Chapter 5 Legal Support in War

Whenever Army forces are called upon to fight, they fight to win. Army forces in combat seek to impose their will on the enemy . . . Victory is the objective, no matter the mission. Nothing short of victory is acceptable . . .
	Field Manual 100-5,Operations¹⁶⁹

In 1970, with all the [1st Cavalry Division] lawyers located at the division main headquarters, such activities as interviewing witnesses for trial, advising convening authorities located outside of Phuoc Vinh and, in some instances, actively conducting trials at firebases, required traveling by air. Additionally, troops normally did not come into headquarters for personal legal assistance or to file claims; judge advocates brought legal services to them . . . [T]hanks to the division chief of staff, Col. Edward C. Meyer, a helicopter was dedicated one-half day a week for use by the Army lawyers. It was known as the "lawbird" on the days it flew.

Colonel Frederic L. Borch III
Judge Advocates in Combat¹⁷⁰

5.1 THE LIMITS OF WAR

In war, military force is the state's primary means to achieve victory. Among the categories of conflict between states, war is the most violent and the most dangerous. A modern nation at war-because of the enormity of the resources engaged and the destructiveness of the means employed-will frequently perceive the war as "total" and "absolute."¹⁷¹ For those fighting it, war will appear to spell victory or defeat, with no middle ground between those stark alternatives.¹⁷²

A commander leads his forces to military victory in war by practicing operational art. He directs attacks against enemy centers of gravity.¹⁷³ He and the enemy commander are both constantly looking for an edge, for the opportunity to gain and maintain the initiative. Often it is the side that can adjust most rapidly that will gain this edge and go on to win. The commander seeks to outthink the enemy commander and thus give United States troops the advantage over their foes. This is often a matter of giving the enemy commander more problems to solve in a given time than he and his organization can possibly handle. It is a matter of exhausting the enemy's options, breaking the coherence of his operation, and forcing him to fight on our terms. Finally, it is a matter of physically defeating or destroying him.¹⁷⁴

Throughout history, a defining feature of wars has been that they include periods of intense, armed combat; soldiers, sailors, airmen and marines physically defeating enemy units by killing enemy soldiers, sailors, airmen, and marines in battles. For the individuals involved, sometimes reduced to fighting with bayonets or their bare hands, war is totally consuming. It absorbs every ounce of energy, will, and stamina, with nothing left in reserve. In such circumstances, war is absolute. It is life or death.

Yet the popularized notions of "total war," "absolute war," and "unlimited war" are misleading. As Peter Paret, one of Clausewitz' modern interpreters, has written, "If war were one short, uninterrupted blow, preparations for it would tend toward totality, because no omission could ever be rectified." But in reality war is always a longer or shorter succession of violent acts, interrupted by pauses for planning, the concentration of effort, the recovery of energy-all on the part of two or more antagonists, who interact. A variety of elements within the opposing societies, the "free will" of the leadership, which may or may not conform to the objective realities, and the political motives of war, will determine the military objective and the amount of effort to be expended. "War is merely the continuation of policy by other means."¹⁷⁵

Thus, the term "unlimited war" does not accurately describe even prolonged large-scale conflicts in which forces suffer heavy casualties. To be sure, as Clausewitz says, war is "an act of force, and there is no logical limit to the application of that force." But "[i]n the real world, the absolute is always modified . . . ."¹⁷⁶

Legal support in war involves the study and application of those limits our government formally imposes on the waging of war. In conjunction with national policy, law regulates when, where, how, and against what commanders and soldiers we may employ weapons. Law creates the procedures and military courts by which good order and discipline are maintained within the force, within the ranks of captured enemy prisoners of war, and throughout occupied territories. Law ensures that supplies and equipment are procured in a manner that frustrates waste, fraud, and abuse of public moneys. Law governs the mobilization of the reserve component. Lawful regulations articulate formal policies for everything from the taking of war trophies by United States forces to the conduct of official investigations. The law, even in war, continues to treat each soldier as an individual person, capable of drawing a Last Will and Testament, making contracts, incurring debts, getting married, paying child support, or filing an income tax return.

5.2 PHASED AND NESTED OPERATIONS

Military operations during war are not uniformly intense through time. This fact bears heavily upon the intensity of demand for the different functional areas and legal disciplines. The preconflict and postconflict phases of wartime operations will often resemble military operations other than war (MOOTW) in the character of legal issues generated.

Commanders use phasing because operational art requires them to shift emphasis from one operational category to another.¹⁷⁷ For example, elements of the Third U.S. Army deployed to Saudi Arabia in 1990 primarily as a show of force to deter aggression against that country. The Third Army's operational focus shifted to the defense when enough forces arrived to make that possible. It shifted to the offensive when it launched a ground attack to destroy the Iraqi Army. Following the successful offensive, the Third Army's operational focus shifted to post-conflict operations designed to restore essential infrastructure in Kuwait. Branches and sequels in the plan account for the need to shift emphasis as a mission unfolds.

In addition to conducting different categories of operations over time, units sometimes conduct different categories of operations simultaneously. One headquarters may have subordinate units focused on different categories of operations, all operating in the context of the higher commander's intent. The larger the unit, the more this nesting of unlike operations is likely to occur. For example, a corps conducting offensive operations may have several brigade-sized units engaged in offensive operations while the rest of the corps conducts defensive operations. Some of its other units may be conducting support operations to aid battlefield refugees.

The smaller the unit, the more likely the entire force will focus on the dominant operation. A division conducting a mobile defense, for example, may employ one brigade to conduct delaying actions (defensive operations) , and two brigades to strike the decisive blow (offensive operations). On the other hand, a company in the attack often employs all assets in the offense.

Some units may conduct roughly the same activities regardless of the category of operation they are conducting. This is particularly true for combat service support forces and certain combat support forces such as signal elements. Others may have to perform significantly different tasks. An infantry company conducting a movement to contact executes a different set of tasks than it does when conducting a disaster response.

In this regard, the distinction between war and MOOTW should not be relied upon by SJA sections to create two wholly separate approaches to training and operations. While large scale deployments to prosecute wars will more likely involve classic offensive and defensive operations, they will also frequently include stability and support operations. As the next chapter explains, stability and support operations, whether during war or MOOTW, may present particularly tough and sustained challenges to operational law assets.

