Marine Operational Law
by LtCol Thomas A. Wagoner
An emerging concept.
The credo, “every Marine a rifleman,” is derived from the Marine Corps’ foundation as a warfighting organization. The warrior ethos is drilled into every Marine at his initial training and repeated throughout his career. The primary focus on combat operations is at the core of the Marine Corps’ existence. In the same vein, the current operating environment demands that all Marine judge advocates (JAs) be operational lawyers. The JA field in today’s Marine Corps has made notable strides to update the manning, training, and doctrine to address the operational needs of our commanders and Marines. There is, however, work to do in order to sharpen our focus on operations and its legal progeny, operational law.
Operational law is defined generally as “that body of domestic, foreign, and international law that directly affects the conduct of military operations.”1 Specifically, today’s operational lawyer needs to be versed not only in international law but also military justice, legal assistance, contracting and fiscal law, and claims—all in a deployed environment. Today’s deployed JA is expected to address targeting questions involving means and methods of warfare and must be able to craft and discern rules of engagement. Questions involving status of enemy prisoners of war, foreign citizens and, the most difficult issue on today’s battlefield, unprivileged belligerents require an ability to comprehend and articulate difficult provisions of the Geneva Conventions. Issues such as citizenship, relationships with nongovernmental organizations, emerging weapons technologies, and information operations in an uncertain and chaotic environment demand sound, reasoned legal advice from the JA.
This paradigm shift toward legally intensive operations has been recognized by certain commanders for at least a decade. Marine leadership has recognized that the global war on terrorism (GWOT) has necessitated a change in operating posture. The question for our commanders and their JAs is whether they are prepared to shift their finite assets from a traditional military justice focus to one concentrating on operational law.
What We Have Learned So Far
Operations in Afghanistan and Iraq have highlighted the utility of the operational lawyers to their most important clients, the commanders and the Marines they lead. The leadership of I Marine Expeditionary Force (I MEF) made a decision in Operation IRAQI FREEDOM II (OIF II) to place a JA at the regimental- and battalion-level staffs to address the legal issues that these dispersed commands would face. The following quotes demonstrate the value that the commanders placed on the lawyers in their staffs. From a 1st Marine Division (1st MarDiv) battalion commander, “Attaching SJAs [staff judge advocates] at the battalion level and their application out here is one of the best innovations I’ve seen in my time in the Corps.” From another, “Had we not had an SJA on staff, we would have had to request one about 6 days a week or invent one.” From a 2d MarDiv battalion commander, “I did not know what a combat multiplier he would be in this environment [security and stability operations] when we began, but would be disingenuous if I were to in any way recommend anything other than the status quo for future commanders.” Finally, from a regimental commander, “We can’t go back to the old ways of using the SJA, they need to be fully integrated into the combat team and know the ground, the enemy, and the commander’s intent.” These commanders’ comments, as well as after-action reports compiled at the Center for Law and Military Operations, The Judge Advocate General’s Legal Center and School (TJAGLCS), Charlottesville, VA, highlight the myriad of tasks that JAs are performing in combat operations today. JAs are involved in detainee handling and training, managing interpreters, overseeing disbursing and claims, tracking impounded property, advising on general and special courts-martial (including capital cases), rules of engagement training at the unit level, attachments and Iraqi allies, contract negotiations, gifts, and overall civil-military operational guidance.
How We Got Here
The “modern era” of JA practice began during Vietnam. The overwhelming focus of those Marine JAs, like their Army counterparts, however, was on military justice. The My Lai massacre in 1968, and its subsequent investigations into the actions of 1LT William Calley, USA and his unit, however, necessitated an increased focus on what was to become known as operational law. The formal response from the Department of Defense (DoD) lawyers was the creation of the DoD Law of War Program (LOWP) enshrined in DoD Directive 5100.77.
Operation URGENT FURY in Grenada highlighted to the Army what many JAs already knew; lawyers need to be fully incorporated into the planning and operations of their units. Recognizing this situation, the Army took a comprehensive look at what their lawyers needed to know and how they could become effective advisors to their operational commanders on the plethora of legal matters that arise during combat operations.
At the same time the Army was creating the staffing and training for the nascent field of operational law, the Marine Corps was in the process of transforming the way it operated as an organization. Under the guidance of Gen Alfred M. Gray, the Marine Corps adopted a new theory of fighting—maneuver warfare. Considered unnecessary or repackaged German tactics at the time, the now accepted doctrine has suited the Marine Corps well for the last two decades.
Unfortunately, the Marine Corps legal community did not make substantive changes consistent with maneuver warfare doctrine. Military justice and legal assistance remained the order of the day. The rapid disintegration of the Iraqi Army in 1991 did not require extensive, ongoing operational law practice. The relatively new challenges encountered in Somalia did, however, highlight the increasing need for operational law expertise.
