|
|
|
Appendix C
C-6. Legitimacy is a principle central to all stability operations. JAGC personnel are well versed in the
relationship between legitimacy and operations, including combat operations. Law connects the
government to the people. Judge advocates serve a central role in advising commanders or assisting
civilian agencies and HN government entities; judge advocates clarify the role of legitimacy in the
operation of government programs and stability operations. Inextricably tied to the concept of legitimacy is
the role of the rule of law in areas subject to stability operations. Appendix D describes the rule of law in
detail.
C-7. Capacity building focuses on developing HN institutions, building community participation,
developing human resources, and strengthening managerial systems. While it is important to provide
essential services to the HN population in the short term, the goal of U.S. forces is not to provide services
but rather to help build HN institutions that can provide services. Many civilian government agencies and
nongovernmental organizations specialize in capacity building, reinforcing the need for a comprehensive
approach to stability operations.
ROLES OF JAGC PERSONNEL
C-8. Just as stability operations are not fundamentally different in kind from other types of operations, the
roles of JAGC personnel in stability operations are not fundamentally different from the roles they fill in
the conduct of offensive and defensive operations. Rather than requiring a distinct set of skills and tasks,
stability operations require a shift in emphasis among the various roles that JAGC personnel commonly fill
in any operational environment. Some aspects of stability operations, though, call upon judge advocates to
act not only as staff officers, but also as participants in the operational aspects of stability operations.
TRADITIONAL JAGC TASKS
C-9. Legitimacy touches upon every aspect of stability operations. JAGC personnel assist commanders in
adopting policies that reflect the importance of legitimacy in the conduct of stability operations. The legal,
ethical, and moral advice provided by judge advocates helps ensure all actions undertaken by U.S. forces
comply with established notions of legitimacy, including in the form of international, U.S. domestic, and
HN legal obligations and norms.
C-10. Similarly, stability operations frequently touch directly on the degree to which the rule of law
operates in the host nation. As with regard to legitimacy, JAGC personnel have a major role to play in
ensuring that the command’s actions in a stability operation both comply with and encourage the
development of the rule of law. Indeed, the two efforts cannot be separated; it is impossible for a command
to encourage the development of the rule of law without itself complying with applicable law. Appendix D
discusses rule of law in detail.
C-11. Judge advocates can further legitimacy and the rule of law in their role of advising the commander
on rules of engagement (ROE). As it does with all regard to all U.S. military operations, the law of war
applies to stability operations, and judge advocates need to fill their normal role as advisors on the law of
war. However, stability operations will frequently require specific ROE that are more restrictive and
detailed when compared to those for sustained combat operations.
(FM 3-0 discusses these ROE.)
Moreover, to be legitimate, such ROE need to comply with both international and (depending on the type
of stability operation) existing HN law.
C-12. In circumstances in which the HN government has failed or has been deposed, U.S. forces may be
required to establish a transitional military authority to protect the HN population during the transition to a
new, legitimate civil government. The governance of HN territory by U.S. forces is subject to many legal
constraints, including international and domestic U.S. law and potentially even United Nations Security
Council resolutions. Any judge advocate participating in the establishment of a transitional military
authority must conduct extensive legal research to determine the applicable law and limits on U.S. military
authority to serve as a transitional government. (For more information on the role of transitional military
authorities in stability operations, see FM 3-07.)
C-2
FM 1-04
15 April 2009
Stability Operations
C-13. Because stability operations involve engagement of the HN population in constructive relationships,
JAGC personnel should prepare for an increase in the types of interactions they normally have with the HN
population. These interactions may include handling claims under the Foreign Claims Act, making
condolence or solatia payments, and establishing Foreign Claims Commissions. Maintaining good will is
particularly important in stability operations. JAGC personnel do a great deal to increase good will by
being responsive to the legal needs of the HN population. Moreover, because stability operations will
frequently accompany an improving security situation, JAGC personnel should expect that the populace’s
demand for such attention would increase.
C-14. The conduct of stability operations also involves increasing interoperation with local private and HN
institutions. JAGC personnel frequently support the stabilization efforts led by others, such as civil affairs
or U.S. Government agencies. As that interoperation increases, JAGC personnel need to increase their
awareness of HN law and contract with local institutions. Such contracts support U.S. forces and the
conduct of tasks necessary to the conduct of the campaign. These include contracts with local construction
firms for the reconstruction of infrastructure in the host nation. Moreover, types of assistance that
frequently accompany stability operations are governed by specific funding restrictions as a matter of U.S.
domestic law, and judge advocates will be required to examine projects for compliance with those
restrictions. (Paragraphs C-26 through C-33 discuss those restrictions in more detail.)
C-15. Often during stability operations, the security environment will be such that other U.S. Government
agencies, international organizations, and nongovernmental organizations will be active in the operational
area. Such organizations provide invaluable assistance to a host nation in need of stability operations.
Frequently, stability operations will be conducted during a period of increasing security, and with that
increasing security, the number of such organizations and their diffusion throughout the operational area
will necessarily increase. As they do, JAGC personnel should prepare to increase the work they do to
interface with such organizations.
C-16. Modern stability operations involve many Department of Defense (DOD) civilians, as well as
civilian personnel employed by government contractors. Again, as the security situation improves, the
number and diffusion of these individuals throughout the operational area is likely to increase. In addition
to the normal issues that arise from the presence of civilians engaged in stability operations with U.S.
forces, the dynamic legal and security environment is likely to present additional challenges. The means of
disciplining these persons differ from the means of disciplining uniformed personnel. In some
circumstances, civilians accompanying the force may be subject to the Uniform Code of Military Justice as
well as administrative action by the United States or contractor employers. However, JAGC personnel
ensure commanders have effective oversight mechanisms to control these civilians in the sensitive
operational environment in which stability operations normally occur. Coordination with the responsible
contracting officer is essential. DOD directives contain further policy and guidance pertaining to civilians
accompanying U.S. forces during operations
C-17. Stability operations aim to build HN capabilities. JAGC personnel may also be instrumental in
reviewing capacity-building projects for compliance with both U.S. and HN law. For instance, JAGC
personnel might determine the legality of certain reforms or the legal authority of nascent HN government
agencies to carry out certain forms of reform or reconstruction.
JAGC TASKS SPECIFIC TO STABILITY OPERATIONS
C-18. Stability operations require a distinct set of primary stability tasks, some of which call upon the
specialized knowledge that JAGC personnel possess. Especially within the tasks associated with the
restoration of order and the operation of government, commanders may call upon JAGC personnel for their
legal expertise in conducting stability operations. The primary stability tasks are:
z
Establish civil security.
z
Establish civil control.
z
Restore essential services.
z
Support to governance.
z
Support to economic and infrastructure development.
15 April 2009
FM 1-04
C-3
Appendix C
C-19. Establishing civil security requires a comprehensive set of rules to govern the legitimate employment
of HN security forces, rules that judge advocates may be called upon to help draft or implement.
C-20. Establishing civil control includes establishment of a criminal justice system, providing support to
law enforcement and police reform, judicial reform, corrections reform, the development of property
dispute resolution processes, and even to war crimes courts and tribunals. It also requires the establishment
of public outreach so that the HN population can actually engage justice institutions.
C-21. Restoring essential services can require extensive contracting and negotiations, and even includes
assistance to displaced persons, which must be handled in compliance with HN and international law.
C-22. Support to governance may involve legal expertise only tangentially related to the areas JAGC
personnel traditionally practice in, such as election reform and anticorruption.
C-23. Support to economic and infrastructure development, like restoring essential services, is likely to
require close interaction between the military and civilian agencies not traditionally associated with
military operations, especially the private sector. Moreover, security and the rule of law are both critical
ingredients to economic development.
C-24. Chapter 3 of FM 3-07 details the primary stability tasks along with descriptions of the many
subtasks.
C-25. JAGC personnel often play important roles in programs designed to bring about security sector
reform. Chapter 6 of FM 3-07 provides important information on security sector reform.
LEGAL CONSIDERATIONS
C-26. Stability operations affect many areas of the operational environment, areas not traditionally
associated with major combat operations. The conduct of stability operations requires close coordination
among military, civilian, international, nongovernmental, and HN actors, raising important legal issues.
Since stability operations aim to build HN capacity rather than simply to provide services, legal limits on
the ability of U.S. forces to interact and train HN forces may be implicated.