5.3 CONCEPT OF LEGAL SUPPORT IN WAR

5.3.1 Command & Control, Sustainment, Personnel Service Support

Legal support in the preparation for and execution of war will cut across all three functional areas and vary in proportion throughout an operation. After the initial surge of personnel support during the mobilization and deployment of forces, the practice of OPLAW-the C2 and sustainment functions described in Chapter 3-in war will dominate the legal landscape. The issues are fast-paced, require constant situational awareness, and can affect a commander's options by expanding or limiting his courses of action. This is not to say, however, that legal personnel services are any less critical to providing legal support in operations. When delivered properly, legal personnel services may appear transparent to the commander. A loss of discipline, or morale failure where soldiers are overly concerned about problems at home, however, would not.

5.3.2 Command and Control (C2).

The American way of war is to employ overwhelming force at the decisive point, but it is also to respect legal limits. In order to achieve the former, commanders and staffs must know the precise extent of the latter. In the early phases of an operation (mobilization and predeployment), the SJA must deliver operational law advice by introducing information about the legal aspects of command authority and the legal limitations on war into the MDMP. Judge advocates serve as counselor, providing recommendations about how missions can be accomplished within the law and, frequently, dispelling misconceptions that a law or treaty precludes various effective courses of action. OPLAW JAs participate in targeting and information operations cells; implement, draft, and train soldiers on ROE; advise commanders on policies relating to conduct and discipline; ensure war plan compliance with the Law of War and customary international law; and ensure soldiers have a basic understanding in the treatment of non-combatants, protected markings, and other particulars of the Law of War.

Defining General Courts-Martial Convening Authorities both in the theater of operations and in garrison must be done early and with precision. Transferring pending actions to new or different convening authorities will require extensive technical channel communication. In split-based operations, commanders must decide to either leave their flag at the garrisons, take the flag command with them, or seek out a new rear provisional convening authority. Certainly in war, SJAs must plan on incorporating the reserve component into the convening authority process. In the future, federalized National Guard or United States Army Reserve Commanders may lead active component units into battle. Such an order of battle may necessitate Secretary of the Army action defining and designating new convening authorities such that the commander can ensure good order and discipline for all U.S. forces under his command in theater.

As the Army moves through deployment and into offensive or defensive operations, judge advocates continue to provide critical sustainment and personnel service support. During actual combat operations, however, OPLAW JAs will focus most of their attention on C2 legal support-targeting, ROE, Information Operations (IO), dealing with enemy prisoners of war (EPW), use of mines, the applicability of the Chemical Weapons Convention, fratricide investigations, and so forth.

At the conclusion of or during extended pauses in combat operations, judge advocates will continue to provide legal support in all three functional areas. The main effort of legal support, however, will turn back to sustainment and personnel service support. After the U.S.'s successful prosecution of armed conflict, commanders and judge advocates may have to deal with the enormous obligations that accompany the law of occupation or implementing international agreements or mandates that will follow conflict. Commanders can also again return their attention to taking care of soldiers and redeployment to home station.

5.3.3 Sustainment

The DoD Dictionary defines sustainment as "[t]he provision of personnel, logistic, and other support required to maintain and prolong operations or combat until successful accomplishment or revision of the mission or of the national objective."¹⁷⁸ This is the second prong of operational law. For legal support to operations, sustainment includes legal issues that cut across most of the legal disciplines. Like C2, failure to recognize and resolve-proactively if possible-sustainment issues can limit a commander's options on the battlefield. Complicating virtually every aspect of sustainment is the joint and multinational nature of modern military operations. The very presence of multiple coalition partners spread across several sovereign states, requires commanders and judge advocates to look at sustainment issues not only from an international law perspective, but also in light of the often restrictive domestic law.

During all phases of an operation, OPLAW JA must know and understand the privileges and immunities that exist or do not exist for U.S. forces and the civilians that accompany the force. War plans may call for Intermediate Staging Bases stretching across several international boundaries, command posts in various countries, or deployment directly into a hostile territory. In all of these cases, judge advocates must seek out and understand applicable Status of Forces Agreements, Stationing Agreements, of other applicable treaties or international agreements. Moving personnel and supplies into the theater of operations may require multiple transiting agreements.

Even though fiscal and contract constraints in war will be less onerous than in Military Operations Other Than War (MOOTW), U.S. domestic law is not waived. Even in war, commanders are still stewards of taxpayers' money and subject to strict scrutiny-sometimes long after the end of hostilities. In virtually any theater of operations, commanders will need immediate contracting capability to hire local nationals and purchase items such as water, food, lumber, fuel, and lubricants. Coalition partners may require extensive support from U.S. forces, thus creating a need for Acquisition and Cross-Servicing Agreements (ACSAs). Every judge advocate, regardless of the type of operation, must have an understanding of what money is available, when, and for what purpose. With reliance on today's Logistics Civil Augmentation Program (LOGCAP), and contractors on the battlefield, commanders must address everything from their status on the battlefield to handling discipline with a large civilian force. Before deployment, OPLAW JAs must develop a foreign claims process that will protect both the U.S. and the claimant. Judge advocates must help the commander resolve issues concerning federalizing National Guard forces, mobilizing the USAR, and dealing with non-governmental and private organizations in the theater of operations.

5.3.4 Personnel Service Support

There can be little doubt that the main effort of legal support to operations during mobilization and predeployment lies with the routine administration of military justice and the provision of legal assistance through Soldier's Readiness Programs. While the nuts and bolts of the administration of justice or the provision of legal assistance services may remain in abeyance during offensive or defensive operations, the limited character of war implies an important role for deployed lawyers serving as judges in courts-martial or within the context of other proceedings and procedures. It also implies an important role for lawyers serving as advocates for the Army or for individual soldiers charged with crimes or in need of personal legal assistance.

While the operational law support during the early phases of an operation are critical to the success of the mission, proactive work in the administration of justice will ensure that the foundation of the American Army-good order and discipline-is scrupulously managed allowing commanders to fight and win our nations wars.

