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Roles, Responsibilities, and Working Relationships
commanders, and command sergeants major on all paralegal Soldier issues within the OSJA as well as
those arising from subordinate units. The command or chief paralegal NCO is also the primary field
representative of the regimental sergeant major of the JAGC. Additionally, the command or chief paralegal
NCO provides technical supervision of all paralegal Soldiers assigned to or supported by the OSJA and is
primarily responsible to the SJA for the deployment readiness of OSJA personnel. The chief paralegal
NCO, like the legal administrator, builds and maintains effective working relationships with key personnel
throughout the area of operations to enable OSJA personnel to meet their mission requirements.
Division Chief
4-29. Division chiefs are responsible for the mission success of their respective divisions within the OSJA.
Typically, legal issues arising in each core legal discipline are addressed by a corresponding division
within the OSJA. For example, members of the military justice division address military justice matters.
Division chiefs lead and supervise judge advocates, civilian attorneys, paralegals, and civilian legal support
staff in the delivery of legal support within their divisions. Division chiefs advise the SJA and deputy SJA
concerning all matters falling within the scope of their particular divisions and train subordinates in the
legal skills required by the discipline.
Subordinate Judge Advocates
4-30. Subordinate judge advocates within the OSJA perform legal duties under the supervision of a
division chief. They review actions for legal sufficiency; investigate factual matters related to legal actions;
write legal opinions; prepare legal actions; and provide legal assistance and other client services to Soldiers
and their family members. Subordinate judge advocates also advise commanders, staff officers, and
personnel; participate in staff working groups or teams; advocate before courts-martial and administrative
decisionmaking bodies; and review, adjudicate, and settle claims on behalf of and against the United
States; Judge advocates supervise paralegals and civilian legal support staff who assist in performing these
tasks.
Civilian Attorneys
4-31. Civilian attorneys assigned to the OSJA may perform the same legal duties as judge advocates,
except for advocating before courts-martial and administrative boards. They regularly provide a depth of
expertise and continuity in a particular legal discipline. They may also have supervisory responsibilities to
include those of a division chief.
Paralegal NCOs and Soldiers
4-32. Paralegal NCOs serve as enlisted leaders and subject matter experts within their respective divisions
or sections, assuming responsibility for the effective and efficient operation of the division or section
where they serve. They also bear primary responsibility to train, mentor, and develop junior paralegal
Soldiers to the required level of expertise necessary to effectively contribute to mission success within their
respective divisions or sections. Some paralegal NCOs serve as division or section NCOs in charge. They
therefore serve as senior enlisted advisors to the division chiefs or officers in charge, much the same way
the command or chief paralegal NCO serves as the senior enlisted advisor to the SJA.
4-33. Paralegal Soldiers provide support in all of the core legal disciplines, under the supervision of judge
advocates, civilian attorneys, and paralegal NCOs. Paralegal Soldiers, like all JAGC personnel, are subject
to the same rules of professional responsibility. They do not provide legal advice but support the legal
services provided by judge advocates and civilian attorneys at all levels within the Army.
THE OFFICE OF THE STAFF JUDGE ADVOCATE-BRIGADE LEGAL
SECTION RELATIONSHIP
4-34. Providing legal support to all levels of command remains the chief mission of all JAGC personnel.
However, personnel at the OSJA and the brigade legal section may identify different ways and means to
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Chapter 4
accomplish this mission. These potentially different views stem from the increased capabilities of BCTs
and the assignment of JAGC personnel directly to the BCTs. Though support and coordination issues may
arise, both organizations focus on the same end state: mission accomplishment. OSJA and brigade legal
section personnel build and maintain an ongoing, professional, working relationship. This relationship
enables JAGC personnel at all levels to focus their efforts toward mission accomplishment. This field
manual does not attempt to address all OSJA-brigade legal section issues concerning support and
coordination, but certain aspects of the OSJA-brigade legal section relationship merit specific
consideration: rapport, legal oversight, direct supervision, and technical training.
RAPPORT
4-35. Notwithstanding the increased decentralization inherent in the modular force, JAGC personnel at all
echelons understand the importance of maintaining positive working relationships with one another.
Rapport is critical for mission success—for both the JAGC and the Army. As senior leaders of the JAGC,
the OSJA leadership takes every opportunity to teach, mentor, and support the brigade legal section for
mission success. Similarly, brigade legal section personnel support the OSJA to accomplish its mission.
JAGC personnel at every level display the requisite professionalism and maturity and adhere to these
principles. These relationships will be of special interest to TJAG and the regimental sergeant major during
Article 6 visits.
LEGAL OVERSIGHT
4-36. The nature of the legal profession often requires a stronger technical chain of supervision along
JAGC channels than is present in other Army branches. There are several reasons for this enhanced legal
oversight. TJAG has a statutory obligation to “direct the members of the JAGC in the performance of their
duties” under Title 10, U.S. Code, section 3037 (2007). TJAG also has the unique requirement to meet
professional legal responsibilities under AR 27-26. Furthermore, all judge advocates are attorneys subject
to civilian rules of professional conduct, continuing education requirements, and professional discipline
from their licensing organization, which requires enhanced technical supervision along JAGC channels.
4-37. As the next senior judge advocate in the brigade judge advocate’s technical chain, the SJA should
provide brigade judge advocates with technical guidance, direction, and insight on legal issues. Exercise of
this function by the SJA can be based on policies and procedures agreed upon in advance with the brigade
judge advocate, or it may be event-driven, based solely on the SJA’s professional judgment. Brigade judge
advocates are presumed to be experienced enough to determine when technical guidance from the SJA is
necessary. Situations that warrant technical guidance by the SJA include the following:
z
Soldier misconduct that will likely result in action by the GCMCA.
z
Any complex or high-profile military justice matter.
z
Clarification of rules of engagement.
z
Issues requiring specialized expertise that is not resident in the brigade legal section such as
government contracting, ethics, or others.
z
Situations where the brigade judge advocate is contemplating issuing a legal opinion contrary to
a legal opinion or interpretation issued by the division OSJA.
DIRECT SUPERVISION
4-38. A SJA’s relationship with the brigade judge advocate sometimes exceeds mere technical
supervision—specifically in military justice matters. In garrison, the trial counsel works at the OSJA
military justice section but will deploy with the BCT. If a GCMCA details a BCT trial counsel to a court-
martial or other justice matter while deployed, the SJA supervises the trial counsel’s performance. Whether
in garrison or during a deployment, it is essential that continuous, close coordination on military justice
matters exists between OSJAs and brigade legal sections.
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Roles, Responsibilities, and Working Relationships
TECHNICAL TRAINING
4-39. SJAs do not normally have the authority to impose training requirements directly on brigade legal
section personnel working at the BCT headquarters. Nevertheless, OSJA leaders should take every
opportunity to teach, coach, and mentor brigade legal section personnel on legal and professional subjects,
and include the brigade legal section at appropriate events. To this end, the OSJA leadership should do the
following:
z
Invite and encourage brigade legal section personnel to attend formal OSJA training events such
as professional responsibility training, professional development classes, staff rides, or
sergeants’ time.
z
Ensure that brigade legal section personnel are informed of training opportunities made
available to the OSJA (such as legal conferences, seminars, and continuing legal education).
OSJA leaders should also provide justification to brigades to secure the allocation of funds to
enable the attendance of brigade legal sections personnel at professional development courses.
z
Establish procedures for regular, effective communication. Examples include routine meetings
or information-sharing sessions where technical topics are discussed. Frequent and candid
communication between the OSJA and brigade legal section is essential. Whenever practical,
this communication should occur face-to-face.
U.S. ARMY TRIAL DEFENSE SERVICE
4-40. The provision of criminal defense services to Soldiers stands as a hallmark of American and military
jurisprudence. It ensures that Soldiers enjoy the constitutional and legal protections that they swear to
support and defend for others. Members of the United States Army Trial Defense Service (USATDS), and
those who support the USATDS mission, defend Soldiers in actions taken against them by the Army. Trial
defense counsel represent Soldiers at general and special courts-martial, Article 32 hearings, pre-trial
confinement hearings, UCMJ proceedings, and before administrative boards. They counsel Soldiers
suspected of criminal offenses, pending nonjudicial punishment (Article 15), and at summary courts-
martial. Additionally, trial defense counsel may provide limited legal counsel and representation to
Soldiers facing minor disciplinary actions or in need of legal assistance services, but only in cases where
the OSJA and the servicing USATDS office enter into a memorandum of agreement.
4-41. It is imperative that all Army personnel understand and appreciate the USATDS mission. Counseling
and representing Soldiers suspected of committing misconduct may be improperly perceived as at odds
with the mission of the unit from which the Soldier comes or even as actions that are contrary to the
interests of the Army. Such perceptions have no merit. Any actions or comments that impede the lawful,
moral, and ethical responsibilities of USATDS personnel are inconsistent with the mission, duties, and
responsibilities of the JAGC and the Army. All JAGC Soldiers, regardless of the organization to which
they are assigned, therefore ensure that Soldiers of other branches understand the necessity of the
USATDS mission.
4-42. Trial defense services are provided through regional trial defense teams and trial defense teams. The
regional trial defense team comprises a regional defense counsel (usually an O-5), a senior defense counsel
(usually an O-4), and a paralegal NCO (usually an E-6). The trial defense team usually consists of one
senior defense counsel, three trial defense counsel (usually O-3s), and one paralegal NCO (usually an E-5).
The regional trial defense team provides operational control, training, and technical supervision for as
many as four trial defense teams. The regional trial defense team assigns cases and trains, supervises, and
assists trial defense counsel in counseling clients and preparing actions.
4-43. Regional and trial defense teams are assigned to the headquarters and headquarters company of a
sustainment brigade; however, they remain attached to the United States Army Legal Services Agency for
all purposes except administrative and logistic support. The Chief, USATDS, exercises independent
supervision, control, and direction over all defense counsel and the USATDS mission.
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4-44. While in a reserve status, United States Army Reserve (USAR) regional and trial defense teams are
assigned to defense legal support organizations. These teams operate under the technical supervision of the
Chief, USATDS, through legal support organization commanders. Similarly, while functioning under the
authority of Title 32, Army National Guard (ARNG) regional and trial defense teams are assigned to their
respective states, and they operate under the technical supervision of Chief, USATDS, through the Chief,
ARNG trial defense service. Upon mobilization, both USAR and ARNG trial defense teams and personnel
fall under the operational control of USATDS.
4-45. JAGC personnel providing military defense services to Soldiers carry significant responsibilities to
conduct their affairs in accordance with AR 27-26. Judge advocates and paralegals charged with the
USATDS mission provide counsel and representation to Soldiers who have little or no familiarity with the
military justice system. Judge advocates and paralegal Soldiers conduct themselves and their affairs so as
to instill in Soldiers a high degree of confidence in the individuals who represent them, as well as in the
military justice system overall. Judge advocates assigned to USATDS act independently of any other
branch and the local OSJA to which they are otherwise attached or affiliated for administrative or logistic
support. Paralegal Soldiers and NCOs will likewise conduct themselves in accordance with the
responsibilities of nonlawyer assistants set forth in Rule 5.3 of AR 27-26.
THE OFFICE OF THE STAFF JUDGE ADVOCATE’S BRIGADE
LEGAL SECTION-U.S. ARMY TRIAL DEFENSE SERVICE
RELATIONSHIP
4-46. USATDS personnel receive administrative and logistic support from designated installations or
organizations as set forth in AR 27-10. This includes the provision of paralegal NCOs and Soldiers. This
support is specified by TJAG as essential to the performance of the defense mission. Paralegal support at
the trial defense team level is especially critical to mission success. Trial defense team enlisted personnel
authorizations appear on the sustainment brigade table of organization and equipment. However, SJAs and
command or chief paralegal NCOs should actively coordinate the trial defense team paralegal assignment
process with regional and senior defense counsels as they would for their respective OSJAs. This
coordination ensures that paralegal support to the trial defense teams meets the requirements set forth in
AR 27-10.
