Lawyers on horseback? Thoughts on judge advocates and civil-military relations

UCLA Law Review

Volumn 55, Issue 5, 2008, Pages 1407-1436

  Kramer, Michael L ^a,b   Schmitt, Michael N ^b,c  

^a Judge Advocates General's Corps ^*

^b Department of International Law

^c George C Marshall European Center Security Studies   (Germany)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 49249120561     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (132)

1. See INT'L INST. FOR STRATEGIC STUDIES, THE MILITARY BALANCE 2007 (James Hackett ed., 2007).
2. STOCKHOLM INT'L PEACE RESEARCH INST., RECENT TRENDS IN MILITARY EXPENDITURE (2007), http://www.sipri.org/contents/milap/milex/ mex_trends.html.
3. A December 2007 Gallup poll on American public perceptions of various professions illustrates the degree of respect for the armed forces. Sixty-five percent of respondents rated military officers as "very high" or "high" when asked to assess honesty and ethical standards. Other professions ranked lower: clergy and policemen - 53; judges - 46; local office holders - 20; State office holders - 12; lawyers - 15; and Congressmen - 9. GALLUP, HONESTY/ETHICS IN GOVERNMENT (2007), http://www.gallup.com/poll/1654/Honesty-Ethics-Professions.aspx.
4. S.E. FINER, THE MAN ON HORSEBACK (2d ed., Westview Press 1988) (1962). This term refers to a military leader involved in politics, often a military dictator.
5. See generally Glenn Sulmasy & John C. Yoo, Challenges to Civilian Control of the Military: A Rational Choice Approach to the War on Terror, 54 UCLA L. REV. 1815 (2007).
6. Id. at 1826. They suggest that Huntington "has trouble explaining the current state of disruption in civilian-military relations . . . ." However, Huntington pays significant regard to certain concerns raised by Sulmasy and Yoo, especially military interaction with Congress. In particular, he focuses on separation of powers. See SAMUEL P. HUNTINGTON, THE SOLDIER AND THE STATE 177, 191 (1959).
7. Greer v. Spock, 424 U.S. 828, 839 (1976) (noting the existence of "the American constitutional tradition of a politically neutral military establishment under civilian control"). As an example, U.S. DEP'T OF DEF., DIRECTIVE 1344.10, POLITICAL ACTIVITIES BY MEMBERS OF THE ARMED FORCES ON ACTIVE DUTY (2004), limits the political activities of active-duty service members.
8. HUNTINGTON, supra note 6, at 79.
9. Frank Hoffman, Bridging the Civil-Military Gap, ARMED FORCES J., Dec. 2007, at 18. The Supreme Court has also recognized that "the military is, by necessity, a specialized society separate from civilian society." Parker v. Levy, 417 U.S. 733, 743 (1974).
10. JOSEPH S. NYE, JR., SOFT POWER: THE MEANS TO SUCCESS IN WORLD POLITICS 5 (2004) (asserting that hard power refers primarily to military or economic instruments of national power).
11. For provocative articles on the subject, see Charles J. Dunlap, Jr., The Origins of the American Military Coup of 2012, PARAMETERS: U.S. ARMY WAR C. Q., Winter 1992-1993, at 2, and Thomas E. Ricks, Colonel Dunlap's Coup, ATLANTIC MONTHLY, Jan. 1993, at 23.
12. EX PARTE Milligan, 71 U.S. 2, 88 (1866) ("The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President."), quoted in Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2773-74 (2006).
13. Sulmasy & Yoo, supra note 5, at 1817. For an article refuting the notion that civil-military relations are an intraexecutive branch matter, see Geoffrey Corn & Eric Talbot Jensen, The Political Balance of Power Over the Military: Rethinking the Relationship Between the Armed Forces, the President, and Congress, 44 HOUS. L. REV. 553 (2007). Corn and Jensen argue that unlike executive agencies such as the State Department or the Department of Agriculture, the military is a national agency with responsibilities to both the executive branch and Congress. Id. at 557. Huntington also recognized that civilian control is not purely hierarchal: "Civilian control would be maximized if the military were limited in scope and relegated to a subordinate position in a pyramid of authority culminating in a single civilian head. The military clauses of the Constitution, however, provide for almost exactly the opposite." HUNTINGTON, supra note 6, at 163.
