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Military

Chapter 12

Legal Support to Operations

This chapter provides information about how the Judge Advocate General Corps (JAGC) provides legal support to operations. The mission of judge advocates and supporting legal personnel is to provide professional legal services at all echelons of command throughout full spectrum operations. For more information, see FM 27-100.

 

CONTENTS
Legal Support and Operational Functional Areas
Legal Support to Operations
Claims
Legal Assistance
Materiel

 

LEGAL SUPPORT AND OPERATIONAL FUNCTIONAL AREAS

 

12-1. Legal support to operations encompasses all legal services provided by judge advocates and other legal personnel in support of units, commanders, and soldiers in an area of operation (AO) and throughout full spectrum operations. Legal support to operations falls into three functional areas: command and control, sustainment, and personnel service support (referred to as support).

12-2. Command and staff functions include advice to commanders, staffs, and soldiers on the legal aspects of command authority, command discipline, applying force, and the law of war (LOW). Some examples of judge advocates' command and control responsibilities are-

  • Interpreting, drafting, and training commanders, staffs, and soldiers on rules of engagement
  • Participating in targeting cells.
  • Participating in the military decisionmaking process.
  • Participating in information operations.
  • Applying the LOW.
  • Advising commanders on policies prescribing soldier conduct and ensuring discipline (jurisdictional alignment, convening authority structure, and authority to issue general orders).

Generally, issues directly affecting the commander's operational decision making process on the battlefield fall within command and control functions.

12-3. Sustainment functions include negotiating acquisition and cross-servicing agreements and status of forces agreements (SOFAs), combat contingency contracting, fiscal law, processing claims arising in an operational environment, and environmental law.

12-4. Personnel service support functions include soldier discipline advocacy services (courts-martial, nonjudicial punishment, and other routine matters in administering military justice), legal assistance services, and basic soldier-related claims issues.

LEGAL SUPPORT TO OPERATIONS

 

12-5. Legal support to operations must include operational law (OPLAW) and each core legal discipline (military justice, international law, administrative law, civil law, claims, and legal assistance). Staff judge advocates (SJAs) tailor legal support in OPLAW and the core legal disciplines to the organization's mission-specific requirements.

OPERATIONAL LAW

 

12-6. OPLAW is domestic, foreign, and international law that directly affects the conduct of operations. OPLAW supports the command and control of military operations, to include the military decisionmaking process and the execution of operations. OPLAW supports the military decisionmaking process by performing mission analysis, preparing legal estimates, designing the operational legal support architecture, wargaming, writing legal annexes, assisting in developing and training the rules of engagement (ROE), and reviewing plans and orders. OPLAW supports the execution of operations by maintaining a common operational picture, and advising and assisting with targeting, ROE implementation, and information operations. OPLAW also involves the provision of core legal disciplines that sustain the force.

12-7. SJAs normally provide OPLAW support at each brigade headquarters (main command post [CP]), and at each key operational cell at every higher level of command (tactical CP, main CP, rear CP, G3 plans, G3 operations, information operations cell, and targeting cell). OPLAW supports each joint and multinational headquarters. Some missions also require OPLAW support at battalion level, or in specialized units or operational cells. This is increasingly the case in peace operations and disaster relief.

MILITARY JUSTICE

 

12-8. Military justice is administering the Uniform Code of Military Justice (UCMJ), and disposing alleged violations by judicial (courts-martial) or nonjudicial (Article 15, UCMJ) means. The purpose of military justice, as a part of military law, is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment and, thereby, to strengthen the National security of the United States (MCM, Part I, para 3).

12-9. The Judge Advocate General (TJAG) is "responsible for the overall supervision and administration of military justice within the Army." (AR 27-10). The commander is responsible for administering military justice in the unit, and must communicate directly with the SJA about military justice matters.

12-10. There are three components of military justice, each with its distinct functions. First, the SJA is responsible for military justice advice and services to the command. The SJA advises commanders concerning the administration of justice, the disposition of alleged offenses, appeals of nonjudicial punishment, and action on court-martial findings and sentences. The SJA supervises the administration and prosecution of courts-martial, prepares records of trial, and manages the victim-witness assistance program and military justice training.

12-11. Second, the Chief, U.S. Army Trial Defense Service supervises, controls, and directs defense counsel services. Judge advocates assigned to the trial defense service advise soldiers and represent soldiers before courts-martial. These judge advocates also represent soldiers in adverse administrative hearings.