AUTHORITY TO ASSIST A FOREIGN GOVERNMENT
C-27. U.S. forces have limited authority to provide assistance to foreign governments. The Department of
State is the designated lead agency of U.S. Government efforts to coordinate stabilization, security,
transition, and reconstruction activities. The Army conducts stability operations in support of these
activities. Such support promotes the broader U.S. Government effort to advance U.S. interests in two
ways. First, it assists an existing government with internal challenges or helping establish a new social,
economic, and political domestic order in the short term. Second, it assists in the long term, by establishing
conditions for a sustainable peace.
C-28. Congress specifically appropriates funds for foreign assistance. The United States Agency for
International Development expends such funds under the legal authorities in Title 22. Provisions of Title
10 authorize small amounts of money. These funds are appropriated annually for commanders to provide
humanitarian relief, disaster relief, or civic assistance with military operations. These standing authorities
are narrowly defined and generally require significant advance coordination within the DOD and the
Department of State (DOS).
AUTHORITY FOR FOREIGN INTERNAL DEFENSE
C-29. Without receiving a deployment or execution order from the President or Secretary of Defense, U.S.
forces may be authorized to make only limited contributions during operations that involve foreign internal
defense. If the Secretary of State requests and the Secretary of Defense approves, U.S. forces can
participate in foreign internal defense. The request and approval go through standing statutory authorities
in Title 22, U.S. Code. Title 22 contains the Foreign Assistance Act, the Arms Export Control Act, and
other laws. It authorizes security assistance, developmental assistance and other forms of bilateral aid. The
request and approval might also occur under various provisions in Title 10. Title 10 authorizes certain
C-4
FM 1-04
15 April 2009
Stability Operations
types of military-to-military contacts, exchanges, exercises, and limited forms of humanitarian and civic
assistance in coordination with the U.S. ambassador to the host nation. In such situations, U.S. forces work
as administrative and technical personnel as part of the U.S. diplomatic mission pursuant to a status-of-
forces agreement or pursuant to an exchange of letters with the host nation. This cooperation and assistance
is limited to liaison, contacts, training, equipping, and providing defense articles and services. It does not
include direct involvement in operations. Assistance to police by U.S. forces is permitted but not with the
DOD as the lead government department.
GENERAL PROHIBITION ON ASSISTANCE TO POLICE
C-30. Usually, the DOD is not the lead government department for assisting foreign governments. The
DOS is the lead when U.S. forces provide security assistance—military training, equipment, and defense
articles and services—to HN military forces. The Foreign Assistance Act specifically prohibits assistance
to foreign police forces except within specific exceptions and under a Presidential directive. When
providing assistance to training, the DOS’s Bureau of International Narcotics and Law Enforcement
Affairs provides the lead role in police assistance. The President, however, may delegate this role to other
agencies. For example, in
2004, President George Bush signed a decision directive granting the
commander, United States Central Command, authority to train and equip Iraqi police.
TRAINING AND EQUIPPING FOREIGN FORCES
C-31. All training and equipping of foreign security forces are specifically authorized. U.S. laws require
Congress to authorize expenditures for training and equipping foreign forces. The laws of the United States
also require the DOS to verify that the host nation receiving the assistance is not in violation of human
rights. Usually, DOD involvement is limited to a precise level of man-hours and materiel requested from
the DOS under the Foreign Assistance Act. The President may authorize deployed U.S. forces to train or
advise HN security forces as part of the mission. In this case, DOD personnel, operations, and maintenance
appropriations provide an incidental benefit to those security forces. All other weapons, training,
equipment, logistic support, supplies, and services provided to foreign forces are paid for with funds
appropriated by Congress for that purpose. Moreover, the President gives specific authority to the DOD for
its role in such “train and equip” efforts. Absent such a directive, DOD lacks authority to take the lead in
assisting a host nation to train and equip its security forces.
GENERALLY APPLICABLE FUNDING CONSTRAINTS
C-32. In stability operations, like all operations, commands require specific authority to expend funds.
Normally, that authority is found in the DOD Appropriations Act, specifically, operation and maintenance
funds. Congress may appropriate additional funds to commanders for the specific purpose of conducting
stability and counterinsurgency operations. Examples of these appropriations from Operation Iraqi
Freedom and Operation Enduring Freedom include the Commander’s Emergency Response Program, the
Iraq Relief and Reconstruction Fund, Iraq Freedom Fund, and Commander’s Humanitarian Relief and
Reconstruction Program funds.
HUMAN RIGHTS VETTING
C-33. Congress typically limits when it will fund training or equipment for foreign security forces. If the
DOS has credible information that the foreign security force unit identified to receive the training or
equipment has committed a gross violation of human rights, Congress prohibits funding. Such prohibitions
impose a requirement upon DOS and DOD. These departments vet the proposed recipient units against a
database of credible reports of human rights violations.
15 April 2009
FM 1-04
C-5
This page intentionally left blank.
Appendix D
Rule of Law
This appendix addresses rule of law activities and the issues related to rule of law
activities in which judge advocates may become involved.
OVERVIEW
D-1. Many activities conducted in rule of law activities involve the practice of law and, therefore by
statute, are performed by judge advocates or other attorneys under the statutory technical supervision of
The Judge Advocate General. Judge advocates may be required to perform activities outside of the practice
of law simply because of their familiarity with legal systems generally. It is likely that judge advocates will
not be able to anticipate the roles they will fill prior to deployment.
D-2. Many rule of law activities will occur as components of stability operations, helping to establish (or
reestablish) the host nation’s capacity to maintain the rule of law. Stability operations are a core U.S.
military mission; establishing the rule of law in the host nation is often critical to the success of all five
primary stability operations tasks discussed in FM 3-0 and FM 3-07. Rule of law activities support
establishing a safe and secure environment by developing, reforming, or enhancing the capacity of the host
nation’s security institutions and thereby providing security the civilian population views as legitimate.
D-3. Although many major rule of law programs will occur as part of stability operations, rule of law
activities occur across the spectrum of conflict. A special relationship exists between the rule of law and
the legitimate exercise of force. As a result, rule of law activities not only include formal projects to rebuild
host-nation (HN) capacity, but also actions to ensure U.S., multinational, and HN security forces operate to
encourage respect for the rule of law while engaged in all operations.
D-4. To ensure the full range of rule of law considerations in military planning and execution, judge
advocate rule of law activities ultimately contribute to bringing about a situation in which the rule of law
exists. Rule of law is a principle under which all persons, institutions, and entities, public and private,
including the state itself, are accountable to laws that are publicly promulgated, equally enforced, and
independently adjudicated, and that are consistent with international human rights principles (FM 3-07).
D-5. The rule of law limits the power of government by setting rules and procedures that prohibit
accumulating autocratic or oligarchic power. It dictates government conduct according to prescribed and
publicly recognized regulations while protecting the rights of all members of society. It also provides a way
to resolve disputes nonviolently and an integral method to establish enduring peace and stability.
Generally, rule of law exists when—
z
The state monopolizes the use of force in resolving disputes.
z
Individuals are secure in their persons and property.
z
The state is bound by law and does not act arbitrarily.
z
The law can be readily determined and is stable enough to allow individuals to plan their affairs.
z
Individuals have meaningful access to an effective and impartial legal system.
z
The state protects human rights and fundamental freedoms.
z
Individuals rely on the existence of legal institutions and the content of law in the conduct of
their daily lives.
D-6. Rule of law activities are broad categories of actions designed to support HN development of
institutional capacity, human capacity, functional effectiveness, and popular acceptance of the host nation’s
legal system and related government areas. The activities help create the rule of law conditions listed in
15 April 2009
FM 1-04
D-1
Appendix D
paragraph D-5. The phase of operations determines which rule of law activities is appropriate. Often rule
of law activities undertaken in the wake of major combat operations are limited to enhancing security; as
the operational area becomes more mature and secure, rule of law activities will move beyond questions of
security to focus on law as a means to broader stability objectives.
D-7. Rule of law activities are likely to be part of an interagency effort. Rule of law activities will rarely,
if ever, be exclusively a military or a U.S. Government responsibility. The Department of State is charged
with leading and coordinating U.S. Government efforts to conduct reconstruction and stabilization
operations, including operations to establish and support the rule of law. Normally, such coordination falls
to a country team under the direction of the U.S. ambassador to the host nation. Any rule of law activities
undertaken at the local level should be coordinated with the rule of law country team.
