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War looks messy. But behind the scenes, meticulous lawyering shapes nearly every strategic maneuver — even those made in the heat of combat. Modern judge advocates literally sit at the side of commanders, drafting rules of engagement, weighing in on targeting decisions, and even helping to prepare special operations forces for risky missions. Once thought of as writers of wills and conductors of courts-martial, military lawyers now have a seat in the critical planning cells where top-secret missions are developed. To many outside of military life, the idea of a judge advocate whispering in the ear of a four-star general is startling. But nowadays it is standard procedure. “For better or worse, all manner of human existence is becoming more legalistic, and that applies to warfare as well,” says former Navy Judge Advocate General John Hutson. “It’s a role that is reasonably new, so both the lawyer and war fighter are coming to grips with it.” U.S. Central Command, the geographic command that runs day-to-day operations in Afghanistan, will not disclose the number of military lawyers currently deployed as part of Operation Enduring Freedom. But during the Persian Gulf War in 1991, the number of judge advocates stationed in Saudi Arabia exceeded 250. “We try to stick lawyers as far forward as possible,” says Col. Christopher Maher, staff judge advocate for Army Forces Command. “Those lawyers provide continual support that commanders have come to depend on.” Lawyers providing advice to combatants who operate outside the customary legal constraints on murder, assault and destruction of property are bound to face unusual questions. For instance, during the ground war phase of Operation Desert Storm, U.S. troops bulldozed Iraqi trenches with tanks as they broke through the defensive line. According to an account of judge advocates in combat recently written by Army Col. Frederic Borch III, a senior Army judge advocate was asked to determine whether “burying the enemy alive in his own trenches was permitted under the Law of War.” The Army JAG reportedly said yes. Being part of a commanding officer’s inner circle can also mean getting a taste of the action, even parachuting in with troops when necessary. “It’s actually quite common to have judge advocates who train and jump right along with troops,” says Col. David Graham, chief of the Army’s International and Operational Law Division. “A judge advocate is not just a lawyer. He is also a soldier.” RULES OF ENGAGEMENT The rules that guide a military lawyer’s counsel are found in overlapping bodies of domestic, foreign and international law, as well as mission-specific rules of engagement. Rules of engagement are established to provide guidance on the use of force by American troops. They must balance military, legal and political considerations. Often, rules of engagement establish tighter parameters for the use of force than international law of war principles. Judge advocates play a major role in drafting rules of engagement and training combatants in their application. Though technically a unit commander and his operations section are responsible for the rules, in practice judge advocates frequently end up being their principal author. “Judge advocates pretty much have ownership of the process of developing rules of engagement,” says Cmdr. Max Jenkins, the senior judge advocate for Navy Second Fleet. “We listen to what the planners say and what they want to do and make sure we obtain the necessary rules of engagement.” For a major military endeavor such as the campaign in Afghanistan, rules of engagement are developed at the top levels of Defense Department leadership. As the rules filter through the geographic command (in this case the Central Command) to the component air, land and sea forces, each level tailors them for its specific task. All changes must go back up the line of command for approval. Regardless of the type of operation, the right to use all necessary force in self-defense and defense of U.S. troops is always emphasized. Sometimes rules of engagement go further and instruct soldiers to use force in protection of civilians and property, such as weapons, ammunition and even classified documents. The rules of engagement currently in use by American troops are kept secret. In conventional warfare, troops are authorized to attack enemy forces on sight, but it may be difficult for U.S. troops to distinguish by their appearance those fighting with Taliban forces from Afghan civilians. In circumstances where an adversary cannot be identified on sight, soldiers are trained to respond instead to threatening behavior and hostile acts. “It’s easy when you go into a Desert Storm environment. Iraq is the enemy and they wear certain uniforms and drive certain vehicles,” says Lt. Col. Stuart Risch, assistant director of the Center for Law and Military Operations in Charlottesville, Va. “In other operations it’s difficult for soldiers to make quick decisions. We as lawyers can help them by giving them proper training.” Indeed, it often falls to the judge advocate to train troops to use rules of engagement, usually through scenario-based drills. It is also common for JAGs to draft clear and concise summaries that are printed on pocket-sized cards that can be