14. U.S. CONST. art. II, § 2, cl. 1. The Framers did not enumerate the President's powers under the Commander-in-Chiefs authority.
15. U.S. CONST. art. II, § 2, cl. 2.
16. U.S. CONST. art. I, § 8, els. 11, 12, 13, 14, 18.
17. The Supreme Court has opined that "the power of inquiry - with process to enforce it - is an essential and appropriate auxiliary to the legislative function." McGrain v. Daughtery, 273 U.S. 135, 174 (1927). "A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information - which not infrequendy is true - recourse must be had to others who do possess it." Id. at 175; see also, Sam Nunn, The Impact of the Senate Permanent Subcommittee on Investigations on Federal Policy, 21 GA. L REV. 17, 18 (1986).
18. U.S. CONST. art. I, § 8; see also John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167, 295 (1996).
19. The Court has traditionally been deferential to the political branches of government in the area of military affairs. See Rostker v. Goldberg, 453 U.S. 57, 66 (1981) ("The operation of a healthy deference to legislative and executive judgments in the area of military affairs is evident in several recent decisions of this Court." (citing Parker v. Levy, 417 U.S. 733, 756, 758 (1974))); see also Brown v. Glines, 444 U.S. 348 (1980); Middendorf v. Henry, 425 U.S. 25 (1976); Greer v. Spock, 424 U.S. 828, 837-38 (1976); Burns v. Wilson, 346 U.S. 137 (1953); United States v. MacIntosh, 283 U.S. 605, 622 (1931). In Orloff v. Willoughby, 345 U.S. 83, 94 (1953), the Court noted that "[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters."
20. In Bowsher v. Synar, 478 U.S. 714 (1986), the Court acknowledged "[t]he fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others." Id. at 725 (quoting Humphrey's Executor v. U.S., 295 U.S. 602, 629-30 (1935)).
21. See Corn & Jensen, supra note 13, at 556-57.
22. In part, this lack of certainty is because "presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).
23. HUNTINGTON, supra note 6, at 179. Lincoln incarcerated antiwar advocates "without charge or trial," while Roosevelt "used a military commission with few procedural niceties." JACK GOLDSMITH, THE TERROR PRESIDENCY 116 (2007).
24. For example, the President and Congress often agree upon the organization, composition, and size of the armed forces, and equip them, determine where they will be based, and select military leaders without major controversy (although such matters occasionally prove highly contentious).
25. JOINT CHIEFS OF STAFF, JOINT PUB. 1, DOCTRINE FOR THE ARMED FORCES OF THE UNITED STATES, at II-4 (2007) [hereinafter JOINT PUB. 1].
26. A "combatant commander" commands "one of the unified or specified combatant commands established by the President." JOINT CHIEFS OF STAFF, JOINT PUB. 1-02, DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED TERMS 97 (2007) [hereinafter JOINT PUB. 1-02]. A combatant command has a "broad continuing mission" and has been "established and so designated by the President, through the Secretary of Defense and with the advice and assistance of the Chairman of the Joint Chiefs of Staff." Id. at 96. They have either geographic or functional responsibilities. Currently, the regional combatant commands are the Africa Command, Central Command (Middle East), European Command, Pacific Command, Northern Command (United States), and Southern Command (Central and South America). The functional commands are the Joint Forces Command, Special Operations Command, Strategic Command, and Transportation Command. Id. at B-3.
27. The exceptions to this general requirement include first lieutenants and captains in the Army, Air Force, and Marine Corps and their equivalents in the Navy, lieutenants (junior grade), and lieutenants. 10 U.S.C. § 624(c) (2000).
28. 10 U.S.C. §§ 140, 3019, 5019, 8019.
29. 10 U.S.C. §§ 3037, 5148, 8037 (2000 & Supp. 2006). 10 U.S.C. § 5046 establishes the position of Staff Judge Advocate to the Commandant of the Marine Corps, to which a judge advocate is selected by the Secretary of the Navy for recommendation to the President for appointment.
