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Military Law Review, Volume 224, Issue 1, 2016

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Military Law Review, Volume 224, Issue 1, 2016 Volume 224 Issue 1 2016 U.S. DEP’T OF ARMY ACADEMIC JOURNAL 27-100-224-1 ACADEMIC JOURNAL ARMY OF DEP’T REVIEW LAW MILITARY VOLUME 224 • 2016 MILITARY LAW REVIEW ARTICLES IT IS NOT SELF-DEFENSE: DIRECT PARTICIPATION IN HOSTILITIES AUTHORITY AT THE TACTICAL LEVEL Colonel Randall Bagwell & Captain Molly Kovite MILITARY JUSTICE INCOMPETENCE OVER COMPETENCY DETERMINATIONS Major David C. Lai OPERATIONALIZING THE INCENTIVE THEORY: MODERNIZING U.S. BUREAUCRACY TO EFFECTIVELY PREDICT AND PREVENT WAR Major Patrick Walsh THE CASE FOR STRATEGIC U.S. DETENTION POLICY Major Elisabeth Gilman ALWAYS ON DUTY: CAN I ORDER YOU TO REPORT CRIMES OR INTERVENE? Major Matthew E. Dyson MORAL INJURY AND PREVENTATIVE LAW: A FRAMEWORK FOR THE FUTURE Major Erik D. Masick Department of the Army Academic Journal 27-100-224-1 Military Law Review Volume 224 Issue 1 2016 CONTENTS Articles It is Not Self-Defense: Direct Participation in Hostilities Authority at the Tactical Level Colonel Randall Bagwell & Captain Molly Kovite 1 Military Justice Incompetence over Competency Determinations Major David C. Lai 48 Operationalizing the Incentive Theory: Modernizing U.S. Bureaucracy to Effectively Predict and Prevent War Major Patrick Walsh 87 The Case for Strategic U.S. Detention Policy Major Elisabeth Gilman 118 Always on Duty: Can I Order You to Report Crimes or Intervene? Major Matthew E. Dyson 176 Moral Injury and Preventative Law: A Framework for the Future Major Erik D. Masick 223 i Headquarters, Department of the Army, Washington, D.C. Academic Journal No. 27-100-224-1, 2016 Military Law Review Volume 224 Issue 1 Board of Editors Colonel James F. Garrett Dean, The Judge Advocate General’s School Lieutenant Colonel May Nicholson Chair, Administrative and Civil Law Department Major Laura O’Donnell Director, Professional Communications Program Mr. Sean Lyons Legal Editor Captain Vanessa R. Asmus Editor Since its inception in 1958 at The Judge Advocate General’s School, U.S. Army, in Charlottesville, Virginia, the Military Law Review has encouraged a full and frank discussion of legislative, administrative, and judicial principles through a scholarly examination of the law and emerging legal precepts. In support of that mission, the Military Law Review publishes scholarly articles that are relevant to, and materially advance, the practice of law within the military. The Military Law Review does not promulgate official policy. An article’s content is the sole responsibility of that article’s author, and the opinions and conclusions that are reflected in an article are those of the author and do not necessarily reflect the views of the U.S. government, the Department of Defense, the Department of the Army, The Judge Advocate General’s Corps, The Judge Advocate General’s Legal Center and School, or any other governmental or non-governmental agency. ii WEBSITE: The Military Law Review is available at http://www.jagcnet.army.mil/MLR. COPYRIGHT: Unless noted in an article’s title, all articles are works of the United States Government in which no copyright subsists. When copyright is indicated in the title, please contact the Military Law Review at [email protected] for copyright clearance. SUBSCRIPTIONS: Interested parties may purchase private subscriptions from the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402, at (202) 512-1800. An annual subscription is $20 for a domestic subscriber or $28 for an international subscriber. For Army legal offices, including within the Army National Guard and the U.S. Army Reserve, and other federal agencies, inquiries and address- change requests should be communicated to the Military Law Review. Other military services may request distribution through official publication channels. This periodical’s postage is paid at Charlottesville, Virginia, and additional mailing offices. Reprints of published works are not available. POSTMASTER: Send address-change requests to Military Law Review, The Judge Advocate General’s Legal Center and School, U.S. Army, 600 Massie Road, ATTN: ALCS-ADA-P, Charlottesville, Virginia 22903-1781. CITATION: This issue of the Military Law Review may be cited as 224 MIL. L. REV. page number (2016). SUBMISSION OF WORKS: The Military Law Review accepts submissions of works from military and civilian authors. Any work that is submitted for publication will be evaluated by the Military Law Review’s Board of Editors. In determining whether to publish a work, the Board considers the work in light of the Military Law Review’s mission and evaluates the work’s argument, research, and style. No minimum or maximum length requirement exists. Footnotes should be numbered consecutively from the beginning to the end of the writing, not section by section. Citations must conform to The Bluebook: A Uniform System of Citation (20th ed. 2015) and to the Military Citation Guide (TJAGLCS 20th ed. 2015). iii A submitted work should include biographical data concerning the author or authors. This information should consist