4-47. All JAGC personnel are expected to advocate zealously on behalf of their clients. As such, disputes
between OSJA and USATDS personnel are inherent in the adversarial process. Leaders at all levels of the
JAGC share a common duty to foster professional relationships between OSJA and USATDS personnel.
Such professional relationships succeed when all JAGC personnel display mutual respect and support for
each other’s roles and responsibilities.
4-48. OSJA and brigade legal section leaders make all efforts to ensure USATDS support is consistent
with the support provided to other sections within the OSJA and to that provided the brigade legal section.
Additionally, OSJA leaders make all training opportunities equally known and available to USATDS
personnel, as they would be for OSJA personnel.
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Chapter 5
The Core Legal Disciplines
This chapter provides a detailed description of the core legal disciplines. They
include military justice, international and operational law, administrative and civil
law, contract and fiscal law, claims, and legal assistance.
MILITARY JUSTICE
5-1. Military justice is the administration of the Uniform Code of Military Justice. The purpose of
military justice, as a part of military law, is “to promote justice, to assist in maintaining good order and
discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and
thereby to strengthen the national security of the United States” (Manual for Courts-Martial). The Judge
Advocate General is responsible for the overall supervision and administration of military justice within
the Army. Commanders are responsible for the administration of military justice in their units and
communicate directly with their Staff Judge Advocates (SJAs) about military justice matters. There are
three organizational components of military justice within the Judge Advocate General’s Corps (JAGC):
the SJA; the Chief, United States Army Trial Defense Service (USATDS); and the Chief, U.S. Army Trial
Judiciary.
Note: Use of the term “SJA” in this chapter denotes the SJA at the appropriate level of
command.
5-2. The SJA is responsible for military justice advice and services to the command. The SJA advises
commanders concerning the administration of justice, the disposition of alleged offenses, appeals of
nonjudicial punishment, and action on courts-martial findings and sentences. The SJA supervises the
administration and prosecution of courts-martial, preparation of records of trial, the victim-witness
assistance program, and military justice training.
5-3. The Chief, USATDS exercises supervision, control, and direction of defense counsel services in the
Army. Judge advocates assigned to the USATDS advise Soldiers regarding judicial and nonjudicial
disciplinary matters and represent Soldiers before courts-martial and administrative boards.
5-4. The Chief Trial Judge, U.S. Army Trial Judiciary, provides military judges for general and special
courts-martial, supervises judges, promulgates rules of court, and supervises the military magistrate
program. Military judges of the U.S. Army Trial Judiciary, who are not within the local chain of command
or the technical chain of the SJA, have specific tasks. They preside at general and special courts-martial,
maintain judicial independence and impartiality, conduct training sessions for trial and defense counsel,
and perform or supervise military magistrate functions. Military magistrate functions include the review of
pretrial confinement and confinement pending the outcome of foreign criminal charges and the issuance of
search, seizure, or apprehension authorizations.
5-5. Military justice services are centralized to facilitate timely and efficient delivery. Normally, courts-
martial are processed at theater army, corps, division, theater sustainment command (TSC), or other
headquarters commanded by a general court-martial convening authority (GCMCA). Army brigade and
battalion commanders, as well as joint task force commanders, have special and summary court-martial
convening authority and may require support to conduct courts-martial.
5-6. The convening authority may designate where the court-martial will meet consistent with Rules for
Courts-Martial (RCM) 504(d) and 906(b)(11) and with the rulings of the military judge. SJAs provide
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military justice advice to GCMCAs, including joint force commanders who are GCMCAs. Other judge
advocates provide military justice advice to subordinate commanders.
5-7. Paralegal noncommissioned officers (NCOs) and Soldiers and in battalion, brigade, and higher
headquarters prepare and manage military justice actions, and provide technical and administrative support
for military justice.
5-8. In multinational organizations, each troop contributing nation is responsible for the discipline of its
military personnel. Accordingly, the U.S. element of the multinational organization will require military
justice support.
5-9. Trial defense and judiciary services are provided on an area basis under the independent supervision
and control of USATDS and U.S. Army Trial Judiciary, respectively. The Chief, USATDS and Chief Trial
Judge, U.S. Army Trial Judiciary supervise defense teams and military judge teams, respectively, and are
solely responsible for determining their places of duty and caseloads. Under the direction of the regional
and senior defense counsels, trial defense counsel travel as far forward as required throughout the area of
operations to provide advice and services. Military judges are normally co-located with the Office of the
Staff Judge Advocate (OSJA) at a command headquarters or travel into the area of operations for periodic
trial terms, depending upon judicial workloads. Military justice support transitions smoothly across the
spectrum of conflict, providing continuity in jurisdiction and responsive support to commanders. Critical to
success are prior planning, mission training, staff augmentation, and—particularly in the case of the
USATDS—the provision of sufficient paralegal assets and logistic support to defense counsel.
5-10. Legal administrators review and provide technical oversight and support for witness procurement,
court-martial orders, and other administrative documents. They sign official court-martial documents and
orders on behalf of general and special court-martial convening authorities. They provide technical support
and advice for automated trial preparation, presentation, and case management. In both garrison and
deployed environments, they assist the criminal law noncommissioned officer in charge and senior court
reporter with the planning, resourcing, establishment, and furnishing of courtroom facilities. Legal
administrators facilitate the travel of civilian witnesses and defense counsel through coordination with
higher headquarters and, where necessary, other government agencies. They also draft and process
contracts for the employment of expert witnesses testifying at courts-martial.
5-11. Paralegal NCOs and Soldiers manage and process evidence, interview witnesses, prepare courts-
martial documents, draft charges and specifications, and record and transcribe judicial and administrative
proceedings and investigations. They prepare and manage records of nonjudicial punishment, memoranda
of reprimand, and officer and enlisted administrative separation documents. They facilitate witness and
court member appearance. They also coordinate and support logistically all legal proceedings and hearings
from administrative separation boards to general courts-martial. They assist judge advocates appointed as
Special Assistant U.S. Attorneys to prosecute criminal offenses in U.S. magistrate and district courts and
war crime tribunals. Senior paralegal NCOs in charge of military justice and criminal law sections review
all legal documentation. They ensure accuracy and timely processing prior to review by the deputy SJA,
SJA, and convening authority.
5-12. Paralegal NCOs and Soldiers with additional skill identifier C5 are court reporters. In addition to the
duties discussed in paragraph
5-11, they record and transcribe verbatim records of courts-martial,
administrative proceedings, Article 5 tribunals, and other proceedings as required by law or regulation.
5-13. To prepare to deploy, a military justice attorney may perform the following tasks:
z
Align the convening authority structure for the deployment theater and home station.
z
Ensure that units and personnel are assigned or attached to the appropriate organization for the
administration of military justice.
z
Request or accomplish required designations of home station convening authorities.
z
Transfer individual cases to new convening authorities when necessary.
z
Publish a general order for the operation. Mission training will include briefings to deploying
and home station commanders concerning military justice operations and briefings to deploying
Soldiers concerning the terms of the general order for the operation.
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The Core Legal Disciplines
INTERNATIONAL AND OPERATIONAL LAW
5-14. International law is the application of international agreements, U.S. and international law, and
customs related to military operations and activities. Operational law is the body of domestic, foreign, and
international law that directly affects the conduct of military operations.
INTERNATIONAL LAW
5-15. Within the Army, the practice of international law includes the interpretation and application of
foreign law, comparative law, martial law, and domestic law affecting military operations overseas. The
SJA’s international law responsibilities include the following:
z
Implement the Department of Defense (DOD) Law of War Program, which includes law of war
training, advice concerning the application of the law of war (or other humanitarian law) to
military operations, the determination of enemy prisoner of war
(EPW) status, and the
supervision of war crime investigations and trials.
z
Assist with international legal issues relating to deployed U.S. forces, including the legal basis
for conducting and funding operations, status-of-forces and other international agreements, and
the impact of foreign law on Army activities, contractors, and dependents.
z
Monitor foreign trials and confinement of Army military and civilian personnel and their
dependents.
z
Assist with legal issues in intelligence, security assistance, counterdrug operations, and rule of
law activities.
z
Advise the command concerning the authority to negotiate and execute international
agreements, including United Nations resolutions.
z
Serve as legal liaison with host or multinational legal authorities.
5-16. Normally, the SJA provides international law support at the main and tactical command posts in the
divisions and corps, TSC headquarters, theater army headquarters, and each joint and multinational
headquarters. In addition, international law support may be required at brigade and battalion headquarters.
International law tasks vary from phase to phase but are designed to ensure operational capability and
support international legitimacy through all phases of an operation.
5-17. The SJA and international law attorneys thoroughly understand the contingency plan and the
international laws affecting operations. They ensure the contingency plan complies with international legal
obligations, including obligations to EPWs and civilians. They also identify requirements for additional
agreements, forward these requirements through higher headquarters to the proper negotiation authority,
and, when authorized, undertake negotiation of such agreements. They also identify and obtain relevant
international agreements such as status-of-forces agreements, exchanges of diplomatic notes, and
acquisition and cross-servicing agreements. International law planning objectives include informing the
commander and staff of the international legal obligations on the force, minimizing legal obligations or
their effects on the force, protecting the legal status of unit personnel, ensuring rights of transit, and
providing responsive and economical host-nation support.
5-18. The SJA will liaise with the International Committee of the Red Cross; the Department of State
(DOS) country team for the operational area; legal officials in the host nation; and other government,
nongovernmental, and international organizations as directed by the commander. These liaisons are to
establish working relationships that help sustain the operation; to coordinate the legal aspects of the
deployment and entry; to confirm understanding of agreements concerning status of forces, rights of
transit, basing, and host-nation support; and to ensure compliance with international legal requirements.
Briefings to deploying personnel should cover the legal basis for the operation, the legal status of
deploying personnel, the relevant country law, guidance on the treatment of civilians in the operational
area, and the applicability of the law of war or other humanitarian law.
5-19. Advice to the commander may involve the law of war, including advice to the EPW team;
interpretation of international agreements; treatment of civilians or foreign diplomats; assistance to
international organizations, U.S. or host-nation government organizations, or nongovernmental
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Chapter 5
organizations; and other international legal matters. Legal processes include the investigation and trial of
war crimes; Article 5 tribunal proceedings; foreign criminal trials of U.S. personnel; foreign civil or
administrative proceedings; and proceedings conducted under occupation or martial law.
OPERATIONAL LAW
5-20. Operational law encompasses the law of war but goes beyond the traditional international law
concerns to incorporate all relevant aspects of military law that affect the conduct of operations. Judge
advocates provide operational law support in all military operations. The operational law judge advocate
supports the military decisionmaking process
(MDMP) by preparing legal estimates, designing the
operational legal support architecture, writing legal annexes, assisting in the development and training of
rules of engagement (ROE), and reviewing plans and orders. The operational law judge advocate supports
the conduct of operations by maintaining situational awareness as well as advising and assisting with
targeting, with particular emphasis on ROE implementation. In stability operations, judge advocates
perform activities to establish civil security, civil control, essential services, economic and infrastructure
development, and governance. Operational law also involves the provision of the core legal services that
sustain the force.
5-21. Brigade legal sections normally provide operational law support at each brigade headquarters
whereas the OSJAs provide operational law support at each key operational cell at every higher level of
command. Operational law support is also provided at each joint and multinational headquarters. Some
missions also require operational law support at the battalion level or in specialized units or operational
cells.
