. forces and reliance upon US. standard 

operating procedures would have been an advantage to US. personnel. Such an 

environment can lead to potentially negative effects on coalition cohesion and even have 

the effect of undermining the chain of command (for example, when orders went out on a 

theater-wide basis, but only seemed to apply to US. forces and not to their Coalition 

partners). 

To create and preserve cohesion when a multinational partner unit forms the basis 

of a multinational headquarters in either a coalition or an alliance operation, it is helpful 

to identify a dividing line between national policy and procedures (particularly those of 

the dominant multinational partner) and coalition or alliance matters. 104 That this point 

arose during OIF is perhaps understandable due to the scale and synergy of US. forces. 

However, given the disproportionate numbers ofUS. personnel in both the OIF and OEF 

Coalitions, such personnel need to take additional care to adopt a Coalition, rather than 

national, mindset. Guidance from Coalition leaders might have helped to address this 

issue. 105 The fact there were Australian and British national support elements in Iraq, but 

no corresponding US. headquarters, exacerbated the problem. 106 

102 See Coombes E-mail, supra note 84. It was clear that at the very top there were fundamental differences 

of approach. Mr. Bremer was the top U.S. civilian official and received his orders from Washington. Mr. 

Greenstock, from the UK, could give a British view and hoped to have some influence but did not make the 

decisions. This fact was understandable as the United States was providing the vast majority of the money 

and resources, and taking the vast majority of the casualties but it did not make for the feeling of there 

being a team. Things were simply done by the United States in a U.S. manner and as they wished. A 

symbol ofthis was that, at the end of the CPA, the building became the U.S. Embassy. 

103 See Whitwham E-mail, supra note 65 (stating that "The HQ at all times felt like a U.S. Headquarters 

with a little of a coalition feel."). 

104 See id. (noting that there appeared to be a lack of understanding or consideration of the Coalition and it 

was not in reality a Coalition HQ, not the least because operational planning occurred on a U.S. basis i.e. 

FRAGO issue was in U.S. terms, referring to U.S. regulations, and distributed to all units). 

105 The root of the problem, as the MNC-I OSJA was concerned, was everyone was doing both U.S. and 

Coalition business. For some issues, such as discipline, the distinction was obvious. For others it was not 

so clear. It would have been useful to have guidance on what was clearly Coalition vice U.S. business. See 

Whitwham E-mail, supra note 65. 

106 Those countries participating in multinational operations usually establish a national support element 

(NSE), consisting of the personnel required to ensure that their forces receive necessary administrative and 

logistic support. The personnel who make up an NSE are in support of but not assigned to the 

multinational operation (e.g., an NSE in Afghanistan may support that country's forces assigned to OEF, 

ISAF, or both, but is unlikely to be under the operational control of either multinational force commander). 

366 
VIIL INTERAGENCY COORDINATION 

In every major military operation in which the United States has participated over 

the last fourteen years, the Department of Defense (DOD) has required the cooperation 

and assistance ofvarious U.S. Government (USG) entities. On numerous occasions, the 

failure ofU.S. commanders to understand the nature, role, limitations and capabilities of 

these organizations has led to confusion and often an unnecessary expenditure of 

resources or assumption ofrisk. Commands will often call upon Judge Advocates (JAs) 

to act as the command's "professional liaison officer." This will require them to 

communicate and work with these other USG agencies. Consequently, it is crucial for 

JAs to understand aspects of these agencies' chains of command, organization, 

responsibilities, and structures. 

367 
VIlLA. COORDINATION MECHANISMS 

VIlLA.l. National Security Council (NSC) & Policy Coordination Committees (PCCs) 

Foreign policy crises have confronted the United States since its formation. Since 

the early 1990s, however, the United States has faced a number of difficult problems in a 

relatively short period of time requiring interagency cooperation among the Department 

of State (DOS), DOD, and many other USG agencies. During the Clinton 

Administration, Presidential Decision Directive (PDD) 56, Managing Complex 

Contingency Operations (20 May 1997) recognized and addressed the need to improve 

interagency cooperation. However, on 13 February 2001, the Bush Administration 

altered the PDD 56 interagency cooperation structure by issuing National Security 

Presidential Directive (NSPD) 1. It directed that appropriate National Security Council 

Policy Coordination Committees would perform oversight of interagency operations. 

The National Security Council (NSC) is the principal coordinating body for all 

national security issues, including contingency operations. The NSC is at the top of the 

pyramid of a system that includes DOD, DOS, and a number of other USG agencies. 

Other agencies or entities can also become involved, as the circumstances require. Issues 

are typically addressed by interagency committees or working groups at lower levels 

before being escalated to higher levels for decisions. In cases of interagency 

disagreements, issues move to higher levels for resolution. Ifnecessary, the referral 

moves all the way up to the NSC for resolution by the principals (i.e., the respective 

departmental secretaries). If the NSC cannot agree on an issue or course of action, it can 

go to the President for final decision. 

Policy Coordination Committees (PCCs) established under the aegis of the NSC 

manage the development, implementation, and coordination ofUS. national security 

policies. Under the current Administration, there are six regional PCCs and eleven 

functional PCCs. Typically, each Administration makes changes and establishes 

different PCCs. 

A variety of standing or ad hoc mechanisms can carry out interagency 

coordination for contingency operations. Descriptions of some ofthese appear below. 

VIIl.A.2. U.S. Embassy Country Teams 

The Ambassador at each U.S. Embassy has senior advisers from the Embassy's 

political, economic, administrative, consular, and security sections. Together with the 

Ambassador and Deputy Chief of Mission, these individuals collectively make up the 

"country team." In situations involving contingency operations, senior representatives of 

other participating USG agencies usually supplement the country team. The country 

team system provides the basis for rapid consultation, coordination and action on issues 

and contingencies as they occur. Moreover, the country team provides the foundation for 

effective execution of US. policy. The US. regional military commander (e.g., the 

combatant commander) is not under the Ambassador's authority. However, he or she (or 

368 
his or her representative) would frequently participate in, or at least be aware of, the 

country team's meetings and proposed or implemented courses of action. 

VIILA.3. Civil-Military Operations Centers (CMOCs) 

The commander of a joint task force formed for the purpose of a contingency 

operation may establish a civil-military operations center (CMOC). A CMOC 

coordinates and facilitates the humanitarian operations ofD.S. and other multinational 

military forces with those of other government and non-governmental agencies, and host 

nation authorities. The CMOC provides the primary interface between the military and 

civilian agencies involved, screens requests by civilian agencies for support from the 

military forces, and forwards them to the task force for action. 

VIlLA. 4. Other Contingency Operations Coordination Mechanisms 

As there are many potential contingencies, there are also many variations in the 

possible structure ofresponse centers. The permutations include the formation of a 

disaster assistance response team, a humanitarian assistance coordination center, or a 

humanitarian operations center. Furthermore, each contingency operation could require 

the involvement of different USG agencies. Some examples: the Department of 

Commerce to advise on trade and tariff laws, business practices, natural resources 

business matters, and other economic issues; the Department of the Treasury on currency 

and monetary policies and issues; the Department ofAgriculture on agricultural markets, 

production, and animal and plant health issues; the Department ofJustice on legal issues 

such as criminal extradition; the Immigration and Naturalization Service on admittance of 

foreign nationals into the United States; and the Department of Homeland Security on 

issues relating to U.S. border security. 

369 
VIILB. RECONSTRUCTION & STABILIZATION 

Religious or ethnic conflict, instability, and occasionally almost total failure 

unfortunately characterize many parts ofthe world. These problems have too frequently 

resulted in armed conflict and terrorism that are often a direct threat to international peace 

and security. The international community and the United States have recognized many 

such crises areas could benefit from reconstruction and stabilization assistance. 

Accordingly, the United States has recently taken steps to plan for and provide such 

assistance. For example, National Security Presidential Directive (NSPD) 44, 

Management ofInteragency Efforts Concerning Reconstruction and Stabilization (7 

December 2005), provides that the Secretary of State shall coordinate and lead integrated 

USG efforts to prepare, plan for, and conduct stabilization and reconstruction activities. I 

These efforts will involve all US. departments and agencies with relevant capabilities. 

VIII.B.J. DOS - Office ofthe Coordinator for Reconstruction & Stabilization (SICRS) 

To this end, with the agreement of the NSC, the Secretary of State established the 

Office of the Coordinator for Reconstruction and Stabilization (S/CRS) in July 2004 in 

order to coordinate US. planning activities across federal agencies. The Coordinator 

reports directly to the Secretary of State. The S/CRS mission is to lead U.S. efforts in 

assisting other countries in transition from conflict and to help them reach a sustainable 

path toward peaceful, democratic, and market-oriented societies. The S/CRS emphasis 

will be on strengthening USG institutional capacity to deal with crises in failing states, as 

well as reconstructing and stabilizing societies recovering from conflict and civil strife. 

The S/CRS will engage interagency partners to identify states at risk of instability and 

focus attention on policies and strategies to prevent or mitigate conflict. 

In particular, the S/CRS goal is to provide an operational field response to postconflict situations emphasizing transformational diplomacy to include, among other 

things: facilitation of peace implementation processes; coordination with international 

and local institutions and individuals that are developing transition strategies; 

implementation of transitional governance arrangements; encouragement of conflicting 

factions to work together; development of strategies to promote transitional security; 

coordination with other USG agencies and the US. military; coordination with foreign 

agencies and armed forces; and, if necessary, preparation of a diplomatic base on the 

ground. 

The expectation is these improved capabilities will enable the United States to 

help governments abroad exercise sovereignty over their own territories. This, in tum, 

prevents extremists, terrorists, organized crime groups or others that pose a threat to US. 

I NATIONAL SECURITY PRESIDENTIAL DIRECTIVE (NSPD) 44, MANAGEMENT OF INTERAGENCY EFFORTS 

CONCERNING RECONSTRUCTION AND STABILIZATION (7 Dec. 2005) [hereinafter NSPD-44]. See also U.S. 

Dep't of State, Fact Sheet, President Issues Directive to Improve the United States' Capacity to Manage 

Reconstruction and Stabilization Efforts, Dec. 14,2005, www.state.gov/r/pa/prs/ps/2005/58067.htm. 

370 
foreign policy, security, or economic interests from using this territory as a base of 

operations or a safe haven. 

Active Response Corps 

Operational experiences in Haiti, Somalia, the Balkans, Afghanistan, and Iraq 

have demonstrated that a civilian field presence is essential in the initial stages of a 

reconstruction and stabilization mission. It serves to both keep Washington, D.C. 

informed of the situation and to shape the tactical-level environment for follow-on 

civilian elements. Accordingly, the DOS is forming an Active Response Corps (ARC) of 

DOS and other USG personnel. They will comprise a full-time, specially-trained group 

available for short-notice deployment as "first responders" for reconstruction or stability 

operations. The deployments may occur with or without U.S. military forces, and could 

be in conjunction with or attached to a UN or international mission. When not deployed, 

ARC personnel will train, participate in USG exercises, or assist DOS bureaus with 

planning and preparing for countries or regions facing reconstruction or stabilization 

challenges. All ARC personnel will receive training in area studies, emergency first aid, 

personal and group security, field communications systems, and living in a field 

environment. They will participate frequently in staff and field exercises with the 

military, other agencies, and partner countries. 

Standby Response Corps 

The DOS is also establishing a Standby Response Corps (SRC), again made up of 

volunteers from the DOS and other USG agencies. These individuals will supplement the 

skills ofARC personnel and be prepared to follow on behind them in order to support 

reconstruction and stabilization efforts over the longer term. All SCR personnel will 

continue to perform their normal duties until required to deploy, but will also participate 

in training or exercises with SICRS or the ARC. 

Civilian Reserve Corps 

Finally, the DOS is establishing a Civilian Reserve Corps (CRC), made up of 

private sector volunteers with the same skills as ARC and SRC personnel. These 

individuals will volunteer for a four-year period, train for several weeks each year, and 

deploy for up to one year. 

VIlLB.2. Department ofDefense (DOD) 

The DOD, like DOS, has focused considerable attention on stabilization and 

reconstruction activities, promulgating DOD Directive 3000.05, Military Supportfor 

Stability, Security, Transition, and Reconstruction (SSTR) Operations. 2 DOD Directive 

3000.05 uses the term "stability operations" to encompass support to all of these areas, 

"[m]ilitary and civilian activities conducted across the spectrum from peace to conflict to 

2 U.S. DEP'T OF DEFENSE, DIR. 3000.05, MILITARY SUPPORT FOR STABILITY, SECURITY, TRANSITION, AND 

RECONSTRUCTION (SSTR) OPERATIONS (28 Nov. 2005) [hereinafter DOD DIR. 3000.05]. 

371 
establish or maintain order in States and regions.,,3 DOD Directive 3000.05 establishes 

DOD policy regarding stability operations. It assigns responsibilities within the DOD for 

planning, training, and preparing to conduct and support stability operations pursuant to 

the legal authority and responsibilities ofthe Secretary of Defense. It applies to the 

Office of the Secretary of Defense, the Military Departments, Joint Chiefs of Staff, 

Combatant Commands, and all other organizational entities in the DOD (i.e. the "DOD 

Components"). 

DOD Directive 3000.05 sets out the DOD policy: stability operations are a core 

U.S. military mission the Department of Defense shall be prepared to conduct and
 

support. Furthermore, stability operations are to receive priority comparable to combat
 

operations and explicitly addressed and integrated across all DOD activities including
 

doctrine, organizations, training, education, exercises, materiel, leadership, personnel,
 

facilities, and planning. Finally, U.S. military forces are to be prepared to perform all
 

tasks necessary to establish or maintain order when civilians cannot do so.
 

The immediate goal of stability operations is to provide security, restore essential 

services, and meet humanitarian needs. More long-term goals are to develop local 

capacity for securing essential services, a viable market economy, rule oflaw, democratic 

institutions, and a robust civil society. Host nation, foreign, or U.S. civilian professionals 

are often best suited to perform many stability operations. Nevertheless, as noted above, 

U. S. forces must be prepared to perform all necessary tasks. These may include 

rebuilding host nation institutions, including various types of security forces, correctional 

facilities, and the judicial and law enforcement systems necessary to secure and stabilize 

the environment; reviving or building the private sector, encouraging citizen-driven, 

bottom-up economic activity and constructing necessary infrastructure; and developing 

representative governmental institutions. 

Successful stability operations require integration of civilian and military efforts. 6 

The Secretary of State, when DOD is involved, shall coordinate efforts with the Secretary 

3 !d. para. 3.1. 

4 See 10 U.S.C.S. §§ 113, 153 (2008); Strategic Planning Guidance, FY 2006-2011 (Mar. 2004). 

5 See U.S. DEP'T OF ARMY, FIELD MANUAL 3-0, OPERATIONS (28 Feb. 2008) (implementing DOD Directive 

3000.05 within the Army, by giving equal weight to offensive, defensive, and stability or civil support 

operations); U.S. DEP'T OF ARMY, FIELD MANUAL 3-07, STABILITY OPERATIONS (forthcoming Oct. 2008). 

6 This is particularly true when engaged in counterinsurgency. See U.S. DEP'T OF ARMY, FIELD MANUAL 3­

24, COUNTERINSURGENCY OPERATIONS (15 Dec. 2006): 

Military efforts are necessary and important to counterinsurgency (COIN) efforts, but 

they are only effective when integrated into a comprehensive strategy employing all 

instruments of national power. A successful COIN operation meets the contested 

population's needs to the extent needed to win popular support while protecting the 

population from the insurgents. Effective COIN operations ultimately eliminate 

insurgents or render them irrelevant. Success requires military forces engaged in COIN 

operations to-­

•	 Know the roles and capabilities ofU.S., intergovernmental, and host-nation 

(HN) partners. 

372 
of Defense to ensure hannonization with any planned or ongoing u.s. military operations 

across the spectrum of conflict. The DOD will be prepared to work with other USG 

agencies, foreign governments and forces, international organizations, u.s. and foreign 

non-governmental organizations, and the private sector. The DOD will lead and support 

the development ofmilitary and civilian teams, and participation shall be open to 

personnel from other U.S. agencies, foreign sources, international organizations, nongovernmental organizations, and the private sector. The DOD shall seek assistance and 

advice from the DOS and other USG agencies. 7 

The establishment of the SieRS, coupled with the issuance ofDOD Directive 

3000.05, together with the guidance provided by NSPD 44, provides an opportunity for 

the United States to plan ahead and coordinate future responses to international crises 

requiring some level of U.S. involvement in reconstruction and stability operations. The 

designation of the DOS as lead in this area, but with the requirement for coordination 

with the DOD when U.S. forces are involved, will provide an opportunity for fruitful 

cooperation within the USG that should avoid past difficulties and lead to more efficient 

and effective U.S. responses. 8 

• Include other participants, including HN partners, in planning at every level. 

• Support civilian efforts, including those of non-governmental organizations 

(NGOs) and intergovernmental organizations (IGOs). 

• As necessary, conduct or participate in political, social, informational, and 

economic programs. 

7 Stability operations could possibly encompass issues that would cover the entire gamut of governmental 

functions. Such operations or their aspects could therefore entail the participation of a wide number of 

USG agencies. See JOINT CHIEFS OF STAFF, JOINT PUB. 3-08, INTERAGENCY, INTERGOVERNMENTAL 

ORGANIZATION, AND NONGOVERNMENTAL ORGANIZATION COORDINATION DURING JOINT OPERATIONS 

Vol. II, app. A (17 Mar. 2006) (providing detailed description ofUSG agencies). See also CENTER FOR 

LAW & MILITARY OPERATIONS, RULE OF LAW HANDBOOK: A PRACTITIONER'S GUIDE FOR JUDGE 

ADVOCATES (2008); CENTER FOR LAW& MILITARY OPERATIONS, DOMESTIC OPERATIONAL LAW 

(DOPLAW) HANDBOOK FOR JUDGE ADVOCATES, VOLUME I, chs. 4 & 5 (18 July 2006). 

8 See JOINT FORCES COMMAND, MILITARY SUPPORT TO STABILIZATION, SECURITY, TRANSITION, AND 

RECONSTRUCTION OPERATIONS: JOINT OPERATING CONCEPT (Version 2.0 Dec. 2006); U.S. DEP'T OF 

DEFENSE, SEC'y OF DEFENSE, REpORT TO CONGRESS ON THE IMPLEMENTATION OF DOD DIRECTIVE 

3000.05, MILITARY SUPPORT FOR STABILITY, SECURITY, TRANSITION, AND RECONSTRUCTION OPERATIONS 

(1 Apr. 2007); U.S. GEN. ACCOUNTING OFFICE, GAO-07-549, ACTIONS NEEDED TO IMPROVE DOD's 

STABILITY OPERATIONS ApPROACH AND ENHANCE INTERAGENCY PLANNING (May 2007). 

373 
VIILC. POSSIBLE CONTINGENCY OPERATIONS 

A non-exhaustive list of types of contingency operations and examples of
 

agencies possibly involved in each follows.
 

VIIL c.l. Natural Disaster Assistance 

Conducted at the request of the assisted country, such operations provide material 

assistance to alleviate physical, social, and economic consequences of acts of nature such 

as hurricanes, tsunamis, earthquakes and epidemics. 9 Some examples include assistance 

for the 1998 Central American hurricane, the 2004 Indian Ocean tsunami, and the 2005 

Indonesian earthquake. Some of the USG agencies involved in relief efforts were DOD, 

DOS, the U.S. Agency for International Development (USAID), the Department of 

Agriculture, the Forest Service, and the Department of Health and Human Services 

(HHS). 

VIIL C.2. Peace Operations 

Peace operations include peacekeeping, peace enforcement, peace building, 

peacemaking, and conflict prevention operations. 10 They help to establish the security, 

political, legal and economic conditions required to begin rebuilding countries that have 

been the site of armed conflict. Representative tasks could include enforcement of 

ceasefire agreements, policing, administration of detention facilities, establishing court 

systems, apprehending suspected war criminals, and removing mines and unexploded 

ordinance. Examples of such operations include Afghanistan, Kosovo, Bosnia, Haiti and 

Somalia. U.S. agencies involved have been DOD, DOS, AID, Justice, and HHS. 

VIILC.3. Noncombatant Evacuation Operations (NEOs) 

Noncombatant evacuation operations (NEOs) occur to assist the DOS in 

evacuating to an appropriate safe haven U.S. citizens, DOD civilian personnel, and 

designated host nation and third country nationals whose lives are in danger in a foreign 

nation. Although normally in connection with hostile action, evacuation may also be 

conducted in anticipation of, or in response to, any natural or man-made disaster. The 

command and control structure and the political and diplomatic factors involved in timing 

the execution of the military support ofNEOs make them different from other military 

operations. During NEOs, the U.S. Ambassador, not the combat commander or 

subordinate joint force commander, is the senior USG authority for the evacuation. As 

such, the Ambassador is ultimately responsible for the successful completion of the NEO 

9 See U.S. DEP'T OF DEFENSE, DIR. 5100-46, FOREIGN DISASTER RELIEF (4 Dec. 1975); JOINT CHIEFS OF 

STAFF, JOINT PUB. 3-07.6, JOINT TACTICS, TECHNIQUES, AND PROCEDURES FOR FOREIGN HUMANITARIAN 

ASSISTANCE (15 Aug. 2001). 

10 See JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.3, PEACE OPERATIONS (17 Oct. 2007); U.S. DEP'T OF ARMY, 

FIELD MANUAL 100-23, PEACE OPERATIONS (30 Dec. 2004); U.S. DEP'T OF ARMY, FIELD MANUAL 3-07.31, 

MULTI-SERVICE TACTICS, TECHNIQUES, AND PROCEDURES FOR CONDUCTING PEACE OPERATIONS (26 Oct. 

2003). 

374 
and the safety of the evacuees. The decision to evacuate a U.S. Embassy and the order to 

execute a NEO is political. The geographic combatant commander may decide to create 

a JTF or task a component commander to conduct the NEO. 11 Countries where NEOs 

have occurred in recent years include Cote d'!voire (2002), the Central African Republic 

(2002), Liberia (2003), and Lebanon (2006). 

11 JOINT CHIEFS OF STAFF, JOINT PUB. 3-68, NONCOMBATANT EVACUATION OPERATIONS, at ix (22 Jan. 

2007). See also U.S. DEP'T OF DEFENSE, DIRECTIVE 3025.14, PROTECTION AND EVACUATION OF U.S. 

CITIZENS AND DESIGNATED ALIENS IN DANGER AREAS ABROAD (NONCOMBATANT EvACUATION 

OPERATIONS)(5 Nov. 1990)(Cl, 15 Aug. 1991)(C2, 13 July 1992); INT'L & OPERATIONAL LAW DEP'T, 

THE JUDGE ADVOCATE GENERAL'S LEGAL CENTER & SCHOOL, U.S. ARMY, JA 422, OPERATIONAL LAW 

HANDBOOK ch. 10 (2008). 