30. 28 U.S.C. §§ 511-513. The Attorney General has, in turn, delegated responsibility for drafting formal Attorney General opinions and preparing opinions to the Office of Legal Counsel (OLC) under 28 U.S.C. § 510. In international affairs, OLC, inter alia, provides advice on "the legal aspects of treaties and other international agreements." 28 C.F.R. § 0.25(e) (2006).
31. 10 U.S.C. §§ 801-946.
32. The 2008 edition of the Manual for Courts-Martial (MCM) incorporates the 2005 edition, amendments made by the President in Executive Orders, and also amendments to the Uniform Code of Military Justice (UCMJ) made by the National Defense Authorization Acts for Fiscal Years 2006 and 2007. JOINT SERV. COMM. ON MILITARY JUSTICE, MANUAL FOR COURTS-MARTIAL, UNITED STATES 1 (2008).
33. 10 U.S.C. § 942.
34. 10 U.S.C. § 867a.
35. Clearly, government lawyers have played an increasingly significant role in general. As Professor Jack Goldsmith, who experienced it firsthand as a lawyer in the Department of Defense's (DoD) General Counsel's Office and then later as the head of the Department of Justice's Office of Legal Counsel, has noted "never in the history of the United States have lawyers had such extraordinary influence over war policy . . . . [L]awyers weren't necessarily expert on al Qaeda, or Islamic fundamentalism, or intelligence, or international diplomacy . . . [b]ut the lawyers - especially White House and Justice Department lawyers - seemed to 'own' issues that had profound national security and political and diplomatic consequences. They . . . dominated discussions on detention, military commissions, interrogation, GTMO, and many other controversial terrorism policies." GOLDSMITH, supra note 23, at 129-30.
36. Sulmasy & Yoo, supra note 5, at 1832.
37. Id.
38. Id. at 1833.
39. It might be argued that the trial of detainees in the war on terror lies outside the U.S. criminal justice system such that defense counsel should give greater deference to governmental policy preferences relative to the interests of their clients. Such an assertion, however, would be a direct affront to American notions of justice.
40. U.S. DEP'T OF THE ARMY, ARMY REG. 27-1, LEGAL SERVICES: JUDGE ADVOCATE LEGAL SERVICE 10 (1996).
41. MODEL CODE OF PROF'L RESPONSIBILITY EC 7-1 (1983).
42. 488 U.S. 75 (1988).
43. 488 U.S. at 84; see also United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). The right to effective assistance of counsel is found in U.S. CONST. amend. VI, The professional obligations of the attorney are distinct from the rights to which a detainee is entitled. A detainee may enforce only the latter in court, although the former may inform the substantive content of his or her rights.
44. US. DEP'T OF THE ARMY, ARMY REG. 27-26, LEGAL SERVICES: RULES OF PROFESSIONAL CONDUCT FOR LAWYERS 26 (1992) [hereinafter AR 27-26].
45. Id. at 30; see also id. at 26.
46. As is the case, for instance, with the release of exculpatory, yet classified information.
47. Commander Sulmasy and Professor Yoo simply assume disagreement exists. See, e.g., Sulmasy & Yoo, supra note 5, at 1818 ("Part III discusses this model in the context of the role of military lawyers in the War on Terror, in particular by asking why civilian and military officers have such different policy preferences.").
48. Id. at 1819 (citations omitted).
49. See Geneva Convention Relative to the Treatment of Civilian Persons in Time of War, art. 4, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV].
50. Memorandum From U.S. Dep't of State Legal Advisor William H. Taft IV to Counsel to the President Alberto Gonzales Regarding Comments on Your Paper on the Geneva Convention (Feb. 2, 2002) [hereinafter Taft Memo], in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB 129, 133 (Karen J. Greenberg & Joshua L. Dratel eds., 2005) [hereinafter TORTURE PAPERS].
