Legal support operations
Legal Support to
Operations
HEADQUARTERS, DEPARTMENT OF THE ARMY
DISTRIBUTION RESTRICTION: Approved for public release; distribution is unlimited.
This publication is available on the General Dennis J. Reimer Training And Doctrine Digital Library at www.adtdI.army.mil
*FM 27-100
1 March 2000
Legal Support to
Operations
HEADQUARTERS, DEPARTMENT OF THE ARMY DISTRIBUTION RESTRICTION: Approved for public release; distribution is unlimited. *This publication supersedes FM 27-100,3 September 1991.
Table of Contents
PREFACE............................................................................................v
..INTRODUCTION ..................................................................................vii
Chapter 1 Role of the Judge Advocate ........................................................................... 1.1
1.1 THE JUDGE ADVOCATE GENERAL'S CORPS MISSION ..........................1.
1
1.2 PERFORMING TRADITIONAL ROLES ......................................................... 1.1
1.2.1 Mission....................................................................................................... 1-2
1.2.2' Service......................................................................................................... 1-2
1.2.3 Legitimacy................................................................................................. 1-2
1.2.4 The Military General Practitioner ............................................................... 1-3
1.2.5 The "Judge" Function .............................................................................. 1-4
1.2.6 The "Advocate" Function ........................................................................ 1-5
1.2.7 The "Ethical Adviser" Function .................................................................. 1-5
1.2.8 The "Counselor" Function .......................................................................... 1-5
1.3 IN A CHALLENGING NEW ENVIRONMENT ............................................. 1-6
1.3.1 More Missions ........................................................................................... 1-6
1.3.2 Command and Control Relationships ....................................................... 1-7
1.3.3 International Operations ........................................................................... 1-7
1.3.4 Fluid Operations ......................................................................................... 1-7
1.3.5 Technological Advancements ..................................................................... 1-8
1.4 CHALLENGES FOR JUDGE ADVOCATES IN THE 21ST CENTURY .......1-8
1.4.1 Mission......................................................................... .........................1-8
1.4.3 1.4.2 Service........................................................................................................ 1-9
Legitimacy........................................................................... i............1-10
1.5 SUMMARY.................................................................................................... 1-10
Chapter 2 Organization to Support Army Operations .................................................... 2-1
2.1 JUDGE ADVOCATE ORGANIZATIONS ......................................................-2-1
2.1.1 Office of The Judge Advocate General ......................................................-2-1
2.1.2 Field Operating Agencies .......................................................................... -2-3
2.1.3 The U.S. Army Legal Services Agency ..................................................... -2-3
2.1.4 The Judge Advocate General' s School, U.S .Army ................................... -2-5
2.1.5 Army National Guard Legal Organizations ................................................ 2-6
2.1.6 U.S. Army Reserve Legal Organizations .................................................... 2-7
2.1.7 Staff Judge Advocate Offices ................................................................... 2-10
2.1 8. Command Judge Advocates .................................................................... -2-14
2.2 JOINT LEGAL ORGANIZATIONS .............................................................. -2-14
2.2.1 The Office of the Legal Counsel to the Chairman, Joint Chiefs of Staff ..2.15
2.2.2 Unified, Specified, and Subordinate Unified Command Staff Judge
Advocates .............................................................................................................. 2-15
2.2.3 Joint Task Force Staff Judge Advocate .................................................... -2-15
2.3 MULTINATIONAL FORCE LEGAL ORGANIZATIONS ............................ 2. 15
2.4 PROVIDING .ARMYLEGAL SUPPORT FOR OPERATIONS ..................... 2. 16
2.4.1 Overview of Operational Law Support..................................................... 2-16
2.4.2 Tailoring Operational Law Support.......................................................... 2-19
5.3.1 Command & Control. Sustainrnent. Personnel Service Support .................5-4
5.3.2 Command and Control (C2)......................................................................-5-4
5.3.3 Sustainrnent................................................................................................5-5
5.3.4 Personnel Service Support ......................................................................... -5-6
5.4 THE CORE LEGAL DISCIPLINES IN WAR ..................................................5-7
.4.1 Administrative Law 5,
...................................................................................-5-8
5.4.2 .
Claims ....................................................................................*...*..*.....*......