375 
VIILD. LESSONS LEARNED 

Future operations are likely to take place in conjunction with joint and 

multinational forces, and require cooperation from other USG agencies as well as other 

governments. Conditions in Iraq fully fit this description. The V Corps deployment to 

Iraq as the Multi-National Corps - Iraq (MNC-I) nearly coincided with the issuance of 

NSPD-44, DoD Directive 3000.05, and the standup often provincial reconstruction teams 

(PRTs).12 

Despite robust pre-deployment training, V Corps staff found it difficult to 

comprehend the joint, interagency, intergovernmental, and multinational (HIM) 

complexity of the operational environment until assuming its responsibilities and 

becoming fully operational as MNC-I. This complexity was particularly evident in the 

formulation of the campaign plan, and the planning of security operations in coordination 

with other lines of operation (LOOs). At this time, there was no apparent interagency 

structure for working with other interagency participants. 13 

While MNC-I was primarily responsible for the security LOO, Multi-National 

Force - Iraq (MNF-I) handled most intergovernmental and interagency cooperation. As a 

result, MNC-I had had very little interaction with other USG agencies. However, with 

the advent of the transition LOO, MNC-I discovered a need for a growing role in 

interagency interaction in order to synchronize security planning with other LOOs. 

Specific examples included not having visibility of what USG agencies were present in 

Iraq and a lack of awareness of their activities. This posed potential problems because 

operations to improve security influence all LOOs and might only be successful if other 

lines are also integrated and balanced. 14 

12 The Center for Law & Military Operations (CLAMO) has received relatively few lessons about PRTs to 

date, but several agencies and organizations have produced handbooks and reports about their activities, in 

both Iraq and Afghanistan. See CENTER FOR ARMY LESSONS LEARNED, HANDBOOK 07-34, PROVINCIAL 

RECONSTRUCTION TEAM (PRT) PLAYBOOK (Sept. 2007); CENTER FOR ARMY LESSONS LEARNED, 

PROVINCIAL RECONSTRUCTION TEAMS, OPERATION IRAQI FREEDOM (OIF): INITIAL IMPRESSIONS REpORT 

(Dec. 2007); USAID, OFFICE OF INSPECTOR GENERAL, AUDIT REpORT No. E-267-07-008-P, AUDIT OF 

USAID/IRAQ'S PARTICIPATION IN PROVINCIAL RECONSTRUCTION TEAMS IN IRAQ (27 Sept. 2007); OFFICE 

OF THE SPECIAL INSPECTOR GENERAL FOR IRAQ RECONSTRUCTION, SIGIR-07-015, REVIEW OF THE 

EFFECTIVENESS OF THE PROVINCIAL RECONSTRUCTION TEAM PROGRAM IN IRAQ (18 Oct. 2007); JOINT 

FORCES COMMAND, JOINT W ARFIGHTING CENTER, PRE-DOCTRINAL RESEARCH WHITE PAPER No. 07-0 l, 

PROVINCIAL RECONSTRUCTION TEAMS (21 Nov. 2007); CENTER FOR ARMY LESSONS LEARNED, 

PROVINCIAL RECONSTRUCTION TEAMS IN AFGHANISTAN (2007); INTERNATIONAL SECURITY ASSISTANCE 

FORCE, PROVINCIAL RECONSTRUCTION TEAM HANDBOOK (3d ed. 3 Feb. 2007); ROBERT M. PERITO, 

SPECIAL REpORT 185: PROVINCIAL RECONSTRUCTION TEAMS IN IRAQ (USIP Mar. 2007). 

13 CENTER FOR ARMY LESSONS LEARNED, V CORPS AS MULTI-NATIONAL CORPS - IRAQ, JANUARY 2006­

JANUARY 2007: INITIAL IMPRESSIONS REpORT 76-77, 128 (June 2007) [hereinafter CALL V CORPS AS 

MNC-I]; see also U.S. GEN. ACCOUNTING OFFICE, GAO-08-117, STABILIZING AND REBUILDING IRAQ: 

U.S. MINISTRY CAPACITY DEVELOPMENT EFFORTS NEED AN OVERALL INTEGRATED STRATEGY TO GUIDE 

EFFORTS AND MANAGE RISK (Oct. 2007). 

14 CALL V CORPS AS MNC-I, supra note 12, at 77. 

376 
MNC-I personnel, therefore, expressed frustration with the existing (ad hoc and 

inconsistent) methods of coordination. Although USAID personnel made concerted 

efforts to coordinate, no other DOS personnel were visible. However, development of ad 

hoc organizations such as Joint Reconstruction Operations Center (JROC), part of 

Baghdad Security Plan, did facilitate interagency command and control ofreconstruction. 

All agreed there was a definite lack of control at the tactical level between military and 

other interagency players. This led to "stove piping" and duplication of efforts. IS 

In fact, an MNC-I Office ofthe StaffJudge Advocate (OSJA) after action report 

described the interagency coordination problems encountered prior to a reorganization on 

I March 2007 as follows: 

Although MNF-I and USM-I [US Mission - Iraq] have outlined joint strategic 

Rule of Law initiatives, the implementation of those initiatives often has been 

haphazard, duplicative, counterproductive, and generally disorganized without 

adequate accountability. The primary cause of these results seems to have been 

the lack of an efficient, hierarchical organization of rule of law stakeholders 

within the USM-I, and inadequate coordination/communication between USM-I 

and MNF-I rule of law stakeholders. 16 

Even where coordination mechanisms are in place, JAs should be aware of the 

possibility of differences in organizational culture. For example, the Staff Judge 

Advocate (SJA) for Combined Security Transition Command - Afghanistan (CSTC-A) 

commented that transfers of detainees from Guantanamo Bay, Cuba, to Afghanistan 

required ongoing interaction between DOS and DOD. This included selecting detainees, 

assuring humane treatment by Afghan authorities, commencing Afghan proceedings, 

handling the logistics of transfer, etc. 17 

The CSTC-A SJA recommended JAs dealing with DOS in such circumstances be 

aware DOS does not follow the DOD practice of assigning a responsible officer who will 

seek approval for an action up the chain of command. Instead, the DOS decision-making 

process often follows a consensus-based approach, in which a DOS officer drafts a 

proposal and distributes it to a wide range of individuals for comment. Given this 

difference, an outsider may find it difficult to determine which DOS official has authority 

to make a final decision, and when a final decision occurs. A military action officer 

should be careful, therefore, not to presume a particular DOS document, proposal, or 

comment is final. He or she should not brief a commander on it before obtaining 

15 !d. at 126-31; see also CENTER FOR ARMY LESSONS LEARNED, GAP ANALYSIS REPORT No. 08-37, CORPS 

AND DIVISION, JOINT, INTERAGENCY, MULTINATIONAL (JIM) OPERATIONS: TACTICS, TECHNIQUES, AND 

PROCEDURES (June 2008). 

16 V Corps, Office of the Staff Judge Advocate, Operation IRAQI FREEDOM (OIF) After Action Report 

(AAR), 17 January 2006 - 14 December 200623 (2006). 

17 Combined Security Transition Command - Afghanistan, Legal Advisor Detainee Operations & Political 

Military Affairs, March - September 2007 17-18 (28 Dec. 2007). 

377 
confirmation it, in fact, represents the final DOS position. Judge Advocates working with 

DOS must understand this different decision-making culture. 18 

In addition, JAs working niche issues such as detention operations may find 

themselves becoming the "local expert" on this subject, as well as the DOD spokesperson 

as far as other USG agencies are concerned. Judge Advocates in this position must 

carefully coordinate their actions and decisions on strategic issues with Office of the 

Secretary of Defense (OSD) attorneys, and keep their immediate commanders aware of 

applicable OSD opinions. 19 

[See also International & Operational Law (Rule ofLaw), (Stability Operations).] 

18Id. 

19 Id. 

378 
IX	 DOMESTIC & DOMESTIC SUPPORT 

OPERATIONS 

"It is not a good idea to shake hands for the first time and exchange business 

cards at the scene ofa disaster site. ,,1 

The Department of Defense (DOD) has traditionally conducted only limited 

domestic and domestic support operations. Domestic operations are any military 

operation conducted in the United States where DOD is the lead federal agency (e.g., 

homeland defense (HD) operations). Domestic support operations are those in which 

DOD provides support to another U.S. Government agency (e.g., civil support (CS) 

operations). Homeland defense and civil support operations are DOD's two main 

contributions to homeland security,2 and DOD involvement in both HD and CS 

operations has increased since the events of9/11 and the 2005 hurricane season. 3 

1 Adm. Timothy 1. Keating, Commander, North American Aerospace Defense Command & u.s. Northern 

Command, Feb. 3,2006. 

2 INT'L & OPERATIONAL LAW DEP'T, THE JUDGE ADVOCATE GENERAL'S LEGAL CENTER & SCHOOL, U.S. 

ARMY, JA 422, OPERATIONAL LAW HANDBOOK (2008) [hereinafter OPLAW HANDBOOK 2008]. 

3 Captain William A. Osborne, The History ofDomestic Natural Disasters: The Return to a Primary Role 

for the Department ofDefense in the Twenty-First Century? ARMY LAW., Dec. 2006, 1 (discussing 

historical DOD participation and recent involvement in natural disasters). 

379 
IXA. HOMELAND DEFENSE (HD) 

Homeland defense (HD) is "the protection ofUS sovereignty, territory, domestic 

population, and critical defense infrastructure against external threats and aggression, or 

other threats as directed by the President." The DOD is responsible for the HD mission, 

and therefore leads the HD response, with other departments and agencies in support of 

DOD efforts.4 Homeland defense missions are mainly coordinated through the three 

"supported" geographic commands whose areas of operations include US. territoryUS. Northern Command (NORTHCOM), U.S. Pacific Command (PACOM), and US. 

Southern Command (SOUTHCOM).5 Homeland defense missions include air, maritime, 

land, and space operations, as well as other operations affecting the homeland. 

The process of collecting legal lessons learned during HD operations is underway. 

Those lessons will eventually appear in updates to this publication. Below is a list of 

only a few of the many legal issues that may arise during HD operations. 

IXA.J. Intelligence & Information Operations (10) 

Joint Publication 3-27, Homeland Defense emphasizes intelligence and 

information operations activities - such as intelligence collection and psychological 

operations - as raising potentially significant legal issues in the context of HD 

operations.6 Information operations (IO) is "the integrated employment of electronic 

warfare (EW), computer network operations (CNO), psychological operations (PSYOP), 

military deception (MILDEC), and operations security (OPSEC), in concert with 

specified supporting and related capabilities, to influence, disrupt, corrupt, or usurp 

adversarial human and automated decision making while protecting our own."? 

Intelligence is "[t]he product resulting from the collection, processing, integration, 

evaluation, analysis, and interpretation of available information concerning foreign 

nations, hostile or potentially hostile forces or elements, or areas of actual or potential 

operations."s 

Intelligence Activities 

"Intelligence activities conducted by US intelligence organizations in the United 

States and its territories are strictly controlled There are several regulations 

and laws that specifically govern the use ofDOD intelligence assets and 

organizations in domestic operations. ,,9 

4 JOINT CHIEFS OF STAFF, JOINT PUB. 3-27, HOMELAND DEFENSE 1-2 (12 July 2007) [hereinafter JOINT 

PUB. 3-27]. 

5 !d. at x. 

6 JOINT PUB. 3-27, supra note 4, at 1-11 to 1-12. 

7 JOINT CHIEFS OF STAFF, JOINT PUB. 3-13, INFORMATION OPERATIONS 1-1 (13 Feb. 2006). 

8 JOINT CHIEFS OF STAFF, JOINT PUB. 2-0, JOINT INTELLIGENCE 1-1 (22 June 2006). 

9 !d. at 1-11. 

380 
The role ofJudge Advocates (JAs) in advising on intelligence activities is 

especially important during both HD and CS operations because the parameters under 

which DOD operates are different in the United States than overseas (e.g., the lines 

between counterintelligence (CI) and force protection information are blurred - both will 

involve elements offoreign and domestic information). As well, a commander's need for 

information and intelligence while operating within the homeland is on the rise. Due to a 

heightened awareness of potential terrorist threats, he or she expects integration offorce 

protection information and CI into CS operations. These needs and expectations pose 

unique issues in the information and intelligence collection arena. 

DOD intelligence components are subject to one set ofintelligence oversight rules 

laid out in DOD Regulation 5240.1-R. IO Everyone else in DOD, except for the military 

criminal investigation organizations (MCIOs), is subject to a different framework 

established under DOD Directive 5200.27. 11 A commander must therefore direct a 

request for information or intelligence to the right component - the one with the authority 

and capability to achieve the commander's intent. Intelligence is the domain ofthe DOD 

intelligence component; information comes from non-intelligence DOD components. 

Determining the nature ofthe data and the right unit to gather it are areas that often 

require JA input. 

DOD intelligence components have traditionally had limited involvement in HD 

and CS operations. I2 There are two reasons for this. First, until recently, DOD has not 

10 u.s. DEP'T OF DEFENSE, REG. 5240.l-R, PROCEDURES GOVERNING THE ACTlVlTlES OF DOD 

INTELLIGENCE COMPONENTS THAT AFFECT UNITED STATES PERSONS (Dec. 1982) [hereinafter DOD REG. 

5240.l-R]. 

11 U.S. DEP'T OF DEFENSE, DIR. 5200.27, ACQUISlTlON OF INFORMATION CONCERNING PERSONS AND 

ORGANIZATIONS NOT AFFILIATED WITH THE DEPARTMENT OF DEFENSE (7 Jan. 1980). 

12 DOD intelligence components are defined in DOD Directive 5240.01 as all DOD components conducting 

intelligence activities (defined as foreign intelligence or counterintelligence), including the following: 

a.	 The National Security Agency/Central Security Service (NSA/CSS). 

b.	 The Defense Intelligence Agency (DlA). 

c.	 The offices within the Department of Defense for the collection of specialized national foreign 

intelligence through reconnaissance programs. 

d.	 The Office ofthe Deputy Chief of Staff for Intelligence (ODCSINT), U.S. Army. 

e.	 The Office ofNaval Intelligence (ONI). 

f.	 The Office ofthe Assistant Chief of Staff, Intelligence (OACSI), U.S. Air Force. 

g.	 Intelligence Division, U.S. Marine Corps. 

h.	 The Army Intelligence and Security Command (USAINSCOM). 

i.	 The Naval Intelligence Command (NIC). [No longer in existence] 

j.	 The Naval Security Group Command (NSGC). 

k. The Air Force Intelligence Agency (APIA). 

1.	 The Electronic Security Command (ESC), U.S. Air Force. 

m.	 The counterintelligence elements ofthe Naval Security and Investigative Command (NSIC). 

[Now called the Naval Criminal Investigative Service (NCIS)] 

n.	 The counterintelligence elements ofthe Air Force Office of Special Investigations (AFOSI). 

o.	 The 650th Military Intelligence Group, Supreme Headquarters Allied Powers Europe (SHAPE). 

p. Other intelligence and counterintelligence organizations, staffs, and offices, or elements thereof, 

when used for foreign intelligence or counterintelligence purposes. The heads ofsuch 

381 
typically conducted many HD or CS operations. Second, when DOD has done so, the 

DOD intelligence components have had a limited role due to their mission of conducting 

DOD intelligence activities. 13 Current DOD policy interpretation is that intelligence 

activities only include foreign intelligence (FI) and CI. 14 When PI or CI is necessary for 

a HD operation, the intelligence oversight rules limit allowable collection, and there has 

been little need for FI or CI in a CS operation. Now that the frequency of both ofthese 

operations has increased, there is a greater need for intelligence assets and capabilities. 

Four primary references govern DOD intelligence components: (1) The National 

Security Act of 1947 (establishes a comprehensive program for national security and 

defines the roles and missions of the intelligence community and accountability for 

intelligence activities); 15 (2) Executive Order No. 12,333, United States Intelligence 

Activities (lays out the goals and direction of the national intelligence effort, and 

describes the roles and responsibilities of the different elements of the US intelligence 

community); 16 (3) DOD Directive 5240.1, DOD Intelligence Activities;I? and (4) DOD 

Regulation 5240.1-R, Procedures Governing the Activities ofDOD Intelligence 

Components that affect United States Personsl8 (implements the guidance contained in 

Executive Order No. 12,333 as it pertains to DOD). In addition, each service has its own 

regulation and policy guidance. 19 

These authorities establish the operational parameters and restrictions under 

which DOD intelligence components may collect, produce, and disseminate FI and CI. 

Implicit in this authorization - by the definitions of FI and CI - is a requirement such 

intelligence relate to the activities of international terrorists or foreign powers, 

organizations, persons, and their agents. Moreover, to the extent that DOD intelligence 

components have authority to collect PI or CI within the United States, they may do so 

organizations, staffs, and offices, or elements thereof, shall, however, not be considered as heads 

of the DOD intelligence components for purposes of this Directive. 

13 DOD REG. 5240.l-R, supra note 10. 

14 "Foreign intelligence" means information relating to the capabilities, intentions, and activities of foreign 

powers, organizations, or persons, but not including counterintelligence except for information on 

international terrorist activities. "Counterintelligence" means information gathered and activities 

conducted to protect against espionage, other intelligence activities, sabotage, or assassinations conducted 

for or on behalf of foreign powers, organizations, or persons, or international terrorist activities, but not 

including personnel, physical, document, or communications security programs. Exec. Order No. 12,333,3 

C.F.R. 200 (Dec. 4,1981) [hereinafter Exec. Order No. 12,333], amended by Exec. Order No. 13,284 (Jan 

3,2003); Exec. Order No. 13,355 (Aug. 27, 2004). 

15 50 U.S.c. § 40l-44ld. 

16 Exec. Order No. 12,333, supra note 14. 

17 U.S. DEP'T OF DEFENSE, DIR. 5240.01, DOD INTELLIGENCE ACTIVITIES (27 Aug. 2007) [hereinafter DOD 

DIR.5240.01]. 

18 DOD REG. 5240.l-R, supra note 10. 

19 See, e.g., U.S. DEP'TOF ARMY, REG. 381-10, U.S. ARMY INTELLIGENCE ACTIVITIES (3 May 2007). 

382 
only in coordination with the Federal Bureau of Investigation (FBI), which has primary 

responsibility for intelligence collection within the United States.20 

When DOD intelligence components are conducting FI or CI, the intelligence 

oversight rules apply. DOD established these in accordance with Executive Order No. 

12,333, and DOD Directive 5240.1 and DOD Regulation 5240.1-R set them out. The 

intelligence oversight rules apply to all DOD intelligence components21 and govern the 

collection, retention, and dissemination ofinformation concerning U.S. persons.22 There 

is special emphasis on protecting the constitutional rights and privacy of U.S. persons. 

Consequently, the intelligence oversight rules generally prohibit acquisition of 

information concerning their domestic activities.23 

DOD Regulation 5240.1-R delineates fifteen separate procedures that govern the 

collection, retention, and dissemination of intelligence. Collection of information on U. S. 

persons must be necessary to the functions of the DOD intelligence component 

concerned.24 Procedures 2 through 4 provide the sole authority by which DOD 

components may collect, retain, and disseminate information concerning U.S. persons. 

Procedures 5-10 set forth guidance with respect to the use of certain collection techniques 

to obtain information for FI and CI purposes. Procedures 11 through 15 govern other 

aspects of DOD intelligence activities, including the oversight of such activities. 

In the absence of any foreign nexus, DOD intelligence components generally 

perform non-intelligence activities. These are activities conducted by or with a DOD 

intelligence component asset or capability, but which do not involve FI or CI (e.g., the 

collection, retention, production, and dissemination of maps, terrain analysis, and damage 

assessments for a CS mission). When a DOD intelligence component asset or capability 

is necessary for a non-intelligence activity, it requires specific Secretary of Defense 

(SECDEF) authorization for both the mission and the use ofthe capability or asset.25 The 

20 Exec. Order No. 12,333, supra note 14, para. 1.14(a); Agreement Governing the Conduct of Defense 

Department Counterintelligence Activities in Conjunction with the Federal Bureau ofInvestigation (16 

April1979); Supplement to 1979 FBIIDOD Memorandum ofUnderstanding: Coordination of 

Counterintelligence Matters Between the FBI and DOD (18 Nov. 1996). 

21 DOD DIR. 5240.01, supra note 17, para. 2.3 (noting the directive does not apply to authorized law 

enforcement activities carried out by DOD intelligence components having a law enforcement mission). 

22 Judge Advocates must read these authorities before advising commanders on the collection of 

information during any operation that may entail collecting intelligence on a "U.S. person." This is a U.S. 

citizen, an alien known by the intelligence agency concerned to be a permanent resident alien, an 

unincorporated association substantially composed of U.S. citizens or permanent resident aliens, or a 

corporation incorporated in the United States, except for a corporation directed and controlled by a foreign 

government or governments). Exec. Order 12,333, supra note 14, para. 3.4(i). 

23 "Domestic activities" refers to activities that take place within the United States that do not involve a 

significant connection with a foreign power, organization, or person. DOD REo. 5240.1-R, supra note 10. 

C2.2.3. 

24 I d. para. C2.3. 

25 I d. para. C1.4. 

383 
intelligence oversight rules do not apply to non-intelligence activities. Consequently, the 

SECDEF authorization must include any restrictions upon the assets or capabilities. 

Whether DOD intelligence components are conducting intelligence or nonintelligence activities during HD or CS operations, certain rules apply to data and 

imagery collected from overhead and airborne sensors. Geospatial data, commercial 

imagery, and data or domestic imagery collected and processed by the National 

Geospatial Intelligence Agency are subject to specific policies and procedures in terms of 

requests and authorized uses. Judge Advocates should ensure that they are familiar with 

these. Additionally, DOD Instruction 5210.52, Security Classification ofAirborne 

Sensor Imagery and Imaging Systems and DIA Regulation 50-30, Security Classification 

ofAirborne Sensor Imagery provide specific guidance on mandatory security 

classification review of all data collected by airborne sensor platforms to determine 

whether dissemination is possible.26 

In advising commanders on use of DOD intelligence component capabilities and 

assets, and the products derived from the data collected, it is important for JAs to 

understand the platforms, their sensors, and how they operate. Issues to consider include: 

whether the sensor is fixed or moveable, whether the platform with the sensor can have 

its course altered during a mission, how the data is collected, transmitted and processed, 

and the specific purpose of the mission. For example, an unmanned aerial vehicle (DAV) 

may transmit data by live feed only to a line-of-sight receiver, or by satellite to a remote 

location. It is permissible to forward to the appropriate law enforcement agency (LEA) 

evidence of a criminal act "incidentally" collected during an authorized mission using 

DOD intelligence component capabilities. However, altering the course of an airborne 

sensor (such as a DAV) from an approved collection track to loiter over suspected 

criminal activities would no longer be incidental collection, and could result in a Posse 

Comitatus Act27 violation unless doing so received specific approval in advance. 

Certain data contains classified metadata that may require removal at a remote site 

before disseminating it in an unclassified manner. Different platforms require different 

operational support, which requires planning on where to position it, considering the 

intended use. A CS operation using DOD intelligence component capabilities that 

includes LEA support will probably require separate SECDEF mission authority 

approval. It will also need to consider whether the data transmission is to be exclusively 

to the LEA, and where the LEA personnel are located to control or direct use of the 

assets. Whether a DOD intelligence component, a DOD non-intelligence component, or 

a combination of both wholly owns, operates, and receives the collection platform and 

data transmission will require careful consideration by the JA ofthe applicable rules and 

operational parameters and mission restrictions. 