51. GOLDSMITH, supra note 23, at 113.
52. Taft Memo, supra note 50, at 131. This statement accurately summarizes the DOJ position as articulated in Memorandum From Assistant Attorney General Jay S. Bybee to Counsel to the President Alberto Gonzales and Gen. Counsel of the Dep't of Def. William J. Haynes II Regarding Application of Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 22, 2002), in TORTURE PAPERS, supra note 50, at 81,81 [hereinafter Bybee Status Memo].
53. Memorandum From Counsel to the President Alberto Gonzales to the President regarding Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict With al Qaeda and the Taliban (Jan. 25, 2002), in TORTURE PAPERS, supra note 50, at 118, 119 [hereinafter Gonzales Memo].
54. Id.
55. Memorandum from Sec'y of State Colin L. Powell to Counsel to the President Alberto Gonzales Regarding Draft Decision Memorandum for the President on the Applicability of the Geneva Convention to the Conflict in Afghanistan (Jan. 26, 2002), in TORTURE PAPERS, supra note 50, at 122, 124 [hereinafter Powell Memo].
56. Memorandum From Assistant Attorney General Jay S. Bybee to Counsel to the President Alberto Gonzales Regarding Standards of Conduct for Interrogation Under 18 U.S.C. §§ 2340-2340A (2002), in TORTURE PAPERS, supra note 50, at 172, 172 [hereinafter Bybee Interrogation Memo]. Since the head of DOJ-OLC, Jay Bybee, "had little expertise in war-related issues," he "largely delegated OLC's war-on-terrorism responsibilities to [John] Yoo." GOLDSMITH, supra note 23, at 23.
57. Bybee Interrogation Memo, supra note 56, at 214. The memorandum also dealt with the President's Commander-in-Chief power and defenses to avoid the potential liability of those involved under 18 U.S.C. §§ 2340-2340A (2000). See id. at 173.
58. Memoranda From Air Force Deputy Judge Advocate General Major General Jack L. Rives, Navy Judge Advocate General Rear Admiral Michael F. Lohr, Army Judge Advocate General Major General Thomas J. Romig, and Staff Judge Advocate to the Commandant of the Marine Corps Brigadier General Kevin M. Sandkuhler to the General Counsel of the Air Force Mary Walker Regarding Recommendations of the Working Group to Assess the Legal, Policy, and Operational Issues Relating to Interrogation of Detainees Held by the U.S. Armed Forces in the War on Terrorism (Feb. to Mar. 2003), in THE TORTURE DEBATE IN AMERICA 377-91 (Karen J. Greenberg ed., 2005).
59. Memorandum for Inspector General, Department of the Navy, The General Counsel of the Navy, Statement for the Record: Office of General Counsel Involvement in Interrogation Issues 13 (Jul. 7, 2004), available at http://www.aclu.org/pdfs/safefree/mora_memojuly_2004.pdf.
60. Id. at 19.
61. Id. at 17.
62. Memorandum Opinion for the Deputy Attorney General, Legal Standards Applicable Under 18 U.S.C. §§ 2340-2340A (Dec. 30, 2004), http://www.usdoj.gov/olc/18usc23402340a2.htm.
63. See, e.g., Kurt A. Johnson, Military Department General Counsel as "Chief Legal Officers": Impact on Delivery of Impartial Legal Advice at Headquarters and in the Field, 139 MIL. L. REV. 1 (1993) (discussing "an unprecedented effort by forces within the United States Department of Defense (DoD) to designate the civilian general counsel of the military departments as the 'chief legal officers' of the respective departments").
64. For a recent example of this tendency, see Charlie Savage, Control Sought on Military Lawyers Bush Wants Power Over Promotions, BOSTON GLOBE, Dec. 15, 2007, at 1A.
65. Sulmasy & Yoo, supra note 5, at 1844-45 (citations omitted).
66. HUNTINGTON, supra note 6, at 191.
67. Id. at 177.
68. Sulmasy & Yoo, supra note 5, at 1832.
69. Id.
70. Pub. L. 109-366, 120 Stat. 2600 (codified at 10 U.S.C.A. §§948a-950w (West Supp. 2007), 42 U.S.C.A. § 2000dd-0 (West Supp. 2007)); Sulmasy & Yoo, supra note 5; id. at 1820 & n.25 (citing Kate Zernike, Lawyers and G.O.P. Chiefs Resist Proposal on Tribunal, N.Y. TIMES, Sept. 8, 2006, at A1.). This article refers to the testimony that be found at Standards of Military Commissions and Tribunals: Hearing Before the H. Comm. on Armed Servs., 109th Cong. (2006), available at http://armedservices.house.gov/comdocs/schedules/2006.htm.
