U.S. Army Judge Advocate General’s Corps November/December 2018

40 Cyber Warfare for JAs 46 General Pershing and his JAG 54 Ops and Interoperability 58 Regionally-Focused Leaders Captain Heather Martin, a defense appellate attorney, casts a skeptical view on an opposing counsel’s argument during a recent moot court hearing at the United States Army Court of Criminal Appeals at Fort Belvoir, Virginia. (Credit: Chris Tyree) Table of Contents Editorial Board November/December 2018 Lieutenant Colonel Megan Wakefield Departments Book Review Strategic Initiatives Officer, OTJAG 37 African Kaiser Major Samuel Gabremariam Court is Assembled General Paul Von Lettow-Vorbeck Strategic Initiatives Officer, OTJAG 2 Readiness, Technology, and the Great War in Africa, and the Law 1914–1918, by Robert Gaudi Mr. Frederic L. Borch III Warfare’s Evolution During WWI Reviewed by Major J. Eagle Shutt Regimental Historian Provides a Roadmap for JAs Today Captain Meghan Mahaney By Brigadier General Joseph B. Berger Closing Argument Editor, The Army Lawyer News & Notes 67 Demolishing the Captain Nicole Ulrich Foundation of Five Editor, The Military Law Review 4 The Most Important Classroom By Major Trenton Powell Remarks by Lieutenant General Charles N. Pede Major Jess B. Roberts Director, Professional Communications Program, TJAGLCS 6 Thinking Hard, Recommitting, and Reconnecting Features Lieutenant Colonel Michael P. Harry By LTC Megan Wakefield, Strategic Vice Chair, ADA, TJAGLCS Initiatives Office 40 No. 1 Cyber Warfare for JAs Lieutenant Colonel Edward C. Linneweber Lore of the Corps Understanding the Legal Chair, ADA, TJAGLCS Operating Environment 10 Judge Advocates in Mr. Sean P. Lyons By Major Phillip Dickerson and the Great War Editor By Fred L. Borch Brigadier General Joseph B. Berger Mr. Marco Marchegiani 46 No. 2 Art Director, GPO 19 Aubrey Daniel Honored with Distinguished Member Status General Pershing and his JAG The Army Lawyer (ISSN 0364-1287, USPS 490-330) is By Fred L. Borch The Friendship that published six times a year by The Judge Advocate General’s Legal Center and School, Charlottesville, Virginia, for the Helped Win WWI official use of Army lawyers in the performance of their legal Up Close By Major Robert W. Runyans responsibilities. The opinions expressed by the authors in the articles do not 24 On Target 54 No. 3 necessarily reflect the view of the Department of Defense, Paralegal PV2 Emily C. Stith Has the Department of the Army, The Judge Advocate General’s the 2020 Olympics in Her Sights Ops and Interoperability Corps (JAGC), The Judge Advocate General’s Legal Center and By Major Jack B. Cohen and Back-to-Back Symposiums Examined School, or any other governmental or non-governmental agency. Masculine or feminine pronouns appearing in this Captain Nicole Ulrich Emerging Legal Issues in LOAC pamphlet refer to both genders unless the context indicates By Strategic Initiatives Staff another use. Practice Notes The Editorial Board evaluates all material submitted for pub- 58 No. 4 lication, the decisions of which are subject to final approval 26 View from the Bench by the Dean, The Judge Advocate General’s School, U.S. Army. Using Character and Outside Developing Regionally- Unless expressly noted in an article, all articles are works of Acts to Prove Your Case Focused Leaders the U.S. Government in which no copyright subsists. Where By Lieutenant Colonel Christopher E. Martin By Colonel George R. Smawley and copyright is indicated in an article, all further rights are reserved to the article’ s author. No compensation can be paid Colonel (Retired) Pamela M. Harms for articles. 30 Contracting in a Deployed The Army Lawyer may make necessary revisions or deletions Environment without prior permission of the author. An author is respon- Notes from the 408th sible for the accuracy of the author’s work, including citations and footnotes. Contracting Support Brigade By Major Nolan Koon The Army Lawyer articles are indexed in the Index to Legal Periodicals, the Current Law Index, the Legal Resources Index, and the Index to U.S. Government Periodicals. The Army Lawyer is also available in the Judge Advocate General’s Corps 32 Rear Provisional Commanders electronic reference library and can be accessed at https:// Can Have NJP Authority tjaglcspublic.army.mil/tjaglcs-publications By Major A. Jason Nef Articles may be cited as: [author’s name], [article title in italics], ARMY LAW., [date], at [first page of article], [pincite]. 33 Initial Client Meetings Creating the Roadmap for On the cover: General Enoch Herbert Crowder, who served at Successful Family Law Counsel The Judge Advocate General from 1911 until 1923. He was By Lieutenant Colonel Mike Harry General Pershing’s JAG during World War I. on adversaries, remains the same. To- day’s judge advocates face new intellectual challenges in addressing threats in a new domain—cyberspace. And they do so against the loud echo of the historical refrain to create new laws to address them. While new threats and the accompanying clamor for new rules for their use are timeless, unchanged are the enduring Law of Armed Conflict (LOAC) principles that will guide us through these changes. Also unchanged is the reality that judge advocates must work closely with coalition partners to ensure a shared understanding of how es- tablished legal principles will apply to new weapons and to understand existing treaties in the context of issues never contemplated by their drafters. Before WWI, leaders were aware of the potential for the use of poisonous gases in combat, but those leaders naively believed that discussions held during the 1899 Hague Conference about prohibiting their employment would prevent their use (Credit: Marco M.) in future wars.3 Their misplaced reliance on the durability of the agreements reached during the Conference reflected a failure to grasp both the emergence of new technolo- Court is Assembled gies and the changing character4 of war. By June 1925, under the auspices of the League of Nations, the High Contracting Parties declared, “So far as they are not already Parties to Treaties prohibiting [the use in Readiness, Technology, and the Law war of asphyxiating, poisonous, or other Warfare’s Evolution During WWI Provides gases], [the High Contracting Parties] ac- cept this prohibition, [and] agree to extend a Roadmap for JAs Today this prohibition to the use of bacteriological methods of warfare . . . .”5 Thirty-eight By Brigadier General Joseph B. Berger countries signed on to the Protocol and it entered into force on 8 February 1928.6 But the Allies’ hard lesson learned in Gas! Gas! Quick, boys! – An ecstasy of fumbling, WWI was the failure to foresee the changes Fitting the clumsy helmets just in time…1 in technology and the failure to timely understand the impacts of those impending It feels like a ball of red-hot fire, changes. The Allies’ pre-WWI failure to Turned loose from hell’s own door, think about and develop doctrine and law There seems to be no relief for me, that captured the future of warfare7 was ini- It’s hurting more and more…2 tially disastrous. The cost for the failure to plan for future combat and the subsequent collective delays in learning was millions in Owen’s and McCollum’s dark, poetic found their way onto WWI’s battlefields uniform dead. Sadly, the arc of history tells memories of World War I (WWI) required new laws. On today’s battlefields, us it is usually only after significant failure 8 captured the horror of new weapons the continuous, relentless development of that armies adapt. that drove treaty law in the years that new technologies and weapons, and their Not every change in the character followed. But not all new technologies that employment to impose one’s political will of warfare requires changes to the law.

2 Army Lawyer • Court is Assembled • November/December 2018 Although much hyped at the time of its not?” Only with that perspective can we unchanged since the dawn of time. War’s character describes “the changing way that war as a phenomenon first appearance in combat as revolutionary, adequately analyze new changes and chal- manifests in the real world” as “influenced by airpower proved to simply be evolutionary; lenges and provide commanders accurate technology, law, ethics, culture, methods of so- it required no new body of law as applied in advice. An understanding of history alone, cial, political, and military organization, and other factors that change across time and place.” Christo- combat. While the 1899 Hague Conference however, is insufficient. We must also pher Mewett, Understanding War’s Enduring Nature prohibited the launching of explosives from understand the evolving technology that is Alongside its Changing Character, WAR ON THE ROCKS balloons “or other new methods of a similar being applied in warfare, as well as the tech- (JAN. 21, 2014), https://warontherocks.com/2014/01/ 9 understanding-wars-enduring-nature-along- nature” (e.g., airplanes), it was merely a nology that may be applied in the future. side-its-changing-character/. In short, the character of temporary prohibition driven by the en- We need not be engineers, code writers, war gets at how we fight, while the nature at why we during LOAC principle of discrimination. or technical experts, nor need we be early fight. See id. While no new body of law was required adopters of every new technology that 5. Protocol for the Prohibition of the Use in War to address the evolution of airpower in emerges. But refusal to actively contemplate of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Jun. 17, 1925, combat, what was required were leaders— the technologies, challenges, and changes 26 U.S.T. 571, 94 L.N.T.S. 65. [hereinafter Geneva and lawyers—who could apply enduring looming just beyond the horizon will only Protocol]. principles to new technology. The original ensure we fail our clients. 6. The Geneva Protocol was later supplemented by discrimination concerns regarding use of Perhaps most importantly, we must the Biological Weapons Convention of 1972 and the Chemical Weapons Convention of 1993. airpower were quickly overcome by tech- not contemplate these changes in a vacuum. 7. Pershing notes the Japanese use of machine gun nologically-driven improvements in aerial We need to understand the positions of our units and heavier artillery “had not escaped the notice bombing accuracy.10 While airplane bomb- enduring partners, as well as the legal and of German observers, and her experts were quick to ing can be said to have “ultimately changed political strictures under which those part- take advantage of [those] lessons.” PERSHING, supra note the whole character of war,” its misuse (e.g., ners operate. We must shape how all of our 3, at 4. German bombing of hospitals) was, even current and future partners, adversaries, 8. The Allied Powers would soon, once again, fall be- hind their enemies. In WWII they failed at El Alamein at the time, seen by military leaders as a and third parties (e.g., non-governmental to timely grasp the change in war’s nature manifest in violation of LOAC and not as something organizations) think about the law’s appli- Germany’s Blitzkreig doctrine. fundamentally different.11 cation in warfare. To do that, we must not 9. Declaration on the Launching of Projectiles and For the U.S. and its allies, WWI was a only be a part of the discussion—in blogs, at Explosives from Balloons, Jul. 29, 1899, http://avalon. law.yale.edu/19th_century/dec99-01.asp. lesson in interoperability. American forces conferences, and everywhere it occurs—we Id simply were not ready for the new era of must lead that discussion. We owe our 10. . warfare, and were forced to lean on British commanders maximum lawful, moral, and 11. FRANCIS A. MARCH, HISTORY OF THE WORLD WAR 226 (1919). and French officers to help train new ethical maneuver space on today’s and to- 12 12. See Michael S. Neiberg & Harold K. Johnson, recruits before they even left the U.S. A morrow’s battlefields. To that end, we must Pershing’s Decision: How the United States Fought its lack of U.S. readiness—intellectually, doc- be knowledgeable about our technology, First Modern Coalition War, U.S. ARMY (Dec. 10, trinally, and in training—made fighting as our clients, our partners, and our enemies. 2010), https://www.army.mil/article/49291/ pershings_decision_how_the_united_states_fought_ a coalition force during WWI an initial im- Ultimately, our success will depend on its_first_modern_coalition_war. possibility. The U.S. and its allies eventually being well-read students of history and 13. David Thornton, Army Trying to Keep up with overcame those shortfalls, but at a cost in active architects of the law’s development in Changing Character of War, FEDERALNEWSRADIO.COM, human lives we can never directly measure. the face of emerging technology. TAL (Jun. 25, 2018, 6:00 PM), https://federalnewsradio. com/army/2018/06/army-tries-to-keep-up-with- As the Chief of Staff of the Army (CSA) changing-character-of-war/ (quoting General Mark has noted, the last time warfare changed as Milley at the 21 June 2018 Capitol Hill National radically as it is now changing was during BG Berger is the Commander of the United Security Forum). the 1920s and 1930s.13 Judge advocates must States Legal Services Agency and Chief Judge of 14. Id. address these changes and be ready for what the U.S. Army Court of Criminal Appeals. comes next. The CSA reminds us that stay- ing on top of emerging technologies is what ensures our position of dominance in the Notes next fight.14 And in the fight after next. 1. Wilfred Owen, Dulce et Decorum Est, THE WAR POETRY WEBSITE, http://www.warpoetry.co.uk/owen1. Our readiness in the face of these ever html. changing challenges mandates deliberate 2. LEE CHARLES “BUCK PRIVATE” MCCOLLUM, Gassed, in thought about the future, particularly in the HISTORY AND RHYMES OF THE LOST BATTALION 16 , 16 context of our broader military and legal (1929). histories. To do that, we must know our 3. General Pershing notes in his memoir those discus- history. We must know how to use that his- sions “created a feeling of security” against the use of poisonous gases. See JOHN J. PERSHING, MY EXPERIENCES tory to help us answer questions like, “Why IN THE WORLD WAR 165 (1931). does use of chemical weapons require a new 4. The nature of war is violent and fundamentally legal framework, but use of airpower does political; it is, by nearly universal agreement,

November/December 2018 • Court is Assembled • Army Lawyer 3 LTG Charles N. Pede speaks during a World War I remembrance ceremony near Bony, France.

to this morning’s formation with our fallen brothers and sisters. I am reminded of the old Army adage—that every formation is a family reunion, and that is indeed what we have this morning. My name is Lieutenant General Chuck Pede and I serve as the 40th TJAG of the Army. On behalf of the senior leadership of the Army, Secretary of the Army Mark Esper, and our Chief of Staff, General Mark Milley, I am honored to participate in this ceremony today. The stones that surround us this morn- ing are filled with action, consequence, and yes, promise. Deceptively quiet and peaceful in pristine white marble, the years of careful tending of these stones have left them to us as a memory of a purpose-filled and conse- quential—albeit short—lived life. They were Soldiers of energy, faith, courage, fortitude, resilience, and devotion to their units and fellow Soldiers. And they were Soldiers (Credit: SFC Joshua Mann, Ohio National Guard PAO) whose lives ended too soon. The parents of Sergeant Blisset, age 23, remind us on his headstone that “[y]outh had scarcely written his name on her page.” News & Notes No parent should have to bury their child. But nations will—we hope rarely—ask their citizens to bear such costs. When the summons comes, it is our task as profes- sional Soldiers to do it well, and quickly, The Most Important Classroom and to minimize the harm to both Soldiers and civilians. But it is the Soldier’s lot to suffer the hardships of war, which brings us Remarks by Lieutenant General Charles N. Pede to this sacred ground. We know standing here that the parents of Captain Ben Franklin Dixon, 29 Sep 1918, of Private Anthony Ploharski, 31 On 8 August 2018, Lieutenant General The final words of Lieutenant Colonel Oct 1918, of Constance Sinclair, Nurse, 22 Charles N. Pede delivered the fol- John McCrae’s famous poem echo to us Feb 1918, and the parents of the other 1,841 lowing remarks at Somme American from a different field of battle. But these Soldiers buried here—for the rest of their Cemetery near Bony, France, during words, charged with clear expectation, lives struggled with their loss and prayed a remembrance ceremony which was remind each of us of our enduring obli- for meaning and consequence beyond the part of the World War I Centennial gation—to remember, and to give their trenches and the dangers endured. Those Commemorations: sacrifice meaning. buried here won the battle of St. Quentin Good morning. Secretary Matz, Canal, and as part of the American II Corps Take up our quarrel with the foe Mayor Geeslank, fellow general officers, pierced that which could not be pierced— To you from failing hands we throw Commissioners of the Centennial WWI the Hindenburg Line. We know that the The torch, be yours to hold it high Commission, our French friends and neigh- three Medal of Honor recipients buried If ye break faith with us who die bors, Mr. Craig—the superintendent of this among us, in their humility, share their We shall not sleep though poppies grow inspiring cemetery—and officers and Sol- recognition with every Soldier—row upon In Flanders Field1 diers of the United States Army, welcome row in this cemetery.

4 Army Lawyer • News & Notes • November/December 2018 As an Army, we have reinvested in our cause and not for conquest, it could be artillery on unimaginable scales, tunnels, fallen Soldiers this week. We have walked found in this cemetery. Here was our only mine shafts, and the inevitably challenging the ground they walked, reimagined the conquest; all we asked . . . was enough . . . coalition operations, across languages and challenges and horrors they faced, and soil to bury our gallant dead.” cultures, on a scale never before seen or walked the rows of stones they inhabit. It And like the Soldiers who crossed again attempted. We talk today of multi is for us as Soldiers, who now carry their the icy waters and marched on Christmas domain operations. The Soldiers standing legacy, to remember their sacrifice, to carry morning in the snow to attack the Hes- with their cross today breathe into us the the torch they have passed to us, and to sians in Trenton, New Jersey, in brutal wisdom of their day, so that we might learn bring them back to life in a way that only conditions—so did the American Soldiers from them and their experience. They Soldiers can do. at the Somme. They fought under truly adapted to a new battlefield that was clearly I imagine as we look out upon these unimaginable conditions. Thomas Paine multi domain, fast evolving and ruthlessly rows of stones, proud Soldiers standing to, inspired George Washington’s Soldiers lethal—just like ours today. and smiling because you have called out by reminding them that they were neither How they did this is our lesson. This their name. summer soldiers nor sunshine patriots—they cemetery is their classroom. We are their It has been said that when you remem- were indeed Soldiers who could be counted students. It is our task to take up the lessons ber a fallen Soldier by uttering their name, on when it was hard, and ugly, and cold. and learn from them—and never allow their unit—they live again. The American Soldiers of the Somme were ourselves to think that time lessens the When you walk these rows, read a not summer soldiers or sunshine patri- importance of their teachings. Soldier’s name; for the sound of their name ots, either. The Soldiers of the Somme John Oxenham wrote of their sacrifice: may be the first time it has filled the air were the real thing. Tough, resilient, and since they pushed out their last breath. determined. Tread softly here! Go reverently and slow! And so we should always remember So today, we remember that these Yea, let your soul go down upon its knees first that each of these Soldiers represented men died for an idea as powerful as any on And with bowed head and heart abased, promise, and that in their sacrifice of a long earth—the desire to be free and to deter- strive hard life, with a wife and children at their side, mine one’s own destiny. They served a To grasp the future gain in this sore loss! they gave us our futures—our lives with all cause greater than themselves when their For not one foot of this dank sod but the joys and sorrows that make for a full country called. drank life. What they lost, we gained. Each cross And finally, I would ask each of us Its surfeit of the blood of gallant men. represents an unpayable debt to them and today to think about the challenges the Who, for their faith, their hope—for life their parents and families whose dinner Soldiers of 1918 faced. I imagine that each and liberty. table always held an empty chair. of the men standing in the shadow of their Here made the sacrifice—here gave their Our first General-in-Chief of our stone today want each of us to learn from lives American Armies, George Washington, their deaths. Professional Soldiers reflect on And gave right willingly—for you and me. once said “[t]he willingness with which our the past for many reasons: most impor- God help us if we fail to pay our debt young people are likely to serve in any war, tantly, to understand the past deeply, so that In fullest full and all unstintingly! no matter how justified, shall be directly we might better defend our country; and proportional to how they perceive veterans to better equip ourselves to keep the man To those fallen, we thank you for the of earlier wars were treated and appreciated and woman to our left and right alive in example you have given us. We gratefully by our nation.” the future. It is why, frankly, the Center of carry your legacy of determined victory Your presence here today tells each of Military History exists, and why your com- on the battlefield, and we carry the torch these Soldiers that while you may not have manders have brought you here—to learn proudly so that you may rest peacefully known them personally, they matter, and from the Soldiers who came before you. beneath the poppies. TAL you recognize it. Whenever we are tempted to describe These men and women that stand our modern world as more complicated Notes silently with us today also represent our than in the past, we need only think back 1. John McCrae, In Flanders Fields, https://www.poet- ryfoundation.org/poems/47380/in-flanders-fields. Nation’s tribute—our payment on the altar to 1918. All of these Soldiers spent most of of freedom. This is not melodrama. Armies their lives among horses and candle flames and nations are sometimes criticized for to light their way, and paper and couriers, fighting wars of aggression or conquest. runners and dispatch riders to communicate These Soldiers truly fought for the purest on the battlefield. of ideals—so that people may live in peace, Imagine the speed of change and the speak their own language, and live free agility demanded of the common Soldier from aggression. and officer who now faced motorized General Mark Clark said, “[i]f ever vehicles, tanks, air delivered gas weap- proof were needed that we fought for a ons, machine guns, radio and telephone,

November/December 2018 • News & Notes • Army Lawyer 5 LTG Charles N. Pede speaks to attendees of the WWCLE at TJAGLCS before the group underwent a trial run of the Army’s new physical fitness test (Credit: Jason Wilkerson, TJAGLCS).

considerations as part of multi-discipline teams as we reshape our home towns. In furtherance of thinking hard about the future, COL Ian Iverson, Strategic Ini- tiatives Officer, and COL Bill Smoot, Chief, Criminal Law Department at OTJAG, presented a panel on the strategic initia- tives process as it relates to the Military Justice Redesign Pilot Program (MJRPP). Four SJAs whose offices are participating in the pilot program, discussed how they instituted the program in their offices and provided insight on how the program is working. The conversation sparked lively discussion from the audience, inspiring attendees to consider the benefits and challenges of MJRPP implementation in their own jurisdictions. Other dynamic, future-oriented presentations included a discussion of the myriad legal issues related to implementing future Army weapons, Thinking Hard, Recommitting, and as well as a thought-provoking presenta- Reconnecting—the 2018 World Wide CLE tion by the Deputy Commanding General of Army Futures Command, LTG Eric Wesley. The audience was also privileged By LTC Megan Wakefield, Strategic Initiatives Office to hear from the Undersecretary of the Army, the Honorable Ryan D. McCarthy, on the Future of our Army. Undersecre- tary McCarthy challenged the attendees It happens every year—staff judge autonomous weapons, and Paul Scharre—a to maintain a global, cross-functional advocates (SJAs), regional defense coun- Senior Fellow at the Center for New focus in order to achieve the mission. The sel, and senior JAG Corps leaders across American Security and author of An Army week’s capstone speaker, GEN Stephen components gather at The Judge Advocate of None: Autonomous Weapons and the Future Townsend, Commanding General, Train- General’s Legal Center and School for a of War—asked the attendees to consider ing and Doctrine Command, challenged week of professional discourse and knowl- the ethical and legal concerns created by the audience even further. Using examples edge sharing. autonomous weapons and artificial intelli- from his most recent deployment as the This year, after a warm welcome from gence. Richard Kidd, the Deputy Assistant Commander, Combined Joint Task Force, the Commander of The Judge Advocate Secretary of the Army for Installations, Operation Inherent Resolve, he engaged General’s Legal Center and School, BG Energy, and the Environment, gave a in a dialogue with the attendees about R. Patrick Huston, LTG Charles N. Pede presentation on “installations of the future” commanders’ compliance with the Law challenged all of the participants to do three and challenged attendees to change their of Armed Conflict (LOAC) and posed the things during their five days in Charlottes- perspective on military installations as safe question of whether commanders have ville: think hard, recommit, and reconnect. havens and areas that are removed from the an imperative to reply to media articles An all-star cast of guest speakers joined fight. In multi-domain operations, Army alleging that LOAC has been violated. In JAG Corps leaders at the school to help the installations constitute our strategic support addition to focusing on the future, the attendees meet the first part of the chal- area, and as such, they are not immune WWCLE provided ample opportunity lenge: to think hard, particularly about the from evolving threats in today’s complex for attendees to recommit by focusing on future of the Army and the future of the world. Changes to military installations are the top priority of the Chief of Staff of the Corps. Few topics inspire bigger thoughts likely, and judge advocates will be on the Army and TJAG—readiness. One com- on the future than artificial intelligence and front lines, anticipating legal and policy ponent of such readiness is our physical

6 Army Lawyer • News & Notes • November/December 2018 training. First Sergeant Charlene Crisp— with help from Noncomissioned Officer Academy Soldiers, ALC students, and SLC students—set up a first-rate run-through of the new Army Combat Fitness Test (ACFT) for the WWCLE attendees on Tuesday morning. Attendees were given an opportunity to try each of the ACFT events while the NCOs provided constructive critique. Participants walked away with a greater appreciation of the challenges the ACFT’s implementation will present and with some ideas on how to prepare them- selves and their teams for ACFT success. Understanding the current fight is an integral part of readiness. LTG Joseph Anderson, the Army’s G-3, briefed the attendees on the National Defense Strategy and provided an Army Operations Update. Afterward, the audience heard from Army Service Component Command SJAs, Na- tional Guard SJAs, and Army Reserve SJAs. All of these presentations provided timely, thought-provoking information about the state of the Army and the Corps. In his presentation, TJAG shared with attendees that there is no better time than the present to recommit—recommit to the profession of soldiering and recommit to providing principled counsel. Toward that end, BG (Ret.) John Cooke—currently the Director of the Federal Judicial Center and formerly Brigadier General R. Patrick Huston, Commanding General of The Judge Advocate General’s Legal Center and School, addresses audience members in Decker Auditorium on the first day of the WWCLE (Credit: the Army’s representative on the committee Jason Wilkerson/TJAGLCS). entrusted to write the 1984 Uniform Code of Military Justice—talked about principled library in the Department of Defense and a programs—as Distinguished Members of counsel in times of change. Few people can destination library for war crimes research. the Regiment.Throughout the week, there impart more insight regarding principled On Tuesday evening, the WWCLE were also roundtable discussions with the counsel in times of change than an indi- participants attended a formal reception. Reserve and National Guard regarding vidual who has served in such positions. The event provided the attendees an their focus on AC/RC Integration “Next.” With all of that thinking and recommitting, opportunity to reconnect with each other, The Regimental Historian and Archivist it was time for the attendees to recon- as well as to reconnect with JAG Corps addressed the attendees, inspiring them to nect with each other and with JAG Corps alumni. Lieutenant General Pede had the look to history in order to shape the future. alumni. Lieutenant General Pede, with help honor of presenting the Distinguished Major General Stuart Risch closed the week from our Regimental Historian and Archi- Service Medal to COL James Pohl on the by delivering an inspiring speech on the vist, Mr. Fred Borch, and from Honorary occasion of his retirement from his position importance of individual moments in our Colonel of the Regiment COL (Ret.) Dick as the Chief Trial Judge for the Military lives and making those moments count. He Gordon, officially named the Regimental Commissions, after eight extensions on spent time remembering the teammates we Library for COL William Winthrop, the active duty. Lieutenant General Pede also have lost over the past year, and he bid a judge advocate who published the semi- recognized Mr. Aubrey Daniel—a former fond farewell to those JAG Corps members nal work on military justice, Military Law Army judge advocate and lead trial counsel who are transitioning to retirement. Major and Precedents, in 1880. The library, which in the prosecution of 1LT William Cal- General Risch reminded the audience, as boasts JAG Corps artifacts, shelves chock ley from the My Lai massacre—and MG LTG Pede did at the beginning of the week, full of books—from legal tomes to works on Kenneth Gray—a former Deputy Judge that in the end, what makes the Corps leadership and history—and a war crimes Advocate General and the architect of the great is every member of the team working archive, is the most comprehensive legal summer internship and minority recruiting together to accomplish the mission. TAL

November/December 2018 • News & Notes • Army Lawyer 7 6. An Oath Above 1 On 20 July 2018, SPC Crista Harvey, left, re-enlisted and took her Oath of Office while soaring over 3,000 feet above Fort Bragg in a Black Hawk Helicopter. Both SPC Harvey and MAJ George Lavine overcame their fear of heights for this out-standing occasion.

