DOCSLIB.ORG

Headquarters, Department of the Army

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Headquarters, Department of the Army Headquarters, Department of the Army Department of the Army Pamphlet 27-50-444 May 2010 Articles The Expanded Legal Assistance Program Major Joshua A. Berger Command Authority: What Are the Limits on Regulating the Private Conduct of America’s Warrior Major Troy C. Wallace Making a Molehill Out of a Mountain: The U.S. Army Counterinsurgency Doctrine Applied to Operational Law in Iraq Captain Russell E. Norman and Captain Ryan W. Leary Pretrial Advice for Representing Mentally Ill Criminal Defendants in the Military Justice System Thomas Barnard and James Ewing Medical Treatment of Foreign Nationals: Another COIN of the Realm Captain Robert D. Hodges Book Reviews CLE News Current Materials of Interest Editor, Captain Ronald T. P. Alcala Technical Editor, Charles J. Strong The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly interest to military lawyers. Articles should be submitted via electronic by The Judge Advocate General’s Legal Center and School, Charlottesville, mail to [email protected]. Articles should follow Virginia, for the official use of Army lawyers in the performance of their The Bluebook, A Uniform System of Citation (18th ed. 2005) and the legal responsibilities. Individual paid subscriptions to The Army Lawyer are Military Citation Guide (TJAGLCS, 14th ed. 2009). No compensation can available for $45.00 each ($63.00 foreign) per year, periodical postage paid at be paid for articles. Charlottesville, Virginia, and additional mailing offices (see subscription form on the inside back cover). POSTMASTER: Send any address changes to The The Army Lawyer articles are indexed in the Index to Legal Periodicals, Judge Advocate General’s Legal Center and School, 600 Massie Road, the Current Law Index, the Legal Resources Index, and the Index to U.S. ATTN: ALCS-ADA-P, Charlottesville, Virginia 22903-1781. The opinions Government Periodicals. The Army Lawyer is also available in the Judge expressed by the authors in the articles do not necessarily reflect the view of Advocate General’s Corps electronic reference library and can be accessed The Judge Advocate General or the Department of the Army. Masculine or on the World Wide Web by registered users at feminine pronouns appearing in this pamphlet refer to both genders unless the http://www.jagcnet.army.mil/ArmyLawyer. context indicates another use. Address changes for official channels distribution: Provide changes to The Editor and Assistant Editor thank the Adjunct Editors for their the Editor, The Army Lawyer, The Judge Advocate General’s Legal Center invaluable assistance. The Board of Adjunct Editors consists of highly and School, 600 Massie Road, ATTN: ALCS-ADA-P, Charlottesville, qualified Reserve officers selected for their demonstrated academic Virginia 22903-1781, telephone 1-800-552-3978 (press 1 and extension excellence and legal research and writing skills. Prospective candidates 3396) or electronic mail to [email protected]. may send Microsoft Word versions of their resumes, detailing relevant experience, to the Technical Editor at TJAGLCS-Tech- Articles may be cited as: ARMY LAW., [date], at [first page of article], [email protected]. [pincite]. The Editorial Board of The Army Lawyer includes the Chair, Administrative and Civil Law Department; and the Director, Professional Writing Program. The Editorial Board evaluates all material submitted for publication, the decisions of which are subject to final approval by the Dean, The Judge Advocate General’s School, U.S. Army. The Army Lawyer welcomes articles from all military and civilian authors on topics of New Developments U.S. Army Legal Services Agency ............................................................................................................................................. 1 Criminal Law .............................................................................................................................................................................. 1 Administrative and Civil Law ................................................................................................................................................... 1 Lore of the Corps Shot by Firing Squad: The Trial and Execution of Pvt. Eddie Slovik Fred L. Borch III ...................................................................................................................................................................... 3 Articles The Expanded Legal Assistance Program Major Joshua A. Berger ............................................................................................................................................................ 5 Command Authority: What Are the Limits on Regulating the Private Conduct of America’s Warrior Major Troy C. Wallace ............................................................................................................................................................. 13 Making a Molehill Out of a Mountain: The U.S. Army Counterinsurgency Doctrine Applied to Operational Law in Iraq Captain Russell E. Norman and Captain Ryan W. Leary .............................................................................................................. 22 Pretrial Advice for Representing Mentally Ill Criminal Defendants in the Military Justice System Thomas Barnard and James Ewing ............................................................................................................................................ 43 Medical Treatment of Foreign Nationals: Another COIN of the Realm Captain Robert D. Hodges ........................................................................................................................................................ 