71. 10 U.S.C. § 888 (2000 & Supp. 2006) (also prohibiting such speech against the "Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present").
72. Typically, military officers offer the Department of Defense position when questioned unless asked for their independent analysis. The classic example was the testimony in February 2003 of then Army Chief of Staff General Eric K. Shinseki before the Senate Armed Services Committee regarding troop requirements in the pending conflict with Iraq. It was only after Senator Warner, the Chairman of the Senate Armed Services Committee, invited the "honest and forthright observations of the service chiefs, professional as well as personal" that Shinseki offered an estimate greater than that suggested in the Department of Defense position (as determined by Secretary of Defense Rumsfeld). Hearing on the DOD Budget Before the S. Armed Serv. Comm., 108th Cong. 2, 14 (2003) (emphasis added). His testimony created a controversy that eventually led to Shinseki and the Secretary of the Army leaving government service. See Michael R. Gordon, Criticizing an Agent of Change as Failing to Adapt, N.Y. TIMES, Apr. 21, 2006, at A18.
73. As Huntington has noted: "If Congress was to play its part in determining national military policy, it required the same independent professional advice which the President received." HUNTINGTON, supra note 6, at 415; see also McGrain v. Daughtery, 273 U.S. 135, 174 (1927).
74. The dangers of excess are significant, a risk highlighted by Huntington: How strong should be the doubts and disagreements of a chief with the President's policy before he takes the initiative in criticizing it before Congress? . . . If the military chief accepts and defends the President's policies, he is subordinating his own professional judgment, denying to Congress the advice to which it is constitutionally entitled, and becoming the political defender of an administration policy. If the military chief expresses his professional opinions to Congress, he is publicly criticizing his Commander in Chief and furnishing useful ammunition to his political enemies. There is no easy way out of this dilemma. HUNTINGTON, supra note 6, at 416-17.
75. Military Order on Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001).
76. CHARLIE SAVAGE, TAKEOVER: THE RETURN OF THE IMPERIAL PRESIDENCY AND THE SUBVERSION OF AMERICAN DEMOCRACY 137-38 (2007).
77. 126 S. Ct. 2749, 2759 (2006).
78. Military Commissions in Light of the Court Decision in Hamdan v. Rumsfeld: Hearing Before the S. Comm. on Armed Servs., 109th Cong. 316 (2006).
79. Chairman Duncan Hunter said: "Today we hear from the administration on its recommendations. We also hear from our top military lawyers. We want to have the advantage of their thinking on the Administration's recommendations." Standards of Military Commissions and Tribunals: Hearing Before the H. Comm. on Armed Servs., 109th Cong. (2006) (emphasis added), available at http://armedservices.house.gov/comdocs/ schedules/2006.htm.
80. Id.
81. Id.
82. Id.
83. Note that by law "a member of the Joint Chiefs of Staff may make such recommendations to Congress relating to the Department of Defense as he considers appropriate." 10 U.S.C. § 151(f) (2000).
84. U.S. military doctrine defines an "operation" as "1. A military action or the carrying out of a strategic, operational, tactical, service, training, or administrative military mission. 2. The process of carrying on combat, including movement, supply, attack, defense, and maneuvers needed to gain the objectives of any battle or campaign." JOINT PUB. 1-02, supra note 26, at 392.
85. "Commander's intent" is defined as "[a] concise expression of the purpose of the operation and the desired end state. It may also include the commander's assessment of the adversary commander's intent and an assessment of where and how much risk is acceptable during the operation." Id. at 103.
86. This is not to say that no civilian government attorneys possess such qualifications. In fact, some of the finest operational lawyers are former judge advocates working in the government as civilian attorneys.
