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It is an extraordinarily grim task — drawing up wills for service men and women heading overseas into combat. Last week, the work was not only solemn but also overwhelming. In fact, as the president ordered the first deployment of U.S. forces to the Middle East following the Sept. 11 terrorist attacks on the World Trade Center and the Pentagon, the Air Force put out a call for help to trusts and estates attorneys at Washington, D.C., area law firms. But the routine writing of wills and executing of power of attorney is just the beginning of the legal work involved in waging modern war. The approximately 6,000 civilian and uniformed lawyers working for the Department of Defense are involved in virtually every level of a military operation, from determining appropriate targets and negotiating treaties with foreign nations to advising senior administration officials on military strategy. As the nation prepares to engage in a war for which there is little precedent, former Pentagon officials say the behind-the-scenes support of lawyers will be particularly crucial. “The role of lawyers in military activity has absolutely expanded over the past 10 years,” says former Army General Counsel William Coleman III, now a Philadelphia-based partner at Dechert. “In modern war, everything you do has to be in accordance with international law,” Coleman says. “Lawyers are providing both general advice and objective insight on very complex questions.” Indeed, the top civilian and uniformed attorneys at the Pentagon — William James Haynes II, general counsel of the Department of Defense, and Col. Jane Dalton, chief legal adviser to the chairman of the Joint Chiefs of Staff — are likely to be included in most major strategy discussions. “Before the secretary of defense would issue a deployment order committing troops to engage, the order would be reviewed by the general counsel,” says Wilmer, Cutler & Pickering partner Stephen Preston, acting GC of the Defense Department during the 1994 U.S. intervention in Haiti. “The lawyering needs to be done at the same time as the military planning itself so that legal concerns can be raised and resolved.” Preston and other former administration officials say that an interagency legal working group with representatives from the White House and the Defense, State, and Justice departments has likely been meeting regularly to work through legal issues as they arise. At these top-level sessions, two major bodies of law must be considered and weighed against political, defense, and law enforcement objectives. The first is U.S. law governing the use of force as set out in the Constitution and the War Powers Act; the second, international law laid down in agreements like the Geneva Conventions and the United Nations Charter. The Bush administration has framed its response carefully within the tenets of domestic and international law, securing congressional support at home and making a case to the global community for military action based on self-defense. “It’s always better to speak in terms of self-defense than in terms of retaliation. The rights of a country are at their highest in a self-defense situation,” says former DOD General Counsel Douglas Dworkin, now a partner at D.C.’s Arnold & Porter. “I’m sure the folks making those statements are mindful of what they’re saying,” Dworkin adds. “One of the most important roles for lawyers is to try to point out the consequences that flow from the rhetoric that is used.” A parallel process of legal review takes place in the field, where judge advocates must sign off on operational plans, contingency plans and rules of engagement. “Lawyers are not the ones in the driver’s seat or calling the shots,” says Covington & Burling attorney Togo West Jr., former secretary of the army and one-time DOD general counsel. “But, frankly, when you are putting together an operation that crosses national borders, there are always questions of international law.” TWO BATTALIONS OF LAWYERS The DOD legal community can be roughly broken down into civilian and military components. Civilian lawyers — including those in the general counsel’s offices of the DOD, the Air Force, the Army, the Navy, and the Marine Corps — advise the military’s civilian leaders on issues ranging from procurement to preparedness. As fighter jets and submarines head to the Persian Gulf, the public pays little attention to the administrative support required in connection with mobilizing reserve troops, procuring new equipment, and determining how various activities will be funded. Such functions are typically run out of the general counsel’s office. In addition, each of the services has a much larger judge advocate general — or JAG — division, led by uniformed military officers who provide legal support to the armed forces chiefs of staff. Judge advocates stationed in the field have administrative, disciplinary and operational responsibilities. Michael Nardotti Jr., a partner at D.C.’s Patton Boggs and judge advocate general of the Army from 1993 to 1997, says that many DOD lawyers are probably now busy reviewing existing treaties with nations, such as Pakistan, where the United States may want to stage troops or use air space. “If the president and the secretary of state are talking to six countries right now trying to garner their support, I’m sure there are lawyers in DOD looking to see what agreements we have in place with those countries and whether they are satisfactory,” Nardotti says. Perhaps the most fascinating and least understood role of judge advocates is their involvement as advisers in live combat situations. The responsibility of attorneys in the field has increased dramatically since the Vietnam War, where atrocities visited upon Vietnamese civilians led to an increased emphasis on the law of war. In World War II, the typical Army division was assigned just one or two lawyers; in the Gulf War, some divisions had more than 10. As a result of extensive investigations into the massacre of unarmed civilians by American troops at My Lai, the secretary of defense mandated training in the law of war for all military personnel. And in 1983, the Joint Chiefs of Staff mandated that all operational plans, contingency plans and rules of engagement be reviewed by lawyers. In the 1999 NATO intervention in Kosovo, for example, in-depth reviews were performed on all potential air strike targets. According to “Waging Modern War” by Gen. Wesley Clark, the supreme allied commander in Europe during the conflict in Yugoslavia, before any decisions were made in that conflict, a complete legal analysis was performed of each individual target, including location, military impact, possible personnel casualties, possible collateral damage, and risks if the weapon missed the target. “This analysis then had to be repeated for different types of weapons, in search of the specific type of weapon and warhead size that would destroy the target and have the least adverse impact elsewhere,” Clark writes. This elaborate review was needed simply to comply with U.S. protocol. The other NATO members had similar checks for compliance with the laws of war. Ideally, operational attorneys in the field should not merely be asked to review military plans, they should also be consulted in the planning process, Nardotti says. “Lawyers need to understand the operation environment and what the unit is going to be dealing with to understand the potential legal issues,” Nardotti says. “Once the fighting starts, if you haven’t done your homework and gotten people prepared, it’s almost too late.” Of course, ultimately, commanding officers — not attorneys — give the orders. Alfred Rubin, a professor of international law at Massachusetts’ Tufts University, says he is not certain that the influence of lawyers over combat behavior has expanded as dramatically as the numbers suggest. The law of war exists to give guidelines to commanders so that in the chaos of combat they will not take actions that, while seeming appropriate, may have negative results, Rubin says. “I would argue,” he continues, “that the role of a lawyer depends on whether an officer is willing to listen to them.”

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