D-8. Rule of law activities relate to both U.S. and HN policies. Such policies are established by either
higher headquarters or civilian agencies in both the U.S. and HN governments. In addition, the Department
of State will likely to have a rule of law plan even in environments in which its civilian employees are not
operating. Judge advocates continually look to such outside authorities and resources for guidance in the
conduct of rule of law activities. Because they are closely related to policy, even local rule of law activities
remain part of a single, nationwide rule of law plan. For example, a local effort to vet and appoint judges to
quickly reestablish the court system could easily work counter to a system in which judicial appointments
are carried out nationwide by a central authority.
D-9. Given their close relationship to policy, rule of law activities are likely to be particularly sensitive to
the civilian population. They should be planned and executed while taking careful account of the
populace’s response. The essence of the rule of law is legitimacy, and rule of law activities undertaken
without regard to local political sensitivities are likely to be counterproductive. Rule of law activities are
intended to build HN capabilities and therefore should always be undertaken with HN legal institutions and
with a view toward increasing their capabilities and legitimacy.
RULE OF LAW ACTIVITIES INVOLVING THE PRACTICE OF LAW
D-10. Judge advocates who fall under the statutory technical supervision of The Judge Advocate General
are the only persons authorized to provide legal advice regarding rule of law planning and activities. Judge
advocates also perform or supervise all rules of law activities that involve the practice of law. At all levels,
staff judge advocates are prepared to carry out rule of law activities. They coordinate activities of judge
advocates assigned or attached to subordinate commands, specialists in public safety with a background in
law enforcement, and others with backgrounds in judicial administration, corrections, and other relevant
areas. Judge advocates are routinely detailed to work with interagency, multinational, or other
organizations carrying out rule of law activities. The staff judge advocate has personnel available for rule
of law activities with extensive training in international law, comparative law, and human rights law.
D-11. Rule of law activities involving the practice of law include, but are not limited to—
z
Determining which HN offices, ministries, or departments can legally evaluate, reform, and
implement the law and execute its mandates.
z
Evaluating and assisting in developing transitional decrees, codes, ordinances, courts, and other
measures intended to bring immediate order to areas in which the HN legal system is impaired
or nonfunctioning.
z
Evaluating HN law, legal traditions, and administrative procedures in light of international legal
obligations and human rights standards and, when necessary, providing appropriate assistance to
their reform.
z
Evaluating training given in light of international legal obligations and human rights standards
and providing assistance to improve training. This training is given to HN judges, prosecutors,
defense counsel, legal advisors, court administrators, and police and corrections officials.
z
When necessary, serving as legal advisors for transitional courts.
z
Advising commanders and others on the application of international, U.S. domestic, and HN law
that is considered in restoring and enhancing rule of law in the host nation.
D-2
FM 1-04
15 April 2009
Rule of Law
z
Advising commanders and U.S., international, and HN authorities on the legality, legitimacy,
and effectiveness of the HN legal system including its government’s compliance with
international legal obligations and domestic law.
z
Support the training of U.S. personnel in the HN legal system and traditions.
D-12. Judge advocates engaging in rule of law activities should consult current civil affairs doctrine for
additional guidance. (See FM 3-05.40.)
CONSIDERATIONS IN RULE OF LAW ACTIVITIES
D-13. Judge advocates are likely to become involved in rule of law activities in both support and
operational roles. Sometimes, depending on the security, civilian subject matter experts provided by the
Department of State and other agencies may not be present. In such cases, the military conducts rule of law
activities. When conducting rule of law activities, judge advocates coordinate with, and should seek advice
from other cells within their organization that engage in similar operations. These organizations can
include the operations cell, the planning cell, the civil affairs cell, and military police.
D-14. Ideally, civil affairs personnel coordinate and lead rule of law activities. Some judge advocates may
be members of civil affairs units and serve either in staff positions or as subject matter experts on the rule
of law. When in such positions, judge advocates often rely on established civil affairs doctrine and
training; other judge advocates may be members of non-civil affairs units supporting rule of law activities
led by civil affairs units. Occasionally, civil affairs resources will be unavailable or inadequate. In such
cases, judge advocates may be required to serve in operational roles, conducting rule of law activities with
little outside guidance or assistance.
D-15. U.S. forces reflect the rule of law in their actions, including compliance with applicable domestic
and international law. The civilian population as well as the international community will scrutinize
military compliance with the rule of law in the conduct of operations. Thus, judge advocates normally
undertake a role to ensure commanders understand and enforce U.S. compliance with legal obligations in
the conduct of military operations.
D-16. Rule of law planners should utilize established frameworks for assessing HN legal institutions and
measuring the progress of rule of law activities. Generic rule of law assessment and metrics frameworks,
which are tailored to specific circumstances, are available from the Department of State. In many cases,
frameworks already tailored to specific HN legal systems will be available and should be relied upon in
planning rule of law activities.
D-17. Rule of law activities are necessarily highly contingent on the operational environment. The
appropriate course of conduct for a rule of law activity depends on—
z
How well the HN legal system supports the relationship between the populace and the HN
government.
z
The ability of the HN government to function as it supports the cultural, religious, and social
norms.
z
Ethnic, religious, political, or social divisions among the populace.
z
Campaign objectives.
z
The nature of the legal authority for U.S. action.
z
The degree to which U.S. civilian agencies are present in the area of operations and active in the
rule of law effort.
D-18. Because rule of law activities rely so highly on the operational environment, they are not amenable
to checklist solutions. Even established frameworks need to be adapted to be useful when assessing the
operational environment.
D-19. Prior to deployment, judge advocates should formulate basic, flexible rule of law plans. Once
deployed, information and time will likely be in short supply. Judge advocates need to maximize both
when preparing to commence rule of law activities.
15 April 2009
FM 1-04
D-3
Appendix D
D-20. Rule of law activities require continuity. Judge advocates deploying to replace a force already in the
operational area rely on their predecessors for information regarding the operational environment. This
information can detail the host nation, its legal system, existing rule of law activities, and opportunities
identified for future rule of law activities. Even judge advocates serving as part of an entering force
familiarize themselves with basic information about the host nation and its legal system.
D-21. Judge advocates cannot know everything about a host nation’s legal system prior to engaging in rule
of law activities. However, judge advocates should acquire the following as an essential part of the overall
intelligence preparation of the battlefield:
z
Knowledge, understanding of, and respect for the existing HN legal system and its international
legal obligations.
z
Knowledge of the conditions, capabilities, and locations of HN legal institutions (with emphasis
on security-related legal institutions such as courts, police, and prisons).
D-22. Planning factors affecting of rule of law activities may include but are not limited to:
z
The need to restore legitimate, basic security apparatus as quickly as possible. A short window
of opportunity exists to perform this task. Sometimes commanders refer to it as the golden hour
following combat. During this golden hour, commanders and judge advocates concentrate their
efforts on the basics and expand capability, capacity, and goals.
z
The ability to secure and protect key infrastructure—courts, police stations, public records
facilities, and prisons. Doing this as soon as possible minimizes the damage to those institutions
and helps expedient reconstruction.
z
Information on the strengths and weaknesses of existing systems, including information from
political specialists, sociologists, and anthropologists, as well as specialists on transnational
crime.
z
Information on how the country team organized its rule of law mission and objectives. This
information allows judge advocates to coordinate with the country team and others engaged in
or leading rule of law activities in the host nation.
D-23. No single body of law regulates the conduct of rule of law activities. Numerous bodies of law are
relevant: international law, including the law of war; human rights law; refugee law; and HN and U.S.
domestic law. Several sources of reference material are available to the rule of law practitioner. (See
FM 3-24 and FM 3-07.)
D-24. U.S. forces remain aware of the international legal obligations of the host nation, including its
international human rights obligations. For example, the host nation may be party to the International
Covenant on Civil and Political Rights. If not, customary international law, which is reflected in the
Universal Declaration of Human Rights, still binds the host nation. HN compliance with its international
legal obligations should be the goal. Failing to respect human rights often undermines HN legitimacy,
weakens the international community’s commitment to the HN government, and it may restrict the ability
of multinational forces to cooperate with HN authorities.
D-4
FM 1-04
15 April 2009
Appendix E
Legal Support in Civil Affairs Units
This appendix addresses the roles and responsibilities of judge advocates assigned to
civil affairs
(CA) units. This appendix also highlights legal issues unique to CA
missions.
OVERVIEW
E-1. The operational environment is characterized by both military and civil components. In modern
operations, the relationship between diplomats, civilian agencies, and military organizations continues to
grow in relevance. CA organizations play a critical role in these relationships.