7. Marching for Proficiency On 20 July 2018, SGT Logan White (right) and CPT Christopher Hartnett (left) were awarded the Kruis Voor Betoonde Marsvaardinheid (Cross for Marching Profi- ciency) for completing the 102nd Four Days Marches in Nijmegen, Netherlands. This grueling event requires participants to march over 160 kilometers (100 miles) with a minimum of 11 kilograms of weight in four days around Nijmegen, Netherlands. Five thousand eight hundred military members from twenty-eight nations participated in the marches alongside approximately 41,000 civilians. Sergeant White and CPT Hartnett are members of the Wiesbaden Legal Center attached to the U.S. Army Europe OSJA. 1. Cain Earns German 4. The Future is in Austin Proficency Badge On 13 July 2018, the U.S. Army officially 8. JAG Knowledge CPT Cameron Cain, assigned to the Cyber announced Austin, Texas as the location of Management Course Center of Excellence and Fort Gordon, its new Futures Command Headquarters. The Judge Advocate Knowledge Man- Georgia, represented the Office of the Members of the OSJA of Futures Com- agement Course was held at Fort Belvoir, Staff Judge Advocate in competing for the mand, currently housed in their temporary Virginia from 23–27 July 2018. Thirteen German Armed Forces Proficiency Badge. offices in Crystal City, Virginia, are, from students participated in and graduated He finished first in many of the events and left to right, is CPT (P) Charles Pino, CW4 from the course. The student population earned a Silver Badge for his efforts. He is Sarah Javins, COL Michael Wong, LTC Jef- consisted of one officer, eight warrant pictured with his parents, Jerry and Cindy, frey Dietz, Susan Henry, MAJ John Dohn, officers (active duty and reserve), one and the Fort Gordon Staff Judge Advocate, and Deborah Muldoon. noncommissioned officer, and three Army COL John McCabe. Civilians. This course presents a collabora- 5. 20th Coggins Anniversary tive environment to learn and understand 2. JAG Team Captures Bronze On 26 July 2018, the JAG Corps celebrated the doctrine, techniques, and execution of JAG Team brought home the Bronze for the 20th anniversary of the establishment of the knowledge management process, all USARPAC, out of 24 teams representing the SGT Eric L. Coggins Award. This award while designing solutions to issues facing combat veterans from 3 countries (an Aus- is given to the paralegal specialist who best the JAG Corps. tralian team won). In the attached photo, exemplifies the attributes of competence, from L-R, SGT Robert Cuizon, CPT Mi- character, and commitment through excep- 9. Omari Outstanding chael Keoni Medici, COL George Smawley, tional leadership and technical service. This On 26 July 2018, CPL Owen Omari, third LTC Treb Courie, and CW4 Anita Francis. year’s winner is SGT DeJamine Bryson, from left, of the Task Force Spartan Ad- Schofield Barracks, Hawaii. ministrative Law NCOIC, graduated from 3. Strum Honor Grad Pictured here, from left to right, is the Basic Leader Course on the Comman- On 28 June 2018, the Noncommissioned Mrs. Janice Waugh, mother of the late SGT dant’s List. He also received two coins Officer’s Academy at The Judge Advocate Eric L. Coggins, LTG Charles N. Pede, SGT for his outstanding performance. Omari General’s Legal Center and School grad- Bryson, and CSM Osvaldo Martinez, Jr. is pictured with, from left to right, MAJ uated its Advanced Leader Course (ALC) William Dunn, MSG Stacey Arrigoni, and 501-18. The Distinguished Honor Graduate Task Force Spartan HHBN Commander was SGT Nathan Sturm, pictured right. LTC Erik Smith.

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10. Fort Gordon’s Legal Assistance Gets Distinguished On 20 July 2018, the Commanding General and Command Sergeant Major of the U.S. Army Cyber Center of Excellence and Fort Gordon presented Fort Gordon’s Legal Assistance Office with the American Bar Association’s Standing Committee on Legal Assistance for Military Personnel’s 2017 Distinguished Service Award. Pictured here, from left to right, is MG John B. Mor- rison, Ms. Mary Rae Dudley, Ms. Demetria 6 10 Ellison, and CSM Carlos M. Simmons.

November/December 2018 • News & Notes • Army Lawyer 9 Major Victor E. Ruehl served as a Division Judge Advocate in the AEF. His official identity card—in both English and French—is shown here.

the first time, Reserve and temporary first lieutenants and captains were authorized in the JAGD. When the U.S. entered World War I, all uniformed lawyers were Regular Army officers. So, who were these military attorneys? What did they do? And where did they do it? Since November 2018 marks the 100th anniversary of the armistice that ended World War I, now is the time to tell the story of lawyers who served in our Regiment a century ago.

The American Army in World War I In April 1917, Secretary of War Newton D. Baker, aided by Army Chief of Staff Hugh L. Scott and Assistant Chief of Staff Tasker Bliss, began organizing massive efforts to raise, clothe, equip, train, and ship U.S. Soldiers for service in France. Secretary Baker selected Major General (MG) John J. Pershing to be the AEF commander and sent him to France the following month. In June 1917, four regular infantry regiments sailed for France; when they arrived, MG Lore of the Corps Pershing formed them into the 1st Division. The 2d Division, consisting of a Marine brigade and an Army brigade, was formed in France in early 1918. All other divisions were raised in the U.S. and shipped to Judge Advocates in the Great War France, but this went slowly; by the end of 1917, there were only four divisions in the AEF, none of which were prepared for full- By Fred L. Borch scale combat.1 Organizing and managing a rapid expansion of what had always been a very small professional Army was incredibly When the Congress declared war Army had grown to 3.7 million, with challenging. What did the AEF need? on Germany and the other Central two million men serving in the American What was possible? And did the War Powers on 6 April 1917, America’s Expeditionary Force (AEF) in France. Department have the tools to raise and Army was ill-prepared to fight what As for the Judge Advocate General’s equip and supply a separate, independent would later be called the “Great War.” Department (JAGD), as the Corps was American Army located thousands of miles After all, the entire Army consisted of then known, it underwent a similar away from the U.S.? 125,000 Regular Army Soldiers and 67,000 transformation in size and organization: Ultimately, with manpower needs National Guardsmen along the Mexican from seventeen officers, four of whom satisfied by conscription (Congress passed border. Moreover, the Army was built were working in Washington, D.C., to a Selective Service Act in May 1917), the around regiments; larger units such as an unprecedented 426 judge advocates by Army organized volunteers and draftees divisions, corps, and armies existed only December 1918. For the first time, the into fifty-four divisions of 28,000 men each. on paper. But, by the time what we now Judge Advocate General was given the rank Forty-two of these divisions deployed to call World War I ended, on 11 November and pay of a major general (he had worn France. Twenty-nine would see combat. 1918—just nineteen months later—the a single star since the Civil War), and, for The first U.S. offensive action, an attack by

10 Army Lawyer • Lore of the Corps • November/December 2018 the 1st Division on Cantigny, took place in • Professor Felix Frankfurter, Harvard in uniform would be part of the “actual May 1918. In June, U.S. troops fought at Law School; fighting force,” only about half of the men Chateau-Thierry and Belleau Wood. The • Dr. James Brown Scott, leading authority chosen by the JAGD joined the AEF and following month, Americans were fighting on international law; deployed to Europe; the remainder did along the Marne River and Soissons. The • Professor John H. Wigmore, Dean of not leave U.S. soil. But their service in the greatest AEF contributions to the Allied Northwestern University; JAGD was exemplary, and many went on cause, however, came after August 1918 • Gaspar G. Bacon, son of Robert Bacon, to make even greater contributions in their when the U.S. First Army reduced the former U.S. ambassador to France; lives after the Army. Saint-Mihiel salient in two days and then, • Frederick Gilbert Bauer of Boston; Major General Crowder soon realized in September, launched massive attacks • George S. Wallace of Huntington, West that, regardless of the quality of the twenty between the Argonne Forest and the Meuse Virginia; civilian attorneys given direct commissions River. When the armistice ended the fight- • Nathan W. MacChesney of Chicago; as field grade officers, the JAGD needed ing in November 1918, there were almost • Lewis W. Call of Garrett, Maryland; more lawyers in uniform. As a result of 53,000 dead in the AEF; another 202,000 • Burnett M. Chiperfield, ex-Congressman this need, Congress passed legislation that had been wounded in action.2 from Chicago; authorized the appointment of Reserve and • Joseph Wheless of St. Louis; temporary captains and first lieutenants in Who were the Judge • George P. Whitsett of Kansas City; the JAGD. By 2 December 1918, there were Advocates? What did they do • Victor Eugene Ruehl of New York; 426 judge advocates in the JAGD: thir- and where did they do it? • Thomas R. Hamer of St. Anthony, Idaho; ty-five Regular Army Soldiers (one major The unprecedented expansion of the U.S. • Joshua Reuben Clark, Jr., of Washington; general, four brigadier generals, thirteen Army after Congress declared war on the • Charles B. Warren of Detroit; colonels, and seventeen lieutenant colonels) Central Powers required a complementary • Edwin G. Davis of Boise, Idaho; and and 391 in the Officers’ Reserve Corps and increase in uniformed attorneys to support Hugh Bayne of New York.6 National Army (seven colonels, thirty-nine the new division-based force. Initially, the lieutenant colonels, 245 majors, sixty cap- JAGD decided that obtaining direct com- The Army insisted—and well may have tains, and forty first lieutenants).9 missions for prominent civilian attorneys intended—that these twenty new judge Of the 426 attorneys who served in was the best way to support the Army. advocates would see action in France. As the JAGD between 1917 and 1919, the Consequently, on 17 June 1917, just two the Committee on Public Information biographical details about the following months after America entered the war, the explained: nine individuals—ranging in rank from War Department announced that it was lieutenant to major general—are a repre- commissioning twenty civilian attorneys It would be well to disabuse the public sentative sample of the larger group. What to be judge advocates. These attorneys mind of any superstition to the effect they did and where they did it also accu- were to “be assigned to a division of the that the applicants under the legal rately reflects what it was like to serve as an Army and . . . all of them would be Majors branch of the army are looking for a Army lawyer during the war. on the staff of the Judge Advocate General “snap” or for a “silk stocking” position in the field.”3 Since there were seventeen far in the rear of the actual fighting. Washington, D.C. uniformed lawyers in the JAGD at the The officers acting on the staff of the A fairly large number of judge advocates outbreak of World War I, adding twenty Judge Advocate General will be mem- never went overseas and never saw combat. majors more than doubled the size of the bers of the actual fighting force, and, In this regard, they were no different from department.4 in the pursuit of duty, will be brought other Soldiers like Dwight D. Eisenhower, According to the War Department, into the danger zone just as often as the future five-star general and U.S. pres- “a great many distinguished lawyers and other specialized commissioned men, ident, who also remained stateside while legal professors, men of national standing,” medical officers, for instance. The others sailed to France. applied to be Army lawyers. There were large percentage of casualties among The most senior Army lawyers worked so many “highly qualified” applicants, said army doctors fighting in France will in Washington D.C. Major General the Army, that it was “hard ... to select a stand as a convincing argument that Enoch Herbert Crowder who, as the Judge few from so much good material.”5 That military surgeons are not spared when Advocate General (tJAG) from 1911 to said, the Army’s Committee on Public the general assault begins.7 1923, was the top Army lawyer, also served Information announced that the following as Provost Marshal General in addition to had been selected to be directly commis- Of the twenty attorneys identified in his duties as tJAG.10 sioned as majors: the War Department’s press release, all Born in a log cabin in Missouri in but one—Gaspar G. Bacon8—ultimately 1859, “Bert” Crowder obtained an ap- • Henry L. Stimson, ex-Secretary of War; accepted direct commissions as majors in pointment to West Point in 1877. After • Professor Eugene Wambaugh, Harvard the JAGD Reserve. Additionally, while the graduation in 1881, then Second Lieutenant Law School; Army had insisted that these new lawyers Crowder joined the 8th Cavalry in

November/December 2018 • Lore of the Corps • Army Lawyer 11 During World War I, the AEF held some general courts-martial in Napoleon Bonaparte’s old headquarters located in St. Maixent, Deux Sevres, France. This photograph of court personnel was taken on 24 December 1918. Brownsville, Texas. During this tour, he focus away from military law and lawyers. MG Crowder’s efforts resulted in a dramatic studied law and was admitted to practice In an unprecedented move, Secretary Baker metamorphosis in the Army: in April 1917, before the Texas bar in 1884.11 appointed MG Crowder as the Army’s the Army consisted of two-thirds Regular Crowder joined the JAGD as a Provost Marshal General and put MG Army Soldiers and one-third federalized captain in 1891, and was promoted to Crowder in charge of implementing the National Guardsmen. When the fighting in major four years later. At the end of the newly passed Selective Service Act, the first Europe ended November 1918, the Army Spanish-American War in 1898, now draft since the Civil War. This meant that was seventy-seven percent National Army Lieutenant Colonel (LTC) Crowder was MG Crowder was in charge of the Army’s (draftees), ten percent National Guard, and in the Philippines. Over the next several transformation from a small professional thirteen percent Regular Army Soldiers. years, he distinguished himself in a variety all-volunteer force to a wartime Army con- MG Crowder was so successful that he of assignments, including service on the sisting largely of civilian draftees. Starting was offered a promotion to three-star rank Philippine Supreme Court. After a brief in May 1917, MG Crowder supervised the in 1918. Uncomfortable with the idea of tour in Washington, D.C., LTC Crowder registration, classification, and induction being a “swivel chair” lieutenant general, went to Japan, where he was the senior of over 2.8 million men. All male citizens MG Crowder refused the promotion and American observer with the Imperial between the ages of twenty-one and thirty instead—unsuccessfully—lobbied for a field Japanese Army during the Russo-Japanese years of age were required to register with command in France. War of 1904–1905. local draft boards. These boards, admin- During the war, MG Crowder found In 1911, Crowder was promoted to istered by civilians, decided who would himself, along with the entire military major general and took the oath as tJAG. He fill their quotas for the military and who justice system, under attack for being initiated a number of new legal changes, in- would work in industry. Those drafted “un-American.” After the trial of sixty-three cluding a revision of the Articles of War in were required to serve for the duration of alleged mutineers at Fort Sam Houston in 1916 and the publication of a new Manual the war, with compulsory military service November 1917, thirteen of the convicted for Courts-Martial. The outbreak of World ending “four months after a proclamation men were sentenced to death and hanged War I, however, shifted MG Crowder’s of peace by the President.”12 Ultimately, before their records were examined by

12 Army Lawyer • Lore of the Corps • November/December 2018 anybody, much less before the condemned confirmation. These boards had previously served as an associate justice until retiring men were given an opportunity to request been established by regulation; now they in 1962. clemency.13 In the public uproar that fol- were required by statute.15 In addition to Crowder and lowed, Brigadier General Samuel T. Ansell, Another World War I Judge Advocate Frankfurter, MAJ Hugh S. Johnson also who was serving as the Acting tJAG while was Major (MAJ) Felix Frankfurter, the served exclusively in Washington, D.C. MG Crowder focused on implementing future Associate Justice of the U.S. Supreme Johnson, who served as General John the Selective Service Act, charged that Court. Born in Vienna, Austria, in 1882, J. Pershing’s judge advocate during the courts-martial were “patently defective” and Frankfurter came to America when he was Punitive Expedition into Mexico, later needed immediate reform by Congress. twelve years old. headed President Roosevelt’s National The ensuing controversy, known today Although he spoke no English when Recovery Act (NRA) during the Great as the Ansell-Crowder Dispute, focused his family arrived in New York, he was a Depression. His bluntness and colorful use chiefly on the proper role of the com- brilliant student, and completed high school of language while at the NRA, soon familiar mander in the court-martial system. Ansell and college in a special program at the City to most Americans through its “blue eagle” and his allies insisted that because military College of New York in 1902. Frankfurter symbol, also earned him the nickname “Iron justice was almost wholly in the control of subsequently graduated first in his class at Pants.” Johnson popularized words like line officers without legal education and Harvard Law School in 1906. “bunk,” “crack-down,” and “chisler”—words training, results at trial were frequently Frankfurter worked as a civilian lawyer that are still part of the American lexicon.17 harsh, arbitrary, and capricious. They also in the War Department before leaving Born in Kansas in 1882, Johnson grad- complained that there was no system of Washington, D.C., to join Harvard’s law uated from West Point in 1903. After his appellate review; there was no appeal from faculty in 1916. In early January 1917, service with Pershing in Mexico, Johnson a convening authority’s approval of a court’s with war on the horizon, then Professor returned to Washington, D.C., where, in findings and sentence. Had there been some Frankfurter accepted a direct commission May 1917, he was made Deputy Provost sort of appellate process, insisted Ansell, the to major in the Reserve Corps of the JAGD. Marshal General and tasked with helping injustice of hanging convicted men without After the U.S. entered World War I in April to draft the regulatory framework that any opportunity for clemency or a thorough 1917, Frankfurter returned to Washington would implement the Selective Service Act. review of the court-martial record could for duty in the Office of the Secretary of By 1918, Johnson was a brigadier general have been avoided. Moreover, reforms War where he served as Secretary of War and in charge of the Army’s Purchase and were needed immediately—not later—as the Henry Stimson’s legal counsel. Supply Branch. According to the U.S. Army was trying more and more general He worked a variety of issues, in- Army’s Center of Military History, Johnson courts-martial: 6,200 in 1917 to over cluding the legal status of conscientious was “brilliant, young, impatient, and abra- 20,000 in 1918.14 objectors, and wartime relations with labor sive” and soon in “hot water with many of While Crowder vigorously defended and industry. Major Frankfurter refused his military colleagues, including the Chief the system against attacks by Ansell and to wear a uniform while on active duty; he of Staff.”18 Johnson left the job “disgruntled,” others, he nonetheless recommended was close friends with tJAG Crowder and but with a clear understanding of how gov- certain reforms to Congress. Ultimately, was apparently allowed to wear only civil- ernment bureaucracy worked. He also had revisions to the Articles of War enacted ian clothes during his time on active duty. acquired a reputation as a problem-solver in 1920 included greater protections for In his memoirs, Frankfurter explained why: and became a successful businessman and the accused. For the first time, the law was part-owner of a farm tractor manufac- required a pretrial investigation where the The reason I didn’t want to go into turing company in the 1920s. accused could offer evidence and witnesses. uniform was because I knew enough Another new feature was that all general about doings in the War Department England courts-martial would have a “law mem- to know that every pipsqueak John Baker White never got to France—or ber” detailed to them. This law member Colonel would feel he was more im- Germany—but he did deploy to England as was required to be a member of the JAGD portant than a Major . . . As a civilian the “Judge Advocate, Base Section No. 3, and, while he did not have powers akin to I would get into the presence of a American Troops in England” in January a judge in federal or state court, the law General without saluting, clicking 1918. Born in Romney, West Virginia, member ruled on interlocutory questions my heels, and having the Colonel in 1869, White’s formal education ended and instructed the court on the presump- outside say, “You wait. He’s got a when he graduated from high school. But, tion of innocence and burden of proof. He Colonel in there.”16 as did many men of his day, White “studied also ruled on the admissibility of evidence; law” with a law firm in Charleston, West in this regard, his decisions were final. After leaving active duty, Frankfurter Virginia, and, when he felt ready, took the Finally, Congress required tJAG to create a continued a stellar career. He declined to Supreme Court of Appeals examination to board of review (consisting of at least three be Solicitor General in 1933, but accepted be a lawyer and passed the Bar in 1897.19 officers) who would review the records of President Roosevelt’s nomination to the According to the biographical ques- trial for all sentences requiring presidential U.S. Supreme Court in 1939. Frankfurter tionnaire that White submitted to the

November/December 2018 • Lore of the Corps • Army Lawyer 13 Major General Enoch Crowder, who served as the Judge Advocate General from 1911 to 1921, took a leave of absence from his duties as the Army’s top uniformed lawyer to oversee the implementation of the Selective Service Act of 1917. In this photo, taken at the U.S. Senate Building on 27 July 1918, Crowder (second from left, front) poses with officers who assisted him at the second drawing of draft numbers. JAGD in February 1919, he served in the troops. Ultimately, White was the principal key to maintaining good order and disci- West Virginia National Guard from 1888 author of the entire law, which was titled, pline over U.S. troops in England. Since, to 1897, and in the 1st West Virginia “Discipline of Forces of Her Majesty’s Allies under international law, American soldiers Volunteers during the War with Spain.20 in the United Kingdom.”21 It permitted “the were in England at the invitation of the After being appointed a judge advocate in naval and military authorities and courts British, the U.K. authorities could have in- the U.S. National Guard in December 1917, of an Ally” on British soil to exercise “all sisted that they alone had jurisdiction over White travelled by rail to Hoboken, New such powers as are conferred on them by U.S. troops. It follows that White’s legisla- Jersey, and by ship to Liverpool, England, the law of that Ally.”22 In other words, if tion, which formalized a British willingness on Christmas Eve. When he arrived on U.S. military law authorized the Army to to give up this sovereign power and permit British soil, he took the train to London and prosecute Soldiers stationed in the United foreign military courts to hold proceedings took up residence at the Belgrave Mansion Kingdom (U.K.), the British authorities was an important legal event. American Hotel, Grosvenor Gardens. At fifty years of had no objection. In fact, the law directed commanders in the U.K. had the power age, then MAJ White was certainly one of British authorities to order any non-U.S. to discipline law breakers, and White’s the most senior Army lawyers in England. citizen (provided the U.S. government paid work demonstrated how the law could be For the next year, White worked his or her travel expenses) to appear “as used to enhance mission success. Being closely with British authorities in craft- a witness and give evidence” at any U.S. able to exercise criminal jurisdiction over ing legislation that would give the United military criminal proceeding. From the American uniformed personnel stationed States criminal jurisdiction over its own American perspective, this legislation was overseas continues to be so important

