Chapter 4
Legal Support in Theater Operations
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Theater command structures and campaign planning originated in World War II and have existed, with variations, ever since. In the 1980s, during digestion of the hard lessons of Vietnam, the services . . . adopted [the] concept of an intermediate level of war, between the strategy from Washington and the tactics of the battlefields. Operational art received its formal designation in the 1982 version of the Army's Field Manual 100-5, with the other services closely following. The present flowering of joint doctrine, still in progress, has been marked in Congress by the passage of the Goldwater-Nichols Act in 1986. At last, the United States has begun to place in print ideas and techniques in ferment since the time of Lincoln and Grant . . . |
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| Lieutenant Colonel Daniel K. Bolger Savage Peace121 |
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Though many Law of War problems arose, . . . judge advocates [in theater] also dealt with a significant number of other legal issues. . . . As so aptly stated by one judge advocate involved, somewhat tongue-in-cheek, "You can only tell the C.O. that he can't shoot the prisoners so many times. You reach a point at which when the boss has run out of beans and bullets, has certain equipment requirements, and has the locals clamoring to be paid for property damage, you have to be prepared to provide the best possible legal advice concerning these issues as well." |
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| Lieutenant Colonel David E. Graham Operational Law-A Concept Comes of Age122 |
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4.1 THE THEATER
Operational art is best understood within the context of a theater, a geographical area outside the continental United States for which a Commander-in-Chief (CINC) of a unified command has been assigned military responsibility.123 The theater is the setting within which United States commanders determine when, where, and for what purpose major forces will be committed. It is the setting into which forces are deployed and later inserted into or withdrawn from operations. It is the setting within which optimal effect can be made of the resources of personnel, materiel, and time because the commander is consciously employing them to achieve desired strategic ends.124
Legal support to operations is the comprehensive set of professional legal functions and disciplines needed to support worldwide operations. Due to the modern national security structure of the United States, these worldwide operations involve military forces projected into and within theaters. Accordingly, judge advocates must have a detailed understanding of the terms, distinctions, and structures of command and coordination associated with theater operations. They must also understand several separate but complementary relationships of command, control, and support that are exercised within theaters.
4.1.1 Key Terms and Distinctions
Theaters may be described as either continental, i.e., European Command (EUCOM), Central Command (CENTCOM) or Southern Command (SOUTHCOM), or maritime, i.e., Pacific Command (PACOM), or littoral based on their dominant geographic characteristics.125 A unified combatant commander who has a geographic area of responsibility--recall that the CINCs of Transportation Command (TRANSCOM), Special Operations Command (SOCOM), Strategic Command (STRATCOM), and Space Command (SPACECOM) do not--is also referred to as a theater commander.126 United States Joint Forces Command (USJFCOM), formerly Atlantic Command (ACOM), maintains its Atlantic area of responsibility.
Because unified commands were created following World War II to integrate the separate services into an efficient warfighting team,127 a CINC's theater is sometimes called a theater of war, regardless whether combat operations are taking place within it. This theater of war may be subdivided into subordinate theaters of operations, which may be further subdivided into areas of operations (AO). The CINC has great freedom to organize his theater, and he will frequently designate other areas of significance, such as joint operations areas (JOA), joint zones (JZ), and joint rear areas (JRA).
4.1.2 Communications Zone and Combat Zone
One traditional organizational device divides the theater of war into a communications zone (COMMZ) and a combat zone (CZ). The COMMZ and the CZ are contiguous and do not overlap.128 The COMMZ is the rear part of a theater of operations, and it contains the lines of communications, air and sea ports, establishments for supply, maintenance, field services, personnel support, health services and evacuation, and other agencies required for the immediate support and maintenance of the field forces. The COMMZ reaches back to the continental United States or to another CINC's area of responsibility.
The CZ is the territory forward of the COMMZ. In the European theater, the boundary line falls at the Army group rear boundary: that is, everything forward of the Army group rear boundary was the CZ. The CZ is the area required by operational and tactical forces for the conduct of operations. The depth of the CZ depends on the forces involved, the nature of planned operations, the lines of communications, the terrain, and enemy capabilities. Normally, the CZ is divided into corps and division areas.
Noncombat contingencies and contingencies that involve sporadic or isolated combat create the need for alternatives to the CZ device. A contingency is "[a]n emergency involving military forces caused by natural disasters, terrorists, subversives, or by required military operations."129 Contingencies cause CINCs to designate areas of conflict (AOC), geographic areas where hostilities are imminent, and areas of assistance (AOA), areas where forces conduct humanitarian assistance or other support operations unopposed.130
Commanders, SJAs and other Army leaders deploying forces to a theater of operations must understand yet another distinction. A developed or mature theater is typically one in which the United States has an existing overseas presence, to include a support structure of communications, logistics, air defense, ports, etc. An undeveloped or immature theater lacks one or more of these features. When projecting force to an immature theater, leaders must choose between creating a support base in the theater or operating with external support.131
4.1.3 Strategy
The President, in collaboration with several executive branch departments and agencies, develops the National Security Strategy. In turn, the Chairman of the Joint Chiefs of Staff develops the National Military Strategy to assist the President and the Secretary of Defense (who are called the National Command Authorities or NCA) in directing the armed forces toward broader national security goals.
Currently, the National Military Strategy describes two fundamental strategic military objectives derived from the National Security Strategy.132
Promote peace and stability through deterrence, peacetime engagement activities, and active participation and leadership in alliances; and, when necessary,
Defeat adversaries.
The overlapping and interrelated strategic concepts that allow the military to achieve these objectives are strategic agility, overseas presence, power projection, and decisive force, which are discussed more fully later in this chapter.
The CINCs develop theater strategies consistent with the two national strategic documents. The development of theater strategy involves careful analysis of the METT-TC unique to the theater.133
The development of separate theater strategies permits the creation of a Unified Command Plan (UCP). The President approves the UCP, which sets forth basic guidance to all unified combatant commanders; establishes their missions, responsibilities, and force structure; delineates the geographical boundaries of CINC areas of responsibility (related but technically distinct from theaters of war); and specifies functional responsibilities for functional combatant commanders.
4.1.4 Structures of Command and Coordination.
Operations within a theater are invariably joint and often multinational. They also often involve many governmental agencies, nongovernmental organizations, and private organizations. Judge advocates cannot practice operational law without knowing the various key players in a theater and the structures through which the CINC orchestrates unified action among them. Judge advocates may consult the Joint Staff Officers Guide, Armed Forces Staff College Publication 1 (1997) for further information. Unified action is the wide scope of actions--including the synchronization of military activities with those of governmental and nongovernmental agencies--taking place in a theater. Unified action integrates combinations of single-service, joint, multinational and interagency activities to achieve a military end state that supports the strategic end state.134
4.1.4.1 Joint
The term joint, as the definition of joint task force implies, refers to military actions involving two or more military departments: Army, Navy/Marine Corps, Air Force. It may also refer to the actions of two or more elements of the same service that are commanded by separate CINCs, such as Army mechanized infantry and Army special forces.
A joint task force (JTF) consists of elements of two or more services (Air Force, Army, Navy, Marines) operating under a single commander. The Secretary of Defense (SECDEF), as well as the CINCs, may establish JTFs, which are created to perform theater missions having specific limited objectives or missions of short duration.
There are other types of joint command. One of these is the subordinate unified command, which, unlike a JTF, has broader, enduring objectives or missions. Examples of subordinate unified commands are Alaskan Command (ALCOM), U.S. Forces Japan (USFJ), and U.S. Force Korea (USFK), all of which fall within the area of responsibility of CINC PACOM. Another type of joint force that a CINC may create within a theater is the functional component command, which focuses on operational responsibilities that cut across service lines. The four types of functional component commands are the Joint force land component command (JFLCC), the Joint force air component command (JFACC), the Joint force maritime component command (JFMCC), and the Joint force special operations component command (JFSOCC).
The judge advocate will encounter a great number and variety of joint boards, cells, and other joint organs within a theater. For instance, land forces participate in the joint targeting process as defined by the Joint Force Commander (JFC), a generic term for a commander of the various joint forces outlined in the previous section of this chapter. JFCs may delegate targeting oversight functions to a subordinate commander, or they may establish a Joint Targeting Coordination Board (JTCB) within their staff either as an integrating center for this effort or as a JFC-level review mechanism. While the JTCB maintains a campaign-level perspective-and thus is not involved in selecting specific targets and aim points or in developing attack packages-an OPLAW JA must serve on this board.
There are many other examples. For instance, the JFC may establish a series of joint logistics centers, offices, and boards to coordinate the joint logistics effort. Judge advocates may be called upon to furnish legal advice to these organizations, which include the following:
Joint Transportation Board.
Joint Movement Center .
Joint Petroleum Office.
Joint Civil-Military Engineering Board.
Joint Facilities Utilization Board.
CINC Logistic Procurement Support Board.
Theater Patient Movement Requirements Center.
Joint Blood Program Office.
Joint Mortuary Affairs Office.
Joint Materiel Priorities and Allocation Board.
4.1.4.2 Multinational (Combined)
The term multinational describes operations conducted by more than one nation. The term used within the North Atlantic Treaty Organization (NATO) for multinational operations is "combined," which means "[b]etween two or more forces or agencies of two or more allies."135 Multinational operations take place within alliances, such as NATO, or coalitions.
- An alliance is a result of formal agreements between two or more nations for broad, long-term objectives. Alliances may afford the participant nations the time to establish formal, standard agreements for broad, long-term objectives. Alliance nations strive to field compatible military systems, establish common procedures, and develop contingency plans to meet potential threats in a fully integrated manner.
- A coalition is an ad hoc arrangement between two or more nations for common action. Nations usually form coalitions for focused, short-term purposes. In successful coalitions, all parties agree in commitment, even if the resources each invests are disproportionate. While each nation has its own agenda, each also brings value to the coalition, perhaps solely to add legitimacy to the enterprise.
4.1.4.3 Interagency
The term interagency describes activity between or among the military departments, the combatant commands, and one or more nonmilitary executive departments or agencies. Interagency coordination rests on principles in the Constitution, and a process governing that coordination was established in the National Security Act of 1947. National level oversight of the interagency process comes from the National Security Council. Detailed guidance for Interagency Coordination During Joint Operations is in Joint Publication 3-08: Interagency Coordination During Joint Operations, Volumes I and II (9 October 1996).
