Military Law xeview “FINDING THE LAW”-THE VALUES, IDENTITY, AND FUNCTION OF THE INTERNATIONAL LAW ADVISER Captain Matthew E. Winter DEVELOPING A SECURITY STRATEGY FOR INDOCHINA Major Jeffrey F. Addicott AN OVERVIEW OF THE MILITARY ASPECTS OF SECURITY ASSISTANCE Major Carl J. Woods COMA WATCH 1989 Lieutenant Colonel W. Gary Jewel1 and Major Harry L. Williams ELECTRONIC SURVEILLANCE AND RELATED INVESTIGATIVE TECHNIQUES c M. Wesley Clark N 00 Volume 128 Spring 1990 Pamphlet HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-128 Washington, D.C., Spring 1990 MILITARY LAW REVIEW-VOL. 128 The Military Law Review has been published quarterly at The Judge Advocate General’s School, US. Army, Charlottesville, Vir- ginia, since 1958. The Review provides a forum for those interested in military law to share the products of their experience and research and is designed for use by military attorneys in connection with their official duties. 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INDEXING: The primary Military Law Review indices are volume 91 (winter 1981) and volume 81 (summer 1978). Volume 81 included all writings in volumes 1 through 80, and replaced all previous Review indices. Volume 91 included writings in volumes 75 through 90 (ex- cluding Volume 81), and replaced the volume indices in volumes 82 through 90. Volume indices appear in volumes 92 through 95, and were replaced by a cumulative index in volume 96. A cumulative index for volumes 97-101 appears in volume 101, and a cumulative index for volumes 102-111 appears in volume 111. Volume 121 con- tains a cumulative index for volumes 112-121. Military Law Review articles are also indexed in A Bibliography of Contents: Political Science and Government; Legal Contents (C.C.L.R);Index to Legal Periodicals; Monthly Catalogue of United States Government Publications; Index to US. Government Periodi- cals; Legal Resources Index; three computerized data bases, the Pub- lic Affairs Information Service, The Social Science Citation Index, and LEXIS; and other indexing services. Issues of the Military Law Review are reproduced on microfiche in Current US. Government Periodicals on Microfiche, by Infordata International Inc., Suite 4602, 175 East Delaware Place, Chicago, Illinois 60611. ii MILITARY LAW REVIEW TABLE OF CONTENTS Title Page “Finding the Law”-The Values, Identity, and Function of the International Law Adviser Captain Matthew E. Winter ...................... 1 Developing a Security Strategy for Indochina Major Jeffrey F. Addicott ........................ 35 An Overview of the Military Aspects of Security Assistance Major Carl J. Woods.. ........................... 71 COMA Watch 1989 Lieutenant Colonel W. Gary Jewel1 and Major Harry L. Williams. ..................... 115 Electronic Surveillance and Related Investigative Techniques M. Wesley Clark ................................ 155 iii “FINDING THE LAW”--THE VALUES, IDENTITY, AND FUNCTION OF THE INTERNATIONAL LAW ADVISER by Captain Matthew E. Winter* [Plarticularly in approaching the study of international law, a basic concern should be to understand one’s values, identity, and function in relation to the vast process of social interac- tion with which international law deals. Much of the confu- sion that has characterized discussion in thefield is attribut- able to misunderstandiws and ambiguities at thisfundamen - tal level? I. INTRODUCTION Myres McDougal and Harold Lasswell, two leading proponents of “policy-oriented’ ’ jurisprudence,2have addressed the importance of understanding and acknowledging one’s position within a legal sys- tem, the values one brings to that system, and one’s identity in rela- tion to other participants within that system.3This emphasis on “self- ‘Judge Advocate General’s Corps. Currently assigned as Editor of The Army Lawyer, The Judge Advocate General’s School. Previously assigned as administrative law at- torney, trial counsel, and Chief, Criminal Law Division, Office of the Staff Judge Ad- vocate, Ft. Dix, New Jersey, 1985-1988; and as a Signal Corps officer, 1979-1982. B.S., University of Michigan, 1979; J.D., Albany Law School, Union University, 1985. Member of the bars of the State of New York and the Commonwealth of Massachusetts. This article was originally submitted in partial fulfiient of the U.M. degree at the Univer- sity of Virginia School of Law. Tipson, The Lasnoell-McDougal Enterprise: hard a World Public onler of Human Dignity, 14 Va. J. Int’l L. 535, 572 (1971). 2“Policy-oriented” jurisprudence has also been called the “New Haven Approach,” “Yale School,” and the “McDougal-Lasswell system.” Id. at 535 n.4. It is a post-legal realist approach that includes a theory of the law as well as a theory about the law. Id. at 536 n.5. Some of the most significant features of the policy-oriented jurisprudence include “a means of describing social process and the role of law within it, techni- ques for systematic research into legal problems, and a framework for analysis of theories about law.” Moore, Prolegomenon to the Jurisprudence of Myres McDougal and Harold Lasswell, 54 Va. L. Rev. 662, 665 (1968). See also infra note 5; Lasswell & McDougal, Criteria for a Theory About Law, 44 S. Calif. L. Rev. 362 (1971) [hereinafter Lasswell & McDougal, Criteria];McDougal, Jurisprudence for a Free Society, 1 Ga. L. Rev. 1 (1966) [hereinafter McDougal, Free Society];Tipson, supra note 1; McDougal, Lasswell & Reisman, Theories About Internationulhw: Prologue to a Configurative Jurisprudence, 8 Va. J. Int’l L. 188 (1968) [hereinafter McDougal, Lasswell & Reisman, Configurative Jurisprudence] ; Lasswell & McDougal, JurisprUdenoe in Iblicy-Oriented kkrspectives, 9 U. Fla. L. Rev. 486 (1967) [hereinafter Lasswell & McDougal, Iblicy-Oriented ftzrspectives]. 3Lasswell & McDougal, Criteria, supra note 2, at 375-76. 1 MILITARY LAW REVIEW [Vol. 128 orientation”4is only one element of their policy-oriented approach to the law,5 but it is a crucial and decisive one. McDougal and Lasswell recognize that ‘‘values” are those subjec- tive considerations that determine the “desirability and effectiveness of particular policies or practices.”6 The absence of explicit values or a failure to recognize those values severely limits the capacity for rational deci~ionmaking.~McDougal and Lasswell use the term “iden- tity” to refer to a participant’s identification with groups or com- munities8 They argue that a person’s identification has considerable bearing on how one integrates values and policy into decisionmak- ing.9 The term “function” refers to a person’s role within the legal system.’O McDougal differentiates between three different roles: scholar; claimant; and decisionmaker.“ The particular role of an in- dividual determines that person’s objectives, strategies, and attitudes toward the law!2 McDougal’s perceptions are especially insightful for the study and understanding of international law. Because of the ‘‘pervasive ambiguity”13 and lack of clear black-letter law in the international law field, value and policy choices are endemicj4 For both the decisionmaker and the observer, clarity of role and 41d.; see also Tipson, supra note 1, at 572. 50ther key elements of McDougal and Lasswell’s approach include the following: 1) conception of the subject matter (emphasis on the decision process rather than rules); 2) use of a comprehensive framework of inquiry (analysis of values, interests, deci- sion functions, and phases); and 3) performance of necessary intellectual tasks (clarification of goals, description of past trends, analysis of conditioning factors, pro- jection of future trends, and invention of policy alternatives). See supra note 2. 6Tipson, supnote 1, at 572. IId. ; see also Lasswell,