14 Army Lawyer • Lore of the Corps • November/December 2018 that Army lawyers today—working closely not. On the contrary, he “was always with served as a one-man “Superior Provost with the State Department—continue to be the division headquarters at the front,” and Court” and “conducted the trial of all involved in negotiating the Status of Forces served as Division Liaison Officer between important cases . . . of German civilian of- Agreements containing provisions like the 33rd and nearby British and French fenders.”34 He also “inaugurated the system those authored by MAJ White.23 units.28 In his own words, Chiperfield “was of the management of Civil Affairs for that continuously with the active troops, and part of Germany occupied by the 3d Army France shared with them the common hazards of Corps.”35 This meant that he organized While Crowder, Frankfurter, and Johnson their position” at Hamel, Chipelly, Gressaire American military supervision of all cities toiled on U.S. soil, and White worked in Woods, and on both banks for the Meuse and political units in the U.S. sector, in- England, Army lawyers like Burnett M. River during the Meuse-Argonnne cluding the administration of German civil Chiperfield, J. Leslie Kinkaid, Adam E. offensive.29 law. Not only was Chiperfield successful in Patterson, and Blanton Winship served Chiperfield was not boasting, as his civil affairs operations (“he received the with distinction in the AEF in France. Brigadier General W. K. Naylor, the Chief thanks of the German civil officials”36), but Burnett M. Chiperfield, like other of Staff of the 33rd Division, commended the system that he created was applied and judge advocates, was asked to fill out a him for both his legal advice and work as a copied by other Army organizations. one-page questionnaire on his service liaison officer. “Your desire for service ‘up at Like Chiperfield, J. Leslie Kincaid during World War I. Chiperfield, how- the front,’” wrote Naylor, “notwithstanding showed that he could contribute more to ever, submitted a single-spaced, three and the fact that your legitimate duties did not the AEF than his skills as a lawyer. Born one-half page typed resume of his career require you to go there, was greatly appre- in New York in 1884, Kincaid grew up in despite thinking “that whatever I have done ciated by me.”30 Naylor continued: Syracuse, where he attended high school [during the war] was better known to the and obtained his law degree from Syracuse Judge Advocate General’s Department than It adds greatly to the Chief of Staff’s University in 1906. He was admitted to even to myself.”24 feeling of security and peace of mind the Bar of New York in 1907. Like many Born in Dover, Illinois, in 1870, to know that he has dependable men men of his era, Kincaid had joined the Chiperfield was educated at Hamline as liaison agents. It precludes the state’s National Guard while still in college; University in St. Paul, Minnesota. During possibility of losing touch, and it is at age 19, he enlisted as a cavalry private. the Spanish-American War, he served as one of the most important, and I He continued to soldier, and, from June a lieutenant in the First Illinois Cavalry. might say, at times, one of the most to December 1916, was serving on the After the war, he remained in the Illinois dangerous duties.31 Mexican border as the Judge Advocate for National Guard and, as a lawyer, served as the 6th Division. Kincaid’s public service a judge advocate in the early years of the The Commanding General of the during these years also included being ac- 20th century. Chiperfield retired as a Guard 33rd Division likewise praised Chiperfield tive in state politics; he served as a member colonel in 1916 and transferred to the when he wrote that his “conduct has been of the New York Assembly from 1915 to National Guard Reserve. The year before, an inspiring example to other men.”32 1916. he had been elected to serve in the House of Given these accolades, it should come as no Kincaid sailed for France in 1918 Representatives and, as he did not run for surprise that the War Department awarded and was assigned to the 27th “New York” reelection, ended his service as a congress- the Distinguished Service Medal to MAJ Division as its judge advocate. In addition man in March 1917.25 Chiperfield for his exceptionally merito- to providing legal advice, MAJ Kincaid Two months later, having volunteered rious service while serving as Division also proved that he was a warrior. During for active duty with the JAGD, Chiperfield Judge Advocate. According to the official operations near Ronssoy, France, from was ordered to active duty as a major. He citation, Chiperfield “performed duty of September 28, Kincaid volunteered to was sent to Springfield, Illinois, where he great responsibility beyond that required” take command of a battalion of the 106th assisted in Illinois in the implementation of of an Army lawyer. “Constantly under Infantry Regiment because of the short- the new Selective Service Act in that state. hostile artillery fire, he kept his Division age of line officers on duty. According to According to Chiperfield, he “helped perfect Commander thoroughly informed for the his military records, he led the battalion the plans for the operations of the selective situation . . . going voluntarily and fre- throughout the fighting, demonstrating draft, assisted in the preparation of forms quently to the front line for information “courage and forcefulness without regard to be used, and wrote some of the literature and on several occasions opening serious to his personal safety, thereby setting a for the use of the various draft boards.”26 and extensive traffic blocks under shell splendid example for all ranks.”37 On one Almost a year later, in April 1918, fire.”33 occasion, Kincaid spotted a force of sixty Chiperfield sailed to France as the judge Chiperfield remained in Europe after to eighty Germans counter-attacking on advocate for the 33rd (Illinois) Division.27 the armistice and served as the “Judge his left. Knowing that there was no reserve While a lawyer ordinarily would set up Advocate General” [sic] for the 3d Army force to deploy against this German assault, shop in a rear area far away from the Corps during its occupation of Cloblenz, Kincaid “promptly organized his Battalion dangers of the battlefield, Chiperfield did Germany. In this assignment, Chiperfield headquarters runners, signalmen, and some

November/December 2018 • Lore of the Corps • Army Lawyer 15 stragglers, and attacked [the Germans] and a combat leader. Born in Georgia in 1869, and killing many of the enemy. His drove them back.”38 Kincaid himself manned Winship obtained his A.B. degree from prompt and fearless action enabled a machine gun during the fighting.39 Mercer in 1889. He was awarded a bache- the main raiding party to accomplish For his bravery under fire and ex- lor of laws degree from the University of its mission, and his personal conduct emplary service in uniform, Kincaid was Georgia in 1893 and subsequently practiced was a great inspiration to his officers awarded the Army Distinguished Service law in his home state. The surge of patrio- and men and contributed largely to Cross, the Belgian Order of the Crown, and tism that accompanied the outbreak of the the success of the raid.48 the British Distinguished Service Order. No Spanish-American War prompted Winship Army lawyer was more highly decorated in to join the U.S. Volunteers as a captain of Winship’s post-World War I legal World War I.40 the 1st Georgia Infantry. After three years achievements, including duty as TJAG As an African-American lawyer, Adam of fighting in the Philippines, he obtained from 1931 to 1933 were overshadowed by E. Patterson was a rarity from the moment a commission as an officer in the Regular his subsequent assignments. After leaving that he joined the Army in 1917. Born in Army and was soon an acting judge advo- active duty in 1933, Winship was appointed Walthall, Mississippi, in 1876, he attended cate. By 1904, Winship had transferred to the governor of Puerto Rico in 1934, which high school in Kansas City, Kansas, and the JAGD and held the rank of major.45 was widely viewed as a move by President Pueblo, Colorado. After graduating in 1897, Winship served in legal positions of Franklin D. Roosevelt to quell militant Patterson began studying law at Kansas State increasing responsibility until 1914, when sentiment for Puerto Rican independence. University; he earned his LL.B. in 1900. he began teaching law at the Army Service Ultimately, Winship’s tenure as governor Patterson then practiced law in Cairo, School, Fort Leavenworth, Kansas. In (which lasted until 1939), was a sore point Illinois, and Muskogee, Oklahoma, before December 1917, he sailed for France where for many men and women on the island, moving to Chicago. According to his ques- American troops were belatedly joining the especially when he ordered police to put tionnaire on file in the National Archives, war that had been raging in Europe since down a Nationalist Party of Puerto Rico Patterson “tried an important case” with the 1914. Promoted to colonel while in the rally for independence in the city of Ponce famous lawyer, Clarence Darrow.41 AEF, Winship apparently held three jobs si- on 21 March 1937. In what some call the Patterson was also involved in local, multaneously: Judge Advocate, First Army; Ponce Massacre, police fired on the crowd, state, and national politics. In 1916, he Commander, 110th Infantry Regiment; killing between twenty and twenty-two “managed the national campaign for the and Commander, 118th Infantry Regiment. people (according to differing accounts) Democratic Party among colored voters” Both regiments were part of the 28th and wounding about 120. While there are and subsequently was president of the Division and fought in some of the war’s still Puerto Ricans who desire indepen- National Colored Democratic League.42 major operations, including Champagne- dence from the U.S., Congress granted U.S. Patterson was closely associated with Oscar Marne, Aisne-Marne, and Saint-Mihiel.46 citizenship to all inhabitants of the island in DePriest, a prominent African-American Winship received the Distinguished 1940.49 alderman in Chicago.43 Service Cross—second only to the Medal Winship was recalled to active duty Patterson joined the Army shortly of Honor—for his “extraordinary hero- during World War II. He served as one of after American’s declaration of war in April ism in action near Lacheussee, France, on the seven members of the military commis- 1917, and spent ten months as an Infantry November 9, 1918,” just two days before the sion created by President Roosevelt in 1942 captain at Camp Dodge, Iowa. After the armistice that ended combat operations.47 to try Nazi saboteurs arrested in the U.S. 92nd “Buffalo” Division—an all-black unit The official citation reads: The event, and the Supreme Court deci- consisting of draftees from across the U.S.— sion of In re Quirin, are frequently cited as was organized in the AEF, General John J. While commanding his regiment precedent for the on-going trials of alleged Pershing appointed Patterson as the 92nd’s and observing from his outpost line terrorists at Guantanamo Bay, Cuba. When Division Judge Advocate. the progress of a daylight raid on he retired in 1944 at age seventy-five, After arriving in France and joining the enemy by a detachment of his Winship was the oldest Army officer on his unit, Patterson “personally handled all officers and men, he discovered the active duty. He died in Washington, D.C., offenses committed by Soldiers, from ab- enemy enveloping the right flank of in 1947. sence without leave to murder.” 44 No doubt the raiding party. Hastily collecting in recognition of his fine work, General and organizing a small party from Germany Pershing approved Patterson’s promotion the few available men, he, regard- After the Armistice in November 1918, to major on 5 October 1918. Patterson less of his own safety, personally most judge advocates returned to civilian made history as the first African-American led them forward under heavy rifle, life and the civilian practice of law. A small lawyer to serve in the JAGD and one of machine-gun, and shell fire, and number, however, like MAJ Matthew only a handful of black officers to reach covered the exposed flank, advancing H. Allen, deployed to Germany to serve field-grade rank. over a deep tank obstruction and with the Army of Occupation. Born in Colonel Blanton Winship was a career through enemy wire to their second Kenensville, North Carolina, in 1884, Allen judge advocate who also proved his value as line, destroying several machine guns graduated from the University of North

16 Army Lawyer • Lore of the Corps • November/December 2018 Carolina’s law school in 1906 and was admitted to the North Carolina State Bar that same year. Over the next ten years, Allen practiced law in Goldsboro and New Bern, North Carolina. Then, after America entered the war on the Allied side, Allen joined the Officers’ Reserve Corps in May 1917. After serving briefly as a captain in the 113th Field Artillery Regiment, Allen was commissioned as a major in the JAG Reserve Corps and was assigned as the Assistant Judge Advocate, 31st Division, located at Camp Wheeler, Georgia. On 16 November 1918, MAJ Allen was ordered to report to the Army’s 3rd Division, and he sailed for Europe. In January 1919, Allen was appointed “Superior Provost Court for the Kreis of Mayen,” with duty in Andernach, Germany. According to official records, this made him a one-person supervisor for forty-four inferior Provost Courts. Allen also had “general supervision of the administration of ‘War Laws’” in the territory around Mayen, which was then occupied by the 3rd Division.50 Major Allen filed a report in March 1919, in which he detailed the “nature and extent” of his work.51 According to this doc- ument, a total of 320 trials were held. Two hundred eighty six persons were convicted and 100 imprisoned. Additionally, 25,600 Marks were collected in fines. The offenses of the 286 convicted defendants varied: Major General Blanton Winship (shown here as a colonel) was a career judge advocate. While serving as an Army lawyer, he also commanded two Infantry regiments in France and was decorated with the • Selling wines and liquor 40 Distinguished Service Cross. Winship served as TJAG from 1931 to 1933. • Preaching propaganda 2 • Circulating false rumors 4 prohibited—almost certainly a recognition and outstanding Soldiers. Since the entire • Possession of firearms 12 that depriving Germans of beer would be JAGD consisted of slightly more than 400 • Possession of American goods 12 both impossible and ill-advised. men out of a total Army of 3.7 million, it • Failure to carry identification cards 96 In addition to his criminal law duties, is not an overstatement to stress that these • Larceny of American goods 14 Allen also was tasked with investigating Army lawyers made contributions greatly • Disobedience of military orders 15 “all claims for property damage or personal disproportionate to their numbers. • Selling food to Americans 9 injury submitted by civilian enemies.”52 Crowder’s implementation of the • Prostitutes and venereal disease 42 This claims responsibility meant that Allen Selective Service Act of 1917 was critical to • Miscellaneous, minor offenses 40 examined the claims filed by Germans the success of the entire American war ef- against the U.S. for damage to their fort. Frankfurter’s work as legal counsel to In the context of the times, the Army’s property or injury to themselves caused or Secretary of War Stimson similarly meant ban on selling wine and alcohol in the committed by U.S. troops. Just as today, the that a judge advocate was contributing to occupied territory makes sense; after all, Army paid these claims after a thorough the Army at the highest level. at home, the Eighteenth Amendment’s investigation.53 Outside Washington, D.C., White’s prohibition on alcoholic beverages came efforts in London helped maintain good into effect in January 1920 and lasted for Conclusion order and discipline among U.S. troops the next thirteen years. But note that selling Judge advocates in World War I demon- in England. Chiperfield’s work as a liai- beer in the occupied territory was not strated that they were both superb lawyers son officer at the front in France, and the

November/December 2018 • Lore of the Corps • Army Lawyer 17 extraordinary heroism of Kincaid and ADVOCATE GENERAL’S OFFICE, AND THE REALIGNMENT OF 29. Id. IVIL AND ILITARY ELATIONS IN ORLD AR Winship, likewise showed how uniformed C M R W W I (2017). 30. Id. 10. Prior to 31 January 1924, the top uniformed lawyer attorneys could enhance mission success in 31. Search for Burnett Chiperfield, BIOGRAPHICAL DIREC- in the Army was “the Judge Advocate General.” On non-legal ways. TORY OF THE UNITED STATES CONGRESS, http://bioguide. that day, however, War Department General Order congress.gov. Finally, the challenges faced by No. 2, announced that the position would now be supra Patterson as the first African-American known as “The Judge Advocate General.” 32. Chiperfield Questionnaire, note 24. lawyer to serve in the JAGD deserve 11. For more on Crowder, see DAVID A. LOCKMILLER 33. Search for Burnett Chiperfield, BIOGRAPHICAL DIREC- & LEWIS B. HERSHEY, ENOCH H. CROWDER: SOLDIER, TORY OF THE UNITED STATES CONGRESS, http://bioguide. special mention. In a period where Jim LAWYER, AND STATESMAN (1955). See also, Fred L. Borch, congress.gov. Crow reigned in the South and men and The Greatest Judge Advocate in History? The Extraordinary 34. Chiperfield Questionnaire, supra note 24. women of color faced discrimination as a Life of Major General Enoch H. Crowder (1859–1932), ARMY LAW., May 2012, at 1–3. 35. Chiperfield Questionnaire, supra note 24. matter of routine, Patterson’s service in the 36. Chiperfield Questionnaire, supra note 24. 92nd Division demonstrated that African- 12. BERNARD ROSTKER, I WANT YOU!: THE EVOLUTION OF THE ALL-VOLUNTEER FORCE 24 (2006). For more on 37. Questionnaire for the Judge Advocates Record of Americans merited an expanded role in the the draft in World War I, see GERALD SHENK, WORK OR the War, J. Leslie Kincaid, NARA, Washington, D.C., U.S. Army. FIGHT!: RACE, GENDER, AND THE DRAFT IN THE WORLD Record Group 153, Records of the Office of the Judge WAR ONE (2005). See also, GEORGE Q. FLYNN, THE Advocate General, Entry 45, Box 3. While this article has only touched on DRAFT, 1940–1973 (1993). the experiences of a handful of the Army 38. Id. 13. For more on the trials arising out of the Houston Id lawyers who served in World War I, the Riots, see JOHN MINTON, THE HOUSTON RIOT AND 39. . story of these judge advocates—who they COURTS-MARTIAL OF 1917 (1990). See also, GARNA 40. Only one other judge advocate was awarded the were, what they did, and where they did L. CHRISTIAN, BLACK SOLDIERS IN JIM CROW TEXAS, Army Distinguished Service Cross for extraordinary 1899–1917 (1995). heroism in World War I. This was then COL Blanton it—should not be forgotten as we commem- infra 14. THE ARMY LAWYER, supra note 4, at 105. Winship (discussed ) who, like Kincaid, earned orate the 100th anniversary of the end of the decoration while in command of a line unit. World War I. TAL 15. For more on controversy over reforming the Winship would later serve as The Judge Advocate Articles of War, see Terry W. Brown, The Crowder- General (TJAG) from 1931 to 1933. Ansell Dispute: The Emergence of General Samuel T. Ansell, 41. Clarence S. Darrow (1857–1938) was a criminal Fred L. Borch is the Regimental Historian & 35 MIL. L. REV. 1 (1967) [hereinafter Crowder-Ansell Dispute]. As for Crowder, he retired from active duty defense lawyer known for his eloquence. He is perhaps Archivist for the The Judge Advocate General’s in 1923, after 46 years of service. Major General best known for representing the teenaged killers Corps. Crowder then topped off his remarkable career as a Leopold and Loeb in 1924 and John T. Scopes in the soldier by immediately accepting an appointment as so-called Scopes Monkey Trial in 1925. the first U.S. Ambassador to Cuba, a post he held until 42. Questionnaire for the Judge Advocates Record of he left Havana in 1927. He died in 1932. the War, Adam E. Patterson, NARA, Washington, 16. THE ARMY LAWYER, supra note 4, at 118. For a D.C., Record Group 153, Records of the Office of the 1.Notes David Trask, The Entry of the USA into the War and short biography of Frankfurter, see MELVIN I. UROFSKY, Judge Advocate General, Entry 45, Box 4 [hereinafter its Effects, in WORLD WAR I: A HISTORY 239, 245 (Hew FELIX FRANKFURTER: JUDICIAL RESTRAINT AND INDIVIDUAL Patterson Questionnaire]. Strachan ed., 1998) [hereinafter Trask]. LIBERTIES (1991). 43. Oscar DePriest (1871–1951) was a prominent black 2. For more on the AEF in World War I, see RICHARD 17. For more on Johnson’s tenure at the NRA, see leader in Chicago in the early years of the last century. S. FAULKNER, PERSHING’S CRUSADERS: THE AMERICAN Hugh S. Johnson, Man of the Year, TIME, Jan. 1, 1934. He was elected alderman of Chicago’s second ward in SOLDIER IN WORLD WAR I (2017). 1915, becoming the first African-American elected to 18. http://www.arlingtoncemetery.net/hsjohnson.htm 3. James Brown Scott, Judge Advocates in the Army, 11 the city council of Chicago. In 1928, DePriest became AM. J. INT’L L. 650, 650 (1917). 19. Questionnaire for the Judge Advocates Record of the first black to win a seat in the U.S. House of the War, John Baker White, National Archives and Representatives in the 20th century. 4. JUDGE ADVOCATE GENERAL’S CORPS, U.S. ARMY, THE Records Administration (NARA), Washington, D.C., ARMY LAWYER: A HISTORY OF THE JUDGE ADVOCATE 44. Patterson Questionnaire, supra note 42. Record Group 153, Records of the Office of the Judge GENERAL’S CORPS, 1775–1975 116 (1975) [hereinafter Advocate General, Entry 45, Box 1. 45. THE ARMY LAWYER, supra note 4, at 149-51. THE ARMY LAWYER]. 20. Id. 46. Id. 5. Trask, supra note 1, at 651. 21. Id. 47. War Department, General Order No. 9, 1923. 6. Id. 22. Id. 48. Id. 7. Id. 23. Id. 49. MARIE G. PIETRANTONI, BLANTON WINSHIP GOVERNOR 8. While he could have served in the JAGD, Gaspar OF PUERTO RICO: A STUDY OF HIS GUBERNATORIAL Griswold Bacon (1886–1947) decided instead to serve 24. Questionnaire for the Judge Advocates Record of ADMINISTRATION 1934-1939, 132-169 (2016). as a Field Artillery officer during World War I. He the War, Burnett M. Chiperfield, NARA, Washington, was a member of the 81st Division and left active duty D.C., Record Group 153, Records of the Office of the 50. Questionnaire for the Judge Advocates Record of as a major. During World War II, Bacon obtained a Judge Advocate General, Entry 45, Box 1 [hereinafter the War, Matthew H. Allen, NARA, Washington, commission as a major in the Army Air Forces and Chiperfield Questionnaire]. D.C., Record Group 153, Records of the Office of the took part in the D-Day landings in Normandy on 6 Judge Advocate General, Entry 45, Box 1. 25. Search for Burnett Chiperfield, BIOGRAPHICAL DIREC- June 1944. He was honorably discharged as a colonel Id TORY OF THE UNITED STATES CONGRESS, http://bioguide. 51. . in 1945. Parkman Dexter Howe, Gaspar Griswold Bacon, congress.gov. 52. Id. PROCEEDINGS OF THE MASSACHUSETTS HISTORICAL SOCIETY 426–428 (Oct. 1947–May 1950). 26. Id. 53. Id.

9. FAULKNER, supra note 2. For a comprehensive 27. For more on the 33rd Division in World War I, study of Crowder and the JAGD in World War I, see FREDERIC L. HUIDEKOPER, THE HISTORY OF THE 33RD see JOSHUA E. KASTENBERG, TO RAISE AND DISCIPLINE AN DIVISION A.E.F. (1921). ARMY: MAJOR GENERAL ENOCH H. CROWDER, THE JUDGE 28. Chiperfield Questionnaire, supra note 24.

18 Army Lawyer • Lore of the Corps • November/December 2018 At the time, it was clear to almost everyone that President Nixon had inter- fered in the Calley case in response to angry letters, draft-board resignations, and public opinion polls showing that the vast major- ity of Americans viewed Lieutenant Calley either as a scapegoat or as a Soldier simply doing his duty. Daniel thought otherwise, and wrote to Nixon that it was shocking to him that “so many people across the nation have failed to see the moral issue which was involved in the trial of Lieutenant Calley— that it is unlawful for an American soldier to summarily execute unarmed and unre- sisting men, women, children, and babies.” Moreover, continued Daniel, Nixon’s unprecedented intervention in the court-martial, occurring as it did before the record of trial had been typed up or gone to the convening authority for action, had fur- ther elevated a mass murderer of innocents into a national hero. The intervention in- jected politics into the judicial system whose “fundamental precept” was that the law must be free of such politics. The intervention failed to uphold moral principles concerning protection of the weak and it damaged the (Credit: OTJAG Strategic Initiatives Office) credibility of the military justice system. Daniel’s letter was “a magnificent expression of American idealism,” The Aubrey Daniel Honored with New York Times said in an editorial the day after it printed the letter in full.1 It was a Distinguished Member Status “courageous statement of what this country is really all about: respect for human free- dom, for individual rights and for impartial By Fred L. Borch justice under law.”2 Fifty years after the incident at My Lai, LTG Pede said he wanted the lawyers under his command to remember what Daniel did. On 16 August 2018, The Judge Advocate and Daniel’s mostly extemporaneous closing “It was the principled stand of Mr. Daniel General of the Army (TJAG)— argument has been singled out by trial that I’ve always admired,” Pede said at the Lieutenant General (LTG) Charles attorneys for its excellence. But LTG Pede ceremony honoring Mr. Daniel, who, at age N. Pede—honored Mr. Aubrey Daniel stressed that he was honoring Daniel with seventy-seven, has retired from the practice with Distinguished Member status in Distinguished Member status for another of law and lives full-time in Italy. TAL our Regiment. Daniel, who served as a reason: a letter of protest that then Captain judge advocate captain in the late 1960s Daniel wrote to President Richard M. Nixon Fred L. Borch is the Regimental Historian & and early 1970s, is best known as the lead after the president interfered in the Calley Archivist for the The Judge Advocate General’s trial counsel in United States v. Calley. This case. Daniel wrote the letter because, after Corps. court-martial, tried at Fort Benning in the court-martial panel sentenced Calley to 1971, was the only successful criminal be confined at hard labor for life for mur- prosecution arising out of war crimes com- dering unarmed and unresisting Vietnamese Notes mitted by Soldiers at the village of My Lai civilians, Nixon instead ordered the Army to 1. The Calley Issues, N.Y. TIMES (Apr. 8, 1971) https:// www.nytimes.com/1971/04/08/archives/the-cal- in Vietnam on 16 March 1968. return Calley to his on-post quarters where ley-issues.html. Mr. Daniel’s conviction of Lieutenant Calley would be under house arrest while 2. Id. William L. “Rusty” Calley was important, the verdict and sentence were reviewed.