While still at home station, whether this is from a CONUS or OCONUS installation, legal assistance services for our soldiers and family members will consume the majority of judge advocate resources. In recognition of the importance of legal assistance to the deploying force, the Army is committed to ensuring that every soldier that needs or desires a Last Will and Testament or Power of Attorney has one. Answering questions about taxes, providing legal help for family members during deployment, participating in the set up and success of the command's family support group network, and helping reserve component soldiers with legal issues arising from mobilization are just a few areas that encompass legal support to operations during mobilization and deployment. The delivery of these key and essential services result in enhanced soldier morale as our soldiers worry less about concerns at home. This immense amount of work will occur only through the extensive legal support provided by the reserve component. While the Legal Support Organization (LSO) has a warfighting mission and will primarily deploy with the Staff Judge Advocate into the theater of operations, the Mobilization Support Organization (MSO) will provide "surge support" legal services to mobilization stations during all phases of the operation (mobilization, predeployment, deployment, combat operations, post-conflict, and redeployment). They provide this support by supplementing the capabilities of their installation legal offices, as augmented under their MOBTDAs and by the judge advocate sections or assigned GSUs. Furthermore, they will provide supplemental legal services to other installation legal offices in support of their area responsibilities to provide legal services to the dependents of deployed AC and RC soldiers. Finally, they will provide legal services at other locations, such as STARC offices and ARNG installations, RSC offices and installations, and elsewhere.

5.4 THE CORE LEGAL DISCIPLINES IN WAR

Contrary to the popularized notion that legal complications wither away during wartime, unit histories and after-action reports attest that issues will arise in all six core legal disciplines. Perhaps the only generalization that may be stated about legal support in wartime, particularly OPLAW, is that a number of legal provisions in diverse disciplines will become clearly applicable without the need for drawing elaborate analogies that is present during many MOOTW. This is so because these provisions hinge on the existence of "war" or "combat" or "international armed conflict," though the legal definitions of these and related terms vary from document to document. It remains useful for judge advocates to use the legal discipline structure as it enhances professional educational training and reflects the most efficient delivery of legal services in the garrison environment. A unique characteristic of being a judge advocate is that the legal mission continues, both in garrison and the deployed environment.

5.4.1 Administrative Law

Administrative separations, conscientious objector applications, implementation of general orders, the handling of war trophies, official investigations into fratricides and other incidents, and distribution of medical care are among the many issues that will arise.

5.4.2 Claims

While claims arising from damage occurring as a result of combat will not generally be cognizable, claims nevertheless may still be payable in some circumstances under the Foreign Claims Act, the Military Personnel Claims Act, and a variety of other statutes and international agreements. Prompt and correct processing, adjudication, and payment of foreign claims will be necessary to maintain good will toward United States forces by local civilians.

5.4.3 Civil Law

Unless provisions are exempted or relaxed, the Federal Acquisition Regulation (FAR) still applies, including rules concerning full and open competition. Similarly, the basic fiscal controls on appropriated funds-namely those constraining availability of appropriations as to purpose, time, and amount-still apply. Environmental considerations will include documenting environmental conditions and changes thereto in areas of operations, reporting improper modification of environmental conditions as a method or means of warfare, and ensuring environmental safety and integrity for the well being of soldiers.

5.4.4 Military Justice

The need for an efficient and just disciplinary system will never be more urgent than in war. This core competency of OPLAW JAs will be heavily practiced, as non-judicial punishment, courts-martial of all types, and perhaps even military commissions will be convened. The "time of war" provisions of the Uniform Code of Military Justice will be in effect, increasing the feasibility of courts-martial in forward areas.

5.4.5 International Law

Common Article 2 of the four Geneva Conventions will be triggered by the state of "international armed conflict" that exists during a true war. This will cause a great number of provisions in the law of war to become clearly applicable to the conduct of United States and enemy forces. Commanders and staffs will require interpretations of many nuances of the law of war as they relate to the targeting of objectives and the treatment of the wounded and sick, captured prisoners, and civilians. Soldiers will directly apply the "soldier's rules" which they learn in basic training.¹⁷⁹ Although the law of war, and in some circumstances United States military law, will displace portions of the law of the foreign country where our forces have deployed, most of the default legal rules will be those of the foreign country. If the United States is fighting the war within a coalition, domestic legal issues associated with security assistance will likely arise. War Powers Resolution reporting may be necessary. Other federal statutes, executive branch materials, and court decisions relating to national security may be applicable.

5.4.6 Legal Assistance

United States soldiers in war will continue to hail from all fifty states and the Territories. They will continue to require wills and to face taxation, divorces, indebtedness, child custody and support disputes, and a wide range of lawsuits, many of these aggravated by long deployment. Some reserve component soldiers will be wrongly fired by employers. Legal assistance attorneys will use a wide variety of tools available under federal and state law on behalf of their soldier-clients.

5.5 ORGANIZATION FOR WAR

Theater Legal Structure

As discussed in detail in Chapter 4, the Theater SJA distributes available legal resources to facilitate delivery of the full spectrum of legal services. The SJA achieves economies of scale and specialization and maintains the flexibility to shift priorities of legal theater support as necessary. JAGC personnel are embedded in the requirements and authorization documents of the Army Service Component Command (ASCC), the theater army area commands (TAACOMs) or theater support commands (TSCs), area support groups (ASGs), Army special operations commands, and other units and functional commands (e.g., personnel commands, medical commands, engineer commands, etc.) in theater.

Legal support to operations will take place during war within a theater. A unified combatant commander in chief (CINC) will command all United States forces in the theater and may also serve in a separate capacity as the commander of multinational forces. The CINC, through his SJA or legal advisor, will also establish policy for the employment of all operational legal assets in the theater, which are typically assigned, attached, or serving in direct support of several different echelons.

The CINC has this policy-setting authority as a matter of law, but the underlying rationale is rooted in an age-old principle for effective warfighting. This principle is known as unity of command; it holds that forces should be under a single responsible commander with the requisite authority to direct all forces in pursuit of a unified purpose.¹⁸⁰

5.5.2 Army Service Component Command

The CINC's legal advisor will coordinate closely with the TJAGs of the separate services, with the SJA for the ASCC, and with the SJAs for the corps and divisions within the ASCC to devise a concept for employment of operational law resources. With the exception of providing trial judges and trial defense counsel-which are detailed centrally from USALSA-the SJA sections for the divisions within the ASCC are responsible for practicing operational law and providing legal support to operations across all legal disciplines in assigned geographic areas.