E-2. CA units are organized, trained, and equipped to support missions requiring extensive interaction
between military forces and indigenous populations and institutions, intergovernmental organizations, and
nongovernmental organizations. CA personnel assist commanders in planning and executing stability
operations and other initiatives involving civil-military interface that are designed to develop the capacity
of friendly governments to care for and govern populations effectively. These operations and initiatives
help to effectively deny sanctuary for insurgents and terrorists, diminish the underlying conditions for
conflict and crisis, and set conditions for follow-on stability operations and reconstruction.
E-3. The modular force structure includes one active Army and eight reserve CA brigades and four
reserve CA commands. CA brigades and commands are supported by a brigade judge advocate or
command judge advocate (CJA), respectively, (brigade judge advocates and CJAs will be referred to
collectively as CJAs for purposes of this appendix only), and a paralegal noncommissioned officer. In
addition to the CJA and paralegal positions, CA commands also have judge advocate billets in each of their
“functional specialty teams.” There are six of these teams in each of the four CA commands: three rule of
law teams and three governance teams per command.
E-4. The authority to provide legal services rests solely with judge advocates and civilian attorneys under
The Judge Advocate General’s supervision. CJAs provide legal advice to commands; other attorneys,
regardless of branch or unit of assignment, may not provide legal services.
DUTIES AND RESPONSIBILITIES
E-5. Judge advocates serving as CJAs for CA units perform the same duties as other command legal
advisors. They serve as the primary legal advisors to their respective unit commanders and serve as a
member of the commander’s personal and special staff. CJAs provide mission-essential legal services to
the units they support, providing or coordinating for support and services across the six core legal
disciplines: military justice, international and operational law, administrative and civil law, contract and
fiscal law, claims, and legal assistance. Given the high demand for CA personnel in current operations,
CJAs assigned to CA units are well versed in preventive law and Soldier readiness processing. They are
also prepared to provide predeployment training to CA forces. This training should include: law of war,
human rights violations and reporting requirements, rules of engagement, military justice, legal assistance,
and, if applicable, pertinent information concerning status-of-forces agreements.
E-6. In a deployed environment, the CJA provides the commander with expertise and insight on the legal
aspects of civil affairs activities. This may include supporting activities designed to rebuild, reform, or
assist in the administration of the judicial sector of a host nation. Judge advocates assigned to CA
functional specialty teams provide legal advice and expertise to commanders conducting activities in six
functional specialty areas: rule of law, economic stability, governance, health and welfare, infrastructure,
15 April 2009
FM 1-04
E-1
Appendix E
and education and public information. Within each functional specialty area, technically qualified and
experienced individuals, known as CA functional specialists, also advise and assist the commander and
may assist or direct their civilian counterparts at the operational and strategic levels. For more information
on CA functional specialty teams and CA organizations, see FM 3-05.40.
E-7. In virtually all cases, CA units are task organized to other commands. These commands will
routinely have organic legal support. While not working directly for the Staff Judge Advocate (SJA) of the
supported command, the CJA still coordinates with the SJA for legal oversight, technical guidance, and
information sharing purposes. (See chapter 4.) Effective communication between the CJA and the SJA is
critical as it ensures that both individuals maintain situational understanding and ultimately provide
synchronized and mutually supporting legal support in an often dynamic operational environment.
E-8. Judge advocates assigned to CA units are responsible for providing accurate legal advice to the
commanders and staffs of CA units and CA-based joint task forces, and to the members of the functional
specialty teams as they carry out their missions. Due to the nature of the CA mission, judge advocates
assigned to CA units will need to be particularly competent in issues of fiscal law, humanitarian assistance,
security assistance, and host-nation support.
CIVIL AFFAIRS ACTIVITIES
E-9. Civil affairs activities are activities performed or supported by civil affairs that (1) enhance the
relationship between military forces and civil authorities in areas where military forces are present; and (2)
involve application of civil affairs functional specialty skills, in areas normally the responsibility of civil
government, to enhance conduct of civil-military operations (JP 3-57). CA forces plan, support, execute, or
transition these military activities to modify behaviors, mitigate or defeat threats to civil society, and assist
in establishing the capacity for deterring or defeating future civil threats in support of U.S. objectives.
These activities may be conducted through, with or by the indigenous population and institutions,
intergovernmental organizations, nongovernmental organizations, or other government agencies. The five
core tasks of CA activities are:
z
Population and resource control.
z
Foreign humanitarian assistance.
z
Civil information management.
z
Nation assistance.
z
Support to civil administration.
E-10. CA activities contain a number of unique legal and cultural issues. Accordingly, judge advocates
assigned to CA units have a broad base of knowledge. The following list outlines many of the major duties
and responsibilities of judge advocates supporting CA operations:
z
Assisting in the preparation and reviewing of CA plans for consistency with the law as well as
any strategic and operational planning.
z
Preparing the legal section of the CA area study and assessment.
z
Providing predeployment CA training as required.
z
Providing guidance on—
o Population control measures.
o Targeting to minimize unnecessary collateral damage or injury to the civilian population.
o Treatment of dislocated civilians, civilian internees, and detainees.
o Requests for political asylum and refuge.
o Acquisition of private and public property for military purposes.
o Psychological operations and their effects on the civilian populace.
z
Providing advice on and disposing of claims submitted by local civilians.
z
Providing advice on the jurisdiction of local courts over U.S. military personnel and activities.
z
Providing advice on humanitarian and civic assistance issues.
z
Providing advice on disaster relief.
E-2
FM 1-04
15 April 2009
Legal Support in Civil Affairs Units
z
Assisting in the creation and supervision of military tribunals and other activities for the proper
administration of civil law and order.
z
Assisting civil administration activities, including:
z
The establishment and operation of local judicial and administrative agencies.
z
The closing and reopening of local courts, boards, agencies, and commissions.
z
Defining the jurisdiction, organization, and procedures of local government institutions.
E-11. One of the principal missions of CA judge advocates is to support rule of law operations. Rule of law
is the main focus for those judge advocates assigned to one of the rule of law functional specialty teams.
For more information on rule of law, see appendix D.
15 April 2009
FM 1-04
E-3
Appendix F
Civil Support Operations
This appendix provides a synopsis of legal principles to consider in civil support
operations. Given their complex and fact specific nature, civil support operations
require planners and Judge Advocate General’s Corps (JAGC) personnel to work
closely to ensure operations do not violate Federal law, state law, or international
treaties.
OVERVIEW
F-1. State and local governments have the primary responsibility for protecting life and property and
maintaining law and order in the civilian community. Supplementary responsibility is vested by statute in
specific agencies of the U.S. Government other than the Department of Defense. Civil support is
Department of Defense support to U.S. civil authorities for domestic emergencies, and for designated law
enforcement and other activities (JP 3-28). Civil support includes operations that address the consequences
of natural or man-made disasters, accidents, terrorist attacks, and incidents in the United States and its
territories. The military’s role in civil support operations is well defined and is limited by Federal law and
regulation in scope and duration. Based on the limited authorities and express limitations placed on scope
of the military’s role, U.S. personnel should know the legal considerations. Furthermore, JAGC personnel
should integrate themselves into the planning process to ensure plans staff properly account for the
parameters set forth by U.S. laws and Department of Defense directives. In so doing, these legal
restrictions will serve as critical screening criteria during course of action development, analysis,
comparison, and approval.
THE POSSE COMITATUS ACT
F-2. In common law, the Latin phrase “posse comitatus” refers to the authority wielded by the county
sheriff to deputize any able-bodied male over the age of fifteen to assist in keeping the peace or to pursue
and arrest a felon. U.S. marshals were also known to form a posse of able-bodied males to enforce Federal
law. Due to friction of the use of posse comitatus during the reconstruction era in the South after the
American Civil War, Congress passed the Posse Comitatus Act. The Act remains the primary Federal
statute restricting military support to civilian law enforcement. The Posse Comitatus Act, found at Title 10,
U.S. Code, section 1385 (1878), states:
Whoever, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a
Posse Comitatus or otherwise to execute the laws shall be fined more than $10,000 or
imprisoned not more than two years or both.
F-3. Although a plain reading of the Posse Comitatus Act reflects that it only applies to the Army and Air
Force, Title 10, U.S. Code, section 375 (2004) requires the Secretary of Defense to “prescribe regulations
restricting the use of equipment and the direct participation of Army, Navy, Air Force, or Marine Corps
personnel in supporting civilian law enforcement agencies unless otherwise authorized by law.” The statute
defines direct participation as “search, seizure, arrest or similar activity.” Consequently, through Title 10,
U.S. Code, section 375 (2004) and resulting Department of Defense (DOD) directives, the Posse Comitatus
Act applies to all U.S. forces, as well as each of their respective Reserve Components serving in a Federal
status. The applicable DOD directives are as follows:
z
DODD 3025.15, Military Assistance to Civil Authorities.
z
DODD 5525.5, DOD Cooperation with Civilian Law Enforcement Officials.