26 U.S. DEP 'T OF DEFENSE, INSTR. 5210.52, SECURITY CLASSIFICAnON OF AIRBORNE SENSOR IMAGERY 

AND IMAGING SYSTEMS (18 May 1989). 

27 The PCA is discussed in Section IX.BA. below. 

384 
DOD non-intelligence components also have restrictions. These relate to 

acquisition of information concerning the activities of persons and organizations not 

affiliated with DOD, the type ofinformation often required when conducting HD and CS 

operations. Within the DOD, the MCIOs have primary responsibility for gathering and 

disseminating information about the domestic activities of U.S. persons who threaten 

DOD personnel or property. 

In order to properly advise commanders during HD and CS operations, lAs
 

should be familiar with:
 

•	 the missions, plans, and capabilities ofsubordinate intelligence units, and all 

laws and policies (many ofwhich are classified) that apply to their activities; 

•	 the restrictions on the collection, retention, and dissemination ofinformation 

about U.S. persons and non-DOD persons and organizations; 

•	 the approval authorities for the various intelligence activities performed by 

subordinate units; 

•	 the requirement to report and investigate questionable activities and certain 

federal crimes;28 and 

•	 the jurisdictional relationship between intelligence and CI activities, as well as 

the parallel jurisdictions of force protection and law enforcement activities. 

Finally, lAs should establish close working relationships with the legal advisors of 

supporting intelligence agencies and organizations, all of whom can provide expert 

assistance. 

[See also INTERNATIONAL & OPERATIONAL LAW (Intelligence Issues).] 

Psychological Operations (PSYOP) 

"Under law, psychological operations (PSYOP) will not be conducted against 

US persons. However, PSYOP personnel and equipment may be used to support 

approved HD public affairs (PA) activities such as information dissemination, 

printing, reproduction, distribution, and broadcasting. ,,29 

[See also INTERNATIONAL & OPERATIONAL LAW (Information Operations).] 

IXA.2. Standing Rules ofEngagement & Standing Rulesfor the Use ofForce 

Whether and to what extent the military should employ force to accomplish its 

missions also raise significant legal issues that both commanders and lAs should consider 

in advance of any HD operation: 

28 DOD REG. 5240.1-R, supra note 10, procedure 15. 

29 JOINT PUB. 3-27, supra note 4, at 1-12. 

385 
During the conduct of HD operations, US military forces must be prepared to use 

force. The Chairman of the Joint Chiefs ofStaffInstruction (CJCSI) 3121.0lB, 

Standing Rules ofEngagement/Standing Rules for the Use ofForce for us 

Forces establishes fundamental policies and procedures governing the actions US 

military commanders and personnel are to take during global DOD operations, 

including HD operations?O 

Potential legal issues highlighted in Joint doctrine are: 

•	 Applicability of the Standing Rules of Engagement (SROE). "The standing 

ROE (SROE) establish fundamental policies and procedures governing the 

action to be taken by US commanders during all military operations, 

contingencies and routine military functions occurring outside US territory for 

mission accomplishment and the exercise of self-defense.,,3! 

•	 Applicability of the Standing Rules for the Use of Force (SRUF). RUF are 

directives issued to guide US. forces on the use of force during various 

operations. The SRUF apply to land HD missions occurring within US. 

territory and to DOD forces, civilians, and contractors performing law 

enforcement and security duties at all DOD installations within or outside 

US. territory, unless otherwise directed by SECDEF.32 

•	 Employment of Fires. "The commitment of military power to resolve crises 

has traditionally involved the use of lethal weapons or the implicit or explicit 

threat to use them. However, the nature ofHD operations mandates 

consideration for employment ofa variety ofweapon capabilities to include 

those ofthe nonlethal variety.,,33 

30 !d. 

31 !d. However, the SROE do apply to "air and maritime HD missions conducted within US territory or 

territorial seas, unless otherwise directed by SecDef. SROE do not apply to law enforcement and security 

duties on DOD installations and off-installation while conducting official DOD security functions." Id. 

32 !d. at 1-12 to 113 

33 Id. at 1-13. 

386 
IXB. CIVIL SUPPORT (CS) 

Civil support (CS) is "the overarching term for DOD's support to US civil 

authorities (DHS [Department ofHomeland Security] or other agency) for domestic 

emergencies and for designated law enforcement and other activities.,,34 Like HD 

operations, the three geographic commands whose area of responsibility include U.S. 

territory - NORTHCOM, PACOM, and SOUTHCOM - are the main conductors of CS 

operations.35 However, during CS operations, in contrast to HD operations, 

NORTHCOM, PACOM, and SOUTHCOM are "supporting" rather than "supported" 

commands.36 That is, DOD does not take the lead, but provides support to state and local 

governments as well as other federal agencies.37 

IXB.l. Counterdrug (CD) Operations 

Counterdrug (CD) support operations have become an important DOD role. All 

DOD support coordination occurs through the Office of Counternarcotics, under the 

Deputy Assistant Secretary ofDefense for Counternarcotics (DASD-CN). Unlike other 

DOD CS operations, in which the agency receiving support must reimburse DOD, annual 

DOD appropriations fund the DOD support to CD operations. For FY08, Congress 

appropriated nearly $985,000,000.38 

Detection & Monitoring (D&M) 

DOD is the lead federal agency (LFA) for detection and monitoring (D&M) of 

aerial and maritime transit of illegal drugs into the United States?9 D&M is, therefore, a 

34 JOINT CHIEFS OF STAFF, JOINT PUB. 3-28, CIVIL SUPPORT 1-2 (14 Sept. 2007) [hereinafter JOINT PUB. 3­

28]. 

35 !d. at 11-7. 

36Id. at 1-5. 

37 In 1999, a U.S. joint task force conducted Operation PROVIDE REFUGE, a resettlement ofKosovar 

refugees into the former Yugoslav Republic of Macedonia (FYROM) and the United States as part of a 

multinational effort to assist Kosovo and neighboring countries that had received refugees from Kosovo. 

Although linked to a deployed operation, the U.S. arm of this was a CS operation. The lead federal agency 

(LFA) for Operation PROVIDE REFUGE was the Department of Health and Human Services (DHHS), 

whose senior representative to the task force directed the mission. Fort Dix, N.J., which acted as a 

reception center, performed all budgeting and cost capturing for the JTF. Judge Advocates who supported 

this operation recommend that JAs understand that the DOD CS role is unlike typical DOD operational 

missions. The LFA has responsibility for executing the mission, and DOD operates in a supporting role, 

acting only in response to LFA requests for specific support. There are DOD policy limits on the types and 

amount of support DOD may provide to the LFA, and DOD cannot "volunteer" to do more than what the 

LFA requests. CENTER FOR LAW & MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS IN Kosovo, 

1999-2001: LESSONS LEARNED FOR JUDGE ADVOCATES 176-212 (15 December 2001). See also id. app. V3 (Memorandum ofAgreement between DOD and DHHS, 4 May 1999); id. app. V-lO (information paper 

on "MSCA Basic Principles"). 

38 H.R. 3222-17, 110th Congo (2008) (enacted). 

39 10 U.S.C. § 124. Note the statute does not extend to D&M missions covering land transit (i.e., the 

Canadian and Mexican borders). 

387 
DOD mission. Despite this, it occurs in support of federal, state, and local law 

enforcement agencies (LEAs).4o Interception of vessels or aircraft is permissible outside 

the land area ofthe United States to identify and direct the vessel or aircraft to a location 

designated by the supported civilian authorities. Detection and monitoring missions 

involve airborne (i.e., airborne warning and control systems (AWACS)), seaborne 

(primarily US. Navy vessels), and land-based radars (to include remote over the horizon 

radar (ROTHR)) sites. 

Federal funding for National Guard (NG) CD activities, including pay, 

allowances, travel expenses, and operations and maintenance expenses, occurs pursuant 

to 32 US.C. § 112. The state must prepare a drug interdiction and counterdrug activities 

plan, which DASD-CN reviews before disbursing funds. 

Additional Support to CD Operations 

Congress has given DOD additional authorities to support federal, state, local, and 

foreign governments that have CD responsibilities. These have yet to receive 

codification. Many ofthe public laws authorizing such support appear in the notes 

following 10 US.C. § 37441 in the annotated codes.42 The statute permits broad support 

to federal, state, and local governments, as well as foreign authorities (when requested by 

a federal CD agency, typically the Drug Enforcement Agency (DEA) or a member ofthe 

State Department country team that has CD responsibilities). These authorities are not 

exceptions to the Posse Comitatus Act (PCA),43 so any support provided must comply 

with PCA restrictions. Additionally, any domestic training provided must comply with 

the Deputy Secretary of Defense policy on advanced training. 

Authorized support includes maintenance and repair of equipment; transportation 

of personnel (US. and foreign), equipment, and supplies in the continental United States 

(CONUS)/outside the continental United States (OCONUS); establishment of bases of 

operations CONUS/OCONUS; training of law enforcement personnel, to include 

associated support and training expenses; detection and monitoring of air, sea, surface 

traffic outside the United States, and within twenty-five miles ofthe border if the 

detection occurred outside the United States; construction ofroads, fences, and lighting 

along U.S. border; linguist and intelligence analyst services; aerial and ground 

reconnaissance; and establishment of command, control, communication, and computer 

networks for improved integration oflaw enforcement, active military, and NG activities. 

Policy promulgated by the Joint Chiefs of Staff governs the authority to approve DOD 

40 But cf JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.4, JOINT COUNTERDRUG OPERATIONS xiv, I-I (13 June 

2007) (indicating that the LFA for both maritime and air CD operations is the DRS, acting through the U.S. 

Coast Guard (USCG) and U.S. Customs and Border Protection, supported by DOD D&M operations). 

41 Compare 10 U.S.C. § 372 (authorizing the use of DOD personnel, as opposed to property, in support of 

CD operations). 

42 The primary authority is the National Defense Authorization Act of 1991, Pub. L. No. 101-510, § 1004 

(1991) (as amended). 

43 There is discussion ofthe PCA below in Section IX.B.4. 

388 
support to CD operations.44 Law enforcement agencies may also request DOD support, 

but such requests must fulfill several criteria.45 

Under § 1206 ofthe National Defense Authorization Act of 1990,46 Congress
 

directed the armed forces, to the maximum extent practicable, to conduct training
 

exercises in declared drug interdiction areas. In § 1031 of the National Defense
 

Authorization Act of 1997, Congress authorized and provided additional funding for
 

enhanced support to Mexico. The support involves the transfer of certain non-lethal
 

specialized equipment such as communication, radar, navigation, and photo equipment.
 

Under § 1033 of the National Defense Authorization Act of 1998, Congress authorized
 

and provided additional funding for enhanced support to Colombia and Peru. Section
 

1021 ofthe National Defense Authorization Act of200447 expanded the list of eligible
 

countries to include Afghanistan, Bolivia, Ecuador, Pakistan, Tajikistan, Turkmenistan,
 

and Uzbekistan.48 In 2006, Azerbaijan, Kazakhstan, Kyrgyzstan, Armenia, Guatemala,
 

Belize, and Panama became part ofthe list.49
 

IXB.2. Disaster ReliejlConsequence Management 

At the direction ofthe President or SECDEF, DOD may provide support to civil 

authorities for "designated law enforcement and/or other activities and as part of a 

comprehensive national response to prevent and protect against terrorist incidents or to 

recover from an attack or a disaster.,,5o DOD's contributions during the relief efforts for 

44 See OPLAW HANDBOOK 2008, supra note 2, at 214 (discussing approval authority). 

Non-operational support - that which does not involve the active participation ofDoD 

personnel - including the provision of equipment only, use of facilities, and formal 

schoolhouse training, is requested and approved in accordance with Department of 

Defense Directive (DoD Dir.) 5525.5 and implementing Service regulations. For 

operational support, the Secretary of Defense (SECDEF) is the approval authority. The 

approval will typically be reflected in a JCS-issued deployment order. In addition, the 

SECDEF has delegated approval authority for certain missions to combatant 

commanders, with the ability for further delegation by the combatant commander, but no 

lower than a flag officer. The SECDEF delegation depends on the type of support 

provided, the number of personnel provided, and the length ofthe mission. For example, 

certain missions along the southwest border ofthe U.S., the delegation runs from 

SECDEF to NORTHCOM to Joint Task Force North (JTF-North)." 

See also JOINT CHIEFS OF STAFF, INSTR. 371O.Q1B, DOD COUNTERDRUG SUPPORT (26 Jan. 2007) 

[hereinafter JCS INSTR. 371O.Q1B]. 

45 See JCS INST. 3710.Q1B supra note 44, para. 8(b); see also OPLAW HB supra note 2 at 214 (listing the 

seven criteria that must be met). 

46 Pub. L. No. 101-189,103 Stat. 1563 (1989). 

47 Pub. L. No. 108-134, 117 Stat. 1391 (2003). 

48 The authority to provide support to anyone ofthese governments under § 1021 expired on 30 September 

2006, but this date was amended to 30 September 2008, see irifra note 28, at § 1021. 

49 Pub. L. No. 109-364, 120 Stat. 2382 (2006). 

50 U.S. DEP'T OF DEFENSE, QUADRENNIAL DEFENSE REVIEW REpORT 26 (6 Feb. 2006) [hereinafter QDR] 

available at http://www.defenselinkmil/qdr/report/Report20060203.pdf. 

389 
Hurricanes Katrina and Rita fell into this category.51 Anticipating circumstances in 

which future catastrophes might overwhelm civilian resources, the Quadrennial Defense 

Review recommended two ways to improve DOD's domestic response: 

(1) The Department will provide Us. NORTHCOM with authority to stage forces 

and equipment domestically prior to potential incidents when possible. 

(2) The Department will also seek to eliminate current legislative ceilings on preevent spending. 52 (Emphasis added) 

The DOD strives "to improve the homeland defense and consequence 

management capabilities of its national and international partners and to improve the 

Department's capabilities by sharing information, expertise and technology as 

appropriate across military and civilian boundaries." In order to achieve these goals, 

DOD intends to "leverage its comparative advantages in planning, training, command 

and control and ... develop trust and confidence through shared training and exercises." 

In order to form a successful homeland defense, efforts must occur to "standardize 

operational concepts, develop compatible technology solutions and coordinate 

planning.,,53 

With those purposes in mind, DOD will work with the Department of Homeland 

Security (DHS) and with state and local governments to improve homeland security 

capabilities and cooperation. The design ofthese collective efforts is to improve 

interagency planning and scenario development and enhance interoperability through 

experimentation, testing, and training exercises. As the National Maritime Security 

Policy and Strategy for Homeland Defense and Civil Support emphasize, defending the 

homeland in depth and mitigating the consequences of attacks highlight the need for the 

following types of capabilities: Joint command and control for HD and CS missions, 

including communications and command and control systems that are interoperable with 

other agencies and state and local governments. Finally, both air and maritime domain 

awareness capabilities must provide increased situational awareness and shared 

information on potential threats through rapid collection, fusion and analysis.54 

The Issues 

Judge Advocates (JAs) supporting natural disaster and consequence management 

operations should be aware they are dealing with a developing paradigm. Doctrine is not 

yet firm and terminology changes as new entities appear to respond to the increased 

threat of domestic terrorism and the occurrence of natural disasters. For example, the 

Office of the Assistant Secretary of Defense for Homeland Defense (ASD(HD))) came 

51 See CENTER FOR ARMY LESSONS LEARNED, HANDBOOK 06-08, CATASTROPHIC DISASTER RESPONSE 

STAFF OFFICER'S HANDBOOK (May 2006) (drafted in response to the lessons learned during Hurricane 

Katrina). 

52 QDR, supra note 50. 

53Id. 

54 !d. at 26-27. 

390 
about relatively recently, but has already retitled as the Office ofthe Assistant Secretary 

of Defense for Homeland Defense and Americas' Security Issues (ASD(HD&ASA)).55 

Along those same lines, DOD established NORTHCOM in 2002 to consolidate under a 

single unified command existing missions previously executed by other military 

organizations.56 Similarly, President George W. Bush proposed the creation of the DHS 

in June 2002.57 The organizations participating in CS operations will no doubt continue 

to undergo adjustment, even as doctrine - e.g., the 2008 National Response Framework 

(NRF) - evolves.58 Clarification of some issues will need to wait until the entities 

involved and the accompanying body of knowledge becomes more fully mature. 

The lAs who may be involved in CS operations bring a wide range of 

perspectives to the table. As a result, reserve component (RC) lAs supporting the active 

component (AC) may approach issues differently than RC lAs. Moreover, within the 

RC, NG lAs may respond differently than Army Reserve (USAR) lAs. As a result, the 

lessons learned may be somewhat different, depending on the lA's role and status. 

Nevertheless, a number of issues confronted by lAs during CS operations appear below. 

This list is neither comprehensive nor in order ofpriority, and many ofthe issues overlap. 

However, nearly all of them appear frequently. For example, AC, RC, and NG lAs noted 

them during the response to Hurricane Katrina. 

•	 response plans 

o	 development 

•	 Homeland Security Presidential Directives (HSPD) 

•	 National Response Framework (NRF) 

•	 National Incident Management System (NIMS) 

•	 Stafford Act 

•	 Insurrection Act 

•	 natural disaster vs. terrorist event (chemical, biological, 

radiological, nuclear, or high-yield explosive (CBRNE)) 

o	 reVIew 

o	 training 

•	 command and control (C2) 

o	 dual status commander? 

•	 32USC§315 

55 See Bob Stump National Defense Authorization Act of2003, Pub. L. No. 107-314, § 902. 

56 Unified Command Plan 2002. 

57 Department ofHomeland Security June 2002 - George W Bush, available at 

http://www.dhs.gov/interweb/assetiibrary/book.pdf 

58 National Response Plan (NRP) publication occurred in December 2004, beginning the phasing out ofthe 

Initial National Response Plan (INRP), the Federal Response Plan (FRP), the U.S. Government Domestic 

Terrorism Concept of Operations Plan (CONPLAN), and the Federal Radiological Emergency Response 

Plan (FRERP). In January 2008, the NRP underwent rewriting and renaming to the National Response 

Framework (NRF), largely to reflect lessons learned from Hurricane Katrina. The NRF provides a 

coordinated "all-hazards" response on all levels of local, state, tribal, and federal government to incidents 

large and small, and is available at http://www.fema.comlNRF. 

391 
•	 32 USC § 325 

• pre-event unified C2 organizational structure? 

a collaboration with state, local, federal, and private agencies 

•	 Posse Comitatus Act (PCA)
 

a law enforcement vs. humanitarian relief
 

•	 search and rescue 

•	 entry into private dwellings 

•	 security operations 

•	 traffic control points 

•	 evacuation of civilians 

•	 sharing information with law enforcement 

• curfew enforcement 

a u~e ofTitle 10 vs. Title 32/state active duty (SAD) forces 

•	 use of state military forces under 32 USC § 502(£) vs. Chapter 9 

a pay 

a tort immunity under Federal Tort Claims Act (FTCA) 

a Uniformed Services Employment and Reemployment Rights Act 

(USERRA) or similar state laws 

a Servicemembers Civil Relief Act (SCRA) or similar state laws 

a medical treatment 

a disability benefits 

a authority to involuntarily order Soldiers to duty 

•	 rules for the use of force (RUF)
 

a standing rules for the use offorce (SRUF)59
 

a working with state law enforcement
 

•	 immediate response authority (IRA)6o
 

a appropriate response
 

a reimbursement
 

•	 Emergency Management Assistance Compact (EMAC) 

a	 memoranda of agreement (M0 A)/memoranda of understanding 

(MOU) 

• ability to perform law enforcement 

• credentialing out of state medical personnel 

a state and local law 

•	 integration ofstate emergency management operations centers, federal 

emergency operations centers, and other external agencies' mission 

assignments 

•	 collection and use of intelligence information 

•	 loan and lease of equipment/reimbursement 

59 Major Daniel 1. Sennott, Interpreting Recent Changes to the Standing Rules for the Use ofForce, ARMY 

LAW., Nov. 2007, 52 (comparing SRUF to SROE, describing past lessons arising from application ofthe 

RUF, and proposing possible solutions to ensure that Soldiers properly apply RUF). 

60 Lieutenant Colonel Mary C. Bradley & Major Kathleen V.E. Reder, They Asked, But Can We Help? A 

Judge Advocate's Guide to Immediate Response Authority, ARMY LAW., Feb. 2007, 30 (setting out steps to 

analyze a request for assistance). 

392 
•	 pre-positioning of assets 

o	 defense coordinating officer (DCO)/defense coordination element 

(DCE) 

o	 prearrange support contracts for required resources 

o	 unified mobile disaster assessment cell 

•	 claims 

•	 contracts and fiscallaw61 

•	 legal assistance 

•	 international assistance 

•	 access of medialassist in public affairs 

•	 environmentallawlhazardous substances 

•	 military justice62 

•	 debris removal/indemnification 

•	 damage to military installations 

•	 standards of conduct 

The Process 

When directed, DOD responds to a catastrophic event in accordance with DOD 

Directive 3025.1,63 DOD Directive 3025.15,64 Chairman ofthe Joint Chiefs ofStaff 

(CJCS) Contingency Plan (CONPLAN) 0500-98,65 and the NRF. 66 The request for 

military assistance normally comes from the LFA. Under the NRF, the Federal 

Emergency Management Agency (FEMA) within the DHS is most likely to be the LFA 

for a catastrophic event. The request goes to ASD(HD&ASA) for approval, then forward 

to the Joint Staff for execution. The Joint Director of Military Support (JDOMS) issues 

an Execute Order (EXORD) to Commander, NORTHCOM or Commander, PACOM, 

depending upon whose area of responsibility encompasses the catastrophic event. 

61 Major Christopher B. Walters, Responding to National Disasters and Emergencies: A Contract and 

Fiscal Law Primer, ARMY LAW., Oct. 2007, 35 (providing a quick overview ofthe federal response 

scheme, highlighting lessons learned in the past, and identifying an addition to the Federal Acquisition 

Regulation resulting from Hurricane Katrina). 

62 Major Robert L. Martin, Military Justice in the National Guard: A Survey ofthe Laws and Procedures 

ofthe States, Territories, and the District ofColumbia, ARMY LAW., Dec. 2007, 30 (describing the 

application ofMJ to NG personnel). 