5.5.3 Command Posts

The practice and delivery of operational law in a division requires understanding of the command post (CP). The CP of a division is the principal facility employed by the commander to command and control combat operations. A division's command post is frequently spoken of in the singular, but a division commander normally deploys his command post in three echelons or facilities. These are the tactical command post, the main command post, and the rear command post. Note, emerging doctrine in the Force XXI digitized divisions may use only two command posts-a tactical command post (sometimes referred to as the DTAC or TAC1) and a main CP. Both of these CPs are larger than their Army of Excellence Division tactical CP and main CP counterparts. The digitized division, however, may have no rear CP. Judge advocates in command posts provide operational law support and provide or facilitate support in core legal disciplines required to sustain the organization, as described in Chapter 3.

CPs are organized and set up to operate on a 24-hour basis. This includes operating while displacing. Shifts must be established that provide enough personnel to operate the CP and also the required expertise to make decisions. There should not be a "first team" and "second team" approach. Both shifts must be capable of efficient CP operation. Command group personnel are not included in the shifts.

The shift officer-in-charge (OIC)--also referred to as the "battle captain"--is the focal point for information management. He controls all information going in and out of the command post. In addition to managing informational flow, the battle captain is responsible for updating the current operations, maps, and charts. To accomplish his duties, the OIC must have guidance from the commander, XO, and S- 3, a thorough knowledge of the TAC SOP, current orders, the synchronized matrix, execution checklist, and other command and control tools, and subordinate unit plans and graphics. The shift OIC is assisted by the shift noncommissioned officer-in-charge (NCOIC). The shift NCOIC supervises all updating of maps and charts to ensure all information is exchanged. He supervises monitoring radios and maintenance. He ensures journals are properly prepared and prepares all reports for the OIC's approval.

The tactical CP (sometimes called "TAC CP;" or, in rapidly deployed divisions, the "Assault CP;" or in Airborne and Air Assault Divisions the Joint Airborne and Communications Center Command Post, or JACC/CP; or as TAC1 in the Digitized Division) is the forward echelon of the Division's CP. The concept behind the TAC CP is that it is close to the brigade commanders' CPs so that the division commander can directly influence current operations. The rule of thumb is that the TAC CP should be within FM radio range of the committed brigades. The Assistant Division Commander for Maneuver (ADC-M) normally leads the TAC CP. This is a lean apparatus, typically consisting of about a dozen officers and a few NCOs operating out of a few vehicles or tents.¹⁸¹ Judge advocates in the TAC CP provide advice regarding ROE, LOW, and other OPLAW matters. They also maintain situational awareness to identify and resolve legal concerns before they become distracters.

The main CP is the primary division CP. Whereas the TAC CP focuses on commanding and controlling current operations, the main CP focuses on sustaining current operations and on planning future operations. It should be located out of enemy medium artillery range so that the enemy must take a special effort to knock it out if it is able to find it. The officer in day to day charge of the main CP is the Division Chief of Staff. The Division Commander normally commands from the main CP, though he will frequently travel to the TAC CP, to the rear CP, to subordinate unit CPs, or wherever he can best exercise his will. The main CP is a much bigger operation than the TAC CP, consisting of more than 50 officers, NCOs, and enlisted soldiers. The Division Headquarters Company moves the main CP when it has to move, and it secures the main CP from attack. The Digitized Division's Main CP, while having various cells to include an Information Operations cell, can be an extended distance from the DTAC or TAC1 making appropriate mobility and communication capabilities a must to maintain situational awareness.

The rear CP focuses on everything else-- essentially the massive job of sustaining current and future operations--and remains prepared to control current operations if the TAC CP or main CP cannot function. The rear CP's main concerns are synchronization/direction of combat service support; terrain management; security of the rear area; and movement of tactical units, personnel, mail, and logistics. The Assistant Division Commander for Support (ADC-S) normally leads the rear CP, which is collocated with the CP of the Division Support Command (DISCOM), the brigade-sized element dedicated to logistical support of the division. The rear CP is in the division's rear area, though this does not imply it will be spared enemy attack. To the contrary, a division's rear area contains many of the division's most lucrative targets. The rear CP does not exist in the Digitized Division.

5.5.4 Judge Advocate Disposition

Frequently, when direct, immediate legal advice is required, the OPLAW JA will deploy with the TAC CP (or, in rapidly deployable divisions, with the assault CP). Division commanders will elect to use an augmented TAC CP or assault CP when split-based operations are necessary. Split-base operations involve a forward and a rearward CP separated by great distances and linked by reliable communications. These communications enable the passing of staff work electronically from a secure area (the location of the rearward CP) to a combat zone (the location of a forward CP) and back again. The forward and rearward CPs are designed based on METT-TC by beginning from the TAC CP/ assault CP and rear CP models and then dividing functions from the main CP model. When the TAC CP is thus augmented, the OPLAW JA frequently deploys with it. In the digitized division, OPLAW JAs are positioned in the DTAC/TAC1 to render immediate OPLAW advice, particularly within the C2 function.

As a general rule, however, Army doctrine for division operations locates the OPLAW JA in the main CP. Because the Division Commander normally commands the division from the main CP, the SJA will locate himself there, with the OPLAW JA. The SJA and the OPLAW JA will normally divide operational law duties in the main CP, which include participation in the Deep Operations Coordination Cell (DOCC). Each of these judge advocates is a member of the DOCC, which identifies and plans attacks on deep, high-payoff targets and whose members include the Division Artillery (DIVARTY) Commander, the Deputy Fire Support Coordinator (DFSCOORD), the Deputy G-3 for Plans, and a G-2 representative. Within the main CP, these judge advocates will locate themselves with the G-3 plans element. Note, emerging doctrine may push the DOCC forward to the TAC CP; this would require a judge advocate in the TAC.

OPLAW duties in the main CP (or, when appropriate, in the TAC CP/ assault CP) involve the counselor function and the core legal disciplines supporting the command and control, and sustainment of battlefield operations. Judge advocates provide legal support to combat service support and personnel service support operations from the rear CP or other support location. The SJA and CJA introduce relevant operational law considerations into DOCC planning and the MDMP by interpreting ROE.

The DOCC uses a methodology known as decide-detect-deliver-assess. This methodology is explained in detail in Field Manual 6-20-10, Tactics, Techniques, and Procedures for The Targeting Process.¹⁸² This manual is essential reading for the OPLAW JA and SJA.