15 April 2009
FM 1-04
F-1
Appendix F
z
DODD 3025.12, Military Assistance for Civil Disturbances.
z
DODD 3025.1, Military Support to Civil Authorities.
F-4. The Posse Comitatus Act does not apply to the Coast Guard except during times of war when under
the command and control of the Navy (Title 14).
F-5. Whether the Posse Comitatus Act applies to Army or Air National Guard personnel depends upon
the Soldier’s or Airman’s duty status. National Guard personnel may be ordered to duty under one of the
following three statutory frameworks:
z
Title 10.
z
Title 32.
z
State active duty.
F-6. When in a Title 10 status, National Guard personnel are federally funded and under Federal
command and control. Consequently, they are subject to the Posse Comitatus Act.
F-7. When in a Title 32 status, National Guard personnel are federally funded and typically perform
training for their Federal mission but remain under the control of the state. Although federally funded,
because National Guard members in a Title 32 status fall under state control, they do not fall under the
posse comitatus restrictions and may perform those law enforcement duties authorized by state law.
F-8. National Guard personnel performing state active duty missions are state-funded and under state
control. This is typically the status in which National Guard personnel perform duties when a governor
“calls out the National Guard” to respond to emergencies, civil disturbances, or disasters or to perform
other duties authorized by state law. The Federal government may reimburse costs associated with a state
active duty response pursuant to a Presidential major disaster or emergency declaration. National Guard
personnel on state active duty status do not fall under posse comitatus restrictions and may perform those
law enforcement duties authorized by state law.
F-9. Civilian employees of the military are only subject to the prohibitions of the Posse Comitatus Act if
they are under the direct command and control of a servicemember in a Title 10 status.
F-10. Posse Comitatus Act restrictions applying to the Federal military personnel through Title 10, U.S.
Code, section 375 (2004) and implementing directives (see DODD 5525.5) prohibit the following forms of
direct assistance:
z
Interdiction of a vehicle, vessel, aircraft, or other similar activity.
z
Search or seizure.
z
Arrest, apprehension, and stop and frisk.
z
Surveillance or pursuit of individuals or as undercover agents, informants, investigators, or
interrogators.
F-11. Title 10, U.S. Code, sections 371-382 (2004) and DOD directives allow various forms of indirect
assistance to civilian law enforcement agencies such as the following:
z
Sharing of information collected during the normal course of military training or operations.
z
Use of military equipment.
z
Training and advising on use of equipment.
z
Provide personnel for maintenance and operation of equipment.
z
Weapons of mass destruction support.
F-12. DODD 5525.5, Enclosure 4, states that the following forms of direct assistance are not prohibited by
the Posse Comitatus; therefore, they are considered exceptions to the Act:
z
Action taken for the primary purpose of furthering a military or foreign affairs function of the
United States; also known as the
“military purpose doctrine.” Such actions include the
following:
o Investigations and other actions related to the commander’s authority to maintain law and
order on a military installation or facility.
F-2
FM 1-04
15 April 2009
Civil Support Operations
o Protection of classified military information or equipment.
o Protection of DOD personnel, DOD equipment, and official guests of the DOD.
z
Actions taken under inherent right of U.S. Government to ensure preservation of public order
and carry out governmental operations within its territorial limits. This authority may be used in
two circumstances:
o In emergency to prevent loss of life or wanton destruction of property and restore
governmental functioning and public order to such an extent that duly constituted local
authorities are unable to control the situation.
o Protection of Federal property and functions when need exists and duly constituted local
authorities are unable or decline to provide adequate protection.
z
Actions taken pursuant to insurrection statutes (Title 10, U.S. Code, sections 331-334) (2006).
These statutes permit the President to use the armed forces to enforce the law under the
following circumstances:
o There is an insurrection within a state and the state legislature (or governor, if the legislature
cannot be convened) requests assistance from the President.
o Whenever the President considers that unlawful obstructions, combinations, or assemblages,
or rebellion against the authority of the U.S. make it impracticable to enforce the laws of the
U.S. by the ordinary course of judicial proceedings.
o An insurrection or domestic violence opposes or obstructs Federal law, or so hinders the
enforcement of Federal or state laws that residents of the state are deprived of their
constitutional rights and the states are unable or unwilling to protect these rights.
o Other actions taken under express statutory authority to assist officials in executing the laws,
subject to applicable limitations.
DISASTER RELIEF
F-13. The Robert T. Stafford Disaster Relief Act (Title 42, U.S. Code, sections 5121-5204c et seq. [2000],
as amended) is the statutory authority for Federal disaster assistance within the United States and its
territories. The Stafford Act authorizes the President to provide DOD assets for the relief efforts. Once the
President formally declares an emergency or a major disaster, DOD assets for emergency work may be
provided on a limited basis prior to the Presidential declaration. Disaster relief pursuant to the Stafford Act
is not an exception to the Posse Comitatus Act; therefore, only indirect assistance is authorized unless
direct assistance is otherwise authorized by the Constitution or statute. DOD policy for providing disaster
assistance (as related to the Stafford Act) is contained in DODD 3025.15 and DODD 3025.1.
RULES OF ENGAGEMENT AND RULES FOR THE USE OF FORCE
F-14. The standing rules of engagement (SROE) and standing rules for the use of force (SRUF) assist U.S.
forces in determining which level of force to apply in a given situation. CJCSI 3121.01B discusses SROE
and SRUF.
F-15. SROE apply domestically only to air and maritime homeland defense functions conducted within the
U.S. territory or territorial seas. Otherwise, it applies during all military operations and contingencies and
routine Department of Defense functions occurring outside U.S. territory and outside U.S. territorial seas.
F-16. SRUF are located at Enclosures L-Q of CJCSI 3121.01B. SRUF apply during all DOD civil support
and statutory military department functions occurring within U.S. territory and territorial seas. SRUF also
apply to land homeland defense missions occurring within the U.S. territory and to U.S. forces, civilians,
and contractors performing law enforcement duties at all DOD installations (and off-installation while
conducting official DOD security functions), within or outside U.S. territory, unless otherwise directed.
F-17. A commander’s authority to modify the SROE and SRUF is limited to making them more restrictive.
The rules for the use of force (RUF) and rules of engagement of the National Guard serving in a state-
controlled Title 32 or state active duty status are governed by state laws. The various states’ laws vary in
the National Guard’s authority to take actions requiring RUF in a law enforcement, law enforcement
15 April 2009
FM 1-04
F-3
Appendix F
support, or security operation. Depending on the language of the state statutes involved, these grants of or
limitations on the National Guard’s authority to act as peace officers may apply to National Guard
personnel conducting operations in a Title 32 status, state active duty status, or both. Some states grant
National Guard members (in a Title 32 or state active duty status, or both) the authority of peace officers,
while others only authorize those powers enjoyed by the population at large, such as “citizen’s” arrest. It is
the duty of the National Guard judge advocate to tailor the RUF to the particular mission and policies of
the state.
F-4
FM 1-04
15 April 2009
Appendix G
Financial Management and Deployment Contracting
This appendix addresses the issues related to financial management and
expeditionary contracting in which judge advocates may become involved.
OVERVIEW
G-1. Robust resource support to contingency operations forces, especially in the early stages of a
contingency operation, relies not only on the traditional stock-fund logistic supply system, but also on a
triad of sustainment assets—finance, resource management, and contracting (the “fiscal triad”). This fiscal
triad is required for the local procurement of goods and services and for support of special programs. Fiscal
triad assets operate in concert to execute local purchases of supplies. Judge advocates should establish
contact with financial managers early in deployment.
FINANCIAL TRIAD
G-2. The financial triad comprises the finance manager, resource manager, and contracting agent. Each
member of the triad has specific authorities and responsibilities in this process and is interdependent on the
others. Triad interdependence provides a check and balance. It ensures commanders have sufficient support
in accordance with established priorities. This interdependence also ensures judge advocates meet all legal
and regulatory requirements and set adequate controls in place to prevent fraud, waste, and abuse.
FINANCE MANAGER
G-3. The finance manager acts as the government banker. It is the only triad element with disbursement
authority. It provides vendor payment support through cash, check, and electronic fund transfers as well as
funds and clears paying agents.