63 U.S. DEP'T OF DEFENSE, DIR. 3025.1, MILITARY SUPPORT TO CIVIL AUTHORITIES (15 Jan. 1993). 

64 U.S. DEP'T OF DEFENSE, DIR. 3025.15, MILITARY ASSISTANCE TO CIVILIAN AUTHORITIES (18 Feb. 1997). 

65 JOINT CHIEFS OF STAFF, CONCEPT PLAN 0500-98, MILITARY ASSISTANCE TO DOMESTIC CONSEQUENCE 

MANAGEMENT OPERATIONS IN RESPONSE TO A CHEMICAL, BIOLOGICAL, RADIOLOGICAL, NUCLEAR, OR 

HIGH-YIELD EXPLOSIVE SITUATION [hereinafter CONPLAN 0500-98]; see also JOINT CHIEFS OF STAFF, 

INSTR. 3125.0 lA, MILITARY ASSISTANCE TO DOMESTIC CONSEQUENCE MANAGEMENT OPERATIONS IN 

RESPONSE TO A CHEMICAL, BIOLOGICAL, RADIOLOGICAL, NUCLEAR, OR HIGH-YIELD EXPLOSIVE SITUATION 

(16 Mar. 2007); U.S. DEP'T OF ARMY, FIELD MANUAL 3-28.1, MULTI-SERVICE TACTICS, TECHNIQUES, AND 

PROCEDURES FOR CIVIL SUPPORT (CS) OPERATIONS (3 Dec. 2007); U.S. DEP'T OF ARMY, FIELD MANUAL 

3-11.22, WEAPONS OF MASS DESTRUCTION - CIVIL SUPPORT TEAM OPERATIONS (10 Dec. 2007); U.S. 

DEP'TOF ARMY, FIELD MANUAL 3-19.15, CIVIL DISTURBANCE OPERATIONS (18 Apr. 2005). 

66 CONPLAN 0500-98, supra note 65. 

393 
The combatant commander then orders the Commander, Joint Task Force - Civil 

Support (JTF-CS) to conduct consequence management operations.67 Responding units 

always remain under the command and control ofthe designated JTF commander, if there 

is creation of a separate JTF. Units performing consequence management operations 

normally will not do so armed, but may deploy with weapons stored in containers. The 

CJCS CONPLAN 0500-98 RUF provide authority for the use of force, including deadly 

force, for individual and unit self-defense.68 

IXB.3. National Response Framework (NRF) 

The NRF,69 effective 22 March 2008, supersedes the National Response Plan
 

(NRP) and "is now more in keeping with its intended purpose, specifically, simplifying
 

the language, presentation and contend; clarifying its national focus; articulating the five
 

principles ofresponse doctrine; and methodically describing the who, what and how of
 

emergency preparedness and response.,,70 The NRF establishes a comprehensive,
 

national, all-hazards approach to domestic incident management across a spectrum of
 

activities.7l Its predicate is the National Incident Management System (NIMS), a
 

nationwide template enabling government and non-governmental responders to respond
 

to all domestic incidents. It provides the structure and mechanisms for national-level
 

policy and operational coordination for domestic incident management.
 

The NRF does not alter or impede the ability of federal, state, local, or tribal 

departments and agencies to carry out their specific authorities. It assumes management 

ofincidents typically occurs at the lowest possible geographic, organizational, and 

jurisdictional level. However, whereas the NRP distinguished between incidents of 

national significance and the majority of incidents occurring each year that do not rise to 

this level, the NRF has no such triggering requirement. Whether the incident in question 

is local in geography, or more widespread, responding governments have the flexibility 

under the NRF to seek a surge of federal support. For instance, they may do so in order 

to contain a potential increase in the incident's impact.72 

Roles, Responsibilities, & Emergency Support Functions (ESFs) 

The NRF specifies the roles and responsibilities of the key partners in incident 

response at the local, state, tribal, and federal levels. 73 The federal government and many 

state governments organize much of their resources and capabilities - as well as those of 

67 See JOINT PUB. 3-28 supra note 34, at III-II to III-13 (discussion of the five phases ofmilitary support in 

consequence management). 

68 CONPLAN 0500-98, supra note 65, ann. C, app. 16. 

69 73 Fed. Reg. 4887-4888 (22 Jan. 2008) [hereinafter NRF], available at http://www.fema.gov/NRF. 

70 OPLAW HANDBOOK 2008, supra note 2, at 209. 

71 See supra note 58 and accompanying text. 

72 NRF, supra note 69, at 8. 

73 Id. at 15-26. 

394 
certain private-sector and non-governmental organizations - under fifteen emergency 

support functions (ESFs).74 Emergency support functions align categories of resources 

and provide strategic objectives for their use. Assignment of support agencies occurs 

based on the availability of resources in a given functional area.

75 Selective activation of 

these ESFs is possible for both Stafford Ace6 and non-Stafford Act incidents. 

NRF Coordinating Structures & Staffing 

The NRF's response structures have the NIMS as their basis, particularly its 

Incident Command System (ICS).77 The NRF sets forth both coordination structures and 

staffing for each structure at the local field level, as well as at the state and federal levels. 

Not all structures and accompanying staffing require implementation for every incident. 

The NRF is, by design, quickly scalable, flexible, and adaptable as the need arises. 78 

NRF Implementation 

Federal disaster assistance often appears synonymous with Presidential 

declarations and the Stafford Act. However, it can go to state, tribal, and local 

jurisdictions, and to other federal departments and agencies, in a number of different 

ways through various mechanisms and authorities. Federal assistance often does not 

require DHS coordination and can occur without a Presidential major disaster or 

emergency declaration. Examples of these types of federal assistance include that 

described in the National Oil and Hazardous Substances Pollution Contingency Plan, the 

Mass Migration Emergency Plan, the National Search and Rescue Plan, and the National 

Maritime Security Plan. These and other supplemental agency or interagency plans, 

compacts, and agreements may receive implementation concurrently with the NRF, but 

they are subordinate to its overarching coordinating structures, processes, and protocols. 

Nothing in the NRF alters or impedes the ability of federal, state, tribal, or local 

departments and agencies to carry out their specific authorities or perform their 

responsibilities under all applicable laws, executive orders, and directives.79 

IXB.4. Rules/or the Use 0/Force (RUF) 

80 The G8 Summit took place at Sea Island, Ga. in June 2004. In addition to 

civilian law enforcement, both the Georgia NG and the DOD coordinated security efforts 

74 See id. at 58-59 (table of the fifteen ESFs). 

751d. at 29. 

76 Disaster Relief Statutes (Stafford Act), 42 U.S.C. § 512l. 

77 NRF, supra note 69, at 47. 

78 See id. at 47-69 (listing the various structures and accompanying staft). 

791d. at 24. 

80 The leaders of Canada, France, Germany, Italy, Japan, Russia, UK, and the United States meet annually 

in a relaxed setting, largely free of bureaucracy. It is not a legal entity and there are no formal rules of 

procedure. Its purpose is to address a wide range of international economic, political, and social issues. 

395 
for the event. National Guard personnel performed their mission in Title 32 status. 81 An 

amendment to Georgia state law gave NG personnel in Title 32 status the authority to 

arrest or detain individuals.82 As well, the U.S. President and the Governor of Georgia 

entered into an authorization and consent pursuant to 32 USC §325 and a memorandum 

of agreement to establish a dual status commander. 83 

Execution of the G8 Summit mission required months of analysis and preparation. 

What were authorities asking the military to do? Could home-state NG personnel alone 

accomplish the mission? Would there be a need for NG (Title 32) personnel from other 

states? Would there be a need for active duty (Title 10) personnel? There were 

consultations with local, state, and federal agencies. State law issues required resolution. 

As well, officials had to resolve RUF issues in consultation with the Georgia State 

Attorney General, including whether to use of out-of-state NG personnel for law 

enforcement purposes.84 

Posse Comitatus Act (PCA) 

One important legal issue that arises in the context of the use of force during CS
 

operations is the applicability of the Posse Comitatus Act (PCA), the primary statute
 

restricting military support to civilian law enforcement. 85 The PCA's purpose is to limit
 

81 A number of factors were important in making this decision. These included pay, tort immunity under 

the Federal Tort Claims Act (FTCA), employment protection under the Uniformed Services Employment 

and Reemployment Rights Act (USERRA), servicemember protection under the Servicemembers Civil 

Relief Act (SCRA) or similar state laws, medical treatment, disability benefits, and authority to order 

servicemembers to duty involuntarily. 

82 Georgia law provided that NG personnel, when ordered into state active duty (SAD) by the Governor in 

response to an emergency, would have the same arrest powers as law enforcement officers. There was no 

state law giving law enforcement arrest powers to NG personnel performing duty pursuant to Title 32. 

Obtaining a change in state law, whereby the Governor could grant law enforcement arrest powers to 

members of the NG performing duty pursuant to Title 32 in response to an emergency declared by the 

Governor, resolved that problem. 

83 A dual status commander is an NG commander placed in a Title 10 status, but who retains his Title 32 

status. Consequently, the commander has authority to command both Title 10 and Title 32 personnel. 

84 Georgia has a statute in its state military code that authorizes the Governor to request the Governor of 

another state to send NG forces from that state into Georgia to assist the military or police forces of 

Georgia who are engaged in defending the state. However, Georgia is a signatory of the Emergency 

Management Assistance Compact (EMAC), and the version of EMAC adopted by Georgia does not 

authorize or permit the use ofNG forces from another state for law enforcement purposes. 

85 See Posse Comitatus Act, 18 U.S.c. § 1385 (2000) [hereinafter PCA] (stating "[w]hoever, except in 

cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses 

any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined 

under this title or imprisoned not more than two years, or both."). The phrase "posse comitatus" is literally 

translated from Latin as the "power of the county" and is defined in common law to refer to all those over 

the age of 15 upon whom a sheriff could call for assistance in preventing any type of civil disorder. See 

generally United States v. Hartley, 796 F.2d 112, 114 n.3 (5th Cir. 1986). 

396 
direct military involvement with civilian law enforcement activities to enforce U.S. laws, 

absent Congressional or Constitutional authorization.86 

Standing Rules for the Use of Force (SRUF) 

The SRUF provide the operational guidance and establish fundamental policies 

and procedures governing actions taken by DOD personnel performing CS missions 

within the United States and its territories.87 The SRUF also govern land-based HD 

missions occurring within the United States and its territories. The SRUF apply to DOD 

forces, civilians, and contractors performing law enforcement and security duties at all 

DOD installations within or outside the United States and its territories, unless otherwise 

directed by SECDEF. The SRUF apply to Title 10 forces performing both HD and CS 

missions, but do not apply to NG forces in either state active duty (SAD) or Title 32 

status.88 Active duty JAs should coordinate with their NG counterparts when operating 

together in order to obtain situational awareness ofthe NG RUF. 

There are variations between the states in terms ofNG authority to take actions 

requiring the use offorce in a law enforcement,89 law enforcement support,900r security 

operation. For example, some states, by statute, give NG personnel the full authority of 

peace officers.91 In other states, however, NG personnel have only those peace officertype powers enjoyed by the population at large. 92 Still other states take a middle position 

86 United States v. Red Feather, 392 F. Supp. 916, 922 (W.D.S.D. 1975). See also OPLAW HANDBOOK 

2008, supra note 2, at 198-201 (in-depth discussion ofthe PCA). 

87 OPLAW HANDBOOK 2008, supra note 2, at 74; CENTER FOR LAW & MILITARY OPERATIONS, DOMESTIC 

OPERATIONAL LAW (DOPLAW) HANDBOOK FOR JUDGE ADVOCATES, VOLUME I, chs. 11 & 12 (18 July 

2006) (discussing Title 10 and NG RUF). 

88 NG in a Title 32 or SAD status operate under the RUF ofthe affected state(s). 

89 Because the PCA does not apply to NG personnel when not in federal status or under federal control, 

there is no federal law prohibiting the NG from participating in direct law enforcement actions. Whether 

the NG forces of any state may otherwise participate in such actions therefore depends upon the law ofthe 

individual states. 

90 For NG purposes, the usual understanding of law enforcement support is assistance provided to civilian 

LEAs at their direction or request. It may mean something else for the purposes of the application ofthe 

PCA to active duty federal military forces. 

91 See, e.g., Arkansas law: "Whenever such forces or any part thereof shall be ordered out for service of 

any kind, they shall have all powers, duties, and immunities ofpeace officers ofthe state ofArkansas in 

addition to all powers, duties, and immunities now otherwise provided by law." ARK. CODE ANN. § 12-61­

l12(a). 

92 See, e.g., Iowa RUF for the airport security mission "Task Force Freedom Flight - Airport Security 

Instructions," para. 4, and its reliance, for the purpose of arresting civilians committing crimes in the 

presence ofNG personnel, on Iowa Code § 804.9, granting ordinary citizens the power of arrest; Nebraska 

Rules of Interaction (ROI) #02, 2 Oct. 2001, para. 7 ("You must apply the use of force rules that apply to a 

private citizen under state law"); Use ofForce and Arrest Powers ofNew York National Guard Soldiers, 

para. 5 ("a National Guardsman's power and authority under New York state law are the same as any other 

citizen"). When conducting SAD missions in the wake ofthe 11 September 2001 terrorists attacks, New 

York NG personnel had no greater arrest power than any other citizens. Although a New York State 

397 
and provide NG personnel with specific peace officer authority only in specified 

situations.93 Depending upon the language ofthe state statute involved, these grants of or 

limitations on NG authority to act as peace officers may apply to NG personnel 

conducting operations in Title 32 status, SAD status, or both.94 Regardless, NG JAs must 

participate in the effort to tailor the RUF to the particular mission and the policies ofthe 

state Adjutant General, even if those needs and policies dictate more restrictive rules than 

actually allowed by state law. 95 

Given the doctrine of federal supremacy clause immunity, it should be clear that 

federal active duty Soldiers have less reason to consider themselves bound by the exact 

restrictions of a state's criminal law, and more reason to follow the requirements of the 

SRUF than do NG personnel acting in a Title 32 or SAD status. As a result, NG JAs 

acting in domestic law enforcement support or security operations involving both AC and 

NG personnel executing a mission in state status should pay close attention to the RUF if 

AC and NG personnel are assigned similar roles or duties. The RUF applicable to NG 

personnel in those situations must be most respectful of state limitations on NG law 

enforcement-~e activities (such as searches and seizures) and the use of force to support 

such activities. 6 

Emergency Act provided a mechanism for designating the NG as peace officers, that provision went used 

because such a designation required a lengthy training period. 

93 See, e.g., GA. CODE ANN. § 38-2-6 to 38-2-6.1. 

94 For example, ARK. CODE ANN. § 12-61-112 applies "Whenever" National Guard forces are ordered to 

"service of any kind," but Ga. Code Ann. § 38-2-6 to 38-2-6.1, when read in toto, provide that the 

Governor has the power "in case of invasion, disaster, insurrection, riot, breach ofthe peace, combination 

to oppose the enforcement of the law, or imminent danger thereof' to declare an emergency ordering the 

National Guard into "the active service of the state" and granting the NG the authority to "quell riots, 

insurrections, or a gross breach of the peace or to maintain order." 

95 For the purposes ofthe airport security mission, some states adopted more restrictive RUF than state law 

allowed. See, e.g., Annex E Rules of Engagement (ROE), para. 2, as approved by Wisconsin Attorney 

General Doyle (4 Oct. 2001) (in which Wisconsin NG authorities explained that the effect of Wis. Stat. 

Ann. § 939.22(22) was to grant NG personnel the authority of peace officers, but that NG policy was to 

grant only those "specified tasks of the requesting civil authorities denoted by special operations orders"). 

96 This does not necessarily imply that state RUF will always be more restrictive than the SRUF. One 

example is in civil disturbance support operations in which NGR 500-1, Military Support to Civil 

Authorities applies. When federal equipment use occurs, the RUF provide that use of deadly force is 

authorized for the prevention ofthe destruction of "property vital to public health and safety" (undefined). 

Some states followed this authorization for the purposes of the airport security operation, even though that 

operation was not a civil disturbance operation. See, e.g., Missouri RUF for Airport Security Mission 

("Commander's Guidance on Use ofForce"), Force Continuum Deadly Force, para. 3c. In contrast, the 

analogous SRUF provision authorizes the use of deadly force to protect President-designated assets vital to 

national security. This, by definition, is property the theft or sabotage of which must create an "imminent 

threat of death or serious bodily harm." 

398 
X DOCTRINE, ORGANIZATION, 

TRAININa MATERIEL, LEADERSHIp, 

PERSONNEL, & FACILITIES 

(DOTMLPF), & COUNTRYMATERIALS 

Contingency operations continue to introduce new lessons in the fields of 

doctrine, organization, training, materiel, leadership, personnel, and facilities 

(DOTMLPF). For the first time since Operations DESERT SHIELD and STORM, small 

contingency unit legal teams and entire unit Offices ofthe StaffJudge Advocate (OSJA) 

have deployed as a whole. The rotation of units to Operations ENDURING FREEDOM 

(OEF) and IRAQI FREEDOM (OIF) revealed the Judge Advocate General's Corps 

(JAGC) was on the cutting edge of new technologies and legal personnel generally had 

the training to support their mission. However, large-scale deployments did expose holes 

in the area of equipment authorizations for OSJA assets. Further, the deployments 

revealed legal personnel must have a high level of training in basic military skills, as they 

may have to carry out their mission in a combat environment. 

399 
XA. ARMYDOCTRINE 

Before the March 2000 publication ofField Manual (FM) 27-100, Legal Support 

to Operations, individual office standard operating procedures, word of mouth, relevant 

polices such as Army Regulation 27-10, Military Justice or Army Regulation 27-20, 

Claims, and those few Army publications that referred to legal support to operations 

formed the basis of JAGC doctrine. 1 In FM 27-100, the JAGC, for the first time, 

described the mission and activities of JAGC organizations, units and personnel 

supporting Army operations. FM 27-100 also recognized the need to integrate legal 

support thoroughly into all aspects of operations - to ensure compliance with law and 

policy, and to provide responsive, quality legal services to units involved in combat and 

contingency operations. In many ways, FM 27-1 00 provides a clear doctrinal basis for 

development of legal training, organization and materiel; it also defines the six core legal 

disciplines.2 

With the end of the cold war, the development ofthe joint and expeditionary 

mindset, and the introduction ofthe modular force concept, the structure and organization 

of the U.S. Army and the JAGC have changed. Legal support doctrine is now under 

revision to reflect these fundamental changes, and to synchronize it with other Army 

doctrine. 

I U.S. DEP'TOF ARMY, FIELD MANUAL 27-100, LEGAL SUPPORT TO OPERATIONS (1 Mar. 2000) [hereinafter 

FM 27-100]; U.S. DEP'T OF ARMY, REG. 27-10, MILITARY JUSTICE (16 Nov. 2005); U.S. DEP'T OF ARMY, 

REG. 27-20, CLAIMS (8 Feb. 2008); JOINT CHIEFS OF STAFF, JOINT PUB. 1-04, LEGAL SUPPORT TO MILITARY 

OPERATIONS (1 Mar. 2007). 

2 FM 27-100, supra note 1, at 1-1. 

400 
XB. ARMYORGANIZATION (FORCE STRUCTURE) 

XB.l. Staffing the Brigade 

A Brigade JA and a Trial Counsel (TC) staff most brigade combat teams (BCTs). 

The lOlst Airborne Division (Air Assault) (lOlst) reported a brigade assigned a single 

JA was only able to sustain itse1fbecause it was co-located at Logistic Support Area 

(LSA) Anaconda with numerous other units from which to draw support. The 101 st 

viewed this situation as unsatisfactory and suggested assigning at least three JAs to BCTs 

whenever possible:3 

Augmenting a deployed [BCT legal team] with at least one additional JA when 

conducting counterinsurgency operations is optimal. The [BCT legal team] from 

the lBCT initially deployed with the two attorneys on their modified table of 

equipment (MTOE). Three months into the deployment, the lBCT [legal team] 

was augmented with two additional Reserve attorneys. Their presence allowed 

for an expanded Rule of Law mission and more extensive training of [Iraqi 

security forces]. The presence of the two additional JAs also enabled the [BCT 

legal team] to provide legal assistance to Soldiers without conflicting out the 

[Brigade JA] or the TC. .,. Optimally each BCT should deploy with no fewer 

than three JAs. At this stage in OIF and OEF, the additional manpower is 

necessary given the legally intensive counterinsurgency operations as well as the 

stability and support mission.4 

The 1st Cavalry Division (lCD) recommended the division prepare to backfill the BCT 

JA or TC when absent for leave or any other purpose: 

In combat, especially a counterinsurgency, the amount of legal issues is 

staggering: Targeting, ROE, other operational legal reviews, 15-6 investigations, 

Fiscal reviews, Detention Operations, Military Justice actions, and more. The 

maneuver Brigades have an extremely difficult time accomplish all required tasks 

without two attorneys, even for three weeks while one Judge Advocate is on 

leave.... At the beginning of the deployment, track the EML [environmental 

and morale leave] schedules for every Judge Advocate at the Division and the 

Brigades. Determine how to cover the Brigades and provide notice to the Judge 

Advocate who will cover the Brigade and their Division Chief. Also it is best to 

send the same Judge Advocate from the Division to the Brigade for both the 

Brigade Judge Advocate's and the Trial Counsel's EML. The Division HQ can 

mitigate the loss of one JA for three weeks better than the Brigades. If a Brigade 

already has three Judge Advocates, no Division coverage is required.s 

3 lOlst Airborne Division (Air Assault), Office of the Staff Judge Advocate, Operation IRAQI FREEDOM 

05-07 After Action Report, November 2005 - November 2006) 94-95(2006) [hereinafter lOlst ABN DIY 

2007 OIF AAR]. 

4 Id. 

51st Cavalry Division, Office ofthe StaffJudge Advocate, After-Action Review, Operation IRAQI 

FREEDOM, November 2006 - December 20073 (20 Nov. 2007) [hereinafter lCD 2007 OIF AAR]. The 

3d Infantry Division (Mechanized) (3ID) ID OSJA also reported routinely pushing out its staff to cover 

personnel shortfalls at the brigades. In addition to assisting the brigade, it helped division legal personnel 

401 
In the deployed environment, the distance between forward operating bases 

(FOBs) often made it difficult for the Brigade JA and Senior Paralegal NCO (Paralegal 

NCOIC) to maintain visibility over legal actions in outlying subordinate units. However, 

implementation of the modular force structure increased their ability to do so by 

assigning a paralegal at the battalion level. Nonetheless, the "plug and play" concept 

does not work as well with the battalion paralegal until he or she has the training to 

operate independently. It is the Brigade Paralegal NCOle's responsibility to prepare 

battalion paralegals to spot developing legal issues, and to continue the professional 

development of his or her Soldiers. 

XB.2. Staffing the Joint Command 

Some deployed legal offices, such as Multi-National Force - Iraq (MNF-I), MultiNational Corps - Iraq (MNC-I), Task Force 134 (TF134), and the Combined Joint Task 

Force (CJTF) in Afghanistan, are staffed based on a joint manning document (JMD).6 

The JMDs for these headquarters determines which service is responsible for filling each 

position. A corps OSJA preparing to deploy to MNC-I should review the JMD to 

determine which positions other services will fill by before assigning his or her own staff 

to the others. In addition, OSJA personnel should be aware that, in some cases, the 

service responsible for filling a position will not do so in an overlapping fashion (i.e., the 

incumbent may depart before a replacement arrives).? Task Force 134 legal personnel 

reported their JMD underwent review in March, with changes taking effect in October, at 

the beginning of the fiscal year. Where legal responsibilities increased (for example, due 

to increased numbers of detainees), it was necessary to request adding additional 

positions to the JMD. 8 

XB.3. Staffing the Rear Detachment 

During deployments in support of OEF and OIF, legal teams have routinely 

recommended rear detachment operations receive priority when preparing to deploy. The 

III Corps OSJA prepared a staff analysis to determine the minimum number of persons ­

including officers, legal administrators, paralegals, and civilians - required to maintain 

to gain a better understanding of their operations. 3d Infantry Division (Mechanized), Office of the Staff 

Judge Advocate, After Action Review, Operation IRAQI FREEDOM, March 2007 - June 2008 3I (2008) 

[hereinafter 31D 2008 OIF AAR]. 

