JAG At Center Of Lawfare Vs. Warfare Conflict

Judge Advocate General (JAG) officers are central to many of the debates and difficulties we experience in Iraq and Afghanistan. Their guidance, training, and advice regarding rules-of- engagement (ROE) is seen by many experienced combat soldiers and Marines, and law of war experts, as inadequate to the challenges and mission.

Service as a JAG officer is remote from the glamour in the popular TV series. Their duties include many mundane fiscal or contractual issues, for example. As one young JAG officer commented,

I don’t know of any other legal job where you get this many hands-on experiences in so many different areas this early in your career.

This may well serve them in their later civilian careers, but their service to the front-lines is too often deficient.

This isn’t just a matter of restrictive or impractical ROE, but of execution of other front-line responsibilities.

For example, in dismissing criminal charges against JAG Captain Randy Stone for inadequate investigation of Haditha – noting this as his first such assignment and his “attentiveness to training the Marines in the law of war and rules of engagement” -- LtGen James Mattis did distinguish these charges from a lesser fault of possibly being “remiss.” In Stone’s statement to his Article 32 hearing, “Stone said he received almost zero training for his job before joining the battalion in Iraq in September 2005.” Mattis enjoined Stone, “It is incumbent on him to ensure that the lessons he has learned provide guidance for future judge advocates…”

More frequently we hear from combat soldiers and Marines that JAG officers have designed or interpreted rules-of-engagement in an excessively restrictive or impractical way.

The November 2006 report to the Surgeon General by the Mental Health Advisory Team in Iraq found that:

Every groups of Soldiers and Marines interviewed reported that they felt the existing ROE tied their hands, preventing them from doing what needed to be done to win the war.

A soldier expresses his disgust:

I can’t even tell you how pissed it makes me to hear a JAG officer suck in breath as he tries to think real hard how to explain the murky depths of our ROE. A system that used to be a way of allowing soldiers to avoid hurting civilians by using certain weapon systems at certain times has once again degenerated into a complex “Cover Your Ass” legal trick for higher command. Believe me, it isn’t there because Colonels and Generals WANT us to fight this way, it is there because YOU do.

His last point does get to one of the difficulties faced by JAG. ROE reflect more than just the immediate conditions faced on the front-line, but also the clarity of the overall mission and the restraints deemed important in agreed laws of armed conflict.

The problem occurs when the mission decided by political and military leadership is hazy or poorly formulated, as in whether our troops are to quell militias or not, or eliminate entrenched enemy sanctuaries, or even put first priority upon their own safety.

This is compounded when, as one military law expert told me, JAG officers aren’t even versed in more expansive domestic guidelines and court decisions governing FBI or police use of deadly force.

Some posit that counterinsurgency requires that the troops’ own safety should be secondary. That is nonsense. Successful counterinsurgency does not preclude use of deadly force to protect oneself and comrades or to allow enemies to act with impunity. The, finally, energetic offensives since General Petraeus took command witness that fact.

Interviews with JAG officers for a review of the issues in the Christian Science Monitor, for example, had this exchange.

Another JAG officer told me of "statistics" and "studies" showing that soldiers in Iraq have itchy trigger fingers. Yet when I asked for the studies to support these statistics, none were provided. Several JAG officers expressed concern that CNN (yes, they mention that network byname) would report too much carnage if the restrictions did not exist.

Holding fire may appease CNN, but it can only delight and encourage America's terrorist enemies and protract the war in Iraq.

Among the faults in prior strategy that General Petraeus set to correct is that soldiers fighting insurgents and terrorists don’t have clear guidance on the use of force.

Accordingly, for example, in March 2006, Major General Black, Army Judge Advocate General, launched a survey among JAG officers “to assess how Rules of Engagement training is being conducted throughout the Army.”

It’s more than a bit late for that, as it is for the Army to rediscover counterinsurgency doctrine ignored since our hard-earned competence in Vietnam under General Abrams.

Hopefully, not too late.