52 Book Reviews Wired for War: The Robotics Revolution and Conflict in the Twenty-First Century Reviewed by Major Michael P. Baileys ..................................................................................................................................... 59 CLE News .................................................................................................................................................................. 63 Current Materials of Interest .................................................................................................................................. 72 Individual Paid Subscriptions to The Army Lawyer ........................................................................ Inside Back Cover MAY 2010 • THE ARMY LAWYER • DA PAM 27-50-444 New Developments U.S. Army Legal Services Agency following day were not covered by the exclusivity provisions of the DBA because KBR had information Court Grants Partial Summary Judgment in KBR demonstrating that, on 9 April 2004, attacks on the convoys Convoy Cases were “expected” and no longer considered an “accident” under the statute. Accordingly, the court denied the KBR On 25 March 2010, in Fisher v. Halliburton,1 the motion for summary judgment regarding the Fisher and District Court for the Southern District of Texas granted Lane convoy claims. The court stayed the Fisher and Lane partial summary judgment in favor of KBR. Pursuant to the cases pending interlocutory appeal to the Fifth Circuit Court LOGCAP III contract, KBR operated convoys in Kuwait and of Appeals. The trial, set for 24 May 2010 in Houston, Iraq supplying materiel for the Army. On 8 and 9 April Texas, is postponed pending the outcome of the 2004, three KBR convoys were attacked by insurgents near interlocutory appeals. —Litigation Division. Camp Anaconda, Iraq, resulting in numerous deaths and injuries to KBR employees. Plaintiffs filed suit against KBR in 2005 alleging numerous causes of action, including fraud Criminal Law regarding the safety and nature of the work in Iraq, tort claims, and the intentional deployment of convoys knowing Criminal Law Advocacy Course (CLAC) the convoys would be attacked. KBR alleged in a motion for summary judgment that the Defense Base Act (DBA)2 Because of the high demand, the CLAC has been provided the exclusive remedy for all of plaintiffs’ claims. transformed into a one-week course that will be offered four times a year (instead of a two-week course offered twice a The DBA, which incorporates the Longshore and year). Two courses will be offered in the Fall and two in the Harbor Workers’ Compensation Act (LHWCA),3 applies to Spring, during consecutive weeks. The dates for the Fall employees engaged in public works contracts with the course are as follows: United States or its agencies to be performed outside the continental United States.4 “Public works” includes 34th CLAC: 13–17 Sep 10* “projects or operations under service contracts and projects 35th CLAC: 20–24 Sep 10* in connection with the national defense or with war activities.”5 The DBA is similar to state workers’ The new CLAC will continue to utilize small-group compensation statutes in that it, along with the LHWCA, advocacy exercises and mock trials, so the course will determines the benefits for the injury or death of a covered remain “invitation only” on ATRRS to allow management of employee. The LHWCA defines “injury” as an accidental slots. To secure seats at the September courses, please have injury or death arising out of and in the course of your Chief of Justice contact Major Chuck Neill, CLAC employment.6 The liability of an employer under the DBA Course Manager, (434) 971-3343, (DSN 521) or is the exclusive remedy for covered employees.7 [email protected]. The court determined that
Load more

Recommended publications
  • The Position of Secretary of Defense: Statutory Restrictions and Civilian-Military Relations
    The Position of Secretary of Defense: Statutory Restrictions and Civilian-Military Relations Updated January 6, 2021 Congressional Research Service https://crsreports.congress.gov R44725 Position of Secretary of Defense: Statutory Restrictions and Civilian-Military Relations Summary The position of Secretary of Defense is unique within the United States government; it is one of two civilian positions within the military chain of command, although unlike the President, the Secretary of Defense is not elected. Section 113 of the United States Code states that the Secretary of Defense is to be “appointed from civilian life by the President, by and with the advice and consent of the Senate.” The section goes on to elaborate a key mechanism by which civilian control of the armed forces is maintained: A person may not be appointed as Secretary of Defense within seven years after relief from active duty as a commissioned officer of a regular component of an armed force. The proposed nomination of General (Ret.) Lloyd Austin, United States Army, who retired from the military in 2016, to be Secretary of Defense may lead both houses of Congress to consider whether and how to suspend, change, or remove that provision. This provision was originally contained in the 1947 National Security Act (P.L. 80-253), which mandated that 10 years pass between the time an officer is relieved from active duty and when he or she could be appointed to the office of the Secretary of Defense. In 2007, Section 903 of the FY2008 National Defense Authorization Act (P.L. 110-181), Congress changed the period of time that must elapse between relief from active duty and appointment to the position of Secretary of Defense to seven years.