November/December 2018 • Lore of the Corps • Army Lawyer 19 20 Army Lawyer • Lore of the Corps • November/December 2018 November/December 2018 • Lore of the Corps • Army Lawyer 21 22 Army Lawyer • Lore of the Corps • November/December 2018 November/December 2018 • Lore of the Corps • Army Lawyer 23 Gun. I was thirteen years old at the time, so it was almost six years ago. Normally, we like to start juniors at age eleven or twelve, but I made up the difference of starting a little late by taking it very seriously. My family picked up and moved to Colorado Springs so I could train at the Olympic Training Center.

Why did you decide to join the Army? My father was in the Navy, my uncle was in the Army, and my sister served in the Marine Corps. The military influence in my life was so heavy that I could not picture life without the military. I didn’t want to go straight into college and the secondary training I could receive from my Army MOS was appealing. I competed in the U.S. Army Junior Air Rifle National Championships at the Fort Benning United States Army Marksmanship Unit (USAMU) range and fell in love with the facilities and the unit. My enlistment contract had an “Option Nineteen,” where you choose your unit, and therefore, I chose the USAMU. Although I was still nervous walking into the recruiter’s office, I had a letter of acceptance to the USAMU to help with the processing. Up Close How did you decide what weapons system to compete on? What do you find compelling about international rifle competition? I fell in love with competition rifles because On Target you could change so many things to make yourself shoot even better. To the degree Paralegal PV2 Emily Stith Has the 2020 Olympics in Her that if you change the way your feet are Sights positioned, it changes your center of gravity and it can impact your shot. At times, you are making adjustments that can make a By Major Jack B. Cohen and Captain Nicole Ulrich correction equal to a single hair’s width.

In what disciplines do you compete? I compete in two disciplines: the 50- Paralegal PV2 Emily Stith began shoot- Tell us, how did you meter three position women’s rifle and the ing seriously when she was thirteen get into shooting? 10-meter women’s air rifle. The 50-meter years old. In the six years since, she has Growing up, my dad was on the Navy Hi- three position you compete with a small- medaled in five international competitions. Power team. A friend of our family knew bore .22 caliber and take forty shots in each She now has the 2020 Tokyo Olympics in of a junior team at a club where he shot. position. In that event, the “10-ring” is her sights. We interviewed Stith recently My dad and our friend took me shooting the size of a little pinkie finger nail. In the about her interest in shooting and the chal- at that club on a cold Saturday, and I fell 10-meter air rifle, you shoot sixty shots, all lenges of training for the Olympics while in love with the sport right away. Prior from the standing position. In that disci- serving in the JAG Corps. to that weekend, I had only shot a BB pline, the “10-ring” is the size of a twelve

24 Army Lawyer • Up Close • November/December 2018 point font period at the end of a sentence. (AIT) holdover, and I had a chance to help You have a busy year planned. In In both events, the shots are scored elec- the J Co with legal work they would receive what events are you competing? tronically by the targets downrange and from their brigade. I have the USA Shooting National Rifle you see the results on a monitor at your I have really benefited from my NCO Championships here at Fort Benning, firing point. leadership between 1SG Robles at J Co. and Georgia, starting in June. Then, I have the There are only six females in the here at my gaining unit with 1SG Baker. Junior World Cup in Suhl, Germany, at Marksmanship Unit. Two of us are in Both are phenomenal leaders and a joy to the end of August 2018. After that, it will International Rifle competing in the same be around. be the World Junior Championships in disciplines. The others are: two in shotgun, Changwon, South Korea in the beginning one in service rifle, and one in service pistol. Have you ever heard of the of September. In my discipline, you are considered a publication The Army Lawyer? “junior” competitor until December of the Yes, I have! The instructors at AIT famil- I assume your goal is to go to year you turn twenty-one years of age. iarized us with JAG Corps resources like the 2020 Olympics, correct? The Army Lawyer. I missed out on Rio by not making it How did marksmanship go through preliminary rounds. I have learned for you in basic training? Have any of your Marksmanship from that and put Tokyo 2020 in my sights. I had a lot of fun! I ended up helping teammates asked for a POA Winning a medal internationally five times other trainees who had never shot before. or legal advice yet? has helped. The Olympic selection proce- Personally, it went well, shooting thir- No, they have not, and it’s a good group dure is a single, three-day match during the ty-seven out of forty in qualification. Some of people in the unit, so there are no legal spring of 2020. I will know if I make the of the male basic trainees who had done a issues that I know of. However, when I first 2020 team in the spring of 2020. I am cur- lot of shooting before wanted to go head- got to the unit I found myself correcting rently working on my training plans, all the to-head with me, but I think I proved that in-processing memos that were not in com- way to the details of my meal preparation. was a bad idea. pliance with Army Regulation 25-50! My leadership likes to say that if you want race car results, you have to use race car Why did you choose the Do you think your role fuel. Our unit’s mission is to win, support paralegal MOS? as a Soldier helps you be a Army marketing, and increase lethality. In a separate part of the enlistment con- better competitor now? It is inspiring to be here in the Home of tract, you have to pick an MOS in the event Attention to detail has been reemphasized Champions. Everyone in the unit has the you decide to move on from the U.S. Army to me going through basic training and goal to be a champion, it’s in our motto. Marksmanship Unit. I always had an inter- advanced individual training, which is very est in law. A paralegal job was open, which important in shooting. It has been good to Is there anything you would like to was very unusual. I had a GT score of 117, regroup and go back to the basics on my message to other paralegals about which opened doors to a lot of different shooting after being away from compet- the opportunities the Army offers? MOSs. What I really like about the 27D itive shooting during my Army training. Keep certified within your MOS, but also MOS is that we do not have to wait to start I have a ton of trust in the U.S. Army strive to be well above the standard with taking college classes with tuition assistance Marksmanship Unit and it has a positive what you know. “We are the standard” was (usually one year wait in other MOSs). family unit dynamic, which helps foster a the AIT J Co. motto, but the knowledge is Once I am settled in here, I plan to sign up good environment for shooting success. perishable. Stay on top of your craft. for online college. International rifle requires you to What do you want people Where does interest in the take notice of very tiny details and to know about you? law come from? Any legal adjustments and the legal field is all I am easy to get along with, but I’m ex- background in your family? about facts and details. What draws tremely competitive. If you put in ten reps, My dad was the Navy’s equivalent of an MP you to those two very different and I’m going to put in twelve. I have worked (MA – Master of Arms). I also developed yet similarly detail-oriented fields? hard for what I have and everything I have an interest in the Advanced Placement (AP) Shooting is all about chain reactions—foot- is by the grace of God. courses (civics, government) I took in high work impacts balance. Paralegal work is school. I like studying the application of law also full of chain reactions. For example, MAJ Cohen is a currently a student in the LL.M. and regulations. the way you write a charge on an Article 15 program at The Judge Advocate General’s Legal impacts the disposition of punishments. In Center and School. CPT Ulrich serves as the Do you get a chance to interact with both disciplines, you want to do everything editor of The Military Law Review. the legal office at Fort Benning, GA? right and prove you know how to apply Not with the office at Fort Benning, but I your knowledge. was briefly an advanced individual training

November/December 2018 • Up Close • Army Lawyer 25 character trait to prove that on a particular occasion the person acted in accordance with the character or trait.3 Accusations must rise or fall on their own facts. Good trial practice, then, includes presenting whatever direct evidence is available: a telling of the “facts” as the party believes them to be. But after the facts are asserted, the real convincing often comes through returning to assumptions in a more appropriate form known as inferences.4 If direct evidence is the factual “telling,” then M.R.E. 404-type evidence is part of the “showing”—the circumstantial who, what, when, where, why, or how that puts the facts in context to persuade the factfinder. Character evidence and the use of evidence for non-character purposes is a robust and nuanced area of the law. There is no substitute for research and careful thought based on the unique facts of a case. The goal of this note is to provide a frame- work for analysis. Follow this framework, supported by case research and the facts of your case, and you will have a reliable method for determining how to use charac- ter or related evidence.

Step One: Is Actual Character Relevant? (Credit: istockphoto.com/MHJ) The first question should always be whether evidence of actual character is relevant to your case. Rule 404(a) provides three ex- ceptions to the general prohibition against character evidence.

Practice Notes On the Defensive: Evidence by the Accused, About the Accused First, the accused can offer up evidence of his or her own trait that is pertinent to the View from the Bench charged offense.5 The key word is “perti- Using Character and Outside Acts to Prove Your Case nent.” In a forcible rape case, for example, an opinion that the accused is a peaceable or peaceful person may be admissible under By Lieutenant Colonel Christopher E. Martin this rule.6 For a crime of dishonesty, such as larceny, an opinion that the accused is honest may be admissible, because it speaks It is useless to attempt to reason a man out of a thing he was never reasoned into.1 to the permissible inference that an honest person does not steal.7 This same part of the rule, however, limits when the non-specific We tend to analyze people and events context or past behavior that a logical check trait of general military character, or “good by using assumptions to fill in the gaps. is needed to ensure that we move beyond Soldier,” evidence may be used. The Rule This tendency is exactly why Military Rule assumptions, and consider the actual evi- specifically prohibits evidence of general of Evidence (M.R.E. or Rule) 4042 and re- dence at hand. Hence, M.R.E. 404 normally military character for the offenses listed lated rules exist. We so often judge others by prohibits use of a person’s character or therein, including rape and larceny.8

26 Army Lawyer • Practice Notes • November/December 2018 It is crucial to understand the distinc- to reputation or opinion evidence and evidence as to truthfulness or untruthful- tion between “pertinent” character evidence other rules of evidence still apply, and the ness is offered in the form of reputation and evidence of general military character prosecution may rebut in kind this evidence or opinion, subject to the military judge under M.R.E. 404(a). A Soldier accused if introduced.13 allowing cross-examination about specific of rape might be able to defend against When an accused admits evidence of instances of conduct in order to probe the the rape by presenting evidence that he is a pertinent character trait, “good Soldier” basis of the witness’s opinion.19 However, “peaceful,” but he may not under M.R.E. or otherwise, the prosecution may rebut it. although evidence introduced under M.R.E. 404(a)(2) introduce evidence that he did This is when specific instances come into 404 is admissible as substantive evidence on not commit the rape because he is a “good play, subject to the discretion of the military the merits, evidence offered under M.R.E. Soldier,” because evidence that the accused judge, and usually in the form of “did you 608 or M.R.E. 609 to impeach a witness is is a good duty performer, reliable Soldier, know” or “have you heard” questions.14 only admissible to determine the credibility or the like is simply not pertinent to the If the defense witness’s testimony was, of the witness.20 question of whether he committed rape. for example, that the accused is a peace- On the other hand, an accused may present ful person, the prosecution can ask on Step Two: What do Outside “good Soldier” evidence for offenses not cross-examination if the witness was aware Acts Say about the Offense? specifically excluded, such as absence with- that the accused assaulted his wife. Asking If opinion or reputation evidence could be out leave or conduct unbecoming an officer such questions requires a good faith basis, described as fairly limited in scope, then and a gentlemen, on the theory that a “good and the military judge will instruct that the M.R.E. 404(b) leans the other way. The Soldier” does not do such things.9 question, and the answer (if the witness ad- whole point is to allow in extrinsic evidence Under M.R.E. 405, character evi- mitted knowledge), may be considered only of acts not on the charge sheet, to draw dence must, with only a few exceptions, for the purpose of assessing the witness’s some permissible inference. This is pow- be introduced in the form of reputation or testimony and/or to rebut the opinion.15 erful circumstantial proof when properly opinion, such as “I believe he is an honest Even with such limiting instructions, such applied. M.R.E. 404(b) allows either side person.” The specific instances that form questions can be damaging, and the offering to present evidence of a “crime, wrong, or the basis of the opinion are inadmissible on party should carefully consider potential other act” when the evidence is offered for direct examination.10 But good advocates impeachment when deciding whether to a non-character, non-propensity purpose.21 understand that a witness must still have a offer character evidence. But if “non-character” evidence is the proper basis to form his or her opinion. So subject, then why does this part of the Rule while a military judge may properly stop a On the Offensive: Evidence by the follow right after a longer discussion in the witness from testifying on direct about what Accused, About the Alleged Victim same Rule about character? Because M.R.E. she observed about the accused, the witness Next, M.R.E. 404(a)(2)(B) allows the ac- 404 on the whole reflects the idea that the can and should explain in general terms how cused to proactively offer a pertinent trait same evidence can sometimes lead down she came to form her opinion about the of the victim, subject to the limitations of both a character and a non-character path. accused. M.R.E. 412. It also allows the prosecution Understand this distinction, and you are well A properly laid foundation can be to rebut any trait so offered, and opens the on your way toward mastery in this area. nearly as persuasive as describing the door for a prosecution attack-in-kind of Consider this example: an accused underlying acts themselves.11 Like the trait the accused’s same trait, if the door is so is charged with stealing portable gaming itself, the foundation must be pertinent, or opened.16 Similarly, M.R.E. 404(a)(2)(C) devices from two barracks rooms in his relevant. If the character trait is honesty, allows the prosecution to rebut a claim that hallway and selling them in local pawn foundational testimony about three de- the alleged victim was the first aggressor shops. There is evidence of an uncharged ployments and numerous firefights that the in a homicide or assault case.17 A survey of offense that, six months ago, the accused accused and witness experienced together is reported cases suggests that neither provi- stole a custom hunting knife from his likely to generate a sustained objection. On sion is widely used, although each should roommate and pawned it. A direct opinion the other hand, evidence that the witness be considered in instances where they are from the roommate that the accused is a observed the accused being forthright in relevant. “thief” would be excluded under M.R.E. tense situations would be a solid basis to 404(a)(1)-(2).22 Testimony from the room- render an opinion as to honesty. The more Credibility is Always in Issue mate might, however, be admissible under sound the basis for the witness’s opinion, for a Testifying Witness an M.R.E. 404(b) theory that the accused the more likely the military judge will admit And finally within this area, M.R.E. had a “plan” to steal his roommate’s hunting it, and the more likely the factfinder will 404(a)(3) makes clear that it does not over- knife and sell it for a profit, and that he find it persuasive. write the longstanding rule, as embodied in had this same plan, to sell stolen items for A final option, to which the defense M.R.E. 607, M.R.E. 608, and M.R.E. 609, a profit, when he took the portable gaming holds the key, is to introduce character evi- that a witness’s character for truthfulness or devices. The correct focus is on the perti- dence through the use of affidavits or “other untruthfulness is always in issue when he or nent purpose, the plan; allowing evidence of written statements.”12 The limitations as she testifies.18 As with character evidence, the prior larceny is just a vehicle to explain

November/December 2018 • Practice Notes • Army Lawyer 27 that purpose and is limited accordingly.23 independent relevance, for a non-charac- stood the test of time. Each of the per- The conceptual overlap between character ter purpose, under M.R.E. 401 and 402.36 mitted uses listed in M.R.E. 404(b), and non-character uses may be obvious, but And when requested by the accused, the sometimes summarized by the mnemonic the distinction is crucial under the law and prosecution must provide notice of M.R.E. “KIPPOMIA,”44 are unique words with to how the facts may be considered by the 404(b) evidence that it intends to use at unique meanings.45 Again, this list is not factfinder. trial.37 exclusive.46 It would take a much longer Habit evidence under M.R.E. 40624—a Finally, keep in mind that uncharged article to cover all of the significant nuances close cousin of M.R.E. 404—is another use- acts that are intrinsically connected to the and distinctions of non-character uses ful tool for distinguishing the permissible charged offense may be admissible apart of evidence. But then again, that is your uses of character-related evidence. Consider from M.R.E. 404(b) as part of the res gestae, homework. Take the time to think through an AWOL (Absent Without Leave) case. or evidence that helps place the charged act your case and the possible non-character Testimony that the accused was “the type in context.38 An example might be evidence, uses of the evidence at issue. Motions to of person to go AWOL” would be pro- as an uncharged act, that the accused took admit or exclude M.R.E. 404(b) evidence hibited by M.R.E. 404.25 Evidence of an pictures during an alleged assault. Unless rise or fall on this very point. It always boils uncharged act, that the accused previously there is a specific reason to exclude it, a down to another mnemonic: CYA, or Can went AWOL for three days to see his relevant uncharged act that occurs in the You Articulate? girlfriend, might be admissible to prove that midst of a charged act usually does not fall the accused had the same motive, to see his within the limitations of M.R.E. 404(b). Question Four: Is this evidence subject to a girlfriend, when he committed the charged rule of exclusion or a rule of super-inclusion? AWOL offense. Evidence that the accused Question Two: Does the evidence Remember that when outside sexual acts always reported for duty at 0800 hours reasonably support a finding by the or behavior are at issue, the landscape can would be habit evidence.26 Character evi- court members that the person committed change. When acts relate to an alleged vic- dence permits “more general character or the other crimes, wrongs or acts?39 tim, for example, M.R.E. 41247 may exclude character traits;”27 M.R.E. 404(b) permits a It is up to the military judge to decide evidence that would otherwise be relevant pertinent purpose, such as motive, when it whether to admit M.R.E. 404(b) evidence, under M.R.E. 404(b) or related rules. When exists across both an uncharged and charged as a matter of conditional relevance under acts relate to the accused, M.R.E. 413 offense; and habit evidence “requires proof M.R.E. 104(b).40 However, it is not the role and 414,48 on the other hand, may allow of a very specific, frequently repeated of the military judge to decide whether the evidence of other sexual offenses or acts of behavioral pattern.”28 Understanding these outside acts occurred, but rather simply child molestation, even if they would be distinctions should help apply the rules. to decide whether court members could excluded under M.R.E. 404(b). And even if reasonably conclude that the other acts these acts would also be admissible under Step Three: Introducing occurred, and that the person in question M.R.E. 404(b), acts admitted under M.R.E. Outside Acts committed them. As the Supreme Court 413 or 414 may be offered for any purpose, Non-character evidence is full of potential explained in relation to the analogous including to show propensity, which goes when properly applied. Ask the following federal rules, “[i]n determining whether beyond what M.R.E. 404(b) itself allows.49 five questions in every case, three of which the Government has introduced sufficient The point here is that M.R.E. 404(b), like are reflected in the familiar holding of evidence to meet Rule 104(b), the trial all rules of evidence, cannot be applied in a United States v. Reynolds,29 and you will be court neither weighs credibility nor makes vacuum. prepared to leverage whatever evidence is a finding that the Government has proved available. the conditional fact by a preponderance of Question Five: Is the probative value of the evidence. The court simply examines the evidence substantially outweighed Question One: Do I have all the evidence in the case and decides by the danger of unfair prejudice?50 evidence of an outside act? whether the jury could reasonably find the Whichever side of the argument you are Potential evidence under M.R.E. 404(b) conditional fact . . . by a preponderance of on, do not assume that evidence will come may be broader than you think. Although the evidence.”41 in just because it is available. All evidence sometimes called “uncharged misconduct,”30 must be legally and logically relevant, and M.R.E. 404(b) allows much more than that. Question Three: Does the outside not excluded under M.R.E. 403.51 The mil- The outside acts do not have to be unlawful evidence make some fact of consequence itary judge has wide discretion to exclude or “bad” acts.31 They do not even have to more or less probable?42 even relevant evidence if the probative be prior acts.32 They do not have to be acts This is often where counsel stumble. value of the evidence is substantially by the accused.33 And they can be offered Although the CAAF’s admonition against outweighed by the various concerns listed by either the prosecution or the defense.34 “broad talismanic incantations of words in M.R.E. 403. The same reminder is due The non-character purposes are not limited such as intent, plan, or modus operandi”43 here: Can You Articulate? Arguing evidence to the examples listed in the Rule itself.35 might sound overly familiar, the need for in context helps refine the presentation of The outside acts must, however, have some this constant reminder has unfortunately evidence, and also helps the judge make