87. Sulmasy & Yoo, supra note 5, at 1836.
88. Id.
89. Id. at 1844. No examples are provided by Commander Sulmasy and Professor Yoo, nor are the authors of this Essay aware of any. In 2001, there were media reports of the Central Command Staff Judge Advocate providing advice that resulted in the decision not to attack a convoy in which Taliban leader Mullah Omar may have been riding. See, e.g., Thomas E. Ricks, Target Approval Delays Cost Air Force Key Hits, WASH. POST, Nov. 18, 2001, at A12;
90. Face the Nation (CBS television broadcast Oct. 21, 2001) (transcript), available at http://www.washingtonpost.com/wp-srv/nation/ specials/attacked/transcripts/cbstext_102101.html.
91. These accounts were later refuted by the CENTCOM Commander, General Tommy Franks, who noted that his Staff Judge Advocate kept him "square with the Rules of Engagement and the Law of Land Warfare," and that in the specific incident she repeatedly advised him that there were no issues with this proposed target. TOMMY FRANKS, AMERICAN SOLDIER 290-95 (2004).
92. On the role of staff judge advocates in such situations, see Michael N. Schmitt, Law, Policy, Ethics and the Warfighter's Dilemma, 1 J. MIL. ETHICS 113, 114-16, 121 (2002).
93. Sulmasy & Yoo, supra note 5, at 1843-44.
94. The jus ad bellum is set forth in the United Nations Charter and in customary international law. The best contemporary exposition of this law is YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENSE (4th ed. 2005).
95. For a discussion of this point, see John T. Rawcliffe, Changes to the Department of Defense Law of War Program, ARMY LAW., Aug. 2006, at 23. However, judge advocates must fully understand the legal and policy basis for the decision to employ the armed forces because, as will be discussed below, they play a key role in the development of, inter alia, rules of engagement, which integrate law, policy, and operational concerns and objectives and which are an integral part of the commander's ability to command and control his forces in the chaos and violence of combat.
96. The jus in bello is set forth in customary international law and in, for States Party thereto, such treaties as the 1949 Geneva Conventions and the 1977 Protocol Additional I. See, e.g., Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]; Geneva Convention IV, supra note 49; Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I]. The United States is a Party to the 1949 Geneva Conventions, but not Additional Protocol I. However, it considers much of the Protocol as reflective of customary international law. For a discussion of its customary law status, see THE SIXTH ANNUAL AMERICAN RED CROSS-WASHINGTON COLLEGE OF LAW CONFERENCE ON INTERNATIONAL HUMANITARIAN LAW, 2 AM. U. J. INT'L. L. & POL'Y 415, 428 (1987) (remarks of Michael J. Matheson).
97. An excellent discussion of jus in belo is YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT (2004).
98. Geneva Convention I, supra note 92, art. 45; Geneva Convention II, supra note 92, art. 46.
99. Additional Protocol I, supra note 92, art. 82. The Protocol also requires them to "give orders and instructions to ensure observance of the Conventions and this Protocol, and . . . supervise their execution." Id. art. 80.2.
100. The principle of distinction, which the United States recognizes as customary international law, provides that "the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives." Id. at art. 48. Regarding choice of tactics, the "precautions in attack" rule provides that "[t]hose who plan or decide upon an attack shall . . . [t]ake all feasible precautions in the choice of means [weapons] and methods [tactics] of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects." Id. at art. 57.2(a)(ii).
101. The term "stability operations" encompasses "various military missions . . . conducted outside the United States in coordination with other instruments of national power to maintain or reestablish a safe and secure environment, provide essential governmental services, emergency infrastructure reconstruction, and humanitarian relief." JOINT PUB. 1-02, supra note 26, at 508. Special operations are operations "conducted in hostile, denied, or politically sensitive environments to achieve military, diplomatic, informational, and/or economic objectives employing military capabilities for which there is no broad conventional force requirement. These operations often require covert, clandestine, or low visibility capabilities." Id. at 502-03.
102. Comprehensive training is primarily provided at the Army Judge Advocate General's Legal Center and School, the Air Force Judge Advocate General's School, and the Naval Justice School. Judge advocates attending the nation's war colleges, such as the Naval War College, also often take advanced courses in the subject.