A key vehicle for interagency coordination is the Country Team, a body headed by the Chief of Mission, the senior United States diplomat in a foreign country and usually someone holding Ambassadorial rank in the United States foreign service.136 Because a representative of the United States Agency for International Development (USAID) typically serves in the Country Team, and because USAID has a lead role in coordinating the efforts of NGOs and PVOs in foreign lands, these organizations also fall under the umbrella of interagency coordination. However, United States military forces coordinate directly with NGOs and PVOs, often through the vehicle of a Civil-Military Operations Center (CMOC) or Humanitarian Operations Center in a disaster relief operation.
4.1.4.4 The Army in a Theater Command
A major component of the concept of modern theater operations is this: when the Army operates outside the United States, the area to which the Army forces deploy is the responsibility of a unified combatant commander. He provides strategic direction and operational focus to his forces by developing strategy, planning the theater campaign, organizing the theater, and establishing command relationships for effective unified action.
Where combatant commanders have a continuing requirement for land combat power or support, Army forces are assigned to their respective commands. In addition to forces assigned in peacetime, a document called the Joint Strategic Capabilities Plan (JSCP) apportions major Army forces by type to a CINC for deliberate planning. In response to crises or actual situations, Army forces are allocated to the CINC. The combatant commander responding to a crisis rarely has sufficient Army units assigned to meet operational requirements. The SECDEF through CJCS directs other CINCs to support the engaged combatant commander with augmentation forces. Augmentation forces pass to the command of the supported CINC at a specific location or circumstance, designated transfer of authority (TOA).
Army forces in a joint force operate within a single chain of command that has two distinct branches--one for operations and another for administration and logistics. The Secretary of the Army is responsible for the administration and support of all ARFOR--a term that denotes Army headquarters and forces assigned to a joint force commander or multinational command. The Secretary of the Army fulfills this responsibility through the Army service component command (ASCC) aligned with each of the combatant commands. The ASCC provides support to the Army Forces (ARFOR) through administrative control (ADCON), which is subject to the combatant command (COCOM) authority vested in all combatant commanders.
Each unified and subordinate unified command includes an ASCC, which consists of the ASCC commander and all those elements under his command. The ASCC commander maintains the ADCON link between his forces and Department of the Army; simultaneously, the ASCC maintains the operational link with the theater CINC (i.e., COCOM link). The ASCC plans and executes support operations to sustain ARFOR within the theater (Title 10 U.S.C. Chapters 303 and 305), and provides support to other services in accordance with executive agent responsibilities (Title 10 U.S.C. Chapter 6).
ASCC responsibilities are described in Joint Pub 0-2, Unified Action Armed Forces. Operational responsibilities include:
Recommending to the CINC or subunified commander the proper employment of Army component forces.
Accomplishing operational missions as assigned.
Selecting and nominating specific units of the Army for assignment to subordinate theater forces.
Informing the CINC of Army logistics support effects on operational capabilities.
Providing data to supporting operation plans as requested.
Ensuring signal interoperability.
Army commanders at all levels are responsible to the ASCC for conducting Army-specific functions such as internal administration, discipline, training, normal logistics functions, and for service intelligence matters and oversight of intelligence activities to ensure compliance with laws, policies, and directives.
4.1.5 Command, Control, and Support Relationships
The distinction between COCOM to ADCON is better understood within the context of the full array of command, control, and support relationships. Four of the relationships stem from what are known in joint doctrine as "command authorities."
Combatant Command
Operational Control
Tactical Control
Support
The three additional relationships stem from other authorities.
Coordinating Authority
Administrative Control
Direct Liaison Authorized
Practice of operational law requires familiarity with this full array.
- Combatant Command. COCOM is the command authority authorized by Title 10, U.S. Code, Section 164, or as directed by the President in the UCP to combatant command commanders (unified or specified). COCOM provides full authority to organize and employ commands and forces as the combatant commander considers necessary to accomplish assigned missions. This authority enables the CINC to organize and employ his commands and forces, assign tasks, designate objectives, and give authoritative direction over all aspects of military operations, joint training, and logistics necessary to accomplish the assigned missions. The CINC normally exercises COCOM through his service component commanders. COCOM is not transferable.
- Operational Control. Commanders at or below the combatant commander exercise operational control (OPCON). OPCON is inherent in COCOM and is the authority to perform the functions of command over subordinate forces. The CINC may delegate OPCON to his subordinates. OPCON is the most authority with which subordinates can direct all aspects of military operations and joint training needed to accomplish any assigned mission. A commander with OPCON may control forces from one or more services. OPCON does not normally include the authority to direct logistics, administration, discipline, internal organization, or unit training. The service component commander retains his service responsibility and authority for forces under OPCON of another command. Judge advocates must be aware of how the U.S. and North Atlantic Treaty Organization (NATO) use the term and must not interchange the U.S. sense with the NATO sense. The NATO term OPCON more closely resembles the U.S. definition of TACON.
- Tactical Control. The CINC uses TACON to limit the authority to direct the tactical use of combat forces. TACON is authority normally limited to the detailed and specified local direction of movement and maneuver of the tactical force to accomplish an assigned task. TACON does not provide organizational authority or administrative and support responsibilities. The service component continues to exercise these authorities.
- Support. The CINC identifies support relationships for one force to aid, assist, protect, or logistically support another force. The supporting force gives the needed support to the supported force. Establishing supported and supporting relationships between components is a useful option to accomplish needed tasks. This concept applies equally to all dimensions of the joint force organized by the CINC. Each subordinate element of the joint force can support or be supported by other elements. Normally an establishing directive is issued to specify the purpose of the support relationship, the effect desired, and the scope of the action to be taken. Joint Pub 0-2 states, "Unless limited by the establishing directive, the commander of the supported force will have the authority to exercise general direction of the supporting effort." The execution of general direction includes the designation and prioritization of targets or objectives, timing and duration of the supporting action, and other instructions necessary for coordination and efficiency. The supporting commander is responsible for ascertaining the needs of the supported commander. The supporting commander must fulfill those needs from within the existing capabilities, priorities, and requirements of other assigned tasks. The categories of support are general, mutual, direct, and close.
- General Support. General support provides designated support to an entire supported force and not to any particular subdivision. General support is the most centralized support relationship. For combat units, this relationship provides the most flexibility for influencing the battle during conduct of operations and is used when the enemy situation is unclear. It is more commonly used in the defense than the offense.
- Mutual Support. Mutual support describes actions that units provide one another against an enemy because of their assigned tasks, their positions relative to one another and to the enemy, and their inherent capabilities.
- Direct Support. Direct support provides designated support to a specific force and authorizes the supported force to seek this support directly. The supporting force provides support on a priority basis to the supported force. Also, the supporting force may provide support to other forces when it does not jeopardize the mission or put the supported force at risk. The authority to accomplish support of other than directly supported forces rests with the higher tactical or operational commander but also may be delegated. An example of this support is when the elements of a general support artillery brigade assigned a direct support mission are diverted temporarily to support a force other than the designated force.
- Close Support. The fourth alternative, close support, is that action of the supporting force against targets or objectives that are sufficiently near the supported force as to require detailed integration or coordination of the supporting action with the fire, movement, or other actions of the supported force.
- Coordinating Authority. Coordinating authority is a consultation relationship between commanders, but not an authority to exercise control. The CINC and other subordinate commanders designate coordinating authority to assist during planning and preparation for actual operations. The CINC specifies coordinating authority to foster effective coordination; however, coordinating authority does not compel any agreements.
- Administrative Control. Administrative Control (ADCON) is the direction or exercise of authority necessary to fulfill military department statutory responsibilities for administration and support. ADCON may be delegated to and exercised by service commanders at any echelon at or below the service component command. The secretaries of military departments are responsible for the administration and support of their forces assigned or attached to unified commands. The secretaries fulfill this responsibility by exercising ADCON through the service component commander of the unified command. ADCON is subject to the command authority of the combatant commander.
- Direct Liaison Authorized. Direct Liaison Authorized (DIRLAUTH) is the authority granted by a commander at any level to a subordinate commander to coordinate an action directly with a command or agency within or outside the command. DIRLAUTH is a coordination relationship, not a command relationship.
4.2 PLANNING AND DECISION-MAKING
The practice and delivery of legal support in theater operations require full participation of legal personnel in the planning and decision-making processes of their commands. It also calls upon SJAs and DSJAs to adhere to time-honored principles in their own planning and decision-making. This part of the chapter outlines these processes and principles.
4.2.1 Planning
The art of planning is not to predict, but to anticipate. The most certain way to constrain unpredictability is to seize the initiative, maintain the momentum, and exploit success. Setting the terms of battle at the outset and never letting the enemy recover should be the aim of every plan for offensive and defensive operations. Every success must be exploited, and every exploitation must lead to the next success. Planning, therefore, never loses its focus on execution. The plan is a continuous, evolving framework that maximizes opportunities -- a point of reference rather than a blueprint. Because the planning process itself generates common understanding, planning has a value that extends beyond the plan itself.
Success in planning rests on the ability to accomplish four tasks:
Understand the full scope of the situation.
Analyze the situation to discern what is important -- the key elements of operational design.
Devise simple, effective, and flexible plans.
Prepare the force to execute those plans.
According to Field Manual 100-5, Operations, plans reflect a fundamental operational design--a linkage of ends, ways, and means. Key conceptual tools that express this design include:
Strategic end state.
Objectives.
Lines of operation.
Mission
Commander's intent
Concept of operations
Battlespace
Rules of engagement
4.2.2 Functions of Staffs
All staffs perform five common functions:
Providing Information--The staff collects, collates, analyzes, and disseminates information that flows into the headquarters. The staff rapidly processes and provides significant elements of this information to the commander. The staff is always sensitive to changes in the battle that may warrant the commander's attention.
Making Estimates--The staff prepares estimates to assist the commander in decision-making. A staff estimate consists of significant facts, events, and conclusions (based on current or anticipated situation) and recommendations on how available resources can be best used. Efficient planning depends on continuing estimates by staff officers. Failure to make these estimates may lead to errors and omissions in the development of a course of action.