carried by servicemen and women. In the period preceding the Persian Gulf War, thousands of yellow cards were distributed among troops in Saudi Arabia with peacetime rules for the use of force on one side and wartime rules on the other. Peacetime rules were used in Operation Desert Shield, during which U.S. military personnel were stationed in Saudi Arabia, before the start of the bombing campaign against Iraq. The rules reiterated that the United States was not yet at war, but that individuals had the right to use force in self-defense or in response to hostile threats. The wartime rules implemented at the start of the Persian Gulf War instructed soldiers to “attack all enemy soldiers, vehicles, positions, supplies, and equipment.” The card also spelled out 11 restrictions on the use of force, including prohibitions on taking war trophies, attacking cultural buildings or using booby traps. In many missions, the pocket cards give the phonetic spelling for phrases such as “Stop, or I will fire” in the native tongue. “It can’t be a bunch of legal gobbledygook. Young guys and women in the fog of battle have to almost instinctively understand what they may or may not do,” says retired Rear Adm. Hutson, now dean at Franklin Pierce Law Center in Concord, N.H. “At the same time there has to be a certain flexibility. Rules of engagement can’t be so specific that people can’t make their own decisions.” Intense training is particularly crucial for special operations strikes where the situation on the ground may be unpredictable. There is no special operation exemption that allows soldiers to use force that is not authorized by the rules of engagement. The Operational Law Handbook, the bible of a deployed JAG, states, “The legal risks associated with [special operations] are often commensurate with the operational risks.” To prevent “legal catastrophes,” the handbook instructs judge advocates to conduct “intense planning, training, and briefings.” “The tricky thing about rules of engagement in a special operations environment is you have to foresee every contingency,” says Jenkins. “Before a special op, you sit down with the team and go over every element of rules of engagement.” Another area where judge advocates have been highly involved in recent bombing campaigns is target selection. Commanders turn to a group of close advisers — typically including an intelligence officer, operations officer, communications officer and judge advocate — to screen targets. It’s up to the lawyer to point out possible legal violations, and also to help military leaders weigh risk to civilians against the military value of a target. Once targets are identified, lawyers work with operators to find the best type of weapon to use in order to minimize collateral damage. The full process typically takes a few days. In addition to identifying legitimate targets, lawyers also assist in developing “no-strike” lists of targets that are off-limits. “I would say judge advocates are more intimately involved in the team that puts together combat operations than we were two decades ago,” says Air Force Judge Advocate General Maj. Gen. William Moorman. “Very precise planning goes into target selection and vetting targets against law of war.” According to a recent article in The New Yorker, the United States may have passed on an opportunity to bomb a convoy carrying Taliban leader Mullah Omar after a JAG advised against the attack. Despite the reputation lawyers have as risk-averse, judge advocates insist that considering legal principles and collateral damage does not always mean saying no. “If a mobile target is sitting in the middle of a city center, the lawyer is going to say you’ve got to weigh the advantage of hitting the target against the loss of life to civilians and make sure they’re not out of proportion,” says former Air Force judge advocate Scott Silliman, a senior lawyer in Desert Shield and Desert Storm. “My own experience is that commanders are surprised oftentimes as to how much force they can use,” says Silliman, who now heads Duke Law School’s Center on Law, Ethics and National Security. “A Red Cross warehouse obviously would not be a lawful target. Neither would a mosque or a museum or a hospital,” Silliman adds. “But each and every one of these can become a military target if the enemy misuses the structure. If the enemy puts triple-A anti-aircraft artillery on the roof of a hospital, it becomes a lawful target.” Target review gets expedited when hunting mobile targets, says Lt. Col. Amy Bechtold, one of about 10 Air Force judge advocates sent to Southwest Asia following Sept. 11 as part of Operation Enduring Freedom. “If a building is identified as a target, that building is not going anywhere. Obviously there is more time to collect information,” says Bechtold, the No. 2 lawyer for Central Command’s Air Force components. “Now, if the target is a building that troops are moving in and out of, the military objective may not be there a few days from now.” Bechtold says if a full review cannot be completed, the target is not authorized. “The fact that a target is more mobile may mean that we don’t have time to make sure we can comply with all the rules,” she says. “If we can’t get that check done, the target is not hit.”

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