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Corn, G S --- "Developing Warrior Lawyers: Why It's Time to Create a Joint Service Law of War Academy" [2007] LegEdDig 29; (2007) 15(2) Legal Education Digest 30

Developing Warrior Lawyers: Why It's Time to Create a Joint Services Law of War Academy

G S Corn

[2007] LegEdDig 29; (2007) 15(2) Legal Education Digest 30

S Tex CL Mil R, 2006, pp 97–102

Since the abuses at Abu Ghraib in Iraq came to public attention, a group of critics, pundits, and other purported experts have offered a surfeit of theories on the ‘real’ lessons of that incident. Unfortunately, many of these theories rely on the questionable inference that a causal connection existed between detainee abuse and Coalition interrogation efforts.

In response to the detainee abuse revelations, scrutiny is being cast on the doctrine, training, execution, and leadership aspects of detention and interrogation procedures. This scrutiny has led to reassessment of the quality and effectiveness of existing policies, doctrine, and training in ensuring compliance with the Law of Armed Conflict (LOAC). Ironically, however, little assessment has been done regarding a key component in this compliance process: developing genuine LOAC expertise among members of the military legal profession. While there is no question that the tireless efforts of dedicated judge advocates have made a tremendous contribution to the planning and execution of Global War on Terrorism (GWOT) operations, there is no justification for failing to include a critique of the effectiveness of the current techniques used to prepare judge advocates general (JAGs) for the future within this broader reassessment effort.

Such a critique would reveal an unacceptable reality: the Department of Defense (DOD) lacks a joint centre of excellence devoted to the LOAC Professional Military Legal Education (PMLE). Providing such a venue where such expertise could be consolidated and leveraged would offer JAGs, commanders, and other constituents a great opportunity to develop the expertise in the LOAC that the contemporary operational environment demands.

A critique of the PMLE reveals a compelling need for the development of a truly joint approach to LOAC PMLE: creation of a Joint Service Law of War Academy (JSLOWA). Such an academy could serve as a true centre of excellence for developing expertise among military legal advisers, for providing a genuine opportunity to integrate advisers into joint warfare training and simulations, and for serving as a venue for exploring and advancing ideas about the legal regulation of military operations.

The proposal to develop a JSLOWA is the result of two propositions. First, the only discipline of law currently taught at service-specific JAG schools that will never be practiced in a service-specific context is the LOAC. Contemporary military operations are not now, nor will they ever again be, ‘service-specific’; they are joint. And second, in spite of their best efforts, service-specific JAG schools do not have the resources to develop widespread genuine LOAC expertise — a result of the prohibitive confluence of the complexity of contemporary military operations and the limited time available for PMLE.

While anyone paying attention to the news would have quickly associated Abu Ghraib with a failure by U.S. forces to comply with the LOAC, there is a less sensational, more valuable lesson to be learned. The misconduct that took place at that detention facility became notorious precisely because it was an aberration in a much more widespread record of legal compliance. ‘But, to date, we have identified some 300 cases of possible abuse of which fewer than 100 have been confirmed. One-third of those abuses have been at the point of capture’.

If, in fact, Abu Ghraib represents the exception to general compliance with the LOAC, it is worth asking why the U.S. record of compliance has been so positive. The answer is no doubt multifaceted, ranging from the quality of training and discipline among the armed forces to the nation’s core commitment to fundamental humanitarian values. Less abstractly, however, the answer would have to acknowledge that highly qualified military legal advisers contributed extensively to this overall record of compliance.

How then does this support a thesis suggesting that the current method of PMLE is insufficient? The answer rests with an examination of the background of the senior military legal advisers who served in critical positions during the planning for and execution of Operation Iraqi Freedom (OIF). Army legal advisers in key positions with the major units involved in ground combat operations in Iraq shared extensive — and among their peers relatively unusual — backgrounds in international and operational law. In fact, almost all of these officers had previously served as professors of international and operational law at the Army JAG School or had worked in the international and operational law division of the Office of the Judge Advocate General.

However, this expertise was not developed primarily through on-the-job training. Instead, it was developed through applying, in the operational context, the extensive knowledge derived from opportunities to engage in extensive study of the LOAC — in short, effective PMLE. While it is difficult to prove the negative, it seems reasonable to presume that this collective expertise proved instrumental in ensuring that the debacle at Abu Ghraib did, in fact, reflect the exception to the rule.

Unlike these officers, the vast majority of judge advocates have been required to learn on the fly, the result of the limited opportunities available for them to develop a foundation of knowledge through comprehensive LOAC-oriented PMLE.

Typical judge advocates begin their military careers following graduation from law school. The years of legal study leading to their Juris Doctor degree include extensive immersion in criminal law, administrative law, contract law, and other areas of civilian specialisation. However, it would be unusual if a student’s law school experience included extensive study of the LOAC. Thus, when the typical new military lawyer begins the Judge Advocate Officer Basic Course (JAOBC), he or she has virtually no foundation in the LOAC.

After completing JAOBC, new JAG officers report to their first assignments. While it is not uncommon for them to have some limited exposure to LOAC issues as a secondary or tertiary aspect of their duties, it is the norm that their primary garrison duties focus on legal assistance, claims, administrative law, and criminal law.

During their initial tours, they might have the opportunity to attend a course devoted to the LOAC or operational law at one of the service JAG schools. The odds of them attending such a course are low, however, unless they are deploying, and if they do attend the course, they will attend it normally only once.