    [Show full text]
  • Federal Files on the Famous–And Infamous
    Federal Files on the Famous–and Infamous The collections of personnel records at the National Archives available. Digital copies of PEPs can be purchased on CD/DVDs. include files that document military and civilian service for The price of the disc depends on the number of pages contained persons who are well known to the public for many reasons. in the original paper record and range from $20 (100 pages or These individuals include celebrated military leaders, less) to $250 (more than 1,800 pages). For more information or Medal of Honor recipients, U.S. Presidents, members of to order copies of digitized PEP records only, please write to pep. Congress, other government officials, scientists, artists, [email protected]. Archival staff are in the process of identifying entertainers, and sports figures—individuals noted for the records of prominent civilian employees whose names will personal accomplishments as well as persons known for their be added to the list. Other individuals whose records are now infamous activities. available for purchase on CD are: The military service departments and NARA have Creighton W. Abrams, Grover Cleveland Alexander, identified over 500 such military records for individuals Desi Arnaz, Joe L. Barrow, John M. Birch, Hugo L. Black, referred to as “Persons of Exceptional Prominence” (PEP). Gregory Boyington, Prescott S. Bush, Smedley Butler, Evans Many of these records are now open to the public earlier F. Carlson, William A. Carter, Adna R. Chaffee, Claire than they otherwise would have been (62 years after the Chennault, Mark W. Clark, Benjamin O. Davis. separation dates) as the result of a special agreement that Also, George Dewey, William Donovan, James H.
    [Show full text]
  • The Example of Private Slovik
    The Example of Private Slovik Of the thousands of American soldiers court­martialed for desertion in World War II, Eddie Slovik was the only one put to death. One of the judges who convicted him looks back with regret. by Benedict B. Kimmelman When Private Eddie Slovik was executed on January 31,1945, he became the only American put to death for desertion since Lincoln was President. After his death he became the subject of a book that sold in the millions, numerous magazine articles, a television special, a play or two, and several public campaigns that made his case an issue and still keep it alive. I saw Eddie Slovik for most of one morning, no more, and he never said a word to me. 1 cannot say for certain whether it is his face I remember or a photograph in a magazine article based on William Bradford Huie’s best seller The Execution of Private Slovik. But I sat on Slovik’s court­martial, as one of the nine officer­judges who unanimously voted the death penalty. In August of 1944 Eddie Slovik was a twenty­four­year­old replacement trucked up one day in a group assigned to an infantry line company in France. Encountering shellbursts and heavy fire for the first time, he knew at once that he could never make it on the line. With a buddy he hid out, and on the following day they turned themselves in to Canadian military police who were passing through. Not under arrest, they made themselves generally useful for the next six weeks, until the Canadians returned them to American military control on October 5.
    [Show full text]
  • How Soon Is Safe?