Making Recommendations--Staff officers make recommendations to assist the commander in reaching decisions and establishing policies. Staff officers also offer recommendations to one another and to subordinate commanders. In the latter case, recommendations are for assistance only; they do not carry implied command authority.
Preparing Plans and Orders-- The staff prepares and issues plans and orders to carry out the commander's decisions, ensuring coordination of all necessary details. The commander may delegate authority to staff officers to issue plans and orders without his personal approval.
Supervise the Execution of Decisions--The staff assists the commander by ensuring that subordinates carry out the command decision. Staff supervision relieves the commander of much detail, keeps the staff informed of the situation, and provides the staff with the information needed.
At battalion level and higher, the commander is authorized a staff to assist him. Field Manual 101-5, Staff Organization and Operations contains detailed guidance on the composition, organization, and functions of military staffs and on the preparation of plans and orders. The Joint Operations Planning and Execution System (JOPES) contains similar guidance for joint staffs.
4.2.3 The Military Decision Making Process
. Decision-making is part of operational art. A commander and staff will continually face situations involving uncertainty, questionable or incomplete data, and multiple alternatives. They must determine not only what to do, but also whether a decision is necessary. Good decisions result from a logical and orderly process that consists of:
Recognizing and defining the problem;
Gathering the facts and making assumptions needed to determine the scope of and the solution to the problem;
Developing possible solutions to the problem;
Analyzing and comparing possible solutions; and
Selecting the best solution to the problem.
Military command posts typically apply this basic decision-making and problem-solving model in two contexts: first, when they are preparing estimates of the situation prior to issuing an operations plan or order, and, second, when they are preparing staff studies in search of solutions to specific problems. The estimate is the principle problem-solving vehicle in tactical and operational settings; the staff study is the norm in administrative settings. This section discusses only the former.
. The estimate of the situation involves collection and analysis of relevant information for developing, within the time limits and available information, the most effective solution to a problem. The staff officer prepares a staff estimate in order to provide conclusions and recommendations to the commander. The commander uses a commander's estimate to arrive at a decision. Estimates may be written, but are usually a mental process following the problem-solving format outlined above. Army doctrine calls upon commanders and staffs to revise estimates continuously--throughout the military decision making process--as factors affecting the operation change, as new facts are recognized, as assumptions are replaced by facts or are rendered invalid, or as the mission changes.
Staff estimates analyze the influence of factors within particular staff officers' fields of interest on the accomplishment of the command's mission. In coordination with other staff officers, the officer preparing an estimate develops feasible courses of action, and then analyzes and compares those feasible courses of action. The results are conclusions and recommendations.
These conclusions are presented to the commander, who thus may hear a personnel estimate, an intelligence estimate, an operation estimate, a logistic estimate, a civil-military operations estimate and any other desired staff estimates before arriving at his own estimate. The commander bases his estimate on the METT-TC, on personal knowledge of the situation, on ethical considerations, as well as on the staff estimates. The result is a decision, which can be incorporated into a plan or order and then executed by subordinate units.
The parallel estimates developed by staff and commander are the heart of the elaborate decision-making process. The decision-making cycle begins upon receipt of a mission, which the higher headquarters assigns or the commander simply deduces from formal or informal communications with his senior commanding officer. Even before closely analyzing the mission, the commander at this point may seek more information about the current situation and about the mission itself, and he may or may not ask the staff to assist him at this early point.
The commander then conducts a rather formal mission analysis so as to obtain a clear understanding of what it is he is being asked to do. Mission analysis involves identifying the tasks that must be performed, the purpose to be achieved through accomplishing the assigned tasks, and the limitations on his unit's actions, if any. Some tasks will be specified in the operation plan or order received from higher headquarters. Other tasks may be implied. The limitations a commander may discern will include a variety of constraints upon either the operation or the planning process. Examples are phrases in a higher headquarters order that specify "Be prepared to . . . , " "Not earlier than . . . ," "Not later than . . ." Time is a frequent limitation.
The restated mission is what results from the commander's mission analysis. It becomes the basis of the commanders and staff estimates. If these are written, it is paragraph 1. Later, when the commander issues the operation plan or order, this restated mission will be paragraph 2 of that document.
The commander may provide planning guidance to the staff when he announces his restated mission or at any other point in the process. The goal is to provide a common point of departure for the different staff elements without introducing bias into their estimates. He may, for instance, issue definite guidance on whether and how a particular weapons system will be used. He may request that a particular course of action be developed or eliminated altogether. The frequency, amount, and content of planning guidance will vary with the mission, time available, situation, information available, and experience of the commander and the staff.
Relying upon the restated mission, any planning guidance, and estimates, the coordinating staff officers then prepare courses of action. The ongoing estimate process is interactive within a particular decision cycle.137 Staff officers exchange information while concurrently analyzing how relevant factors from their disciplines affect the courses of action. Furthermore, the development of courses of action itself is interactive. The operations officer (U-3/J-3/G-3/S-3) will frequently sketch the tentative schemes of maneuver and supporting fires (see section below on plans and orders) he is considering as part of the operations estimate. The intelligence officer (U-2/J-2/G-2/S-2) or logistics officer (U- 4/J-4/G-4/S-4) might quickly identify one of these schemes of maneuver as not feasible,138 enabling another course of action to be developed before a series (usually three) of courses of action is formally incorporated into the staff estimates that are briefed to the commander.
The chief of staff or executive officer ensures that staff estimates are coordinated, that differences of opinion are identified and resolved, and that only issues requiring the commander's personal attention are presented to him for decision. However, he must take great care not to gloss over or compromise genuine issues for the sake of presenting a common option to the commander. In some units, the Chief of Staff consolidates the various staff estimates and presents one overall staff estimate to the commander. The Courses of Action contained in the estimates are war gamed to determine strengths, weaknesses, and details.
The commander considers modifying the courses of action evaluated in the staff estimates and war gamed, and then, if necessary, returns them for another round of analysis and comparison by the staff. If satisfied with the courses of action as formulated, the commander is to compare all of the courses of action validated by the staff as feasible. Then he makes a decision by adopting the one he thinks is optimal.
Having decided on a course of action to accomplish the mission, the commander announces his decision and concept to key members of the staff. Subordinate commanders may also be present. The concept is the commanders description of how he visualizes the conduct of the operation. The commander may announce his decision and concept orally and in sufficient detail so staff officers and subordinate commanders understand what they must do and, if necessary, can execute the operation without further instructions.
The staff prepares and issues a plan or order that expresses the commander's decision and concept of the operation. Plans and orders may be under constant refinement from the moment they are issued. After a decision is transmitted to units for execution, facts and situations that pertained when the order was published may change. The commander, the staff, and subordinate commanders and staff receive feedback through reports and personal observations, and they use feedback to evaluate whether the mission is understood and, later, whether it is being accomplished.
The staff develops an operation plan (OPLAN) from the course of action selected by the commander, specifying that at a particular time or under certain conditions that OPLAN will be issued as an operation order (OPORD). When forces are to conduct an operation immediately, the staff prepares an OPORD without putting it on the shelf as an OPLAN. Army doctrine recognizes five distinct types of combat orders.
- The operation order (OPORD) is the first type. It gives subordinate commanders the essential information needed to carry out an operation, namely, the situation, the mission, the commander's concept, the assignment of tasks, and the support and assistance to be provided.
- The second type is the warning order (WARNO). A warning order gives preliminary notice of actions or orders that are to follow. The purpose behind a warning order is to give subordinates maximum time for preparation. They have no prescribed format but should contain four essential elements--the addressees, the nature of the operation, the time of the operation, and the time and place the OPORD or OPLAN is to be issued.
- The third type is the fragmentary order (FRAGO). A FRAGO is normally used to issue supplemental instructions to a current OPORD while the operation is in progress. It may be written but often is oral. Although doctrine prescribes no format for the FRAGO, commands typically write them in the basic format of the five-paragraph OPORD to prevent confusion. The OPLAW JA must have timely access to FRAGOs to ensure compliance with the LOW, ROE, and other legal requirements.
- The fourth type is the service support order (SSORD). The SSORD provides the plan for service support of operations, including administrative movements. It provides information to supported elements and serves as a basis for the orders of supporting commanders to their units. SSORDs may be issued either with an OPORD or separately, when the commander expects the CSS situation to apply to more than one operation plan or order. At division and corps levels of command, the SSORD may replace an OPORD's service support annex. If that happens, the staff refers to the existence of the SSORD in paragraph 4 of the OPORD.
- The fifth type of combat order is the movement order. The movement order is a stand-alone order that facilitates an uncommitted unit's movement. The movements are typically administrative, and troops and vehicles are arranged to expedite their movement and to conserve time and energy when no enemy interference (except by air) is anticipated. Normally, these movements occur in the communications zone. The G4 (S4) has primary coordinating staff responsibility for planning and coordinating movements. However, he receives assistance from other coordinating and special staff officers (such as the G3 (S3), PM, MP, transportation officers, and movement-control personnel). The G4 (S4) is also responsible for preparing, publishing, and distributing the movement order.
All types of orders should meet general standards of clarity, internal consistency, and completeness. Orders should use doctrinally-established terms. They should be sufficiently detailed to permit subordinate commanders to accomplish the mission without further instructions. They should be sufficiently detailed to permit subordinate commanders to know what other units are doing. They should be focused on essential tasks. They should not limit the initiative of subordinate commanders by prescribing details of execution that lie within their province. They should not include qualified directives such as "try to hold," or "as far as possible."
) are indispensable to effective orders. SOPs detail how forces will execute unit-specific techniques and procedures that commanders standardize to enhance effectiveness and flexibility. Commanders and other leaders use SOPs to standardize routine or recurring actions not needing their personal involvement. They develop SOPs from doctrinal sources, applicable portions of the higher headquarters' published procedures, the commander's guidance, and techniques and procedures developed through experience. The SOP must be as complete as possible so that new arrivals or newly attached units can quickly become familiar with the unit's normal routine. In general, SOPs apply until commanders change them to meet altered conditions or practices. The benefits of SOPs include--
Simplified, brief combat orders.
Enhanced understanding and teamwork among commanders, staffs, and troops.
Established synchronized staff drills (battle drills).
Established abbreviated or accelerated decision-making techniques.
The operations officer is responsible for preparing, coordinating, authenticating, publishing, and distributing the command's tactical and administrative SOP, with input from other staff sections. There is no prescribed form, but subordinate unit SOPs should follow, insofar as possible, the form of the next higher headquarters SOP.