12-12. Third, the Chief Trial Judge, U.S. Army Trial Judiciary provides military judges for general and special courts-martial, supervises military judges, promulgates rules of court, and supervises the military magistrate program. Military judges assigned to the Trial Judiciary preside over courts-martial, exercise judicial independence in conducting courts martial, conduct training sessions for trial and defense counsel, and perform or supervise military magistrate functions. Military magistrate functions include reviewing pretrial confinement and confinement pending the outcome of foreign criminal charges, and issuance of search, seizure, or apprehension authorizations.

12-13. Military justice services are normally centralized to facilitate timely, efficient delivery; however, military justice advice is provided to all levels of command. Normally, Army service component command (ASCC), corps, division, or other headquarters commanded by a general court-martial convening authority processes courts-martial. Joint force commanders (JFCs) and Army brigade and battalion commanders also have court-martial convening authority, and may require support to conduct courts-martial. Military justice advice is required for general court-martial convening authorities, including JFCs with general court-martial authority, subordinate commanders, and the U.S. element of a multinational organization.

12-14. The Army provides trial defense and judiciary services on an area basis under the independent supervision and control of the U.S. Army trial defense service and U.S. Army Trial Judiciary, respectively. Trial defense counsel is normally located with SJA sections at ASCC, corps, and division, from where they travel throughout the operational area to provide advice and services as far forward as required. Military judges are normally collocated with SJA sections at ASCC, corps, and division, depending on judicial workloads.

INTERNATIONAL LAW

 

12-15. International law includes applying international agreements, international customary practices, and the general principles of law recognized by civilized nations relating to military operations and activities. Within the Army, the practice of international law also includes foreign law, comparative law, martial law, and domestic law affecting overseas, intelligence, security assistance, and counter-drug and civil assistance activities.

12-16. The SJA's international law responsibilities include-

  • Implementing the LOW Program, including LOW training, advice concerning applying the LOW (or other humanitarian law) to military operations, determining enemy prisoner of war (EPW) status, and supervising war crime investigations and trials.
  • Assisting with international legal issues relating to U.S. forces overseas, including the legal basis for conducting operations, status of forces agreements, and the impact of foreign law on Army activities and personnel.
  • Monitoring foreign trials and confinement of Army military and civilian personnel and their dependents;
  • Assisting with legal issues in intelligence, security assistance, and counter-drug and civil assistance activities.
  • Advising the command concerning the development of international agreements
  • Providing legal liaison with host or allied nation legal authorities.

12-17. Normally, the SJA provides international law support at the main and rear command posts in Army of Excellence divisions and corps, and rear command posts in Force XXI divisions, TSC headquarters, ASCC headquarters, and each joint and multinational headquarters. In addition, international law support may be required at brigade and battalion headquarters.

ADMINISTRATIVE LAW

 

12-18. Administrative law is the body of law containing the statutes, regulations, and judicial decisions that govern the establishment, functioning, and command of military organizations. The practice of administrative law includes advice to commanders and litigation on behalf of the Army involving many specialized legal areas:

  • Military personnel law.
  • Government information practices.
  • Investigations.
  • Relationships with private organizations.
  • Labor relations and civilian employment law.
  • Military installations.
  • Government ethics.

12-19. Administrative law attorneys perform the following functions:

  • Advise commanders, review actions, and litigate cases involving military personnel law
  • Advise Army officials regarding their obligations under the Freedom of Information Act (FOIA) and Privacy Act.
  • Advise investigating officers, review investigations for legal sufficiency, and advise appointing authorities concerning investigative findings and recommendations
  • Advise Army officials concerning support for, and relationships with, private organizations.
  • Advise Army officials concerning labor relations, including certifying and negotiating with labor unions, grievances and arbitration, and unfair labor practice allegations.
  • Advise Army officials concerning the recruiting, hiring, evaluating, and disciplining of employees, and represent the Army in litigation arising from employee grievances and discrimination complaints.
  • Advise installation commanders concerning the legal authorities applying to military installations.
  • Advise Army personnel concerning government ethics, and supervise the command financial disclosure and ethics training programs.

12-20. Administrative law support is usually provided at brigade headquarters, main and rear command posts in Army of Excellence divisions and corps, rear command posts in Force XXI divisions, COSCOM headquarters, and at each higher Army, joint, and multinational headquarters. Because of the vast scope of issues they face, administrative law attorneys, especially, must be capable of conducting specific technical legal research and writing.