5-8
5.4.3 Civil Law ....................................................................................................5-8
5.4.4 Military Justice ........................................................................................... 5-8
5.4.5 International Law ........................................................................................ 5-8
5.4.6 Legal Assistance .........................................................................................5-9
5.5 ORGANEATION FOR WAR .........................................................................-5-9
5.5.1 Theater Legal Structure ..............................................................................5-9
5.5.2 Army Service Component Command .........................................................5-9
5.5.3 Command Posts ........................................................................................5-10
5.5.4 Judge Advocate Disposition ................................................................5-11
5.5.5 Brigade Command and Control Facilities ................................................5-22
5-6 MATERIEL IN WAR ....................................................................................-5-24
5.7 TRAINING FOR WAR ...................................................................................5-25
Chapter 6 Legal Support to Military Operations Other Than War .................................6-1
6.1 INTRODUCTION............................................................................................ -6-2
6.2 STRATEGIC CONCEPT ................................................................................. -6-3
6.3 THEATER CONCEPT .................................................................................... -6-3
6.3.1 Political Objectives .....................................................................................6-4
6.3.2 Legal Complexity ......................................................................................-6-4
6.3.3 Mission Complexity .................................................................................. -6-4
6.3.5
6.3.4 Command and Control ..............................................................................-6-4
Interagency Coordination ..........................................................................-6-5
6.4 THE ARMY'S ROLE IN MOOTW .................................................................. 6-5
6.4.1 Arms Control............................................. :................................................6-6
6.4.2 Combating Terrorism ................................................................................-6-6
6.4.3 Counter-Drug Operations .......................................................................... -6-6
6.4.4 Enforcement of Sanctions and Exclusion Zones .........................................6-6
6.4.5 Humanitarian Assistance ........................................................................... -6-7
6.4.6 Nation Assistance ....................................................................................... 6-7
6.4.7 Noncombatant Evacuation Operations .......................................................6-7
6.4.8 Peace Operations ........................................................................................ 6.7
6.4.9 Recovery Operations ...................................................................................6-8
6.4.10 Show of Force Operations .......................................................................... 6-8
6.4.1 1 Strikes and Raids ........................................................................................ 6-8
6.4.12 Support to Insurgencies .............................................................................. 6-9
6.4.13 Operations Under Armistice Conditions ..................................................... 6-9
6.5 ORGANEATION OF MGAL SUPPORT ....................................................... 6-9
6.6 LEGAL ASPECTS OF C2. SUSTAINIVENT. AND SUPPORT OPS ..............6-9
6.6.1 Legal Basis for the Operation ................................................................... 6-10
6.6.2 Status of Forces .......................................................................................6- 10
6.6.3 International& Interagency Relationships ...............................................6-11
6.6.4 Use of Force & Rules of Engagement (ROE) ...........................................6-11
6.6.5 Treatment of Civilians .............................................................................-6- 12
6.6.6 Fiscal Responsibility ................................................................................6-13
6.6.7 Intelligence Oversight .............................................................................-6- 14
6.7 LEGAL TRAINING REQUIREMENTS ........................................................-6- 14
6.8 LEGAL EQUIPMENT REQUIREMENTS ....................................................-6- 15
6.9 SUMMARY................................................................................................... 6-15
Chapter 7 The United States as a Theater ...................................................................... 7-1
7.1 INTRODUCTION............................................................................................. 7-1
7.2 Organizing and Equipping Judge Advocates .................................................... 7-2
. .
7.3 Tramng Judge Advocates ................................................................................ 7-2
7.4 Military Support to Civil Authorities ..............................................................7-3
7.4.1 General ....................................................................................................7-3
7.4.2 Authorization for Military Support ..........................................................7-3
7.4.3 Lead Agency Concept and Role of Military ...............................................7-4
7.4.4 Rules for Use of Force .........................................................................7-5
7.5 Military Support to Law Enforcement ........................................................... 7-6
7.5.1 Civil Disturbance Operations .....................................................................7-6
7.5.2 Counter-Drug Operations ..........................................................................-7-9
7.6 Emerging Threats in the Continental United States (Terrorism) .....................7-12
Chapter 8 Rules of Engagement ..................................................................................8-1
8.1 INTRODUCTION.............................................................................................8-2
8.2 ROE DEVELOPMENT CONSIDERATIONS ...............................................8-2
8.2.1 Commander's Responsibility ......................................................................8-2
8.2.2 Purposes of ROE ........................................................................................8-2
8.2.3 Drafting Considerations ............................................................................8-3
8.2.4 Situation Considerations -METT-TC ........................................................8-4
8.2.5 Definitions and Key Concepts ....................................................................8-5
8.2.6 Types of ROE .............................................................................................8.6
8.3 CJCS Standing ROE .........................................................................................8-7
8.4 THE I-D-D-T METHODOLOGY .....................................................................8-9
8.4.1 Interpret......................................................................................................8-9
8.4.2 Draft .........................................................................................................8-10
8.4.3 Disseminate.............................................................................................8-13
8.4.4 Train......................................................................................................... 8-13
GLOSSARY
REFERENCES
INDEX
ENDNOTES
Preface
Legal support to operations encompasses all legal services provided by Judge Advocate General's Corps (JAGC) personnel in support of commanders, units, and soldiers throughout an area of operation and across the spectrum of operations. This support includes Operational Law and the six Core Legal Disciplines, which support command and control, sustainment, and personnel service support. Legal support to operations promotes the operational mission, provides quality legal services. and preserves the legitimacy of operations.
Field Manual 27-100, Legal Support to Operations, is the Army's capstone legal doctrinal manual. It describes the missions and operations of JAGC organizations, units, and personnel supporting Army operations. Legal support to operations must be thoroughly integrated into all aspects of operations to ensure compliance with law and policy and to provide responsive, quality legal services. This manual does not provide comprehensive treatment of the Law of War or Geneva Conventions. For information on these topics, refer to Field Manual 27-10, The Law of Land Warfare.
The purpose of this manual is to provide authoritative doctrine and guidance on all legal support to Army operations. It also provides the basis for legal training, organizational, and materiel development. It contains guidance for commanders, Staff Judge Advocates, staffs, and other JAGC personnel. It implements relevant Joint and Army doctrine, incorporates lessons learned from recent operations, and conforms to Army keystone doctrine.
The proponent of this publication is The Judge Advocate General's School, U.S.
Army. Send comments and recommendations on DA Form 2028 to Commandant, The Judge Advocate General's School, U.S. Army, ATTN: JAGS-CDD, Charlottesville, Virginia 22903-1 78 1.
Unless otherwise stated, specific gender pronouns include men and women.
Introduction
Mission of The Judge Advocate General's Corps and Purpose of FM 27-100
The mission of judge advocates and supporting legal personnel is to provide professional legal services at all echelons of command throughout the range of military operations.' The purpose of Field Manual (FM) 27-100 is to describe how the Judge Advocate General's Corps (JAGC) will provide legal support to operations and how commanders should integrate legal support in operationai planning and training.