    HOW SOON IS SAFE? IRAQI FORCE DEVELOPMENT AND ―CONDITIONS-BASED‖ US WITHDRAWALS Final Review Draft: February 5, 2009 Anthony H. Cordesman Arleigh A. Burke Chair in Strategy And Adam Mausner [email protected] [email protected] Cordesman: Iraqi Forces and US Withdrawals 4/22/09 Page ii The Authors would like to thank the men and women of the Multinational Force–Iraq and Multinational Security Transition Command - Iraq for their generous contribution to our work. The Authors would also like to thank David Kasten for his research assistance. Cordesman: Iraqi Forces and US Withdrawals 4/22/09 Page iii Executive Summary The US and Iraq now face a transition period that may well be as challenging as defeating Al Qa‘ida in Iraq, the other elements of the insurgency, and the threat from militias like the Mahdi Army. Iraq has made progress in political accommodation and in improving security. No one, however, can yet be certain that Iraq will achieve a enough political accommodation to deal with its remaining internal problems, whether there will be a new surge of civil violence, or whether Iraq will face problems with its neighbors. Iran seeks to expand its influence, and Turkey will not tolerate a sanctuary for hostile Kurdish movements like the PKK. Arab support for Iraq remains weak, and Iraq‘s Arab neighbors fear both Shi‘ite and Iranian dominance of Iraq as well as a ―Shi‘ite crescent‖ that includes Syria and Lebanon.. Much will depend on the capabilities of Iraqi security forces (ISF) and their ability to deal with internal conflicts and external pressures.
    [Show full text]
  • A Tale of Two Cities the Use of Explosive Weapons in Basra and Fallujah, Iraq, 2003-4 Report by Jenna Corderoy and Robert Perkins
    December 2014 A TALE OF TWO CITIES The use of explosive weapons in Basra and Fallujah, Iraq, 2003-4 Report by Jenna Corderoy and Robert Perkins Editor Iain Overton With thanks to Henry Dodd, Jane Hunter, Steve Smith and Iraq Body Count Copyright © Action on Armed Violence (December 2014) Cover Illustration A US Marine Corps M1A1 Abrams tank fires its main gun into a building in Fallujah during Operation Al Fajr/Phantom Fury, 10 December 2004, Lance Corporal James J. Vooris (UMSC) Infographic Sarah Leo Design and Printing Matt Bellamy Clarifications or corrections from interested parties are welcome Research and publications funded by the Government of Norway, Ministry of Foreign Affairs. A tale of two cities | 1 CONTENTS FOREWORD 2 IRAQ: A TIMELINE 3 INTRODUCTION: IRAQ AND EXPLOSIVE WEAPONS 4 INTERnatiONAL HumanitaRIAN LAW 6 AND RulES OF ENGAGEMENT BASRA, 2003 8 Rattling the Cage 8 Air strikes: Munition selection 11 FALLUJAH, 2004 14 Firepower for manpower 14 Counting the cost 17 THE AFTERmath AND LESSONS LEARNED 20 CONCLUSION 22 RECOMMENDatiONS 23 2 | Action on Armed Violence FOREWORD Sound military tactics employed in the pursuit of strategic objectives tend to restrict the use of explosive force in populated areas “ [... There are] ample examples from other international military operations that indicate that the excessive use of explosive force in populated areas can undermine both tactical and strategic objectives.” Bård Glad Pedersen, State Secretary, Ministry of Foreign Affairs of Norway, 17 June 20141 The language of conflict has changed enormously. their government is not the governing authority. Today engagements are often fought and justified Three case studies in three places most heavily- through a public mandate to protect civilians.
    [Show full text]
  • Congressional Record United States Th of America PROCEEDINGS and DEBATES of the 117 CONGRESS, FIRST SESSION
    E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 117 CONGRESS, FIRST SESSION Vol. 167 WASHINGTON, FRIDAY, JANUARY 22, 2021 No. 13 House of Representatives The House was not in session today. Its next meeting will be held on Monday, January 25, 2021, at 1:30 p.m. Senate FRIDAY, JANUARY 22, 2021 The Senate met at 10 a.m. and was NATIONAL GUARD We owe an enormous debt of grati- called to order by the President pro Mr. SCHUMER. Mr. President, now, tude to the men and women who tempore (Mr. LEAHY). it came to our attention last night worked to keep us safe on January 6 and the days since. A situation like f that members of the National Guard, after standing on duty to protect the last night will never happen again. PRAYER Capitol for Inauguration Day, keeping f The Chaplain, Dr. Barry C. Black, of- us safe, were sleeping in parking ga- BUSINESS BEFORE THE SENATE fered the following prayer: rages and cramped quarters without Mr. SCHUMER. Now, I have spoken Let us pray. proper space or ventilation. It was ut- about the Senate’s agenda for the next Sovereign King, our hope for years to terly unacceptable. several weeks. We have three essential come, deliver us from the sin of run- I have told those who run the secu- items on our plate: one, the confirma- ning from the truth. Remind us often rity of the Capitol that it can never tion of President Biden’s Cabinet and that truth brings freedom.