CIVIL LAW

 

12-21. Civil law is the body of law containing the statutes, regulations, and judicial decisions that govern the rights and duties of military organizations and installations regarding civil authorities. The practice of civil law includes contract law, fiscal law, environmental law, and many other specialized areas of law.

Contract Law

 

12-22. Contract law is applying domestic and international law to acquire goods, services, and construction. The practice of contract law includes battlefield acquisition, contingency contracting, bid protests and contract dispute litigation, procurement fraud oversight, commercial activities, and acquisition and cross-servicing agreements.

12-23. The SJA's contract law responsibilities include furnishing legal advice and assistance to procurement officials during all phases of the contracting process. It includes overseeing an effective procurement fraud abatement program and providing legal advice to the command concerning battlefield acquisition, external contractor support for contingencies and the Logistics Civil Augmentation Program (LOGCAP), acquisition and cross-servicing agreements (ACSAs), the commercial activities program, and overseas real estate and construction.

12-24. Legal counsel must participate fully in the acquisition process, be continuously available to their clients, involve themselves early in the contracting process, communicate closely with procurement officials and contract lawyers in the technical supervision chain, and provide legal and business advice as part of the contract management team. To accomplish this, SJAs usually provide contract law support at the main and rear command posts in Army of Excellence divisions and corps, main command posts in Force XXI divisions, COSCOM, TSC headquarters, and each higher Army and joint headquarters. Contract law advice may also be required at brigade or battalion headquarters. SJAs should deploy a contract law attorney with contracting early entry modules (EEMs). The Army should train OPLAW JAs supporting a DISCOM or COSCOM in contract law. Expertise may be required at the multinational command headquarters to advise concerning international acquisition agreements.

Fiscal Law

 

12-25. Fiscal law is applying domestic statutes and regulations to funding military operations, and supporting non-Federal agencies and organizations. The SJA's fiscal law responsibilities include providing legal advice on the proper use and expenditure of funds, interagency agreements for logistics support, security assistance, and support to non-Federal agencies and organizations.

12-26. SJAs usually provide fiscal law support at the main and rear command posts in Army of Excellence divisions and corps, rear command posts in Force XXI divisions, DISCOM, COSCOM, TSC headquarters, and each higher Army and joint headquarters. Expertise may also be required at the multinational command headquarters to advise concerning international support agreements.

Environmental Law

 

12-27. Environmental law is the body of law containing the statutes, regulations, and judicial decisions relating to Army activities affecting the environment to include navigable waters, near-shore and open waters, and any other surface water, groundwater, drinking water supply, land surface or subsurface area, ambient air, vegetation, wildlife, and humans. Overseas, host nation law may also affect Army operations.

12-28. SJAs provide legal advice and services on all aspects of environmental matters including-

  • Representing Army activities in environmental litigation and at hearings before local, state, or Federal agencies in coordination with the Chief, Environmental Law Division, U.S. Army Legal Services Agency (USALSA), and the Department of Justice (DOJ).
  • Monitoring state and Federal environmental legislative and regulatory developments
  • Providing advice concerning the appropriateness of any environmental enforcement activities.
  • Reviewing all draft environmental orders, consent agreements, and settlements with Federal, state, or local regulatory officials before signature.

12-29. SJAs usually provide environmental law support at the main and rear command posts in Army of Excellence divisions and corps, rear command posts in Force XXI divisions, DISCOM, COSCOM, TSC headquarters, and each higher Army and joint headquarters.

CLAIMS

 

12-30. The Army claims program investigates processes, adjudicates, and settles claims on behalf of, and against, the United States worldwide. The claims program supports commanders by preventing distractions to the operation from claimants, promoting the morale of Army personnel by compensating them for property damage suffered incident to service, and promoting good will with the local population by providing compensation for personal injury or property damage caused by Army or personnel. Categories of claims include claims for property damage of soldiers and other employees arising incident to service, torts alleged against Army or personnel acting within the scope of employment, and claims by the United States against individuals who injure Army personnel or damage Army property.

12-31. The Secretary of the Army (SA) heads the Army Claims System. TJAG supervises the Army Claims Program and settles claims in accordance with delegated authority from the SA. The U.S. Army Claims Service (USARCS) administers the Army claims program and designates area claims offices, claims processing offices, and claims attorneys. SJAs, or other supervisory judge advocates, operate each command's claims program and supervise the ACO or CPO designated by USARCS for the command. ACOs and CPOs are the normal claims offices at Army installations that investigate, process, adjudicate, and settle claims against the United States. They also identify, investigate, and assert claims on behalf of the U.S. claims attorneys at each level, settle claims within delegated authority and forward claims exceeding that authority to the appropriate settlement authority.