The bulk of the SJA section deploys with the combat service support cell of the rear CP.¹⁸³ The SJA will position himself with this element as necessary to ensure the provision of professional legal services, but the DSJA normally supervises the performance of legal duties in the rear CP (or sustainment cell). These duties comprise both OPLAW functions (C2 and sustainment), personnel service support, and all six legal disciplines. While all legal personnel in the SJA section must be capable of resolving issues across this entire range of duties, the practice and delivery of OPLAW from within the combat service support cell will be marked by significant division of labor. The volume of legal issues arising and the number of judge advocates available will compel and permit particular judge advocates to concentrate on certain functions and disciplines. In this way, the section will take advantage of special expertise of judge advocates.

The remainder of the division SJA section deploys with the command posts of subordinate brigades, brigade-sized commands, or separate battalions. The SJA will determine which subordinate commands are directly supported by judge advocates serving as Chiefs of Brigade Operational Law Teams (BOLTs). In making this determination, the SJA will consider METT-TC and the principles of tailoring in Chapter 2. BOLTs are discussed later in this chapter.

Army Service Component Command. The Army Service Component Command (ASCC) OSJA structure must be tailored to support C2, sustainment, and support operations for the deployed force. Army legal personnel serve at several levels within a theater. The Army Service Component Command (ASCC) includes an SJA section. The corps, divisional, and separate brigade commands subordinate to the ASCC also include SJA or CJA sections, or BOLTs, 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 (e.g., personnel commands, medical commands, engineer commands, etc.) in theater. The SJA is the senior judge advocate in the ASCC. The SJA is assisted by the DSJA, other judge advocates, a legal administrator (warrant officer), the CLNCO, and legal specialists. Judge advocates are also located in theater command, group, regiment, and brigade headquarters. Legal specialists are also located in theater command, group, regiment, brigade, and battalion or squadron headquarters. Continuous, reliable communication networks, both secure and non-secure, and RDL linkages with the tactical command and control network and the unclassified Internet (including LAAWS) are essential to provide legal support throughout the theater. Accurate and timely OPLAW advice to the commander depends on tactical communication linkages. For example, in a digitized headquarters, operational attorneys must have immediate access to MCS-Phoenix. Judge advocates must be diligent to comply with information and operational security requirements when using these resources.

The ASCC SJA is a member of the ASCC commander's personal and special staffs. The TAACOM/TSC SJA is the senior JA within that structure and a member of the TAACOM/TSC commander's personal and special staff. In their respective organizations, they provide advice on all aspects of law and military operations. They supervise the delivery of legal services throughout the theater of operations and are a technical channel conduit. The SJA requires dedicated transportation assets/support to perform these functions throughout the area of operations.

Judge advocates in the ASCC's Early Entry and Operations/Intelligence Modules support the commander and staff in the conduct of military operations. On a twenty-four (24)-hour per day basis, they integrate proactive legal support into all aspects of the conduct of operations. They support current operations and plans. Judge advocates in the TAACOM/TSC Early Entry Module (EEM) provide similar support to TAACOM/TSC early entry operations. This includes the critical role of providing legal review and advice for contracting actions.

Judge advocates in the ASCC Main Module provide specialized legal knowledge, training, and experience in support of theater-wide operations. They provide centralized services, along with any additional support requirements unable to be filled by judge advocates located in subordinate units. Judge advocates of the TAACOM/TSC provide similar support throughout the TAACOM/TSC and its subordinate units. Judge advocates in the ASCC Rear Module support rear operations and assist contracting officers in the theater rear.

Legal specialists in the ASCC and TAACOM/TSC headquarters work in support of the SJA section and OPLAW JAs. They work under the supervision of judge advocates, collect information, conduct research, and prepare documents. They support judge advocates and commanders and assist in the delivery of legal services. Some legal specialists are specially trained court reporters, who compile verbatim records of judicial and other proceedings. The CLNCO supervises and trains legal specialists throughout the theater of operations. Legal specialists in battalion, squadron, group, regiment, and brigade headquarters provide professional and ministerial support of legal actions. Under the supervision of judge advocates, they provide the critical forward assistance for the judge advocates and facilitate the delivery of legal services and the judge advocates' legal advice.

Corps. The SJA is the senior judge advocate in the corps. The SJA is assisted in the corps headquarters by the DSJA, other judge advocates, a legal administrator (warrant officer), the CLNCO, legal specialists, and JAGC civilian personnel. Judge advocates support the corps support command (COSCOM), and each group, regiment, and separate brigade headquarters. METT-TC dependent, the SJA can task organize legal support below separate brigades. Legal specialists support each group, regiment, separate brigade, and battalion or squadron headquarters. Continuous, reliable communication networks, both secure and non-secure, and RDL linkages with the tactical command and control network and the unclassified Internet (including LAAWS) are essential to provide legal support throughout the theater. Accurate and timely OPLAW advice to the commander depends on tactical communication linkages. For example, in a digitized corps, OPLAW JAs must have immediate access to MCS-Phoenix. Judge advocates must be diligent to comply with information and operational security requirements when using these resources.

The SJA is a member of the corps commander's personal and special staffs. The SJA provides legal advice to the commander on all aspects of law and military operations. The SJA supervises the delivery of legal services throughout the corps and exercises operational control over all JAGC personnel assigned to the corps. The SJA provides technical supervision and provides support as necessary to division, separate brigade, and armored cavalry regiment judge advocates within the corps. The SJA exercises operational control over additional legal assets, legal organizations, or legal teams that are assigned to the corps area, except military judges who perform independently under the U.S. Army Trial Judiciary, and Defense Counsel who perform independently under the U.S. Army Trial Defense Service. The SJA task organizes legal assets to provide responsive legal support throughout the corps areas of operation, and as far forward on the battlefield as necessary. The SJA requires dedicated transportation assets/support to perform these functions throughout the area of operations.

The DSJA acts for the SJA, administers the full range of legal services throughout the area of operations, mentors legal personnel, supervises legal operations in the Army of Excellence Corps Rear Command Post, or at other separate locations, and plans collective training.

Judge advocates in the corps tactical command post advise the corps commander and the battle staff on legal issues associated with the conduct of military operations. On a twenty-four hour per day basis, they integrate proactive legal support into all aspects of the conduct of operations.

Judge advocates located at the corps main command post provide specialized knowledge, training, and experience in support of corps-wide operations. They provide operational law and core legal discipline support at the main CP. They support group, regimental, command, and brigade judge advocates.

Judge advocates in the corps G3 plans and operations sections, information operations, or other operational cells provide legal advice and assistance in support of plans, targeting operations, and current operations in the corps main command post.