5-22. Paralegal NCOs and Soldiers help investigate and report alleged law of war violations. They provide
critical support in implementing the DOD Law of War Program by teaching law of war and code of
conduct classes. Paralegal NCOs and Soldiers, under the supervision of judge advocates, conduct stability
operations by directly participating in tasks to establish civil security, civil control, essential services,
economic and infrastructure development, and governance. Paralegal NCOs and Soldiers support the
MDMP by preparing legal estimates and other operational law memoranda, designing the operational legal
support structure, writing legal annexes and appendixes to base operation orders, assisting in the
development and training of ROE and law of war, and reviewing plans and orders. Paralegal NCOs and
Soldiers, as key members of the staff, provide support during the conduct of operations by maintaining
situational awareness and assisting with targeting and ROE implementation. Paralegal NCOs and Soldiers
provide support for the accurate and timely processing of EPWs and detainees. Paralegal NCOs and
Soldiers with the additional skill identifier 2S are trained to serve on unit staffs. In addition to the above
duties, they may serve as a legal representative in the targeting cell for brigade-level units and higher; be
integrated in key command planning cells; and deploy as an integral member of the staff for brigade-level
units and higher.
5-23. Prior to operations, operational law judge advocates, paralegal NCOs, and Soldiers conduct
contingency planning, deployment preparation, and training. Operational law judge advocates develop staff
skills and working relationships at all times, not merely before deployment. Deployment preparation is a
cooperative effort between the operational law judge advocate, the command or chief paralegal NCO, the
legal administrator, and other key personnel. It includes developing standing operating procedures,
identifying deploying personnel, marshaling resources, and establishing liaisons. This predeployment
training develops the soldiering and legal skills of legal personnel, provides mission-related legal
information to unit personnel, integrates legal personnel into the unit, and establishes working relationships
with Reserve Components legal personnel who will support the deployment.
5-24. Operational law judge advocates, with the assistance of paralegal NCOs and Soldiers, conduct
mission briefings for deploying personnel regarding ROE, general orders, code of conduct, law of war, and
other appropriate legal topics; conduct final mission planning; and coordinate legal support for individual
deployment readiness.
5-25. During a deployment, operational law tasks related to the conduct of operations become more
critical. Operational law judge advocates maintain situational awareness to provide effective advice about
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The Core Legal Disciplines
targeting, ROE, and legal aspects of current operations. For this reason, operational law judge advocates
deploy with their automation equipment, vehicles, radios, and global positioning devices in a sequence that
ensures their presence in key operational cells at all times. Deployed paralegal NCOs and Soldiers help the
operational law judge advocate maintain situational awareness by attending briefings, monitoring e-mail
traffic, tracking the battle, and providing other required assistance. Upon arrival in the area of operations,
operational law judge advocates organize and coordinate the delivery of legal services in all core legal
disciplines in accordance with the legal annex to the operation plan or operation order.
5-26. Legal administrators manage several support systems during deployment and redeployment. They
deploy with the OSJA cell to ensure quality legal services forward. Working with the command or chief
paralegal NCO, they coordinate with staff elements and higher headquarters to ensure that the SJA office is
properly manned, equipped, trained, and funded to support legal operations. Working with the command or
chief paralegal NCO, legal administrators acquire adequate facilities and resources for the OSJAs,
including separate facilities for the military judge, defense counsel, trial counsel, and legal assistance
functions. They frequently manage resources in both the deployed office and the office in garrison to
ensure that the delivery of legal services is uninterrupted. When necessary, legal administrators represent
the OSJA in the tactical operations center, serve as convoy commanders, field ordering officers, and duty
officers, but legal administrators do not provide legal advice.
5-27. Rule of law activities create security and stability for the civilian population by restoring and
enhancing the effective and fair administration and enforcement of justice. Stability operations are a core
U.S. military mission, and rule of law activities are critical to the success of stability operations. Rule of
law activities are particularly significant in the immediate aftermath of major combat operations. At this
time, military forces must restore order to the civilian population that almost inevitably results when
combat disrupts the routine administration of the society. Many tasks associated with rule of law require
specialized legal expertise. See appendix D for more information on rule of law activities.
5-28. Intelligence law addresses legal issues in intelligence activities and interrogation operations. As the
commander’s primary advisor on the legal aspects of all warfighting functions, operational law judge
advocates ensure that they understand and consider intelligence law when planning and reviewing
operations. While aspects of intelligence law exist in all operations, it is particularly important in domestic
activities.
5-29. Detainee operations law is comprised of those policies and national and international laws that
address the treatment and status of persons detained by U.S. forces. An operational law judge advocate
supporting detainee operations may perform the following functions:
z
Advise the commander and other personnel responsible for detention operations on all matters
pertaining to compliance with applicable policy, international, and national law.
z
Provide legal advice on the proper composition and function of tribunals required to determine
detainee status in accordance with the Geneva Conventions.
z
Provide initial and refresher training regarding treatment standards for detainees to all personnel
involved in detainee operations including the detaining Soldiers, interrogators, and the
internment facility commander.
z
Advise the appropriate commander regarding investigation of suspected maltreatment or abuse
of detainees or other violations of applicable law or policy.
ADMINISTRATIVE AND CIVIL LAW
5-30. Administrative law is the body of law containing the statutes, regulations, and judicial decisions that
govern the establishment, functioning, and command of military organizations. Civil law is the body of law
containing the statutes, regulations, and judicial decisions that govern the rights and duties of military
organizations and installations with regard to civil authorities.
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Chapter 5
ADMINISTRATIVE LAW
5-31. The practice of administrative law includes advice to commanders and litigation on behalf of the
Army involving many specialized legal areas. These specialized areas include military personnel law,
government information practices, investigations, relationships with private organizations, labor relations,
civilian employment law, military installations, regulatory law, intellectual property law, and government
ethics.
5-32. Administrative law attorneys perform the following tasks:
z
Advise commanders, review administrative actions, and litigate cases involving military
personnel law.
z
Advise Army officials regarding their obligations under the Freedom of Information Act and the
Privacy Act.
z
Advise summary court-martial and investigating officers, review investigations for legal
sufficiency, and advise appointing authorities concerning investigative findings and
recommendations.
z
Advise Army officials concerning support for and relationships with private organizations.
z
Advise Army officials concerning labor relations, including certifying and negotiating with
labor unions, grievances and arbitration, and unfair labor practice allegations.
z
Advise Army officials concerning the recruiting, hiring, evaluating, and disciplining of
employees.
z
Represent the Army in litigation arising from employee grievances and discrimination
complaints.
z
Provide legal advice and counsel to Army officials concerning all matters involving
appropriated and nonappropriated fund civilian employees, including hiring, evaluation,
discipline, reductions in force, whistleblower protection, and complaint processing.
z
Represent the Army in third-party proceedings arising from employee grievances, appeals,
discrimination complaints, and labor relations matters.
z
Advise installation commanders concerning the legal authorities applying to military
installations.
z
Advise Army personnel concerning government ethics.
z
Supervise the command financial disclosure and ethics training programs.
5-33. Administrative law support is usually provided at brigade headquarters, main and tactical command
posts in the modular divisions and corps, TSC headquarters, Army Service component command
headquarters, and each joint and multinational headquarters. Because of the many issues they face,
administrative law attorneys complete technical legal research and writing. The legal research capabilities
and technical support structure are robust to provide specialized legal knowledge and flexibility to solve
different problems as an operation progresses.
5-34. During operations, administrative law attorneys prepare to spend considerable time and effort on
command investigations, as these may significantly impact the unit and mission. They also supervise the
government ethics program, including filing financial disclosure forms, even in a deployed environment.
5-35. Paralegal NCOs and Soldiers help judge advocates and civilian attorneys review and prepare legally
sufficient documents including financial liability assessments, Freedom of Information Act requests,
AR 15-6 investigations, and documents processed for release to ensure compliance with the Privacy Act.
Additionally, paralegal NCOs and Soldiers ensure that all actions are tracked, processed, and filed to
ensure the prompt and efficient delivery of services to the commander and staff.
CIVIL LAW
5-36. The practice of civil law includes environmental law and well as many other specialized areas of
law. Environmental law is the body of law containing the statutes, regulations, and judicial decisions
relating to Army activities affecting the environment—including navigable waters, near-shore and open
5-6
FM 1-04
15 April 2009
The Core Legal Disciplines
waters and any other surface water, groundwater, drinking water supply, land surface or subsurface area,
ambient air, vegetation, wildlife, and humans. Overseas, host-nation law may also affect Army operations.
An environmental law attorney might perform the following tasks:
z
Represent Army activities in environmental litigation and at hearings before local, state, or
Federal agencies in coordination with the Chief, Environmental Law Division, Office of The
Judge Advocate General; United States Army Legal Services Agency; and the Department of
Justice.
z
Monitor state and Federal environmental legislative and regulatory developments.
z
Provide advice concerning the appropriateness of any environmental enforcement activities.
z
Review all draft environmental orders, consent agreements, and settlements with Federal, state,
or local regulatory officials before signature.
5-37. Prior to operations, environmental lawyers assist in the planning process by providing legal advice
concerning environmental reviews and environmental requirements in the area of operations and by
reviewing plans to ensure that they address environmental law and policy requirements. The environmental
plan should address certification of local water sources, waste management, hazardous material
management, protection of flora and fauna, archeological and historical preservation, the base field spill
plan, and policies and responsibilities that protect the environment.
5-38. Environmental lawyers ensure that an environmental survey is completed to provide a baseline
against which later claims for damage may be assessed. SJAs coordinate with the organization’s
environmental team and civil affairs section. SJAs liaise with the DOS country team and local
environmental legal authorities.
CONTRACT AND FISCAL LAW
5-39. Contract law is the application of domestic and international law to the acquisition of goods,
services, and construction. Fiscal law is the application of domestic statutes and regulations to the funding
of military operations and support to nonfederal agencies and organizations.
CONTRACT LAW
5-40. The practice of contract law includes battlefield acquisition, contingency contracting, bid protests
and contract dispute litigation, procurement fraud oversight, commercial activities, and acquisition and
cross-servicing agreements The SJA’s contract law responsibilities include furnishing legal advice and
assistance to procurement officials during all phases of the contracting process, overseeing an effective
procurement fraud abatement program. The responsibilities also include providing legal advice to the
command concerning battlefield acquisition, contingency contracting, use of logistics civil augmentation
program, acquisition and cross-servicing agreements, the commercial activities program, and overseas real
estate and construction.
5-41. Legal counsel participate fully in the acquisition process, make themselves continuously available to
their clients, involve themselves early in the contracting process, communicate closely with procurement
officials and contract lawyers in the technical supervision chain, and provide legal and business advice as
part of the contract management team. To accomplish these actions, SJAs usually provide contract law
support at the main and tactical command posts in the modular divisions and corps, TSC headquarters,
theater army headquarters, and each joint and multinational headquarters.
5-42. Contract law advice may also be required at brigade or battalion headquarters, focusing mainly on
simplified acquisitions, and on the use of already existing contracting methods such as the logistics civil
augmentation program. SJAs should deploy a contract law attorney with early entry command posts. Judge
advocates assigned to sustainment brigades, contract support brigades, theater sustainment commands, and
expeditionary sustainment commands should be trained in contract law. Expertise may be required at the
multinational command headquarters to give advice concerning international acquisition agreements.
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Chapter 5
5-43. Contract lawyers assist contract planning by identifying the legal authorities for contracting,
obtaining relevant acquisition agreements or requesting their negotiation, helping the contracting team to
define requirements and to establish procurement procedures for the operation, and reviewing the
contracting support plan for legal sufficiency. Fiscal lawyers assist the planning by identifying funding
authorities supporting the mission. In preparation for deployment, these judge advocates or civilian
attorneys marshal resources; assist the early entry command post’s final coordination, including confirming
warrants, funding sources and other legal requirements; and establish liaison with the DOS country team in
theater of operations. Upon arrival in theater of operations, the contract and fiscal lawyers support the early
entry command post missions of facilitating the deployment and entry of forces.