6 See, e.g., Chief Warrant Officer 2 Stephen 1. Mislan, Legal Administrator, Office of the Staff Judge 

Advocate, Combined Joint Task Force 76, After Action Report, Operation ENDURING FREEDOM, 18 

January 2006 - 13 December 20062 (5 Dec. 2006) [hereinafter Mislan 2006 OEF AAR] (reporting that the 

JMD controlled CJTF-76 manning, rather than the MTOE and TDA, and that there were meetings to 

coordinate what slots needed to be on the JMD for the next unit). 

7 Chief Warrant Officer 2 Edwin E. Diaz, Legal Administrator, Office of the Staff Judge Advocate, MultiNational Force - Iraq, After Action Report, Operation IRAQI FREEDOM, 12 June 2005 - 12 June 2006 2 

(26 July 2007) [hereinafter Diaz 2007 OIF AAR]. 

8 Chief Warrant Officer 4 Edward A. Peterson, Legal Administrator, Office of the Staff Judge Advocate, 

Task Force 134, After Action Report, Operation IRAQI FREEDOM, 18 June 2005 - 11 June 2006 3, 6 (13 

Sept. 2006) [hereinafter Peterson 2006 OIF AAR]. 

402 
rear operations. Such an analysis assists the OSJA in deciding whether to request reserve 

component (RC) legal assets to backfill garrison operations. From this baseline, they 

prepared a memorandum to Forces Command (FORSCOM) identifying rear operational 

needs. This was separate from their request for RC legal personnel to fill the JMD for the 

OSJA, Combined Joint Task Force 7 (CJTF-7).9 Legal offices that request RC personnel 

have sometimes found this to be a long process. For example, the V Corps OSJA began 

requesting RC personnel in December 2002, but the first RC legal assets began to arrive 

only in May 2003. 10 Once identification ofRC assets occurs, the OSJA must prepare for 

their arrival just as for any incoming personnel (e.g., appoint a sponsor to ensure a 

smooth transition into the office). I I 

Many legal teams recommended the OSJA leave behind experienced personnel to 

assist the new OSJA leadership. The 4th Infantry Division (4ID) OSJA, for example, left 

behind an experienced major to take care ofpending legal actions. 12 Not only can these 

individuals provide invaluable institutional knowledge to the new OSJA leadership, but 

they also should act as a conduit between the new leadership and family members who 

may be unfamiliar with new personnel. 

In addition, if RC personnel are to backfill garrison operations, they should have a 

habitual training relationship with their active component counterparts. I3 These RC 

personnel must learn office systems, including case management systems, and become 

comfortable with them before the deployment. 14 Moreover, OSJAs should strive to adopt 

the rear detachment structure as early as possible so the leadership can answer questions 

9 The purpose of this memorandum was to give as much advance notice as possible to FORSCOM and the 

Personnel, Planning, and Training Office, OTJAG, that they would require Reserve augmentation to 

perform rear operations; it also served notice that requirements could change once the JMD was complete. 

10 Major Juan A. Pyfrom, Transcript ofAfter Action Review Conference, Office of the Staff Judge 

Advocate, V Corps, and Center for Law & Military Operations, Heidelberg, F.R.G. 21 (17-19 May 2004) 

[hereinafter V Corps 2004 OIF AAR Conference Transcript]. See also Lieutenant Colonel Richard C. 

Gross, Deputy Staff Judge Advocate, V Corp, After Action Review Conference, Office ofthe Staff Judge 

Advocate, V Corps, notes (17-19 May 2004) (commenting that the RC legal personnel who assisted the V 

Corps garrison legal offices through contingency temporary tours of active duty (COTTDADs) were 

invaluable). The 101st OSJA reported a continuing problem with mobilizing RC personnel is that the 

procedures for calling them up "are not published or otherwise clearly defined". 101st ABN DIV 2007 OIF 

AAR, supra note 3, at 96-97. 

11 See, e.g., After Action Review Conference (Rear Detachment Legal Operations Notes), Office of the 

Staff Judge Advocate, 1st Armored Division, and Center for Law & Military Operations, in Wiesbaden, 

F.R.G. (13-14 Dec. 2004) [hereinafter lAD 2004 OIF AAR Conference] (noting that once identification of 

RC personnel occurred, a the unit appointed a sponsor and forwarded a welcome packet to them). 

12 After Action Review Conference, Office ofthe Staff Judge Advocate, 4th Infantry Division (Task Force 

Ironhorse), and Center for Law & Military Operations, in Ft. Hood, Tx. 1 (8 Sept. 2004) [hereinafter 4ID 

2004 OIF AAR Conference]. 

13 See, e.g., id.; Operation IRAQI FREEDOM After Action Review, Office ofthe Staff Judge Advocate, 

1Olst Airborne Division (Air Assault) 4 (24 Sept. 2004) [hereinafter 101st ABN DIV 2004 OIF AAR]. 

14 10 1st ABN DIV 2004 OIF AAR, supra note 13 (the number of cases and actions actually increased after 

the division deployed, including 1,000 personnel claims the deployed claims office sent to the rear for 

processing). 

403 
and assist while new personnel are settling into their positions. For example, the 1st 

Infantry Division (lID) OSJA recommended the SJA take the rear detachment SJA to 

appointments with the commanding general (CG) to observe the relationship and manner 

of presenting actions to the convening authority. Moreover, the deputy SJA and other 

branch chiefs must ensure personnel assuming their duties meet the primary staff 

members and commanders whom they will support. 15 The stay-behind aSJA leadership 

must also receive training on staff processes because some units reported that once 

personnel deployed, rear detachments suffered a breakdown in these (e.g., various staff 

sections took actions directly to the CG without coordination with other staff sections, 

including the OSJA).16 

To ensure proper leadership in the garrison office, the active component 

leadership should consider integrating RC leaders into the rating chain for all legal 

personnel at home station - both active duty and reserve. This will facilitate a clear chain 

of command and ensure the unmistakable establishment ofthe reserve OSJA leadership. I? 

Once deployed, OSJAs reported they routinely consulted and coordinated with 

their rear detachments. For example, Soldiers who missed movement still had to travel 

downrange; injured personnel underwent medical evacuation and then redeployed in 

some instances; witnesses at home station courts-martial had to go back for trial; and 

separations in lieu of courts-martial had to return to home station for further processing. 18 

All of these cases required extensive coordination with the garrison OSJA. Legal teams 

also reported it was imperative for deployed OSJAs to keep the garrison office informed 

of servicemember redeployments. Garrison offices could then ensure family members 

received notification of Soldier arrivals, and that an OSJA representative could meet 

returning Soldiers. 19 

Given the above, SJAs learned they must leave behind a robust legal office to 

assist the forward deployed legal team and handle myriad rear detachment legal issues. 

This may be a particular problem for reserve organizations and headquarters without the 

staff to support numerous activated RC personnel. 

15 Office of the Staff Judge Advocate, 1st Infantry Division, After Action Report Iraq (Mar/AprlMay) 

5 (May 2004) [hereinafter lID First Quarter 2004 OIF AAR]. 

16 See CENTER FOR LAW & MILITARY OPERATIONS, LEGAL LESSONS LEARNED FROM AFGHANISTAN AND 

IRAQ, VOLUME II: FULL SPECTRUM OPERATIONS (2 May 2003 - 30 June 2004) 272-74 (l Sept. 2005) 

[hereinafter OEF/OIF LL, Vol. II]. 

17 IOlst ABN DIV 2004 OIF AAR, supra note 13. 

18 Id.; lID First Quarter 2004 OIF AAR, supra note 15. 

19 For example, lAD learned they would extend in theater for three months beyond their original twelvemonth deployment. Several lAD OSJA personnel were already back at home station when the notification 

occurred and had to return from leave to return to Iraq. Moreover, the garrison legal office took on the task 

of calling all lAD legal personnel family members and informing them ofthe extension so they would not 

have to hear it through rumor or from the media. 

404 
xc.	 TRAINING, MILITARYDECISION-MAKING 

PROCESS (MDMP), & READINESS 

xc.I.	 Pre-Deployment Training 

According to Army doctrine, the SJA, in conjunction with the Deputy SJA, Chief 

Paralegal NCO (CPNCO), and Legal Administrator, trains OSJA personnel for 

deployment.2o In today's operational environment, all legal personnel must be trained 

Soldiers and Marines, possessing acute situational awareness and the basic military skills 

and training to react and counteract during an attack. 

This training begins with a comprehensive home station training program, 

including legal matters, staff operations, and military skills. Legal personnel have often 

commented JAs and paralegals should train together rather than having separate training 

programs. Additionally, all personnel should participate in pre-deployment training and 

preparation, even ifnot initially planning to deploy.21 Many times, OSJAs have had to 

bring legal personnel into theater to replace personnel who had to leave, or because of 

increased mission requirements. Obtaining replacements or additional personnel goes 

more smoothly when pre-deployment training is already complete.22 

Military skills training should include combat lifesaving skills, map reading and 

land navigation, convoy operations, single channel ground and air radio system 

(SINCGARS) communication, reading a signal operating instruction (SOl), weapon 

proficiency, and driving and performing preventive maintenance on a high-mobility 

multipurpose wheeled vehicle (HMMWV) and other military vehicles.23 In some cases, 

20 FM 27-100, supra note 1, para. 5.7 (1 Mar. 2000); SeeINT'L & OPERATIONAL LAW DEP'T, THE JUDGE 

ADVOCATE GENERAL'S LEGAL CENTER & SCHOOL, U.S. ARMY, JA 422, OPERATIONAL LAW HANDBOOK 

628-32 (2008) [hereinafter OPLAW HANDBOOK 2008] (describing deployment training and preparations). 

21 All personnel should complete training (many had to move into theater later for mission requirements or 

to replace personnel who had to leave). 10th Mountain Division (Light Infantry), Office of the Staff Judge 

Advocate, After Action Report, Operation ENDURING FREEDOM, February 2006 - February 2007 4 

(2007) [hereinafter 10th MTN DIV 2007 OEF AAR]. Ifpossib1e, key training tasks should occur well in 

advance so legal assistance personnel, for example, are able to schedule client appointments around their 

training commitments. When this was not done, legal assistance personnel ended up completing training in 

significant areas, such as weapons qualification, within thirty days of deployment. 101 st ABN DIV 2007 

OIF AAR, supra note 3, at85. 

22 See CENTER FOR LAW & MILITARY OPERATIONS, LEGAL LESSONS LEARNED FROM AFGHANISTAN AND 

IRAQ, VOLUME I: MAJOR COMBAT OPERATIONS (11 September 2001 - 1 May 2003) 260-61 (1 Aug. 2004) 

[hereinafter OEF/OIF LL, Vol. I]; CENTER FOR LAW & MILITARY OPERATIONS, LAW AND MILITARY 

OPERATIONS IN Kosovo, 1999-2001: LESSONS LEARNED FOR JUDGE ADVOCATES 172 (15 December 

2001); CENTER FOR LAW & MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS IN HAITI, 1994-1995: 

LESSONS LEARNED FOR JUDGE ADVOCATES 166-67 (11 Dec. 1995); CENTER FOR LAW & MILITARY 

OPERATIONS, LAW AND MILITARY OPERATIONS IN THE BALKANS, 1995 -1998: LESSONS LEARNED FOR 

JUDGE ADVOCATES 184 (13 Nov. 1998); CENTER FOR LAW & MILITARY OPERATIONS, LAW AND MILITARY 

OPERATIONS IN CENTRAL AMERICA: HURRICANE MITCH RELIEF EFFORTS, 1998-1999: LESSONS LEARNED 

FORJUDGEADVOCATES 138-39 (15 September 2000). 

23 Colonel William A. Hudson, Staff Judge Advocate, 3d Infantry Division, stated: 

405 
the operational environment required training legal personnel on crew-served weapon 

systems, such as the 50-caliber machine gun. As well, they needed training on how to 

react to direct fire, carry out basic squad movements and tactics, and build a fighting 

position?4 Moreover, advanced tactics training was necessary for forward deployed legal 

personnel (and later for legal teams involved in reconstruction). Paralegals sometimes 

had to clear and secure buildings, pull security for convoys on the move, and deal with 

civilians in combat situations.25 Recent after action reports (AARs) continue to 

emphasize the importance ofweapons training, particularly in an urban combat 

environment.26 When legal personnel were not sufficiently familiar with their weapons, 

the prospect of negligent discharges was a concern. 27 

Both JAs and paralegals have routinely commented that legal teams require 

military drivers' licenses that enable them to drive HMMWVs and other office military 

vehicles.28 All legal personnel assigned to the V Corps tactical operations center, for 

instance, had to have licenses to take turns driving the HMMWV while on the move. 29 

The 101st took this a step further: two OSJA NCOs received certification as master 

HMMWV drivers, allowing them to train OSJA personnel. As a result, almost all 

personnel obtained military driver's licenses before deployment, meaning that anyone 

needing transport could sign out a vehicle and transport themselves, freeing up enlisted 

personnel and saving coordination time. 3o 

[I]1's amazing that the reason the JAG was so swift pulling out ofthe courthouse and 

going to Baghdad is the fact that they knew how to drive, they didn't screw around and 

they did it and did it right. The convoy operation was key. In the convoy up and the 

convoy back, we didn't have any breakdowns ofvehic1es in the JAG. I think that's a 

testament to how we took care of our own .... 

OEF/OIF LL, Vol. I, supra note 22, at 262. 

24 See Captain Chester 1. Gregg, Judge Advocate, 2d Brigade, 3d Infantry Division, AAR Comments 

Operations DESERT SPRING/IRAQI FREEDOM (25 Apr. 2003). 

25 See, e.g., id.; OEF/OIF LL, Vol. I, supra note 22, at 262. 

26 101st ABN DlV 2007 OIF AAR, supra note 3, at 85. 

27 10th MTN DlV 2007 OEF AAR, supra note 21, at 3-4. "For example, after a mission outside the wire 

and returning back onto the FOB, some officers did not look comfortable when clearing their individual 

weapon. Negligent discharges were a huge concern and greater training would have provided a higher 

level of comfort." Id. at 3. 

28Id. at 4 (suggesting that all paralegals and at least a few JAs should have a military driver's license to go 

along with their civilian licenses). 

29 See, e.g., Memorandum, Major Daniel G. Jordan, V Corps Tactical Operational Center Judge Advocate, 

to Acting Deputy Staff Judge Advocate, Headquarters, V Corps, subject: OIF AAR Comment Input, para. 

3(c) (28 Apr. 2004); Memorandum, Captain Noah V. Malgeri, Current Operations Cell, Office ofthe Staff 

Judge Advocate, V Corps, to Colonel Marc Warren, Staff Judge Advocate, V Corps, subject: OSJA After 

Action Review, Operation IRAQI FREEDOM, para. 7 (15 May 2004) ("All members should have a 

HMMWV license: The long convoy necessitated maximum use of different drivers and T/Cs."). 

30 101st ABN DlV 2007 OIF AAR, supra note 3, at 84. The 101st OSJA designated an NCO as the point of 

contact for tracking OSJA personnel required to travel outside the wire. Id. at 96. A Legal Administrator 

assigned to Combined Security Transition Command - Afghanistan (CSTC-A) also had travel-related 

duties. He was responsible for ensuring personnel followed convoy procedures, and briefed personnel on 

406 
The pre-deployment training program must also include planning sessions during 

which the entire office participates in packing and load planning.3

! All legal personnel 

should know what equipment the OSJA has and what equipment and supplies are 

necessary to conduct twenty-four-hour operations in a deployed environment. This is 

especially important if a small number oflegal personnel are deploying separately and 

may otherwise be unaware oftheir equipment and supply needs.32 In addition, OSJAs 

should ensure the packing, storing, and moving together oftheir SIPRNet laptops so they 

do not waste time trying to locate them once personnel arrive in theater.33 

Senior trainers need to go beyond common task training (CTT) to train for combat 

operations. For updates based on current operations to aid in developing effective 

training for OSJA personnel, trainers should seek advice from Combat Training Center 

(CTC) legal personnel, contact the Center for Law and Military Operations (CLAMO) for 

the latest legal lessons learned, and check the Center for Army Lessons Learned (CALL) 

website for updates on Army-wide lessons learned. 

Paralegal NCOs and their Marine Corps counterparts continue to perform many 

operational law (OPLAW) tasks: they brief troops on the law ofwar (LOW), Code of 

Conduct, and rules of engagement (ROE), and help JAs to support twenty-four-hour 

operations, targeting boards, and overlapping meetings. They can also provide 

supplemental insight and spot potential legal issues while staffing tactical operations 

centers (TOCs). It is therefore important for these NCOs to receive OPLAW training. 

This could include home station NCO professional development classes and courses at 

The Judge Advocate General's Legal Center and School (TJAGLCS), such as the 

what to do in case of attack. Chief Warrant Officer 2 Timothy M. Robinson, Legal Administrator, Office 

ofthe Staff Judge Advocate, Combined Forces Command - Afghanistan & Combined Security Transition 

Command - Afghanistan, After Action Report, Operation ENDURING FREEDOM,S April 2006 - 3 April 

2007 2 (31 May 2007). 

31 See, e.g., V Corps 2004 OIF AAR Conference Transcript, supra note 10; Major Robert F. Resnick, 

Chief, Criminal Law, Office of the Staff Judge Advocate, 3d Infantry Division, After Action Review, 

Operation IRAQI FREEDOM I (25 Apr. 2003). 

32 See, e.g., Corporal Brandi M. Ferguson, Office of the Staff Judge Advocate, 3d Infantry Division, 

Operation IRAQI FREEDOM After Action Review (30 Apr. 2003) [hereinafter Ferguson OIF AAR] 

(recommending that everyone pack all of the items on the mandatory packing lists). 

33 OEF/OIF LL, Vol. I, supra note 22, at 262. The 101st OSJA ADVON party hand-carried two "tough 

boxes" of critical equipment to Iraq, including several SIPRNet hard drives, USB thumb drives, and a 

digital sender. All personnel hand-carried their own NIPRNet laptops. As well, OSJAs may wish to ensure 

that some excess storage space is left in the MILVAN containers prior to shipment from home station, as 

having space to store spare equipment and supplies, given the limited space in theater, is a valuable asset. 

101st ABN DIV 2007 OIF AAR, supra note 3, at 87; Chief Warrant Officer 3 Craig 1. Sumner, Legal 

Administrator, Office ofthe Staff Judge Advocate, 101st Airborne Division (Air Assault), After Action 

Report, Operation IRAQI FREEDOM, 8 September 2005 - 1 May 2006 4 (29 Nov. 2006) [hereinafter 

Sumner 2006 OIF AAR]. 

407 
OPLAWand LOW short courses.

34 Moreover, when the MTOE authorizes it, SlAs 

should send eligible NCOs to the battle staff course at Fort Bliss whenever possible. 35 

Combat Training Centers (CTCs) 

Units must prepare in the six core legal disciplines before arrival at a combat 

training center (CTC). The CTCs attempt to replicate deployment conditions, allowing a 

unit to spot its shortcomings and enhance its performance during the rotation or at its 

completion. Units that arrive at a CTC expecting an instructional setting will experience 

a rude awakening. 36 Judge Advocates and enlisted paralegals routinely assessed their 

time at a CTC as a vital training experience.3

? One JA advised that, if the unit plan calls 

for one paralegal to go, four should go for the experience?8 The same is true for JAs. 

Time at the CTC with the brigade also assists legal personnel in establishing a 

relationship with the commander and staff, which may prove invaluable when requesting 

equipment, supplies, and other support during deployments. 39 

XC.2. Military Decision-Making Process (MDMP) 

Legal personnel must understand staff operations, including the military decisionmaking process (MDMP). Legal teams also need to become familiar as soon as possible 

with the operation order (OPORD) that will guide their mission, as doing so will assist in 

their planning and pre-deployment training. Moreover, many OSJAs have drafted their 

own fragmentary orders (FRAGOs), which required personnel to learn the proper format, 

as well as how to staff them. 40 

34 The Judge Advocate General's Legal Center & School (TJAGLCS) website is located at 

www.jagcnet.army.mil. and provides ATRRS information and course dates. 

35 The duty MOS on the MTOE will reflect a 2S identifier for a Battle StaffNCO authorized position. The 

U.S. Army Sergeants Major Academy at Fort Bliss, TX provides the Battle Staff NCO course, 

(https://www.bliss.army.mil/usasma/usasma.asp). and is also available via teleconference. 

36 See OPLAW HANDBOOK 2008, supra note 20, at 622-28 (description ofwhat to expect at each CTC); 

Center for Law & Military Operations (CLAMO), Legal Team Trends at the Combat Training Centers, 

ARMY LAW., Feb. 2005,14; Center for Law & Military Operations (CLAMO), National Training Center 

Transformation and Change -A Primer for Brigade Operational Law Teams, ARMY LAW., Aug. 2005,48. 

37 See, e.g., Ferguson OIF AAR, supra note 32 ("[t]he War Fighting Exercises were a great way in which to 

train servicemembers for a possible CombatIHostile situation."). 

38 Interview with Captain Pat Parson, Judge Advocate, 2d Armored Cavalry Regiment, by Lieutenant 

Colonel Judith Robinson, OIF Study Group Collector, Center for Army Lessons Learned, in Baghdad, Iraq 

(14 May 2003). 

39 See, e.g., Major Jeff A. Bovarnick, Chief, Operational Law, CJTF-180, CJTF-180 Notes from the 

Combat Zone 1 (2003) ("pre-deployment training and preparation for the specific deployment is essential. 

Schoolhouse and exercise training give you the fundamental tools to work with, but situational awareness 

ofthe operation and staff integration are the final keys to success for Judge Advocates and paralegals."). 

40 See, e.g., Memorandum, Captain Noah V. Malgeri, Current Operations Cell, Office of the Staff Judge 

Advocate, V Corps, to Colonel Marc Warren, Staff Judge Advocate, V Corps, subject: OSJA After Action 

Review, Operation IRAQI FREEDOM (15 May 2004) (commenting that as a battle captain in the V Corps 

Main Headquarters, he drafted and staffed FRAGOs). More recently, the 31D OSJA advised that: 

408 
The legal annex to the operations order remains one of the most important 

documents produced by the OSJA, and experience has demonstrated the importance of 

including every possible detail in it. For example, a battalion commander will be hard 

pressed to demand the return of the paralegal assigned to his battalion (usually for use in 

performing routine administrative duties) ifthe division operations order states in the 

legal annex that all legal assets will be utilized in a consolidated brigade legal center. 

Included below is an extract from a sample legal annex: 

GENERAL GUIDANCE: In conducting military operations, military 

commanders must remain aware ofthe obligations and limitations placed upon 

them by customary and conventional international law as well as domestic law. 