of branch of service, duty title, present and prior positions or duty assignments, all degrees (with names of granting schools and years received), and previous publications. If submitting a lecture or a paper prepared in partial fulfillment of degree requirements, the author should include the date and place of delivery of the lecture or the date and source of the degree. All submissions must be in Microsoft Word format and should be sent to the Editor, Military Law Review, at usarmy.pentagon.hqda- [email protected]. If electronic mail is not available, please forward the submission, double-spaced, to the Military Law Review, Administrative and Civil Law Department, The Judge Advocate General’s Legal Center and School, U.S. Army, 600 Massie Road, Charlottesville, Virginia 22903-1781. iv INDIVIDUAL PAID SUBSCRIPTIONS TO THE MILITARY LAW REVIEW The Government Printing Office offers a paid subscription service to the Military Law Review. To receive an annual individual paid subscription (4 issues), complete and return the order form on the next page. RENEWALS OF PAID SUBSCRIPTIONS: You can determine when your subscription will expire by looking at your mailing label. Check the number that follows “ISSDUE” on the top line of the mailing label as shown in this example: When this digit is 7, you will be sent a renewal notice. MILR SMITH212J ISSDUE007 R1 JOHN SMITH 212 BROADWAY STREET SAN DIEGO, CA 92101 The numbers following ISSDUE indicate how many issues remain in the subscription. For example, ISSDUE001 indicates a subscriber will receive one more issue. When the number reads ISSDUE000, you have received your last issue and you must renew. To avoid a lapse in your subscription, promptly return the renewal notice with payment to the Superintendent of Documents. If your subscription service is discontinued, simply send your mailing label from any issue to the Superintendent of Documents with the proper remittance and your subscription will be reinstated. INQUIRIES AND CHANGE OF ADDRESS INFORMATION: The Superintendent of Documents, and not the Editors of the Military Law Review, is solely responsible for the individual paid subscription service. For inquires and change of address for individual paid subscriptions, fax your mailing label and new address to 202-512-2250, or send your mailing label and new address to the following address: United States Government Printing Office Superintendent of Documents ATTN: Chief, Mail List Branch Mail Stop: SSOM Washington, DC 20402 v MILITARY LAW REVIEW Volume 224 Issue 1 IT IS NOT SELF-DEFENSE: DIRECT PARTICIPATION IN HOSTILITIES AUTHORITY AT THE TACTICAL LEVEL COLONEL RANDALL BAGWELL* AND CAPTAIN MOLLY KOVITE** A U.S. soldier at a forward operating base (FOB) watches a high definition camera feed. On it, he sees a man in civilian clothing digging a hole in the road and emplacing an improvised explosive device (IED). The road is approximately eight kilometers from the FOB and there are no U.S. or coalition soldiers nearby. The soldier notifies his commander, who calls for an attack helicopter. By the time the helicopter arrives, the man has finished emplacing the IED, has mounted his motorcycle, and has traveled three kilometers from the IED site. His actions and movements have been tracked the entire time on camera. The helicopter pilot informs the commander that although there are no collateral damage concerns in the area, the man bears no visible weapons and does not appear to be doing anything threatening. The commander clears the pilot to engage the man with deadly force. The pilot, unsure if this is legal, asks the commander to state the engagement authority on the recorded audio. The commander hesitates.1 * Judge advocate, U.S. Army. Presently assigned as Staff Judge Advocate, I Corps and Joint Base Lewis-McChord, Washington. M.A., 2005, U.S. Naval War College; LL.M., 2000, The Judge Advocate General Sch.; J.D., 1990, University of Arkansas School of Law; B.A., 1987, Henderson State University. Previous operational law assignments include Senior Legal Advisor and Staff Judge Advocate, Regional Command-South, Afghanistan 2012–2013; Chief, Operational Law, Multi-National Force-Iraq, 2006–2007; Instructor, International Law Division, U.S. Naval War College, 2005–2006; International Law Attorney, International and Operational Law, Office of the Judge Advocate General, 2003–2004; Staff Judge Advocate, Coalition Task Force 82, Afghanistan, 2003; Deputy 2 MILITARY LAW REVIEW [Vol. 224 In this scenario, the pilot and commander identify that someone is taking part in hostilities, but are unsure of the legal authority to use force against him. Their confusion is the result of a legal framework developed for a different kind of warfare. In the context of conventional warfare, where the uniformed army of one nation fights the uniformed army of another, the Law of Armed Conflict2 (LOAC) presumes that civilians can be distinguished from members of an armed force; and are therefore protected even during combat.3 The recent increase in insurgent, asymmetrical and hybrid forms of warfare has challenged this premise.4 As Lieutenant General H.R.
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