Judge advocates at the Army of Excellence corps rear command post, or other support location, provide specialized knowledge, training, and experience in support of corps rear operations. They are prepared to assume the mission of the corps main legal section. They provide centralized legal services relating primarily to personnel support operations, but they also assist the SJA with C2 and sustainment legal support as required.

Legal specialists in the corps headquarters work in support of the OSJA and OPLAW JAs. They work under the supervision of judge advocates, collect information, conduct research, and prepare documents. They support judge advocates and commanders and assist in the delivery of legal services. Some legal specialists are specially trained court reporters who compile verbatim records of judicial and other proceedings. The CLNCO supervises and trains legal specialists throughout the corps.

Judge advocates in the COSCOM, group, regiment, and separate brigade headquarters provide legal support to the commanders in all functional areas (to include subordinate commanders at all levels), staffs, leaders, and soldiers of the unit. In addition to OPLAW duties, the COSCOM judge advocate may be tasked to provide or coordinate for contract law advice in support of the COSCOM.

Legal specialists in the COSCOM, group, regiment, brigade, battalion, and squadron headquarters support the processing of legal actions. Under the supervision of judge advocates, they provide the critical forward assistance for the judge advocates and facilitate the delivery of legal services and the judge advocates' legal advice.

Division/Separate Brigade/Armored Cavalry Regiment.

The division SJA section is the lowest-echelon, organic, full-service element of legal support to operations. It is modular--capable of being tailored to provide legal support for specific missions that may be undertaken during a war. It also features significant synergy--a product of bringing together diverse, technically skilled legal professionals and providing them the informational and legal research infrastructure necessary for tackling complex legal issues.

Each division receives the organic full- service operational legal support of a complete SJA section because divisions are depended upon to fight battles and engagements (the tactical level) in such a way as to achieve success at the operational level. An Army corps is two or more divisions. An Army division is a unit that combines in itself the necessary arms and services required for sustained combat.

There are different types of divisions-- armored, mechanized, light infantry, airborne, and air assault, -- and not all of these types are exclusive. For instance, airborne divisions are capable of all missions assigned to light infantry divisions.

The essence of a combat division is that it trains and fights as a team, and it has the necessary equipment to fight for a significant time. Although Army doctrine designates the corps as the largest tactical organization, the division is the largest organization that regularly trains as a team. A typical light infantry division has three infantry brigades (each comprising three battalions), an aviation brigade, a brigade-sized artillery element, a brigade-sized logistical support element, and a number of separate battalions. In rough terms, it consists of about 18,000 soldiers equipped with rifles, machine guns, mortars, anti-tank missiles, bridging equipment, air defense missiles, artillery tubes, helicopters, and other weapons and equipment.

A typical mechanized infantry division has two mechanized and one armored brigade (sometimes referred to as "maneuver brigades"), an engineer brigade, an aviation brigade, a brigade-sized artillery element, a brigade-sized logistical element, and a number of separate battalions. The maneuver brigades will include, as a whole, five mechanized and five armored battalions, task organized by the division commander according to METT-TC. A typical armored division features the same capabilities as the mechanized infantry division except that it has two armored brigades and one mechanized brigade. These maneuver brigades in the armored division will include, as a whole, six armored and four mechanized battalions task organized into brigades according to METT-TC.

This manual focuses on division SJA section deployment during war or other prolonged operations because the division is the focus of Army warfighting doctrine. However, the division SJA section model also provides a guide for achieving the proper balance of modularity and synergy in SJA sections that support corps, TAACOMs/TSCs and other large commands. Although military operations other than war (MOOTW) sometimes require the deployment of entire division SJA sections, military operations in war invariably require such deployment. In war, the division SJA is the ultimate practitioner of OPLAW. He positions himself at all times to support the division commander, who must constantly strive to link the employment of soldiers and materiel to strategic aims. The division SJA organizes the section as necessary to provide professional legal services at all subordinate echelons of command.

The SJA is the senior judge advocate in the division. The SJA is assisted in the division headquarters by the DSJA, other judge advocates, a legal administrator (warrant officer), the CLNCO, and legal specialists. Judge advocates support each brigade to include the division artillery (DIVARTY), the Engineer Brigade, and DISCOM headquarters. Legal specialists also support each brigade, battalion, or squadron headquarters. Continuous, reliable communication networks and RDL linkages to C2, sustainment, and support systems and LAAWS are essential to provide legal support throughout the division. Particularly in digitized divisions, where brigades may have extraordinary lines of communication, brigade judge advocates must be prepared to provide all functional areas of legal support across all six legal disciplines. For this to occur, the OPLAW JA must have access to the commander and continuous secure and non-secure communication and automation capabilities. Judge advocates must be diligent to comply with information and operational security requirements when using these resources.

The SJA is a member of the division commander's personal and special staffs. The SJA provides legal advice to the commander on all aspects of law and military operations. The SJA supervises the delivery of legal services throughout the division and exercises operational control over JAGC personnel assigned to the division and its subordinate units. The SJA requires dedicated transportation assets/support to perform these functions throughout the area of operations.

The DSJA is normally the second most senior judge advocate. The DSJA acts for the SJA, administers the full range of legal services throughout the area of operations, mentors legal personnel, supervises the brigade judge advocates, and plans collective training.

Judge advocates in the OSJA provide specialized legal knowledge, training, and experience in support of division C2, sustainment, and support operations. They provide centralized services and augment brigade judge advocates. The JAGC provides OPLAW support and comprehensive legal services in core legal disciplines throughout all phases of military operations. Mission, enemy, terrain, troops, time available, and civilians (METT-TC) impact the precise location for delivery of services. OPLAW support is provided as part of an overall plan for delivery of comprehensive legal services. OPLAW support is generally provided at the division tactical operations center, division G-3 plans and operations sections, division information operations cell, targeting cell, and each brigade headquarters. Based on mission requirements, OPLAW support may be provided to battalion and smaller-sized organizations.

Legal specialists in the division headquarters work in support of the SJA and OPLAW JA. They work with, and under the supervision of, judge advocates, collect information, conduct research, and prepare documents. They support judge advocates and commanders and assist in the delivery of legal services. Some legal specialists are specially trained court reporters who compile verbatim records of judicial and other proceedings. The CLNCO supervises and trains legal specialists throughout the division.

Judge advocates in the division's TAC CP advise the division commander, the assistant division commander, and the battle staff on legal issues associated with the conduct of military operations. On a twenty-four (24)-hour per day basis, they integrate proactive legal support into all aspects of the conduct of operations.