Legal Support to Operations and Functional Areas
Legal support to operations encompasses all legal services provided by judge advocates and other legal personnel in support of units, commanders, and soldiers throughout an area of operations and across the spectrum of operations. Legal support to operations falls into three functional areas: command and control, sustainment, and personnel service support (or support for short). The following are illustrative examples of the types of legal support within these functional areas. Command and control functions include advice to commanders, staffs, and soldiers on the legal aspects of command ' authority, command discipline, the application of 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 decision-making process; participating in information operations; applying the LOW; and advising commanders on policies prescribing soldier conduct and ensuring discipline (e.g., 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. Sustainrnent functions include negotiation of 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. Personnel service support functions include soldier discipline advocacy services (courts-martial, nonjudicial punishment, and other routine matters in the administration of military
justice), legal assistance services, and basic soldier-related claims issues.
Operational Law
Operational Law is that body of domestic, foreign, and international law that directly affects the conduct of operations. The practice of Operational Law consists of legal services that directly affect the command and control and sustainment of an operation. Thus, Operational Law consists of the command and control and sustainment functions of legal support to operations. Support functions are an integral part of legal support to operations; however, they are treated separately from this discussion of Operational Law.
vii
Core Legal Disciplines
The six core legal disciplines are administrative law, civil law (including contract, fiscal, and environmental law), claims, international law, legal assistance, and military justice. Functional areas of legal support to operations contain some core legal disciplines in their entirety, and cut across others. For example, foreign claims are a sustainment function, while personnel claims are a personnel service support function. Functional areas of legal support are intended to describe better what combat (operational) functions are supported by particular legal services. While some traditional judge advocate functions are associated with Combat Service Support (CSS), legal support to operations goes beyond traditional CSS functions, and often impacts substantially on a commander's command, control, and sustainment of an operation. Further, providing critical legal support requires the presence of judge advocates and other legal personnel far forward and in key operational headquarters, centers, and cells.
Doctrine to Train and Operate
The United States Army is doctrine-based, and FM 27-100 contains the doctrine for legal support to operations. Doctrine within the military profession is the authoritative guide to how forces fight wars and conduct operations.' Doctrine builds on collective knowledge. It reflects wisdom that has been gained in past operations. It incorporates informed reasoning about how new technologies may best be used and new threats may best be re~isted.~ Doctrine, in this and other field manuals, records a shared and reasoned vision that can serve as the basis for planning operations, organizing and structuring forces, training soldiers and units, leading, developing tactics, and procuring weapons and equipment. The military professional who studies doctrine knows the principles that officially guide these essential functions of United States forces: doctrine, training, leadership, organization, materiel, and soldiers (DTLOMS).
Effective doctrine is not dogma. It is not doctrinaire. It is not static. Effective doctrine is dynamic, adapting to changes on the battlefield and in the world. It is also balanced, reconciling the need for precision to achieve unity of effort with the need for flexibility to achieve decentralized appli~ation.~
FM 27-100 links JAGC roles and missions to current Army keystone doctrine, recorded in FM 100-5, Operations, and to developing doctrine. FM 100-5 and developing doctrine, in turn, link the Army's roles and missions to the National Military Strategy and the National SecuriQ Strategy. Developing doctrine takes the force projection concept enunciated in the 1993 FM 100-5 to a new level with the concept of strategic preclusion-moving so fast (strategic maneuver), with such lethality (strategic fires), that enemies cannot set forces and operate at an ad~antage.~This requires the ability to project fighting forces into more than one theater and to sustain those forces from support and staging bases that may or may not be in close proximity to the supported forces.
Changes in the strategic situation since the end of the Cold War, and the development of the Force XXI Army, require a new model of legal support to operations. Past doctrine must change to meet the demands of the significant increase in the number and types of Army missions, joint and combined operations, fluid operations, complex command and control relationships, and technological advancements. Thus, in addition to implementing FM 100-5 and national strategic documents, this manual implements or considers applicable portions of several joint doctrinal manuals, as well as FM 100-6, Information Operations; FM 100-7, Decisive Force: The Amy in Theater Operations; FM 100-11, Force Integration; FM 100-15, Corps Operations; FM 100-16, Amy Operational Support; FM 100-17, Mobilization, Deployment, Redeploymen!, Demobilization; FM 100-19, Domestic Support Operations; FM 100-20, Military Operations in Low Intensity Conflict; FM 100-23, Peace Operations; FM 100-25, Doctrine for AmySpecial Operations Forces; and other current Army manuals.
Judge advocates must be trained and prepared to operate independently across the spectrum of core legal disciplines and the spectrum of conflict, standing by the commander's side. To succeed in today's operational environment, judge advocates must be master general practitioners; effective in their roles as lawyer, ethical advisor, and counselor; increasingly knowledgeable as soldiers and lawyers; constantly aware of the operational situation; and proactively working to promote the mission, serve Army personnel and their families, and enhance the legitimacy of Army operations. Doctrine in this manual reflects that judge advocates are increasingly operating individually, or in smaller teams, in order to better support split-based operations and the specialized operational cells and headquarters required to run mobile, tailored forces.
Supporting legal personnel (warrant officers, noncommissioned officers, and enlisted soldiers) must be proficient in battle-staff and legal tasks, and managing a legal office in the field. Legal specialists (enlisted soldiers and noncommissioned officers with military occupational specialty 71D) must spot potential legal issues and raise them for resolution. Legal specialists must operate under JA supervision across the range of core legal disciplines and the spectrum of conflict. Noncommissioned officers (NCOs) must also perform traditional functions-training and taking care of troops. In addition to legal, staff, and office skills, all JAGC personnel must train to proficiency in soldier common tasks.