28 Army Lawyer • Practice Notes • November/December 2018 well-informed decisions about the use of 12. MCM, supra note 2, Mil. R. Evid. 405(c). 899 (Army Ct. Crim. App. 2016), rev’d in part, 77 M.J. 13. Id. 90 (C.A.A.F. 2017) (distinguishing M.R.E. 404(b) uses the evidence. As in most things, preparation of charged offenses from the C.A.A.F.’s prohibition, and forethought go a long way towards the 14. MCM, supra note 2, Mil. R. Evid. 405(a). See also in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), effective use of character or character-re- Michelson v. United States, 335 U.S. 469 (1948); against using unproven, charged acts to argue propen- United States v. Pearce, 27 M.J. 121 (C.M.A. 1988); sity for those same charged acts). Given that M.R.E. lated evidence. United States v. White, 36 M.J. 306 (C.A.A.F. 1993). 404(b) is the subject of “much litigation,” Reynolds, 15. See U.S. DEP’T OF ARMY, PAM. 27-9, MILITARY JUDGE’S 29 M.J. at 108, counsel for both sides must always be prepared to articulate intended M.R.E. 404(b) uses. Step Four: What Should BENCHBOOK, 1116 (10 Sept. 2014) [hereinafter MILITARY JUDGE’S BENCHBOOK] for a sample instruction. 37. MCM, supra note 2, Mil. R. Evid. 404(b)(2)(A)-(B). You Introduce? This is where the art of trial practice comes 16. MCM, supra note 2, Mil. R. Evid. 404(a)(2)(B). 38. See, e.g., United States v. Metz, 34 M.J. 349, 351 in. Good advocacy means always seeing 17. Id. Mil. R. Evid. 404(a)(2)(C). (C.A.A.F. 1992) (in addition to being admissible under M.R.E. 404(b), evidence, in a murder trial, that the the big picture. Perhaps you can find a 18. Id. Mil. R. Evid. 607, 608, 609. accused had lifted up his wife by the nose and “roughed way to introduce character evidence, or a 19. Id. Mil. R. Evid. 608(a)-(b). her up” were part of the res gestae of the murder, to non-character use for evidence, but should help place identity and intent evidence against the 20. Id. Mil. R. Evid. 608, 609. See also United States v. accused in context); United States v. Tobin, 38 C.M.R. you? Will opinion evidence do more harm Robertson, 39 M.J. 211 (C.A.A.F. 1994). 423 (C.M.A. 1968) (uncharged misconduct evidence than good by opening up rebuttal to areas 21. MCM, supra note 2, Mil. R. Evid. 404(b)(1)-(2). that was “part and parcel” of the charged offenses did not require a limiting instruction). that one side would rather not revisit? Will 22. Keep in mind that the defense normally holds the uncharged acts actually detract from the key to direct character evidence. See Michelson, supra 39. See Reynolds, 29 M.J. at 109. storyline and confuse the members? Every note 14. 40. MCM, supra note 2, Mil. R. Evid. 104(b). case is different, and the decision is yours. 23. The military judge will instruct on the specific 41. United States v. Mirandes-Gonzalez, 26 M.J. 411, purpose for which the evidence may be considered. See But when you decide to open the door 413-14 (C.M.A. 1988) (quoting Huddleston v. United Military Judge’s Benchbook, supra note 15, at 1102. States, 485 U.S. 681, 690 (1988)). to character evidence or non-character 24. MCM, supra note 2, Mil. R. Evid. 406. . See Reynolds uses, the proof remains the same: Can You 42 , 29 M.J. at 109. 25. STEPHEN A. SALTZBURG ET AL., MILITARY RULES OF Articulate? When you can, you are well on 43. United States v. Brannan, 18 M.J. 181, 185 (C.M.A. EVIDENCE MANUAL § 406.02 at 4-176 (7th ed. 2011). 1984). your way to both telling and showing your 26. Id. 44. Knowledge, Intent, Plan, Preparation, side of the case. TAL 27. DAVID A. SCHLUETER ET AL., MILITARY EVIDENTIARY Opportunity, Motive, Identity, Absence of Mistake. FOUNDATIONS § 6-8 at 260 (4th ed. 2010). See M.R.E. 404(b)(2). The mnemonic “KIPPOMIA” is sometimes taught to counsel as a practical memory aid. LTC Martin is a military judge at the 2nd 28. Id. See, e.g., CRIM. LAW DEP’T, THE JUDGE ADVOCATE GEN.’S Judicial Circuit U.S. Army Trial Judiciary, Fort 29. United States v. Reynolds, 29 M.J. 105 (C.M.A. LEGAL CTR. & SCH., U.S. ARMY, CRIMINAL LAW DESKBOOK Bragg, North Carolina. 1989). (July 2018). 30. See, e.g., id. at 109 (referencing a “substantial survey 45. See, e.g., United States v. Jenkins, 48 M.J. 594 (A. Ct. of the cases and statutes dealing with uncharged Crim. App. 1998) (distinguishing, in an M.R.E. 404(b) misconduct.”). analysis, the terms “motive,” “intent,” and “plan.”). Notes 1. Jonathan Swift, in A DICTIONARY OF THOUGHTS: BEING 31. See, e.g., United States v. Molinaro, 11 F.3d 853, 46. See United States v. Castillo, 29 M.J. 145, 150 A CYCLOPEDIA OF LACONIC QUOTATIONS 468 (Tryon 863 (9th Cir. 1993) (“Prior acts need not be unlawful (C.M.A. 1989) (“[T]he sole test under Mil.R.Evid. Edwards, ed., F.B. Dickerson Co. 1908). to be admissible… [t]he critical requirement is that the 404(b) is whether the evidence of the misconduct is evidence be offered for a purpose other than to prove offered for some purpose other than to demonstrate 2. MANUAL FOR COURTS-MARTIAL, UNITED STATES, Mil. the defendant’s propensity to engage in the conduct the accused’s predisposition to crime.”). R. Evid. 404 (2016) [hereinafter MCM]. charged.”). 47. MCM, supra note 2, Mil. R. Evid. 412. 3. MCM, supra note 2, Mil. R. Evid. 404(a)(1). . See 32 United States v. Young, 55 M.J. 193, 196 48. MCM, supra note 2, Mil. R. Evid. 413, 414. 4. Inference BLACK’S LAW DICTIONARY 700 (5th ed. 1979). (C.A.A.F. 2001) (discussing the widely-accepted view in both military and federal practice that uncharged 49. See the C.A.A.F.’s discussion of M.R.E. 413 in 5. MCM, supra note 2, Mil. R. Evid. 404(a)(2)(A). acts may occur before, during, or after the charged United States v. Wright, 53 M.J. 476, 480 (C.A.A.F. 6. See, e.g., United States v. Credit, 8 M.J. 190, 192-93 offense). 2000) (“Contrasted to Rule 404(b)’s ‘general prohibi- (C.M.A. 1980) (“As rape is a crime of violence, appel- tion’ against propensity evidence, ‘the new rules for sex 33. The Rule refers to crimes, wrongs, or other acts in lant could defend against it by presenting evidence of offense cases authorize admission and consideration of relation to a “person,” not the accused specifically. See his good character for peaceableness.”). evidence of an uncharged offense for its bearing on any supra MCM, note 2, Mil. R. Evid. 404(b)(1). matter to which it is relevant.’”) (quoting discussion by 7. See, e.g., United States v. Pearce, 27 M.J. 121 (C.M.A. 34. See, e.g., United States v. Benson, 48 M.J. 734 (A.F. Congresswoman Susan Molinari). 1998) (finding an opinion as to honesty relevant to Ct. Crim. App. 1998) (in court-martial for assault with a charge of larceny, but noting that such an opinion 50. See United States v. Reynolds, 29 M.J. 105, 109 a loaded firearm against a civilian, the military judge cannot be used to impermissibly bolster a witness’s (C.M.A. 1989). erred when he disallowed the defense from presenting character for truthfulness until after that character has evidence about prior threats with a gun made by the 51. MCM, supra note 2, Mil. R. Evid. 403. been challenged). civilian, after the civilian testified that he wasn’t the 8. MCM, supra note 2, Mil. R. Evid. 404(a)(2)(A). kind of person who would try to take someone’s life). 9. See generally id. 35. See MCM, supra note 2, Mil. R. Evid. 404(b)(2). 10. MCM, supra note 2, Mil. R. Evid. 405(a)-(b). 36. See United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989) (citing United States v. Ferguson, 28 11. See THE 2018 ADVOCACY TRAINER: A MANUAL FOR M.J. 104, 109 (C.M.A. 1989)); see also discussion of MILITARY JUSTICE PRACTITIONERS (Peter K. Odom ed., Office of the Judge Advocate General 2018), for good “Question Three,” infra. Practical application of M.R.E. demonstrations and hands-on exercises. 404(b) almost always contemplates the use of un- charged acts. But see United States v. Guardado, 75 M.J.

November/December 2018 • Practice Notes • Army Lawyer 29 Contracting Support Brigade’s (CSB) mis- sion and its support of Operation Inherent Resolve (OIR). The 408th CSB is regionally aligned with USCENTCOM and is one of six CSBs in the Army formation. It is missioned to provide operational contract support to USARCENT and serve as the Lead Contract Service throughout Southwest Asia. The brigade headquarters is split between Shaw Air Force Base, South Carolina, and Camp Arifjan, Kuwait. It has three Regional Contracting Centers (RCCs) (i.e., contract battalions) in Camp As Sayliyah, Qatar; Union III, Iraq; and Camp Arifjan, Kuwait. It also has KOs in the United Arab Emirates, Pakistan, Afghanistan, and Jordan. The 408th CSB force structure is comprised of a mix of Army (both Active Duty and Army Reserve/National Guard), Air Force, and DA civilians. In addition to OIR, the 408th CSB supports contract requirements for Operation Spartan Shield, which is USARCENT’s steady state opera- tion to build partner capacity in the Middle East. As part of its Afghan Reach Back Cell, it awards contracts for commodity buys (i.e., goods and supplies) for Operation Freedom’s Sentinel. The 408th CSB’s three main lines (Credit: istockphoto.com/Mhaprang) of effort are base life support (BLS), transportation, and contingency con- tracting administration services (CCAS). Contracting in a Deployed Environment Contingency contracting administra- tion services relates to cradle-to-grave Notes from the 408th Contracting Support Brigade contracting where 408th CSB KOs ad- minister massive contracts awarded by Army Contracting Command—Rock Island By Major Nolan Koon (ACC-RI), Rock Island Arsenal, Illinois, such as the Logistics Civil Augmentation Program (LOGCAP) and Army Prepositioned Stock-5 (APS-5).1 In FY17, In June 2014, Iraq’s second largest city, It is axiomatic that the fight was won the 408th CSB awarded approximately Mosul, fell to the Islamic State of Iraq by the audacity and the bravery of the 2,500 contract actions with a value exceed- and the Levant (ISIS), and its leader, Warfighter, who closed with, and decisively ing $614 million in support of operations Abu Bakr al-Baghdadi, declared a global defeated the enemy. However, victory on across the CENTCOM area of responsibil- caliphate from its ruins. Behind an inter- the battlefield was enabled and supported ity. It also administered 197 contracts/task national coalition of 60 nations, led by the by several others, including the warranted orders valued at nearly $21 billion as part of United States, and a fighting force num- contracting officer (KO). As the Army has its CCAS mission. bering more than one hundred thousand, outsourced its logistical tail, it has increas- During its support of the Battle of the Government of Iraq liberated Mosul ingly turned to a multitude of contractors Mosul, and, more broadly, operations approximately three years later in July 2017. to fulfill its sustainment requirements. in Iraq, KOs encountered a number of The Battle of Mosul marked the effective Thus, with the recent end of major combat contract challenges. The most notable in- end of ISIS’s caliphate and heralded the operations against ISIS in Iraq, it is an op- volved the ground movement of equipment movement’s eventual defeat in Iraq. portune moment to reflect upon the 408th and supplies. Military logistical convoys,

30 Army Lawyer • Practice Notes • November/December 2018 which were ubiquitous in past conflicts, single trucking contract for a month based Finally, KOs are attempting to register and a lifeline to troops, were supplanted on a forecasted need, i.e., how many TMRs, and stand-up a Syrian vendor pool that by contracted carriers in OIR. But KOs truck assets, and mileage would the battle can be successfully vetted. Some Syrian operating in Erbil, Iraq, could not award space owner need and consume during the companies are weary of registering for fear trucking contracts to Iraqi Arab companies period of performance. At the end of the that the Syrian government will learn they because they could not get through Kurdish month, the KOs reconciled the actual usage are working with the U.S. Other Syrian checkpoints. In some instances, KOs had against the forecasted amount and issued companies simply do not have access to the to facilitate the release of Iraqi Arab truck a contract modification for purposes of con- internet, which makes on-line registration drivers, who were detained at the border by tractor payment. on JCCS impossible. the Kurdistan Regional Government and Even with the end of major combat Regardless of past or future challenges, the Peshmerga Armed Forces. Accordingly, operations in Iraq, the 408th CSB will the 408th CSB and its KOs will continue to for movements of materials which origi- continue to support OIR requirements and support the Warfighter and military opera- nated from outside of Northern Iraq, KOs operations in Syria. Operational command- tions in the CENTCOM AOR. TAL arranged for the shipments to be down- ers in Syria will be asked to forecast their loaded and picked up by another carrier requirements sooner than ever and move MAJ Koon is the Command Judge Advocate for at the border, who could operate in the their requirements generation timeline the 408th Contracting Support Brigade. Kurdish-controlled region. to the left because of vendor vetting. It was during the height of the 2017 As part of the FY2012 NDAA, the U.S. ISIS counter-attacks in Mosul, though, that Government is prohibited from contract- Notes KOs faced their greatest challenge. KOs ing with the enemy. Initially implemented 1. As part of APS-5, the Pentagon maintains a mech- anized division’s worth Bradley Fighting Vehicles and were pressed to keep pace with the mo- only in Afghanistan through Task Force Abrams tanks in warehouses in Kuwait and Qatar. mentum of operations on the battlefield. 2010, USCENTCOM intends to expand Although ACC-RI awarded the APS-5 service con- When the Warfighter needed transporta- vendor vetting across the rest of the theater tract, the 408th CSB has been delegated administrative contracting officer (ACO) responsibilities and serves tion assets, it would send a transportation of operations. The 408th CSB has already as “the eyes and the ears” of the primary contracting movement request (TMR) to an Army been registering contractors in an on- officer (PCO), who is back at Rock Island Arsenal. movement control team (MCT), who, in line database, i.e., the Joint Contingency turn, forwarded the TMR to a KO to put on Contracting System (JCCS). However, a contract. A contract was required every vendor vetting will employ evidence and time a U.S. unit had to establish or augment intelligence-based analysis to determine a Tactical Assembly Area (TAA); move a whether contractors constitute an unac- team room; purchase Class IV material; ceptable force protection risk. resupply; etc. The Federal Acquisition It is anticipated that the vetting process Regulations (FAR) and the contracting will add five to seven weeks to the contract process are predicated on promoting com- award process—though there is an expedited petition, and not necessarily designed with 45-day process for urgent requirements. To speed and agility in mind. Market research/ put this in perspective, during the Battle of acquisition strategy must be performed; so- Mosul, requiring activities sometimes asked licitations are drafted; potential offerors are KOs to award within 48 hours or less. With notified; bids/quotes/offers are submitted; the use of simplified acquisition proce- evaluations are performed; and only then dures, 408th CSB KOs can typically award can contracts be awarded. a contract in two weeks. This highlights an In an effort to accelerate the time incongruity in contingency contracting. It is from requirement validation to contract easy to forecast requirements for regularly award, KOs increasingly turned to blanket recurring needs, such as service contracts purchase agreements (BPAs). Blanket pur- with defined periods of performance and IT chase agreements are a simplified method life-cycle replacements. However, forecast- of filling anticipated repetitive needs for ing can devolve into speculation, when the supplies or services by establishing “charge unpredictability of the battlefield is injected accounts” with a pool of qualified sources into the validation process. During OIR, (i.e., a sources list). Still, because each TMR when success on the battlefield exceeded was placed on an individual BPA call (i.e., planners’ and Commanders’ expectations, contract), KOs were still overwhelmed by tactical assembly area base life support con- contract requirements. Ultimately, KOs co- tracts were frequently modified, terminated, ordinated with requiring activities to obtain and/or awarded unexpectedly as a result of bulk funding. The KOs would then award a ground yielded by ISIS.

November/December 2018 • Practice Notes • Army Lawyer 31 and distinct authority for O-4 commanders of rear provisional battalions, squadrons, and brigades to exercise full field grade NJP authority over NCOs.4 The practice of establishing rear provisional units is commonplace in this era of near-constant deployments.5 Due to the lack of non-de- ploying personnel, it is not uncommon for an O-4 to be placed in command of a rear provisional battalion, squadron, or brigade, at home station. However, because of the footnote discussed above, many military justice leaders presume that those rear pro- visional commanders in the grade of O-4 are unable to exercise full NJP authority over noncommissioned officers. The underlying restriction on a com- mander’s ability to reduce a Soldier during NJP proceedings is found in AR 27-10, para. 3-19b(6)(a), which states:

The grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander. For the purposes of this regulation, the imposing commander or any subordinate commander has “promotion authority” within the meaning of UCMJ, Art. 15(b) if the imposing commander has the general (Credit: istockphoto.com/adrian825) authority to appoint to the grade from which reduced or to any higher grade (see AR 600–8–19). Rear Provisional Commanders The rules governing promotion Can Have NJP Authority authority for NCOs in the grades of E-5 and E-6 are found in AR 600-8-19, Enlisted Promotions and Reductions. Specifically, AR By Major A. Jason Nef 600-8-19, para. 3-1b states that “[f]ield grade CDRs of any unit authorized a CDR in the rank of LTC or higher . . . [s]erve as the promotion authority to the rank of SGT Buried deep in Army Regulation (AR) commanders in the grade of O-5 may and SSG for Soldiers assigned to units at- 6 27-10, Military Justice, Table 3-1, footnote reduce NCOs at NJP proceedings. The tached . . . or assigned to their command.” 4, is this sentence: “Only if imposed by ability to reduce NCOs in the grade of E-5 Although it is uncommon for an O-4 to be a field grade commander of a unit autho- and E-6 is tied to a field grade commander’s given command of a unit that is authorized rized a commander in the grade of O-5 or “promotion authority” and not necessarily an O-5 commander, AR 27-10 and AR higher.”1 This sentence refers specifically to the grade of O-5. 600-8-19 clarify that an O-4 commander a field grade commander’s ability to punish Although battalion and squadron com- has the same authority to reduce NCOs noncommissioned officers (NCOs) in the manders are normally in the grade of O-5, during NJP proceedings as an O-5 or higher grades of E-5 and E-6 by reducing them if an O-4 is given command of a unit that is commander. However, the rule governing one grade through nonjudicial punish- authorized an O-5 commander, that O-4 can promotion authority for an O-4 com- ment (NJP) proceedings.2 This sentence exercise full field grade NJP authority over mander of a provisional battalion or brigade is often misunderstood to mean that only NCOs.3 Furthermore, there is a separate is separate and distinct from this.

32 Army Lawyer • Practice Notes • November/December 2018 When an O-4 is given command of a rear provisional unit, the source of au- thority changes. Instead of AR 600-8-19, para. 3-1b, the operative rule now is now listed in para. 1-9f(2), which states that “BN and BDE CDRs of provisional units in the rank of major or above have promotion authority to the ranks of SGT and SSG.” This rule gives effect to the discretionary policy found in AR 220-5, Designation, Classification, and Change in Status of Units, para. 2-5b, which states that “[c]ommand- ers of provisional units created as rear or home elements of deployed units may have promotion or reduction authority.”7 It is important to remember that the NJP authority may be exercised by com- manders only. Therefore, an O-4 who is serving as an officer-in-charge (or some similar leadership role), but not as the actual commander, is prohibited from exer- cising any NJP authority whatsoever. In conclusion, when an O-4 is in com- mand of a rear provisional unit, or a unit that is authorized a commander in the grade of O-5 or higher, they may exercise full field grade NJP authority over NCOs under their command. The authority for each derives from different provisions of AR 600-8-19, but the end result is the same. TAL

MAJ Nef is currently a student at the Command (Credit: istockphoto.com/hkeita) and General Staff College in Leavenworth, Kansas. He would like to thank LTC Keirsten Kennedy and MAJ Jason Marquez for their help Initial Client Meetings with this note. Creating the Roadmap for Successful Family Law Counsel

Notes 1. U.S. DEP’T OF ARMY, REG. 27-10, MILITARY JUSTICE ch. By Lieutenant Colonel Mike Harry 3, Table 3-1 (11 May 2016). 2. Id.

3. See U.S. DEP’T OF ARMY, REG. 600-8-19. ENLISTED PROMOTIONS AND REDUCTIONS para. 3-1b(1) (25 Apr 2017) [hereinafter AR 600-8-19]. 4. AR 600-8-19 para. 1-9f(2). Introduction duty, I have seen initial client meetings take In fiscal year 2017, Army legal assistance numerous forms. Further, in a former life 5. See, generally, DEPLOYING JUSTICE, A HANDBOOK FOR THE CHIEF OF MILITARY JUSTICE (June 2008). offices saw approximately 116,000 cases. within the corporate world, I was often a 6. Emphasis added. Of that large number, over 31,000 related “client” as the litigation manager. In this 1 7. U.S. DEP’T OF ARMY REG. 220-5, DESIGNATION, to family law. That is 31,000 instances capacity, I regularly retained, collaborated CLASSIFICATION, AND CHANGE IN STATUS OF UNITS para. where an attorney meets a family law client with, and sometimes terminated litigation 2-5b (15 Apr. 2003). for the first time. That is the equivalent counsel. I gleaned some perspective of of almost two divisions’ worth of compli- what it is like on the client side of the desk. cated and emotional files. In some eighteen Understanding that all legal situations are years of practice, both civilian and military, unique, which is why the practice of law encompassing active and National Guard is inherently personal, the initial client

November/December 2018 • Practice Notes • Army Lawyer 33 Captain Robert Hogarth, a legal adviser for the North Carolina National Guard’s Staff Judge Advocate office, talks with a legal services client as part of their legal assistance available to service members and their families. The SJA office recently received the 2013 Army Chief of Staff's Award of Excellence in Legal Assistance for a Reserve component. (U.S. Army National Guard Photo by Captain Rick Scoggins, North Carolina National Guard Public Affairs/Released) meeting sets the roadmap for the attor- Diplomas from Army or other military not allow clients to break the perimeter of ney-client relationship. This relationship, schools may also be displayed. Other accou- your desk. The perimeter is the point where in turn, often drives whether the represen- trements should only be displayed if they do a client would be able to read your com- tation results in success or failure. This note not clutter your work area. This includes puter. This places you in the best position reviews some best practices in establishing coins, PCS gifts, and the like.2 Place your to initiate a successful initial client contact. the attorney-client relationship from before computer and monitor in a position where the meeting happens through the develop- others cannot see the screen. Remove client 2. Initial Client Contact ment of the legal strategy. files and other work product from your Ideally, you will have a client card or other desk so the client consciously or uncon- understanding of the reason a client seeks Analysis sciously understands that he or she is your legal assistance. However, this is not always primary duty. Make sure you have a box of possible. Develop a script and practice 1. Pre-Meeting tissues for clients that may potentially cry. it.3 This is doubly important if you, like You mean business, so make your work- Have bottles of water (not purchased with me, tend to operate on the more laid back space look that way. Your office aesthetic appropriated funds) to set clients at ease. side of the assertiveness scale. The client is the first impression you will make on Everything must be done and placed with a must understand that you are capable of clients, superiors, and subordinates. Place purpose. The purpose is to ensure that the successfully handling their problem. It your law degree in a prominent posi- client understands he or she will be dealing is highly unlikely that your client made tion where clients will be able to read it. with a serious legal practitioner. Finally, do the appointment because he inherited $5

34 Army Lawyer • Practice Notes • November/December 2018 million dollars. The likelihood is something of the above. If time permits, take the client Either way, do not sugarcoat the likely result really bad happened or is about to happen. card and set up an intake checklist to drill and its second and third order effects. As you Introduce yourself, look them in the eye down into the client’s problem. Using a weigh the pros and cons of a legal solution and give a firm handshake. From there, marital separation as an example, begin and the next steps, remember the practical- sit the client in a way that you can take discussions along the following general ities. Most clients will be poor. Therefore, notes and observe their behavior. With the lines of inquiry: money matters. It either played a role in personal formalities complete, move on and the discord or will play a role in any marital dispose of the legal formalities—the two Cs. • When were you married? separation or divorce. Just keeping a client in • Who are you married to? the Army a few more months may make the 3. Confidentiality and Conflicts of Interest • When did you separate? difference between solvency and bankruptcy. Do not mess up the easy stuff. As with • Where are both of you residing now? Therefore, think with your head, not with any state, our Army rules for professional • How long have you lived there? your heart, and get their budget. responsibility address confidentiality and • How many kids do you have, if any? conflicts of interest.4 Develop an open- • Where are the kids residing? 5. Get the Budget ing discussion point where you outline • How much money are you providing/ You can identify a person’s priorities by your confidentiality duties (rule 1.6). To receiving each month in support? reviewing their budget, leave and earnings paraphrase, offer that you cannot reveal statement, and checking account. Money, information related to the representation After locking in the essential data or more accurately, the profligate spending unless the client consents after consulta- points, ask open ended questions to get the thereof, the gambling thereof, and the using tion.5 Depending on the situation and the client talking: thereof to consume drugs or alcohol is the complexity, you may also need to explain cause of most family and consumer law you are allowed to disclose information to • Tell me what happened. issues inside and outside the military. One carry out the goals of the representation • Why in your perspective did you benefit of military clients is that you can and must disclose information that you, separate? ascertain the client’s income. Keep the pay as counsel, reasonably believe necessary • Why in your spouse’s perspective did chart available. Have the client complete the to prevent the client from committing a you separate? sample budget sheet then look for irregular- criminal act likely to result in imminent • When did command get involved and ities between income and expenses. death, substantial bodily harm, significant what have they done? impairment of the readiness of a military Rent/Mortgage Dollar ($) 6 unit, aircraft, or weapons system. The Ask the client to talk about their Car #1 bottom line is you do not gossip about what marriage. As an alternative, ask the client Car #2 clients tell you. to describe their married life from the After setting the client at ease by ensur- beginning. Insurance ing him you will not call his boss, friends, or Actively listen and look to spot several Gas family, clear for any conflicts of interest (rule critical issues. First, identify whether there Food 1.7). Ask whether the potential client has may be any criminal culpability on behalf of Cable spoken to any other attorney about the mat- your client, the spouse, or other actor. This Phone ter in which they came in and whether they includes sexual assault and adultery. Also have had an attorney for any other problem.7 look for fraternization or other inappropri- Daycare As with many subtleties of advocacy, this ate relationships. Second, identify whether Credit card/interest standard two minutes serves an additional there are friction points that indicate that Entertainment *Most Important purpose. By explaining the rules and why the marital relationship is irretrievably you are doing it (the “what and why”) you broken. Third, identify whether the marital You will be able to understand whether begin building the attorney client rela- issue is leading to work performance issues. your client can afford a Dodge Challenger tionship. Use the talk to instill confidence Fourth, identify potential child custody and (R/T Scat Pack) or Ford F-150 (Black through the accurate demonstration of two support issues, thinking through a home Ops edition).9 You will be able to identify points of law. Further, if the client discloses state and best interest of the child lens.8 potential drug or alcohol issues. You can past legal problems you get a window into Finally, use the client’s tone, words, and also tell whether your client can afford to his character and propensity for truthfulness body language to evaluate truthfulness and pay interim support payments under Army (or lack thereof). This sets the stage to delve understand what acceptable and successful Regulation 608-99, or conversely, how into the actual legal problem(s). legal solutions may entail. much money your client needs to sustain Conclude by asking what the client while separated. Think creatively. Use the 4. Ascertain the Problem and Define Success believes would be a successful result and budget to frame your arguments and course Who, what, where, when, why, how. Good offering what, with your knowledge and of action, whether that is to negotiate a questions are almost all simple derivatives experience, a successful result may look like. higher or lower interim support payment