5-44. Because contracting and fiscal issues will increase in number and complexity, SJAs plan for
additional contract law and fiscal law support as operations progress. SJAs encourage the use of
acquisition review boards since they promote prudent management of resources and proactive resolution of
logistic support issues. See appendix G for more information on financial management and deployment
contracting.
FISCAL LAW
5-45. Fiscal law applies to the method of paying for obligations created by procurements. The SJA’s fiscal
law responsibilities include furnishing legal advice on using and spending funds properly, interagency
agreements for logistic support, security assistance, and support to nonfederal agencies and organizations.
Usually, SJAs provide fiscal law support at the main and tactical command posts in divisions and corps,
TSC headquarters, theater army headquarters, and each joint and multinational headquarters. At the
multinational command headquarters, experts may also be required to provide advice concerning
international support agreements. Brigade judge advocates provide fiscal law support at the brigade level.
CLAIMS
5-46. The Army claims program investigates, processes, adjudicates, and settles claims on behalf of and
against the United States worldwide. This program works under the authority conferred by statutes,
regulations, international and interagency agreements, and DOD directives. The Army claims program
supports commanders by preventing distractions to the operation from claimants, promoting the morale of
Army personnel by compensating them for property damage suffered incident to service, and promoting
good will with the local population. In short, this program provides compensation for personal injury or
property damage caused by Army or DOD personnel.
5-47. Claims fall into three categories. First is claims for property damage of Soldiers and other employees
arising incident to service. Second is torts alleged against Army or DOD personnel acting within the scope
of employment. Lastly is claims by the United States against individuals who injure Army personnel or
their dependents or damage Army property. The Secretary of the Army heads the Army claims program.
5-48. The Judge Advocate General supervises the Army claims program and settles claims in accordance
with delegated authority from the Secretary of the Army. The United States Army Claims Service
(USARCS) administers the Army claims program and designates area claims offices, claims processing
offices, and claims attorneys. SJAs or other supervisory judge advocates operate each command’s claims
program and supervise the area claims office or claims processing office designated by USARCS for the
command. Area claims offices and claims processing offices are the claims offices at Army installations
that normally investigate, process, adjudicate, and settle claims against the United States. Area claims
offices and claims processing offices also identify, investigate, and assert claims on behalf of the United
States. Claims attorneys at each level settle claims within delegated authority and forward claims exceeding
that authority to the appropriate settlement authority.
5-49. When the mission dictates, legal administrators perform additional claims-related duties. These
duties include coordinating with USARCS to establish foreign claims commissions, serving as claims
investigating officers and foreign claims commissions, and processing claims in their unit’s operational
area. Legal administrators can also serve as paying agents for foreign claims.
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FM 1-04
15 April 2009
The Core Legal Disciplines
5-50. Paralegal NCOs and Soldiers’ duties include claim intake, investigation, adjudication, and carrier
recovery. In the deployed environment, paralegal NCOs and Soldiers often run claim checkpoints or
conduct claim convoys where they receive foreign claims for foreign nationals, investigate and adjudicate
claims, and serve as claims paying agents.
5-51. Claims are investigated and paid in an operational area. In multinational operations, unless otherwise
specified in applicable agreements, a troop-contributing nation is generally responsible for resolving claims
arising from its own operations. Foreign claims against the United States will normally be resolved by the
Service that is assigned claims responsibility for the area. Claims attorneys should consult DOD Instruction
5515.08. U.S. personnel claims will normally be resolved by the parent Service. Army claims services are
normally provided in the main and tactical command posts in the modular divisions and corps, TSC
headquarters, and theater army headquarters. While claims services are centrally processed at these
locations, claims personnel travel throughout the operational area to investigate, negotiate, and settle
claims.
5-52. Commanders should appoint unit claims officers prior to deployments. Unit claims officers
document and report incidents to claims offices that might result in a claim by or against the United States.
The SJA and the chief of claims should develop the claims procedures for the operation and provide
training for claims attorneys, legal specialists, and unit claims officers. The claims procedures should
identify additional required claims processing offices or foreign claims commissions and describe the
claims procedures applying during the operation.
5-53. Claims procedures planning factors include the type and duration of deployment, the area to which
the unit is deployed, the existence of international agreements governing the presence of U.S. personnel,
and the processing of claims, host-nation law, and Service claims responsibility. These procedures describe
how claims are received, investigated, processed, adjudicated, and paid. Prior to deployment, the deploying
claims judge advocate should coordinate with the installation claims office and the USARCS to arrange for
payment of personnel claims for lost or damaged personal property that have been approved in theater of
operations by electronic fund transfer. This is the only method by which personnel claims will be paid.
Although commanders on some deployments requested payment by cash to Soldiers in theater of
operations, Defense Finance and Accounting Service did not approve these payments. An effective system
of payment by electronic fund transfer is in place and used. Training for claims personnel should cover
foreign claims procedures, prevention of property damage and personal injury, investigative techniques,
and documentation of preexisting damage. SJAs and chiefs of claims coordinate with USARCS to facilitate
the appointment of foreign claims commissions or claims processing offices.
5-54. During operations, claims personnel establish claims operations and perform claims services. When
establishing claims operations, the senior claims attorney in theater of operations informs host-nation
authorities how to process claims, provides information to the local population about claims procedures,
and obtains translation services and local legal advice. It is critical for claims personnel and unit claims
officers to document the existing condition of base camps, unit locations, or transportation routes when
establishing claims operations. Good documentation at the beginning of an operation enables accurate
payment of legitimate claims and prevents payment of fraudulent or inflated claims. When performing
claims services, the senior claims attorney coordinates with unit claims officers to assist them with claims
investigations; with the civil affairs staff to facilitate liaison with local officials, to learn about local
customs, and to provide civil affairs and financial management personnel information about claims
procedures; and with military police and military intelligence personnel to share information. Throughout
the operation claims personnel travel throughout the operational area to receive, investigate, and pay
claims.
LEGAL ASSISTANCE
5-55. Legal assistance is the provision of personal civil legal services to Soldiers, their family members,
and other eligible personnel. The mission of the Army Legal Assistance Program is to assist those eligible
for legal assistance with their personal legal affairs quickly and professionally. The program assists eligible
people by meeting their needs for help and information on legal matters and resolving their personal legal
problems whenever possible. From an operational standpoint, a critical aspect of the legal assistance
15 April 2009
FM 1-04
5-9
Chapter 5
mission is to ensure that the Soldiers’ personal legal affairs are in order prior to deployment. See AR 27-3
for more information on the Army Legal Assistance Program.
5-56. Once Soldiers deploy, legal assistance attorneys and other judge advocates need to resolve their legal
assistance needs quickly and efficiently. Providing competent legal assistance prior to and during
deployments is among the JAGC’s most important functions. The Army Legal Assistance Program aims to
enhance operational efficiency by assisting Soldiers with their legal issues. Legal assistance attorneys, and
paralegals working under their supervision, provide legal assistance in many settings—combat readiness
exercises, predeployment preparation, Soldier readiness processing, noncombatant evacuation operations—
and through other venues—client appointments, informal requests for assistance, Federal and state income
tax assistance, and preventive law programs. Regular Soldier readiness processing ensures that Soldiers
and emergency-essential civilian employees have their legal affairs in order and are ready to deploy.
Soldier readiness processing should review, at a minimum, Servicemembers’ Group Life Insurance
beneficiary designations, requirements for wills or powers of attorney, Servicemembers Civil Relief Act
issues, any pending civilian or military charges, and family care plan concerns.
5-57. Legal assistance attorneys provide extensive legal services, including ministerial and notary services,
legal counseling, legal correspondence, negotiation, legal document preparation and filing, limited in-court
representation, legal referrals, and mediation. They handle many legal issues, including family law, estates,
real property, personal property, financial, civilian and military administrative matters, immigration and
naturalization matters, and taxes. Legal assistance attorneys provide legal assistance at every level. While
each Service and each troop contributing nation is responsible to provide legal assistance for its personnel,
some Army legal assistance may be required at joint or multinational headquarters.
5-58. Paralegal NCOs and Soldiers’ legal assistance duties include interviewing and screening clients,
coordinating and administering the legal portion of Soldier readiness and predeployment processing,
maintaining the client records database, preparing powers of attorney and other legal documents, and,
under the supervision of a judge advocate, providing income tax assistance, managing electronic filing of
income tax returns, and providing notary services. Paralegal NCOs and Soldiers may assist with will
preparation, but wills themselves are prepared by judge advocates. Paralegal NCOs and Soldiers maintain
the confidentiality of legal assistance clients and client information.
5-59. SJAs and command judge advocates are prepared to resolve the full range of legal assistance cases in
garrison as well as in the operational area. Due to the special attorney-client relationship and the possibility
of conflicting interests between commanders and Soldiers, the SJA generally designates specific judge
advocates as legal assistance attorneys. Because of the increased demand for legal assistance services
during deployments, the SJA may assign judge advocates who normally do not provide these duties as
legal assistance attorneys. Such assignments are consistent with professional standards. Likewise, brigade
judge advocates and command judge advocates face the possibility of conflicting interests between
commanders and Soldiers in the course of providing legal assistance. Brigade judge advocates and
command judge advocates are responsible for ensuring that deployed Soldiers receive legal assistance
while simultaneously ensuring that providing such support does not conflict with their duty to provide legal
support to the brigade.
5-60. Given the likelihood that conflicts will arise between the interests of Soldiers and their commanders,
judge advocates responsible for providing legal assistance need to plan carefully for this mission. They
may seek working arrangements with the legal offices of different commands for mutual support. They
might rely for legal assistance augmentation on Reserve Components legal units and attached personnel
supporting the deployment. Support also may be provided by the senior defense counsel, who may assign
trial defense counsel to provide legal assistance consistent with the trial defense mission and policies. The
garrison or higher headquarters’ legal assistance office may also serve as a reachback resource for
deployed legal assistance attorneys.
5-10
FM 1-04
15 April 2009
Chapter 6
Planning
This chapter outlines the basics of planning and the seven steps of the military
decisionmaking process (MDMP). It highlights the importance of integrating Judge
Advocate General’s Corps (JAGC) personnel into the planning staff and the planning
process as early as possible. This chapter builds on the overview and discussion of
doctrine and legal support to operations in Chapters 1 and 2 of this manual. Taken
together, these three chapters will help JAGC Soldiers better understand legal support
to Army planning and the operations process. (See FM 5-0 for more details on
planning.)
THE JUDGE ADVOCATE GENERAL’S CORPS SUPPORT TO
PLANNING
6-1. Judge advocates and paralegal Soldiers participate in all phases of planning. Planning is the process
by which subordinate commanders and support staff translate the commander’s visualization into a course
of action for preparation and execution, focusing on the expected results. Judge advocates assist in the
planning process by providing analysis and contemporaneous legal advice during the plan development
phase.
6-2. To provide meaningful input and effective legal support to planning, JAGC personnel understand
their role and the roles of the other staff representatives. Similarly, they have a sound working knowledge
of the different planning procedures, including a fundamental understanding of the MDMP and a basic
understanding of Army operations and legal issues attendant to each type of operation. This chapter looks
at how staffs plan operations and discusses the role of JAGC Soldiers during planning.
6-3. Planning cells vary in size and composition depending on the size of the unit, the level of command,
the time available for planning, and the complexity of the mission or operation. At brigade level and above,
the planning staff will normally include, at a minimum, representatives from the following staff sections:
intelligence, operations, logistics, fire support, signal, aviation, engineer, legal, chaplain, surgeon, and
public affairs.