Accordingly, commanders, with the Staff Judge Advocate, are responsible for training and supporting judge advocates and their subordinates to ensure robust legal support to operations. Training must be conducted according to the Army's training principles, such as those found in FM 25-1 00, Training The Force, and FM 25-101, Battle Focused Training. Staff Judge Advocates must develop a training plan and Mission Essential Task Lists (METL), to include establishing conditions and standards, training objectives, and selection of battle tasks. The training plan must include training that integrates and trains JA personnel with the units they support in a variety of environments, settings, and exercises. Without active training, judge advocate personnel will not develop the soldier and lawyer skills needed to provide legal support to operations.
Operational law training and practice in all components must reflect that military operations are inevitably joint and increasingly combined. Army National Guard legal support is embedded in National Guard organizations, including the National Guard Bureau, State Area Commands, and subordinate guard units. U.S. Army Reserve legal support is embedded in Reserve units, such as the U.S. Army Reserve Command, and contained in Judge Advocate General Service Organizations (JAGSO). The recent advent of Active Component-Reserve Component (AC-RC) Divisions, with their teaming and training associations, dissolves some of these historical boundaries, meshing active and reserve component soldiers into a standing division headquarters with subordinate National Guard enhanced brigades.
Finally, the modern training and practice of operational law must recognize that digital and information technologies have profoundly altered the pace of operations and the manner in which judge advocates locate legal authority and introduce legal considerations into the conduct of military operations. The materiel required to provide legal support to operations derives from the three functional areas-command and control, sustainment, and personnel service support. A judge advocate must be able to shoot, move, communicate, and research on the battlefield. Thus, judge advocates must have vehicles, sophisticated automation equipment-to include the Rucksack Deployable Law Office and Library (RDL), communications equipment, and access to key communications modes, nodes, and nets. Current operations are more legally intense than ever before. They involve vast numbers of government, non-government, and private organizations. The judge advocate's ability to reach back through technical channels for research and support is'critical.
Legal Support to Operations
Chapter 1 Role of the Judge Advocate
1.1 THE JUDGE ADVOCATE GENERAL'S CORPS MISSION
The mission of the Judge Advocate General's Corps (JAW) is to provide professional legal support at all echelons of command throughout the range of military operations. This support includes Operational Law and the six Core Legal Disciplines, which support command and control, sustainment, and personnel service support.
Throughout the history of the United States Army, the JAGC has performed this mission by supporting the Army mission; providing quality legal services to commanders, staffs, personnel, and family members; and promoting the legitimacy of the Army both in American society and throughout the world.
As the 21StCentury dawns, the JAGC transitions along with the Army. The JAGC will capitalize on new information technologies, strengthen its technical support network, obtain new warfighting capabilities, master the legal issues affecting operations, and develop the Soldier-Lawyer-Leaders who will perform the JAGC's traditional roles in a challenging, new environment.
1.2 PERFORMING TRADITIONAL ROLES
Traditionally, judge advocates have mastered many fields of law, and performed several legal roles (judge, advocate, and counselor), all in support of three fundamental objectives: mission, service, and legitimacy.
CONTENTS PAGE
THE JUDGE ADVOCATE GENERAL'S CORPS' MISSION ...... 1-1
PERFORMING TRADITIONAL
ROLES............................................ 1-1
Mission..................................... 1-2
Service...................................... 1-2
. .
................................ 1-2
Leg~t~macy
The Military General
Practitioner.......................... 1-3 The "Judge" Function ............. 1-4 The "Advocate" Function ........ 1-5 The "Ethical Adviser" 1-5
Function..........................
The "Counselor" Function ....... 1-5
IN A CHALLENGING NEW
ENVIRONMENT............................... 1-6 More Missions .......................... 1-6 Complex Command & Control 1-7 International Operations .......... 1-7 Fluid Operations ...................... 1-7 Technological Advancements 1-8
CHALLENGES FOR JUDGE ADVOCATES IN THE 21st
CENTURY....................................... 1-8
Mission..................................... 1-8
Service...................................... 1-9
. .
................................ 1-10
Leg~t~macy SUMMARY....................................... 1-10
1.2.1 Mission
"Mission" means protecting and promoting command authority, preserving Army resources, and ensuring fair military systems, especially the military justice system. Judge advocates promote command authority in several ways. They participate in the key military decision-making processes, becoming involved early to identify and resolve legal issues before they become command problems. They create efficiencies and improve unit effectiveness by leveraging legal solutions to accomplish Army missions in lawful ways. They add value to the organization as soldiers and individuals, applying their skills and energy to solve legal and non-legal problems. They administer the military justice system, which promotes the discipline that makes units effective. They provide advice on other Army procedures that promote organizational discipline, such as investigations, reports of survey, standards of conduct, and environmental compliance.
1.2.2 Service
"Service" means meeting the legal needs of commanders, staffs, personnel, and family members. Judge advocates provide these clients legal advice based upon a thorough understanding of the situation, an analysis of lawful alternatives, and their individual professional judgment. They enhance C2, sustainrnent, and support operations by providing operational law advice and legal services in all core legal disciplines (military justice, international law, administrative law, civil law, claims, and legal assistance) during peacetime, war, and operations other than war.
"Legitimacy" means engendering public respect and support, promoting justice and ethical behavior. Judge advocates must be "competent, confident, caring, and courageous . . . grounded in values, and totally integrated into the arm^."^ They enhance the Army's legitimacy by integrating society's values into Army programs, operations, and decision-making processes.
To promote legitimacy, judge advocates must be well-grounded in Army and constitutional values. Frequently, there is tension between the military mission and civilian control that the judge advocate must resolve for the command. This tension existed in America before the Revolutionary war.. .