November/December 2018 • Practice Notes • Army Lawyer 35 or to counsel clients to sell property to client, and communicate any client hand- increase liquidity to set the stage for a po- offs. Regardless, give clients peace of mind LTC Harry is the Vice-Chair of the tential reconciliation.10 and ensure your effective representation by Administrative & Civil Law Department at following up on any open issues. The Judge Advocate General’s Legal Center and 6. Develop and Confirm the Course of Action School in Charlottesville, Virginia. Using the client’s answers, demeanor, and 7. Communicate and Follow Up the newfound knowledge of their finances, If the issue cannot be concluded in one visit, set a course of action that is suitable and regularly communicate the case’s status and Notes feasible. Though acceptability will be set appropriate follow up meetings. This 1. Fiscal Year 2017 legal assistance statistics, CLIENT INFORMATION SYSTEM (17 April 2018) (on file with within the client’s purview under our rules may be weekly or monthly. The point is to author). for professional conduct you can frame maintain the client’s confidence. There is 2. I recommend refraining from having visible family the potential outcomes.11 This is done by a strong correlation in client satisfaction photos. There is no need for legal assistance clients identifying the client’s best alternative to and effective follow up.15 Often the positive to be able to identify your spouse, children, or other a negotiated agreement (BATNA).12 To resolution of the legal issue takes a back seat family members. paraphrase, the BATNA is what you will do to the client’s perception that his problem 3. I have never been able to eliminate the “drop in” client. This often happened during my National Guard if you cannot settle with the counterparty is being actively addressed by a competent, service wherein you would only see customers and (usually a spouse or the command). empathetic attorney. Within this construct, clients once per month. To properly manage these sit- If you can negotiate better terms than however, do not make excuses or apologize uations, I recommend a baseline checklist while taking proactive steps to not unknowingly or unnecessarily your BATNA, then you should accept a for your legal work. If you followed the creating an attorney-client relationship. settlement. If you cannot negotiate terms above steps, you set the stage to be effective. 4. U.S. DEP’T OF THE ARMY, REG. 27-26, RULES OF better than your BATNA then you should Quite simply, you will often be playing a PROFESSIONAL CONDUCT FOR LAWYERS rules 1.6 and 1.7 walk away and pursue your best alterna- losing hand. (28 June 2018) [hereinafter AR 27-26]. tive course of action.13 Obviously, a good 5. Id. BATNA increases your leverage. If you 8. Conclusion 6. Id. know you have solid alternative courses of The initial client meeting sets the roadmap 7. Id. action, you do not need to concede as much for the attorney-client relationship. This re- 8. http://www.uniformlaws.org/shared/docs/child_ because you have alternatives to a deal. lationship, in turn, often drives whether the custody_jurisdiction/uccjea_final_97.pdf. Conversely, if your options are slim, your representation is successful. Like advocacy 9. In the unlikely event your client can afford one of counterparty can make heavy demands and in the courtroom, the initial meeting can the above mentioned vehicles and does not already own one, the vehicle becomes a need, not a want. extract concessions. Work with your client be scripted, practiced, and trained. It makes 10. U.S. DEP’T OF THE ARMY, REG. 608-99, FAMILY to improve your BATNA. If you have a everything that comes after easier. The SUPPORT, CHILD CUSTODY, AND PATERNITY para. 2-1 (28 strong alternative, consider revealing it client will be more open. When the client Oct. 2003) [hereinafter AR 608-99]. to the counterparty to solve your client’s is more open to disclose facts and circum- 11. AR 27-26, supra note 4, rule 1.2. problem on favorable terms as quickly as stances, it improves your ability to analyze 12. ROGER FISHER & WILLIAM URY, GETTING TO YES, possible because time is almost never the the situation, understand the BATNA, and NEGOTIATE AGREEMENT WITHOUT GIVING IN 97–108 legal assistance attorney’s friend.14 to develop potentially successful courses of (3rd ed. 2011). Legal issues get worse the longer action. This puts you and the client on the 13. Id. they are unresolved. Therefore, look for same page by defining success and the like- 14. Id. solutions that solve the underlying problem lihood of getting there. Success may simply 15. http://lawfirmsuites.com/2016/02/keeping-cli- or provide a path to resolution as quickly as be keeping your client in the Army for a ents-happy-as-a-solo-attorney/ (last visited 23 May 2018). possible. This is especially true when repre- few months longer so he or she can bank senting young Soldiers who may have short some extra money or receive additional attention spans or may neglect to follow up medical care. For others, it may be separa- on required action items. tion as quickly as possible. There is nothing Balancing BATNA and time, a success- worse than a client with a losing fact pat- ful representation often entails lowering tern who leaves his attorney meeting with interim support payments so a client can a false sense of security. Once success is stay financially solvent while determining defined, develop the roadmap. This may be whether to seek a divorce. This may just negotiation with opposing counsel, letters entail a few phone calls and creative nego- to a commander, rebuttal briefs, or litiga- tiation. Another successful representation tion. No matter, every problem requires a that can save clients thousands of dollars is different tool. Develop those tools with the identifying a correct divorce jurisdiction. information gleaned, and the confidence Again, perform the legal analysis, combine gained, from the ability to conduct effective it with your BATNA, coordinate with the client interviews. TAL

36 Army Lawyer • Practice Notes • November/December 2018 noncommissioned officers (NCOs).4 During Kaiser is immersive history that reads like four years of constant warfare in unforgiv- fiction. Blending the styles of Robert K. ing German East Africa, von Lettow and Massie and Erik Larson, Gaudi merges biog- his troops faced innumerable operational raphy (von Lettow) and history of an event issues. They suffered from heat and disease.5 (the German East African Campaign). This Surrounded by enemy territories and block- hybrid approach is not entirely successful, aded by sea,6 they endured chronic food, occasionally proving confusing. Regardless, water, and materiel shortages,7 and they Gaudi paints an indelible portrait of von typically lacked modern rifles and artillery.8 Lettow, a one-eyed, chain-smoking, tradi- Yet von Lettow never lost a battle, counter- tion-bound Prussian, whom his enemies ing superior numbers by choosing his fights respected, feared, and, paradoxically, loved. and seizing the initiative.9 Von Lettow only Gaudi’s hero is driven and resourceful, but surrendered command after learning of the compassionate and honorable. However, armistice.10 He returned home a national Gaudi eschews source notes, an omission hero, honored by parade and monument.11 which leads to accuracy and bias concerns. Although he constantly harried his en- Ultimately, he avoids addressing unsettling emies, he engendered both admiration and questions about the Prussian general, whose love.12 In 1927, the British Expeditionary legacy has become increasingly controversial. Force invited von Lettow to its ten-year Nevertheless, von Lettow’s leadership les- reunion, at which the Prussian general sons alone make African Kaiser a must read. received a standing ovation.13 In 1945, after Field Marshal Jan Smuts discovered that II. Biography and History von Lettow was destitute, he arranged a Like Massie and Larson, Gaudi does not limit pension for his old adversary.14 himself to standard biographical or histor- Von Lettow’s leadership qualities ical paradigms, nor does he clearly state a remain as relevant as ever, as his East purpose, scope, or thesis. Rather, he merges Africa campaign parallels current American history and biography in creative ways. In his Book 23 conflicts in multiple dimensions. One magisterial Dreadnought, Massie explains century ago, his smaller force successfully an historical event (the German-British Review resisted a more numerous, better-equipped battleship arms race) by introducing a host of foe. His enemy typically concentrated on characters, whose personalities and conflicts defense, presenting static targets which drive events. In Devil in the White City,24 by he systematically exploited.15 He even contrast, Larson juxtaposes the seemingly utilized improvised explosive devices, incongruous history of Chicago’s World Fair African Kaiser provoking his opponent into a tit-for-tat with the biography of a notorious serial killer General Paul Von Lettow- series of measures and countermeasures.16 active during the same time and place. Understanding his success may illumine Gaudi’s biography/history hybrid draws Vorbeck and The Great War current counterinsurgent strategies.17 from both historical approaches. Like Massie, 1 in Africa, 1914–1918 Despite his unprecedented accomplish- Gaudi uses personalities as the engine to ments, von Lettow’s guerilla strategies have drive events. Through Gaudi’s lens, the largely been obscured by the monumental disastrous Tanga landing is explicable by von Reviewed by Major J. Eagle Shutt scope and tragedy of World War I.18 A re- Lettow’s initiative and Major General Arthur cent best-selling World War I history never Aitken’s complacency.25 Like Larson, Gaudi mentions von Lettow,19 who operated on eclectically selects characters, events, and His only god, in the end, was the God of Battles.2 a considerably smaller scale and played places, and even zips back and forth through only an indirect part in the central drama time. In describing the German East Africa in Europe. Additionally, many von Lettow campaign, he creatively fuses von Lettow’s 20 I. The Forgotten Genius sources are in German. Despite histor- campaign with stolen signals, naval battles, In African Kaiser, Robert Gaudi vividly ical interest in the German East African spies, zeppelins, and aviation pioneers. details the masterful guerrilla campaign of campaign,21 African Kaiser is the first von However, Gaudi’s tangents occasionally General Paul Emil von Lettow-Vorbeck, Lettow biography in over fifty years.22 prove confusing. For example, Gaudi opens the only undefeated German commander Gaudi succeeds brilliantly at introducing by rapidly shifting from Giza to East Africa in World War I.3 Von Lettow commanded von Lettow and his East African campaign to a warship off the Estonian coast.26 the Schutztruppe, a racially integrated unit to the military reader. Through evocative Despite the eclecticism, African Kaiser led by both German officers and African language and sweeping narrative, African is eminently readable and does not require

November/December 2018 • Book Review • Army Lawyer 37 prior historical knowledge. Gaudi has a gift inhospitable environment. As Gaudi writes, increasing scrutiny. Gaudi clearly sides with for simplifying the complex. He carefully von Lettow had adapted his Schutztruppe the consensus of traditional scholars who refrains from overwhelming the reader into a “highly efficient mobile fight- view the Prussian general as an outstand- with foreign terms and clearly describes ing force, aggressive and completely ing military leader and innovator.53 But large-scale events, such as colonial uprisings self-supporting.”40 some historians now question whether and campaign military movements. von Lettow was a true guerrilla warrior,54 55 IV. Scholarship or even whether he innovated at all. III. Leadership Lessons In assessing von Lettow’s leadership Additionally, recent scholarship indicates Gaudi highlights specific traits or capacities traits, a related issue is whether Gaudi has that von Lettow’s warfighting tactics had a that made von Lettow a successful military accurately portrayed von Lettow himself. devastating impact on African civilians.56 leader. In the crucible of staff officer work, Gaudi’s failure to use footnotes presents Perhaps over relying on von Lettow’s military education, and gritty operational serious concerns of accuracy and bias memoirs, Gaudi’s portrait of von Lettow environments, von Lettow forged and and runs counter to current history and does not fully capture the general’s ruth- refined strategies and innovations. He at- biography norms,41 though the casual lessness.57 For example, when retreating in tended war college, served as a staff officer, reader may not care.42 He relies on both 1917, von Lettow ordered a scorched-earth deployed to China, and studied tactics and primary and secondary sources in fram- strategy to deny cattle and food resources logistics.27 While deployed to Africa, he ing his conclusions, but without pinpoint to the Allies.58 For natives, the result observed successful guerrilla methods prac- citations, his narrative is hard to fact-check. was starvation.59 African Kaiser’s greatest ticed by Boer commandos.28 After studying He erroneously refers to Loyal North Lancs deficiency is Gaudi’s failure to address fully the Battle of Sedan, he concluded that the as “white European residents of India,” von Lettow’s ancillary effects. This lacuna is French lost due to their rigid military struc- when in fact they were British troops from particularly glaring because Gaudi squarely ture and lack of initiative.29 a North Lancashire regiment.43 He also describes the atrocities and hardships from As a corrective, von Lettow stressed misstates that General Aitken was Lord prior colonial actions.60 He briefly mentions self-reliance, in which a leader could act Beaverbrook’s brother,44 though this mis- that von Lettow practiced the “wolf strat- with conviction in the absence of spe- take has been made elsewhere.45 egy” by plundering and ravaging villages.61 cific direction.30 In selecting leaders, he Additionally, two of Gaudi’s key pri- Gaudi includes ransacked towns but omits used meritocratic principles. His leader- mary sources are Richard Meinertzhagen’s specifics regarding community conse- ship cadre included native NCOs, and he diaries and von Lettow’s memoirs. Modern quences.62 Problematically, he seems fully respected native fighters.31 He demanded scholarship has exposed Meinertzhagen as cognizant of African impact research: total dedication.32 At the outset of his East a fraud,46 of which Gaudi is keenly aware.47 Africa campaign, he specifically instructed Von Lettow’s personal accounts are likewise Of course, von Lettow got blamed his subordinates to take the initiative, move problematic, as he subtly omits at least some for many things by many different quickly, and make surprise attacks.33 incidents that might harm his reputation. people after the war. . . . He got Von Lettow cultivated a thorough For example, as horses rarely survived, von blamed for the deaths of askaris and operational knowledge of his environment. Lettow relied on a steady supply of porters, German soldiers and African carriers He conducted inspections, studied the brutally impressed natives who died by the by historians as yet unborn, and also land, and traveled extensively.34 He learned thousands.48 To prevent escape, von Lettow for the death of any native who died Swahili and interrogated natives to learn roped porters together and ordered that from the flu or starvation when their ways to adapt, which allowed him to live escapees be shot,49 facts entirely omitted in fields were stripped clean of yams by off the land.35 Adaptability was his forte. He his written recollections.50 the invading Schutztruppe. 63 constantly maximized his assets through Minor errors and problematic sources innovation. He instituted native recruiting aside, Gaudi judiciously evaluates available Gaudi’s omission may be attributable initiatives, developed a carrier corps, and evidence and avoids unsupported conclu- to a bias favoring von Lettow, whom he acquired anti-malarials.36 He recognized sions. For example, he delicately considers repeatedly terms a genius.64 He compares that traditional war strategies may not whether von Lettow had an affair with the Prussian general to Gylippus, a heroic work in specific environments, such as author Isak Dinesen before concluding figure from the Peloponnesian War.65 bush fighting.37 In response to supply and that von Lettow intentionally omitted this Perhaps too uncritically, Gaudi envisions personnel shortages, he changed tactics to romance from his memoirs.51 Moreover, his von Lettow as a compassionate old-school a guerrilla campaign.38 When faced with a assessment of von Lettow’s achievements gentleman, while systematically discounting superior force, he sought concealment and and character are largely consonant with or ignoring contradictory evidence.66 In used the terrain for defensive advantages.39 extant literature.52 Gaudi’s defense, while he does not specif- As a result of his unique experiences, ically evaluate African village impacts, he 67 von Lettow became the indispensable V. The General’s Legacy does address high porter mortality rates. leader—uniquely qualified to perse- In the 21st century, von Lettow’s memoir Regrettably, high civilian impacts were vere against overwhelming odds in an claims and achievements have come under commonplace in World War I theaters.68

38 Army Lawyer • Book Review • November/December 2018 Criticisms aside, African Kaiser is aimed 19. G.J. MEYER, A WORLD UNDONE: THE STORY OF THE was due to his brother, Sir Max Aitken, later Lord at the general public, like Larson’s Devil in GREAT WAR, 1914 TO 1918 (2007) (ebook). Beaverbrook). the White City.69 In introducing von Lettow 20. See, e.g., the Lettow-Vorbeck family website, http:// 46. See generally id. at 48. www.lettow-vorbeck.de/literat.htm#afrika (last visited 47. See GAUDI, supra note 1, at 178–80. to a new audience, Gaudi intends to both Sep. 21, 2017). 48. William J. Astore, East Africa, in 8 HISTORY IN educate and entertain. He succeeds mar- 21. See, e.g., HOYT, supra note 12; ROSS ANDERSON, DISPUTE: WORLD WAR I, FIRST SERIES 89 (D. Showalter velously at both, weaving a thrilling tale of THE FORGOTTEN FRONT: THE EAST AFRICAN CAMPAIGN ed. 2002). heroism and high adventure. The military 1914–1918 (2014). 49. See Dan Whitaker, The Uncatchable Lizard, HISTORY 22. See LEONARD MOSLEY, DUEL FOR KILIMANJARO: AFRICA reader will find African Kaiser an accessible TODAY, Feb. 2013, at 31. 1914–1918 (1964). and entertaining way to learn leadership 50. See PAUL EMIL VON LETTOW-VORBECK, MY 23. ROBERT K. MASSIE, DREADNOUGHT: BRITAIN, GERMANY, from one of history’s great generals. TAL REMINISCENCES OF EAST AFRICA (1920), https://archive. AND THE COMING OF THE GREAT WAR (1991). org/stream/myreminiscenceso00lettuoft#page/n0/ 24. ERIK LARSON, THE DEVIL IN THE WHITE CITY: MURDER, mode/2up. MAJ Shutt is the Chief of Administrative MAGIC, AND MADNESS AT THE FAIR THAT CHANGED 51. See GAUDI, supra note 1, at 128, 130–31; ISAK DINESEN, Law for the 7th Army Training Command in AMERICA (2004). OUT OF AFRICA (1938). Gaudi puts a favorable spin on Grafenwoehr, Germany. 25. GAUDI, supra note 1, at 172, 181. von Lettow’s reticence, noting that, as a gentleman, he See AUDI 26. Id. at 1–3. was reluctant to discuss romantic matters. G , supra note 1, at 37 (discussing the omission of other 27. Id. at 40 (war college), 61–63 (China), 64 (tactics and romantic relationships from his memoirs). logistics), 83–90 (staff officer in Africa). Notes 52. See Crowson, supra note 18; HOYT, supra note 12; 1. ROBERT GAUDI, AFRICAN KAISER: GENERAL PAUL VON 28. Id. at 40–41. MOSLEY, supra note 22; Stratis, supra note 18. For revi- LETTOW-VORBECK AND THE GREAT WAR IN AFRICA, sionist interpretations, see infra notes 54–56. 1914–1918 (2017). 29. Id. at 33. 53. See, e.g., HOYT, supra note 12. 2. Id. at 31. 30. Id. 54. See Whitaker, supra note 49, at 31 (arguing that von 3. Id. at 410. 31. Id. at 2, 24. Lettow engaged more in perpetual retreat than actual 4. Gaudi claims that the Schutztruppe became “the first 32. Id. at 107. Guerrilla warfare). racially integrated army in modern history.” Id. at 2. 33. Id. at 159. 55. See 1 HEW STRACHEN, THE FIRST WORLD WAR: TO 5. See, e.g., id. at 195–96, 227, 230. 34. See, e.g., id. at 144. ARMS 569–70 (2003). See also Stuart Mitchell, Smuts, Lettow, and the War in German East Africa, in THE 6. Id. at 137. Id 35. . at 101 (interrogations and bushcraft), 107–08 GREATER WAR: OTHER COMBATANTS AND OTHER FRONTS, 7. See, e.g., id. at 384. (Swahili), 394–95 (subsistence). 1914–1918, at 101 (J. Krause ed. 2014). See generally F. 8. Id. at 137. 36. Id. at 224–25. Jon Nesselhuf, General Paul von Lettow-Verbeck’s East Africa Campaign: Maneuver Warfare on the Serengeti 37. Id. at 101. 9. See, e.g., id. at 228, 233. 8-11 (May 2012) (unpublished M.A. thesis), https://dig- 10. Id. at 405. 38. Id. at 235, 239–241. ital.library.unt.edu/ark:/67531/metadc115128/m2/1/ 39. Id. at 312. high_res_d/thesis.pdf (arguing that recent historical 11. Id. at 410, 419. scholarship has shifted to an increasingly negative view 12. EDWIN P. HOYT, GUERILLA: COLONEL VON LETTOW- 40. GAUDI, supra note 1, at 2. of von Lettow’s campaign). VORBECK AND GERMANY’S EAST AFRICAN EMPIRE 449 (1981). 41. See, e.g., MASSIE, supra note 23 (biography with end- 56. See EDWARD PAICE, TIP AND RUN: THE UNTOLD 13. GAUDI, supra note 1, at 413–14. Von Lettow opposed notes); IAN KERSHAW, HITLER 1889-1936: HUBRIS (1998) TRAGEDY OF THE GREAT WAR IN AFRICA (2007). (biography with footnotes); ANTHONY READ, THE DEVIL’S the British Expeditionary Force (BEF) in numerous 57. See Whitaker, supra note 49, at 31. guerilla campaigns. See id. DISCIPLES: HITLER’S INNER CIRCLE (2003) (biography with footnotes); ROGER NELSON, THE PURSUIT OF VICTORY: THE 58. Id. 14. Gen. von Lettow-Vorbeck Dead, N.Y. TIMES (Mar. LIFE AND ACHIEVEMENTS OF HORATIO NELSON (2005) (biogra- 10, 1964), http://www.nytimes.com/1964/03/10/ 59. Id. phy with footnotes); STEPHEN B. OATES, LET THE TRUMPET gen-von-lettowvorbeck-dead.html?mcubz=0. Field SOUND: A LIFE OF MARTIN LUTHER KING (1994). For history, 60. See GAUDI, supra note 1, at 118. Marshal Smuts commanded the BEF in East Africa from see, e.g., J.M. ROBERTS, THE PENGUIN HISTORY OF THE WORLD 1916–17, during World War I. See generally RICHARD 61. Id. at 27–28, 400. (1995) (history with endnotes); MEYER, supra note 19 STEYN, JAN SMUTS—UNAFRAID OF GREATNESS (2015). (history with endnotes). But see BRUCE CATTON, THE CIVIL 62. See id. at 303–04. 15. GAUDI, supra note 1, at 240, 393. WAR (1960) (history without citations). 63. Id. at 421. In his bibliography, Gaudi cites Tip and 16. Id. at 240–44. 42. Michael Dirda, ‘African Kaiser’: A Sweeping Military Run. GAUDI, supra note 1, at 424. Moreover, Gaudi History that Reads Like a Novel, WASH. POST (Mar. details an Askari memorial warning label asserting that 17. See generally Dan Lamothe, Meet Operation Freedom’s 15, 2017), https://www.washingtonpost.com/ the German East Africa campaign claimed “about half Sentinel, the Pentagon’s New Mission in Afghanistan, WASH. entertainment/books/african-kaiser-a-sweeping-mil- a million people, most of them African civilians, killed POST (Dec. 29, 2014), https://www.washingtonpost. itary-history-that-reads-like-a-novel/2017/03/15/ directly and indirectly by acts of war.” Id. at 420. com/news/checkpoint/wp/2014/12/29/meet-op- e9ec903c-05a0-11e7-b9fa-ed727b644a0b_story. eration-freedoms-sentinel-the-pentagons-new-mis- 64. Id. at 125, 304, 408. html?utm_term=.94a6f01e8406. sion-in-afghanistan/?utm_term=.33dca8d3987f. 65. Id. at 25. 43. Allan Mallinson, General Paul von Lettow-Vorbeck: 18. See Major Thomas A. Crowson, When Elephants The Lion of German East Africa, THE SPECTATOR (Aug. 66. For example, Gaudi dismisses as implausible an Clash: A Critical Analysis of Major General Paul Emil von 12, 2017), https://www.spectator.co.uk/2017/08/ allegation that von Lettow handed a pistol to a disgraced Lettow-Vorbeck in the East African Theater of the Great general-paul-von-lettow-vorbeck-the-lion-of-german- subordinate and implied that the subordinate should kill War 97 (Jun. 2003) (unpublished M.A. thesis, U.S. Army east-africa/. himself. Id. at 303. Command and General Staff College), http://www.dtic. mil/get-tr-doc/pdf?AD=ADA417332. See also Lieutenant 44. Id. 67. Id. at 18, 132. Colonel John C. Stratis, A Case Study in Leadership– See, e.g. EYER supra 45. See, e.g., BRIAN GARFIELD, THE MEINERTZHAGEN 68. , M , note 19, at 290, 305, 411–12, Colonel Paul Emil von Lettow-Vorbeck (Apr. 9, 2002) MYSTERY: THE LIFE AND LEGEND OF A COLOSSAL FRAUD 514, 583, 609. (unpublished research project, U.S. Army War College), 82 (2007) (arguing that General Aitken’s advancement 69. See LARSON, supra note 24. http://www.dtic.mil/get-tr-doc/pdf?AD=ADA404449.

