US Military Lawyers Should Have Operational Responsibilities

The US, as a signatory to the major treaties on the laws of war has an obligation to enforce the customary and treaty norms of proper behavior in wartime not only within our own forces but by allied and opposing forces. This is not just a support task but in cases where opposing forces deliberately violate the laws of war, it is an operational responsibility that, when we fail to carry it out, cedes vital military advantage to law breaking enemies and increases the dangers that civilians face within war zones.

It would be interesting to read the operational planning document that lays out how we are supposed to undertake such operations. So far as I can tell, nobody has written such a document. We just don’t view military lawyers as anything other than a support element that helps other units undertake other military operations.

The operations documents are published by the Joint Chiefs, listed in the Joint Electronic Library. Classified planning documents have a link into the non-public JEL+ so the missing document can’t be put down to a problem of state secrets keeping the document out of public view.

Until we reformulate our doctrine and start taking laws of war enforcement as a military operation against enemies that tend to violate these laws en masse, excess casualties will be an inevitability. Most of those casualties will be non-military civilians of whatever country we happen to be fighting in but a significant amount of them will wear US military uniforms.

22 thoughts on “US Military Lawyers Should Have Operational Responsibilities”

  1. In Afghanistan, they seem to be in charge of making sure troops under fire don’t get the support they need. Dakota Meyer’s book has a number of examples.

    A quote from the first review”

    A few things are apparent when reading this book. Sergeant Dakota Meyer was intensely dedicated to those he lived and fought with. The Ganjigal Valley is a bad, bad place. And those in command of providing support for these brave fighting men were hugely negligent in their duties to provide artillery and air support.

    Meyer was punished for shooting at Taliban who were firing mortar rounds into the base. It probably saved his life as he was not allowed to accompany the small “civil affairs” unit into the village ambush.

    He was punished for shooting at men who were “not in uniform.” Not that the Taliban wears uniforms, of course.

  2. Historically, Laws of war are enforced by hostage taking. The POWs of 1 side are hostages that guarantee good treatment of POWs taken by the other side. By the same token, the civilians of side 1 are hostages that guarantee the proper treatment of civilians on side 2.

    Terrorists are combatants who are too weak to take prisoners. That is why it is ok to mistreat terrorists.

    When side 1 has won, then POWS are no longer protected. They can be executed, re-educated, sold as slaves, simply set free, or put on trial, or whatever – because side 2 has surrendered and set free ita POWs/hostages. Slavery has always been the most humane way for the winning side to dispose of POWs and unwanted civilians.

    At the level of the individual combatant, the fighter who knows he will be treated to a nice cell, good meals, good TV, a warm bed and cordial guards is more likely to surrender than a combatant who expects non-stop torture.

    Wars are easier to win when enemy troops and civilians are eager to surrender.

  3. Anonymous – If it were ever true, “historically” as you put it hasn’t been like this at least since the first Hague convention in 1899. I’m having serious doubts that it was ever exactly like your description.

  4. The odds that the current lot of privileged idiots we have running this country will do something effective about enforcing the laws of war as they apply to our enemies is about zero. Instead, they’re going to keep enforcing them on our troops with increasingly onerous restrictions until a breaking point is reached, which will likely culminate in some form of strike by the actual combat troops or a military coup. That’s the way the trends are moving, and from what I’ve seen of the JAG officers we’ve been recruiting, it’s not changing. The vast majority of them are activists, who “joined with an agenda”. I’m not seeing a positive outcome, to be honest.

    What we should have been doing from the outset was strictly enforcing the law of war, by demanding that the enemy comply with it. If we had, ISIS would likely not exist, because the majority of the leadership cadre wouldn’t have survived Camp Bucca to become leaders in the movement once they were released by the Obama administration giving the “go” to Maliki.

    Almost all of our problems with this regard are self-inflicted. Had we demanded that the enemy belong to an organized state entity, wore uniforms, and complied with the full range of land warfare laws, most of them would be dead. We should have been holding drumhead tribunals in theater: “Were you wearing a uniform? Were you fighting using civilians as cover? No? Yes? Take him out and shoot him… Oh? You know something that could help us…? Well, perhaps something could be worked out…”. Unlawful combatant status should have equated to an automatic, no-questions death sentence, unless the subject chose to turn over militarily useful information and work with us.