    [Show full text]
  • Trump's Generals
    STRATEGIC STUDIES QUARTERLY - PERSPECTIVE Trump’s Generals: A Natural Experiment in Civil-Military Relations JAMES JOYNER Abstract President Donald Trump’s filling of numerous top policy positions with active and retired officers he called “my generals” generated fears of mili- tarization of foreign policy, loss of civilian control of the military, and politicization of the military—yet also hope that they might restrain his worst impulses. Because the generals were all gone by the halfway mark of his administration, we have a natural experiment that allows us to com- pare a Trump presidency with and without retired generals serving as “adults in the room.” None of the dire predictions turned out to be quite true. While Trump repeatedly flirted with civil- military crises, they were not significantly amplified or deterred by the presence of retired generals in key roles. Further, the pattern continued in the second half of the ad- ministration when “true” civilians filled these billets. Whether longer-term damage was done, however, remains unresolved. ***** he presidency of Donald Trump served as a natural experiment, testing many of the long- debated precepts of the civil-military relations (CMR) literature. His postelection interviewing of Tmore than a half dozen recently retired four- star officers for senior posts in his administration unleashed a torrent of columns pointing to the dangers of further militarization of US foreign policy and damage to the military as a nonpartisan institution. At the same time, many argued that these men were uniquely qualified to rein in Trump’s worst pro- clivities. With Trump’s tenure over, we can begin to evaluate these claims.
    [Show full text]
  • The Real Outcome of the Iraq War: US and Iranian Strategic Competition in Iraq
    The Real Outcome of the Iraq War: US and Iranian Strategic Competition in Iraq By Anthony H. Cordesman, Peter Alsis, Adam Mausner, and Charles Loi Anthony H. Cordesman Arleigh A. Burke Chair in Strategy Revised: December 20, 2011 Note: This draft is being circulated for comments and suggestions. Please provide them to [email protected] Chapter 6: US Strategic Competition with Iran: Competition in Iraq 2 Executive Summary "Americans planted a tree in Iraq. They watered that tree, pruned it, and cared for it. Ask your American friends why they're leaving now before the tree bears fruit." --Mahmoud Ahmadinejad.1 Iraq has become a key focus of the strategic competition between the United States and Iran. The history of this competition has been shaped by the Iran-Iraq War (1980-1988), the 1991 Gulf War, and the US invasion of Iraq in 2003. Since the 2003 war, both the US and Iran have competed to shape the structure of Post-Saddam Iraq’s politics, governance, economics, and security. The US has gone to great lengths to counter Iranian influence in Iraq, including using its status as an occupying power and Iraq’s main source of aid, as well as through information operations and more traditional press statements highlighting Iranian meddling. However, containing Iranian influence, while important, is not America’s main goal in Iraq. It is rather to create a stable democratic Iraq that can defeat the remaining extremist and insurgent elements, defend against foreign threats, sustain an able civil society, and emerge as a stable power friendly to the US and its Gulf allies.
    [Show full text]
  • The Outcome of Invasion: US and Iranian Strategic Competition in Iraq
    a report of the csis burke chair in strategy The Outcome of Invasion: US and Iranian Strategic Competition in Iraq Authors Adam Mausner Sam Khazai Anthony H. Cordesman Peter Alsis Charles Loi March 2012 Chapter VII: US Strategic Competition with Iran: Competition in Iraq 16/3/12 2 Executive Summary "Americans planted a tree in Iraq. They watered that tree, pruned it, and cared for it. Ask your American friends why they're leaving now before the tree bears fruit." --Mahmoud Ahmadinejad.1 Iraq has become a key focus of the strategic competition between the United States and Iran. The history of this competition has been shaped by the Iran-Iraq War (1980-1988), the 1991 Gulf War, the US invasion of Iraq in 2003, and now by the withdrawal of US military forces. It is a competition increasingly shaped by Iraq’s turbulent domestic politics and power struggles, and where both the US and Iran compete to shape the structure of Iraq’s future politics, governance, economics, and security. An Uncertain Level of US Influence The US has gone to great lengths to counter Iranian influence in Iraq, including using its status as an occupying power and Iraq’s main source of aid, as well as through information operations and more traditional press statements highlighting Iranian meddling. However, containing Iranian influence, while important, is not America’s main goal in Iraq. It is rather to create a stable democratic Iraq that can defeat the remaining extremist and insurgent elements, defend against foreign threats, sustain an able civil society, and emerge as a stable power friendly to the US and its Gulf allies.