RESOURCE MANAGER
G-4. The resource manager is the commander’s representative to lead the requirement validation
(including important appropriation legal reviews) and prioritization development effort. This manager
certifies the availability of funds and ensures the use of funds is legal and proper. As the keeper of the
commanders’ checkbook, the resource manager does not create requirements and has no procurement or
disbursement authority.
CONTRACTING AGENT
G-5. The contracting agent is the only authorized (warranted) procurement agent legally capable of
entering the U.S. Government into a contract. Contracting often conducts legal reviews prior to the award
of a contract. However, it does not create or validate requirements and has no fund certification or
disbursement authority. Often, the legal reviews are limited to contract sufficiency, not appropriation
determinations.
G-6. At a minimum, judge advocates at all command levels provide proactive advice on early
identification of funds authorized for the operational area and thoroughly understand fiscal law. Financial
managers are involved in many Department of Defense (DOD) and non-DOD authorities; each manager
has an individual set of regulations.
15 April 2009
FM 1-04
G-1
Appendix G
DEPLOYMENT CONTRACTING
G-7. Judge advocates are involved in several aspects of contracting. They review the preparation for
deployment and handle any contracting issues that arise during deployment.
PREPARATION FOR DEPLOYMENT
G-8. Deploying judge advocates are identified at the earliest possible time to ensure they receive the
contract training necessary to succeed in their contingency mission. Such training includes the contract
attorney course offered by The Judge Advocate General’s Legal Center and School. Operational
commanders and their legal advisors recognize the impact of contracting and contractors in their
expeditionary operations and on their missions. Units develop plans to integrate contracting personnel and
teams into their organization and plan for deployment. Whether supported by a contracting support brigade
or some other nonorganic organization, units plan and train the other organizations to help meet the unit’s
needs. Judge advocates should take the lead in advocating expeditionary contracting preparation.
Generally, the contracting element consists of contracting officers, field ordering officers, legal personnel,
financial managers, and logistic and other support personnel.
G-9. Judge advocates review existing or proposed plans, paying particular attention to the acquisition and
contracting appendixes; ensure contracting assets are among the first deployed; evaluate the availability of
any Reserve Components contracting assets; and consider establishing an acquisition review board for
major deployments. Failing to adequately plan for and deploy contracting assets at the initial stages
increases the chances for mistakes and abuse with long lasting, negative effects.
G-10. Judge advocates review combatant command policies and procedures and establish contact with
overseas and higher headquarters’ contacting activities. If possible, they establish early contact with
counterparts already in combatant command completing contracting actions. Regardless of the existence of
any prior deployment to the area, they establish contact with higher headquarters contracting activities.
These might include Army Contracting Command, Expeditionary Contracting Command, Army
Sustainment Command, Medical Logistics Management Center, and Defense Contract Management
Agency.
G-11. Unit predeployment funding concerns include the following:
z
Certified funding.
z
Government purchase cards.
z
Availability of funds.
z
Imprest funds.
G-12. A deployable unit coordinates to have funds certified as available in bulk to support deployment
purchases.
G-13. Commanders can use government purchase cards during expeditionary contracting. Units remember
that the funding tied to their credit card at home station will not remain the same during deployments. Units
coordinate to adjust the funding or receive separate charge cards through resource management channels.
G-14. Units research the availability of specific appropriations and authorizations for the particular
operation. Congress provides specific funds for purposes not otherwise within the DOD mission. Provision
of these funds depends on the operation.
G-15. For deployments into immature areas, commanders consider establishing an imprest fund in advance
of deployment notification. An imprest fund operates like a petty cash fund; it is replenished as payments
are made from it. The fund should include local currency if available before deployment.
CONTRACTING DURING DEPLOYMENT
G-16. Competition is the law. Absent statutory authority, full and open competition is required by the
Competition in Contracting Act. Generally, the expected cost of the goods or services required determines
the extent of competition required. Most units in expeditionary contracting use simplified acquisition
G-2
FM 1-04
15 April 2009
Financial Management and Deployment Contracting
procedures. Normally, higher headquarters handle large-scale acquisitions with specially trained
contracting professionals. Contracting officers work closely with contract law attorneys to ensure the
required contracting procedures are followed with respect to the funding source.
G-17. Existing ordering agreements, indefinite delivery contracts, and requirements contracts may be
available to meet recurring requirements, such as fuel and subsistence items. Some of these standing
contracts include logistics civil augmentation program (LOGCAP) and other existing contracts.
G-18. LOGCAP is designed primarily for use where no treaties exist. Contracting officers can use these
contracts inside as well as outside the continental United States. LOGCAP is a service contract designed to
provide sustainment, including base operations support, for an arriving force in an austere environment.
The funding restrictions applicable in all other areas of procurement apply to the LOGCAP contract as
well. LOGCAP is an expensive contracting tool. Commanders need to use it judiciously with command
oversight of requirements submitted to the LOGCAP contractor.
G-19. Other existing contracts may also be available to meet a unit’s needs. Several statutory authorities
provide the flexibility to use other Army contracts or contracts through other government agencies. Judge
advocates may consider use of these other existing contracts.
G-20. New and existing contracts are not the only methods for meeting the needs of deployed military
forces. The military supply system is the most common source of supplies and services. Acquisition and
cross-servicing and host-nation support agreements exist with North Atlantic Treaty Organization
(commonly known as NATO), Korea, and other major U.S. allies. Finally, Secretaries of the Army, Marine
Corps, Navy, and Air Force retain substantial residual powers they can use to meet critical requirements
that cannot be fulfilled using normal contracting procedures.
G-21. The Army is authorized to lease foreign real estate for military purposes. This authority is delegated
on an individual lease basis. Billeting services are acquired by contract, not lease. True leases normally are
completed by the Army Corps of Engineers using contingency real estate support teams.
EXPEDITIONARY CONTRACTING ISSUES
G-22. Only warranted contracting officers can legally bind the U.S. Government in contract. Contracting
officers may provide limited authority to field ordering officers to complete on-the-spot purchases under
the micropurchase threshold. This authority is limited to the terms specified by the contracting office. It
does not provide the any warranted contracting authority.
G-23. Sometimes government officials without contract authority purport to bind the government by
arranging for the delivery of goods or services. An “unauthorized commitment” is an agreement that is not
binding on the government solely because someone who did not have authority to bind the government
made the commitment. Individuals making unauthorized commitments may be personally liable to the
contractor for the cost of the goods or services. Subject to dollar limitations, certain officials including the
chief of a contracting office, principal assistant responsible for contracting, and the head of contracting
activity may ratify an unauthorized commitment, which then binds the U.S. contracting officials have no
obligation to ratify any unauthorized commitment.
G-24. Contracts shall not be used for the performance of inherently government functions. Examples of
inherently government functions include:
z
Direct conduct of criminal investigations, control of prosecutions, and performance of
adjudicatory functions.
z
Command of military forces, especially the leadership of military personnel, or direction or
control of other government employees.
z
Actions that bind the government such as contracts, policies, or regulations.
z
Actions that significantly affect the life, liberty, or property interests of private persons.
z
Ultimate control exercised over government property or money.
G-25. Contracting for personal services is illegal, absent specific statutory authority. A personal services
contract is one that, by its express terms or as administered, makes the contractor personnel appear to be
15 April 2009
FM 1-04
G-3
Appendix G
government employees. Normally, the government is required to obtain its employees through civil service
laws. A personal services contract is generally characterized as one creating an employer-employee
relationship between the government and the contractor’s personnel. One indicator of personal services is
the continuous supervision and control of the contractor employees by government employees.
G-26. Planning is critical to the success of contracting operations. Identification and proper training of
personnel before deployment is critical. In addition to understanding the basic contracting rules that will
apply during U.S. military operations, judge advocates, field ordering officers, and contracting personnel
also know fiscal law principles. Only warranted contracting officers and designated personnel with express
written authorization to make micropurchases have authority to bind the government by contracting with
vendors. Purchase agreements made by someone lacking that express actual authority to contract are
unauthorized commitments. The government has no obligation to pay for the purchases and a contracting
officer is not obligated to ratify the purchases.
G-4
FM 1-04
15 April 2009
Appendix H
Lessons Learned
This appendix provides the format the Judge Advocate General Corps (JAGC) uses to
capture legal lessons learned.
OVERVIEW
H-1. To standardize the production of lessons learned across many different legal offices, use the format
of figure H-1 when writing a report capturing lessons learned during deployments.