The GWOT has precipitated a paradigm shift and produced a large contingent of Marine JAs with extensive experience in deployed environments supporting combat operations. What began with 2 Marine JAs on the ground in Afghanistan has now grown to the deployment of over 100 active and Reserve JAs to support operations in Iraq, Afghanistan, Djibouti, and the Asian tsunami relief efforts. These are assets that the Marine Corps must exploit. This dynamic, coupled with the fact that operational commanders have grown to know and trust their JAs, will produce battle-hardened teams of tested quality. Exemplary of this teamwork are the comments from an OIF II battalion commander, “When Capt C makes his recommendation, I know he’s doing so as a member of the battalion, not a potentially marginally interested outsider who is riding circuit . . . [w]hen he tells me something should be avoided. I know he’s doing so as a member of the team.” If Grenada was the Army legal community’s epiphany on operational law, OIF and the GWOT should be the Marine Corps’.
Doctrine, Training, and Staffing So Far
In 2003 the Commandant signed Marine Corps Order 3300.4 (MCO 3300.4), Marine Corps Law of War Program. This document lays out the fundamental requirements for multiple levels of training throughout the Marine Corps regarding the law of war. Enclosures contain the primary training objectives, ranging from entry-level training for recruits and officer candidates, to detailed training, ostensibly for JAs. Throughout the document are references to operational law sources to ensure quality legal instruction. This order is the best single document with which to instruct and train the law of war to our Marines and is a great opening to the operators’ doors.
Another positive development in Marine Corps operational law was the creation of the Basic Operational Law Training at the Naval Justice School (NJS). This 1-week course for newly assessed JAs, addresses the vast majority of substantive legal issues that a junior JA is likely to encounter in his initial billet. This course, required for the JA military occupational specialty, has been well received throughout the Operating Forces and has been taken on the road to share the required knowledge with JAs who graduated NJS before the course began. Today, no JA will enter the Operating Forces before understanding the legal basis for the use of force, rules of engagement, or the fundamental requirements of conventional international law, including the Geneva Conventions and the Hague Regulations. The issue of JA manning in the GWOT is evolving. After an arguably low staffing of the maneuver elements during OIF I, the discussion relating to the allocation of JA resources has now evolved to questions like “how many” and “where.” The groundbreaking work done by the JAs during OIF II established a new approach to legal support of operations. This seismic shift speaks volumes to the work of those JAs who have proven the concept of operational law as a true force multiplier for the commands.
Work To Be Done
The improvements made during the last 3 years should only be the start of the transition to an operationally trained and focused JA community. While MCO 3300.4 is a solid document, it does not mandate the permanent staffing necessary to accomplish the far-reaching goal of universal law of war training. The difficulty lies in the requirement to complete the training without an increase in boat spaces to accomplish it. To evaluate the operational law manning structure in the Marine Corps, one looks to Marine Corps Warfighting Publication 4–11.8, Services in an Expeditionary Environment. This guide to combat service support defines the staff requirements of the Marine air-ground task force and is the closest thing to doctrine that the JA community has in regard to duties. The publication lists the cornucopia of tasks assigned to JAs who are assigned as operational lawyers but, regarding manning, says only that “one or more lawyers with minimal clerical support [are needed] to fulfill MEF requirements for training, exercise, and contingency operation support.” These figures obviously pale in comparison to the staffing of a typical military justice section that consists of a military justice officer, senior trial counsel, military justice chief, one or more trial counsel, and one or more legal clerks. In addition, the defense section consists of a senior defense counsel, one or more defense counsel, and one or more legal clerks. While one may make a colorful argument that such figures are appropriate for peacetime, garrison operations, the contemporary operating environment and increasingly demanding deployment tempos will likely replace normal garrison operations as the norm.
Beyond manning, legal doctrine remains problematic. Comparison with the Army reveals a lack of substantive operating doctrine for Marine JAs. The Army’s Field Manual 27–100 (FM 27–100), Legal Support to Operations, is much broader both in its application and operational relevance. This leaves a choice for the Corps’ lawyers—adapt FM 27–100 or create a similar doctrine. Fleet Marine Force Manual 1–10, The Commanders Handbook on the Law of Naval Operations, might be a starting place for many of the operational aspects of legal doctrine. Either way, the JA community must formalize its doctrine.
Training
One aspect of operational law training where the Marine Corps is lacking is in utilizing lawyers to imbed and evaluate substantive legal issues into training. There are no lawyers assigned as exercise evaluators at Twentynine Palms or at the MEF special operations training groups (SOTGs), and few real-world legal issues are embedded into training. Compare this to the Army, which has two or three lawyers assigned to each of their combat training centers and who are specifically tasked with introducing legal friction into training. The staffing and training the Army affords its lawyers is clearly the direction the Marine Corps should be headed.
Another aspect of operational law training that is lacking in the Marine Corps today is at our resident professional schools. Marine Corps University (MCU), for example, has no permanent legal presence on the faculty. Plans are currently underway to address that shortfall. The best answer, however, is to place experienced JAs on the faculty to incorporate all of the facets of operational law into the curriculum.