. The body of the basic OPORD consists of the task organization and five main paragraphs. The task organization indicates the internal ordering of elements for accomplishing a specific mission as well as the command relationships between units.
- Paragraph 1 (Situation) of the OPORD always contains three subparagraphs: enemy forces, friendly forces, and attachments and detachment. OPLANS contain a fourth subparagraph: assumptions. The purpose of paragraph 1 is simply to give an overview of the general situation so subordinate commanders have an understanding of the environment in which they will be operating. This paragraph contains no orders. Paragraph 1b contains the mission of the higher headquarters, the missions of the units on the left and right, the missions of the units to front and rear, and the missions of other elements supporting the higher headquarters mission.
Paragraph 2 (Mission) is a clear, concise statement of the task to be accomplished. It contains the who, what, when (date-time group), where (generally grid coordinates) and why. As mentioned in the previous section, the mission statement is the restated mission generated by the commander's mission analysis. The mission statement does not contain subparagraphs.
Paragraph 3 (Execution) contains the guts of the OPORD--the commander's intent and four subparagraphs. The commander's intent states why the force has been tasked to accomplish its assigned missions, what results are expected, how they facilitate future operations, and in broad terms, how the commander visualizes achieving those results. It also describes the disposition and condition of the command following mission accomplishment.
Subparagraph 3a, the concept of the operation, is the same commander's concept articulated following estimates during the decision-making process outlined above. It is a word picture of how an operation is to be executed with sufficient detail to ensure appropriate action by subordinates. It includes the scheme of maneuver, which addresses the placement and movement of major maneuver elements. It also provides the primary mission of each maneuver element. The fires portion of this subparagraph contains a brief summary of all critical fires that will support the scheme of maneuver. The concept subparagraph also may address civil affairs, intelligence, electronic warfare, engineers, and other support crucial to maneuver.
Subparagraph 3b, tasks to maneuver units, lists units that are organic, attached or OPCON to the issuing headquarters. Each maneuver unit is listed in a separate subparagraph in the order in which each was listed in the task organization. Missions or tasks not listed in the concept of operation are stated clearly and concisely. This subparagraph does not state tasks if those tasks are shown graphically on an operation overlay that may be annexed to the OPORD. Nor does it state tasks that appear in the coordinating instructions subparagraph.
Subparagraph 3c, tasks to combat support units, is self-explanatory.
Subparagraph 3d, coordinating instructions, contains instructions and details applicable to two or more subordinate elements. Rules of engagement may be listed here, as well as in an annex to the OPORD.
Paragraph 4 (Service Support), contains a statement of the logistical and personnel arrangements in support of the operation that are of interest to supported units. Lengthy details may be included in an annex and referenced here. At division and higher levels of command, reference frequently will be made to an admin/log order.
Paragraph 5 (Command and Signal) contains information pertaining to command and control of the unit.
Subparagraph 5a, command, includes the locations of the three command posts (tactical, main, and rear) of the issuing unit, axis of displacement (if not shown graphically on an accompanying overlay), and the location of the command group, as well as the location of the alternate command posts. This subparagraph may also contain liaison requirements if these are different from those stated in the SOP.
Subparagraph 5b contains mission- specific information pertaining to communications. As a minimum, it must contain an index of the signal operation instructions (SOI).
Annexes are separate documents attached to plans and orders. They provide details in specific areas without complicating the basic order. An appendix amplifies a particular annex. Annexes and appendices use the five-paragraph operation order format when to do so makes sense. The mission paragraph of each annex prescribes the mission of the units or elements performing the actions directed within the annex. Annexes are lettered alphabetically using capital letters. Appendices are numbered serially with Arabic numerals. Rules of engagement for the operation are contained in Annex E to the OPLAN or OPORD, while legal support matters are contained in Appendix 4 to Annex I (Service Support).139 Other annexes and appendices in the OPORD may contain important information for legal personnel.
4.2.4 Decision Making in a Time-Constrained Environment.
The two sections immediately preceding this one describe what is referred to today as the Military Decision-Making Process (MDMP). This deliberate model was the only one taught by the Army to its officers in the 1980s. Today, the MDMP remains the preferred process for analyzing in detail a number of friendly force options against the full range of reasonable and available enemy options. It is preferred for developing an OPLAN when time is relatively unconstrained. It remains the subject matter for baseline instruction on decision-making in the Army's system for leader development and reflects time-honored principles. However, the Army recognizes a modified version of the MDMP for use in decision cycles that occur after operations commence. Some refer to this as the "combat decision- making process" or "CDP," although the MDMP remains the only doctrinally recognized "process." The CDP is best understood as selectively shortening the MDMP without substantially changing it. In theory, the MDMP is not intended to be a rigid, lockstep approach to arriving at a decision;140 in practice, it may become unwieldy, particularly when faced with an enemy commander who may gain great advantage by shortening his decision cycle.
The CDP strives to prevent the commander- as military operations involve ever more technical and complex systems-from being submerged in vast oceans of information generated by the staff. The CDP seeks to give the commander the information he truly needs. It seeks to produce decisions that are "close enough" and have the virtue of being quickly made and passed onto subordinates for decentralized execution.
The CDP abbreviates the MDMP using four primary techniques.141 The first is to increase the commander's involvement, allowing him to make decisions during the process without waiting for detailed briefings after each step.
The second technique is for the commander to become more direct in his guidance, limiting options. This saves the staff time by focusing members on those things the commander feels are most important.
The third technique, and the one that saves the most time, is for the commander to limit the number of COAs developed and war gamed. In extreme cases, he can direct that only one course of action be developed. The goal is an acceptable COA that meets mission requirements in the time available, even if it is not optimal.
The fourth technique is maximizing parallel planning. Parallel planning means that several echelons conduct the MDMP at the same time.142 Although parallel planning is the norm, maximizing its use in a time-constrained environment is critical. In a time-constrained environment, the importance of warning orders increases as available time decreases. A verbal warning order now is worth more than a written order one hour from now. The same warning orders used in the full MDMP should be issued when the process is abbreviated. In addition to warning orders, units must share all available information with subordinates, especially Intelligence Preparation of the Battlefield (IPB) products, as early as possible.
While the steps used in a time-constrained environment are the same, many of them may be done mentally by the commander or with less staff involvement than during the full process. The products developed when the process is abbreviated may be the same as those developed for the full process; however, they may be much less detailed and some may be omitted altogether.
One important feature of the CDP is emphasis on the Commander's Critical Information Requirements (CCIR). The CCIR are developed and refined beginning at the mission analysis step of the MDMP,143 but their role is particularly central to the CDP. CCIR enable the commander to reduce the abundant information generated during operations to a useable amount. They identify unknown items of information that are so crucial to the commander's decision-making process that knowledge or ignorance of them will directly affect success in the operation. By definition, the CCIR ensure that information transmitted to the commander is meaningful to him and can be processed by him prior to making a decision, even if the decision-making process has been abbreviated.
Typical CCIR include the following questions:
Can the unit still meet the commander's intent?
Where is the enemy? Doing what? How?
Where are the friendlies? Doing what? How?
What is the posture of the force in the next 6 hours, 12 hours, etc.?
Where will the friendlies be in 6 hours, 12 hours, etc.?
What are the problems of the enemy and how can we exploit them?
What are our problems and how can we correct them?
What are the opportunities of the enemy and how can we deny them?
What are our opportunities and how can we exploit them?
Do we need to change our concept? Task organization? Mission?
Paragraph 3d of the OPORD contains the CCIR.
4.2.5 SJA Planning, Decision-Making, and Orders.
The SJA also adapts the same orderly processes used by the command to plan, decide, and issue orders regarding the section's practice and delivery of OPLAW. The SJA assists the planning, decision- making and orders processes of the command through the OPLAW JA, who reviews all plans and orders for operational law issues, contributes to staff estimates, and otherwise aids in operational design and execution. In particular, the SJA and DSJA ensure that the section develops and continually revises its SOP, taking every opportunity to separate boilerplate from truly useful material.144 An SJA section SOP (and each division or team SOP) must be a living document that is used in day-to-day functions and is frequently updated.
The SOPs are always works in progress. Judge advocates and legal personnel pour into the SOPs those checklists and procedures that come out of their own experience. They must incorporate information that is built upon the experience of others, such as lessons learned from military operations in Haiti, the Persian Gulf, or the Balkans. Still, the SOPs must be put to the test through field application. Development is a constant and iterative process.
4.3 LEGAL SUPPORT IN THEATER
4.3.1 Introduction.
A solid grasp of the theater and associated concepts introduced in the first part of this chapter makes possible a more precise understanding of how legal support is practiced and delivered. When Army forces are not actually conducting operations in a theater, the JAGC supports the mission of the Army and its major commands within CONUS to prepare those forces for eventual employment by a CINC within a theater. That preparation is a massive job, and it consists of everything necessary to organize, train, and equip Army forces "primarily for prompt and sustained combat incident to operations on land" and "for the effective prosecution of war."145
The day-to-day mission of readiness--organizing, training, and equipping forces for operations--inevitably involves Army commanders and judge advocates in legal issues, questions, and cases that may seem only remotely "operational." Judge advocates serving throughout the major commands of the Army and in the FOAs of TJAG will often, properly, conceive of themselves as practicing within a narrow portion of a single legal discipline.
Hence the judge advocate defending the Army in multibillion-dollar environmental litigation is practicing "federal litigation" and "environmental law" within the Civil Law discipline. That judge advocate is also principally discharging the advocate role. Hence the judge advocate investigating a major allegation of procurement fraud may be practicing Contract Law within the Civil Law discipline while discharging principally a "judge" role. Hence the Staff Judge Advocate at a CONUS installation where advanced individual training is conducted may be counselor to the commander on detailed criminal law issues pertaining to improper relationships between instructors and trainees. In these and countless other examples from the daily legal practice of uniformed attorneys in CONUS, legal support reverts to its component core disciplines. These core legal disciplines also dominate the technical language used to describe that daily practice.
For the environmental litigator, the procurement fraud investigator, and the training installation SJA in these examples, the terms "legal support to operations" and "OPLAW" serve as reminders of the readiness challenge that underwrites all of their work. It also reminds them of the need to remain generally competent across all legal disciplines in case their next assignments are to theaters. All judge advocates must be prepared to deliver legal support to operations.