Prior to his assumption of command of the Continental Army, Washington had been deeply concerned with the administration of military justice. As early as 1756, when Washington was engaged in the French and Indian war, , he protested the enactment of the "act governing mutiny and desertion" which required a commander to obtain permission from the Governor of Virginia to hold a general court-martial and to obtain a warrant from Williamsburg, the colonial capital, before execution of
Legal Support to Operations
sentence. It was his opinion that if good discipline was to be maintained, justice had to be meted out expeditiously.'
...and continues to modern times.
The diflerences between the military and civilian communities result from the fact that it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise . . . . [T]he military constitutes a specialized community governed by a separate discipline from that of the civilian, and . . . the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of
discipline and duty . . .
Judge advocates are able to reconcile these tensions for the command because of their status and specialized training as soldiers and lawyers. They serve as soldiers in every operational contingency; therefore, they appreciate Army values -Loyalty, Duty, Respect, Selfless Service, Honor, Integrity, and Personal Co~rage.~They are members United States Supreme Court
Parker v. Levys
of the legal profession; therefore, they appreciate American constitutional values, including civilian control.
Finally, to promote legitimacy, judge advocates must help the Army conduct operations in ways that will win public support.
The responsibility for the conduct and use of military forces is derived from the people and the government. The Army commits forces only after appropriate direction from the National Command Authorities (NCA). In the end, the people will pass judgment on the appropriateness of the conduct and use of military operations. Their values and
expectations must be met..
The Militarv General Practitioner
Judge advocates must not only display professional values and well- honed skills as a judge, advocate, and United States Army
Field Manual 100-5, Operationdo
counselor, but also have broad legal expertise. During the Spanish-American War, then Lieutenant Colonel Enoch Crowder served in the Philippines, where he worked on the arrangement for the Spanish surrender, headed the Board
of Claims, served on the Philippine Green assisted in drafting martial law Supreme Court, and drafted the documents and served as the executive Philippine Criminal Code." During to the Military Governor in Hawaii. World War II, then Colonel Thomas
"In a deployment, they've got to be ready to shift into 4-5 functional areas on any given day. They'll touch crim. law, operational law, fiscal law, foreign claims, personnel law, ethics ... all in one day."
--LTC Michele M. Miller'2
Today, deploying judge advocates must be capable of providing comprehensive legal advice and services in all core legal disciplines (military justice, international law, administrative law, civil law, claims, and legal assistance) and, in addition, have general knowledge of legal sub-disciplines (e.g., contract law, fiscal law, environmental law, or intelligence activities law).
When practicing these core legal disciplines, a judge advocate must be an effective lawyer, which includes the roles of "judge" and "advocate," ethical advisor, and counselor. Recognizing the applicable function is of the utmost importance; the function must be appropriate to the task at hand.
1.2.5 The "Jud~e"Function
True to their title, judge advocates perform the function of "judge." They are routinely called upon for opinions or rulings on whether a law is applicable, a legal obligation exists, or a legal right must be respected.
This function is not limited to military judges and magistrates who participate in courts-martial and other proceedings under the Uniform Code of Military Justice. It applies also. to judge advocates rendering legal opinions, serving as legal advisors on official investigations, ruling on whether claims are cognizable, and reviewing the legality of procurement actions. As "judge," the judge advocate does not interpret the law on the basis of personal views or policy preferences, but rather on the basis of a careful reading of the authoritative rule and objective reasoning.
The judge function demands distinct skills: legal research and interpretation, reconciliation of facially contradictory precedents, and extensive knowledge of which legal authorities have precedence. It requires impartiality, diligence, independence, moral courage, and intimate knowledge of the facts. It requires prudence in refraining from activities that could cast doubt upon impartiality. It requires wisdom, care, sound judgment, and a judicious temperament.l3
Legal Support to Operations
1.2.6 The "Advocate" Function
Also true to their title, judge advocates perform the function of "advocate." They are commonly relied upon to make arguments about what a legal rule means or whether it applies, to present evidence, or to persuade.
Judge advocates frequently perform this function within a structured, adversarial proceeding, in which they prosecute or defend a particular client's interests. The client may be the command or an individual soldier. Advocacy skills may also be needed outside the courtroom: in liaison with environmental compliance agencies, non-governmental organizations or a host nation; or in formulating command policy, as a full understanding often requires the ability to see issues from different points of view.
Advocacy requires many important skills. These include careful study of substantive rules, applicable procedures, and decision-makers; conducting investigations; interviewing and examining witnesses; formulating theories; and composing arguments. Sometimes advocates use their persuasive skills to seek changes in the law. Ethical performance of the advocate function requires zealousness, but also candor and fairness.14
1.2.7 The "Ethical Adviser" Function
Judge advocates perform the additional function of advising commanders whether their actions are ethical. This includes appraising conduct in light of laws and regulations governing the conduct of government officials, but also includes consideration of other ethical precepts, including officer ethics and Army values.
1.2.8 The "Counselor" Function
Judge advocates also perform a "counselor" function in which they advise commanders whether proposed actions, while legal and ethical, are prudent.
Judge advocates functioning as counselors provide advice early in the decision-making process to enable the command to accomplish missions. They seek to be proactive and to confront problems before the problems confront the command.
When a judge advocate acts in any of these functions, they identify issues; formulate courses of action and evaluate their strengths, weaknesses, and legal consequences; anticipate potential legal attacks; consider ethical and prudential concerns; provide their personal recommendations to decision-makers; and frequently execute command decisions.