November/December 2018 • Book Review • Army Lawyer 39 (Credit: istockphoto.com/JanPietruszka) No. 1 Cyber Warfare for JAs Understanding the Legal Operating Environment

Major Phillip Dickerson and Brigadier General Joseph B. Berger

I. Introduction Similarly, October of 2017 saw the that the terrorist group sent out over In October of 2017, the Wall Street Journal liberation of Raqqah from ISIS by U.S. 40,000 tweets per day during its assault on reported Russia opened a new battle- backed forces in Norther Syria.4 Despite Mosul.9 Then in 2016, the Washington front with NATO by exploiting a point of this major loss, and certainly prior to it, ISIS Post declared that the encrypted messaging vulnerability for almost all allied soldiers: was alarmingly effective in its use of social application Telegram surpassed Twitter as personal smartphones.1 The campaign tar- media to recruit fighters, inspire acts of ISIS’s communication app of choice.10 geted the contingent of some 4,000 NATO terrorism, and project an image of unwav- These case-studies clearly demonstrate troops deployed to Poland and the Baltic ering confidence to the West.5 This success that the use of cyberspace is an indispens- States and involved sophisticated drones required a sophisticated public relations able and absolutely necessary part of both equipped with surveillance electronics.2 strategy. It also required a working internet modern society and warfare. It will only Although some NATO officials played connection.6 Counter-terrorism experts grow in importance to both friendly forces down the threat posed, others said that in agree that ISIS almost certainly uses satellite and adversaries, and U.S. military units a crisis, compromised cellphones could be internet to get online.7 Satellite Internet re- need to be able to defend it and leverage it used to slow NATO’s response to Russian quires no local infrastructure, and the very offensively. Unfortunately, commanders military action if, for example, the per- small aperture terminal (VSAT) satellite at corps level and below are unlikely to sonal cellphone of a commander was used stations required for internet access can have authority to conduct what are com- to send out fake instructions.3 Beyond be purchased for about $500 in countries monly understood to be Offensive Cyber the disruption of communications, if a like Turkey and then smuggled into ISIS- Operations (OCO), but they may have au- compromised phone were brought into controlled parts of Syria.8 thority to engage in cyber-related activities. a secure area such as a military command Violent extremist organization (VEO) Similar to the relationship between post, it could be used to collect sensitive use of the internet is well-established. The electronic warfare (EW) and signals intel- information. The ubiquitous smartphone Financial Times reported back in 2014, that ligence (SIGINT) or between intelligence represents one more potential attack vec- the internet was ISIS’s command-and-con- activities and intelligence-related activities, tor, in peace and war. trol network of choice, specifically noting the categorization of actions involving

November/December 2018 • Army Lawyer 41 cyberspace can be a nuanced, facts-and-cir- publicly available information that is future cyberspace or EW operations.22 cumstance based determination. Brigade collected, exploited, and disseminated in a The primary intent of SIGINT is to meet commanders are not going to have the timely manner to an appropriate audience national intelligence requirements over a authority to implant a computer virus that for the purpose of addressing a specific longer period of time. will destroy a centrifuge or turn off the intelligence requirement.”17 And if that distinction wasn’t confusing power at a North Korean missile base, but As described in Joint Publication enough, often the same activity may start cyber tools and capabilities exist that those 2-01, OSINT is developed using media its life as EW, but will live a “second life” as commanders may be able to utilize in cer- and Web-based sources. OSINT process- SIGINT.23 tain circumstances. It is imperative that the ing transforms (converts, translates, and The analysis of intelligence derived judge advocates advising those command- formats) text, graphics, sound, and motion from all intelligence disciplines across all ers understand the current legal operating video in response to user requirements. echelons, including theater and national environment, can correctly issue spot, and For example, at the national level, the collection assets, provides insight about have a framework for subsequent analysis. ODNI Open Source Enterprise provides enemy cyberspace and EW operations.24 translations of foreign broadcast and print Leveraging the information collection 18 II. Definitions media. OSINT is also developed from requirements process may support aspects In Section 954 of FY 2012 National Defense information collected by commercial com- of cyberspace and EW operations. Authorization Act, Congress affirmed that panies that use their own assets or purchase the Department of Defense has the capa- information from independent contractors IV. What Can Be Done: A Scenario bility, and upon direction by the President who monitor media.19 may conduct offensive operations in Signals Intelligence (SIGINT) is de- A. VEO utilization of the internet cyberspace to defend our nation, allies, and fined as intelligence produced by exploiting As discussed above, ISIS’s primary means of interests, subject to the policy principles foreign communications systems (e.g., communication among fighters is mobile and legal regimes that the Department fol- radio or other electromagnetic means) phones, specifically utilizing apps like lows for kinetic capabilities, including the and non-communications emitters (e.g., Telegram, because its primary means of law of armed conflict.11 radar).20 The National Security Agency communicating with the outside world is Joint Publication (JP) 3-12 (R) defines (NSA) is the national SIGINT manager and through VSAT connections to the in- cyberspace as a global domain within the all SIGINT operations must be conducted ternet. During the planning of an advise information environment consisting of the under authority delegated from the NSA. and assist mission intended to support a interdependent networks of information partner force’s assault on an ISIS position, a technology infrastructures and resident III. So What’s The Difference? special forces battalion staff identifies these data, including the internet, telecommu- These definitions demonstrate the signif- two facts as opportunities to disrupt ISIS nications networks, computer systems, icant amount of overlap that exists and communications that could give the partner and embedded processors and controllers the confusion that can result. Cyberspace force a distinct, if not decisive, advantage. (emphasis added).12 operations may include the internet, but The commander knows his unit, with the Offensive cyberspace operations are may not. EW operations may include broader coalition force, has the capability to cyberspace operations intended to project cyberspace, but may not. And a given disrupt both of these avenues of communi- power by the application of force in or operation affecting the EMS may be clas- cations. So, he turns to his judge advocate through cyberspace.13 sified as SIGINT or EW depending on the and asks what he’s allowed to do. Electronic warfare (EW) refers to underlying intent. Furthermore, it is not military action involving the use of elec- uncommon that a given operation could B. Disrupt the Cellular Network, tromagnetic and directed energy to control legitimately be defined as either an OCO WiFi Networks, and VSATs the electromagnetic spectrum or to attack or EW operation. Often, the ultimate cat- The planners inform the commander that the enemy.14 EW includes activities such as egorization that is adopted will very likely the unit has an organic capability to jam electromagnetic jamming, electromagnetic be the result of the authorities possessed by WiFi and GSM signals in a two-kilometer hardening, and signal detection, respec- the classifier. radius around the device. The commander tively.15 EW affects, supports, enables, EW and SIGINT missions may use is also aware that the capability exists protects, and collects on capabilities oper- similar—or even the same—resources. The to gain access to specific WiFi routers ating within the electromagnetic spectrum two differ, however, in the intent, the through the internet. The staff suggests (EMS), including cyberspace capabilities.16 purpose for the task, the detected informa- the unit send a small recon element out Title 50 U.S.C. Section 403-5, defines tion’s intended use, the degree of analytical to map the networks operating in the Open Source Information as “publicly, effort expended, the detail of information target area so the jamming tool can be available information that anyone can provided, and the timelines required.21 utilized most effectively. Alternatively, it’s lawfully obtain by request, purchase, or EW missions respond to the immediate likely that the same information could be observation” and defines Open Source requirements of a tactical commander or obtained through the use of internet-based Intelligence (OSINT) as “produced from exist to develop information to support tools. However, obtaining intelligence via

42 Army Lawyer • November/December 2018 Cyber warfare operators assigned to the 275th Cyber Operations Squadron of the 175th Cyberspace Operations Group of the Maryland Air National Guard configure a threat intelligence feed for daily watch in the Hunter's Den at Warfield Air National Guard Base, Middle River, Md., Dec. 2, 2017. (U.S. Air Force photo by J.M. Eddins Jr.) an internet connection, rather than the sort, additional authorities may be required This principal raises interesting EMS, will likely require SIGINT authori- before the unit may proceed. It is also concerns with regard to contracting for ties. This is where much of the confusion important to note that OSINT refers only open-source information or intelligence. over authorities manifests itself. Currently, to the gathering of information, not the The legal advisor must consider whether SIGINT authorities are unlikely to be del- introduction of data into the information any concerns regarding U.S. persons egated to the battalion level, or at least not environment.25 have been raised, whether U.S. or for- in a timely enough manner to be effective Further consideration must be given eign privacy laws have been violated in in such a mission. when contracting for OSINT. Typically, the the collection of the data in question, and It is critical to remember the Laws of U.S. Government is not allowed to enter whether the unit has the authority to ob- Armed Conflict apply to cyber and EW into a contract for goods or services that it tain this type of information/intelligence. operations. Therefore, judge advocates, could not legally obtain or engage in on its Deconfliction with partner forces is critical; working with the staff, must ensure the own.26 For example, if the U.S. Government understanding privacy laws that may apply targets are valid military targets and weigh cannot dispose of hazardous waste in a to partner forces, even extraterritorially, is the impact on the civilian population of dis- particular manner, it could not hire a con- equally important. rupting cellular and internet connections. tractor to dispose of the waste if it believed the contractor intended to dispose of it in D. Conduct information C. Monitor Facebook, Twitter, etc. for this prohibited way. Additionally, the U.S. operations via cyberspace before, adversary response to the assault Government is often prohibited from task- during, and after the assault Generally speaking, monitoring publicly ing a contractor to violate local laws that the Information Operations (IO) are those available social media communications falls contractor is subject to. For example, U.S. actions specifically concerned with the squarely within the definition of OSINT. If, Forces-Korea could not task a local contrac- integrated employment of information-re- however, these communications are taking tor to dispose of waste in a way that violates lated capabilities during military operations, place within a restricted group of some South Korean environmental laws. in concert with other lines of operation,

November/December 2018 • Army Lawyer 43 The Norse data wall on the operations floor of the 275th Cyber Operations Squadron, called the Hunter's Den, provides real time worldwide cyber attack sources and attack locations for the 175th Cyberspace Operations Group of the Maryland Air National Guard at Warfield Air National Guard Base, Middle River, Md., Dec. 2, 2017. This portion of the screen is focused on attacks within North America. (U.S. Air Force photo by J.M. Eddins Jr.) to influence, disrupt, corrupt, or usurp the from a plane or broadcast via radio signal must be prepared to help the commander decision making of adversaries and poten- to the authorized area of responsibility/area identify tools that the commander may tial adversaries while protecting friendly of hostilities (AOR/AOH). Doing so in cy- have to determine who is, in fact, operating forces.27 Thus, cyberspace is a medium berspace (i.e., “geo-fencing”), however, can in close proximity. It could be classified through which some information-related prove much more difficult. Additionally, as EW, but if it is a state actor adversary, capabilities, such as military information even if the recipients of a cyber-delivered EW collection authority may be limited support operations (MISO) or military IO product can be geographically con- or non-existent, especially during training deception (MILDEC), may be employed. strained to the AOR/AOH, what if that or Phase Zero operations. Such collection IO in cyberspace raises a number of message transits though or resides on a could be classified as SIGINT if the activity issues that must be considered. When server in a third country? is related to planning operations against considering a possible IO activity, the unit an enemy force, but the commander very must have both product/message author- V. Russian cyber operations within likely does not have SIGINT authorities. ity and dissemination authority. The unit Syria targeting mobile devices There may be an argument for inherent may have the ability to produce anti-VEO force-protection authority, but this can be a message, but may only have the authority A. Network mapping as difficult case to make. to disseminate via print and audio-broad- force protection cast. In such a scenario, the unit may have The modern battlefield is rarely defined B. Disrupt the intruder to seek additional authority to disseminate by clear front lines. Often, U.S. forces As noted above, U.S. forces often find its authorized message via internet-based find themselves operating in close vicinity themselves operating near adversaries that platforms. Another consideration that must to potential adversaries. As a result, it is may not be members of a targetable force. be analyzed is geography. It’s fairly easy to important for a commander to have a sense If that adversary is attempting to compro- limit the distribution of leaflets dropped of who is operating nearby. Judge advocates mise U.S. forces’ cell phones though cyber/

44 Army Lawyer • November/December 2018 EW equipment carried by UAVs, what electromagnetic spectrum issues will not be 14. JOINT CHIEFS OF STAFF, JOINT PUB. 3-13.1, ELECTRONIC WARFARE ch. 1, para. 4 (Jan. 25 2007) [hereinafter JP authority does the commander have to limited to niche jobs in specialized com- 3-13.1]. repel the intrusion? The right of self-de- mands. While the strategic level issues may 15. JP 3-13.1, supra note 14, at vi. fense is inherent, but an act of intelligence reside in those formations, their practical 16. JP 3-13.1, supra note 14, ch. 1, para. 5. gathering may not be considered a hostile (and tactical level) application is in the . act authorizing a kinetic response. Can the hands of our junior practitioners. You must 17 50 U.S.C.§ 403-5 (2006). commander turn on a jammer that blocks write the next chapters. TAL 18. ODNI News Release No. 6-05, ODNI Announces Establishment of Open Source Center, Nov. 8, the signal penetrating the unit’s mobile 2005, https://www.dni.gov/files/documents/ devices? What if the commander knows the BG Berger is the Commander of the United Newsroom/Press%20Releases/2005%20Press%20 jammer will also bring down the UAVs? States Legal Services Agency and Chief Judge Releases/20051108_release_content.htm. If those same mobile phones are being of the U.S. Army Court of Criminal Appeals. 19. JOINT CHIEFS OF STAFF, JOINT PUB. 2-01, JOINT AND NATIONAL INTELLIGENCE SUPPORT TO MILITARY penetrated through the phone’s internet MAJ Dickerson is assigned to the 10th LOD as a OPERATIONS ch. 3, para. 19 (Jul. 5 2017). member of its Intelligence Law Support Team. connection, can the commander authorize 20. JOINT CHIEFS OF STAFF, JOINT PUB. 2-0, JOINT his 17 series Soldier to “hack-back” against INTELLIGENCE app. B, para. 3 (Oct. 22 2013) [hereinafter the intrusion? What if the commander JP 2-0]. 21. U.S. DEP’T OF ARMY, FIELD MANUAL 3-12, believes his unit’s network of mobile de- Notes vices has been penetrated in support of an 1. Thomas Grove et al., Russia Targets NATO CYBERSPACE AND ELECTRONIC WARFARE OPERATIONS para. Soldier Smartphones, Western Officials Say, WALL ST. 1-130 (Apr. 11 2017) [hereinafter FM 3-12]. imminent attack? Can the inherent right of J., Oct. 4, 2017, https://www.wsj.com/articles/ 22. Id. self-defense be used to authorize an OCO? russia-targets-soldier-smartphones-western-offi- cials-say-1507109402. 23. JP 3-13.1, supra note 14, ch. 1, para. 10. 2. Id. 24. JP 2-0, supra note 20, para. 2-10. VI. Conclusions (But Not Really) The introduction of cyberspace operations 3. Id. 25. For example, while a commander could direct his S2 section to review and analyze information on at the tactical level is still in its nascent 4. Anne Barnard & Hwaida Saad, Raqqa, ISIS ‘Capital,’ Twitter, the commander may not, without addi- stages. As the Chief of Staff of the Army has Is Captured, U.S.-Backed Forces Say, N.Y. TIMES, Oct. 17, tional authorities, direct his S2 section to disseminate 2017, https://www.nytimes.com/2017/10/17/world/ noted, “The character of war is changing information on Twitter, regardless of whether that in- middleeast/isis-syria-raqqa.html. formation consists of S2’s own messages—or messages very significantly”, and cyber is one of the 5. Clint Finley, It’d be Great to Kick ISIS Offline – If it previously created by others—factual or otherwise. three key emerging technologies driving were Possible, WIRED, Mar. 30, 2016, https://www. 26. 31 U.S.C. § 1301 (1982). that change in character.28 The battlefield wired.com/2016/03/how-is-isis-online/. 27. U.S. DEP’T OF AIR FORCE, POL’Y DIR. 10-7, is constantly evolving. Like the earlier 6. Id. INFORMATION OPERATIONS para. 1 (Aug. 4 2014). introduction of airpower, there has been 7. Id. 28. David Thornton, Army Trying to Keep up with a steady clamor for new rules to deal with 8. Id. Changing Character of War, FEDERALNEWSRADIO.COM, the threats, and more specifically, rules to https://federalnewsradio.com/army/2018/06/army- 9. Robert Hannigan, Opinion, The web is a ter- tries-to-keep-up-with-changing-character-of-war/ deal with cyberspace. Identifying authori- rorist’s command-and-control network of choice, FIN. (quoting General Mark Milley at the 21 June 2018 ties and tools that can be leveraged against TIMES, Nov. 3, 2014, https://www.ft.com/content/ Capitol Hill National Security Forum). c89b6c58-6342-11e4-8a63-00144feabdc0. the myriad of emerging threats will remain 10. John Warrick, The ‘app of choice’ for jihad- a fluid challenge. Our foundational law of ists: ISIS seizes on Internet tool to promote terror, war principles remain the bedrock and start WASH. POST, Dec. 23, 2016, https://www.wash- point for analysis. ingtonpost.com/world/national-security/ the-app-of-choice-for-jihadists-isis-seizes-on- This short practice note is, at best, a internet-tool-to-promote-terror/2016/12/23/ rough roadmap in the next step of any anal- a8c348c0-c861-11e6-85b5-76616a33048d_story. ysis for judge advocates practicing at the html?noredirect=on&utm_term=.12848116ce4c. tactical level. Judge advocates must under- 11. Section 954 of FY 2012 National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. stand the key definitions outlined here and 112-81, § 954 (2011). the basic interplay between the capabilities 12. This definition is notable because it makes clear the and attendant authorities (e.g., SIGINT ver- fact that cyberspace is more than just the internet. For sus EW). With that understanding, judge example, a smartphone’s 4G connection allows it to advocates can begin to more effectively connect to the internet, the 4G connection itself is not an internet connection. Similarly, a wireless router’s spot issues, address risk for commanders, signal may allow devices to connect to the internet, but and contribute to a broader understanding the WiFi signal itself is not “the internet.” This is an of the capabilities and rules inherent in the important distinction to understand since a cyber tool or effect may be delivered via the internet or delivered changing nature of warfare. via a WiFi connection and different authorities may Future iterations of this discus- apply to each. sion—which must occur and need to be 13. JOINT CHIEFS OF STAFF, JOINT PUB. 3-12, CYBERSPACE captured and shared—will rely heavily OPERATIONS ch. 2, para. 2 (Jun. 8 2018). on practitioners’ experiences. Addressing

November/December 2018 • Army Lawyer 45 General John J. Pershing was commander of the American Expeditionary Forces on the Western Front in World War I. (Credit: Regimental Historian & Archivist) No. 2 General Pershing and his JAG The Friendship that Helped Win WWI

By Major Robert W. Runyans

You will assume without a moment’s hesitation that I have both your professional and personal interests at heart in everything that I suggest. Our uninterrupted friendship has extended over too many years to permit me any other view.1 – Major General Enoch H. Crowder.

Professionally [Crowder’s] exceptional record speaks for itself more eloquently than anything I could say. I had a high regard for him, both as a man and an officer.2 – General of the Armies John J. Pershing

8 I. Introduction Missourian Enoch H. Crowder. Serving association between officers that decisively Thirty-five miles separate the north- as the Judge Advocate General (tJAG)9 and contributed to victory in World War I, western Missouri towns of Edinburg and Provost Marshal General throughout the and concluded as the two aging lawyers14 Laclede.3 Although never particularly pop- conflict,10 MG Crowder’s duties as a “swivel attempted to steward the Judge Advocate ulous, and located over 4,500 miles from chair”11 general included drafting and General’s Department.15 In recognition of the Western Front in France,4 this small implementing the Selective Service Act,12 the 100th anniversary of the Armistice, it geographic area retains distinction for the which provided seventy-two percent of the is especially appropriate now to celebrate 1859 and 1860 birthplaces of Major General AEF’s manpower.13 To succinctly state each and study this relationship. As illuminated (MG) Enoch H. Crowder and General of man’s signature contribution to victory in by their correspondence and actions, it re- the Armies (GEN) John J. Pershing.5 World War I: one led the army that the mains an ideal example of a judge advocate Pershing, the more heralded of the two other raised. supporting an operational commander and men, needs little introduction and features Considering the symbiotic relationship a sterling illustration of brotherhood in the prominently in any study of U.S. involve- between these major achievements, it is profession of arms. ment in World War I. His command of the fitting that these officers also enjoyed a long American Expeditionary Forces (AEF)— personal relationship that preceded and II. Origins then, the largest American command in followed their wartime association. Marked Relationships are built, in part, from history6—fought alongside British and by a voluminous exchange of letters, their mutual interests and common experi- French forces to achieve the final defeat of personal relationship began as a friend- ences. Against these criteria, even the most imperial Germany.7 Of lesser acclaim, but ship between Missourians with similar superficial examination of Pershing and well-known to judge advocates, is fellow biographies, matured into a professional Crowder’s biographies reveals that they

November/December 2018 • Army Lawyer 47 had both. As native Missourians born at the other to “write to me oftener”39 or the commander was directly tied to Crowder’s the advent of the Civil War,16 each served transatlantic lament of “I wish you and I success as Provost Marshall General. as a secondary school instructor before could have a talk,”40 provides additional To fully appreciate this new profes- winning acceptance to, and attending, the evidence of this bond’s weight. Reflecting sional nexus between the two friends, it is U.S. Military Academy.17 There, although the true importance of Missouri in their important to consider the strategic situation their attendance did not overlap, each friendship, Pershing likely captured it best in 1917. With an ill-equipped and inex- performed fairly well academically,18 and in a curious letter of recommendation to perienced force formed from a total U.S. commissioned into the cavalry.19 Following Crowder concerning another officer who Army of less than 120,000 active Soldiers,55 commissioning, both men would serve on was “possibly just a little bit different from Pershing was surrounded by hardened the closing American frontier,20 participate other people,”41 but still “a Missourian.”42 allies accustomed to casualties in excess of in final actions against the Apache and Most important, considering their 300,000 in single operations like Verdun Sioux,21 and become professors of military later wartime roles, their Missouri bond in 1916.56 With such carnage being routine science at midwestern universities.22 Their also contained a temporal component in since 1914, the pressure for Pershing to careers would also take them abroad, with addition to mere geographic coincidence. contribute quickly to the Allied effort by service in Cuba,23 the Philippines,24 and as In one letter to Crowder, Pershing de- subordinating his smaller Army to the com- observers in the Russo-Japanese War.25 scribed tJAG as a “red-blooded American mand of British and French officers was Each would also see Europe during the pre- from Northwestern Missouri,”43 who—like both heavy and understandable.57 Resisting war era, as both men toured that continent him—was “born amid the active scenes of this pressure, Pershing refused to commit separately for professional purposes.26 As conflict.”44 Given each man’s families’ expe- to such an arrangement and stuck firm to noted, Pershing—in addition to Crowder27— riences during the Civil War,45 these “active the idea that he would command American also found time to earn a law degree.28 scenes of conflict”46 may have animated forces, in an American sector, while con- Of all these similar experiences, two the pair further, as both men cited certain ducting American offenses.58 This position stand out as being particularly important in failures of the federal government in the rankled the British and French, and resulted their friendship. First, and most interesting Civil War as reasons for their joint support in diplomatic pressure on President Wilson to judge advocates, was their mutual inter- of universal conscription in World War to intervene.59 Thus, Pershing’s position est in the legal profession that dominated I.47 Writing on the topic, Crowder proba- could only hold if he received the necessary most of their initial, surviving correspon- bly spoke for Pershing when he stated that manpower. dence.29 From 1910 to 1917, almost every “[t]he relics of the past and our childhood Crowder understood Pershing’s pre- letter discussed an array of legal topics, recollections themselves often exercise a dicament. While tJAG certainly wanted to including judge advocate assignments,30 directing force in the shaping of our points succeed as a matter of professional duty, he proposed changes to the Articles of War,31 of view and our activities.”48 Ultimately, the also privately assured his friend that “you prison reform,32 and academic thoughts on U.S. experience with universal conscription need never contemplate a failure”60 and that the charge of desertion.33 With letters sent would unite them as strongly professionally “I am completely absorbed in the work of to and from such exotic locations as the as their Missouri roots and shared interest the draft . . . so as to give you assurances Philippines’ Moro Province34 and the mys- in the law did personally. that the flow of man-power to the canton- terious location of “Headquarters Punitive ments and thence to the battle-field shall 61 Expedition, U.S. Army, Somewhere in III. The War Years not be interrupted.” These assurances Mexico,”35 the very existence of this corre- In addition to uniting Crowder and probably helped to assuage Pershing’s spondence underscores both their mutual Pershing around a common idea, univer- private concern that “Americans—have interest in the law and the value each placed sal conscription served as the catalyst that got the burden of this thing on our shoul- on his relationship with the other. layered a professional association on top of ders”62 and his urging to Crowder that “the Second, if legal matters formed the their personal friendship. With war loom- armies we shall need should be called out quantitative bulk of their early correspon- ing, President Wilson tasked Crowder to without delay.”63 In his private response dence, it was their shared Missouri heritage draft the Selective Service Act (the “Act”)49 to Pershing’s concerns, Crowder made that likely played a larger qualitative role on February 4, 1917.50 Efficiently com- perfectly clear his position, stating that in their friendship. As geographic bonds pleting a draft for Congress on 5 February Pershing should “consider me as working in remain a common fixture of friendships 1917,51 tJAG was then appropriately elbow-touch with you and in subordinate between service members, Pershing and dual-hatted as Provost Marshall General— relations to your great work, with no desire Crowder’s frequent references to home- with the charge to administer the Act’s on my part quite so strong as to see you town July 4th celebrations,36 remarks on apparatus—on 28 May 1917,52 ten days after succeed in every way.”64 mutual friends,37 and plans for joint visits38 the Act’s passage53 and in the same month Beyond these words of encourage- probably mirror correspondence still that Pershing was selected as the American ment, Crowder also got results. During his common among all ranks today, albeit via Expeditionary Forces’s (AEF) commander administration of the Act, Crowder pro- different media. Further, the fact that such and sailed for France.54 Given these new vided 2,758,54265 of the “doughboys”66 that references often accompanied requests for roles, Pershing’s success as a combat composed a U.S. force of approximately

