Summary

The new Total Force must include non-combat capabilities for operations other than war to complement its warfighting capabilities. These capabilities must rely on more effective integration and utilization of civilian soldiers and military lawyers in a seamless Total Force.

· An interagency LA command should be created to provide the specialized units and personnel required for domestic emergencies and nation assistance.

· The combat and non-combat forces of the USAR and ARNG should be realigned to match capabilities with missions.

· The law should be changed to allow reservists with the specialized skills needed in operations other than war to become operational as part-time diplomat warriors without first having to be mobilized.

· Military lawyers should be utilized as civil-military officers to advise commanders on matters of military legitimacy, to advise both military counterparts and civilian authorities in emerging democracies on democracy, human rights, and the rule of law, and to assume military justice functions (the court martial) to allow their active component counterparts to focus on OPLAW issues.

· Military legitimacy should be incorporated in leadership training from ROTC to senior service schools, with reservists, especially military lawyers, assuming a greater role in teaching at all levels.

Emphasis should be placed on teaching human rights, ROE, CA functions, negotiating skills, and inter-agency training.

Notes

1. Charles E. Heller, Twenty-First Century Force: A Federal Army and A Militia, (Carlisle Barracks, PA, Strategic Studies Institute, US Army War College, 1993), p. 64.

2. See Reserve Component Programs, Fiscal Year 1990: Report of the Reserve forces Policy Board to the President and Congress, Office of the Secretary of Defense, 2 March 1991, p.

3. For the 20 CA functional areas, see n. 15 to Chapter 2.

4. See discussion of CA missions in Barnes, 'Civil Affairs: Diplomat Warriors in Contemporary Conflict', Special Warfare (Winter 1991), p. 4.

5. Carnes Lord, Project Director, Civil Affairs: Perspectives and Prospectus (draft, February 1993), Institute for National Strategic Studies, National Defense University, p. 9-12 (hereinafter CA Perspectives).

6. Wayne A. Downing, 'Civil Affairs Wins the Peace', letter to the editor, Military Review (February 1994), pp. 3, 64.

7. George A. Joulwan, 'Operations Other Than War: A CINC's Perspective', Military Review (February 1994), p. 5.

8. Editorial by Jim Hoagland, 'Refugees Drive Post-Cold War Polities', The State (Columbia, SC), 4 May 1993, p. 11A.

9. Jim Hoagland, 'Using Military for Disaster Relief', The State (Columbia, SC), 17 May 1991, 14-A. Jim Hoagland's proposal for military disaster relief was endorsed by James Walsh of Time, who suggested a multinational rapid-deployment disaster relief force headed by Japan, which he thought might be more acceptable to Third World countries suspicious of American military actions (Walsh, 'There Must Be a Better Way', Time, 27 May 1991, p. 33). For legal implications, see Barnes, 'Civic Action, Humanitarian Assistance, and Disaster Relief: Military Priorities in Low-Intensity Conflict', Special Warfare (Fall 1989), p. 34.

10. Andrew S. Natsios, 'The International Humanitarian Response System', Parameters (Spring 1995), pp. 68, 79.

11. Following Hurricane Hugo in South Carolina and the California earthquake in 1989, Mayor Riley of Charleston, SC, Congressman Arthur Ravenel, Jr., of South Carolina and Congressman Leon Panetta of California all agreed that FEMA (the civilian agency in charge of domestic disaster relief) had made a mess of things and that the Army should be given primary responsibility for disaster relief. See Lee Bandy, 'FEMA's Mismanagement A Disaster, Critics Say', The State (Columbia, SC), 2 May 1990, p.

12. Heller, n. 1 supra, at pp. 65-66, 79.

13. Legal and regulatory restrictions on the use of federal troops to assist state

disaster relief operations, the lack of uniform DOD command and control structures, and layers of federal bureaucracy within FEMA make it all but impossible for Army reservists to assist Army National Guard units on an emergency basis. See 42 USC 5121 et seq.; DOD Directive 3025. 1 (Use of Military Resources During Peacetime Civil Emergencies Within the US); and AR 500-6; (Disaster Relief).

14. For the 20 CA functional specialty areas see n. 15 in Chapter 2.

15. The complex laws and regulations that make it difficult and time consuming for governors (who command STARCS) to obtain the assistance of federal forces in a domestic disaster (see n. 13, supra) also make it impossible for a governor to command such federal forces. Integrated command occurs only when the President declares a national emergency and federalizes the National Guard, effectively removing them from the command of the governor and placing them under the control of the federal forces deployed to provide emergency assistance.