A variety of skills are required to perfom these functions. As a military staff officer, the judge advocate must plan, train, and coordinate, all with an understanding of the Army, its history, and operational art. Judge advocates must work constantly and tirelessly to acquire an intuitive and reasoned grasp of the command's interests and objectives. As a lawyer, the judge advocate must research, analyze,
negotiate, and mediate. By combining 1.3 IN A CHALLENGINGNEW
legal and military knowledge and skills, ENVIRONMENT
the judge advocate enhances decision-
making processes and contributes to Judge advocates must perform their
effective, ethical, and lawful mission traditional roles in a challenging, new
accomplishment. environment, described by Joint Vision 201 0 in this way:
Accelerating rates of change will make the future environment more unpredictable and less stable, presenting our Armed Forces with a wide range of plausible futures. Whatever direction global change ultimately takes, it will afSect how we think about and conduct joint and multinational operations in the 21'' century. How we respond to dynamic changes concerning potential adversaries, technological advances and their implications, and the emerging importance for information superiority will dramatically impact how well
our Aimed Forces can perform its duties in 2010."
The new environment will consist of Missions will increase not only in more missions, complex command and number, but also in diversity. The control relationships, international National Security Strategy requires operations, fluid operations, and military forces "to effectively deter technological advancements. aggression, conduct a wide range of
peacetime activities and smaller-scale
1.3.1 More Missions contingencies, and . . . win two overlapping major theater wars."lg
Missions are increasing in number Supporting national military objectives and type. "The US military will be include promoting peace and stability, called upon to respond to crises across and defeating adver~aries.~~ To the full range of military operations, accomplish these objectives, the Army from humanitarian assistance to fighting envisions a full spectrum of missions, and winning major theater wars . . ."I6 including defending or liberating Between 1990 and 1996, the Army territory, intrusions in support of "deployed 25 times -an increase in counterdrug and counterterrorism missions by a factor of 16."" During the operations, peacemaking, peacekeeping, same period, the Army has become national and theater missile defense, smaller. Between 1989 and 1999, the multilateral military exercises, military-Active Army reduced from 781,000 to to-military exchanges, and humanitarian 468,000, and the Total Army from relief.21 1,960,000 to 1 ,068,000.18
Legal Support to Operations
1.3.2 Command and Control Relationships (.Joint, Multinational, and Interapencvl
Command and Control relationships will become increasingly complex. Operations will be joint and multinational, requiring improved interoperability among the services and with allied and coalition partners.22 Additionally, U.S. forces must "enhance their ability to operate in consonance with other U.S. government agencies, and with Non-governmental Organizations (NGOs), International Organizations (IOs), and Private Voluntary Organizations (PVOs) in a variety of settings."23 These relationships will require much of future leaders.
Our future leaders at all levels of command must understand the interrelationships among military power, diplomacy, and economic pressure, as well as the role of various government agencies and non-governmental actors, in achieving our security objectives. They will require a sophisticated understanding of historical context and communication skills to succeed in the future. The evolution of command structures, increased pace and scope of operations, and the continuing refinement of force structure and organizations will require leaders with a knowledge of the capabilities of all four services.24
1.3.3 International O~erations
U.S. Armed Forces will continue to be involved in international operations for several reasons. First, threats to United States security interests are international; they include regional conflict, proliferation of weapons of mass destruction, terrorism, ethnic disputes, and international organized crime.25 Second, responding to these threats will require international cooperation. "We are continuing to adapt and strengthen our alliances and coalitions to meet the challenges of an evolving security en~ironment."~~
'This. will require military forces to act in cooperation with other nations' forces. Third, responding to these threats will require the full spectrum of military operations to shape the international environment, respond to international crises, and to deter and resolve international conflicts."
1.3.4 . Fluid Operations
Military forces will be required to be flexible, versatile, and responsive in changing missions and locations, and to do this as it restructures. "[Olur military must also be able to transition to fighting major theater wars from a posture of global engagement --from substantial levels of peacetime engagement overseas as well as multiple concurrent smaller-scale contingen~ies."~~"AU organizations must become more responsive to contingencies, with less 'startup' time between deployment and employment. Because we rely on the total force to provide the full range of military capabilities, we also require responsive reserve components that can rapidly integrate into joint organization^."^^ The Army's "ability to project power is greater today than at any time in our Nation's history. . . . Today, we can deploy a heavy armored brigade in 96 hours. .. . our ability .. .will be further enhanced, thus making our forces even more versatile . .
This era will be one of accelerating technological change. Critical advances will have enonnous impact on all military forces. Successful adaptation of new and improved technologies may provide great increases in specific capabilities. Conversely, failure to understand and adapt could lead today's militaries into premature obsolescence and greatly increase the risks that such
forces will be incapable of eflective operations against forces with high te~hnology.~' 1
1.3.5 Technological Advancements
For judge advocates, the most significant technological advancement will occur in information systems. This will change operations in three important ways; it will accelerate the tempo of operations, allow fusion of information in distinct staffing cells, and empower decision-making at lower echelons than in the past.32
1.4 CHALLENGES FOR JUDGE ADVOCATES IN THE 21ST CENTURY
While judge advocates will continue to perform their traditional roles, the new environment will greatly affect how they pursue their three fundamental objectives -mission, service, and legitimacy.
1.4.1 Mission
Pursuing the mission in the 21st Century will challenge judge advocates in three distinct ways. First, judge advocates must become increasingly refined as soldiers and lawyers. Judge advocates must understand how the Army will accomplish its various missions, and how to identify and resolve legal issues arising during these missions. They must understand the command and control relationships involved in each operation, and provide advice concerning the authority and responsibility of relevant agencies. They must be thoroughly grounded in all core legal disciplines to be effective in a fluid operational environment. They must be increasingly knowledgeable in international law as the Army cooperates with other nations' forces to secure United States interests world-wide.