6-4. When an operation is particularly complex, or when the unit or units executing the operation are
supplemented or augmented with additional forces, it is not uncommon to see the planning staff grow in
size and composition. For example, in many cases a staff will be augmented with individuals who have a
particular expertise in a subject area critical to the success of the operation. This staff augmentation might
include experts in civil affairs, special operations, weather, or space operation. Likewise, when a unit is
directed to operate with other units, other Services, or forces from multinational partners, the planning staff
will normally be augmented with liaison officers from these organizations.
THE PLANNING PROCESS
6-5. Planning is a part of the operations process that reflects a commander’s analytical efforts to make
decisions. The analytical approach aims to produce the optimal solution from among the solutions
identified. Effective battle command requires commanders to continuously assess and lead. Assessment
helps commanders better understand current conditions and broadly describe future conditions that define
success. (See FM 3-0 for more details.)
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Chapter 6
6-6. Judge advocates assist commanders by providing legal advice throughout the operations and
planning processes. Legal advice is based upon an understanding of the commander’s intent and is shaped
by situational awareness of events occurring in the operational environment.
6-7. Operational planning intends to produce an order that does the following:
z
Fosters mission accomplishment by clearly conveying the commander’s visualization of the
mission.
z
Assigns tasks and purposes to subordinates.
z
Contains the minimum coordinating measures necessary to synchronize the operation.
z
Allocates or reallocates resources.
z
Directs preparation activities and establishes timelines or conditions for execution.
z
Is executable in a legally, morally, and ethically correct manner.
6-8. The Army standard analytical approach to planning is the MDMP. Commanders at all levels will also
employ an intuitive assessment in making decisions. At echelons below the brigade, manpower limitations
may constrain a commander’s ability to fully employ an analytical approach to decisionmaking. At the
company level and below, commanders will generally use a more intuitive approach to planning by using
troop leading procedures. (Troop leading procedures are discussed in FM 5-0.)
THE MILITARY DECISIONMAKING PROCESS
6-9. The MDMP is a standardized, step-by-step planning methodology used primarily by staffs at
battalion level and above. The MDMP is an adaptation of the Army’s analytical approach to problem
solving that applies across the spectrum of conflict. (FM 5-0 contains detailed information regarding the
MDMP.)
6-10. The MDMP consists of seven steps:
z
Step 1: Receipt of mission.
z
Step 2: Mission analysis.
z
Step 3: Course of action (COA) development.
z
Step 4: COA analysis (war-gaming).
z
Step 5: COA comparison.
z
Step 6: COA approval.
z
Step 7: Orders production.
STEP 1: RECEIPT OF MISSION
6-11. As soon as a new mission is received, the unit’s operations section issues a warning order to the staff
alerting them of the pending planning process. Unit standing operating procedures identify who is to attend
and where they should assemble. The staff (which includes the judge advocate) prepares for the mission by
gathering the tools needed to do mission analysis. These tools include the following:
z
Higher headquarters order or plan.
z
Map of the area of operations.
z
Appropriate field manuals.
z
Any existing running estimates (to include legal estimates).
6-12. In addition, judge advocates should have the following:
z
A copy of any existing rules of engagement (ROE) with any changes and any requests for
changes.
z
A copy of the relevant status-of-forces agreement or relevant local law in the anticipated area of
operations.
z
A copy of the legal appendix to the higher headquarters’ order.
6-2
FM 1-04
15 April 2009
Planning
z
The Operational Law Handbook; FM 27-10; and the Law of War Documentary Supplement.
z
The Deployed Judge Advocate Resource Library. [Note: This resource may be obtained by
e-mail request to CLAMO@hqda.army.mil.]
6-13. After receiving the mission, the staff and commander allocate time for planning; ensuring
subordinates have time for their own planning. During the planning process, judge advocates ensure that as
a member of the commander’s staff they do not allow legal issues to impede the planning process.
Commanders should not use the majority of their allotted planning time waiting for legal responses, nor
should legal issues result in the commander’s subordinate leaders losing their much-needed planning time.
This requires judge advocates to identify and resolve legal issues quickly as they arise in the planning
process.
STEP 2: MISSION ANALYSIS
6-14. Mission analysis is integral to the MDMP. During mission analysis, the staff scrutinizes the mission
and gathers information necessary for more detailed planning. As a part of mission analysis, the staff
determines the availability of personnel and resources and identifies specified, implied, and mission-
essential tasks.
6-15. Mission analysis is conducted in terms of factors off the area of operations that may impact the
mission. (See FM 6-0 for details on mission analysis.) These factors, known as mission variables, include:
z
Mission.
z
Enemy.
z
Terrain and weather.
z
Troops and support available.
z
Time available.
z
Civil considerations.
6-16. The staff also outlines any constraints that could potentially affect the mission. Constraints are
restrictive or limiting factors imposed upon operations. Judge advocates assess missions based upon
situational awareness of the operational environment combined with their understanding of the
commander’s visualization. Within the MDMP, a judge advocate’s ability to identify possible constraints is
extremely important. Constraints could include such things as ROE provisions that preclude or limit the
use of certain weapons systems, requirements based upon the presence of noncombatants in the area of
operations, or external obligations such as host-nation laws or curfews that may affect operations. After
identifying constraints, the judge advocate works with the other staff to devise legal, moral, and ethical
solutions. These solutions lessen, mitigate, or eliminate the constraints and facilitate mission
accomplishment.
STEP 3: COURSE OF ACTION DEVELOPMENT
6-17. After receiving the commander’s guidance and intent, the staff develops COAs for analysis and
comparison. The commander involves the entire staff in COA development. Typically, the staff develops at
least three different COAs for the commander to consider. The judge advocate identifies the relevant legal
issues in each COA, brings them to the attention of the planning staff, and, if necessary, briefs the
commander. Judge advocates carefully scrutinize each COA as it is being discussed and identify early any
legal issues that may affect the feasibility of the COA. During COA development, judge advocates pay
particular attention to the planned use of indirect fires and the presence of civilians and civilian objects.
They should work with fire support personnel to ensure the COA includes control measures to help
minimize collateral damage.
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Chapter 6
STEP 4: COA ANALYSIS (WAR-GAMING)
6-18. The intent of COA analysis is to identify COAs that will accomplish the mission with a minimum of
friendly casualties and best position the force for follow-on operations. COA analysis is completed using a
technique known as “war-gaming.” War-gaming is a disciplined process with rules and steps designed to
help the commander and staff visualize the flow of the battle or operation. The judge advocate should
actively participate in the war-gaming process for several reasons. First, the judge advocate has unique
training, expertise, and experience critical in a legally intensive operational environment. Second, many
key legal issues first appear during the free-flowing discussion of the war game. Judge advocates begin
working toward acceptable solutions to legal issues early in the process, before the plan is more fully
developed. Finally, Army doctrine provides that the war game should be characterized by objectivity and a
lack of emotional attachment to any one COA. Judge advocates legal training enables them to assist in
analyzing COAs and to offer sound practical input.
STEP 5: COA COMPARISON
6-19. After the COAs are developed, they are compared. When necessary, judge advocates participate in
the COA brief to the commander, outlining critical legal issues in each COA.
STEP 6: COA APPROVAL
6-20. At the conclusion of the COA brief, the commander chooses a COA, provides the staff with
guidance, and then directs them to develop the COA into a final plan.
STEP 7: ORDERS PRODUCTION
6-21. Based on the commander’s decision and final guidance, the staff refines the COA, completes the
plan, and prepares an operation order. The operation order also includes a number of annexes and
appendixes, including a ROE annex and a legal appendix. After it is produced, judge advocates read the
entire order—along with annexes and appendixes—and scrutinize it carefully for legal sufficiency. Often
issues discussed during the MDMP will be “added on” by other staff. If additional legal issues are
identified after the base order is published, judge advocates address them in subsequent fragmentary
orders.
6-22. Judge advocates and paralegal Soldiers assigned to operational units are expected to participate in
the MDMP. To be effective, they get involved in the process as early as possible. Early participation
enables JAGC personnel to identify and resolve legal issues before they become “mission stoppers” and
ensures that the plan is not built around premises or COAs that are not legally supportable.
6-4
FM 1-04
15 April 2009
Appendix A
Rules of Engagement, Rules for the Use of Force, and
Targeting
This appendix discusses rules of engagement (ROE), rules for the use of force (RUF),
and targeting—three critically important areas for Judge Advocate General’s Corps
(JAGC) Soldiers assigned to operational units. Because ROE, RUF, and targeting are
integral to the conduct of operations, judge advocates and paralegal Soldiers are
prepared to offer input, insight, and expertise in these areas.
OVERVIEW
A-1. Rules of engagement are directives issued by competent military authority that delineate the
circumstances and limitations under which United States forces will initiate and/or continue combat
engagement with other forces encountered (JP 1-02).
A-2. ROE are a critically important aspect of military operations. They contribute directly to mission
accomplishment, enhance protection, and help ensure compliance with law and policy. While ROE are
ultimately commanders’ rules for the use of force, JAGC personnel nonetheless remain involved in ROE
drafting, dissemination, interpretation, and training.
A-3. ROE help commanders accomplish the mission by regulating the RUF. ROE are implemented to
help ensure that force is applied in a disciplined, principled manner that complies with law and policy and
minimizes collateral damage while facilitating mission accomplishment.
A-4. ROE are driven by three primary sets of considerations: policy, legal, and operational. An example
of a policy-based rule is Executive Order 11850. It prohibits first use of riot control agents and herbicides
without Presidential approval (except in specific circumstances). An example of a legally based rule is the
law of war provision. It states that hospitals, churches, and shrines will not be engaged except if they are
used for military purposes. An example of an operationally based rule is the commonly encountered
requirement for direct observation of indirect fires in populated areas.
STANDING RULES OF ENGAGEMENT
A-5. The keystone document in the area of ROE is CJCSI 3121.01B. It provides the baseline ROE, known
as the standing rules of engagement (SROE), for U.S. forces responding to attacks within the U.S. or
performing military operations outside the U.S., as well as the standing rules for the use of force (SRUF)
for U.S. forces in domestic or permissive environments. The SROE establish fundamental policies and
procedures governing the action U.S. commanders and their forces take during all military operations and
contingencies and during functions assigned under U.S. law occurring outside U.S. territory. U.S. forces
will always adhere to the SROE unless they are superseded by other ROE approved by the President or the
Secretary of Defense.
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A-1
Appendix A
A-6. The SROE are divided as follows:
z
Enclosure A - SROE. This unclassified enclosure details the general purpose, intent, and scope
of the SROE, emphasizing a commander’s right and obligation to use force in self-defense.
Critical principles are addressed as foundational elements of all ROE, such as unit, national, and
collective self-defense; hostile act and intent; and the determination to declare forces hostile.
z
Enclosures B through H. These classified enclosures provide general guidance on specific types
of operations: maritime, air, land, space, information, and noncombatant evacuation operations,
as well as counterdrug support operations outside U.S. territory.
z
Enclosure I - Supplemental Measures. Supplemental measures found in this enclosure enable a
commander to obtain or grant those additional authorities necessary to accomplish a mission.
z
Enclosure J
- ROE Process. This enclosure provides guidelines for incorporating ROE
development into military planning processes. It introduces the ROE planning cell, which may
be utilized during the development process.
z
Enclosure K - ROE References.
z
Enclosures L through Q - SRUF. Enclosure L sets out the basic self-defense posture under the
SRUF. Enclosures M through O provide classified guidance on maritime operations within U.S.
territory; land contingency and security-related operations within U.S. territory; and counterdrug
support operations within U.S. territory. Enclosures P and Q provide a message process for
RUF, as well as RUF references.
A-7. The SROE also contain technical definitions of self-defense:
z
Inherent right to self-defense.
z
National self-defense.
z
Collective self-defense.