4.3.2 Overseas Presence and Force Projection.
Force projection follows a general sequence, although stages overlap in time and space (for instance, mobilization and deployment may be continuous and occur simultaneously or sequentially). Force projection includes eight stages,146 each of which can be expected to generate OPLAW issues.
Mobilization Stage. This is the augmentation of active component capability in preparation for war or national emergency. It includes activating all or part of the reserve components as well as assembling and organizing personnel, supplies, and materiel. The mobilization system, which is explained in Army Regulation 500-5, The Army Mobilization and Operations Planning System (AMOPS),147 includes five levels:
Selective mobilization.
Presidential selected reserve call-up.
Partial mobilization.
Full mobilization.
Total mobilization.
Predeployment Stage. Activities in this stage ensure units are prepared to execute operations based upon their designed capability. It may include weeks or months of equipment refitting or training at a mobilization station.
Deployment Stage. This stage requires forces to use strategic assets and host nation support, if available to move to the theater of operations. Force mix, combat capability, and sustainment must be flexible to effect changes during this operation. May include use of an Intermediate Staging Base close to the area of operations.
Forced Entry Stage. Operations in this stage may be in direct support of host nation or forward presence forces. Conditions may require entry in the absence of both under opposed or unopposed conditions.
Operations Stage. This stage may include the full range of operations--operations in war, operations other than war, and domestic operations.
War Termination and Post-conflict Operations Stage. This may include restoring order, reestablishing the host nation's infrastructure, and preparing forces for redeployment.
Redeployment and Reconstitution Stage. This stage removes forces no longer required for post conflict operations, rebuilds unit integrity, and accounts for soldiers and equipment.
Demobilization Stage. This is the process by which units, individuals, and materiel transfer from active to reserve status.
Each of these stages may trigger issues from any of the six core legal disciplines (see Chapter 3). However, some legal issues are particularly characteristic of certain stages. Thus reserve component personnel law issues frequently arise in mobilization. Conscientious objector applications and associated legal issues can be expected during mobilization and deployment. Transit agreements, host nation labor laws and other matters sounding in international, comparative, and foreign law can be expected in the deployment phase. Rules of engagement and international law will be particularly important during the entry phase. Fiscal law issues may be prominent in post-conflict--and so on.
4.3.3 Legal Support in Theater
Army legal personnel serve at several levels within a theater. Thus the Army Service Component Command (ASCC) and numbered Army include an SJA section. The ASCC has overall responsibility for providing and sustaining Army forces and conducting operations, however, the ASCC commander may direct a numbered Army commander to control the conduct of operations. The corps, division, and separate brigade commands subordinate to the ASCC also include SJA sections, as do various supporting theater army area commands (TAACOMs) or Theater Support Commands (TSCs), area support groups (ASGs), army special operations commands, and other units and functional commands (i.e., personnel commands, medical commands, engineer commands, etc.) in theater. The headquarters of smaller commands of Army forces frequently include CJA sections. See generally Chapter 2, which describes generic SJA, OIC, and CJA responsibilities.
Army judge advocates may also serve as legal advisors to theater CINCs, or as part of a legal advisor's section. Similarly, they may be assigned to serve on other joint staffs, such as the staff of a Joint Task Force or of a Joint Land Component Commander. This is particularly common when the Army commander in one of these joint forces is also the Joint Force Commander. The staffs of alliance or coalition military organizations also frequently include United States Army judge advocates.
Regardless of the level at which they serve, judge advocates and other legal personnel must be organic and dedicated to these organizations in order to ensure responsive, effective OPLAW support.148
Judge advocates assigned to Army units within an ASCC must learn the missions and characteristics of those units. Distinctive features and missions abound, but there are common features that reflect the strategic and operational purposes these units are designed to serve. This section will describe the features of TAACOMs/TSCs, ASGs, corps, and corps support groups. The common features of Army divisions and brigades are discussed in Chapter 5.
Theater Area Army Command (TAACOM) or Theater Support Command (TSC). A TAACOM, or TSC, has three missions. First, it provides all combat service support, except movement control, to units located in or passing through its assigned area. This support includes the provision of legal services to soldiers and units without organic legal assets. Second, the TAACOM/TSC supports the corps with specified logistics support and coordinates area- related functions, such as populace control, with host nation elements. Third, the TAACOM/TSC is responsible for rear operations in its assigned area. The TAACOM/TSC accomplishes its support missions of supply, maintenance, and personnel services through area support groups (ASG).
Area Support Group (ASG). The number of ASGs in a theater of operations depends on the size of the COMMZ and the number of troops supported. Normally, one ASG is assigned to a TAACOM/TSC for every 15,000 to 30,000 troops receiving support in the COMMZ. The area an ASG supports depends on the density of military units and materiel requiring support, political boundaries, and identifiable terrain features.
Corps. Corps are the largest tactical units in the United States Army and are the instruments by which higher echelons of command conduct maneuver at the operational level. The Army tailors corps for the theater and the mission. Once tailored, corps contain all the combat, combat support, and combat service support required to sustain operations for a considerable period. Corps consist of a headquarters that plans, directs, controls, and coordinates the corps operations and the mix of combat, combat support, and combat service support units. The Army Service Component Commander may assign to the corps divisions of any type required by the theater and the mission. Corps possess support commands and are assigned combat and combat support organizations based on their needs for a specific operation. Nondivisional units commonly available to corps to weight their main effort and to perform special combat functions include armored cavalry regiments, field artillery brigades, engineer brigades, air defense artillery brigades, aviation brigades, and separate infantry or armored brigades. Military police brigades, civil affairs brigades, chemical brigades, and psychological operations battalions are combat support organizations often found in corps. Special operations forces also may support corps combat operations as required, particularly when a corps is conducting an independent operation. Corps combat service support organizations are the personnel group, the finance group, the corps support command, and JAGSOs.
Corps Support Command (COSCOM). The COSCOM is the corps' principal logistics organization. It provides supply, field services, transportation, maintenance, and medical support to the corps' divisions and nondivisional units. The COSCOM is not a fixed organization and contains a mix of subordinate units as required by the size and configuration of the corps.
4.3.4 The United States as a Theater (Domestic Operations).
This is addressed separately in Chapter 7.
4.3.5 Technical Channels.
The command channel is the direct, official link through which one headquarters passes orders and instructions to subordinate headquarters.149 The command channel links one commanding officer to another. A technical channel is a link between two headquarters that transmits orders, instructions, advice, recommendations, and information inappropriate for the command channel because of their volume, specificity, or routine nature.150
The practice and delivery of legal support in operations rely heavily on technical channels. As described earlier, many modern legal problems are complex, demanding expertise and information that will only rarely reside at a single echelon of command. Technical channels--particularly when linked to expertise and information available at CLAMO and TJAGSA--make synergy possible even for judge advocates facing problems in distant theaters.
Those judge advocates and their supported commands benefit from two separate channels, corresponding to the two branches of the chain of command for Army forces in a joint force. Recall from earlier in this chapter that one branch of that chain of command is for operations and the other for administration and logistics. Similarly, one technical channel carries information and legal expertise associated with operations (command and control functions); the other carries information and expertise associated with administration and logistics (sustainment and personnel services support functions).
For example, the SJA advising the 10th Mountain Division at the start of military operations in Haiti in September of 1994 used a technical channel that ran through the ASCC SJA (who was also the JTF SJA) to the USACOM (now USJTFCOM) SJA to the legal advisor for the CJCS. This channel provided valuable guidance on rules of engagement and other operational matters. The SJA of the 10th Mountain Division also used a technical channel that ran through the ASCC to FORSCOM and then to Army OTJAG. This channel provided valuable guidance on a wide variety of legal issues relating to administration and logistics.
Of course, legal issues sometimes will not fall neatly into command and control, sustainment, and personnel service support categories. Also, many complex legal issues will require expertise from several legal disciplines. In these situations, SJAs achieve synergy on a legal issue by tapping whichever channel contains the necessary information or expertise. Often, both channels must be consulted on the same issue. This approach is consistent with the JAGC operating as a single large legal organization, whereby its several members are expected to support each other with information and expertise necessary to assists their clients.
4.4 MATERIEL
All legal personnel must be well equipped and highly trained in order to practice and deliver legal support in a theater of operations. The most critical categories of equipment are legal automation, mobility, and communications. Training of legal personnel, meanwhile, must be conducted according to the Army's principles of training.
4.4.1 Legal Automation
The JAGC requires a dedicated system of automation to provide responsive legal services at all echelons of command. That system is the Legal Automation Army-Wide System (LAAWS). LAAWS integrates legal information and services into a network that projects automated legal services down to battalion level and permits sharing of appropriate legal work product. LAAWS provides for standardized software throughout the JAGC and includes modules and databases for all core legal disciplines. LAAWS programs process, transmit, receive, and display essential information. Legal references compiled by LAAWS are available in compact disk and via databases on the JAGC Information Network (JAGCNet at www.jagcnet.army.mil), a work group consisting of more than seventy computer servers and thousands of clients throughout the world. SJA sections, the military judges, and defense counsel all use LAAWS and the JAGCNet, which are critical to the accuracy and responsiveness of operational legal services. Judge advocates also require access to classified databases and information through Secret Internet Protocol Router Network (SIPRNET).
The standard package of legal automation equipment is the Rucksack Deployable Law Office and Library (RDL).151 The RDL is a set of computer hardware, software, and networking products, which are updated periodically, and currently provide the judge advocate or legal specialist the following capabilities in a man portable bundle:
- word processing, database, spreadsheet, form-filler, and other necessary software that is compatible with command software
legal document production
convenience copying
cellular voice communication
wire line and non-wire facsimile (with satellite communication capability)
wire line and non-wire e-mail and digital communication (with satellite capability)
photography and digital telecommunication of photographs
legal research with import to document capability
The RDL is, and must remain, completely compatible with standard Army communications equipment, and be fully integrated into appropriate parts of the Army Battle Command System (ABCS), to include the Army Global Command and Control System (AGCCS), the Army Tactical Command and Control System (ATCCS), the Global Combat Support System--Army (GCSS-A), and the Force XXI Battle Command-Brigade and Below System (FBCB2) (see FM 24-7, Army Battle Command System: Systems Management Techniques).