Second, judge advocates must become more involved in the military decision-making process in critical planning cells, and at lower levels of command. As information technology increases the speed of decision-making and allows fusion of information in distinct cells, it becomes critical for judge advocates to be located where the relevant picture of the battlefield is received, evaluated, resolved, and affected. Otherwise, legal advice will not be timely or effective. To be proactive, the judge advocate must be present. As information technology empowers decision-makers at lower
Legal Support to Operations
levels of command, judge advocates must be present there.
Third, judge advocates must be capable of expanding the level of legal support to meet the mission demands of a force projection army. Projection creates surges in demand for legal services: deploying forces require legal support; the power projection platform requires temporarily increased legal support during mobilization, and augmented legal support in the event of deployment of tenant units and their organic judge advocates; the home station continues to require legal support. Judge advocates, in both the active and reserve components, must plan for the legal resources to meet these demands, and must be prepared to provide services with the deploying unit, the power projection platform, or home station.
1.4.2 Service
Providing effective service to commanders, staffs, personnel, and family members in the new environment will challenge judge advocates in four ways. First, judge advocates must maintain connectivity with operational and tactical networks and legal information sources in a fluid and technologically advanced environment. Of paramount importance will be the ability of the Rucksack Deployable Law Office and Library (RDL) to interface with Maneuver Control System -Phoenix (MCS-P), Global Combat Support System -Army (GCSS-A), Combat Service Support Control System (CSSCS), and Legal Automated Army-Wide System (LAAWS). As future systems develop, judge advocate connectivity must continue.
Second, judge advocates must provide technical supervision (supervision of legal operations by a Staff Judge Advocate) and technical support (direct legal expertise from JAGC organizations) to deployed judge advocates in every contingency. The variety of legal issues arising from diverse missions is a tremendous legal challenge to a deployed judge advocate. This can be especially challenging in joint and multinational operations. In joint operations, service specific regulations and policies apply. In multinational operations, troop contributing nations must still comply with their national laws. Legal supervision and support must be effective to ensure quality legal service to commanders and staffs. RDL connectivity will be critical to providing this support.
Third, judge advocates must be mobile. They must move, not only with the supported unit, but also independently to investigate claims and potential war crimes, to be at the commander's side at key meetings, and to perform other legal missions. A judge advocate's ability to collect evidence first-hand is frequently the reference point from which a claim is adjudicated fairly, and the truth about a potential war crime is learned. Responsive service in a fluid operational environment requires dedication of transportation in support of the judge advocate.
Fourth,' judge advocates must provide professional legal services to personnel and families, most importantly during deployments and split-based operations. Expanding the level of legal support during demanding times will be the most significant challenge. Also important, however, will be allocating adequate legal resources: the trained personnel and facilities required to provide the professional atmosphere expected by clients.33 This contributes substantially to good quality of life, which in turn, retains quality people.
1.4.3 Legitimacy
The future environment will challenge judge advocates in several ways. First, judge advocates must be well-grounded in constitutional and international law and values. Their understanding of, and ability to reconcile, those laws and values will be instrumental in promoting effective coalitions and international public respect for U.S. Army operations. Second, as the U.S. seeks to promote democracy abroad,34 the international community will expect U.S. Army operations to be consistent with democratic values. Therefore, the judge advocate's traditional role of assisting commanders to integrate democratic values into Army operations must continue. Finally, as the U.S. military "serves as a role model for militaries in emerging democracies around the
judge advocates must personally serve as teachers, trainers, and mentors for their counterparts.
1.5 SUMMARY
The judge advocate in the 21St Century must adapt the traditional role to a more demanding, complex, fluid, international, and technological environment. The judge advocate must continue to be a master of all core legal disciplines, and must be effective in the roles of judge, advocate, ethical advisor, and counselor. The judge advocate will succeed in the new environment by becoming increasingly knowledgeable as soldiers and lawyers, maintaining constant awareness of the operational situation and communication with technical supervision and support, and integrating constitutional and international democratic values into. military operations.
Legal Support to Operations
The Assistant Judge Advocate General (TAJAG) supervises the organization, administration, and functioning of OTJAG; the Field Operating Agencies of OTJAG; the procurement and professional training of members of the Judge Advocate Legal Service; the proficiency of reserve component judge advocates; and the operations of the judge advocate Guard and Reserve Affairs Department, Regulatory Law and Intellectual Property Division, Legal Technology Resources Office, and Standards of Conduct Offi~e.~'
The Assistant Judge Advocate General for Civil Law and Litigation (AJAG/CLL) supervises or oversees Contract Law Division, Litigation Division, Procurement Fraud Division, Contract Appeals Division, Environmental Law Division, Defense Appellate Division, and Trial Defense Servi~e.~~
The Assistant Judge Advocate General for Military Law and Operations (AJAG/MLO) supervises or oversees Criminal Law Division, Administrative Law Division, International and Operational Law Division and the Center for Law and Military Operations (CLAMO), Legal Assistance and Policy Division, Labor and Employment Law Division, and Government Appellate Di~ision.~~
The Army National Guard Special Assistant to TJAG is the principal advisor to TJAG concerning all niatters affecting judge advocates in the Army National Guard.
The Assistant Judge Advocate General for Operations is an Individual Mobilization Augmentee, and the principal advisor to TJAG concerning all matters affecting judge advocates in the
U.S. Army Reserve.