103. See, e.g., Bybee Status Memo, supra note 52, at 81. The President reversed course and acknowledged the applicability of the Geneva Convention III to the conflict in Afghanistan on February 7, 2002. Presidential Memorandum on Humane Treatment of Al Qaeda and Taliban Detainees (Feb. 7, 2002), in TORTURE PAPERS, supra note 50, at 134, 134-35 [hereinafter President's Memo]. On the shift in administration policy, see Katherine Q. Seelye, In Shift, Bush Says Geneva Rules Fit Taliban Captives, N.Y. TIMES, Feb. 8, 2002, at A1;
104. John Mintz & Mike Allen, Bush Shifts Position on Detainees, WASH. POST, Feb. 8, 2002, at A1.
105. See Boumediene v. Bush, 127 S. Ct. 3078 (2007); Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Rasul v. Bush, 542 U.S. 466 (2004). For a discussion of these cases, see Michael N. Schmitt, The United States Supreme Court and Detainees in the War on Terror, 37 ISRAEL YEARBOOK ON HUMAN RIGHTS 33 (Yoram Dinstein & Fania Domb eds., 2007).
106. Sulmasy & Yoo, supra note 5, at 1839. The law of war issues are "direct participation" and "proportionality," respectively. The former provides that civilians may not be attacked "unless and for such time as they take a direct part in hostilities." Additional Protocol I, supra note 92, at art. 51.3. The latter prohibits an attack which "may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated." Id. at arts. 51.5(b), 57.2(a)(iii), 57.2(b). Both rules reflect customary international law.
107. Sulmasy & Yoo, supra note 5, at 1843.
108. There are three levels of war: [S]trategic level of war - The level of war at which a nation, often as a member of a group of nations, determines national or multinational (alliance or coalition) strategic security objectives and guidance, and develops and uses national resources to achieve these objectives. Activities at this level establish national and multinational military objectives; sequence initiatives; define limits and assess risks for the use of military and other instruments of national power; develop global plans or theater war plans to achieve these objectives; and provide military forces and other capabilities in accordance with strategic plans. JOINT PUB. 1-02, supra note 26, at 516. [O]perational level of war - The level of war at which campaigns and major operations are planned, conducted, and sustained to accomplish strategic objectives within theaters or other operational areas. Activities at this level link tactics and strategy by establishing operational objectives needed to accomplish the strategic objectives, sequencing events to achieve the operational objectives, initiating actions, and applying resources to bring about and sustain these events. Id. at 394. [T]actical level of war - The level of war at which battles and engagements are planned and executed to accomplish military objectives assigned to tactical units or task forces. Activities at this level focus on the ordered arrangement and maneuver of combat elements in relation to each other and to the enemy to achieve combat objectives. Id. at 532.
109. A "force multiplier" is "[a] capability that, when added to and employed by a combat force, significantly increases the combat potential of that force and thus enhances the probability of successful mission accomplishment." Id. at 211.
110. U.S. DEP'T OF DEF., DIRECTIVE 2311.01E, DOD LAW OF WAR PROGRAM, para. 4.1 (May 9, 2006).
111. Id. at para 5.11.8.
112. CHAIRMAN OF THE JOINT CHIEFS OF STAFF, INSTRUCTION 5810.01C, IMPLEMENTATION OF THE DOD LAW OF WAR PROGRAM, at enclosure. A, para. 1.b(6) (Jan. 31, 2007).
113. Id. at paras. 3(d), 3(e).
114. In practice, legal support to operations encompasses a much broader range of legal practice. Judge advocates deliver legal services in numerous areas, including military justice, international and operational law, administrative law, contract and fiscal law, claims against the government, and legal assistance. Operational law has been defined as "that body of domestic, foreign, and international law that directly affects the conduct of operations." U.S. DEP'T OF THE ARMY, FIELD MANUAL 27-100, LEGAL SUPPORT TO OPERATIONS, at vii (2000).
115. JOINT PUB. 1-02, supra note 26, at 472.
116. JOINT PUB. 1, supra note 25, at 1-21.
117. Haditha, Iraq Investigation, Charges and Specifications, http://www.usmc.mil/lapa/Iraq/Haditha/Haditha-Preferred-Charges-061221.htm (last visited Feb. 12, 2008). Charges were eventually dropped. Id.