The RDL consists of commercial-off-the-shelf (COTS) equipment. It is defined by capabilities, not particular models or brand names. These capabilities will be upgraded as technology advances, to remain compatible with joint and Army systems. The basic RDL package is described below, less technical specifications. The technical specifications were intentionally omitted from this chapter based on the rapid evolution of technology, rapid development of software applications that require increased processing power, and the substantial increase of data that is required to be processed, manipulated, and transmitted in an ever decreasing amount of time. Specific details regarding hardware and software technical requirements can be located by contacting CLAMO or the JAGC Proponent, Combat Developments Department, Organization and Materiel Branch, located at TJAGSA, Charlottesville, Virginia. Its current configuration is as follows:
a laptop computer (with sufficient processor and memory capabilities to interact with ABCS, to conduct efficient research from electronic databases, and to store a large volume of required legal references and products with removable hard drive for secure storage of classified information.
CD ROM reader (preferably internal)
scanner-printer (battery backup)
PCMCIA fax modem (cellular phone and satellite telephone up-linkable)
digital camera
digital audio card and microphone
hard-shell case
full range of software
full range of legal references on compact disks and/or hard drive
RDL requirements are based upon staff functions, OPLAW (C2 and Sustainment) responsibilities, operations at key operational nodes, core legal discipline tasks, and mobility requirements.
The SJA, DSJA, Legal Administrator, and CLNCO perform the staff functions of providing advice and organizing, sustaining, controlling, supervising legal services throughout the area of operations and training legal personnel. They each require an RDL to provide legal advice to the command, to access legal technical support, and to exercise legal technical supervision. OPLAW JAs designated to serve in a BOLT or the TAC CP (or other mobile or fixed command cells or command posts) and in planning and operation cells, each require an RDL. The RDL is required to access ABCS, LAAWS networks, and other secure or controlled communication systems, and to perform core legal discipline tasks in locations away from the main and rear CPs or apart from other legal sections located in the main or rear (based on organizational design and where the legal function is performed). Of utmost importance is the ability to interact with communication and network systems capable of transmitting privileged information or communications (e.g., defense counsel and client; legal assistance attorney and client), classified materials and matters of national security. Each element within the SJA section (as well as the military judge and trial defense elements) requires an RDL to perform tasks relating to its core legal discipline. Additional RDLs are required for judge advocates within divisions of the SJA section who must travel throughout the area of operations to provide services (e.g., claims judge advocates, trial counsel, and legal assistance attorneys).
LSOs and MSOs require RDLs to command the organization and supervise legal services. LSTs require RDLs to perform tasks related to core legal disciplines, and additional RDLs for each judge advocate who must travel throughout the area of operations.
CONUS based legal organizations which support mobilization operations, or which are part of the Base Engagement Force or Base Generating require RDLs to support operations. These organizations also include the legal training organizations of TJAGSA, legal NCOES, and legal sections of Division Training and Exercise elements, and Training Centers.
Finally, other judge advocates and legal specialists in all legal organizations require components of the RDL to perform their legal duties (one laptop computer per attorney and one computer for 80% of the legal specialists).
The RDL equips judge advocates deploying to theater with the basic load of legal references, country-specific materials, and forms necessary to spot and resolve the most common legal issues that will arise during a contingency operation. Digital databases, such as that maintained by the Joint Electronic Library and CLAMO, contribute to the achievement of this goal by furnishing current legal references and recent lessons learned from exercises, the Combat Training Centers, and deployments around the world. The availability of CD-ROM writing equipment at division and corps staff judge advocate sections makes possible the storage of massive amounts of material on compact disk in the days immediately prior to deployment to or within a theater. Much of this material may be obtained during the predeployment period from the exploding numbers of legal reference sites on the World Wide Web. When the deployed judge advocate element is incapable of resolving an issue, the RDL also provides the capability to request and receive advice in digital format from technical judge advocate channels.
Because it is a set of capabilities rather than a fixed package of hardware and software, the RDL permits the JAGC to continue to harness the rapid improvements in the marketplace. Because it is a standard set of capabilities, the RDL provides a common basis to permit training, organizing, and equipping OPLAW JAs and legal personnel.
Despite advances in information technology, legal personnel must always be prepared to provide operational support. Therefore, legal personnel should deploy with paper copies of required references and forms.
4.4.2 Mobility
Embedded legal personnel depend on the units to which they are assigned or attached for transportation. Separate legal organizations, such as LSOs or MSOs, require organic transportation assets. Sufficient vehicles are required for legal personnel, i.e., the SJA/CJA and his staff, military judges, and defense counsel. The number and type of vehicles will depend on the commander's requirements for legal services. Normally, however, a commander should dedicate four High Mobility Multipurpose Wheeled Vehicles (HMMWV), one 5 ton truck, and four cargo trailers to a division or corps SJA section and one HMMWV and one cargo trailer to each CJA section. Additionally, the commander should dedicate one HMMWV with trailer to each military judge in theater and one HMMWV with trailer to each trial defense section. Mobility serves three distinct functions:
Control of Legal Assets. The SJA is responsible for the delivery of legal services throughout the area of operations. The SJA supervises and exercises administrative control over SJA section personnel. To administer legal services effectively, the SJA must know what, where, and when legal services are required and direct the appropriate employment of legal personnel. The SJA must be able to provide technical advice and guidance to subordinate judge advocates. Moreover, as the primary legal advisor to the commander, the subordinate commanders, and the staff, the SJA must have the mobility necessary to be when and where required.
Effective Delivery of Operational Law and Personnel Service Support. Judge advocates and legal specialists provide legal services to lower echelons of command. Judge advocates require mobility for several reasons, including: investigating allegations of war crimes and violations of the Uniform Code of Military Justice; receiving, investigating, and paying foreign claims; performing legal liaison throughout the theater; providing legal assistance; and advising commanders on time-sensitive, mission-essential legal problems, particularly those encountered during operations other than war.
Service of Geographic Zones. Military judges provide judicial legal services on a geographic basis. They are assigned to the United States Army Judiciary with duty station at corps and echelons above corps. Courts-martial will be conducted in the accused's unit's area of operations and as far forward in the unit's area of operations as the commander deems appropriate. Trying courts-martial as far forward as possible will minimize disruption of the unit, provide better availability of witnesses, and speed the administration of military justice. Military judges must have the mobility to preside over courts-martial and perform magistrate duties where and when needed. Defense counsel provide defense legal services to the units for which they are assigned responsibility or on a geographic basis. Defense counsel must have the mobility to interview and consult with widely scattered clients and witnesses, and represent their clients before courts-martial and adverse administrative proceedings.
4.4.3 Communications
Modern theater operations will frequently take place in a fluid, chaotic, and lethal environment in which mobility will be constrained. Legal advice will be time-sensitive and often critical. Judge advocates must be assured access to communications that link them with the commander, the subordinate commanders, the staff, and the SJAs at higher echelons. In addition to digital communications across the Army Battle Command System, judge advocates must use combat net radios (CNR), area common user (ACU) telephones, Army Data Distribution System (ADDS) equipment, and Broadcast System (BDCSTS) equipment, where necessary.
4.5 TRAINING152
4.5.1 Principles of Training153
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Staff judge advocates must have a training philosophy. Training affords staff judge advocates as well as commanders the opportunity to explore and surmount the variety of problems and challenges that will always confront them. When a staff judge advocate takes this attitude, most of his or her problems--and those of the section--will be met and solved in the course of regular training, and thus will cease to be problems. The same attitude will prevail again over new problems.
Training must address both the soldier and the lawyer--tactical skills and legal skills. Soldier training should address common soldier skills, such as use and maintenance of weapons, NBC protection and decontamination, land navigation, first aid, and radio procedures--how to shoot, move, and communicate. Training applies just as crucially to legal research, writing, advocacy, case and project organization, automation, maintenance, and safety. Training is all-encompassing and should be related to everything lawyers and legal personnel do to support the commander on the battlefield.
The key to all successful training lies in raising the quality of individual skills and the teamwork of small sections or units. Success in everything from a battle or other real world military operation to large scale legal representation is dependent on the coordinated effort of a number of small units of diverse types working together to accomplish a mission. Other things being equal, the military force with the best-trained small units will prevail, and the legal organization with the best-trained small teams will prevail. Even if other things are not equal, superior training at the individual and small section level will often carry the day.
Staff judge advocates prepare for operations in a theater by adhering to the Army's principles of training. There are nine.
Train As A Combined Arms And Services Team. "Combined arms and services" is a technical term referring to military actions that integrate combat functions (infantry, armor, and aviation), combat support functions (field artillery, air defense artillery, and engineers), and combat service support functions (logistics, personnel services, and health services).154 The example provided in Field Manual 25-100, Training the Force, is that of the division commander who trains regularly with his entire "slice" of "basic combat, combat support, and combat service support systems." SJAs recognize that this first principle mandates not only that they support the command's desire to conduct collective training with a full "slice" of judge advocate support, but also that the training of an SJA section itself must integrate claims, legal assistance, military justice, administrative law, civil law, international law, and all other aspects of legal support to operations. It also means that the SJA must coordinate with reserve component legal elements to have them participate in major exercises.
Train As You Fight. This principle demands that training take place under realistic conditions. Operations in Panama, the Persian Gulf, northern Iraq, Haiti, Bosnia, and other places confirmed that legal issues are some of the most challenging the command and staff will face. They must be incorporated into collective training events, just as smoke, noise, chemical attacks, battlefield debris, loss of key leaders, and cold weather must be incorporated.
Use Appropriate Doctrine. Training must conform to Army doctrine. Recall that one of doctrine's roles is to reflect a shared vision that can serve as the basis for planning, organizing, leading, equipping, and training the force. We are a doctrine- based Army. Army doctrine is contained in Field Manual 100-5, Operations and supporting doctrinal manuals, such as this one. Army training doctrine is contained in Field Manual 25-100 as well as in Field Manual 25-101, Battle Focused Training. Judge advocates must be conversant in these references.