Commanders should seek and incorporate legal guidance in allphases ofthe 

planning and execution ofthis operation. 41 

X C.3. Coordinating the Transfer ofAuthority (TOA) 

Conduct a deliberate, systematic reliefwith the unit that you replace. Demand 

an accurate and complete accounting ofall their "due outs" to higher 

headquarters and to local claimants. . .. Get into the weeds ofthe files and 

SOPs [standard operating procedures} for the unit replaced Plan the agenda 

for the battle hand-offbefore you get there. 42 

As legal offices approached their redeployment dates, and the selection of new 

legal teams to replace them occurred, it was imperative for deploying legal personnel to 

begin coordinating the transfer ofthe legal mission as soon as possible. The III Corps 

OSJA attempted to establish a good communications link with the Combined Joint Task 

Force 7 (CJTF-7) OSJA they would replace in Iraq. They also found it was important to 

include a JA representative on the unit's pre-deployment site survey (PDSS). Having a 

JA visit the redeploying legal team is critical in gaining information to effect a wellorganized transition: for example, it allows JAs to get read-in on all pending legal 

Operational law attorneys serve as the primary liaisons between the OSJA and other 

division staff sections. Specifically, operational law attorneys are heavily involved in the 

G-5 plans section. The G-5 planners rely on operational law attorneys to submit the 

appropriate information in the proper format for Division planning efforts. These 

planning efforts include campaign plans, named operations, and significant FRAGOs. 

Further, by attending G-5 planners meetings, operational law attorneys can keep the 

OSJA abreast of current and upcoming issues across the division staff. A comprehensive 

understanding of the Division's future focus assists the OSJA in understanding its client 

and predicting future legal issues and obstacles. Involvement at the planning stage gives 

lawyers the opportunity to shape COAs before they are adopted by the commander rather 

than reacting to current command decisions. .,. Operational law attorneys should 

receive military decision making process (MDMP) training prior to deployment. Having 

a basic understanding of the planning process is critical to an operational law attorney's 

ability to generate the appropriate products in the proper format for the G-5. 

3ID 2008 OIF AAR, supra note 5, at 316. 

41 OPLAWHANDBOOK 2008, supra note 20, at 612-19 (containing samples of legal appendices). 

42 See OEF/OIF LL, Vol. II, supra note 16, at 274. 

409 
actions and understand the Uniform Code ofMilitary Justice (UCMJ) jurisdictional
 

alignment. If a JA is unable to travel into theater on the PDSS, the legal team should
 

seek other means of getting a JA there.
 

One OSJA commented coordination with the legal team in theater enabled them 

to tailor their pre-deployment training schedule to their specific mission. Legal personnel 

who already have Secret clearances should set up SIPRNet accounts at least four months 

before deployment, so they can become familiar with key SIPRNet websites and establish 

communications with counterparts in theater.43 This is easier if, as recommended by the 

lCD OSJA, SJAs determine the responsibilities oftheir legal personnel at the earliest 

possible moment in the pre-deployment phase: 

Mission Readiness Exercises, Command Post Exercises, and training center 

rotations (National Training Center (NTC) and Joint Readiness Training Center 

(JRTC) are usually held four to six months prior to the deployment. This 

training, working in the specific job, and being able to coordinate with the 

person's counterpart prior to deploying is critical to being prepared.... Create a 

master plan regarding the deployed positions of your personnel, and at least six 

months prior to the deployment, assign each Judge Advocate and Paralegal in 

that position, if possible. This allows Judge Advocates and Paralegals to work in 

their positions during exercises, training rotations, and gives them opportunities 

to coordinate with officers and enlisted from other staff sections. This effort 

considerably prepares them for deployment especially the operational law and 

detention operations personnel. Moreover, performing their deployed job prior to 

deployment allows them time to coordinate with their counterpart in Iraq to 

understand the current mission and issues. 44 

Legal team leaders must also ensure transfer of all database information to 

incoming personnel. As one legal office discovered, "[h]andover of database materials is 

just, if not more, crucial as face-to-face RIP [relief in place] activities.,,45 

Legal offices that receive notice of the attachment of other units to their command 

should immediately contact legal personnel assigned to those units to integrate them into 

the legal team. Pre-deployment training at those attached units should mirror the OSJA's 

training schedule.46 Moreover, OSJAs should review an attached unit's legal SOPs, 

43 1CD 2007 OIF AAR, supra note 5, at 10; 101st ABN DIV 2007 OIF AAR, supra note 3, at 86-87 

(suggesting incoming personnel may wish to request inclusion on distribution lists). 

44 1CD 2007 OIF AAR, supra note 5, at 1. 

45 OEF/OIF LL, Vol. II, supra note 16, at 275. 

46 See, e.g., After Action Report, Operation IRAQI FREEDOM, 3d Infantry Division (Mechanized) 282-83 

(2003) (noting that the 3ID SJA and CPNCO must make TDY trips to the Fort Benning legal office to 

ensure integration of the legal team into Fort Stewart's OSJA). 

410 
reporting requirements, and unit training, including ROE training, for compliance with 

command standards.47 

As well, the 3d Infantry Division (Mechanized) (3ID) OSJA noted brigade legal 

teams do not necessarily receive from their S-6 sections the required computers, printers, 

and digital senders. The OSJA suggested division personnel monitor the situation in 

order to assist if necessary: "The OSJA usually has the ability and means to request 

additional automation support to hand receipt to the brigades. Work the situation hard to 

obtain [BCT legal team] equipment prior to deployment.,,48 

Where possible, before deployment, legal personnel should obtain a roster of 

higher headquarters and subordinate unit OSJA members and schedule a meeting, either 

in person or through video-teleconference (VTC).49 This will facilitate coordination 

among legal technical channels once deployed into theater. Ifthis is not possible, both 

Army and Marine Corps legal teams reported it was imperative to establish contact with 

higher headquarters legal personnel immediately upon deployment. On many occasions, 

legal personnel were able to contact their counterparts to seek opinions and perspectives, 

and thus, in some cases, obtain answers to legal issues already considered by other 

units. 50 

Integrate Reserve Component (RC) Legal Personnel 

Since the beginning ofOEF and OIF, OSJAs have deployed in their entirety, 

leaving few active duty members to support garrison operations. This has, in tum, led to 

U.S. Army Reserve (USAR) legal personnel playing a vital role in maintaining garrison 

operations. In addition, many USAR and Army National Guard (ARNG) legal personnel 

have mobilized and deployed to both Afghanistan and Iraq. Ultimately, the training they 

received at their units, the CTCs, and during yearly rotations at sponsoring active duty 

OSJAs that prepared them for their legal missions and allowed a smooth transition when 

. d 1 . 51 It came to ep oyment operatIOns. 

Active duty legal personnel must continue to foster a habitual relationship with 

USAR legal personnel who may backfill the garrison legal office. As well, OIF and OEF 

have proven the need to train USAR legal personnel to perform their mission on an 

individual or collective basis as if they will receive a call to active duty at any time. 

Consequently, it is imperative for active duty OSJAs to integrate their reserve 

47 Interview by Lieutenant Colonel Judith Robinson, OIF Study Group Collector, Center for Army Lessons 

Learned with Lieutenant Colonel Flora D. Darpino, Staff Judge Advocate, 4th Infantry Division, in Tikrit, 

Iraq 2 (May 26, 2003). 

48 3ID 2008 OIF AAR, supra note 5, at 32. 

49 See, e.g., After Action Review Comments - Office of the Staff Judge Advocate, 21st Theater Support 

Command (forward), Operation IRAQI FREEDOM - Republic of Turkey 5 (2003). 

50 See, e.g., Major Stuart Baker, Deputy Group Judge Advocate, 10th Special Forces Group, After Action 

Report, Operation IRAQI FREEDOM 2 (1 Sept. 2003). 

51 OEFIOIF LL, Vol. I, supra note 22, at 258-59. 

411 
counterparts into OSJA training.52 As the former SJA for the lOlst Airborne Division 

noted, the 174th and 139th Legal Support Organizations and the 3397th Garrison Support 

Unit were successful in backfilling departing active duty legal personnel "in large 

measure because they had habitual relationships with the Fort Stewart and Fort Campbell 

SJA Offices.,,53 In addition, USAR legal personnel, especially those at the more senior 

grades, must ensure they are accessible to backfill deploying SJA offices to provide the 

appropriate level of leadership.54 

In addition to USAR legal personnel backfilling deployed OSJA members at 

home station, many RC legal personnel (both USAR and ARNG), deployed to 

Afghanistan and Iraq. Because deployed OSJAs often had no visibility over other legal 

assets in their area of operations (AO), they found it difficult to integrate RC legal 

personnel into their commands. Although OSJAs did their best to attempt to locate these 

JAs and paralegals and make them part of the OSJA team, they were sometimes 

unsuccessfu1.55 Absent a better personnel system that allows SJAs to identify easily legal 

assets assigned or attached to their units, both active and reserve component legal 

personnel who deploy must continue to attempt to locate their counterparts to coordinate 

the legal mission. 

Finally, JAs have noted it is still very difficult to mobilize RC legal personnel for 

active duty. As one SJA reported, "[e]ven when just one service member wanted to 

come, and the Reserve units wanted him to come, and the active units wanted him to 

come, it took individualized monitoring.,,56 The best course of action in such situations 

seems to be to call everyone involved and personally coordinate the mobilization.57 

52 Id. 

53 E-mail from Colonel RichardO. Hatch,formerStaffJudgeAdvocate, 101stAirborneDivision, to
 

Lieutenant Colonel Pamela M. Stahl, Director, Center for Law & Military Operations (19 Apr. 2004).
 

54 OEF/OIF LL, Vol. I, supra note 22, at 258-59.
 

55 I d.
 

56 E-mail fromColoneIPatrickW.Lisowski,StaffJudgeAdvocate, III Corps, to Colonel Christopher M.
 

Maher, Staff Judge Advocate, U.S. Army Forces Command (21 Apr. 2003).
 

57 I d. (The "[m]ost successful course of action was to call everyone involved (which took a long time to
 

figure out) and find out exactly what piece of paper each ofthem needed, and promise beer or first borns.").
 

412 
XD. MATERIEL 

XD.l. Portable Hard Drives & Storage Devices 

Many units continue to use NIPRNet and SIPRNet external drives for backup
 

purposes (and to take files home upon redeployment), and recent OSJA AARs have
 

commented upon the requirement for an increased amount of electronic storage space.
 

For example, 1CD OSJA concluded:
 

This section must deploy with at least a 500 GB external hard drive to back up 

the shared drive/portal and facilitate movement of files at TOA. The section 

must also be prepared to carry paper copies of important investigations to the rear 

... The OSJA must have a secure storage area, preferably a locker, that can hold 

both these paper copies and the external hard drive at home station. Prepare to 

ship these hard copies ofthe investigations in a TAT box that will remain in your 

control upon redeployment. . . . Before the deployment, purchase proper 

equipment for digital backup in theater and storage of classified materials. 

Coordinate with G2 to carry classified hard drives to and from the deployment. 58 

The 101 st OSJA AAR likewise suggested BCTs, to assist in maintaining and 

transferring files in theater, should obtain two external hard drives (300-500 GB), 

designating one as classified and the other as unclassified. In addition, BCT legal 

personnel should acquire an extra hard drive for each laptop and get it imaged on the 

secret domain. 59 Also with respect to BCTs, the 3ID OSJA suggested division legal 

teams check with brigade legal teams once deployed to determine whether they are 

missing required equipment. If so, OSJAs should use resources in theater or at home 

station to satisfy the requirement.60 

The 4ID OSJA also raised the issue of electronic storage, noting that, "[m]emory 

sticks and external hard drives were always in high demand in theater. Before 

deployment, each section received an external hard drive for back up and transfer of 

important data. Additionally, each Soldier received a memory stick, with those 

responsible for SIPR and NIPR data receiving two memory sticks - one for NIPR and 

one for SIPR.,,61 

Legal personnel have long appreciated the convenience of memory sticks (USB 

portable storage devices, also known as "thumb drives"). They allow users to store and 

transport large files on a durable medium with both read and write capability, providing 

58 leD 2007 OIF AAR, supra note 5, at 8. 

59 101st ABN DIV 2007 OIF AAR, supra note 3, at 92. 

60 3ID 2008 OIF AAR, supra note 5, at 32. 

61 4th Infantry Division, Office of the Staff Judge Advocate, After Action Review, Operation IRAQI 

FREEDOM, January 2006 - March 2007) 34 (2007) [hereinafter 4ID 2007 OIF AAR]. 

413 
backups when automation systems fai1. 62 Their small size makes them easy to carry;
 

Soldiers can wear them around the neck or place them in a pocket. Some offices initially 

relied exclusively upon memory sticks to store and transfer data, including classified 

data.63 

However, the very portability of memory sticks has proved to be their undoing, as 

they have been lost or left in pockets of clothing sent for laundering. As a result, some 

units have restricted their use (e.g., requiring obtaining approval before storing classified 

data on them).64 However, where use of memory sticks is permissible, aSJAs may wish 

to provide two to each legal team member, one for SIPRNet and one for NIPRNet. Any 

memory sticks used for classified information requires proper labeling. An aSJA should 

also take the precaution of bringing along some spares.

65 

Those providing automation support may wish to consider normal life cycle 

management replacement. In one case, the Legal Administrator reported the automation 

equipment was about a year past its recommended replacement date when he arrived in 

theater, and within a month, one-third ofthe computers had failed. As a result, he had to 

wipe or replace and reimage hard drives.66 

XD.2. Communications Equipment 

Digital senders allow scanning, transferring to PDP format, and emailing or 

saving for archiving purposes documents. Therefore, they have become an essential part 

of aSJA operations: 

Simply put, digital senders were the most integral component ofIT equipment 

used by the aSIA during the deployment. Due to lack of other equipment, 

digital senders became the de facto copiers, scanners, and fax machines for the 

entire office. That being said, many projects would have been better served had 

full size copiers been available. . .. all separate buildings of the aSIA should 

62 Offices should still use large capacity external hard drives to back up documents on laptops. 101 st ABN 

DIV 2007 OIF AAR, supra note 3, at 88. 

63 Operation IRAQI FREEDOM, After Action Report, Office of the Staff Judge Advocate, 82d Airborne 

Division 5 (2003); OEF/OIF LL, Vol. I, supra note 22, at 277. 

64 10Ist ABN DIV 2007 OIF AAR, supra note 3, at 88. The lOlst also suggested reliance upon an office 

file server rather than individual memory sticks. Ifthis is the case, memory sticks are only necessary for 

those responsible for travelling throughout the area of operations. Jd. An MNF-I Legal Administrator 

reported he disabled the USB ports on the OSJA NIPRNet workstations in order to prevent "spillage" from 

one network to other. Diaz 2007 OIF AAR, supra note 7, at 3. 

65 Chief Warrant Officer 3 Richard L. Flores, Legal Administrator, Office ofthe Staff Judge Advocate, 4th 

Infantry Division, After Action Report, Operation IRAQI FREEDOM, 30 November 2005 - 15 November 

2006 1 (1 Mar. 2007) [hereinafter Flores 2007 OIF AAR]; Sumner 2006 OIF AAR, supra note 33, at 2 

(recommending bringing a number of spares into theater). 

66 Chief Warrant Officer 3 Christopher S. Higdon, Legal Administrator, Office of the Staff Judge Advocate, 

Multi-National Corps - Iraq, After Action Report, Operation IRAQI FREEDOM, 30 December 2005 - 14 

December 2006 1 (22 Mar. 2006) [hereinafter Higdon 2006 OEF AAR]. 

414 
have access to a digital sender. BeTs should also deploy with a digital sender 

and, ifpossible, obtain access to a full size copier.67 

The 4ID OSJA likewise observed that, "High quality Digital Senders were crucial 

in the success of this deployment. Prior to the deployment we identified which Brigade 

Legal Centers had "good access" to digital senders and which did not. Good access was 

defined as being able to use the sender any time for as long as needed. Those that did not 

have access were given digital senders that were purchased prior to deployment.,,68 

The distance between forward operating bases in Iraq meant that work by email 

and digital senders was the norm for many actions.69 A Legal Administrator assessed 

that, with the exception of laptops, digital senders were probably the most used piece of 

OSJA equipment. Personnel used them to move information between BCT legal teams 

and the division, and between deployed division staff and the rear detachment. They also 

served as a way to back up hundreds ofinvestigations and other documents generated in 

theater, reducing or eliminating the need to retain paper copies of them. 70 

The legal personnel who conduct the PDSS should identify the automation the
 

legal office will inherit from the previous rotation. At a minimum, the incoming unit
 

should ensure a digital sender is available wherever they will assign a JA and paralegal.
 

The heat and dust of Iraq and Afghanistan often lead to equipment malfunction. 

Soldiers and Marines assigned to both theaters have therefore found it extremely 

important to develop daily preventive maintenance regimens to perform on their 

automation equipment, just as they would on weapons and vehicles: "Our personnel took 

great care with their equipment, protecting it during travel, servicing often, and vigilantly 

cleaning.,,71 In particular, the sand in both countries is very fine and powdery, and often 

gets inside computers, damaging internal components (hard drives, motherboards, printer 

heads, and disc drives are extremely susceptible). Legal personnel found creative ways 

to deal with the issue, including: 

•	 daily backups; 

•	 Saran Wrap or plastic keyboard covers to protect keyboards from sand and water; 

•	 covering computer vents with commercial home dryer sheets to prevent micro 

particles of sand from getting in and damaging major components; 

•	 canned air and anti-static wipes; 72 and 

67 10 1st ABN DIV 2007 OIF AAR, supra note 3, at 89. 

68 4ID 2007 OIF AAR, supra note 61, at 33. 

69Id. 

70 Chief Warrant Officer 2 Rob Stone, Legal Administrator, Office of the Staff Judge Advocate, 3d Infantry 

Division (Mechanized), After Action Report, Operation IRAQI FREEDOM 2 (2006). 

71 OEF/OIF LL, Vol. I, supra note 22, at 271. 

72 See, e.g., Transcript of After Action Review Conference, Office ofthe Staff Judge Advocate, 3d Infantry 

Division, and Center for Law & Military Operations, at Fort Stewart, Ga. 117 (18-19 Nov. 2003) 

[hereinafter 3ID 2003 OIF AAR Conference Transcript] (comments by CW2 Dorene L. Matheis, Legal 

415 
• shaving brushes to clean exposed parts. 73 

Legal offices should also bring backup capability for mission-essential equipment. For 

example, the 101st aSJA brought two court reporting systems, but had to ship both back 

to home station for repair. 74 

XD.3. Information Management 

Both aSJAs and BCT legal teams have observed a requirement to adopt standard 

tracking, storage, and filing systems. A V Corps JA recommended the legal office SOP 

require saving documents and storing them in a central location on each computer or on a 

network accessible drive. This ensures other aSJA members could easily locate and 

retrieve them when required. The V Corps aSJA also developed a tracking system that 

allowed legal personnel to monitor actions, develop trends, and answer questions from 

higher headquarters. Likewise, BCT legal teams experienced problems maintaining 

accountability over actions and had to develop standard tracking and filing systems.75 In 

such circumstances, legal offices must also ensure there is sufficient file storage space, 

particularly when a mission continues over a long period oftime and section files become 

more voluminous.76 

Many aSJAs also found they needed systems for identifying, consolidating, and 

disseminating important information. In some cases, databases and trackers fulfilled 

some or all of these functions. A Legal Administrator reported he coordinated the 

conversion ofTF134 and Central Criminal Court ofIraq (CCCI) detainee databases with 

several thousand records to an SQL database available on SIPRNet. This minimized the 

risk oflost files, and allowed personnel in different locations to access the files when 

required.77 However, the 101st aSJA commented databases hosted on networks 

sometimes suffered from poor connections and suggested that, if possible, legal offices 

deploy with offline copies of databases able to sync up when a connection to the Legal 

Assistance Army-Wide System (LAAWS) is available or there is better bandwidth.78 

Administrator, 3d Infantry Division). There were many home remedies recommended that did not work, 

including covering the entire computer with Saran Wrap (which caused computers to overheat) and putting 

pantyhose over them (which did not keep the sand out). 

73 Interim Deployment AAR, Task Force Rakkasan Brigade Operational Law Team (11 Mar. 2003); 3ID 

2003 AAR Conference Transcript, supra note 72 (comments by Captain Chester Gregg, Brigade Judge 

Advocate, 2nd Brigade, 3ID, indicating the best thing to keep computers clean was old horse hair shaving 

brushes). 

74 10Ist ABN DIV 2007 OIF AAR, supra note 3, at 88. 

75 See OEF/OIF LL, Vol. I, supra note 22, at 174-75. 

76 See, e.g., After-Action Review: Operational IRAQI FREEDOM, Sergeant Darienne LaVine, NCOIC, 

Military Justice Division, V Corps, para. 4 (undated). 

77 Peterson 2006 OIF AAR, supra note 8, at 2. 

78 101 st ABN DIV 2007 OIF AAR, supra note 3, at 89. 

416 
In general, however, websites significantly enhanced OSJA ability to share
 

relevant information more widely. Many OSJAs had their own section of the unit
 

website where they posted items for general use, such as information papers, important
 

fragmentary orders (FRAGOs), and situational reports (SITREPs). It was therefore
 

necessary to have someone proficient in website management.
 

Offices can use webpages to post information for all users to view, or for OSJA 

personnel only to view. They allow two-way communication between superior and 

subordinate users at different locations. However, the design of the OSJA or BeT 

webpage, as well as the currency ofthe information posted on it, will strongly influence 

its utility. A legal office website requires regular updating. Each section may designate a 

person to post information, but if this is too onerous, one person within the office should 

manage the website (e.g., legal administrator or information management officer ­

IMO).79 Various OSJAs have also commented upon the requirement to monitor websites 

belonging to other organizations (e.g., higher headquarters). As a result, OSJAs may also 

wish to consider designating specific personnel to identify and retrieve pertinent 

information from selected websites. 80 

As a result of the difficulties involved in maintaining situational awareness, even 

in a particular area, several OSJAs reported they published regular updates for their own 

use and that of brigade legal teams. The 3ID OSJA was one such office: 

The MND-C [Multi-National Division - Center] OSJA produced daily OPSUMs. 