    The recidivists we released from Guantanamo would have been in graves, saving countless lives. Further, had we made it known that the only way to survive custody was by turning on the Taliban or al Qaeda organizations and giving us intelligence, odds are very good that the vast majority of the people we did capture and release would have either been executed by those organizations, or ostracized as being hopelessly compromised.

    Unfortunately, our leadership is too dumb to live, and seemingly hell-bent on taking the rest of us with them.

  5. I quite agree with you Kirk. But the lack of moral fiber in war is not due to our leaders but to us. We the people have become so soft and separated from the reality of war that as a whole, we demand “better” of our military, which essentially means having our guys die so we can be the “nice” side on the battlefield. It’s a sickening turn of events but one would hope the wheel will keep on turning back to its rightful place.

  6. ” the current lot of privileged idiots we have running this country” and, Kirk, I think we have no reason to believe the current crop of top military leaders are any better.

    The degree of incompetency and political correctness WRT military thinking has the potential to cost thousands, even millions, of lives.

    I’m currently reading (Paul Fussel’s) “Wartime”. Paraphrasing here: “under conditions of anywhere nearly equal materiel, German units trounced U.S. and British units. Allied blunders (incompetency was the currency of the day) cost many lives. Technology and mass production saved the allies from the German Army’s culture and professionalism.”

    When technology evens out in the world and when weapons of mass destruction will be wielded not by divisions (not even by companies of men) but rather by platoon-sized organizations, hopefully the best military minds are not thinking about social issues in the ranks. One also hopes that the high command directing the enemy’s platoon is not smart and has not the benefit of a warrior culture.

  7. Kirk – I have very little tolerance for the Democratic party, President Obama, or his cabinet. But we should be realistic about who does what. I literally do not know what is the appropriate level of leadership that decides to write a new JP 3 manual. I imagine it is somewhere between a colonel and the collective decision of the Joint Chiefs. The appropriate level of responsibility needs to be nailed down, the names of these people should be known, polled, and their feet should be put to the fire that such a manual does not exist.

    I cannot conceive of the politician who would put their hand in the shredder marked “I don’t believe in enforcing the laws of war”. Any resistance to creating such a document would, of necessity, be silent and very dangerous to the resister’s political health. The right would whoop for joy and stopping war crimes fits right in to a number of leftist narratives as well such as fighting for the little guy and social justice (stop laughing, they *do* have these narratives no matter how little they might honor them in reality). On top of it all, it empowers the enforcers (JAG officers) and gets them pointed in what the rest of the military would consider the right direction (aiming at the enemy) so the military is unlikely to resist.

    I spent a very long time just looking at the issue and saying I can’t possibly be right here. They couldn’t possibly have this big a blind spot. I was right, the blind spot does exist, and multiple public affairs officers couldn’t find a shred of evidence that I was wrong. This issue needs fixing.

  8. I guess I’m not surprised that lawyers can even ruin war. I doubt there’s anything that lawyers can’t destroy if there’s enough of them.

    It’s not called a plague of lawyers for nothing.

  9. “Technology and mass production saved the allies from the German Army’s culture and professionalism.”

    And a huge number of Russian casualties. A huge number. The Chinese in Korea were not the equal of the Germans or even the Russians.

  10. Mr. Lutas,

    Anonymous is correct, only fear of retaliation usually against your own being held prisoner has ever checked mistreatment of your own prisoners. Only fear of the enemy shooting everyone in sight without distinction [a western, christian distinction of non-combatants] drives the requirement to wear the uniform. It’s almost as if this entire activity of war centers around force, killing, threats. No Judge would allow such intimidation in his courtroom, except from the Judge of course.

    The nicest thing I can say is that your heart is in the right place wanting to point JAG and the other lawyers at the enemy. But they’ve already done that.

    They are pointed at their enemy, the American Solider facing the enemy, usually through his cowardly posterior covering commander. Their job and indeed their practice from 2003 forward is to prosecute American Military and intimidate them with threats [daily] and release the enemy prisoners as rapidly as possible.

    The Strongest Tribe has some great info on exactly what the lawyers did.

