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OPERATIONAL LAW

by CPT Walter Trierweiler, Client Services, SJA, Third U.S. Army

C/JTF-KU and Operation DESERT THUNDER provided a unique opportunity for the supporting judge advocates and legal advisors to perfect their operational law skills in a real-world contingency.

The Operational Law Handbook proved to be an invaluable source of relevant, comprehensive information on myriad legal issues. In addition, the prior operational law experience of many of the deployed judge advocates and legal advisors contributed immeasurably to the prompt and proper resolution of some of the tougher contracting and coalition support issues. There were several lessons learned and re-learned by the Army, Marine, Special Operations, and Australian and Canadian Judge Advocates/legal advisors who participated in Operation DESERT THUNDER.

Soldier Preparation

Some soldiers were unprepared for the DESERT THUNDER deployment. Despite rigorous in-processing and biannual soldier readiness checks, when it came time to deploy some soldiers did not have their personal affairs in order. The commander of Third U.S. Army and Army Central Command had already taken many steps to ensure that soldiers were ready for the deployment. The commander provided the following:

  • A vigorous in-processing that included issuing all uniforms and equipment, inoculations, a Middle East orientation, a family support orientation, and an operation plans orientation.
  • A biannual soldier readiness check that included legal, personal, family, and financial matters. Soldiers were encouraged by an attorney to update wills and powers of attorney and to resolve any other existing legal impediments to a future deployment.

While many of these same soldiers had recently deployed to Exercise BRIGHT STAR in Egypt in October 1997 and had participated in pre-contingency planning for the deployment, most were not prepared for a deployment of unknown duration. Some personnel, many of them single parents, did not have effective family care plans. Though counseled earlier to do so, some soldiers did not have deployment clauses in their off-post leases. Many of them were unsure of the disposition of their personal property. As a result,some soldiers could not deploy due to problems with their personal affairs. Some soldiers deployed only after resorting to crisis management and intervention by their supervisors and the judge advocates. Several deployed soldiers lacked mission focus because of poor planning with family or financial matters back home.

Lesson: First-line supervisors must involve themselves in the business of taking care of their soldiers. This means being familiar with the details that may escape the attention of the company or higher leadership. Readiness means more than uniforms, equipment, and shots. Supervisors must ensure that soldiers have war-gamed a deployment so that their families and property are well cared for during the deployment.

Jurisdiction

There were many questions and concerns about who had military justice jurisdiction over deploying units and personnel. Coordination between the C/JTF-KU Staff Judge Advocate (SJA) and subordinate unit legal advisors ensured that the appropriate assignment or attachment orders were prepared prior to units and individuals deploying into theater. However, there were a few instances when these orders had to be amended to facilitate the proper administration of the Uniform Code of Military Justice (UCMJ).

Lessons

  • Ensure that every unit and every individual participating in an operation is under the jurisdiction of a deployed or deploying commander.
  • When commanders, soldiers, and civilians know the command structure in the scheme of activities, they have a great appreciation for the diplomatic and political sensitivities of coalition operations.
  • When possible, adhere to established chains of court-martial convening authority. If a General Courts-Martial convening authority, such as the commanding general, XX Infantry Division, deploys with its subordinate units or portions thereof, leave well enough alone.
  • If a Special Courts-Martial Convening Authority is "chopped" to the C/JTF, ensure that the unit is attached to a deployed or deploying General Courts-Martial Convening Authority.
  • Allow service component and coalition commanders criminal jurisdiction over their personnel. Unless specifically authorized by a superior commander, e.g. the commander in chief, a C/JTF commander has no authority to initiate criminal action against other service personnel.
  • Coalition forces operated subject to their own national regulations and procedures. At most, the C/JTF-KU commander had limited administrative jurisdiction over these soldiers. Disciplinary issues should be referred to the senior military representative from the sending state.

General Order Number One

The commander, C/JTF-KU, relied upon adherence to certain general orders to maintain good order and discipline throughout the task force. However, the initial general orders did not clearly apply to all joint and coalition forces. The U.S. Central Command General Order Number One generally provided punitive guidelines to ensure acceptable standards of behavior during this operation for military personnel and those civilians accompanying the force. ARCENT and the other service components and some coalition forces had published their own general orders as well. Though the general orders shared many of the same prohibitions against possessing and using alcohol and possessing pornographic materials, the differing provisions created uncertainty as to the standards for acceptable behavior throughout the task force.

Lesson: The C/JTF-KU published a new General Order Number One which included the coalition forces, but made violations by their personnel subject to their respective national rules and regulations. The C/JTF-KU general order was provided to all commanders and their servicing staff judge advocates or legal advisors.

Organizing Legal Support

Sending the correct number of experienced judge advocates and legal noncommissioned officers and specialists was critical to support the coalition forces. Thorough planning for other assets, which might be required if the size of the force or the scope and duration of the mission changed, was also extremely critical.

The 3rd Infantry Division SJA deployed along with an operational law attorney, a trial counsel for each of the four brigade-size elements, a trial defense service (TDS) counsel, and organic unit legal NCOs and specialists. Many of these individuals had previously deployed to Egypt for Exercise BRIGHT STAR or to the National Training Center, reducing the stress and learning curve. The operational law attorney also filled the position of Deputy SJA who attended meetings, participated in planning, and conducted coordination for the legal support of the division staff and trial counsels. This proved to be the right mix for the brigade combat team's pre-combat operations.

The Marine Expeditionary Force (Forward) deployed one legal advisor as did the Joint Special Operations Command Task Force, the Australian Special Air Service, the Australian Air Contingent, and the Canadian Forces. The Marines would have augmented the C/JTF-KU legal office with three other personnel, but did not due to the rapid conclusion of the operation.