16. Heller, n. 1 supra, p. 79.

17. Ibid. at p. 65.

18. For references to The Posse Comitatus Act see n. 34 to Chapter 2.

19. The Air National Guard is creating a CA capability in the STARC; like the Marines (see note 32, infra), it has recognized the close relationship between the SJA and the CMO and is training its senior legal advisor to provide CA as well as legal support. CA Perspectives, n. 5 supra, supports the need for CA personnel to assist civil authorities in domestic emergencies, and the need for 'positive co-ordination' with the STARCs.

20. Charles Heller has recommended a mix of reserves, using the overseas deployment training program (ODT), and active component forces for a forward presence; see Heller, n. 1 supra at pp. 70-71.

21. See John B. Haseman, 'The FAO: Soldier-Diplomat for the New World Order', Military Review (September 1994), p. 74. The importance of the FAO in ethnic conflict has been emphasized by William A. Stofft and Gary L. Guertner in 'Ethnic Conflict: The Perils of Military Intervention', Parameters (Spring 1995), pp. 30, 40.

22. The ten Special Operations Activities assigned to USSOCOM by 19 USC 167(j) are: direct action, strategic reconnaissance, unconventional warfare, foreign internal defense, civil affairs, psychological operations, counterterrorism, humanitarian assistance, theater search and rescue, and 'other activities'. All but direct action and strategic reconnaissance activities involve political objectives that require public support. These special operations missions are discussed in JCS PUB 3-05, Chap. 2.

23. Downing, no. 6 supra at p. 63.

24. CA Perspectives, no. 5 supra, at 12-13.

25. There have been other proposals to provide inter-agency educational opportunities for diplomat warriors, including a LIC 'schoolhouse' at the Foreign Service Institute or National Defense University. See William J. Olson, 'Organizational Requirements for LIO', Military Review (January 1988), p. 16.

26. See FM 100-20, Military Operations in Low Intensity Conflict (Coordinating Draft, USC&GSC, Fort Leavenworth, Kansas, January 1988), pp. 1-10. For

a discussion of the merits of a SAF in LIC, see William P. Johnson and Eugene N. Russell, 'An Army Strategy and Structure', Military Review (August 1986), p.

27. During the time of war or declared national emergency the Secretary of the Army can call up reservists or reserve units pursuant to Section 10 USC 672 (a); otherwise the Secretary can call up reservists involuntarily for a period not exceeding 15 days a year pursuant to Section 10 USC 672(b). To order reservists to duty for an indefinite period during peacetime the President must exercise his 200K callup authority under Section 10 USC 673(c). There is currently no legal means of involuntarily ordering reservists to active duty short of mobilization during war or national emergency.

28. Downing, n. 6 supra at p. 63.

29. For the expanded role of military lawyers as advisors on law and legitimacy, see Barnes 'Legitimacy and the Lawyer in Low Intensity Conflict: Civil Affairs Legal Support', The Army Lawyer (October 1988), p. 5.

30. FM 101-5, Staff Organization and Operations, Department of the Army (May 1984), pp.3-11, 3-12, 3-31, 3-32.

31. JCS PUB 3-57, pp.II-3; IV-6; FM 41-10, Civil Affairs Operations, Department of the Army (1985), pp. 1-4, 6-10.

32. Unclassified message from the Commanding General of the Marine Corps Combat Development Command, Quantico, VA, dated 7 April 1988. The Air National Guard is also making the legal advisor in the STARC the CA advisor as well (seen. 19 supra).

33. See Ted B. Borek, 'Legal Services During War', 120 Military Law Review 19, 35-40 (1988); cited in Barnes, 'Legitimacy and the Lawyer in Low Intensity Conflict: Civil Affairs Legal Support', The Army Lawyer (October 1988), pp. 8-9.

34. See Jeffrey F. Addicott and Andrew M. Warner, 'JAG Corps Poised for New Defense Missions: Human Rights Training in Peru', The Army Lawyer, February 1993, p.

35. Jeffrey F. Addicott and Andrew M. Warner, 'JAG Corps Poised for New Defense Missions: Human Rights Training in Peru' The Army Lawyer (February 1993), p. 78.

36. Joulwan, n. 7 supra, at p. 6.

37. 'International Law Note: The Role of the Military in Emerging Democracies', The Army Lawyer (December 1992), pp. 28.