12-32. Claims must be investigated and paid in an AO. The foreign claims commissions, which are composed of one or more claims attorneys, settle foreign claims. In multinational operations, unless otherwise specified in applicable agreements, a troop-contributing nation is generally responsible to resolve claims arising from its own operations. Army claims services are normally provided in the main or rear command posts in Army of Excellence divisions and corps, rear command posts in Force XXI divisions, the TSC headquarters, and ASCC headquarters. While claims services are centrally processed at these locations, claims personnel must travel throughout the AO to investigate, negotiate, and settle claims.

LEGAL ASSISTANCE

 

12-33. Legal assistance is providing personal civil legal services to soldiers, their family members, and other eligible personnel. The Army Legal Assistance Program promotes morale and discipline and, thereby, contributes directly to mission accomplishment.

12-34. Legal assistance attorneys and legal staffs working under their supervision, provide legal assistance in a variety of settings. This includes-

  • Combat readiness exercises, premobilization legal preparation (PLP), soldier readiness program processing (SRP), demobilization briefings, noncombatant evacuation operations.
  • Client interviews, informal requests for assistance.
  • Federal and state income tax assistance.
  • Preventive law programs.

12-35. They also provide extensive legal services:

  • Ministerial and notary services.
  • Legal counseling, legal correspondence, negotiation, legal document preparation and filing, limited in-court representation, legal referrals, and mediation.
  • Handle a variety of cases such as family law, estates, real property, personal property, economic matters, civilian and military administrative matters, torts, taxes, and civilian criminal matters.

12-36. Legal assistance is provided at the ASCC headquarters, TSC headquarters, main and rear command posts in Army of Excellence divisions and corps, and main command posts in Force XXI divisions and, as required, at brigade or lower echelons. While each service and each troop contributing nation is responsible to provide legal assistance for its personnel, some legal assistance may be required at joint or multinational headquarters.

MATERIEL

 

12-37. All legal personnel must be well equipped to deliver legal support in a theater. The most critical categories of equipment are legal information systems, mobility, and communications.

LEGAL INFORMATION SYSTEMS

 

12-38. The JAGC requires a dedicated system of information systems 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 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 (JAGC Net at www.jagcnet.army.mil), a work group consisting of more than 70 computer servers and thousands of clients throughout the world. SJA sections, the military judges, and defense counsel all use LAAWS and the JAGC Net, 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).

12-39. The standard package of legal information systems is the Rucksack Deployable Law Office and Library (RDL). The RDL is a set of computer hardware, software, and networking products that provide the judge advocate or legal specialist all the capabilities required to support operations. 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 global command and control system (GCCS), the global combat service support system-Army (GCSS-A), and the Force XXI battle command-brigade and below system (FBCB2).

MOBILITY

 

12-40. Legal personnel depend on their assigned units for transportation. Separate legal organizations (such as legal support organizations or mobilization support organizations) require organic transportation assets. Sufficient vehicles are required for legal personnel (the SJA and his staff, military judges, and defense counsel). The number and type of vehicles depend on the commander's requirements for legal services. The failure to provide SJA with mobility means specific legal functions (such as interaction with host nation officials) cannot be accomplished; failure to effectively accomplish these functions affects the mission. Mobility serves three distinct functions: controlling legal assets, effectively delivering operational law and support in the core legal disciplines, and servicing geographic zones.

INFORMATION SYSTEMS

 

12-41. Modern theater operations frequently take place in a fluid, chaotic, and lethal environment in which mobility is constrained. Legal advice is time-sensitive and often critical, and influences C2 and support operations. Legal personnel must have access to tactical networks that provide situational understanding. The COP allows legal personnel to apply their professional training to identify potential legal issues and take proactive, timely, and effective steps to eliminate or minimize the impact of those legal issues on mission accomplishment. Avoiding legal issues is always preferable to resolving legal issues; it is the most efficient method and directly contributes to the organization's combat effectiveness. Judge advocates must also 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 (CNRs), area common user (ACU) telephones, Army data distribution system (ADDS) equipment, and other information systems, when necessary, to connect into the C2, CS, and CSS tactical networks.



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