    That is because the lawyers have power over us and not the enemy, and the legalistic priesthood backs them.

    In practice this is Command by Investigation and Witch-Hunts, which are a constant feature of military life now. It utterly destroys bonds between Commanders and Troops and sows suspicion throughout the ranks. Exactly like a Totalitarian regime. It is.

    I think the only way I can get this across – this is like saying every family needs a lawyer in their home to take on an advocate or mediation role between parents, children, family members. Not unknown of course.

    Your Heart may be in the right place, but you’ve no contact with reality. Please refrain from further bad advice, perhaps don’t advise at all. Go downrange and show us how, live your own advice. Yes I have repeatedly.

    Good morning.

    PS – here’s our low morale and distrust of superiors. Because of Lawyers.

  11. “The Strongest Tribe has some great info on exactly what the lawyers did.”

    Yes, and Dakota Meyer’s book.

  12. “Troops said more stress is created by long-term budget cuts imposed on the force through sequestration — the much-despised but apparently inexorable automatic spending reductions over a decade approved by Congress”

    This should diminish after Obama as the GOP takes Congress and, hopefully, the White House. The Democrats dared the Republicans to cut spending by frontloading the cuts on the Defense budget. The GOP called the bluff but it has been painful. Now, Obama supporters boast about spending cuts, never acknowledging what happened.

    I just hope we can get back to rational policies before the world blows up.

  13. It’s not the world we need fear blowing up Mike K. The world will soon be distant, us blowing up is now unavoidable. Necessary too to get to rational policy.

    Actually the current administration is quite rational, they’re just doing us in is all. With a little distance of time it will seem strange to posterity that we elected such a man and expected anything else. He is the very incarnation of stereotypes and old warnings about violating the old ways.

    Transformation of course in African politics means erasing the Whites from Africa. Africa and his connection to it are his only ever display of emotion publicly – through his biography. Ever.

    Not of course his only connection to African politics. He intervened in a tribal matter in Kenya as Senator, after his tribe racked up 1100 corpses. We must seem quite tame to him.

    Then there’s being raised by Communists, and professionally trained not to rule but to take power. Groomed from childhood.

    Really electing him is one of Histories dumbest moves ever. This would be like a Israeli Nazi party taking the PM and Knesset. I suppose the Arab equivalent may happen someday, but I’d be surprised if it happens with Jewish majority voter support.

  14. Law and war are antithetical categories. If law applies conflicts are resolved by legal process according to legal rules. If war happens, the winner does what it will, and loser suffers what it must. The phrase law of war is at best an oxymoron, and at worst dezinformatsiya for low information voters to cover the actions of those* who wish to trammel and destroy a countries war making capacity by stealth.

    *Such as the current administration and its progressive followers.

  15. Brendan Doran – It is nationally psychotic for the US taxpayer to fund lawyers whose enemy is the US soldier. I would fix that by measuring their success by different metrics so that those who are doing actually useful work are first in line for career success. I do not understand why you would be against that. The lawyers, through the military court system, have the power of life or death over the enemy when they commit war crimes, when we can be bothered to actually prosecute them. To say that they have no control over the enemy is only true so long as they are not captured. But we regularly captured them and then let them go, to the detriment of our national interest and the military fighting to win victory in Iraq and Afghanistan.

    What I am advocating is the writing of a manual, not an unheard thing in the military. This manual would task lawyers to describe certain metrics, what percentage of enemy war crimes were prosecuted, how many successfully, etc. This would have only a marginal effect on the poor behavior you are describing but what effect it would have would be positive because the lawyers would be busy prosecuting the enemy for war crimes and have less time to prosecute our own troops. My perception is that you are against this development, but I simply don’t understand the justification for it.

    Robert Schwartz – Certainly, we could abrogate the treaties we have signed, lose the goodwill we currently hold, scare the pants off our allies, and go it alone. Do you really think that would leave us in a stronger security position? As the strongest military on the planet, the natural reaction is the creation of a military balancing coalition that grinds us down to defeat. We currently do not face that, though it is being threatened and has been for some time. Part of the reason we do not face such a coalition is that we sign on to such treaties as the Hague and Geneva conventions on the laws of war.