The ARCENT SJA deployed three attorneys and one legal NCO from Atlanta, Ga., and added one attorney, one NCO, and one civilian to the staff by incorporating the Command Judge Advocate, a legal NCOIC, and an administrative assistant. These personnel are permanently assigned to ARCENT-KU. Early in the planning process, C/JTF-KU SJA and unit legal advisors developed a plan to expand legal support capabilities in-theater as the mission matured and forces increased. This included early coordination to deploy a trial judge and a court reporter from Europe should the need arise.

Lessons

  • Centrally locate the TDS counsel within the headquarters of the C/JTF or supporting headquarters.
  • Ensure that administrative support for legal operations includes vehicles and NCOs.
  • Send each trial counsel in support of his brigade, and if more than one brigade is sent, consider sending an operations law attorney.

Combined Rules of Engagement

Combined ground rules of engagement (ROE) typified today's modern ROE tailored specifically to the threat, mission, forces available, and phase of the operation. Initially based on the Joint Chiefs of Staff standing ROE for U.S. forces and applicable supplemental measures, the combined ground ROE was classified and not releasable to coalition partners.

Working with the Foreign Disclosure Officer, the ROE were "sanitized" to remove all U.S. regulatory or operational plan citations. Then, while still in draft, British personnel assisted in helping remove U.S. terminology which could be confusing or which presented different meanings to the audience. The Foreign Disclosure Officer and Central Command again reviewed the ROE before it was approved for release to the C/JTF.

The ground ROE was disseminated in English. The liaison officers and civil military support personnel were overburdened and could not translate the ROE into all the languages spoken by members of the C/JTF. The requirement was given to the host nation and each C/JTF partner, although the vast majority of the C/JTF spoke English. Remarkably, the C/JTF ROE did not differ greatly from any of the ROE that were currently in effect for the participating states. At the user level, they were virtually interchangeable.

Lessons

  • Tailor the ROE to the mission, threat, and forces by phases. Subordinate commanders should develop and submit mission accomplishment supplemental measures for review and approval if required.
  • Each commander needs to stress ROE training. Judge advocates and troop leaders at all levels must ensure that all personnel are familiar with peacetime rules for the use of force, the more aggressive pre-hostilities ROE, the aggressive hostilities ROE, and a more restrained post-conflict ROE.
  • Ensure a smooth transition to the pre-hostilities ROE and continue to train in anticipation of an order to switch to combat ROE if required to complete assigned missions.

Plans, Deep Operations, and Targeting

The operational law section's location within the operations center was sufficient to conduct deliberate planning and daily target reviews, but it did not facilitate legal reviews of emerging targets (Scuds) and crisis situations. From the beginning of Operation DESERT THUNDER, the Operation Law Judge Advocates were already participating in the daily planning cycle, concept development, courses of action reviews, operations and force protection planning groups, and terrain walks. Technological advances that enabled the Operation Law Judge Advocates to review the daily list of 400-700 nominated deep targets facilitated a quick burst radius search of the expected impact for an emerging target. This provided more detailed information to the battle captain for his consideration on whether to strike the target or refrain to preserve critical facilities, to reduce collateral damage to population centers, and to protect friendly forces. Legal reviews were an integral part of the planning process and served to resolve potential "show stoppers" at the beginning of the mission. This proactive approach allowed the legal staff to anticipate and address potential issues. However, the operational attorneys were physically located outside of the Combined Operations and Intelligence Center. As a result, they were not involved in the discussion of many of the emerging targets and crisis situations. Due to their somewhat remote location, the Operation Law Judge Advocates could not review, as required, emerging targets and crisis situations for legal sufficiency.

Lesson: The Operation Law Judge Advocates must be located in a position between the battle captain and the fire support element to be able to react to all incoming crisis messages and emerging targets. This visibility also results in increased use by other staff sections.

Operational Target Review

Currently accepted methods of target review were insufficient for the high operation tempo, complexity, and detail required in support of C/JTF-KU's deep targeting operations. Recent technological advances have enabled target planners to deconflict, review, and, in a few hours, make a comprehensive list of hundreds of nominated targets specifically designed to implement the commander's targeting guidance.

The operational target review has a concurrent responsibility to validate the nominated targets for legal sufficiency, absence of friendly forces, compliance with the commander in chief's "no strike" list, and the preservation of key facilities in support of the scheme of maneuver. The review group is comprised of the Operational Law Judge Advocate, veteran Air Force, Navy, Marine and coalition pilots who provide air operations expertise, and representatives of other staff sections as required - primarily operations, intelligence, and civil military.

The TARCHECK is an automated target review system that conducts a burst radius search for all nominated targets against the facilities database created and maintained by the Defense Intelligence Agency (DIA). The Operational Law Judge Advocate identifies targets of concern that are within the burst radius and then requests expert input on the various aspects of the impacted facility. By using available technology, training, and experience, this ensures that targeting decisions are based on the best information available at the time and not on outdated, by-name no strike lists or map review processes.

Lessons

  • TARCHECK made the DIA facilities database readily available to planners for use in target development and review. No strike lists, friendly forces, and facilities required for future mission success were also added to the database to protect them from the effects of friendly fires.
  • TARCHECK enhanced the precision with which operational fires can be used to shape the battlefield in support of operational and strategic goals. The automated target review also denied the enemy places to hide with impunity by providing the flexibility of a human balancing test, rather than a mechanistic reliance upon a protected target list or the no strike list.

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