A-8. Unit commanders always retain the inherent right and obligation to exercise unit self-defense in
response to a hostile act or demonstrated hostile intent. Unless otherwise directed by a unit commander,
U.S. forces may exercise individual self-defense in response to a hostile act or a demonstration of hostile
intent. When individuals are assigned and acting as part of a unit, individual self-defense should be
considered a subset of unit self-defense. As such, unit commanders may limit individual self-defense by
members of their unit. Both unit and individual self-defense includes defense of other U.S. military forces
in the vicinity.
A-9. National self-defense includes the defense of U.S. forces, and in certain circumstances, U.S. persons
and their property, U.S. commercial assets, or both from a hostile act or a demonstration of hostile intent.
A-10. In collective self-defense, U.S. forces defend designated nonmilitary forces, designated foreign
nationals and their property, or both from a hostile act or a demonstration of hostile intent. Only the
President or Secretary of Defense may authorize collective self-defense.
RULES OF ENGAGEMENT DEVELOPMENT
A-11. As the commander’s subject matter expert on domestic and international law, the law of war, and the
protection of noncombatants, the judge advocate helps the commander draft effective ROE. This can only
be done when the judge advocate understands the commander’s intent, the unit’s capabilities and
limitations, and the type of mission or operation that the unit will be performing. When developing ROE,
judge advocates carefully study existing ROE and ensure that the rules they are creating are nested with
those promulgated by higher authorities. If the rules they seek to promulgate are not nested in higher
authorities, judge advocates request and justify ROE modifications. Similarly, judge advocates work
closely with subject matter experts from all relevant staff sections during ROE development.
A-12. ROE evolve with mission requirements and are tailored to mission realities. They are a flexible
instrument designed to support the mission through various operational phases. Commanders and judge
advocates are prepared to change or modify ROE in response to changing situations and new threats.
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Rules of Engagement, Rules for the Use of Force, and Targeting
RULES OF ENGAGEMENT DRAFTING CONSIDERATIONS
A-13. Operational requirements, policy, and law shape ROE. When drafting or supplementing ROE the
emphasis should remain on practical application. It does no good to draft ROE that are so complex that
they cannot be understood by Soldiers or applied by Soldiers under pressure.
A-14. Normally ROE impose political, operational, and legal limitations on commanders. Withholding
employment of particular classes of weapons or exempting the territory of certain nations from attack both
illustrates such limitations. At the tactical level, ROE may extend to criteria for initiating engagements with
certain weapons systems, or they may address reaction to attack. ROE always comply with domestic and
international laws, including the law of war; however, they should never simply restate the law of war.
A-15. Effective ROE do not assign specific tasks or drive specific tactical solutions; they allow a
commander to convey quickly and clearly a desired posture regarding the rules for the use of force to
subordinate units. Commanders at all levels continually review the ROE to ensure their effectiveness in
light of current and projected conditions in their operational area.
SITUATIONAL CONSIDERATIONS
A-16. In any given operational environment, commanders determine how best to accomplish the mission in
light of the conditions, circumstances, and influences that affect a specific operation. At the operational and
tactical levels of conflict, commanders and staffs analyze, in detail, all relevant aspects of their operational
environment. The most comprehensive framework for this analysis is the eight operational variables:
political, military, economic, social, information, infrastructure, physical environment, and time (for which
the memory aid is PMESII-PT). Often, during the mission analysis step in the military decisionmaking
process, the acronym METT-TC—mission, enemy, terrain and weather, troops and support available, time
available, civil considerations—will be used as a checklist or memory aid to help remind planners of the
critical factors they must consider.
OPERATION-SPECIFIC VERSUS STANDING RULES OF
ENGAGEMENT
A-17. Geographic combatant commanders routinely seek approval to supplement the SROE with ROE
tailored to operations in their respective areas of responsibility. As such, most large-scale operations—such
as Operation Enduring Freedom or Operation Iraqi Freedom—have their own operation-specific ROE.
These ROE will routinely be based, in large measure, on the SROE; however, they will be tailored as
necessary to help forces in the geographic combatant commanders’ areas of responsibility more effectively
accomplish their mission. Operation-specific ROE may include the authorization to engage and destroy a
specific enemy force, or they may list specific approval authorities in the chain of command of the units
operating in that area of responsibility who can approve certain actions.
SPECIFIC RULES OF ENGAGEMENT PROVISIONS
A-18. Commanders sometimes insert specific rules into ROE that dictate precise terms or restrictions on
the use of force. The following types of rules may be included in ROE:
z
Hostility criteria.
z
Escalation of force or challenging procedures.
z
Protection of property and foreign nationals.
z
Approval to use weapons systems.
z
Observed indirect fires.
z
Territorial or geographic constraints.
z
Restrictions on point targets and means of warfare.
z
Detention criteria.
15 April 2009
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A-3
Appendix A
A-19. Hostility criteria provides Soldiers a set of objective factors to assist in determining whether an
individual’s conduct constitutes a hostile act or a demonstration of hostile intent.
A-20. Rules for escalation of force or challenging procedures specify graduated measures of force that
Soldiers may use, if warranted, in ambiguous situations before resorting to deadly force. Such measures
could include giving a verbal warning, using a riot stick, or perhaps firing an aimed warning shot.
Commanders ensure that Soldiers understand that escalation-of-force measures do not limit the inherent
right of self-defense, nor do they restrict the use of deadly force when necessary to defend against a hostile
act or a demonstration of hostile intent.
A-21. Rules for protection of property and foreign nationals detail what and who may be defended with
force aside from the lives of U.S. Soldiers and citizens. They include measures that Soldiers and citizens
can take to prevent crimes in progress or the fleeing of criminals.
A-22. Rules for approval to use weapons systems designate what level commander must approve use of
particular weapons systems. Such rules may prohibit use of a weapon entirely.
A-23. Rules for observed indirect fires require that one or more persons or electronic means observe an
indirect fire target.
A-24. Rules for territorial or geographic constraints create geographic areas into which forces may not fire.
These rules may designate a territorial—perhaps political—boundary, beyond which forces may neither
fire nor enter except perhaps in hot pursuit of an attacking force. They include control measures that
coordinate fire and maneuver by means of graphic illustrations on operations map overlays.
A-25. Rules for restrictions on point targets and means of warfare prohibit targeting of certain individuals
or facilities. Such facilities and individuals may include those found on a no-strike list or a restricted target
list. These rules may restate basic rules of the law of war for situations in which a hostile force is identified
and prolonged armed conflict ensues.
A-26. Rules for detention criteria designate what the applicable criteria are for detaining individuals, how
they should be treated, and where they should be taken.
INTERPRET-DRAFT-DISSEMINATE-TRAIN METHODOLOGY
A-27. Commanders and staffs at all echelons use the interpret-draft-disseminate-train
(I-D-D-T)
methodology to incorporate ROE into the conduct of military operations. Judge advocates participate in all
four facets of this methodology. Each facet connects with and influences the others. Together the facets
describe a process of continuous refinement and revision. The facets of the I-D-D-T methodology are
interactive rather than sequential. In joint task force and higher echelons, a ROE planning cell performs the
I-D-D-T methodology. The cell consists of the J-2, the J-3, the J-5, and a judge advocate, in addition to
other special staff officers as appropriate. The J-3 is responsible for ROE in crisis action planning. The
ROE planning cell provides a formal planning structure through which the J-3 can effectively perform this
responsibility. At corps and divisions, the I-D-D-T methodology is used in the targeting process. At the
brigade combat team (BCT) level, the brigade judge advocates coordinate throughout the military
decisionmaking process with the S-3 and with all staff members engaged in targeting to ensure units follow
the I-D-D-T methodology.
INTERPRET
A-28. At operational and tactical levels of war, commanders and staffs interpret the ROE issued by higher
headquarters. At the theater level, combatant commanders and their staffs interpret the SROE and any
mission-specific ROE that may emanate from the Chairman of the Joint Chiefs of Staff or the Secretary of
Defense. Interpretation of ROE demands skills that are well honed in the legal profession and specifically
cultivated by attorneys. Thus, while commanders ultimately determine what a rule issued by higher
headquarters demands of their commands, judge advocates provide expert assistance.
A-29. The interpretive expertise of judge advocates begins from a thorough familiarity with the SROE. It
relies upon aggressive research to find all operation plans
(OPLANs), operation orders (OPORDs),
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FM 1-04
15 April 2009
Rules of Engagement, Rules for the Use of Force, and Targeting
messages, standing operating procedures, treaties, coalition documents, directives, and regulations that
purport to establish or change the ROE. It demands careful organization of these documents
(chronologically by issuing headquarters) to determine which document is authoritative on which point. It
requires skill at reconciling two rules that appear to contradict one another. Judge advocates do this by
considering broader imperatives contained in the text of the rules or other guidance as well as by applying
reasoning from available precedents as to how the contradictory rules have been interpreted in the past. It
presumes details knowledge of the military operations and staff organization and procedures to gather
information from those who can provide additional needed facts.
A-30. The judge advocate’s contribution to the interpretation of ROE sometimes requires more than the
skills of textual construction and factual analysis, however. In some situations, the judge advocate is the
sole member of the ROE planning cell, the fires cell, or the staff who possesses the necessary law of war
training to correctly interpret higher headquarters ROE in light of governing legal constraints. This
interpretation requires constant situational awareness. Judge advocates gain this awareness through
communication nodes, mobility, and the commander’s task organization.
DRAFT
A-31. In some operations, ROE are top-driven. In this case, a higher echelon commander—for instance a
combatant commander—establishes ROE that are disseminated verbatim to all lower echelons. The
preference of military doctrine, because it preserves lower echelon initiative, is for ROE to be top-fed. In
these ROE, a higher echelon commander establishes rules for immediate subordinate echelons. These
subordinate echelons in turn disseminate ROE that are consistent with those of higher headquarters but
tailored to the particular subordinate unit’s mission. These methods may also coexist within a particular
operation, as some rules may be top-driven while others may be subject to discretion on the manner of
dissemination and, thus, top-fed. When the rules are not top-driven, commanders and staffs from theater of
operations to BCT level draft ROE for their commands.
A-32. At theater and joint task force levels, the drafting of ROE results in Appendix
8 (Rules of
Engagement) to Annex C (Operations) of the OPLAN or OPORD. At corps, division, and BCT level, the
drafting of ROE results in Annex E to the OPLAN or OPORD in accordance with Army doctrine. Army
doctrine also calls for the integration of ROE in the coordinating instructions subparagraph of paragraph 3
(Execution) of the body of the OPLAN or OPORD. Army doctrine provides minimal guidance as to the
contents and format of these ROE documents. Standing operating procedures (SOPs), which exist in part to
enable OPLANs or OPORDs to be brief, frequently provide extensive content and format guidance. This
guidance in turn typically draws heavily upon the SROE, incorporating both standing rules and
supplemental rules according to a command-specific format that is periodically updated and continuously
trained. Appendix E to Enclosure B of the SROE contains a message format by which combatant
commanders request and receive supplemental ROE.
A-33. The drafting of ROE in the context of multinational operations presents additional challenges. The
SROE state that U.S. forces operational control (OPCON) by a multinational force will follow the ROE of
the multinational force unless otherwise directed by the President or Secretary of Defense. The SROE
further state that U.S. forces will be assigned and remain OPCON to a multinational force only if the
combatant commander and higher authority determine that the ROE for that multinational force are
consistent with the policy guidance on unit self-defense and with the rules for individual self-defense
contained in this document. When U.S. forces under United States’ OPCON operate with a multinational
force, reasonable efforts will be made to establish common ROE. If such ROE cannot be established, U.S.
forces will exercise the right and obligation of self-defense contained in the SROE while seeking guidance
from the appropriate combatant command.