The OPSUMs summarized new FRAGOs from MNC-I and MND-C and 

SIGACTs relevant to the MND-C OSJA and [BCT legal teams]. Each OPSUM 

is broken down into three categories. The first category summarizes MNC-I and 

MND-C FRAGOs. The summaries include any tasks or announcements relevant 

to the OSJA or [BCT legal teams]. The second category summarized Major 

SIGACTs. The Major SIGACTs category consisted of CDR MND-C CCIRs and 

other important events that JAs should maintain situational awareness of- even 

if the events do not have direct legal implications. The final category 

summarized Legal SIGACTs. The Legal SIGACTs category consisted of events 

that fell short ofMND-C CCIR standards but still required action by the OSJA 

(e.g., events requiring AR 15-6 investigations). The night shift NCO created an 

OPSUM shell every evening. In the morning, prior to the [battle update brief], 

an operational law attorney reviewed the OPSUM shell and supplemented it with 

any additional details. . .. The night shift NCO should produce an OPSUM shell 

that is reviewed by a JA the following morning and sent out to the OSJA and 

[BCT legal teams]. The OSJA should determine clear criteria and formatting for 

the OPSUM prior to the deployment. The night shift NCO should receive 

guidance on which events constitute Major SIGACTs and Legal SIGACTs. In 

79 V Corps, Office of the Staff Judge Advocate, Operation IRAQI FREEDOM (OIF) After Action Report 

(AAR), 17 January 2006 - 14 December 200630 (2006) [hereinafter V Corps 2006 OIF AAR]. In 

Afghanistan, the 10th MTN DIV OSJA participated in a knowledge management working group, meeting 

weekly to update webpages on NIPRNet and SIPRNet. Some offices also used ISAF and Coalition 

networks for communications with multinational partners. Mislan 2006 OEF AAR, supra note 6, at 2,5. 

80 OEF/OIF LL, Vol. I, supra note 22, at 274-75. 

417 
addition to summarizing tasks established by MNC-I and MND-C via FRAGO, 

the night shift NCO should track legally significant Draft FRAGOs and Division 

RFIs. The OPSUM is also a good means to disseminate information from 

division on current OPLAW issues, helping [BCT legal teams] get ahead of . 81 Issues. 

In the same way, lCD also published regular OPLAW updates. Additionally, the 

night shift paralegal compiled the EXSUM, a daily report sent to the OSJA and brigade 

legal teams highlighting significant actions, spot reports, and relevant FRAGOs posted 

during the previous twenty-four hours. 82 

In some cases, OSJAs also had to become conversant with new information
 

management software in order to obtain or produce material:
 

Though not initially familiar to all personnel in the OSJA, IDMT [information 

dissemination management tactical (web service)] was an efficient method of 

disseminating information and a convenient resource for conducting legal 

research. Sample forms, information papers, SOPs, sample claims cards, 

reference materials, sample memoranda and various forms were all easily 

accessible on IDMT to anyone with SIPR access. As OSJA personnel became 

more familiar with IDMT, more time was saved for completing other tasks. '" 

IDMT should be used to the fullest extent possible. Personnel should be trained 

prior to deployment on how to efficiently navigate IDMT and how to update and 

upload documents to IDMT. 83 

With many sections and a multitude of automation and telecommunications 

systems, including key command and control (C2) systems for commanders, it was an 

extremely difficult job for a unit G-6 or Director of Information Management (DOIM) to 

maintain the unit's key automation and telecommunications systems during combat 

operations. Unfortunately, when OSJA systems went down, they were often not a high 

priority for automation work orders and communication issues. Legal Administrators 

continue to report the expectation they are responsible for virtually all information 

management support to OSJAS. 84 

81 3ID 2008 OIF AAR, supra note 5, at 17. 

82 lCD 2007 OIF AAR, supra note 5, app. 9. The WIst OPLAW attorneys also published a daily SJA 

OPSUM on the SJA website, and found this worked well as a method of sharing information with all legal 

personnel assigned to the division's area of operations. The OSJA also produced trackers for escalation of 

force incident and law of war violations, and recommended production and distribution of such products if 

not already disseminated by another section (e.g., the G-3 maintained an index of all FRAGOs, including 

those oflegal significance). WIst ABN DIV 2007 OIF AAR, supra note 3, at26. 

83 WIst ABN DIV 2007 OIF AAR, supra note 3, at29 (noting OPLAW section personnel should, within 

twenty-four hours of receiving an investigation summary, provide corrected or updated information to the 

battle captain for entry into IDMT to ensure accurate reporting of SIGACTs). 

84 The 4ID OSJA AAR recommended Legal Administrators "[b]rush up on automation skills because the 

only thing G6 had responsibility for was imaging computers. Changing hard drives, making RJ-45 cables, 

and software problems were all up to the Information Management Officers within the sections." 4ID 2007 

OIF AAR, supra note 61, at 34. 

418 
Legal personnel should consider the implications of G-6 personnel working on
 

some JAGC software applications. Doing so may compromise attorney-client
 

confidentiality because these programs allow the viewing of legal documents, such as
 

client cards. An OSJA should require G-6 or DOIM personnel who have access to
 

confidential attorney-client information to sign confidentiality and non-disclosure
 

agreements. 85
 

In view of the volume of electronic and paper files generated or received by a 

legal office during a long deployment, some AARs have touched upon the requirement to 

consider and put in place an SOP dealing with their disposition upon return to home 

station. The modular force concept may complicate such a determination. For example, 

a brigade JA commented none of his brigade's four battalions in theater was organic to 

the brigade. 86 

A final issue dealt with by legal offices in the area of information management is 

the need for legal personnel to be knowledgeable about identifying, handling, 

disseminating, and storing classified information: 

Conducting legal operations down range required the handling of classified 

materials on a daily basis by most personnel in the OSJA. In fact, attorneys and 

paralegals in the Operational Law Section used SIPR computers almost 

exclusively throughout the deployment. The potential for losing thumb drives 

containing classified materials was among other issues created by frequently 

handling classified materials. Determining the appropriate level of classification 

for documents and emails was also a persistent problem. Many individuals 

tended to err on the side of caution by classifying documents as "secret" even 

though the documents contained no classified information whatsoever, 

preventing the documents from later being stored on an unclassified computer or 

transmitted via a NIPR email account. These problems would have been 

minimized if personnel in the OSJA underwent training, ideally with personnel 

from G-2, on the proper manner for classifying materials, handling classified 

equipment and materials, and the proper means by which to disseminate such 

information. 87 

85 The agreement was drafted by the Office of The Judge Advocate General Technology Office, U.S. Army. 

According to an Army General Counsel opinion, the G6 has statutory responsibility for the security and 

confidentiality of data on Army information systems. The solution to protecting information used by Army 

organizations is to train systems administrators properly about data confidentiality requirements. 

"Confidentiality or non-disclosure agreements ... provide administrative control and accountability to 

prevent unauthorized disclosure of confidential or sensitive information." Memorandum, Mr. Steven 

Morello, General Counsel for the Department of the Army, to ChiefInformation Officer/G6 (5 Feb. 2004). 

86 V Corps 2006 OIF AAR, supra note 79, at 26. 

87 101 st ABN DIV 2007 OIF AAR, supra note 3, at 84. A Legal Administrator emphasized OSJA security 

managers need to ensure legal personnel understand they must treat memory sticks used to store classified 

documents in the same manner as classified hard drives. E-mail from CW2 Eddie R. Hernandez, Legal 

Automation Army-Wide System Office, Office ofthe Judge Advocate General, to Colonel George L. 

Hancock, Jr., Chief, Legal Technology Resources Office, Office of The Judge Advocate General, para. 6 

(14 May 2004). The 4ID OSJA reiterated legal personnel must be aware of procedures for storing and 

carrying classified documents. For example, this includes checking with S2/G2 for guidance about the 

419 
XD.4. Obtaining Supplies 

All deployed legal offices will wrestle with determining what to take, and how to 

obtain items once in theater. A good starting point is to request an inventory of "stay 

behind" equipment from the unit they replace to help avoid bringing unnecessary items.88 

Another is to check the list of supplies currently unavailable in theater in order to 

determine whether the OSJA needs to bring along anything on that list.89 The 101st 

OSJA recommended OSJAs deploy with the bulk ofthe supplies they expect to consume 

during the deployment. During its deployment, the Special Troops Battalion (STB) 

supply section and the Division Main (G-3) administrative office provided in-theater 

purchases. This system proved to be slow and at times inadequate for OSJA 

requirements. The OSJA Legal Administrator suggested units take the precaution of 

documenting such requests, and following up on them in a timely fashion (i.e., "Do not 

depend on personnel from other sections to track and provide your supplies,,).9o 

Legal offices that deployed to Iraq indicated they used the only funds they 

received there to purchase supplies. Any other budget items (e.g., temporary duty, 

photocopiers, etc.) required submitting a decision paper for the Chief of Staff to approve. 

A field ordering officer (FOO) approved all supply requests for purchase by a paying 

agent (PA).91 Other OSJAs have reported they ordered items such as office furniture and 

electronic equipment through the contracting office by submitting a purchase request and 

commitment (PR&C). Additionally, they processed automation requests through the CJ6 

section.92 

The 3ID OSJA suggested coordination with the outgoing FOO and PA to see if 

they could purchase items needed by the incoming unit so the item would be available 

upon arrival (from its point of view, "the less supplies you have to bring from the rear, 

the better,,).93 The 3ID OSJA used its Legal Administrator as the FOO and its CPNCO as 

processing of courier orders and the transportation of classified documents and equipment in and out of 

theater. 4ID 2007 OIF AAR, supra note 61, at 35-36. 

88 101st ABN DIV 2007 OIF AAR, supra note 3, at91. 

89 3ID 2008 OIF AAR, supra note 5, at 30. However, the 3ID OSJA cautioned that storage space is 

limited, so that excess supplies may need to be kept in the CONEX until required. !d. 

90 Sumner 2006 OIF AAR, supra note 33, at 3. 

91 4ID 2007 OIF AAR, supra note 61, at 34-35. The 10th MTN DIV OSJA recommended legal offices 

have their FOO and PA trained and appointed prior to arrival in theater. 10th MTN DIV 2007 OEF AAR, 

supra note 21, at 9-10. 

92 Peterson 2006 OIF AAR, supra note 8, at 3; Chief Warrant Officer 2 William L. Keating, Legal 

Administrator, Office of the Staff Judge Advocate, Combined Joint Task Force 82, After Action Report, 

Operation ENDURING FREEDOM 2 (22 June 2007) [hereinafter Keating 2007 OEF AAR]. The OSJA 

had to submit and process the PR&C through the property book officer (PBO) and resource manager (RM). 

As in Iraq, the FOO and PA carried out smaller purchases of items unavailable through supply channels. 

Id. 

93 3ID 2008 OIF AAR, supra note 5, at 31. The 4ID recommended a departing OSJA leave approximately 

sixty days' worth of supplies for the incoming OSJA to alleviate any need to deal with shortages before 

420 
the PA. Either function required appointment memoranda and attendance at mandatory 

training classes. The 3ID OSJA recommended coordination with contracting personnel 

as soon as possible upon arrival in theater to arrange attending the training. 94 

The 4ID aSJA also designated its Legal Administrator as FOO and its CPNCO as 

the PA. ance again, one oftheir first stops upon arrival in Iraq was to attend the FOO 

class in order to be able to get the budget up and running. The FOO had to attend the 

class first, as the FOO completion certificate is a prerequisite for the PA's attendance. 

Money for supplies was never a problem; the only limitations were on finding necessary 

supplies. As a result, the 4ID aSJA suggested incoming OSJAs purchase any "can't live 

without" supplies before deployment, with a second shipment arriving at the midway 

point of the deployment. 95 

In total, the 4ID OSJA spent approximately eight thousand dollars on supplies 

during its deployment, but approximately thirty thousand dollars on two batches of 

claims cards for handing out to for host nation personnel. The first batch purchased 

occurred at the outset of the deployment, and the second towards the latter half. An Iraqi 

attorney facilitated the purchase by finding a source and then working with the 

contracting office to obtain a contract. The aSJA completed the transaction by picking 

up the business owner at the camp gate and escorting him to the finance office for 

payment. 96 

personnel receive training and are able to obtain additional supplies. 4ID 2007 OIF AAR, supra note 61, at 

34-35. 

94 3ID 2008 OIF AAR, supra note 5, at 31. 

95 4ID 2007 OIF AAR, supra note 61, at 34-35. 

96Id. at 34. 

421 
XE. LEADERSHIP 

XE.l. Taking Care ofSoldiers 

During the long OEF and OIF deployments in particular, JAGC leaders have had 

to monitor the morale and welfare of their subordinates. Leaders must ensure their 

Soldiers have the proper training, equipment, supplies, and life support to perform their 

missions, and are getting sufficient sleep and maintaining contact with family members. 

They should routinely talk with each Soldier and keep the lines of communication open. 

Senior NCOs must also ensure Soldiers receive only their fair share of unit taskings and 

are not required, for example, to work during the day ifthey are pulling all-night guard 

shifts. Moreover, NCOs should check on their Soldiers performing these extra duties, 

ensuring they have sufficient water, food, and sleep.97 

Leaders also need to monitor Soldier movement in and out oftheater.98 Senior 

NCOs must have a plan for reception of Soldiers arriving in theater; they should pick the 

Soldiers up at the reception station and brief them on their mission. Although this sounds 

easy, it may not be. The Ist Armored Division CPNCO, for example, spent many hours 

on the phone coordinating with individuals who could track the progress of Soldiers 

traveling downrange. It was imperative for him to keep in constant contact with the 

garrison OSJA so they could tell him when a Soldier deployed. Deployed JA leaders 

must likewise ensure the garrison OSJA knows when a Soldier is returning to home 

station. This allows the OSJA to coordinate the presence of family members upon the 

Soldier's return and ensure an OSJA representative is there to receive him or her.99 

Reserve component Soldiers need particular care upon return. Once they return to 

home station from their CONUS demobilization sites, they have very little time before 

leaving active duty. The 39th BCT legal team, for example, had seven days with their 

unit after returning to Arkansas before leaving active duty. This does not give leaders 

much time to observe Soldiers who may need special attention. Leaders should also 

consider asking their command to allow key personnel to remain in an active duty status 

to assist with legal issues that may arise. The 39th BCT SJA requested leaving one JA 

captain in a Title 10 status, for example, to handle servicemember personnel claims for 

property damaged during the deployment. There may also be a requirement for Judge 

97 OEF/OIF LL, Vol. II, supra note 16, at 280-81. The CPNCO from a paralegal's home station should 

establish and maintain communications with paralegals deployed with battalions, as well as communicating 

with commanders and sergeants major to ensure that they understand how to utilize paralegals properly (not 

just as administrative personnel with the additional duty of handling legal actions). Conversely, paralegals 

deployed with brigades and battalions need to show the command how much they can do. V Corps 2006 

OIF AAR, supra note 79, at 27. 

98 As the senior paralegal NCO in theater, the 10th MTN DIV CPNCO tried to keep track of all other 

paralegals, whether assigned to his command or not. This allowed him to check on their wellbeing. 

Conversely, when OSIA personnel travelled to other locations, the paralegals there were able to arrange 

billeting and automation support. 10th MTN DIV 2007 OEF AAR, supra note 21, at 6. 

99 OEF/OIF LL, Vol. II, supra note 16, at 280-81. 

422 
Advocates in Title 10 status to assist in the prosecution ofUCMJ actions pending from 

the deployment. IOO 

XE.2. Evaluations 

After action reports have provided several suggestions regarding the management 

of evaluations while deployed: 

•	 make a plan at an early state of the deployment;IOI 

•	 develop a tracking document managed on a daily basis;lo2 

o	 in some cases, there may be physical distance between the rated 

officer, the rater, and the senior rater - where this is the case, identify 

upcoming ratings early, and coordinate transportation and counseling 

sessions accordingly.lo3 

•	 as personnel receive assignments to different duties, ensure receipt of 

evaluation input from their current rating chain to capture their 

performance for evaluation, no matter what the rating chain ultimately is; 

and 

•	 determine, where required, the process for completing evaluations for 

those from sister services. 104 

XE.3. Visits, Awards, & Ceremonies 

You can't get things done sitting on your FOBs [forwarding operating 

basesJ all day. It is also boring staring at a computer. Danger is more 

than a FOB outside ofTikrit - get out there. !Os 

lOOId (noting that a JA in a Title 32 status cannot adjudicate claims under the Personnel Claims Act or 

prosecute cases under the UCMJ). 

101 The 3ID OSJA recommended units have a system in place upon arrival for tracking and processing 

because making sure the office automation is running and ensuring everyone has everything they need to 

begin work will consume the first few weeks deployed. Evaluations occur with digital signatures, and 

deployed units can e-mail evaluations to Human Resources Command (HRC) (however, they should set up 

this process upon arrival in theater because it will take a few days for HRC to process the request). 3ID 

2008 OIF AAR, supra note 5, at 31. 

102 Higdon 2006 OEF AAR, supra note 66, at 2. 

103 Flores 2007 OIF AAR, supra note 65, at 4. 

104The evaluation requirements are different for each service. At MNF-I, each service has a designated 

liaison officer, who should be able to provide details regarding the writing and subsequent processing of 

evaluations. Diaz 2007 OIF AAR, supra note 7, at 2. The Marines did their own evaluations. Navy 

personnel did not require any. Air Force personnel had an optional letter of evaluation which the 10th 

MTN DIV OSJA chose to draft as a recommendation for their own rear commanders to include in their 

evaluations. 10th MTN DIV 2007 OEF AAR, supra note 21, at 8. 

105 Office ofthe Staff Judge Advocate, 1st Infantry Division, After Action Report Iraq (Mar/Apr/May) 

5 (May 2004) [hereinafter lID First Quarter 2004 OIF AAR] (referring to a FOB in their area of operations 

named FOB Danger). 

423 
The 1CD OSJA AAR recommended the SJA, Deputy SJA, and Sergeant Major 

visit brigade legal offices soon after arrival in country to meet the JAs and paralegals and 

encourage them to work closely with division personnel. 106 In addition, the division 

should plan a legal conference near the beginning of the deployment to train JAs and 

paralegals and provide an opportunity for brigade and division personnel to meet. I07 

The 10th Mountain Division's (lOth MTN DIV) CPNCO likewise suggested 

leaders make routine face-to-face contact with deployed paralegals. This is particularly 

important because there will be legal teams from non-organic units, including RC units, 

whom leaders have not met. lOS The NCO leadership at other units echoed this comment, 

recommending the CPNCO visit all brigades and battalions where paralegals are 

embedded to ensure they have proper training and know their technical chain of 

command. 109 ­

Article 6 and other visits required coordination of lodging and transport, but were 

otherwise much as in garrison. IIO One Iraq-based OSJA reported the most significant 

challenge was bringing personnel from the outlying brigades to the OSJA's location 

using aviation assets. In such cases, it was not uncommon for brigade legal sections to 

arrive two days early, with the last group leaving two days after the event. III 

Recognition of accomplishments is another important aspect of leadership. As 

with evaluations, one Legal Administrator AAR recommended those responsible for 

coordinating awards make a plan and develop a tracking mechanism early in the 

deployment. II2 The planning process should involve a discussion of any contemplated 

change of duty positions, and should include clarifying responsibility for writing 

106 The ICAV OSJA AAR also suggested SJAs encourage their division JAs to disseminate information, 

sample products, and other aids to assist brigades, and to assist division review of their proposals for 

recurring actions and reporting. ICD 2007 OIF AAR, supra note 5, at 2. 

107 !d. The WIst OSJA found visits with its BCTs to be very useful: 

The TF Band of Brothers AO was frequently changing as a result of brigade TOAs and a 

constantly shifting amalgam of commanders, staff members, and JAs. Further, each BCT 

AO was unique and presented its own challenges. Visiting each of these AOs and 

conducting face to face discussions with JAs and staff members proved invaluable for 

both the Division and the [BCT legal teams]. Discussing operational and international 

law issues, meeting commanders, and showing a genuine interest in the extremely 

difficult task faced by Soldiers, commanders, and staff members paid great dividends. 

WIst ABN DIV 2007 OIF AAR, supra note 3, at 99. 

108 After Action Review Conference (PowerPoint Presentation), Office of the Staff Judge Advocate, 10th 

Mountain Division, and Center for Law & Military Operations, in Fort Drum, N.Y. (17 June 2004) 

[hereinafter 10th MTN DIV 2004 OEF AAR Conference]. 

109 OEF/OIF LL, Vol. II, supra note 16, at 276-77. 

110 Mislan 2006 OEF AAR, supra note 6, at 3. 

111 Flores 2007 OIF AAR, supra note 65, at 4. 

112 Higdon 2006 OEF AAR, supra note 66, at 2. 

424 
submissions well in advance of any tasking. 113 Another Legal Administrator reported 

awards required submission in the seventh month ofthe deployment, making it 

challenging to write a submission encompassing the entire period. 114 

The award process becomes more complicated when it involves personnel from 

other services. Submission ofArmy awards occurs on DA Form 638 with separate 

narrative and citation pages. Joint award submissions are on a memo with the same 

separate narrative and citation pages, but without DA Form 638. Awards for members of 

other services had to go through their local service offices to ensure they were not 

pending any other actions. In the case of Marines, Army awards have to go to 

MARCENT for final approval, even after the in-theater commander recommended the 

award. 115 In addition, SJAs should be aware an award to a member of a sister service 

may be downgraded, requiring resubmission if downgraded to a Joint award. 1

16 A 

submission for an individual not on the JMD (e.g., Trial Defense Service personnel) must 

receive approval from U.S. Central Command (CENTCOM).117 

The prospect ofpresenting awards entails consideration of conducting
 

ceremonies. The 10Ist OSJA therefore recommended deploying with a U.S. flag, flag
 

stand, and SJA guidon. 1

18
 

XE.4. Taking Care ofFamilies 

The Family Readiness Group (FRG) is a unit commander's program formed in 

accordance with Army Regulation (AR) 600-20, Army Command Policy. 1

19 Normally 

FRGs occur at the company level, with battalion and brigade levels playing an important 

advisory role. FRGs are not a morale, welfare, and recreation program; a NAFI; a private 

organization; or a nonprofit organization. An FRG is a command-sponsored organization 

of Soldiers, civilian employees, family members (immediate and extended), and 

volunteers. 120 

Leaders must take an interest in their Soldiers and their families. Soldiers who 

know their families are receiving care will remain effective in a deployed environment. 

113 Sumner 2006 OIF AAR, supra note 33, at 5. 

114 Flores 2007 OIF AAR, supra note 65, at 4. 

115 Keating 2007 OEF AAR, supra note 92, at 1. 

116 10th MTN DIV 2007 OEF AAR, supra note 21, at 8. "For example, if the CG wanted to downgrade a 

Bronze Star to a Meritorious Service Medal, he could simple reflect the downgrade on the DA Form 638. 

However, ifhe wanted to downgrade the same Bronze Star to a Defense Meritorious Service Medal, the 

award would have to be returned to the originating office and resubmitted in the joint format." Id. 

117 Keating 2007 OEF AAR, supra note 92, at 1. 

118 Sumner 2006 OIF AAR, supra note 33, at 6. 

119 U.S. DEP'T OF ARMY, REG. 600-20, ARMY COMMAND POLICY para. 5-10 (18 Mar. 2008). 

120 U.S. DEP'TOF ARMY, REG. 608-1,ARMY COMMUNITY SERVICE CENTER app. J, para. J-l (19 Sept. 

2007). 

425 
There is no a "cookie cutter" method of creating an FRG, and each will be unique in its 

own way due to location, personnel, etc. However, successful FRGs have relied on 

participation by leaders, Soldiers, and family members. FRG members should: 1) be 

active participants; 2) solicit new members, including junior Soldiers and their families; 

and 3) incorporate USARlARNG members. The camaraderie developed in the FRG has 

proven to be an invaluable tool during deployment and beyond. 