118. Sulmasy & Yoo, supra note 5, at 1844.
119. "[T]he JTF [Joint Task Force] SJA no longer functions primarily within the combat support and combat service support arenas. A member of the JFC's personal staff, the JTF SJA is an essential advisor on the myriad of legal issues associated with combat and noncombat operations." JOINT CHIEFS OF STAFF, JOINT PUB. 1-04, LEGAL SUPPORT TO MILITARY OPERATIONS III-16 (2007) [hereinafter JOINT PUB. 1-04].
120. E-mail from Command Sergeant Major Michael Glaze, Army JAG Corps Regimental Sergeant Major, to Michael L. Kramer (Jan. 10, 2008) (on file with the authors); E-mail from Gunnery Sergeant Maxwell J. Williams, Legal Chief Wounded Warrior Regiment, to Michael L. Kramer (Jan. 22, 2008) (on file with the authors).
121. James H. Doyle, Jr., International Law and Naval Operations, in THE LAW OF MILITARY OPERATIONS: LIBER AMICORUM PROFESSOR JACK GRUNAWALT 17, 33 (U.S. Naval War Coll., Int'l Law Studies Vol. 72, 1998).
122. Sulmasy & Yoo, supra note 5, at 1844.
123. On lawfare, see Charles J. Dunlap, Jr., Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts, passim (Nov. 29, 2001) (unpublished paper presented at Harvard University, Carr Center, Humanitarian Challenges in Military Intervention Workshop), available at http://www.ksg.harvard.edu/cchrp/UseofForcePapers.shtml. On lawfare and similar tactics employed by opponents of the United States and other technologically advanced nations, see Michael N. Schmitt, 21st Century Conflict: Can the Law Survive?, 8 MELBOURNE J. INT'L L. 443, 469-71 (2007).
124. By operation of the rule of proportionality, the presence of a sufficient number of involuntary shields can make striking the target unlawful. For a discussion of the use of human shields, see Michael N. Schmitt, Human Shields in International Humanitarian Law, 48 COLUM. J. TRANSNAT'L L. (forthcoming 2008).
125. U.S. DEP'T OF THE ARMY, FIELD MANUAL 3-24, COUNTERINSURGENCY 7-9 (2006).
126. Military doctrine encapsulates the notion, defining it as "based on the legality, morality, and rightness of the actions undertaken." JOINT CHIEFS OF STAFF, JOINT PUB. 3-0, JOINT OPERATIONS A-4 (2006);
127. see also JOINT CHIEFS OF STAFF, JOINT VISION AND TRANSFORMATION DIVISION, AN EVOLVING JOINT PERSPECTIVE: U.S. JOINT WARFARE AND CRISIS RESOLUTION IN THE 21ST CENTURY 55 (2003).
128. AR 27-26, supra note 44, at 17.
129. John R. Vines, Lieutenant General, U.S. Army, Commander, Multinational Corps-Iraq), Remarks to an Audience Composed Predominantly of Combat Arms Officers (Dec. 12, 2005) (author's notes of presentation).
130. Peter Chiarelli, Lieutenant General, U.S. Army, Commander, Multinational Corps-Iraq, Remarks at the Army Legal Center and School (Aug. 11, 2006) (briefing on file with authors). He further stated that he expected judge advocates to be "full-spectrum staff officers," for counterinsurgency operations are "legally intensive; laws, directives, policies, congressional interest can create a confusing environment." Id.
131. JOINT PUB. 1-04, supra note 113, at II-9.
132. AR 27-26, supra note 44, at 14. Other services adopt a similar scheme. See, e.g., U.S. DEP'T OF THE NAVY, OFFICE OF THE JUDGE ADVOCATE GENERAL INSTRUCTION 5803.1C, PROFESSIONAL CONDUCT OF ATTORNEYS PRACTICING UNDER THE COGNIZANCE AND SUPERVISION OF THE JUDGE ADVOCATE GENERAL (2004).