A-34. Participation in multinational operations may be complicated by varying national obligations derived
from international agreements. For example, other members in a coalition may not be signatories to treaties
that bind the United States, or they may be bound by treaties to which the United States is not a party. U.S.
forces still remain bound by U.S. treaty obligations even if the other members in a coalition are not
signatories to a treaty and need not adhere to its terms. A multinational partner’s domestic law, policy, and
social values may also affect planning. Lessons learned from recent multinational exercises and operations
15 April 2009
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A-5
Appendix A
reflect significant differences in how various countries understand and view the application of military
force through ROE. Legal advisors in multinational headquarters assess the impact of specific national
domestic laws and policies on ROE and operational ability. These factors can severely limit or expand a
multinational force commander’s ability to use a national contingent’s capabilities. Legal advisors at all
levels of planning assist in the interpretation and drafting of ROE. The United States places an importance
on ROE that other nations may not share, attaches meaning to terms with which other nations’ forces may
not be familiar, and implements ROE within a context of doctrine that may differ markedly from that of
other nations. When operating with forces from non-English-speaking countries, these differences are
magnified. Energetic participation by judge advocates in the drafting process helps ensure that final ROE
products reflect the legitimate interests of all sides. In such circumstances, U.S. forces benefit by having a
completed draft (such as SROE) available as a basis for discussion. When developing ROE with the United
Nations, diplomatic or policy constraints occasionally dictate language peculiar to United Nations
operations. In these cases, the availability of a complete, preferred alternative (again, the SROE) gives U.S.
forces a medium with which to communicate their concerns.
A-35. The sound drafting of ROE adheres to several principles:
z
Consider METT-TC.
z
Push upward on the drafting process.
z
Avoid restating strategy and doctrine.
z
Avoid restating the law of war.
z
Avoid restating tactics.
z
Avoid safety-related restrictions.
z
Avoid excessively qualified language.
A-36. Judge advocates consider METT-TC. The mission will drive the ROE, and as an operation unfolds in
phases, the mission may trigger significant shifts in the ROE. The existence of enemy forces or other
threats will change the ROE from conduct-based rules to status-based rules with respect to those threats
that have been declared hostile forces. The terrain will limit the feasibility of certain force options. The
capabilities and level of training of friendly troops will determine whether certain ROE need to be spelled
out in the OPORD. The amount of time available may dictate both what force options to and what
preparations to make to implement a particular rule. The presence or absence of civilians will inevitably
raise questions about whom friendly forces can protect under ROE.
A-37. Judge advocates push upward on the drafting process. SROE provides the means to request
supplemental ROE. Use such requests. If the METT-TC suggests a ROE that is not contained in the higher
headquarters annex, push a suggested rule up to the higher headquarters for approval. Keep in mind,
however, that the SROE are permissive.
A-38. Judge advocates avoid restating strategy and doctrine. ROE should not be used as the means to set
forth strategy or doctrine. Often, less experienced judge advocates attempt to use the ROE annex to
complete a task for which an entire system exists in Army doctrine.
A-39. Judge advocates avoid restating the law of war. ROE should not simply restate the law of war.
Commanders may desire to emphasize an aspect of the law of war that is particularly relevant to a specific
operation. (See Desert Storm ROE regarding cultural property.) Commanders refrain from including an
extensive discussion of The Hague Regulations and Geneva Conventions in ROE.
A-40. Judge advocates avoid restating tactics. Sometimes the purposes of ROE (political, legal, military)
are sometimes difficult to discern. To alleviate this problem, a boundary line drawn upon an operations
overlay results from a commander’s concept of operations while simultaneously transmitting a rule of
engagement stemming from political considerations. Still, many phase lines, control points, and other
control measures have no meaningful connection to political or legal considerations. These measures
belong in other portions of the OPLAN or OPORD, not in the ROE.
A-41. Judge advocates avoid safety-related restrictions. ROE should not address safety-related restrictions.
Certain weapons require specific safety-related, pre-operation steps. These should not be detailed in the
ROE but may appear in the tactical or field SOPs.
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FM 1-04
15 April 2009
Rules of Engagement, Rules for the Use of Force, and Targeting
A-42. Judge advocates avoid excessively qualified language. ROE are useful and effective only when
understood, remembered, and readily applied under stress. Well-formulated ROE anticipate the
circumstances of an operation and provide unambiguous guidance to U.S. forces before confronting a
threat.
DISSEMINATE
A-43. The OPLAN or OPORD annex is only the minimum means of disseminating the ROE. The annex at
each echelon will build upon the command’s SOP, which is the primary, continuous means of
disseminating those ROE that tend to appear in successive operations. Various methods effectively capture
dissemination across a command. Commanders, S-3 or G-3 staff, and judge advocates develop procedures
to disseminate changes quickly and efficiently in the ROE and train staffs and subordinate commanders
accordingly. When particular ROE issued by higher headquarters are not anticipated in the tactical SOP,
the OPORD annex should state these rules outright, without reference to a ROE menu item. Commanders
and staffs also provide mission-specific ROE training for deploying Soldiers. While never a substitute for
training, a ROE card often helps Soldiers at the lowest level as a ready reference and is issued to Soldiers
in virtually every instance.
TRAIN
A-44. ROE are disseminated throughout the force and reinforced by training and rehearsal. Judge
advocates are prepared to assist in this training. Soldiers execute in the manner they train; they will carry
out their tasks in compliance with the ROE when trained to do so. Since a single Soldier’s action can
change not only the tactical, but also the strategic and political setting, commanders and judge advocates
must disseminate and train ROE to the lowest levels. All training opportunities should reinforce ROE and
teach Soldiers how to apply the basic rules of self-defense. Individual and unit preparation for specific
missions incorporate training that challenges Soldiers to apply mission-specific ROE. In crisis-response
situations, ROE training may consist of leaders and Soldiers receiving and training on the mission-specific
ROE en route to the departure airfield. In that case, the knowledge gained on the basic rules of self-defense
and scenario-specific, situational ROE during past scheduled training enables commanders and Soldiers to
better understand and adhere to the crisis ROE.
A-45. When preparing for peacekeeping or disaster relief missions, commanders plan for Soldiers to use
greater constraint and discipline than in offensive or defensive operations. ROE training should always
include situational training. This situational training should challenge Soldiers in employing weapons,
levels of force, and other ROE. Situational training focuses on one or a small group of tasks—within a
particular mission scenario—and requires that Soldiers practice until they perform the tasks to standard.
Trainers refer to these scenarios unofficially as “vignettes,” and to this type of training as “lane training.”
To conduct situational training on ROE, a commander, judge advocate, or other trainer places Soldiers in a
simulated scenario and then confronts them with an event, such as the crashing of a traffic checkpoint
barrier by a speeding vehicle. The trainer evaluates the Soldier’s response and afterward discusses
alternative responses available within ROE. Situational training brings to life abstract rules contained in
written ROE, giving Soldiers concrete terms of reference within which to determine their responses. In this
way, Soldiers achieve the balance between initiative and constraint that is so important to success,
particularly in stability operations. Judge advocates prepare to provide ROE training, including vignette-
driven training.
STANDING RULES FOR THE USE OF FORCE
A-46. SRUF establish fundamental policies and procedures governing the actions U.S. commanders and
their forces follow during all civil support operations and routine military department functions occurring
in the United States and its territories. SRUF also apply to ground homeland defense missions occurring
within U.S. territory and to U.S. forces, civilians, and contractors performing law enforcement and security
duties at all Department of Defense (DOD) installations. It also applies to duties off-installation while
conducting official DOD security functions, within or outside U.S. territory, unless otherwise directed by
the Secretary of Defense. While ROE are used primarily to govern the use of force in a mission, RUF
15 April 2009
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A-7
Appendix A
apply in domestic or permissive foreign environments with a functional civil government. Domestic policy
concerns, host-nation laws, and international agreements may limit U.S. forces’ means of completing their
law enforcement or security duties in these environments.
TARGETING
A-47. Judge advocates play a critically important role in targeting. As subject matter experts on the law of
war, ROE, and the protection of noncombatants, they provide commanders with essential input on plans,
directives, and decisions related to lethal and nonlethal targeting. Judge advocates are part of targeting cells
and their input may be a major factor in decisions. Most commands require an operational law judge
advocate to review all lethal targeting packets.
PREDEPLOYMENT
A-48. The judge advocate’s understanding of the targeting process and integration into the targeting cell
should begin long before deployment. As a first step, judge advocates understand their units’ missions and
capabilities. Next, they seek out information, training, and doctrine to understand the targeting process
thoroughly. Finally, judge advocates understand and internalize how their unit staff conducts targeting.
Without a sound working knowledge of these concepts, judge advocates cannot contribute fully to
planning and targeting. Judge advocates need to understand the current methodology for estimating
collateral damage. See FM 6-20-10 and CJCSM 3160.01B for more information.
A-49. The targeting process uses step-by-step procedures. First, the commander and staff decide what
objects to target. Next, they determine the best tactic for locating and pinpointing the targets. Third, they
analyze the resources available and choose the best means for striking or affecting the target. Finally, they
determine the most effective means to assess or measure the effects that the action has had on the target.
This methodology is often referred to as decide, detect, deliver, and assess. FM 6-20-10 discusses each of
these steps.
A-50. Judge advocates participate actively in planning from the moment an initial warning order notifies a
unit of a potential contingency deployment. Participation in the planning and targeting development
process enables judge advocates to prevent the inclusion of legally questionable actions into the operation
plan. Judge advocates attend all planning sessions, provide direct input into the decisionmaking processes,
and introduce relevant operational law considerations into the targeting processes.
DEPLOYMENT
A-51. Once deployed, judge advocates are included in the targeting cell so they are available to provide
timely legal input on key targeting decisions. Typically, the brigade legal section cannot provide a full-time
representative to the targeting cell. Accordingly, judge advocates may not be present when impromptu
targeting meetings or huddles with the commander are called. Being fully integrated into the staff and the
targeting cell is the key to mission success.
A-52. The rapid pace and changing nature of modern warfare, together with the expanded role of military
lawyers in war planning, raises unprecedented issues for military lawyers. Several tools exist that judge
advocates use to help them walk though the targeting process. The targeting visual model in Figure A-1
may help judge advocates to assess targeting decisions accurately and thoroughly.
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Rules of Engagement, Rules for the Use of Force, and Targeting
Figure A-1. A sample targeting decision model
15 April 2009
FM 1-04
A-9
Appendix B
Detainee Operations
This appendix addresses the legal aspects of detainee operations. It outlines the basic
rules for detainee treatment and the requirements for treating detained persons in
accordance with the Geneva Conventions and other applicable international
agreements.
INTRODUCTION
B-1. During military operations, U.S. forces will detain people. A detainee is defined as a term used to
refer to any person captured or otherwise detained by an armed force (JP 3-63). A detainee is classified, in
accordance with the Geneva Conventions, as an enemy prisoner of war (EPW), a civilian internee, a
retained person, a potential enemy combatant, or another detainee. International law confers certain legal
rights to detainees depending upon which status they hold.
B-2. Humane treatment of all detainees is mandatory regardless of their legal status under the Geneva
Conventions or U.S. policy (such as DODD 2310.01E). Soldiers treat all detainees in accordance with
applicable domestic and international law, national policy, and the law of war. When conducted properly,
detainee operations set conditions for success by demonstrating the United States’ genuine commitment to
justice, human rights, fundamental fairness, and respect for all people. When detainees are abused or
mistreated, it does significant damage to U.S. credibility, and encourages enemies to abuse and mistreat
detained or captured U.S. and coalition personnel. Moreover, mistreatment of detainees by U.S. or host-
nation personnel substantially undermines the legitimacy of U.S. forces and, if it occurs in the context of
stability operations, the host-nation government. (See appendix C and appendix D for more information.)