38. Ibid, at p. 30.

39. CA Perspectives, n. 5 supra, pp. 23-24.

40. See 'Enforcement: command influence and military justice', in Chapter 5, and nn. 45-52 to Chapter 5. Judge advocates in the US Air Force Reserve are already participating in courts-martial as trial and defense counsel and judges.

41. S. L. Arnold and David T. Stahl, 'A Power Projection Army in Operations Other Than War', Parameters (Winter 1993-94), pp. 13-15.

42. Army Regulations 27-10, Military Justice (December 1989), para. 19-7(c).

43. See Student Text, Military Law and Justice (Required Readings in Military Science IV, Military Qualifications Standards I, Precommissioning Require-

ments, June 1992). The introduction to the text describes military law as it relates to the legitimacy and leadership:

Military law has two major purposes. First, it provides the minimum standards for determining the legitimacy of military operations and activities. Second, it provides the standards, rules, and procedures for maintaining good order and discipline in the armed forces. Part I of this Student Text, Military Law, begins with the US Constitution as the foundation of military law and justice, and then examines the standards of conduct required for military legitimacy in war and peace. Part II, Military Justice, examines the standards, rules, and procedures that are required to maintain good order and discipline in our armed forces.

Military operations are an extension of the political process. Like all government activities in a democracy they must be perceived as legitimate to be effective. Legitimacy is measured by public perceptions of moral authority - authority that must rest upon the rule of law. But the law can never be a substitute for moral choice. Values such as those in the Professional Army Ethic are part of the fabric of legitimacy. Law and values provide the context for the tough discipline that must be made in an often unforgiving world.

This Student Text provides more than the standards, rules, and procedures that constitute military law and justice. It also provides historic background and practical applications to help you understand the spirit as well as the letter of the law. That spirit is embodied in the fundamental principles of human rights, democracy, and the rule of law - principles which are enshrined in the US Constitution. The Constitution and the values it represents are the bedrock of military legitimacy.

As an Army officer you must understand the rule of law and its relationship to the Professional Army Ethic. Your oath of office requires that your ultimate loyalty be to the Constitution, a duty that requires an understanding of the military as both a shield and a sword for Constitutional rights. This text will help you relate the rule of law to the traditional military values of loyalty, duty, integrity, and selfless service. It will help you understand the meaning of legitimacy in the profession of arms.

44. Charles Heller has advocated USARF Schools supporting ROTC; see Heller, n. 1 supra, at p. 61.

45. See William Hagan, 'The Officer Corps: Unduly Distant From Military Justice?', Military Review (April 1991), p. 51. Colonel Hagan has argued that a lack of understanding (of the proper role of command influence) is a large part of the reason why commanders are frustrated with the complexities of military justice. To help alleviate the problem Colonel Hagan has suggested that ROTC cadets and OCS officer candidates should receive military justice training commensurate with that provided at the United States Military Academy at West Point. The 'Student Text' mentioned at n. 43 supra was prepared with that purpose in mind, as well as to relate the law to legitimacy and leadership, as set forth in n. 43. supra.

46. General McCaffrey covered these points in his keynote address to the School of the Americas on 10 August 1994, The National Armed Forces as Supporters of Human Rights (see references at n. 55 to Chapter 1, and nn. 57-60 toChapter 4 supra). He completed his address with the following observation on civil-military relations and military legitimacy (without using the term): 'Our experience has been that our citizens are supportive of the armed forces if they think highly of us. How do they form their impressions of us? They form them when their sons and daughters - our soldiers, sailors, airmen, and Marines - go home and tell their families and friends that they are treated

well while they serve. They form them every time they come in contact with the armed forces: when they see a soldier travelling on leave; when they see a military convoy; and when they live beside a military base. Finally, they form them when they see us in action in a conflict or in a peaceful mission.' (McCaffrey at p. 12).

47. William A. Stofft and Gary L. Guertner, 'Ethnic Conflict: The Perils of Military Intervention', Parameter (Spring 1995), pp. 30, 41.

48. CA Perspectives, n. 5 supra, at p. 16.

49. S. L. Arnold and David T. Stahl, A Power Projection Army in Operations Other Than War', n. 41 supra, at p. 4, 8-12, 15-17; see also Arnold, 'Somalia: An Operation Other Than War', Military Review (December 1993), p. 26.

50. Ibid., Arnold, A Power Projection Army in Operations Other Than War, at p. 22.