Leaders must also make sure family members are kept informed, for example, by 

preparing and distributing newsletters to them. l2l Leaders should also ensure Soldiers 

have the opportunity to keep in touch with family members by allowing access to e-mail 

for personal correspondence and time to make use of available telephones and videoteleconferencing facilities. The office should appoint one family member as a liaison to 

others, providing an invaluable service by keeping family members informed of the 

office mission, the welfare of their loved ones, and other information. Leaders must 

strive to reach out to these family members so that they receive needed information. The 

1st Armored Division, for instance, appointed a family liaison and hosted potlucks and 

other social events for family members. 122 

121 See, e.g., Keating 2007 OEF AAR, supra note 92, at 3. The 82d ABN DIV DIV OSIA reported 

publishing a newsletter every two months, informing family members of current events. It recommended 

zipping the file to an executable file, so that family members were able to open it at home from the FRO 

website. Its predecessor, the 10th MTN DIV OSIA, published a quarterly newsletter, also using Microsoft 

Publisher and including lots of photos. 10th MTN DIV 2007 OEF AAR, supra note 21, at 10. 

122 OEF/OIF LL, Vol. II, supra note 16, at 281; lAD 2004 OIF AAR Conference, supra note 11. 

426 
XR PERSONNEL 

XF.l. Accountability 

Depending on the security situation, it may be necessary to track legal office
 

personnel who go outside the wire. 123 As well, OSJAs should set up and maintain an
 

office roster (including rank, SSN, duty position, email addresses, sensitive equipment
 

numbers, telephone number, unit information, and FRG information) for personnel
 

accountability purposes following direct or indirect fire incidents, and to respond to
 

internal and external enquiries.
 

XF.2. Work Schedules 

In view ofthe length and frequency ofrecent deployments, legal personnel have 

realized they must pay some attention to establishing office schedules. As the 3ID OSJA 

AAR commented, 

Being deployed for 12 months is difficult, 15 months is that much more of a 

challenge. The need to stay sharp for an entire deployment is a task that can only 

be managed through appropriate down time. Personnel must be encouraged to 

leave the office during times of inactivity rather than sitting around just to be 

seen. This will give people the capability to work at a high tempo when required 

by the mission.... Institute and strictly enforce a day offpolicy early in the 

deployment. Do not think because you just arrived in theater you do not need 

downtime to relax and decompress. 124 

XF.3. Assigning Office Duties 

Incoming OSJAs will need to assess the requirement to provide legal support to 

the division operations center (DOC). The 3ID OSJA assigned a JA and an NCO to the 

night shift and a JA to the day shift during pre-deployment exercises and the first four to 

six weeks ofthe deployment. The OSJA considered maintaining a constant presence in 

the DOC during the initial phase ofthe deployment essential to establishing the legal 

support to operations role. Once OPLAW JAs established good rapport with key 

operational staff, it was no longer necessary to staff the DOC with an officer twenty-four 

hours per day. However, it was advisable for both JAs and NCOs to visit the DOC 

regularly during the day to view SIGACTs and maintain situational awareness. In 

addition to monitoring operations in the DOC, the night shift NCO had ample time to 

assist other OSJA sections. 125 

Paralegals often have extra duties and responsibilities - although not all are 

glamorous, they may result in better integration with headquarters staff and better access 

123 101st ABN DIY 2007 OIF AAR, supra note 3, at96. 

124 3ID 2008 OIF AAR, supra note 5, at 32. 

125Id. at 17. 

427 
to headquarters resources. Other duties in theater may include escorting claims officers 

personnel. 126 

XF.4. Rotation ofDuty Positions 

During long deployments, legal teams found it useful to rotate personnel into 

different jobS. 127 The V Corps JAs and paralegals indicated it boosted their morale to be 

given the opportunity to learn a new job. 128 Other SJAs reported they tried to ensure that 

their personnel switched jobs whenever possible to keep legal personnel fresh. They 

recommended balancing personnel job stability against personal needs and interests of 

the deployed legal teams. 129 

The 1CD OSJA suggested rotation is particularly useful in the contract and fiscal 

law areas: fiscal review of documents is both mundane and voluminous, but critical to 

protecting the command. Possible solutions include ensuring at least two JAs have 

training in contract and fiscal law so they can split the deployment. An alternative is to 

divide the responsibilities between the two, and switch them midway through. Either 

approach produces well-rounded JAs and reduces intellectual fatigue. 130 

The 10th MTN DIV OSJA reported it rotated most of its personnel midway 

through its deployment to Afghanistan, making it easier on those who deployed, and 

providing more legal personnel with deployment experience. 13l Other legal offices 

suggested implementing a degree of cross-training, as it becomes necessary to cover for 

126 Sumner 2006 OIF AAR, supra note 33, at 7 (noting that the claims office also required its own vehicle). 

127 As Major Daniel G. Jordan, Office of the Staff Judge Advocate, V Corps, commented: 

If you keep somebody - because that is shift work, and especially if you're the night shift, 

that is one of those jobs that can get to you after months of7 days a week everyday. 

[Colonel Marc Warren, SJA, V Corps] was very good especially at rotating those people 

out and into some other job that was equally busy or more busy, but something different, 

something to keep their minds mentally - it's almost like exercising your brain muscles to 

keep them in shape because you're not just doing the same thing over and over again. 

You're actually getting the chance to do something else makes life a little bit easier. 

V Corps 2004 OIF AAR Conference Transcript, supra note 10, at 20. 

128 Captain Noah V. Malgeri, Office of the Staff Judge Advocate, V Corps, commented: 

If you're doing the same job, I just recommend that one of the techniques that's practiced 

by JAG managers in this type of environment is to make sure that people are exposed to 

different circumstances at certain set times. If you're doing for example legal assistance, 

or anything, if you're the claims guy for 4 months, you're not doing it 5 days a week. 

You're doing it 7 days a week .... 

Id. at 19. 

129 4ID 2004 OIF AAR Conference, supra note 12; After Action Report, Office of the Staff Judge 

Advocate, 1st Cavalry Division 29 (Feb. 2005). 

130 ICD 2007 OIF AAR, supra note 5, at 5. 

131 10th MTN DIV 2007 OEF AAR, supra note 21, at 7. 

428 
other legal personnel on leave. Finally, the 10th MTN DIV OSJA suggested all junior 

paralegals should be cross-trained in all legal areas to provide maximum flexibility. 132 

XF.5. Appointments & Designations 

As legal teams prepared to deploy, they had to consider whether both the 

deployed and rear detachment OSJAs contained personnel properly appointed to perform 

certain functions, including military magistrates, foreign claims commissions, field 

ordering officers and paying agents, victim/witness liaisons, and special assistant u.s. 

attorneys (SAUSAs).133 

Field Ordering Officer (FOO) & Paying Agent (PA) 

As stability operations began and deployments stretched beyond a few months, 

aSJAs found it necessary to replenish supplies. Virtually every aSJA recommended the 

legal office train and appoint a field ordering officer (FOO) and/or paying agent (PA).I34 

132 10th MTN DIV 2007 OEF AAR, supra note 21, at 4. 

133 Other appointments include ethics counselors. Individuals who have been appointed to such positions 

should bring electronic copies oftheir appointments with them. lCD 2007 OIF AAR, supra note 5, at 10. 

134 See, e.g., 10th MTN DIV 2004 OEF AAR Conference, supra note 108. The general description of a 

Faa is: 

(c) When justified, the chief ofthe contracting office may appoint a unit member as an 

ordering officer. The ordering officer acts as an agent (under written direction from the 

chief ofthe contracting office) for the supporting contracting office to make local 

purchases (LP). Ordering officers are normally nominated by commanders and appointed 

by the designated RCA [head contracting authority] ... and trained and supervised by the 

appointing authority or his designee (the contracting officer). 

(e) Purpose for which ordering officers may be appointed and references as to limitations 

oftheir authority are­

(1) To purchase with imprest funds. 

(2) To purchase over-the-counter and not exceeding $2,500.00. 

(3) To place unilateral delivery orders against pre-priced indefinite delivery type 

supply and service contracts provided such contract terms permit and all orders 

are placed within the monetary limitations ofthe contract terms. 

U.S. DEP'T OF ARMY, ARMY FEDERAL ACQUISITION REGULATION MANUAL No.2, CONTINGENCY 

CONTRACTING app. E, para. 8-2 (Nov. 1997). 

In contrast, commanders appoint paying agents. 

The appointment letter shall contain the paying ... agent's name, rank or grade, SSN and 

duty station; the name, rank or grade and station ofthe DO [disbursing officer] ... the 

duties and responsibilities ofthe agent; a description of the type ofpayments or currency 

conversions to be made by the paying agent; the maximum amount of funds to be 

advanced to the agent; the period of time the appointment covers; and, the agent's 

acknowledgement of acceptance of the appointment .... Appointments may be for a 

specific transaction, for a specific period oftime, or for an indefinite period of time. 

429 
Legal teams routinely commented it would have been difficult, if not impossible, to 

quickly replenish supplies without access to both. The III Corps OSJA recommended 

designating a FOO and paying agent and providing both with the necessary training as 

soon as the office receives the notice of deployment, if not earlier. 135 The 101st OSJA, 

for example, had a paralegal appointed as a PA. Although he was lost to the office on 

many occasions when required to go on purchasing trips, the office found the "easy 

access to FOO operations and funds more than makes up for the 10SS.,,136 

VictimlWitness Liaison Personnel 

The legal team must consider who will perform victim/witness liaison duties both 

in garrison and downrange. Civilian personnel often perform these duties at home 

station, so the SJA must appoint additional victim/witness liaisons from within the ranks 

of deploying personnel. Deployed legal teams reported they assigned JAs, legal 

administrators, and senior NCOs to perform these duties. The required number of 

victim/witness liaison personnel depended on many variables, including whether unit 

personnel were in close proximity to the headquarters, as well as the security situation in 

their AD. Ifnecessary, legal teams appointed additional victim/witness liaisons once 

they deployed. 13 ? 

For example, the 4ID OSJA appointed two victim/witness liaisons, a captain and a 

legal administrator. The focus of their duties was servicemember sexual assault 

victims. 138 The 1CD OSJA designated its legal assistance attorney as the division liaison, 

and assigned three additional JAs located with BCTs as victim/witness liaisons for those 

units. These individuals received trained before deployment. 139 The 1st Infantry 

u.s. DEP'T OF DEFENSE, REG. 7000.14, DOD FINANCIAL MANAGEMENT REGULATION, Vol. 5, chap. 2, 

para. 020604 (May 2001). 

135 First Quarter After Action Report (Administrative Issues), Office of the Staff Judge Advocate, III Corps 

(June 2004) (noting the Faa is normally an officer and the paying agent is normally an E-7 or above, and 

recommending the Faa and paying agent attend the required classes, have the orders issued appointing 

them as the Faa and paying agent, and be prepared to start purchasing supplies and equipment upon 

receipt of the notice ofthe deployment). See OEF/OIF LL, Vol. II, supra note 16, app. J-l (copy of a Faa 

appointment order)" and OEF/OIF LL, Vol. I, supra note 22, at app. J-2 (copy of a paying agent 

appointment). 

136 After Action Review Conference, Office ofthe Staff Judge Advocate, 101st Airborne Division (Air 

Assault), and Center for Law & Military Operations at Ft. Campbell, Ky. 43 (21 Oct. 2004); OEF/OIF LL, 

Vol. II, supra note 16, at 279. 

137 The victim/witness liaison coordinator for 1st Infantry Division, for example, reported it was very easy 

to appoint additional liaisons, once identifying the need. E-mail from Captain Zahid N. Quraishi, Office of 

the Staff Judge Advocate, 1st Infantry Division, to Lieutenant Colonel Pamela M. Stahl, Director, Center 

for Law & Military Operations (8 Sept. 2004) [hereinafter Quraishi E-mail]. 

138 4ID 2004 OIF AAR Conference, supra note 12; OEF/OIF LL, Vol. II, supra note 16, at 278 (also noting 

victim/witness liaison duties took a significant amount of time and it was difficult to provide services to 

other FOBs because of security concerns). 

139 See Memorandum, Multi-National Corps-Iraq (III Corps), to Director, Center for Law & Military 

Operations, The Judge Advocate General's Legal Center & School, subject: Victim Witness Programs in 

430 
Division (lID) OSJA appointed ten legal personnel as victim/witness liaisons, 

detennining a requirement for large number because units operated on numerous FOBs 

and the security situation made it very difficult to travel between them. 140 

Legal teams should also consider whether they have the assets to provide 

victim/witness liaison assistance to foreign nationals. The lID OSJA reported 

appointment through the Iraqi legal community of an Iraqi as the victim/witness 

liaison. 141 

Special Assistant U.S. Attorneys (SAUSAs) 

Another issue that legal leaders must consider immediately upon notification of 

deployment is staffing the Special Assistant U.S. Attorney (SAUSA) position. The U.S. 

Attorney must make such appointments, and the SJA memorandum requesting the 

appointment may take some time to process. Therefore, if the OSJA plans to deploy its 

SAUSA and backfill the position with another JA, it must complete the memorandum as 

soon as possible so Magistrate's Court delay or disruption does not occur as the result of 

the deployment of the only SAUSA. In addition, if appointing an RC JA as the SAUSA, 

identify this person even before notification of deployment, so use of training period to 

integrate him or her into Magistrate Court operations is possible. 142 

XF.6. Security Clearances 

At a minimum, a Secret level security clearance is essential for any JA or 27D. 

The modular force transfonnation has created "mini-OSJAs" at the brigade level, with 

JAs and 27Ds occupying key brigade and battalion positions. Furthennore, a Secret 

security clearance is mandatory for SIPRNet access, and may be a requirement for access 

to certain facilities (e.g., unescorted division headquarters access).143 As a result, leaders 

must ensure Soldiers without clearances work on the EPSQ as part of their reception and 

integration into the unit. As of 1 June 2005, all new entrants into the 27D MOS career 

management field have a requirement to have a Secret clearance. Soldiers who entered 

service before 1 June 2005 must possess a Secret clearance by 1 October 2008. 144 

the Iraqi Theater, para. 6 (28 Sept. 2004); E-mail from Lieutenant Colonel Christopher 1. O'Brien, Staff 

Judge Advocate, Ist Cavalry Division, to Lieutenant Colonel Pamela M. Stahl, Director, Center for Law & 

Military Operations (8 Sept. 2004). 

140 Quraishi E-mail, supra note 137. 

141 Id. 

142Id. 

143 ICD 2007 OIF AAR, supra note 5, at 3; 101 st ABN DIV 2007 OIF AAR, supra note 3, at 96. Legal 

personnel assigned to TF134 (theater internment facility in Iraq) required Secret clearances to review 

detainee files. Everyone received training as field screening officers so they could access detainee files and 

exclude classified data before passing files to Iraqi board members. Both the Legal Advisor and Deputy 

SJA also needed read-on access to Top Secret material. Peterson 2006 OIF AAR, supra note 8, at 4. 

144 U.S. DEP'T OF ARMY, PAM. 611-21, MILITARY OCCUPATIONAL CLASSIFICATION AND STRUCTURE (22 

Jan. 2007). 

431 
Notwithstanding this policy, some recent AARs indicated legal personnel may 

still lack Secret clearances. For example, the lOlst OSJA found that, when "scrubbing" 

the list of OSJA personnel six months before deployment, fifty percent lacked a valid 

Secret clearance. The OSJA therefore recommended adding screening of clearances to 

the list of steps required for initial OSJA in-processing, as this avoids having a large 

number requiring updates immediately before deployment. 145 

Along similar lines, the 4ID OSJA suggested units begin working personnel 

security issues as soon as possible, preferably eight to ten months before deployment. 

The OSJA found it helpful to review the roster in conjunction with the S2/G2 to ensure 

the OSJA list of clearance status matched theirs. Those who did not have security 

clearances or had discrepancies received a suspense date to ensure they turned their 

information in on time. The OSJA contacted those arriving from the Basic course to 

ensure they kept a copy oftheir SF86 form. However, the OSJA noted it was possible 

work might not yet have begun on their clearances. If so, they might have to redo the 

request once they had arrived at their new duty station. 146 

In some cases, JAs (e.g., SJA, Deputy SJA, Chief, OPLAW, and Chief, MJ) and 

paralegals will require Top Secret clearances. Obtaining one can take up to a year. 147 

145 Sumner 2006 OIF AAR, supra note 33, at 4. 

146 4ID 2007 OIF AAR, supra note 61, at 35. 

147 leD 2007 OIF AAR, supra note 5, at 3; 3ID 2008 OIF AAR, supra note 5, at 16. 

432 
XG. FACILITIES 

One pre-deployment consideration is to learn as much as possible about the 

facilities legal personnel will use once in theater. This allows appropriate planning and 

preparation. For example, if open storage of classified materials is not possible, it will be 

necessary to ensure sufficient storage space to luck up computers and files at night. 148 

Other planning considerations include the space and privacy required for legal assistance 

personnel to maintain client confidentiality.149 

During the initial stages of both OEF and OIF, SJAs deployed paralegal NCOs 

with the advance party to assist with legal operations setup.150 Both work and sleep tents 

require setting up, OSJA equipment requires locating and retrieval from conexes, and 

HMMWVs require servicing - NCOs make this happen. 151 Ifpossible, the Legal 

Administrator or automation NCO should also deploy with the advanced party. These 

Soldiers provide OSJAs with experts in troubleshooting and maintaining OSJA 

automation assets. They are also able to liaise with G-6/DOIM personnel and may have 

permission to use G-6/DOIM assets to repair and supplement OSJA equipment. 152 

The facilities used by legal personnel include accommodation areas. Some 

OSJAs have found it beneficial to have all oftheir personnel housed in the same area, 

148 Higdon 2006 OEF AAR, supra note 66, at 2. 

149 Sumner 2006 OIF AAR, supra note 33, at 6. "Adequate office space is essential to a productive work 

environment. Cubicles do not provide client confidentiality or good working conditions for court reporters 

typing transcripts. Obtaining additional space during the deployment can present a challenge. All factors 

need to be considered and a plan of how much and what type of space is needed to conduct business. . .. 

Begin working with the unit as soon as possible and explain the needs of the OSJA. Recommend trying to 

obtain a trailer or additional office spaces with enough room and privacy to support court reporters, a tax 

center/tax assistance area, and space for attorneys to either speak with clients or witnesses confidentially or 

to layout their case files when prepping for trial." 3ID 2008 OIF AAR, supra note 5, at 30. 

150 See Interview with Colonel David L. Hayden, former Staff Judge Advocate, XVIII Airborne Corps, in 

Charlottesville, Va. (7 Oct. 2003). 

151 The 10th MTN DIV assessed that: 

The torch party must include a NCO that can make things happen in a timely manner. 

Workspace assignments and billeting assignments have to be set up, OSJA equipment has 

to be located and retrieved from TRICONs and MILVANs well before follow on OSJA 

personnel hit the ground. You want everything in place running smoothly so the team 

can strictly focus on the legal mission. A strong NCO can help deflect details or support 

details which ultimately benefit the SJA team as well as the Headquarters. Also you can 

set the OPTEMPO within the staff sections and build rapport with key leaders, as well as 

serving as a strong voice in the Senior Enlisted Leaders' meetings. 

10th MTN DIV 2007 OEF AAR, supra note 21, at 3. 

152 OEF/OIF LL, Vol. I, supra note 22, at 256-57. Marine JAs (with smaller teams and fewer assets than 

the Army) did not ordinarily deploy the Legal Admin officer (the equivalent ofthe Army's Legal 

Administrator). Consequently, the JA and enlisted Marine had to provide their own automation support, or 

attempt to obtain assistance from the unit G-6/S-6. Id. 

433 
although one office noted no one should ask supervisors to room with subordinates. 153 

Regardless of the specifics of the office and accommodations space required and 

available, some AARs have observed it is helpful to ensure legal personnel are part of the 

pre-deployment site surveyor in the ADVON party. 154 

Deploying OSJAs must also consider the office facilities stay-behind personnel 

will inherit. Deploying personnel should remove personal items from their offices and 

leave their office keys, allowing replacement personnel to more easily occupy office 

space and conduct their legal mission. 155 

153 10th MTN DIV 2007 OEF AAR, supra note 21, at 5-6. Living together can be good or bad. On good 

side, many OSJA personnel were on a different rotation schedule from Army personnel, and this allowed 

for a one-for-one switch of rooms (gender permitting). However, asking supervisors to room with 

subordinates was improper. Id. The lOlst OSJA also found it helpful to have most personnel in the same 

logistic support area, because it made it easier to account for personnel after indirect fire attacks and other 

mandatory hundred percent accountability reports. lOlst ABN DIV 2007 OIF AAR, supra note 3, at 100. 

154 Sumner 2006 OIF AAR, supra note 33, at 2. In the case of the 10th MTN DIV OSJA, the ADVON 

party included the Deputy SJA, OPLAW attorney, and Legal Administrator. Last-minute family issues 

prevented the NCO from accompanying them. The OSJA recommended ensuring an NCO deploys with 

the ADVON to provide the necessary interface with NCO channels. Presence on the torch party helped 

because it allowed the OSJA to obtain additional space. However, if possible, a senior NCO and the Legal 

Administrator should deploy on the advance party to ensure addressing of the OSJA office, automation, and 

accommodation needs. This allows other legal personnel to focus on the legal mission upon arrival. 10th 

MTN DIV 2007 OEF AAR, supra note 21, at 2-3. 

155 OEF/OIF LL, Vol. I, supra note 22, at 256-57; lAD 2004 OIF AAR Conference, supra note 11. 

434 
XH. COUNTRYMATERIALS 

XH.J. Host Nation Law & Legal System 

Judge Advocates deploying in support ofOIF, in particular, voiced concern they 

had not anticipated they would need to know Iraqi law and understand Iraq's legal 

system. However, once major combat operations wound down and stability operations 

began, JAs quickly discovered they would play an integral role in rebuilding the Iraqi 

justice system. To do so, they needed to know what that justice system was, including 

the civil and criminal civil codes. IS6 

A V Corps JA assigned to work on the post-combat plan noted he began searching 

for Iraqi law on the internet while in theater in March 2003. A Marine Corps JA 

suggested JAs should have assembled an inter-service task group to gather available 

information on Iraqi law, and hired Iraqi lawyers to assist in the effort. They could have 

then disseminated the information gathered to all JAs in theater. IS

? 

Judge Advocates should anticipate stability operations may involve u.s. forces in 

judicial reconstruction and establishing or enforcing the rule of law. When this is the 

case, commanders will expect their JAs to have some knowledge ofthese areas. Before 

deployments, therefore, JAs may need to identify local law and be familiar with the 

justice system in their AO. IS8 

{See also INTERNATIONAL & OPERATIONAL LAW (Civil Affairs), (Rule ofLaw), 

Stability Operations).] 

156 See OEF/OIF LL, Vol. I, supra note 22, at 265-66. 

157 !d. 

158Id. BeT lAs may also be able to assist commanders by helping to identify those in authority in a 

particular community. 10lst ABN DIV 2007 OIF AAR, supra note 3, at 83. 

G:D u.s. GOVERNMENT PRINTING OFFICE: 2008-719-829 435