SAMPLE FORMAT
H-2. The format is based upon the six core legal disciplines, the emerging areas that U.S. forces practice
in multinational, interagency, and civil support operations, and the Joint Vision 2020 concept of doctrine,
organization, training, materiel, leadership and education, personnel, and facilities.
H-3. The report is drafted using the issue, decision, and recommendation methodology. The report
addresses particular issues in discrete areas of the law the command and legal community faced during
deployment. The report states what decisions were made and why a particular decision was reached.
Finally, the report should recommend courses of action to assist others that may face similar issues in the
future. Clarity ensures the proper context is stated so commanders understand the issue, decision, and
recommendation.
15 April 2009
FM 1-04
H-1
Appendix H
JAGC Lessons Learned Format
Issue: Define the issue that was confronted.
Decision: How was the issue resolved and what was the rationale?
Recommendation: What should be improved in this particular area to assist addressing this issue in the
future?
I. International and Operational Law
A. Chemical, biological, radiological, nuclear, and high-yield explosives
1. Chemical weapons/riot control agents
2. Biological weapons
3. Nuclear weapons (components or nuclear materiel such as uranium or plutonium)
4. Delivery systems for chemical, biological, radiological, nuclear, and high-yield explosives
weapons
5. High-yield explosives
B. Artifacts and war trophies
1. Artifacts
2. War trophies
C. Civil affairs
D. Civilians on the battlefield/contractors
E. Detention operations/prisoner of war issues
1. Article 5 tribunals
2. Article 78 reviews
3. Code of conduct
4. Detainees and detention operations
F. Environmental
1. Environmental damage from military operations
2. Environmental issues of concern from civilian activities or sabotage
G. International assistance/relations
1. U.S. Government/host-nation interaction
2. U.S. Government/multinational interaction
3. U.S. Government/international organization interaction
4. U.S. Government/nongovernmental organization interaction
H. Humanitarian and civic assistance
I. Human rights law
J. Information operations
K. Intelligence law
L. Interrogations
M. Law of war/law of armed conflict
1. Training
2. Violations
N. Legal basis for conducting operations
1. Security council resolutions
2. United Nations reports
O. Rule of law/judicial reform
P. Stability operations
Q. Rules of engagement and targeting
Figure H-1. Sample lessons learned
H-2
FM 1-04
15 April 2009
Lessons Learned
R. Treaties and other international agreements and arrangements
1. Asylum
2. Status-of-forces agreements
S. Weapons systems
1. Legal review on weapons
2. Lethal weapons
3. Less than lethal weapons
II. Administrative and Civil Law
A. Army Air Force Exchange Service
B. Customs and passports
C. Drawdowns
D. Ethics/joint ethics regulation
E. Freedom of Information Act and privacy acts
F. Inspections
G. Internet use
H. Investigations
1. 15-6
2. Line of duty
3. Mishap and safety investigation
4. Financial liability investigations of property loss
I. Labor and employment law
J. Law of military installations
K. Medical issues
L. Military personnel law
1. Administrative separations
2. Conscientious objectors
3. Evaluation reports
a. Enlisted
b. Officer
4. Females in combat
5. Hazing
6. Homosexuality
7. Lautenberg amendment
8. Letters of reprimand
9. Relief for cause
M. Morale, welfare, and recreation
III. Contract and Fiscal Law
A. Contract law
B. Deployed contracting
C. Fiscal law
Figure H-1. Sample lessons learned (continued)
15 April 2009
FM 1-04
H-3
Appendix H
IV. Claims
A. Foreign claims
1. Individual and corporate claims against the United States (DOS and DOJ should be notified)
2. Claims of foreign governments
3. Claims within the host nation that could affect U.S. interests or operations
B. Personnel claims
C. Solatia
V. Legal Assistance
A. Children
1. Adoption
2. Custody
3. Paternity
4. Child support
B. Citizenship
C. Debtor or creditor issues
D. Divorce
E. Powers of attorney
F. Voting
G. Servicemembers Civil Relief Act
H. Uniformed Services Employment and Reemployment Rights Act
I. Wills
VI. Military Justice
A. General orders
B. Judiciary
C. Jurisdiction
D. Magistrates
E. Provisional units
F. Searches
G. Trial defense service
H. Trial logistics
I. Urinalysis program
J. Victim witness liaison program
VII. Multinational Operations
VIII. Interagency Operations
A. Interagency coordination
B. Points of contact
Figure H-1. Sample lessons learned (continued)
H-4
FM 1-04
15 April 2009
Lessons Learned
IX. Homeland Security Operations
A. Homeland defense
1. Defense support to civil authorities
a. Military support to civilian law enforcement and Posse Comitatus Act
b. Special events
c. Civil disturbances
2. Port security and customs
B. Consequence management
1. Disaster relief
2. Weapons of mass destruction
C. Counterdrug operations
D. Counterterrorism
E. Intelligence law and policy considerations
F. Rules for the use of force
G. Status and relationship of different agencies and subagencies participating in homeland
security operations
H. Funding
X. DOTMLPF and Country Materials
A. Doctrine
B. Organization (force structure)
C. Training, the military decisionmaking process, and readiness
1. Army
a. Annexes
b. Field standing operating procedures
c. The military decisionmaking process
d. Office mission-essential task list
2. Combat training centers
a. Battle Command Training Program
b. Combined Maneuver Training Center
c. Joint Readiness Training Center
d. National Training Center
3. Predeployment training materials
4. Service academies
D. Materiel
E. Leadership
F. Personnel
G. Facilities
H. Country materials
Figure H-1. Sample lessons learned (continued)
15 April 2009
FM 1-04
H-5
Glossary
The glossary lists acronyms and terms with Army or joint definitions, and other
selected terms. Where Army and joint definitions are different, (Army) follows the
term.
SECTION I - ACRONYMS AND ABBREVIATIONS
AR
Army regulation
ARFOR
See ARFOR under terms.
ARNG
Army National Guard
ASCC
Army Service component command
BCT
brigade combat team
C2
command and control
CA
civil affairs
CJA
command judge advocate
CJCSI
Chairman, Joint Chiefs of Staff instruction
CJCSM
Chairman, Joint Chiefs of Staff memorandum
COA
course of action
DA
Department of the Army
DOD
Department of Defense
DODD
Department of Defense directive
DOS
Department of State
EPW
enemy prisoner of war
et seq.
et sequens meaning “and the following one”
FM
field manual
G-3
assistant chief of staff, operations
GC
Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time
of War
GCC
geographic combatant commander
GCMCA
general court-martial convening authority
GPW
Geneva Convention (III) Relative to the Treatment of Prisoners of War
GWS
Geneva Convention (I) for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field
GWS Sea
Geneva Convention (II) for the Amelioration of the Condition of Wounded,
Sick, and Shipwrecked Members of the Armed Forces at Sea
HMMWV
high-mobility multipurpose wheeled vehicle
HN
host-nation
I-D-D-T
interpret-draft-disseminate-train
J-2
intelligence directorate of a joint staff
J-3
operations directorate of a joint staff
J-5
plans directorate of a joint staff
15 April 2009
FM 1-04
Glossary-1
Glossary
JAGC
Judge Advocate General’s Corps
JAGCNet
Judge Advocate General’s Corps Information Network
JAGU
Judge Advocate General’s University
JP
joint publication
JTF
joint task force
LAAWS
Legal Automation Armywide System
LOGCAP
logistics civil augmentation program
MDMP
military decisionmaking process
METT-TC
See METT-TC under terms.
NCO
noncommissioned officer
OPCON
operational control
OPLAN
operation plan
OPORD
operation order
OSJA
Office of the Staff Judge Advocate
ROE
rules of engagement
RUF
rules for the use of force
S-3
operations staff officer
SJA
Staff Judge Advocate
SOP
standing operating procedures
SROE
standing rules of engagement
SRUF
standing rules for the use of force
TJAG
The Judge Advocate General
TJAGLCS
The Judge Advocate General’s Legal Center and School
TSC
theater sustainment command
U.S.
United States
UCMJ
Uniform Code of Military Justice
USAR
United States Army Reserve
USARCS
United States Army Claims Service
USATDS
United States Army Trial Defense Service
USG
United States Government
SECTION II - TERMS
ARFOR
The Army Service component headquarters for a joint task force or a joint and multinational force.