The course, which is not graded, is normally offered only during an ongoing assignment. Thus, it is a pragmatic reality that officers will not devote much out-of-class time to studying.

A student’s next opportunity to study the LOAC might come during a Masters of Law program, which will occur either at the Army JAG School or a civilian law school. This normally occurs around the 5th to 7th year of service. Students who attend such programs will have the opportunity to study the LOAC in greater depth. However, for most officers, instruction is limited to core offerings virtually identical to the previous limited instruction received earlier in their careers.

After graduating from the Masters of Law program as a relatively new field-grade officer, the military lawyer has essentially run out of PMLE opportunities to study the LOAC. Thus, just when their responsibility to be expert in this discipline has evolved to the point where they will be responsible for providing LOAC advice to senior commanders in the joint environment, they have exhausted virtually all opportunities to study this discipline.

Each will no doubt be armed with a superior work ethic, intellect, and legal judgment, all of which will be crucial as they deal with the issues they confront as principal legal advisers during combat operations. But they will have been provided an unnecessarily limited opportunity to develop the foundation of expertise necessary to satisfy their ethical obligation of competence as attorneys. Consider this one simple fact: By the time our hypothetical officers assume SJA responsibilities for a division, the likelihood that they will have even read a reported case related to the LOAC (such as In re Yamashita, Ex parte Quirin or The High Command Case) is close to nil. This is simply unacceptable.

Equally troubling is that the limited professional development opportunities offered to these JAG officers will have all been service-specific. Although JAG schools include a faculty member from sister services, the PMLE is simply not joint, and officers will not have had the opportunity to integrate with the joint operators they will be called upon to support in the future. Thus, two undeniable aspects of the practice of the LOAC discipline (aspects that distinguish this discipline of law from every other discipline taught at JAG schools) are generally absent in the PMLE process: operational integration and joint context. For an armed force moving decisively in the joint and expeditionary direction, this won’t work.

The judge advocate PMLE process is no longer sufficient to meet the requirements of a force called on to operate in the legally intense environment in which our forces are now — and will continue to be — involved. What is the solution?

By retaining service-specific venues for the PMLE process, the services are perpetuating a disconnect between the way JAGs are trained and the way they will fight. Of greatest significance, however, is that the service-specific PMLE deprives DOD of the opportunity to consolidate the considerable expertise scattered throughout the services into one centre of excellence. If such a place existed, JAGs and the line officers they support could periodically come together to devote themselves to intensive study of this critical practice area.

The onset of investigations and inquiries triggered by suspected LOAC violations offers the DOD military legal community a unique opportunity to adopt a forward-looking approach to providing LOAC PMLE: consolidation of LOAC expertise into a JSLOWA. In the opinion of this author, the ideal venue for such a centre of excellence would be collocation with the Joint Forces Staff College or the National War College. However, what is more important than location are three structural factors that must be taken into account to maximise the benefits of a JSLOWA: faculty composition, curriculum development, and benefits for existing organisations.

The military could model the basic structure of the faculty on any number of current law departments embedded within such schools as the military academies, command and staff colleges, and war colleges. These departments share certain structural characteristics: They have a senior expert officer serving as department chair, they rotate subordinate faculty members, and they are integrated into a broader Professional Military Education (PME) curriculum. Another possible aspect several of these departments share that could contribute to the effectiveness of a JSLOWA is the inclusion on the faculty of civilian professors possessing national and, in many cases, international, expertise in this discipline of law.

Also particularly well suited to a JSLOWA would be the inclusion of one or several international faculty members.

Such a centre of excellence might also include other experts on the faculty. For example, interagency experts might serve as temporary faculty members or guest lecturers.

Curriculum development for such a centre of excellence will present a number of challenges. The first, and perhaps most significant, would be identifying the appropriate relationship with pre-existing PMLE courses. Developing a complementary curriculum could be embraced. Doing so would let the service JAG schools rely on the JSLOWA to satisfy the LOAC component of their broader programs.

Perhaps the most advantageous aspect of a JSLOWA is that it would open LOAC PMLE opportunities to career JAGs of other services unable to attend the Army’s (or a civilian) Master of Law program.

Another benefit to creating such a joint centre of excellence would be the role it could play as a think tank for LOAC issues. Faculty members would not only be encouraged but required to produce practical and scholarly work related to the LOAC.

The JSLOWA could also benefit from existing organisations. For example, a formal relationship could be established between the JSLOWA and DOD’s Law of War Working Group with the former performing comprehensive research on behalf of the latter. The Working Group’s function has varied over the years, but since the beginning of the Global War on Terrorism it has been responsible for addressing a multitude of issues related to the war. It has also been tasked to look over the horizon to identify potential future issues and possible legal strategies for dealing with such issues. A formal relationship with the JSLOWA would allow the Group to submit issues to faculty members for research, analysis, and proposed courses of action. Such integration is essential to developing a comprehensive, consistent understanding of the relationship of the LOAC to ongoing and future operations.

Ironically, at a time when virtually every other aspect of LOAC training and compliance has come under intense scrutiny, the discipline’s PMLE has not been addressed. To create a coherent PMLE process, DOD must acknowledge that the LOAC is distinct from other disciplines of law, ensure that military attorneys develop the same level of expertise in this discipline as they do in other disciplines, and establish a joint centre of excellence — a JSLOWA — for the teaching, studying, and researching of LOAC issues.

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