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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
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