(FM 3-0)
civil affairs activities
Activities performed or supported by civil affairs that (1) enhance the relationship between military
forces and civil authorities in areas where military forces are present; and (2) involve application of
civil affairs functional specialty skills, in areas normally the responsibility of civil government, to
enhance conduct of civil-military operations. (JP 3-57)
Glossary-2
FM 1-04
15 April 2009
Glossary
civil support
(joint) Department of Defense support to U.S. civil authorities for domestic emergencies, and for
designated law enforcement and other activities. (JP 3-28)
civilian internee
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)
command and control warfighting function
The related tasks and systems that support commanders in exercising authority and direction. (FM 3-0)
detainee
A term used to reference any person captured or otherwise detained by an armed force. (JP 3-63)
end state
(joint) The set of required conditions that defines achievement of the commander’s objectives. (JP 3-0)
enemy combatant
A person engaged in hostilities against the United States or its coalition partners during an armed
conflict. (DODD 2310.01E)
enemy prisoner of war
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)
fires warfighting function
The related tasks and systems that provide collective and coordinated use of Army indirect fires, joint
fires, and command and control (C2) warfare, including nonlethal fires, through the targeting process.
(FM 3-0)
law of war
(joint) That part of international law that regulates the conduct of armed hostilities. (JP 1-02)
line of effort
A line that links multiple tasks and missions using the logic of purpose—cause and effect—to focus
efforts toward establishing operational and strategic conditions. (FM 3-0)
line of operations
(Army) A line that defines the directional orientation of a force in time. (FM 3-0)
METT-TC
A memory aid used in two contexts: 1. In the context of information management, the major subject
categories into which relevant information is grouped for military operations: mission, enemy, terrain
and weather, troops and support available, time available, civil considerations. (FM 6-0) 2. In the
context of tactics, major variables considered during mission analysis (mission variables). (FM 3-90)
mission command
The conduct of military operations through decentralized execution based on mission orders.
Successful mission command demands that subordinate leaders at all echelons exercise disciplined
initiative, acting aggressively and independently to accomplish the mission within the commander’s
intent. (FM 3-0)
operations process
The major command and control activities performed during operations: planning, preparing,
executing, and continuously assessing the operation. The commander drives the operations process.
(FM 3-0)
15 April 2009
FM 1-04
Glossary-3
Glossary
peace operations
(joint) A broad term that encompasses multiagency and multinational crisis response and limited
contingency operations involving all instruments of national power with military missions to contain
conflict, redress the peace, and shape the environment to support reconciliation and rebuilding and
facilitate the transition to legitimate governance. Peace operations include peacekeeping, peace
enforcement, peacemaking, peace building, and conflict prevention efforts. (JP 3-07.3)
protection warfighting function
The related tasks and systems that preserve the force so the commander can apply maximum combat
power. (FM 3-0)
rule of law
A principle under which all persons, institutions, and entities, public and private, including the state
itself, are accountable to laws that are publicly promulgated, equally enforced, and independently
adjudicated, and that are consistent with international human rights principles. (FM 3-07)
rules of engagement
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)
stability operations
(joint) 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)
status-of-forces agreement
An agreement that defines the legal position of a visiting military force deployed in the territory of a
friendly state. Agreements delineating the status of visiting military forces may be bilateral or
multilateral. Provisions pertaining to the status of visiting forces may be set forth in a separate
agreement, or they may form a part of a more comprehensive agreement. These provisions describe
how the authorities of a visiting force may control members of that force and the amenability of the
force or its members to the local law or to the authority of local officials. (JP 3-16)
sustainment warfighting function
The related tasks and systems that provide support and services to ensure freedom of action, extend
operational reach, and prolong endurance. (FM 3-0)
warfighting function
A group of tasks and systems (people, organizations, information, and processes) united by a common
purpose that commanders use to accomplish missions and training objectives. (FM 3-0)
Glossary-4
FM 1-04
15 April 2009
References
Field manuals and selected joint publications are listed by new number followed by
old number.
REQUIRED PUBLICATIONS
These documents must be available to intended users of this publication.
FM 1-02, Operational Terms and Graphics. 21 September 2004.
JP 1-02, Department of Defense Dictionary of Military and Associated Terms. 12 April 2001.
RELATED PUBLICATIONS
These documents contain relevant supplemental information.
JOINT AND DEPARTMENT OF DEFENSE PUBLICATIONS
CJCSI 3121.01B, Standing Rules of Engagement/Standing Rules for the Use of Force for U.S. Forces
(S). 13 June 2005.
CJCSM 3160.01B, Joint Methodology for Estimating Collateral Damage and Casualties for
Conventional Weapons: Precision, Unguided, and Cluster (U). 31 August 2007.
DOD Directive 2310.01E, The Department of Defense Detainee Program. 5 September 2006.
DOD Directive 3025.1, Military Support to Civil Authorities (MSCA). 15 January 1993.
DOD Directive 3025.12, Military Assistance for Civil Disturbances (MACDIS). 4 February 1994.
DOD Directive 3025.15, Military Assistance to Civil Authorities. 18 February 1997.
DOD Directive 5525.5, DOD Cooperation with Civilian Law Enforcement Officials. 15 January 1986.
DOD Instruction 5515.08, Assignment of Claims Responsibility. 11 November 2006.
JP 3-0, Joint Operations. 17 September 2006.
JP 3-07.3, Peace Operations. 17 October 2007.
JP 3-16, Multinational Operations. 7 March 2007.
JP 3-28, Civil Support. 14 September 2007.
JP 3-57, Civil-Military Operations. 8 July 2008.
JP 3-63, Detainee Operations. 30 May 2008.
ARMY PUBLICATIONS
AR 15-6, Procedures for Investigating Officers and Boards of Officers. 2 October 2006.
AR 27-3, The Army Legal Assistance Program. 21 February 1996.
AR 27-10, Military Justice. 16 November 2005.
AR 27-26, Rules of Professional Conduct for Lawyers. 1 May 1992.
AR 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees.
1 October 1997.
FM 1, The Army. 14 June 2005.
FM 2-22.3, Human Intelligence Collector Operations. 6 September 2006.
FM 3-0, Operations. 27 February 2008.
FM 3-05.40, Civil Affairs Operations. 29 September 2006.
FM 3-07, Stability Operations. 6 October 2008.
15 April 2009
FM 1-04
References-1
References
FM 3-24, Counterinsurgency. 15 December 2006.
FM 3-90, Tactics. 4 July 2001.
FM 3-90.6, The Brigade Combat Team. 4 August 2006.
FM 4-02.12, Health Service Support in Corps and Echelons Above Corps. 2 February 2004.
FM 4-93.4, Theater Support Command. 15 April 2003.
FM 5-0, Army Planning and Orders Production. 20 January 2005.
FM 6-0, Mission Command: Command and Control of Army Forces. 11 August 2003.
FM 6-20-10, Tactics, Techniques, and Procedures for the Targeting Process. 8 May 1996.
FM 27-10, The Law of Land Warfare. 18 July 1956.
FMI 3-0.1, The Modular Force. 28 January 2008.
FMI 5-0.1, The Operations Process. 31 March 2006.
OTHER PUBLICATIONS
Arms Export Control Act of 1976.
Competition in Contracting Act of 1984.
Department of Defense Appropriations Act, 2007.
Detainee Treatment Act of 2005.
Federal Freedom of Information Act of 1966.
Foreign Assistance Act of 1961.
Foreign Claims Act of 1942.
The Geneva Conventions of 1949.
Law of War Documentary Supplement. Charlottesville, Virginia: The Judge Advocate General’s Legal
Center and School, 2007.
Law of War Handbook. Charlottesville, Virginia: The Judge Advocate General’s School, 2005.
Manual for Courts-Martial.
Military Commissions Act of 2006.
Operational Law Handbook. Charlottesville, Virginia: The Judge Advocate General’s Legal Center
and School, 2008.
Posse Comitatus Act of 1878.
Privacy Act of 1974.
Robert T. Stafford Disaster Relief Act of 1974.
Rule of Law Handbook. Charlottesville, Virginia: Center for Law and Military Operations, 2008.
Servicemembers Civil Relief Act of 2003.
U.S. Code, Title 10, Armed Forces.
U.S. Code, Title 14, Coast Guard.
U.S. Code, Title 22, Foreign Relations and Intercourse.
U.S. Code, Title 32, National Guard.
U.S. Code, Title 42, The Public Health and Welfare.
REFERENCED FORMS
DA Form 2028. Recommended Changes to Publications and Blank Forms.
DA Form 4137. Evidence/Property Custody Document.
References-2
FM 1-04
15 April 2009
|