    [Show full text]
  • Fy2010 Defense Budget
    U N I T E D S T A T E S D E P A R T M E N T O F D E F E N S E FISCAL YEAR 2010 BUDGET REQUEST S U M M A R Y J U S T I F I C A T I O N • M A Y 2 0 0 9 On behalf of the President, I am pleased to transmit to Congress this volume that presents the Department of Defense’s budget request of $533.8 billion for Fiscal Year 2010. The purpose of the Secretary’s Summary Justification is to inform Cong ress and provide the American people a clear understanding of how their tax dollars are being invested to provide for our Nation’s defense. It includes: • An explanation of the Department’s missions, accomplishments, and priorities; • A summary of the request by Military Department and Defense agencies; • Information on special areas of interest and emphasis for Fiscal Year 2010; and • Details on the Department’s major weapons programs. The Military Departments and Defense agencies will provide Congress with additional detailed justification materials on this request. The requested funds would: provide military pay, benefits, and world-class healthcare for 2.3 million Soldiers, Sailors, Marines, and Airmen ($163.9 billion); support military operations and force readiness ($160.9 billion); invest in modernization ($186.1 billion); and support family housing and facilities ($23.0 billion). In addition to the $533.8 billion request, the Administration requests $130.0 billion for Fiscal Year 2010 to support ongoing Overseas Contingency Operations.
    [Show full text]
  • Iraqi-Owned Bank Opens on U.S. Base by Maj
    March 22, 2010 | Issue 8 Iraqi-owned bank opens on U.S. base By Maj. Luke Hammond 4th BCT, 1st Armd Div COB ADDER – The Iraqi-Based Industrial Zone at Contingency Operating Base Adder has long been a place where aspiring busi- ness-minded Iraqis work with U.S. forces and support the local economy by providing jobs. Whether they are contractors com- peting for contracts on COB Adder, or vendors selling everything from paintings to rugs, the IBIZ is abuzz with constant activity. However, on Jan. 13, COB Adder saw one of the most signifi- cant events to happen in IBIZ since its establishment: the grand opening and ribbon-cutting ceremony of Warka Bank. Warka has one of the largest banking operations in Iraq, oper- ating over 150 locations throughout the country. Initially proposed in the summer of 2009, the establishment of a bank within IBIZ presents will greatly aid Iraqi businesses and U.S. objectives. The bank will bring to the area – for the first time – electronic funds transfer capabilities. Having EFT capability within the IBIZ is a critical turning point in how U.S. forces and contracting agencies such as KBR pay the Iraqi contractors who will soon do a majority of the busi- ness on COB Adder. The base, also known as the Tallil – meaning “rule of Ali” – Airbase, is home to over 13,000 Soldiers and civilians and serves as a major logistics hub for U.S. forces in the nine provinces over- seen by United States Division-South. Photo by Maj. Myles Caggins Maj.
    [Show full text]
  • Provincialdevelopment Strategy Basragovernorate
    LADP in Iraq – Basra PDS Local Area Development Programme in Iraq Financed by the Implemented European Union by UNDP PROVINCIAL DEVELOPMENT STRATEGY BASRA GOVERNORATE November 2017 LADP in Iraq – Basra PDS 2 LADP in Iraq – Basra PDS FOREWORD BY THE GOVERNOR … 3 LADP in Iraq – Basra PDS 4 LADP in Iraq – Basra PDS CONTENT PSD Basra Governorate Foreword by the Governor ............................................................................................................................... 3 Content ............................................................................................................................................................ 5 List of Figures ................................................................................................................................................... 7 List of Tables .................................................................................................................................................... 8 Abbreviations ................................................................................................................................................... 9 Introduction ................................................................................................................................................... 11 1. Purpose of the PDS ................................................................................................................................... 11 2. Organisation of the PDS...........................................................................................................................
    [Show full text]