Guest Columnists

CRE Reader Responds to Article on Military Regulation of Field Commanders
In a recent story in its Emerging Regulatory Issues section, CRE reported on a November 12, 2001 Legal Times article that found that one of America's first lines of defense is its deployment of attorneys from the Army's Judge Advocate General (JAG). JAG officers literally sit side-by-side with field commanders, drafting rules of engagement and participating in targeting decisions. One of CRE's readers, a retired U.S. Army Lieutenant Colonel now affiliated with the George Mason University School of Law, wrote to CRE to express the view that expedient legal analysis regarding rules of engagement is critical to modern military planning/action, particularly as the U.S. faces threats from non-traditional sources, as in Afghanistan.

Guest Column Submission: Military Regulation of Field Commanders

Whether or not lawyers are sitting in the same foxhole with their commanders, the necessity to understand the legal implications of military action is part and parcel of victory achieved the American way. Without forging too deeply into history, one could argue that international law and the law of armed conflict covering state-to-state armed conflicts are fairly well-developed, which allows lawyers responsible for drafting rules of engagement (ROE) to do so with a reasonable comprehension of what the battlefield will look like.

When our military steps outside the standard state-to-state context, however, those foundations of law begin to shift and often disappear. One of our military's strengths is its ability to operate within the enemy's "decision cycle"; this means that we can make and implement decisions much more quickly than our adversary, retaining the initiative and continually keeping him on his heels. To maintain that advantage calls for a clear line of communication between commanders and those drafting ROE for upcoming missions. Thus, commanders dealing with new international conflict situations require a short leash on their lawyers.

The importance of maintaining this line was recently seen in news reports that indicated that ROE developed in Tampa was hampering military operations to capture Taliban and Al-Qaeda groups before or as they crossed the Pakistani border. A key problem was the need to pass information up and down the chain of command, slowing the decision cycle. This is a new kind of "war" and old concepts of front-lines and who guards them must adjust to encompass the new elements. If that means lawyers sharing the commander's HMMWV, so be it.