B-3. The Army has Title 10 responsibility for detainee operations policy. Within the Army and through
combatant commanders, military police may conduct internment and resettlement operations when
conducting offensive, defensive, and stability or civil support operations. Internment and resettlement
operations are part of the sustainment warfighting function.
B-4. Judge advocates play a key role in each stage of detainee operations. Prior to deployment, they train
Soldiers on the law of war and the legal aspects of detainee operations. During operations planning, they
advise commanders and staffs on the legal aspects of detainee issues that are likely to occur on the
battlefield. During the execution of operations, they help monitor the treatment of detainees and assist
commanders to ensure that U.S. Soldiers are adhering to the applicable standards for detainee treatment.
During stability operations, Judge advocates help commanders develop and implement effective systems
for ensuring the health, welfare, and ultimate disposition of detainees under U.S. control.
B-5. Judge advocates are trained on all aspects of detainee operations to include interrogation techniques
and the proper standards of treatment for detainees during interrogation. This training will allow judge
advocates to recognize prohibited conduct and provide relevant advice to commanders and Soldiers on
interrogations.
15 April 2009
FM 1-04
B-1
Appendix B
THE JUDGE ADVOCATE’S ROLE IN DETAINEE OPERATIONS
B-6. Judge advocates play an important role in training commanders and Soldiers on their responsibilities
when performing detainee operations. They—
z
Work with commanders to ensure that Soldiers are trained, and that proper safeguards are in
place to help prevent detainee abuse from the point of initial detention through the duration of
time a detainee is under U.S. control.
z
Advise commanders and other personnel responsible for detainee operations on all matters
pertaining to compliance with applicable law and relevant national policy directives and
regulations, such as AR 190-8 and FM 2-22.3.
z
Provide legal advice on the proper composition and function of Article 5 tribunals to determine
detainee status per Geneva Conventions.
z
Advise the commander regarding investigations of suspected maltreatment, abuse of detainees,
or other violations of applicable law or policy.
z
Assist commanders with developing and implementing systems and procedures that address the
ultimate disposition of persons detained under U.S. control.
B-7. Commanders ensure all Soldiers understand the basic rules of detainee treatment. Judge advocates
assist commanders and train Soldiers, at a minimum, on these basic rules:
z
Soldiers treat all detainees humanely and in accordance with U.S. law, policy, and the law of
war.
z
Soldiers, including interrogators, treat all detained persons consistent with the Geneva
Conventions. The standards set forth in Common Article 3 are the minimum standards for care
of detainees and apply to all detainees, regardless of status. The Geneva Conventions, however,
require a higher standard of care for certain types of detainees such as EPWs.
z
Soldiers bring detainees to secure areas as soon as practicable after capture. Soldiers
immediately account for their possessions and personal property and log in possessions and
property on DA Form 4137 (Evidence/Property Custody Document). Commanders ensure
detainees are safeguarded from the effects of the environment (such as providing overhead
cover from mortars).
z
Soldiers assign detainees an internment serial number.
z
Soldiers maintain and safeguard detainee records.
z
Department of Defense
(DOD) personnel may accept custody of a detainee from DOD
personnel. Custody of a detainee cannot be accepted if the transfer of custody is from some
person or entity not a part of DOD (such as another U.S. Government department or agency, or
coalition forces) unless the transfer is conducted under applicable law and policy. (See DODD
2310.01E.)
z
No detainee may be transferred from the custody of DOD unless the transfer is conducted under
applicable law and policy. (See DODD 2310.01E.)
z
If the command doubts a detainee’s status, a competent authority will determine the detainee’s
status. A tribunal convened pursuant to the Geneva Conventions may be required to make the
determination.
z
Those detainees who lack enemy prisoner of war status will have their detention reviewed
periodically by competent authority. (See DODD 2310.01E.)
z
Interrogations are defined as a systematic effort to procure information by direct questioning of
a person under the control of the questioner. Commonly, this is thought of as questioning with
the use of authorized intelligence questioning approaches. Only trained, qualified interrogators
may interrogate detainees. (See JP 3-63.)
z
Tactical questioning is direct questioning by any DOD personnel of a captured or detained
person to obtain time-sensitive tactical intelligence at or near the point of capture or detention
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Detainee Operations
and consistent with applicable law. Typically, this is thought of as questioning without the use
of planned intelligence approaches. (See JP 3-63.)
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Soldiers are not authorized to “soften up” detainees or to “set the conditions for interrogations.”
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All Soldiers, regardless of rank or specialty, have a moral and legal duty to report detainee
abuse.
THE GENEVA CONVENTIONS
B-8. The four treaties comprising the Geneva Conventions are fully applicable as a matter of international
law to all military operations that qualify as international armed conflicts involving signatory states. DOD
policy applies the Geneva Conventions in all military operations, no matter how characterized, unless
otherwise directed by competent authority. Although often referred to collectively as the
“Geneva
Conventions,” there are four specific treaties:
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Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field (GWS).
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Geneva Convention
(II) for the Amelioration of the Condition of Wounded, Sick, and
Shipwrecked Members of the Armed Forces at Sea (GWS Sea).
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Geneva Convention (III) Relative to the Treatment of Prisoners of War (GPW).
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Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (GC).
B-9. The Geneva Convention (I) provides protection for members of the armed forces and other persons
on the battlefield associated with the armed forces. These particular persons are no longer actively
participating in hostilities as the result of becoming wounded or sick. This convention also regulates the
conduct and treatment of medical and medical support personnel treating persons protected under the GWS
and protected medical transportation. It mandates humane treatment for wounded and sick personnel who
fall into enemy hands. It contains an express mandate that such individuals be protected against pillage and
ill treatment and be provided necessary and adequate care.
B-10. The Geneva Convention (II) mandates humane treatment and protection. This convention applies to
members of the armed forces and other persons associated with the armed forces at sea who are wounded,
sick, or shipwrecked. It also protects medical and medical support personnel as well as medical transport
including hospital ships.
B-11. The Geneva Convention (III) provides for the humane treatment of EPWs. It regulates the treatment
of EPWs (care, food, clothing, medical care, and housing), discipline and punishment, labor and pay,
external relations, representation, the international exchange of information, and the termination of
captivity.
B-12. The Geneva Convention (IV) protects civilians who find themselves under the control of an enemy
nation. It regulates the treatment of such civilians, to include establishing procedures governing the
deprivation of liberty (arrest, internment, or assigned residence), and provides a legal framework for the
relationship between civilians and the enemy authorities controlling them.
DETAINEE CATEGORIES
B-13. Generally, a detainee falls within the following categories: enemy prisoner of war, civilian internee,
retained person, or other detainee. They do not include persons being held primarily for law enforcement
purposes, except where the United States is the occupying power. A detainee may also fall into the
following categories:
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Enemy combatant.
o Lawful enemy combatant.
o Unlawful enemy combatant.
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Enemy prisoner of war.
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Retained person.
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Civilian internee.
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Appendix B
B-14. An enemy combatant is a person engaged in hostilities against the United States or its coalition
partners during an armed conflict (DODD 2310.01E). The term “enemy combatant” includes both “lawful
enemy combatants” and “unlawful enemy combatants.”
B-15. The Military Commissions Act of 2006 defines lawful enemy combatants as members of the regular
armed forces of a State engaged in hostilities against the United States; a member of a militia, volunteer
corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are
under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms
openly, and abide by the laws of war; or a member of a regular armed force who professes allegiance to a
government engaged in hostilities but not recognized by the United States. Lawful combatants are afforded
combatant immunity.
B-16. Unlawful enemy combatants are persons not entitled to combatant immunity, who engage in acts
against the United States or its coalition partners in violation of the laws and customs of war during an
armed conflict.
B-17. An enemy prisoner of war is an individual or group of individuals detained by friendly forces in any
operational environment who meet the criteria as listed in Article 4 of the Geneva Convention Relative to
the Treatment of Prisoners of War (FM 1-02).
B-18. A retained person consists of enemy medical personnel and medical staff administrators who are
engaged in either the search for, collection, transport, or treatment of the wounded or sick, or the
prevention of disease.
B-19. A civilian internee is a civilian who is interned during armed conflict, occupation, or other military
operation for security reasons, for protection, or because he or she committed an offense against the
detaining power (DODD 2310.01E).
DETAINEE TREATMENT ACT OF 2005
B-20. The Detainee Treatment Act of 2005 is found in Title 10. Judge advocates must be familiar with this
statute and understand its application to U.S. forces and military operations. In short, the act states—
z
No person in the custody or under the effective control of the Department of Defense or under
detention in a Department of Defense facility shall be subject to any treatment or technique of
interrogation not authorized by and listed in [FM 2-22.3].
z
No individual in the custody or under the physical control of the United States Government,
regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading
treatment or punishment.
Note: Section 1003(a) is not limited solely to the DOD and that it includes the entire U.S.
government.
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FM 1-04
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Appendix C
Stability Operations
OVERVIEW
C-1. Stability operations is an overarching term encompassing various military missions, tasks, and
activities 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 (JP 3-0). Army forces engaged in stability operations
establish or restore basic civil functions and protect them until the host nation can capably provide these
services. In a world characterized by persistent conflict driven by scarce resources and conflicting cultures,
victory is likely to be measured not by military superiority but rather by the ability to provide for the
essential needs and aspirations of a particular population. Stability operations are an essential component of
any campaign seeking to successfully resolve conflict through prosperity rather than military conquest.
C-2. Stability operations leverage the coercive and constructive capabilities of the military force to
establish a safe and secure environment; facilitate reconciliation among local or regional adversaries;
establish political, legal, social, and economic institutions; and facilitate the transition of responsibility to a
legitimate civil authority. Through stability operations, military forces help to set the conditions that enable
the actions of the other instruments of national power to succeed in achieving the broad goals of conflict
transformation. Providing security and control stabilizes the area of operations. These efforts then provide
a foundation for transitioning to civilian control and, eventually, to the host nation. Stability operations are
usually conducted to support a host-nation (HN) government. However, stability operations may also
support the efforts of a transitional civil or military authority when no legitimate government exists.
(FM 3-07 discusses this in more detail.)
C-3. Stability operations may be performed across the spectrum of conflict. Although all operations
require a mixture of lethal and nonlethal action, stability operations emphasize nonlethal action while
retaining a focus on initiative. Initiative is critical to stability operations because time is of the essence in
establishing or restoring essential services to the population. The period during which a population is
deprived of essential services provides a space for conflict and insurgency to grow. The primary source of
essential services is the HN government. Stability operations are intended to provide the time necessary for
the HN government to become established and capable of providing those services itself. The Army’s
strategic approach to stability operations emphasizes unity of effort, conflict transformation, legitimacy,
rule of law, and capacity building.
C-4. Unity of effort requires that stability operations be conducted across the whole U.S. Government,
integrating the capabilities of the military with civilian agencies (a “whole of government approach”) as
well as integrating U.S. Government efforts with those of international agencies, nongovernmental
organizations, multinational partners, and private entities. Such integration is likely to raise substantial
legal issues that Judge Advocate General’s Corps (JAGC) personnel should be prepared to address.
C-5. The emphasis on conflict transformation recognizes that U.S. forces frequently conduct stability
operations concurrently with offensive and defensive operations. JAGC personnel must anticipate the role
that stability operations have in conflict transformation and must plan for conflict transformation prior to
deployment. There is likely to be little time once in the area of operations to engage in such planning.
JAGC personnel not only prepare for their own changing roles, but also as staff officers assist the
commander in planning for these changes for the entire unit. JAGC personnel cannot clearly distinguish
their support to stability operations from their support to other types of operations. Stability operations
frequently play a major role in irregular warfare, in conditions that similarly require a flexible approach to
conducting a mix of stability, offensive, and defensive operations.
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