The Myth of Military Lawyers-William Arkin -December 14, 2001
On the first night of Operation Enduring Freedom, according to Seymour Hersh's reporting in The New Yorker, U.S. intelligence tracked a convoy "carrying Mullah Omar, the Taliban leader" to a "building" in Kabul (actually it was Kandahar), where permission to open fire was sought.
By Hersh's account, word came back from U.S. Central Command, or CENTCOM, in Tampa, Florida, that Gen. Tommy Franks disallowed the strike because his staff lawyer - the Judge Advocate General (JAG) - "doesn't like this." Hersh's conclusion: Omar got away "due to political correctness." The incident, he concluded, was emblematic of "constraints placed by the government on the military's ability to wage war during the last decade."
Washington Post reporter Thomas Ricks followed up with a story echoing the view of Air Force officers that they had been thwarted numerous times from hitting top Taliban and Al Qaeda members because they were "unable to receive clearance." Again the CENTCOM JAG, a Navy Captain, was singled out, and the issue was framed as a question over "how much weight to give to concerns about avoiding civilian casualties."
This is obviously a core question in modern warfare, particularly air warfare. But Hersh's and Ricks's reporting places too much emphasis on the military legal adviser. The problem is not law, or lawyers. It is an inaccurate and distorted picture of civilian vulnerability in air warfare and unresolved questions about how best to fight modern air wars.
Political Law
The "law of armed conflict," as the military calls it, or "international humanitarian law," as the human rights community labels it, is an overlapping collection of norms, conventions and treaties going back to the 19th century. This body of law governs the conduct of operations, protection of civilians, and treatment of prisoners.
Given the litigious nature of the United States, it should be no surprise that the American military has more lawyers than all other countries combined. Legal advisers are integral to planning and operations at all levels, reviewing targets and rules of engagement. Even at the White House level, constraints on civilian damage, either implicit or explicit, are articulated by legal counsel. Specific rules of engagement are further developed in the Pentagon by the Defense Department civilian leadership and the Joint Chiefs of Staff, with legal input, of course.
Ninety-nine percent of the time, what to bomb is not an issue; the law is so embedded within the modern military that there is institutional consensus. In the remaining one percent of cases though, command decisions or political considerations tend to take over the selection of targets. When the political hierarchy doesn't decide, computer models tend to have disproportionate influence. Military lawyers are relegated to the background.
(snip)
On the first night of Operation Enduring Freedom, intelligence officers in Gen. Franks' headquarters in Florida and in Washington could not say with any certainly who was in the convoy. As is the case with most controversial actions, you get different versions of events from different people. Pentagon officials insist that a group of individuals were observed entering a mosque in Kandahar, but given uncertainties over their identities, no one was going to approve a strike. Others report that a green light was later given - there was no veto by any military lawyer - but whether it was Omar or not will never be known.
The JAG allegation sounds like a smear designed to damage the Bush administration and the military. I do not believe Franks would ask such a question.