Judge advocates in the division G3 plans, operations, or information operations sections provide legal advice and assistance in support of plans, ROE, targeting operations, and current operations in the division main CP. The commander or SJA may task organize his judge advocate support to optimize situational awareness, such as providing dedicated legal support to the emerging information operations (IO) cell.

Figure 5-1

The above diagram depicts one model of judge advocate organization to support provide legal support to the emerging digitized division. Judge advocates are task organized to maximize situational awareness given the potentially enormous division battlespace made possible by technological advances. Note that the BOLT may be hundreds of kilometers fromt he Division Main.

Figure 5-2

Another model of judge advocate organization based on the Army of Excellence.

The Brigade Operational Law Team (BOLT). The SJA task organizes OPLAW support to commanders, staffs, and soldiers of a brigade combat team (BCT) or brigade task force. The SJA identifies early, the Brigade Judge Advocate, who serves as Chief of the BOLT. This judge advocate is usually the trial counsel for that brigade while in garrison. The BOLT also includes the legal specialists assigned to the supported BCT. The legal issues facing brigade judge advocates may extend across the full spectrum of OPLAW and the core legal disciplines. Although it is trained and equipped to identify issues across all three functional areas and the six disciplines of legal support to operations, the challenge for the BOLT is always to achieve requisite synergy to resolve complex legal questions within particular disciplines. Often, this synergy can be achieved only by communicating with the division SJA section and other judge advocates in technical channels.

The division SJA, in consultation with the DSJA, determines which subordinate units within the division will be directly supported by BOLTs. The SJA considers METT-TC in making this determination, paying particular attention to the likely complexity and volume of legal issues the subordinate unit will face and to the ability of the unit to receive OPLAW support from assets located with division command posts. The legal specialists that comprise the BOLT are under the supervision of the brigade judge advocate and provide the critical forward assistance for the brigade judge advocate and facilitate the delivery of legal services across the brigade combat team. The provision of timely and accurate legal support requires the combined team of the legal specialist and the brigade judge advocate. There are instances, however, when a brigade judge advocate is required to support more than one brigade. Further, a judge advocate deploying with the brigade may have requirements to support other organizations within the area of operations. These variables emphasize the brigade judge advocate's need for mobility and communication capability.

The DISCOM BOLT should have training or experience in contract law. In addition to other legal duties, the DISCOM brigade judge advocate may be tasked to provide or coordinate for contract law advice in support of the DISCOM.

Judge advocates and legal specialists serving in BOLTs must understand the capabilities and role of brigade-sized units in the Army. The brigade is the first unit in the infantry or armored soldier's upward chain of command that includes a full range of soldiers who do tasks very much different from his own. A brigade task force includes interrogators, counterintelligence operatives, attack helicopter pilots, howitzer crew chiefs, Marine Corps air and naval gunfire liaisons (ANGLICO), heavy anti-tank weapon gunners, bulldozer operators, air defense gunners, fuel bladder technicians, engine repairmen, water purifiers, ambulance drivers, physicians, and graves registrars. The brigade is the smallest unit in the Army that must integrate all of the seven battlefield operating systems--intelligence, maneuver, fire support, mobility/survivability, air defense, combat service support, battle command--into a potent whole. Brigade task forces that deploy with BOLTs and brigade surgeons are also the smallest units in the Army that have their own legal and medical professionals in the field. For a more detailed explanation of brigades and how they are organized and fight, see, e.g., Dep't of Army Field Manual 71-3, The Armored and Mechanized Infantry Brigade (8 Jan. 1996); Dep't of Army Field Manual 71-123, Tactics and Techniques For Combined Arms Heavy Forces: Armored Brigade, Battalion Task Force, and Company Team (30 Sep. 1992).

The BOLT must be present in the TOC or TAC, have access to the commander, and have the training, mobility, secure communications and equipment to provide the right answers at the right time and place. Legal support to operations contributes to several other battlefield operating systems in addition to combat service support. The most prominent of these is the command and control system, but intelligence, maneuver, fire support, mobility/ countermobility/ survivability, and air defense also require OPLAW support. In serving within these other systems, the BOLT must be prepared both to identify and resolve the full range of legal issues--across the legal functional areas and core legal disciplines--by inserting sound analysis and recommendations into the brigade's MDMP.

Legal support to operations must be managed with careful attention to what can and must be done at each echelon of command. Accordingly, the BOLT cannot and does not attempt environmental litigation, legal representation in foreign legal systems, review of high dollar-value contracts, convening of general courts-martial, conclusion of international agreements, drafting of inter vivos trusts, review of Foreign Military Sales cases and other highly technical services. The BOLT seeks to practice preventive law and to identify the full range of legal issues that need to be raised to higher echelons.

5.5.5 Brigade Command and Control Facilities

Judge advocates serving as Chiefs of BOLTs must understand the brigade command and control facilities. They are adept at obtaining information from the flow of messages into and out of these facilities, at inserting important information into that flow, at helping the brigade staff determine what ingredient the decision process needs, and in supplying the needed ingredient.

The brigade has four types of command and control facilities: the command group, the tactical CP, the main CP, and the rear CP. Like the command posts discussed at division level in Chapter 5, the brigade CP must be able to ensure that the commander is continually abreast of the developing situation that subordinate commanders are provided with the means to accomplish their assigned missions.

The brigade command group is a temporary organization consisting of the brigade commander and other soldiers and equipment required to perform command group functions. The primary function of the command group is to influence the immediate action through the commander's personal presence. Other functions include observing the battlefield, synchronizing the battle, and providing planning guidance. The command group moves forward from the tactical CP. The command group sometimes operates from a command and control helicopter.

The tactical command post (TAC CP) fights current close operations, provides the commander with combat critical information, and disseminates the commander's decisions. It is supervised by the brigade S-3 and is usually as far forward as the battalion main CPs. The TAC CP should strive to have redundant abilities in personnel and equipment at the main command post.

The main command post monitors the current battle, executes planned deep attacks, and plans future operations. It coordinates operations throughout the brigade sector and keeps higher headquarters informed. It is supervised by the brigade executive officer (XO) and includes staff personnel representing all facets of brigade operations. The tactical operations center (TOC) is the operations cell within the main command post.