Use Performance-Oriented Training. Soldiers and lawyers learn best by doing, by putting their hands and minds on the implements they will be required to use when the real test of combat or deployment comes. The Army stresses use of a full range of training aids, devices, simulators, and simulations (TADSS) to take the individual or unit being trained out of the sterile classroom and into a practical situation that reproduces the conditions under which they must be able to perform. The Army's four Combat Training Centers, with judge advocate observer-controllers or trainers at each, provide the most realistic training. An SJA invokes this principle whenever he and the Chief of the Criminal Law Team organize rehearsals of trial counsel's opening statements, examinations, motions arguments, or closing arguments. SJAs also invoke this principle when they insist that RDLs and other equipment are brought to the field and that every division generates its standard products during exercises.
Train To Challenge. SJAs and other judge advocate leaders never apologize for the challenging training they plan and execute. OPLAW demands tough, realistic training that challenges legal personnel physically and intellectually. Such training builds competence and confidence by developing and honing skills. It inspires excellence by giving each individual a glimpse of how daily activities fit into the broader mission and by fostering initiative, enthusiasm and eagerness to learn.
Train To Sustain Proficiency. The SJA section must always be ready to deploy; it must be vigilant not to "peak" and then have proficiency drop as time passes, skills decay, and new people replace experienced people.
Train Using Multi-echelon Techniques. Field Manual 25-100 tells us that "[t]o use available time and resources most effectively, commanders must simultaneously train individuals, leaders, and units at each echelon in the organization during training events." This principle not only demands that legal specialists perform individual tasks (e.g., disassemble and assemble M16 rifle, fill in the blocks of a nonjudicial punishment form) but also demands that the claims division and the entire SJA section perform collective tasks (e.g., process, investigate, adjudicate, and pay a foreign claim; administer the military justice system, etc.). Quality training exercises are so rare that leaders must make them count on many different levels.
Train To Maintain. The upkeep of equipment and weapons is as much a part of training as using the equipment expertly. Legal personnel routinely perform virus checks and other diagnostics, change printer cartridges, and protect our equipment by ensuring that all work areas are kept clean and dry. They frequently draw and maintain all of the tentage, vehicles, weapons, and equipment they will need in real deployments to a theater of operations.
Make Commanders The Primary Trainers. Commanders are responsible for the training and performance of their units. They personally ensure that exercises are based on real world mission requirements, identify the applicable Army standards, assess the current level of proficiency, provide the required training resources, and develop training plans designed to create proficient individuals, leaders, and units. Similarly, SJAs--with command support--must be the primary trainers of their section.
4.5.2 Mission Essential Task Lists (METL)
Mission essential tasks are collective tasks in which an organization must be proficient to accomplish some portion of its mission in a theater. The Mission Essential Task List (METL) for an SJA section consists of the mission essential tasks on which the section focuses its training. The METL concept was conceived in recognition that units and organizations cannot achieve and sustain proficiency on every possible training task. "METL development" is not only applicable to corps and divisions and brigades; it also applies to subordinate elements, such as the staff, and-within the staff itself-the SJA section, as well as in JAGSOs.
METL are Required. Field Manual 25-100 states that all active component and reserve component organizations--MTOE as well as TDA organizations--should prepare METLs.155 Command groups and staff elements at each level develop METLs for their areas of responsibility. The next higher commander in the chain of command approves each organization's METL. Staff METLs are approved by the organization's commander or Chief of Staff. The SJA and the DSJA156 develop and present a recommended METL in consultation with the separate team chiefs; they are also the staff agency responsible for approval and assistance of development of METLs by LSOs/MSOs war-traced to their command, as well as the SJA sections of other RC units (such as GSUs) assigned to their command.
Collective Tasks. SJAs and LSO/MSO commanders consult the METL of the organization their sections or units support along with "external directives" that relate to the wartime or contingency deployment role they and their sections are expected to serve. These include the Uniform Code of Military Justice and various other provisions of Title 10 of the United States Code, certain articles of the Geneva Conventions,157 authorities mandating operational law support,158 Army Regulation 27-1, Judge Advocate Legal Services,159 and other regulatory sources. SJAs and LSO/MSO commanders also consult Army and joint doctrinal references including this field manual.160 From these diverse sources, they identify all of the possible collective tasks on which to train.
Choose the METL. SJAs and LSO/MSO commanders then select from this long list of possible tasks a smaller set of tasks on which the SJA section or LSO/MSO would have to be proficient in order to accomplish their wartime or contingency missions. The smaller set of tasks becomes their METLs. By proceeding in this manner, they can be sure that training efforts will be concentrated on the most important collective tasks required to accomplish their mission. Note five important things about METL development.
First, mission essential tasks must apply to the entire organization-the list does not include tasks assigned solely to subordinate organizations, such as the Claims or Legal Assistance Teams.
Second, the availability of resources does not affect METL development. The METL is an unconstrained statement of the tasks required to accomplish wartime or contingency missions.
Third, when units are based in CONUS rather than deployed forward in a theater, deployment itself is often captured on the list.
Fourth, because the SJA section--unlike an infantry brigade--conducts daily support functions, the METL may address differences between garrison and deployment operating conditions.
Fifth, the SJA or LSO/MSO commander establishes no prioritization of tasks within the METL. By definition, all tasks are essential to ensure accomplishment of the mission.
Although the missions (and therefore the METLs) of Army divisions vary, a sample SJA section METL for a division based in the CONUS might look as follows:
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Establish conditions and standards.
After identifying these mission essential tasks, the division SJA and the DSJA (or LSO/MSO commanders) establish supporting conditions and standards for each task. These conditions and standards that relate to a task are referred to as a training objective. In the course of developing the standards of proficiency to which they need to train the section, they also identify collective sub-tasks as well as individual tasks that supported the section's performance of each mission essential task.
Standards should measure whether the section is responsive, effective, and efficient in meeting the needs of the command. Measures of responsiveness might include command advice processing time, time between a criminal offense and preferral of charges, time required to process a claim, and a time a client must wait for an appointment with an attorney. Measures of effectiveness might include how frequently a legal issue surprises the command, the quality of legal reasoning, opinions, and products, the level of judge advocate integration into the staff, how frequently operational law advice is followed by the command, and the quality of advocacy. Measures of efficiency might include how well personnel use automation technology, and the extent to which procedures are standardized.
Battle Tasks
After they review and approve the METLs, the Division Commander and Chief of Staff select battle tasks. A battle task is a mission essential task that is critical to the next higher organization's performance of a mission essential task of its own. Here, the next higher organizations are the Division Command Group and Staff. Although the SJA and the DSJA (or LSO/MSO commanders) regard all of the tasks on the METL as having equal priority, the Commander and Chief of Staff in this example have made an allocation decision about scarce training resources and have elected to give emphasis during training evaluations to three of the five tasks. These are battle tasks for the Division Staff.
The METL development process then continues as the SJA and the DSJA help guide each of the separate division chiefs (operational law, claims, military justice, administrative law, civil law, legal assistance, international law)--to develop METLs for their elements. In addition, they guide the BOLTs in the development of the BOLT METLs. LSO/MSO commanders do the same for LSTs.
Throughout this process, SJAs/DSJAs and LSO/MSO commanders mentor subordinates to ensure that the METLs and corresponding training objectives developed accurately reflect tasks that will be essential to mission accomplishment in wartime. Through leadership and personal example, they guarantee that METL development is a dynamic process and that all section training is directed toward METL tasks, conditions, and standards.
4.5.3 Planning for Training.
Training Assessment. Once they have developed and received approval of a METL, SJAs/DSJAs and LSO/MSO commanders then conduct training assessments. They compare current proficiency with the standards listed for each mission essential task. They use all available evaluative material to make this comparison, to include consultations with the separate team chiefs. Then they develop a training strategy to achieve a "trained" proficiency level in each supporting collective subtask and individual task.
Throughout this process, they consult the commander's training guidance documents, which identify major training events.161 In this way, they are able to incorporate Combat Training Center rotations and other major exercises into the training plan.
Training Guidance. Soon after taking command, a commander issues command training guidance and an up- to-date long-range training calendar for the unit. The SJA and the DSJA present and receive approval of the SJA section METLs during the one of the quarterly training briefs or semi- annual training briefs early in the commander's tour. This same process applies to the METLs of the LSOs/MSOs, as well as RC units with embedded judge advocate sections; however, the training briefs by which their METLs are reviewed and approved may be presented to their peacetime chains of command in addition to, or in lieu of, presentation to the their wartime gaining commanders.
Training briefs produce a training contract between commanders and SJA or LSO/MSO commanders. The commanders provide resources and protect the SJA sections or LSOs/MSOs from unprogrammed taskings. SJAs and LSO/MSO commanders then lock in and execute approved training plans. This shared responsibility helps maintain priorities, achieve unity of effort, and synchronizes actions to achieve quality training and efficient resourcing.
The training briefing is a highlight of the commander's leader development program. It provides the commander an opportunity to coach and teach subordinates on the fine points of his philosophy and strategies in all aspects of warfighting, to include doctrine, training, force integration, and leader development. It enables the SJA and assigned LSOs/MSOs to gain a better understanding of how their mission essential training relates to the battle-focused training programs of their commanders and peers.162
The SJA or LSO/MSO commander also uses this training management process to mentor and build an effective section, and foster a positive leadership climate. Because many of the sub-tasks require professional as well as military judgment on the part of junior and relatively inexperienced judge advocates, the importance of well-rehearsed, monthly officer Leader Development Program (LDP) sessions and continuing legal education (CLE) courses at TJAGSA cannot be overstated. The SJA should not overlook the importance of orientation programs for newcomers, regular leader development sessions for division chiefs and noncommissioned officers, the development of off-the-shelf programs of instruction on rapidly changing areas of the law, dining-ins, staff rides, no-notice alerts, and regular section meetings.
4.6 LEGAL SUPPORT AND SPECIAL OPERATIONS
Judge advocates in theater operations will serve in or alongside a variety of special operations units. Special operations routinely have legal implications that cannot be discerned without general background information about special operations doctrine, capabilities, and organization. This part of the chapter provides that information while also describing distinctive tasks that OPLAW JAs and legal personnel in special operations units are called upon to perform.
