View from the Legal Frontlines

Cicero said, "silent enim leges inter arma" which means in times of war the law falls silent.1 A judge advocate's primary mission is to prevent this from occurring. To accomplish this objective, the judge advocate performs a variety of functions including participating in the development of the operational plan, drafting rules of engagement ("ROE"), and reviewing target nominations. Inevitably, the operational law attorney2 faces unique and challenging legal issues that surface during conflict and require immediate resolution. Furthermore, the judge advocate often must provide legal guidance to soldiers on the ground while strategic policy decisions are being debated and finalized. I have been assigned to the Coalition Forces Land Component Command ("CFLCC") since July 2001. After September 11, 2001, CFLCC became responsible for land operations in Afghanistan against al Qaeda and the Taliban during Operation Enduring Freedom ("OEF"). Concurrently, CFLCC began planning Operation Iraqi Freedom ("OIF"). When I arrived at CFLCC, I had recently returned from a deployment to Bosnia, and I anticipated a relaxed, slower paced position as a contract attorney at Fort McPherson, Georgia. Instead, since September 12, 2001, I have spent the majority of my days in the Middle East participating in two high-tempo military campaigns. In this article, I will describe in broad-brush strokes rather than in fine detail my role as a judge advocate during OEF and OIF while discussing the most poignant and interesting legal issues. I. OPERATION ENDURING FREEDOM After a federal investigation concluded that al Qaecla was responsible for the terrorist attacks of September 11, 2001,3 CFLCC began developing the land component campaign plan for OEF. The campaign raised complicated legal and policy issues that do not exist in traditional armed conflicts between nations. The US, a nation that complies with the law of war, had to fight against an unconventional terrorist force that does not comply with the law of war. Consequently, processes such as drafting ROE became infinitely more difficult and required significant creativity to ensure compliance with international and domestic requirements without hindering or endangering the ability of US forces to destroy al Qaeda and the Taliban. Military attorneys quickly recognized that the characterization of captured enemy soldiers as either prisoners of war ("POWs") or unlawful combatants would be a critical issue. While the issue was debated at the national level, Central Command ("CENTCOM") and CFLCC needed to issue guidance to the soldiers on the ground in Afghanistan. Until the final decision was made in late January 2002, military attorneys advised soldiers that al Qaeda and Taliban fighters were not to be afforded POW status; they were, however, to be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner compatible with the principles of the Geneva Conventions of 1949. This was not the only time that events on the ground outpaced policy decisions. On November 13, 2001, the President issued a military order concerning the detention, treatment, and trial of certain non-citizens in the war against terrorism.4 Immediately, CFLCC began planning for detainees and proposed various sites where the detainees could be held. After a legal and policy review, the Department of Defense ("DoD") selected Guantanamo Bay, which gave the US control without placing the detainees on US soil. In December, CFLCC had the task of preserving and gathering evidence until the DoD established a tribunal team. Marine Major Bryan Hopkins and I were the two original members of the tribunal team. We quickly instituted requirements to establish a chain of custody for evidence. This was difficult because we were asking soldiers involved in combat operations to perform additional tasks so that evidence would be admissible in future trials. Fortunately, the soldiers recognized the importance of this requirement, and they did a great job of cataloging and documenting the evidence. …