The subject of staffing is a contentious and highly specialized issue dependent upon and affected by many factors. One’s opinion on proper manning is usually traced to one’s previous assignments. The starting point, however, should be what our commanders want and need. Traditionally, a combination of superb work by the JAs assigned to the staffs, as well as other priorities for the commanders, led to an acceptance of the status quo and was not seen to precipitate change. If a JA was not assigned, he was not missed. The paradigm shift and the proliferation of legal issues on today’s battlefield has created a need for timely, accurate, and trusted legal advice for the commanders and their Marines below the division level.
The most pressing staffing issue exists at the tactical level of Marine Corps operations. The initial stages of OIF are the starkest example to date. Reasonable estimates place at 12 the number of JAs with I MEF and other attachments that invaded Iraq. There were other Marine JAs in Kuwait supporting I MEF (Rear) and its major subordinate elements as well as coalition forces land component command. Compare this number to a typical Army division that deployed with 19 to 30 JAs each. This comparison is even harsher considering 1st Mar Div’s situation. After the SJA was wounded on the third day of operations, 1st MarDiv was left with one JA for an entire division of three maneuver regiments. While the 1st MarDiv deputy SJA performed commendably, this is clearly a situation that cannot be repeated.
The Way Ahead
The future of operational law in the Marine Corps is truly at a crossroads. Many of the following recommendations would require increases in JA staffing and a reallocation of resources. In a world of limited assets, this is clearly the largest hurdle. Change is never easy, but the time to implement change is now.
The doctrinal revisions mentioned above are time-consuming and manpower intensive, but the JA community needs to address this fundamental issue if our goals are to be achieved. With approved doctrine, JAs can better man, train, and equip to perform our roles and missions for commanders and staffs. Whether participating in the planning process or manning a targeting cell, commonly accepted and understood doctrine will tell the operators, who are more doctrinally schooled, that JAs can and should have permanent roles on their staffs. Our training requirements, while not broken, need to be addressed. For the lawyers themselves, the next step is for the Marine Corps to follow basic education in operational law with the advanced courses in operational law taught at the Service JA schools. By attending these courses, our JAs will be better equipped to teach the Marine Corps LOWP as well as work more seamlessly on joint and combined staffs.
To support the operational law training of our Marines, lawyers should be added to the staffs at the Tactical Training Evaluation Control Group, Twentynine Palms and the MEF SOTGs. The primary duty of these evaluators would be to introduce into training the valid and current legal frictions that our Marines are facing in deployed environments. The goal to train as we fight should be considered as important in legal terms as it is in fire support and convoy operations. Detainee handling or claims procedures should never be seen for the first time in an active theater of operation.
JAs should be permanently assigned to MCU. While the Marine Corps Reserve Law of War Detachment does a fine job teaching its law of war block instruction, nothing can replace having dedicated faculty who are always available to the hundreds of students enrolled every year. In addition, these instructors would be the eyes and ears for the JA community to identify emerging legal issues from the Operating Forces and in the schoolhouse. Our future leaders deserve nothing less than our best.
Finally, we must resolve operational manning issues. To do so, JAs and commanders must work together to create and implement billet spaces. This is clearly the most expensive and difficult provision of those listed above, but these are bills that need to be paid. One answer to the manning difficulties is to seek a 5 percent increase in JA manning during the upcoming fiscal year appropriations. These 20 additional billets should be directly earmarked to the Operating Forces at the MEFs for follow-on staffing to the maneuver forces. Though expensive, these additional billets will prevent our commanders from having to make the Hobbesian choice of conducting courts-martial in the continental United States or training and planning for operations overseas.
Following OIF III there will be sufficient anecdotal evidence, data, and experience to answer definitively how far down the chain of command we push the lawyers. Recent experience appears to validate placement at the battalion level, but more or less might be required. The results from OIF III should be given similar consideration in order for our Corps’ leadership to appropriately man their units for the very likely conduct of future deployments.
It’s Up to the Commanders
As with all decisions in the Corps, the final one is made by the commander. There are numerous issues that directly impact whether operational law becomes the focus of Marine JAs. To implement the ideas mentioned above the Corps would have to add or reallocate boat spaces. Based upon current force structures, and in view of the fact that operations will remain legally intensive, it is likely that additional legal billets will be required. Certainly, these billets come at a cost, but this cost seems slight when the benefits gained take the form of better trained and supported commanders and units.
The sophistication of today’s commanders in understanding the legal issues of the modern battlefield is truly impressive. They understand that actions taken at the tactical level can have strategic implications. A lawyer in every fire team, however, is not the antidote for potential law of war violations. We should never advocate for a structure that creates “paralysis by analysis,” legal or otherwise. As is the case of all things martial, however, training is the key. If we are not structured and trained like we fight with operational law we are but one fire team away from another mosque shooting or worse. The question for our commanders is where they want to allocate their legal resources to best support their commands while adhering to our legal obligations in future operations.
Note
1. FM 27–100, Department of the Army, 1 March 200, p. 3–2.
>LtCol Wagoner is an Assistant Professor, International and Operational Law Department, TJAGLCS.