Special operations are actions conducted by distinctively organized, trained, and equipped military and paramilitary forces to achieve military, diplomatic, economic, or informational objectives by unconventional means. United States special operations forces (SOF) consist of Army, Navy, and Air Force units. Special operations occur frequently in hostile, denied, or politically sensitive areas across the full range of military operations.163
The theater CINC will often plan a joint special operations effort. When this occurs, a Joint Special Operations Task Force (JSOTF), created by the CINC, is given responsibility to execute the operations in accordance with the joint plan. It is important to recognize that the JSOTF and the forces comprising it form a separate task force. Nevertheless, the CINC may place the JSOTF under the OPCON of another JTF, or designate elements to serve in direct support of subordinate unit commanders for portions of the theater operations.
The five principal missions of special forces are
Unconventional Warfare
Direct Actions
Special Reconnaissance
Foreign Internal Defense
Counterterrorism
As "collateral activities," special operations forces may participate in security assistance, humanitarian assistance, antiterrorism, counterdrug operations, personnel recovery, and other special activities. Most of these terms have technical meanings. Detailed information about special operations is contained in Field Manual 100-25, Doctrine for Army Special Operations Forces.
Special operations during war and in other hostile environments usually occur deep in the enemy's rear area or in other areas void of conventional maneuver forces. They may also extend into the territory of hostile states adjacent to the theater. While each special operations action may be tactical in nature, its effects often contribute directly to theater operational or strategic objectives in support of the theater campaign plan. Special operations may seek either immediate or long-range effects on the conflict.
Typical SOF missions include interdicting enemy lines of communication and destroying military and industrial facilities. SOF detachments may also have missions associated with intelligence collection, target acquisition, terminal guidance for strike aircraft and missile systems, personnel recovery, and location of weapons of mass destruction. Some detachments conduct psychological operations (PSYOP) to demoralize the enemy and collect information in the enemy's rear areas. Some SOF organize, train, equip, and advise resistance forces in guerrilla warfare for evasion and escape, subversion, and sabotage. They work with indigenous people in regions of conflict in support of United States national interests. They add depth to the campaign, forcing the enemy to deploy significant combat forces to protect his rear area.164
Special Operations Forces. There are five types of Army SOF:
Special Forces units are specifically organized, trained, and equipped to conduct special operations. They conduct all of the principal special operations missions and collateral activities.
Ranger units are rapidly deployable, airborne-capable, and trained to conduct joint strike operations with, or in support of, special operations units of all services. They can also conduct strike missions in support of conventional operations and can operate as conventional light infantry units when properly integrated with other combined-arms elements.
Special Operations Aviation units are specialized aviation assets dedicated to conducting special operations missions. They provide a mix of short, medium, and long-range lift and limited light-attack capabilities. They support all principal and collateral mission areas and can conduct autonomous special reconnaissance and direct-action missions.
Psychological Operations (PSYOP) forces are employed to influence favorably the attitudes and behaviors of specific foreign audiences and reduce the will, capacity, or influence of hostile forces to wage war or otherwise threaten U.S. interests. PSYOP forces are equipped with audiovisual, print, loudspeaker, and radio and TV broadcasting capabilities to support friendly forces. Their activities often are sensitive and have significant political and occasionally legal implications.
Civil Affairs forces are employed to enhance relationships between military forces and civilian authorities and populations in friendly, neutral or hostile areas of operations. Civil affairs forces are used to reduce civilian interference and to gain popular understanding, support, and compliance with measures required to accomplish the mission. They also engage in the type of activities associated with the operation of civil government and its institutions, population, and resources.
4.6.1 Legal Support and Special Operations165
Special operations missions are legally and politically sensitive, particularly in the absence of international armed conflict. The commander must consider not only traditional law of war issues, but also the requirements of domestic United States law (such as fiscal, security assistance, and intelligence oversight laws or Department of Defense Directives relating to PSYOP) and broader international law requirements (such as those in mutual defense treaties and host nation support agreements).
Army special operations forces (SOF) receive OPLAW support from the SJA, United States Army Special Operations Command (USASOC) and the SJA, United States Army Civil Affairs and Psychological Operations Command (USACAPOC). Additionally, a judge advocate is required by, and assigned to, each special forces group; psychological operations group; special operations aviation regiment; ranger regiment; and civil affairs command, brigade, and battalion. These judge advocates provide responsive legal advice to the commander as required.
An OPLAW JA assigned to a special operations unit has many of the same responsibilities as judge advocates in other units. For example, the judge advocate must provide legal assistance consistent with professional responsibility requirements, assist the commander in administering military justice, and participate in administrative separation proceedings.
A Special Operations OPLAW JA's principal duty is to serve the counselor function for commander and staff. To do so, he must accomplish the predeployment preparation (to include the equipment and training tasks) discussed earlier in this chapter. Judge advocates assigned to special operations forces may deploy with their units deep in enemy territory where access to other legal resources is nonexistent. Accordingly, the legal references and other capabilities of the RDL loom particularly significant, as do communications links with technical legal channels.
In addition to preparing for deployment to a theater, special operations OPLAW JAs must accomplish the tasks similar to those assigned to the OPLAW JA in a Corps or Division SJA section. They must attend planning sessions for all operations, including exercises; review all operations, contingency, and exercise plans and orders for compliance with domestic, foreign, and international law and applicable policy and regulations; and be available to provide legal services during military operations.
All soldiers must receive law of war training commensurate with their duties and responsibilities. Special operations OPLAW JA, with the assistance of legal specialists, provide training that not only addresses conventional law of war issues but also addresses issues unique to special operations.
4.6.2 Legal Support and Civil Affairs166
Civil affairs operations are politically and legally sensitive because they involve the interrelationship between the United States military forces and civilians in the area of operations. Domestic, international, and foreign laws regulate and influence civil affairs operations. Commanders and civil affairs personnel must have ready access to legal personnel for mission-essential legal services. Violations of the law or local moral standards by United States military personnel risk alienating the local populace and jeopardizing the public support required for United States military and political objectives.
Civil affairs operations address the relationship between military forces, civil authorities, and the population of a friendly or occupied country. Civil affairs operations concern the effect civilians have on military operations and the economic, social, and political effect military operations have on civilians. A major civil affairs mission is to mobilize civilian support for United States military operations and political objectives in war and peace. Civil affairs operations:
Support the commander in the conduct of military operations.
Support the commander in meeting legal obligations and moral standards regarding the local populace.
Further the national and international policies of the United States.
Civil affairs operations are coordinated military activities that influence, develop, or control indigenous infrastructures in operational areas. They involve conventional and special operations missions (e.g., foreign internal defense and unconventional warfare) or may be pursued independently in support of United States country teams. They may include United States, allied, and indigenous security forces; civil authorities; non-government agencies; and the local populace. Civil affairs operations include:
- Mobilizing civilian support for United States military and political objectives.
- Preventing civilian interference with the mission.
- Facilitating host nation support and establishing liaison with civilian authorities.
- Supplementing intelligence efforts at the operational and tactical level.
- Providing civil administration or military government in foreign territory.
- Controlling the local noncombatant population; detaining enemy collaborators; and exercising military control over private, public, and enemy property.
The U-5/J-5/G5/S-5 /Civil-Military Operations (CMO) Officer:
Is the principal staff assistant to the commander in civil affairs matters, including all matters concerning political, economic, and social aspects of military operations.
Acts as liaison between the military forces, civil authorities, and people in the area of operations.
Coordinates actions in which the force employs psychological operations techniques to support civil affairs objectives.
Because civil affairs units 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 (or the Chief of the BOLT in a conventional brigade task force supported by civil affairs elements) of the supported command is the sole legal advisor to the supported commander. Furthermore, the SJA of the 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.
Judge advocates assigned to civil affairs units are the primary legal advisors to those organizations. The senior judge advocate of the unit is the unit's command judge advocate (CJA) and, therefore, is a member of that commander's personal and special staff. Civil affairs judge advocates provide mission-essential legal services to the unit, including OPLAW support, as required by the commander. A civil affairs unit's CJA will coordinate with the SJA of the command to which the civil affairs organization is assigned or attached for technical guidance and supervision.
Judge Advocate General Service Organizations (JAGSO) may be detailed to corps, TAACOMs/TSCs, and theater armies to assist with civil affairs legal matters.
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. Legal obligations derive from domestic, international, and, when applicable, foreign law. During armed conflicts, the Fourth Hague Convention of 1907 and the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War set forth many of the commanders' legal obligations. In the absence of armed conflict, relevant legal sources frequently include the 1951 Convention Relating to the Status of Refugees, United States statutes and decisions pertaining to immigration, and executive branch materials relating to political asylum and temporary refuge. As a matter of DoD policy, the Armed Forces of the United States will comply with the law of war during all armed conflicts, however such conflicts are characterized, and with the principles and spirit of the law of war during all other operations.167 In practice, it has been U.S. policy to comply with the law of war in operations other than war, to the extent practicable and feasible.168 The International Covenant of Civil and Political Rights and other human rights treaties, as well as various host nation laws according individual rights to citizens may also apply in a given situation.
For these missions, it is essential to consider local customs and traditions, cultural and religious considerations appropriate to the area of operations, and established principles of humanity. RDLs must thus not only include CDs containing comparative and foreign legal materials; they must also include country study materials of a more general nature.
The SJA or BOLT of the supported command, the U-5/J-5/G-5/S-5, and the civil affairs CJA will coordinate to provide the following legal services to their commanders during all phases of civil affairs operations:
- Planning Phase.
Assisting in the preparation of, and reviewing, civil affairs plans for consistency with the law and national command authorities' (NCA's) guidance.
Preparing the legal section of the civil affairs area study and assessment.
Providing predeployment CA training as required.
- Combat Operational Phase.
Providing advice on: Population control measures.
Targeting to minimize unnecessary collateral damage or injury to the civilian population.
Treatment of dislocated civilians, civilian internees, and detainees.
Requests for political asylum and refuge.
Acquisition of private and public property for military purposes.
Psychological operations and their effects on the civilian populace.
- Stability and Consolidation Phase.
- Providing advice on and disposing of claims submitted by local civilians.
- Providing advice on the jurisdiction of local courts over United States military personnel and activities.
- Providing advice on humanitarian and civic assistance issues.
- Providing advice on disaster relief.
- Assisting in the creation and supervision of military tribunals and other activities for the proper administration of civil law and order.
- Assisting civil administration activities, including:
- The establishment and operation of local judicial and administrative agencies.
- The closing and reopening of local courts, boards, agencies, and commissions.
- Defining the jurisdiction, organization, and procedures of local government institutions.
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