2.1.2 Field O~eratin~ A~encies
Certain enduring and specialized legal missions demand significant synergy or independence from the SJA sections that support various echelons of command. The Judge Advocate General's Field Operating Agencies (FOAs) are organizations designed to meet this institutional need.
2.1.3 The U.S. Armv Legal Services A~encv
The primary mission of USALSA is to deliver legal services to the Department of the Army in coordination with OTJAG; support and deliver legal services to field activities; and consolidate delivery of legal services by military judges and defense counsel to guarantee their independence. The organization is depicted in Figure 2-2.
Legal Support to Operations
Members of the JAGC in the Army National Guard serve in a unique status. Each is a full member of the JAGC and also a member of the particular state guard unit. Army National Guard judge advocates support their units' federal mission to maintain properly trained and equipped units that are available for prompt mobilization, and state mission to provide trained and disciplined forces for domestic emergencies or as otherwise required by the state.
The Army National Guard judge advocate's dual status can be useful. For example, an Army National Guard judge advocate in state status could be permitted to provide assistance to civilian authorities when a judge advocate in federal status might be precluded from providing assistance due to the restrictions of the Posse Comitatus Act.
Military judges in the Army National Guard are trained and certified by TJAG similarly to the military judges in the Army and Army Reserve. While in state status, an Army National Guard military judge may, when authorized by applicable state law, preside over courts- martial convened under state law. Upon mobilization and federalization of an Army National Guard military judge, the Chief Trial Judge will review the Army National Guard military judge's training, background, experience, and qualities (demonstrated mature judgment and high moral character) to determine the officer's suitability to serve as a member of the Army Trial Judiciary. Army National Guard officers who qualify for such service may be assigned, as needed, to the Army Trial Judiciary.
2.1.6 U.S. Armv ' Reserve Le~al Or~anizations
Legal support in the U.S. Army Reserve consists of support embedded in
U.S. Army Reserve units, such as in the judge advocate sections of Garrison Support Units (GSUs) designed to provide legal services to power projection platforms, and in Judge Advocate General Service Organizations (JA GSOs).
JAGSOs are legal units that provide legal services to troops not otherwise provided organic legal support. Additionally, JAGSOs provide CONUS sustaining base support for mobilization, mobilization sustainment, and demobilization operations. JAGSOs consist of judge advocates, warrant officers, and enlisted legal personnel.
JAGSOs consist of modular teams that provide legal services in all core legal disciplines. JAGS0 teams are an integral part of the Total Force and must maintain high standards of professional proficiency and military readiness. TJAG is responsible for the technical supervision, training, and assignment of JAGS0 personnel. Training associations between active component and reserve component legal elements ensure quality training and seamless integration during mobilization.
Each type of JAGS0 has specific capabilities. The Legal Support Organization (LSO), which is commanded by a judge advocate, provides operational control and technical supervision for as many as four Legal Services Teams &ST). An LSO will be assigned primary duties as a
Legal Support to Operations
(MAJ), and a legal NCO (SSG). The Trial Defense Team (TDT) performs duties as defense counsel in proceedings before administrative boards, under Article 15, UCMJ, and in courts-martial. It is capable of providing defense services on the basis of one team per 12,000 soldiers. A TDT, which currently exists separately from the RTDT, consists of a senior defense counsel (MAJ), three defense counsel (CPT), and one legal NCO (SSG). To maintain their independence, when not mobilized, regional and trial defense teams assigned to defense legal support organizations operate under the technical supervision of the Chief, U.S. Army Trial Defense Service. Upon mobilization, defense teams organic to LSOsMSOs will be under operational control of the U.S. Army Trial Defense Service.
The Senior Military Judge Team performs judicial duties and supervises Military Judge Teams. Its members preside at general and special courts- martial, perform duties as military magistrates, and serve in various other judicial capacities. The team consists of a senior military judge (COL) and a legal NCO (SSG), and is capable of providing judicial services on the basis of one team per 15,000 soldiers. The Military Judge Teams, which currently exist separately, consist of a military judge (LTC) and a legal NCO (SGT). Upon mobilization and IAW 10 U.S.C. 826(c), military judge teams organic to LSOs/MSOs will be reassigned to the
U.S. Army Trial Judiciary, will come under the supervision and control of the USALSA, and will be employed as directed by the Chief Trial Judge and attached, as required.
The Army assigns JAGS0 teams to theater armies, theater army area commands, corps, corps support commands, and other organizations as required. To prepare and train for operational missions, it is important for active component SJAs to establish close relationships with supporting JAGSOs. The gaining organization SJA, therefore, is responsible for planning for the employment of JAGS0 team personnel. Except for regional and trial defense teams and senior and military judge teams, JAGS0 teams fall under the technical supervision and administrative control of the SJA of the organization to which a JAGS0 team is assigned. The JAGS0 teams may augment the SJA section or may work as a remote detachment. The active component SJA is responsible for tasking the JAGS0 to perform operational missions.
Upon mobilization, JAGS0 teams depend on the unit to which they are assigned for all logistical and administrative support. Personnel services, finance, communications, transportation, maintenance, automation equipment, and supply are all areas of support needed by the JAGSOs to enable them to deliver the operational law services for which they are designed.
While not on active duty, JAGS0 team duties depend on the units to which they are assigned (regional support command or regional support group) for all support and administrative functions. Typical areas of heavy support include maintenance, unit reporting
Related Topics
- Naval Militia
- Results of the attack on Pearl Harbor
- Selected problems 1979
- POW report
- Law war handbook 2004
- An Overview of the United States Military
- DA PAM 27–9–1 Military Judges
- List of Ongoing Military Conflicts
- DA-PAM-27-17 05-1980
- Law of war documentary supplement 2009