    It is worth facing a more complicated tactical situation on the ground in order to avoid the strategic disaster of that balancing military coalition forming. But we should pay as small a price as possible tactically for that strategic advantage. This article’s aim is to reduce the tactical pain of those strategically necessary treaties.

  16. TMLutas: I said nothing about abrogating treaties.

    The treaties are meaningless gobbledygook. As such whether we sign them or abrogate them makes no difference. We should not waste a cent on implementing them however because they are …

    The treaties have never impressed our enemies, and our enemies are only getting to be more psychotic and sadistic. Compared to ISIS, the Japanese were schoolgirls. I shudder to imagine the next generation of jihadis.

    Nor do I think that our friends care very much either. The US has not signed on to the International Criminal Court treaty and not even the Euro-weasels have said anything about it.

    The reason there is no grand alliance against the US is that no one (other than academic marxists) thinks the US is aggressive, but they worry about countries like Russia and China that really are aggressive, and from which the US might protect them. Sadly, the dingbat in the White House, who is an academic marxist, is trying to avoid giving the impression that the US would protect anyone from anything other than warm weather.

  17. Robert Schwartz – I would agree that, in themselves, treaties are just pieces of paper. But that’s true of all treaties. Iraq signed a cease fire with us in 1991. That held for awhile but towards the end, Iraq regularly violated the cease fire. It ceased to have serious meaning. Treaties are given meaning by our real world actions.

    Wars leak support in the US when we kill civilians. When the enemy does not wear uniforms, the problem gets bigger. I propose that we kill those who are captured and who have not followed the basics of the laws of war and we should keep the military lawyers busy with honest work doing it. This should make the problem smaller and coincidentally make it easier for us to win wars.

    You seem to have a principled objection to this course of action, “Law and war are antithetical categories” you say. But you also say that you “said nothing about abrogating treaties” which is true, as far as it goes. All nations of any significance behave like lying crapweasels at one point or another but those are not their finest moments. The good ones only do it of necessity. We should withdraw from the treaties if they have no meaning or we should take them seriously and impose their terms on our enemies as we have agreed to do in those same treaties.

  18. “You seem to have a principled objection to this course of action”

    I have no principles when it comes to war. We should do what works and not sweat it.

    The problem with the United States conducting wars is purely political, and it is the dominance of the Wallaceite* (pro-Soviet) wing of the Democrat party in that party. They believe that the United States is evil, and that the only way it can make amends is by letting them run the US, and by betraying its allies and succoring its enemies. Whenever wars have been have been fought by the United States, the Wallaceites have dogged our soldiers as war-criminals, conducted “anti-war” campaigns, and have pulled our troops and resources out of situations where their presence was necessary to maintain the peace the US created (e.g. South Vietnam 1975, Iraq 2009).

    As long as the Wallacites control one of the main political parties, the media, and the educational system, there is simply no hope of the US being able to conduct a war and be confident of long term success. In hindsight, we should have limited ourselves to punitive raids after 9/11 and that is how we should respond to ISIS.

    *From Henry Wallace FDR’s pro-Soviet Vice President (1941–1945).

    “We should withdraw from the treaties if they have no meaning or we should take them seriously and impose their terms on our enemies as we have agreed to do in those same treaties.”

    I am waiting with bated breath for your program to force ISIS to adhere to the Hauge and Geneva conventions. It should be très amusant.

  19. My objection to current practice is that by treaty, we should be killing more unlawful combatants and we are not doing so even when it would be in the best interests of the USA to do so. You seem to think that setting performance metrics and operational responsibilities to properly enforce these treaty obligations would be unrealistic. On the contrary, it is unrealistic to have treaty obligations of this nature and not make somebody operationally responsible for enforcement.

    My program to force ISIS to adhere to the conventions? It involves a lot of firing squads. When the difference between POW treatment and a firing squad is a few scraps of cloth, I expect Darwin to win out, eventually, even in the Mideast. The word will get out. It’s not like we’re going to make it a secret.

    If there is a particular interest in not shooting an illegal combatant, they should never be released while the war goes on without taking their parole. Under no circumstances should a parolee that is subsequently captured live and sentence should be carried out quickly.

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