The forward support battalion (FSB) commander supervises the rear command post, which is collocated with the forward support battalion CP. The rear CP is responsible for administrative/logistic functions. The rear CP or the direct support artillery battalion main CP is usually designated as the brigade alternate CP. The forward support battalion commander is responsible for fighting rear operations.

An infantry brigade must maintain continuous, synchronized operations. To establish the necessary "battle rhythm" to make this happen, the brigade makes optimal use of scheduled conference calls, shift change briefings, and battle update briefs (BUBs). The brigade commander conducts conference calls with his subordinate commanders at regular intervals shortly after the division conference calls. The shift change brief is supervised by the outgoing TOC shift OIC and is designed to exchange information between the outgoing and incoming shifts. It can also serve as a commander's update, but the primary audience is the incoming shift. Battle Update Briefs are called on an as-needed basis to update the TOC on current and significant events.

Occasionally, when he can be expected to make a direct contribution to current operations, the brigade judge advocate will deploy with the TAC CP or accompany the brigade command group. As a general rule, however, the brigade judge advocate will deploy with the main CP. Because the brigade commander normally commands the brigade from the main CP, this is the optimal position for the brigade judge advocate. The brigade judge advocate, supported by the brigade legal specialist, will provide OPLAW support in the main CP, which will include participation in the brigade's targeting process. When in the TOC at the main CP--as opposed to the TAC or assault CP--the brigade judge advocate or legal specialist should locate themselves adjacent to the PSYOP and civil affairs elements.

The brigade level legal specialists of the BOLT deploy with the rear CP, at the administrative and logistics operations center (ALOC). They are supervised in their OPLAW duties by the BOLT element in the main CP. The brigade judge advocate and legal specialist communicate regularly with the remainder of the BOLT in the rear CP. They also periodically travel there to provide leadership and guidance, to provide legal assistance and complete other tasks that cannot be attempted in the main CP, and to ensure that legal specialists are utilized in support of the operational law mission.

The present manual identifies the BOLT as the model of modular legal support to an Army unit smaller than division size. Many of the organizational principles defining the BOLT can be applied to good effect in the modular legal support teams that deploy with special operations elements. For example, the SJAs of United States Army Special Operations Command and United States Army Special Forces Command face the same challenges in generating synergy around the legal challenges that confront the Group Judge Advocates and OPLAW teams that deploy with special forces groups. Although the unique mission of special forces groups will inevitably raise distinct legal questions (see the discussion of special operations in Chapter 4), these judge advocates and teams, like BOLTs, must be able to identify a broad range of legal issues, and coordinate those issues with higher technical channels, while focusing on a band of issues critical to sound decision-making by command and staff.

5.6 MATERIEL IN WAR

The practice and delivery of legal support in war may be marked by heavy and persistent demand for administrative law, contract, or fiscal law opinions, foreign claims adjudication, for advice on United States obligations under treaty or foreign legal provisions, and for interpretations of domestic security assistance statutes. It will likely require the convening of courts-martial. It will require the provision of a high volume of legal assistance services. As discussed earlier, critical legal support within the personnel service support function will surge during predeployment, then remain at a relatively constant volume once in theater. OPLAW--C2 and sustainment--will surge upon entry into the theater with command and control issues dominating legal support during combat operations and sustainment issues just before and after combat operations. As communications improve and weapons lethality continues to increase the battlespace, judge advocates must be linked into the tactical and non-tactical communication systems. To effectively provide OPLAW advice to the commander at the critical time and place on the battlefield, judge advocates must remain aware of the tactical situation and have access to the commander.

The materiel that accompanies the division SJA section must be sufficient in types and quantities to meet these requirements. Chapter 4 described in general terms the automation, mobility, and communications equipment necessary for OPLAW elements to accomplish their missions.

The materiel requirements of the SJA section in prolonged, large-scale operations are not limited to automation, mobility, and communications equipment. CD ROM and hard copy books and forms are also needed to back up essential references, or for frequent use or consultation.

The need for courts-martial to maintain good order and discipline will require the establishment of a courtroom, judge's chamber, deliberation room, and private locations suitable for interviewing witnesses or the accused by counsel. The frequency of reference to reported case precedents may justify the deployment of hard copy case reporters to augment the cases contained on compact disk. Also, adequate furniture, lighting, court reporter equipment, supplies for the creation of exhibits, and a means for photocopying key documents will be essential to the achievement of justice and due process close to the forward line of troops.

In war, the adequate provision of professional legal services at all echelons of command (to include the companies, battalions, brigades, divisions, and corps making up the tactical level) requires courts-martial to be conducted in theater. Discipline in a combat zone is ill-served by courts-martial conducted far away from the dangers of war.

5.7 TRAINING FOR WAR

The training challenge in today and tomorrow's military is immense. Judge advocates must balance the ever-present mission in garrison with the need to deploy and provide our commanders and soldiers with the full range of legal support in operations. Like their non-legal counterparts, legal personnel must be aware of and train with emerging technologies--global positioning devices (GPS), night vision devices, vehicles, communication means, and automation software and hardware. All legal personnel should be well read on emerging joint and army doctrine and train on individual soldier skills at every opportunity (e.g., SJA section leader development programs, unit exercises, deployment to the Army's Combat Training Centers).

The division SJA, in conjunction with the DSJA, CLNCO, and Legal Administrator, trains the SJA section for wartime deployment using Army training doctrine, the application of which to OPLAW was described in Chapter 4.

The SJA section's METL is the single most important product for conducting battle focused training. The SJA and DSJA must use the process described in Chapter 4 to develop and assess METLs of LSOs/MSOs and/or the judge advocate sections of other RC units within their subordinate wartrace chain of command. This process should be part of the training association relationships between SJA sections and RC units, such as the training relationships created and fostered pursuant to FORSCOM Regulation 27-1, Judge Advocate Training Association Program (15 Jun 1998).

In planning training to develop proficiency on all mission essential tasks, Battle Command Training Program (BCTP) rotations should be given special emphasis. The BCTP is the only combat training center with the specific mission of providing stressful and realistic training to corps and division staffs on their METLs. SJAs and DSJAs, in conjunction with CLAMO and judge advocate observer-controllers detailed to the BCTP, must ensure that OPLAW issues are fully and realistically integrated into BCTP rotations. Integration of legal issues that have arisen during deployments is essential not only for the effective training of the SJA section; it is essential for the effective training of the command and staff.¹⁸⁴

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