48 Army Lawyer • November/December 2018 3.5 million.67 When considering universal conscription began with the Act’s passage in May 1917,68 and that the armistice was signed on 11 November 1918,69 the stagger- ing scale of this accomplishment cannot be overstated. With these results, Pershing be- came secure in his separate station and led the AEF in operations such as the Meuse- Argonne offensive, where the weight of American participation finally overcame the will of Germany to continue their effort.70 Reflecting pride in their joint contributions to this result, Crowder wrote candidly in their personal correspondence that “as I am raising the Army and you are fighting it, none of the other States of the Union are doing much.”71 Needless to say, such a frank assessment would have been inappropriate for official communications. Befitting their friendship, Pershing also recognized the importance of Crowder’s duties and took care to encourage him. Understanding that Crowder was self-con- scious about his stateside status,72 Pershing wrote that “I need not say that to have you here would give me the greatest plea- sure . . . I honesty and candidly think that your work there, and your presence there close to the Secretary, are far more valu- able.”73 Discouraging Crowder from further efforts at a combat role might have also “...and the number is 246...” Photograph shows the drawing of the first number for the Second Draft of been an additional act of mercy, as Pershing men to serve in the U.S. Army during World War I. Shown in the image is Secretary of War Newton D. Baker picking the first capsule out of the bowl. Left-to-right: Captain Charles R. Morris, Major General Enoch had no issue with dismissing officers he Crowder, and Secretary of War Baker. (Photo Credit: USAMHI) found ill-suited to combat duty despite long-associations.74 conditions on this side,”79 Crowder carried collided in a very public debate over the Further, Pershing was also cor- this further and advocated for Pershing at fairness of the military justice system, the rect about the importance of Crowder’s the highest levels of the War Department.80 system’s balance of discipline and justice, proximity to the Secretary of War. As a In his varied roles, Crowder thus supplied and the role of commanders in the pro- member of the “War Council,”75 Crowder Pershing’s army as a matter of professional cess.82 Crowder was ultimately vindicated became privy to official AEF communica- duty, provided protection to his friend’s in the public spectacle, but he carried a bit- tions sent to other departments.76 From this political flank in D.C., and enabled an outlet terness about the affair and towards those perch, Crowder offered Pershing candid for candid conversations during a fraught who he felt were less than absolutely loyal.83 assessments and provided insight into the time. Few relationships have accomplished Although Pershing did not side against bureaucracy’s inefficiency. For example, so much during war. Crowder, and provided support in his cor- noting that not all of Pershing’s requests for respondence,84 Crowder felt that Pershing material had been met, Crowder convinced IV. Later Years was insufficiently supportive given his rank the War Department to make a special It is worth noting that Crowder and and fame.85 survey of AEF’s communications and Pershing’s relationship endured a rocky Viewed another way, whatever hard identify the deficiencies.77 As he explained period following the war. Given his feelings Crowder harbored about the to Pershing, “I pointed out that it was not dual-hatted responsibilities during World experience, he overcame them with regard fair to charge you with a hundred percent War I, significant portions of Crowder’s to Pershing. Following the war, the two of performance unless you were given a legal duties fell to a subordinate, Brigadier continued their frequent correspondence, hundred per cent of compliance.”78 Being General Samuel Ansell.81 For various rea- shifting from discussions about their very responsive to Pershing’s invitation “to sons, rooted in both professional judgments wartime duties and resuming their old write to you as illuminatingly as I can about and personal animosity, the two men conversations about Missouri86 and the

November/December 2018 • Army Lawyer 49 thoughts, Crowder also provided what must rank among the ultimate “third-file” com- ments made by a tJAG to an Army Chief of Staff. Recalling that Bethel “years-ago”95 failed to complete a revision of Winthrop’s Unabridged Military Law96 while assigned to West Point, Crowder conceded that the “Department will be safe and thoroughly efficient”97 under Bethel’s guidance, while offering faint praise of his “high aver- age . . . performance.”98 While Pershing would push back on Crowder’s characteriza- tion of Bethel,99 and initially offered his own criticisms of Kreger,100 there is no record that he challenged Crowder’s exceptionally harsh criticism of Hull: “Hull never decided a legal question except by throwing dice. He is not a lawyer and never will be one . . . ”101 Ultimately, MG Bethel became tJAG during Pershing’s tenure as Chief of Staff and served from 1923–1924.102 MG Kreger also achieved this position, after later win- ning Pershing’s confidence and respect,103 and served from 1928–1931.104 Despite Crowder’s criticism, MG Hull occupied the office between the favored successors.105

V. Conclusion Although ultimately anticlimactic, this discussion of future tJAGs is important for several reasons beyond its showcase of extreme candor and hints of palace intrigue. As their correspondence soon shifted to more nostalgic topics and inevitable concerns for poor health,106 this marked one of the last, truly substantive discussions between the two leaders. Reflective of the Franklin Bell (1856–1919), left, a U.S. Army officer, shakes hands with Brigadier General Enoch Crowder extraordinary trust and rapport between (1859–1932), at Camp Upton, a U.S. Army installation in Yaphank, New York, during World War I (Credit: Flickr Commons project, 2015). the two men, it underscores how remark- able it was that their relationship developed legal profession—especially judge advocate With Crowder’s retirement looming, these qualities primarily through written assignments.87 In addition to lower-level and with the wounds of the “Ansell-affair” communication.107 Although few judge assignments, their correspondence soon fo- still fresh, tJAG succession was a natural advocates can expect to share so many com- cused on the appointment of future tJAGs. topic of conversation. mon experiences and mutual interests with This new focus was due, in large part, With three candidates identified, their commander-clients, the relationship to the pair’s final accolades at the end of Pershing—as Chief of Staff—repeatedly between Pershing and Crowder remains a their long careers. Pershing, returning sought Crowder’s advice on the selec- reminder to all professionals that diligent from France a hero, was appointed to the tion of judge advocates Walter Bethel, effort put forward to establish rapport and congressionally created rank of “General of Edward Kreger, or John Hull.92 Pershing trust can pay great dividends.108 the Armies” in 191988 and served as Chief stated his preference for Bethel, who Second, this final discussion is also of Staff until 1924.89 Crowder was also previously served as the AEF’s judge reflective of their shared concern for the reappointed to a third four-year term as the advocate.93 Crowder expressed a contrary institutions that each served for over Judge Advocate General on 18 February preference for Edward Kreger, calling him thirty-five years.109 Capturing this concept, 1919,90 but again was dual-hatted for much “unquestionably the best lawyer in the Crowder wrote to Pershing that “[t]he time of this term as an envoy to Cuba.91 Department.”94 Further offering his candid is growing all too short in which we can

50 Army Lawyer • November/December 2018 be fair to subordinates who have served to Pershing. From the tinder of their II 1192–1198 (1995) (indicating a U.S. Army strength of over 8.1 million on Mar. 31, 1945 and exclusive of faithfully and honestly, and with great common experiences, both made efforts to approximately 4 million additional service members in efficiency.”110 Although referring directly communicate with each other over the de- the U.S. Navy and U.S. Marine Corps). to Kreger’s candidacy, Crowder’s statement cades and across vast distances. Considering 7. MITCHELL YOCKELSON, FORTY-SEVEN DAYS 320 (2016). evoked their larger professional obligation their joint roles in creating their relation- YOCKELSON discusses the U.S. Army’s performance in to steward the profession and develop a ship, and considering the extraordinary the Meuse-Argonne offensive of 1918, and argues that it was the “deciding factor” in the war. Id. See also 111 future Army. Speaking volumes about benefits for the nation that it provided, DOUGHTY ET AL., supra note 5, at 624–33 (discussing each man as a professional and leader, Pershing and Crowder’s association should U.S. participation in the reduction of the St. Mihiel their mutual concern for institutions is an inspire not only legal professionals, but all Salient and the Meuse-Argonne offensive in 1918). Id. excellent reminder to current members of Soldiers engaged in the defense of this na- 8. See Fred L. Borch, The Greatest Judge Advocate in History? The Extraordinary Life of Major General Enoch the profession of arms about obligations to tion. The U.S. Army values the importance H. Crowder (1859–1932), ARMY LAW., May 2012. See also an enduring organization. of teamwork at every level to accomplish JOSHUA E. KASTENBURG, TO RAISE AND DISCIPLINE AN ARMY Beyond stewardship, Crowder’s its mission. Here was an example of such 7–12 (2017). (discussing the lack of study of judge advocates during World War I and commenting that support to Pershing is also particularly teamwork and comradeship under the stress Pershing is the only U.S. leader from that conflict to instructive for today’s judge advocates. To of world war. It succeeded brilliantly. TAL receive significant study). quote a bit of doctrine: 9. Id. Borch, supra note 9, at 3. The author notes that MAJ Runyans is a Litigation Attorney for the the office now referred to as “The Judge Advocate General” was referred to as “the Judge Advocate No matter the level of command to Environmental Law Division, U.S. Army Legal General” until 1924. Id. which assigned, judge advocates have Services Agency, Fort Belvoir, Virginia. 10. WAR DEP’T, BIOGRAPHICAL DATA ON MAJOR GENERAL several roles. They are counselors, ENOCH H. CROWDER (1932) (on file with the Library advocates, and trusted advisors to of Congress, Manuscript Division, John J. Pershing commanders and Soldiers. They are Papers, General Correspondence, Box 56) [hereinafter WAR DEP’T]; U.S. MILITARY ACADEMY, THE REGISTER OF 1.Notes Letter from Enoch H. Crowder to John J. Pershing Soldiers, leaders, and subject mat- GRADUATES AND FORMER CADETS 2879 (2010) [here- (Aug. 18, 1917) (on file with the Library of Congress, inafter REGISTER]. See LOCKMILLER, supra note 23, at ter experts in all of the core legal Manuscript Division, John J. Pershing Papers, General 133-216; Borch, supra note 9, at 4. disciplines. In every aspect of their Correspondence, Box 56 [hereinafter Pershing professional lives, judge advocates Papers]). The correspondence between Pershing and 11. LOCKMILLER, supra note 3, at 148 (stating that Crowder dates from April 17, 1910 to February 10, “Crowder was preeminently a swivel chair general serve the Army and the Nation 1932. and for him the law was truly a jealous mistress.”). Id. with their expertise, dedication, and “Swivel chair general” was a derogatory reference to 2. DAVID A. LOCKMILLER, ENOCH H. CROWDER: SOLDIER, 112 officers serving in Washington D.C. during World selflessness. LAWYER, AND STATESMAN 261 (1955). In the only book- War I. Id. at 192. Crowder’s status was part of the length biography of Crowder, LOCKMILLER quotes a reason that he turned down the possibility of pro- letter received from Pershing. The letter is dated May motion to Lieutenant General. See LOCKMILLER, supra, In each of these roles, it is undebatable 28, 1940. Id. that Crowder performed remarkably well. at 191–92. Of note, Kastenberg claims that Crowder 3. Distance from Edinburg, Mo. to Laclede, Mo., was also offered a fourth star after the Armistice. Although his greatest contribution occurred GOOGLE MAPS, http://maps.google.com (follow the KASTENBERG, supra note 89, at 352. “Get Directions” hyperlink; then search for “Edinburg, in non-legal role, his expert legal mind 12. Selective Service Act, ch. 15, 40 Stat. 76 (1917) Mo.” and “Laclede, Mo.”; then right click on the map drafted the Act that enabled Pershing’s (codified as amended at 50 U.S.C. §201). location for “Edinburg” and select “Measure Distance”; success as a combat leader. Possessing a then click on the map location for “Laclede”). 13. DAVID STEVENSON, WITH OUR BACKS TO THE WALL 113 146 (2011). tireless work-ethic, Crowder’s dedication 4. Distance from Edinburg, Mo. to Verdun, France, to implementing the Act then ensured that GOOGLE MAPS, http://maps.google.com (follow the 14. See, e.g., SMITH, supra note 56, at 44 (noting that Pershing received the necessary manpower. “Get Directions” hyperlink; then search for “Edinburg, Pershing received a law degree while serving as a pro- Mo” and “Verdun, France”; then right click on the map fessor of military science at the Univ. of Nebraska). As an advocate for his friend in France, location for “Edinburg” and select “Measure Distance”; 15. KASTENBERG, supra note 89, at 5. KASTENBERG notes Crowder was also invaluable in his state- then click on the map location for “Verdun”). Verdun that this term referred to the staff department super- side role as a conduit for information and is used as an example of the location of the Western vising all judge advocates. Front in World War I. See, e.g., ROBERT A. DOUGHTY counsel. Most of all, as a trusted advisor, his ET AL., WARFARE IN THE WESTERN WORLD: MILITARY 16. See, e.g., LOCKMILLER, supra note 23, at 17; SMITH, frequent communications marked by sage OPERATIONS SINCE 1871 523–633 (1996). supra note 6, at 4. advice and candor stands unique in history 5. See LOCKMILLER, supra note 32, at 13–21 (discussing 17. Id. See, e.g., LOCKMILLER, supra note 3, at 22; SMITH, with respect to the practice of law. He Crowder’s childhood); GENE SMITH, UNTIL THE LAST supra note 56, at 12-14. Pershing also indicated that he previously turned down an appointment to the rightfully deserves to be remembered as the TRUMPET SOUNDS: THE LIFE OF GENERAL OF THE ARMIES JOHN J. PERSHING 3–15 (1998) (discussing the early life U.S. Naval Academy. JOHN J. PERSHING, MY LIFE BEFORE 114 “Greatest Judge Advocate in History,” and of General Pershing). THE WORLD WAR, 1860-1917: A MEMOIR 36 (John T. Greenwood ed., 2013) [hereinafter BEFORE THE he remains the ultimate example of expert 6. Compare JAMES M. MCPHERSON, BATTLE CRY OF WORLD WAR]. This publication is an edited compi- support, across varied roles, to an opera- FREEDOM 306–07 (1988) (citing other scholarship and lation of Pershing’s draft, unpublished memoir. The tional commander. concluding that approximately 2.1 million Soldiers editor notes that the original papers are located in served in the Union Army), with ENOCH H. CROWDER, the Manuscript Division of the Library of Congress. Naturally, Crowder should not receive THE SPIRIT OF SELECTIVE SERVICE 363 (1920) (noting BEFORE THE WORLD WAR, supra, at Editor’s Note. all the credit. As shown in their corre- that approximately 3.5 million men were serving in spondence, credit for the critical rapport the U.S. military on Nov. 11, 1918). See also I.C.B. 18. U.S. MILITARY ACADEMY, OFFICIAL REGISTER OF THE DEAR ET AL., THE OXFORD COMPANION TO WORLD WAR OFFICERS AND CADETS OF THE UNITED STATES MILITARY developed between these men also belongs

November/December 2018 • Army Lawyer 51 ACADEMY 10 (1881), available at http://digital-li- (Jun. 8, 1911) (Pershing Papers). Congratulating Prize. John J. Pershing, The 1932 Pulitzer Prize Winner in brary.usma.edu/cdm/compound object/collection/ Crowder on his selection as the Judge Advocate History, THE PULITZER PRIZES, http://www.pulitzer.org/ p16919coll3/id/2081/show/2063/rec/9 [hereinafter General (tJAG), Pershing stated – without context – winners/ john-j-pershing (last visited Jun. 18, 2018). USMA 1881]; U.S. MILITARY ACADEMY, OFFICIAL that “[t]his department has been allowed to lag behind. Crowder wrote extensively on the failures of con- REGISTER OF THE OFFICERS AND CADETS OF THE UNITED It has not kept up with the general progress that has scription and volunteering in THE SPIRIT OF SELECTIVE STATES MILITARY ACADEMY 10 (1886), available at http:// been made in other departments.” Id. SERVICE. See CROWDER, supra note 67, at 76–91. digital-library.usma.edu/cdm/compoundobject/collec- 31. See, e.g., Letter from Enoch H. Crowder to John J. 48. CROWDER, supra note 7, at 94 (1920); LOCKMILLER, tion/p16919coll3/id/2300/rec/69 [hereinafter USMA Pershing (Sep. 19, 1916) (Pershing Papers). supra note 3, at 19. LOCKMILLER dismisses the notion 1886]. The 1881 publication notes that Crowder that Crowder was influenced by his childhood experi- graduated thirty-first out of class of fifty-four cadets. 32. See, e.g., Letter from John J. Pershing to Enoch H. Crowder (Mar. 30, 1915) (Pershing Papers). ences during the Civil War and states that “[t]here is In contrast to his high marks in law, Crowder received little to substantiate this thesis, and Enoch Crowder, the fifth most demerits in his graduating class. USMA 33. See, e.g., Letter from Enoch H. Crowder to John J. who was six years old when the war ended, never ECORDS supra R 1881, , at 10. The 1886 edition notes that Pershing (Apr. 5, 1915) (Pershing Papers). claimed to have been thus influenced.” Id. Although it Pershing graduated thirtieth in a class of seventy-seven 34. See, e.g., Letter from John J. Pershing to Enoch H. is impossible to know Crowder’s personal motivations, and ranked thirteenth in discipline. USMA RECORDS he specifically discussed failures of federal government supra Crowder (Aug. 19, 1910) (Pershing Papers). 1886, , at 10. Pershing also served as First Captain policy and its resulting violence during the Civil War of the U.S. Corps of Cadets. In response to this 35. Letter from John J. Pershing to Enoch H. Crowder as justification for World War I’s system of universal accolade, Pershing is quoted as saying that “[n]o other (Jun. 15, 1916) (Pershing Papers). This letter is further conscription in THE SPIRIT OF SELECTIVE SERVICE. See military promotion has ever come to me quite equal revealing of Pershing’s rapport with Crowder. In generally CROWDER, supra note 7, at 76–91. to that.” SMITH, supra note 6, at 23. See also David R. addition to discussing the legal work of a mutual th Hughes, The Class of 1881, It’s Great 75 Year, ASSEMBLY, acquaintance, Pershing reveals his private frustration 49. Selective Service Act, ch. 15, 40 Stat. 76 (1917) July 1936, at 12–16, available at http://digital-library. with the pursuit of Pancho Villa and states that “[t]he (codified as amended at 50 U.S.C. §201). usma.edu/cdm/compoundobject/collection/ assembly/ whole situation is pathetic.” Id. 50. LOCKMILLER, supra note 23, at 152–55. id/7594/rec/26. This article, published by the U.S. Military Academy’s alumni organization, states that 36. Letter from Enoch H. Crowder to John J. Pershing 51. Id. (Jul. 22, 1918) (Pershing Papers). “the two most widely known members of the class 52. WAR DEP’T, supra note 101, at 2. were Colonel Andrew S. Rowan and Major General 37. Letter from John J. Pershing to Enoch H. Crowder Enoch Crowder.” Id. at 16. As a matter of curiosity, the (Dec. 17, 1921) (Pershing Papers). 53. Selective Service Act, ch. 15, 40 Stat. 76 (1917) article further notes that Rowan “became a legend for (codified as amended at 50 U.S.C. §201). 38. Letter from John J. Pershing to Enoch H. Crowder his carrying of the ‘Message to Garcia.’” Id. OCKMILLER supra ERSHING supra (Oct. 15, 1918) (Pershing Papers). 54. L , note 23, at 163; P , 19. See, e.g., LOCKMILLER, supra note 23, at 33; REGISTER, note 48, at 45. 39. Letter from John J. Pershing to Enoch H. Crowder supra note 101, at 3179. TEVENSON supra (Jun. 28, 1918) (Pershing Papers). 55. S , note 134, at 247. Additionally, 20. See, e.g., LOCKMILLER, supra note 23, at 34–65; SMITH, there were 164,000 National Guard troops available in 40. Letter from Enoch H. Crowder to John J. Pershing supra note 56, at 27-38. April 1917. Id. (Jul. 22, 1918) (Pershing Papers). See also Letter from 56. DOUGHTY ET AL., supra note 54, at 573. Reflecting 21. See, e.g., LOCKMILLER, supra note 23, at 93; SMITH, Enoch H. Crowder to John J. Pershing (Feb. 10, 1919) supra note 56, at 32, 37–38. (Pershing Papers) (stating that “[t]here is a great deal the carnage of that battle and the general condition you and I would talk about if we could have a meeting of the war’s combat, the German’s referred to it as a 22. See, e.g., LOCKMILLER, supra note 23, at 38–49; SMITH, “sausage grinder.” Id. supra note 56, at 39–45. but which, if I undertook to write about it would not look well on paper.”). Id. 57. SMITH, supra note 6, at 157. See also STEVENSON, supra 23. See, e.g., LOCKMILLER, supra note 23, at 109–20; 41. Letter from John J. Pershing to Enoch H. Crowder note 14, at 247. The issue was “amalgamation” of U.S. SMITH, supra note 56, at 51–55. Id (Oct. 24, 1919) (Pershing Papers). forces into British and French commands. . 24. See, e.g., LOCKMILLER, supra note 23, at 66–85; SMITH, 58. PERSHING, supra note 48, at 42–43. Pershing noted supra note 26, 95–118. 42. Id. See also LOCKMILLER, supra note 23, at 21. Lockmiller notes that “a sure password to his the instructions he received from the Secretary of 25. See, e.g., LOCKMILLER, supra note 23, 98–108; SMITH, [Crowder’s] inner office was: ‘I’m a friend from War on May 26, 1917: “you are directed to cooperate supra note 56, at 85–91. Grundy County, Missouri.’” Id. with the forces of the other countries employed…but in so doing the underlying idea must be kept in view 26. See, e.g., LOCKMILLER, supra note 23, at 130–31; 43. Letter from John J. Pershing to Enoch H. Crowder that the forces of the United States are a separate and SMITH, supra note 56, at 101–04. (Jun. 28, 1918) (Pershing Papers). distinct component of the combined forces, the iden- 27. See, e.g., LOCKMILLER, supra note 23, at 44. 44. Id. tity of which must be preserved.” Id. at 42. See RUSSELL F. WEIGLEY, THE AMERICAN WAY OF WAR 202 (1973); 28. See, e.g., SMITH, supra note 53, at 44. 45. Among other observations, Pershing notes that his RUSSELL F. WEIGLEY, HISTORY OF THE UNITED STATES 29. See, e.g., Letter from Enoch H. Crowder to John “earliest recollection” was of an 1864 raid on Laclede ARMY 381–382 (1984) [hereinafter HISTORY] (stating J. Pershing (Apr. 17, 1910) (Pershing Papers). This that killed a man named David Crowder (unknown that “Pershing’s insistence that the American soldier letter is particularly interesting because it concerns relation). BEFORE THE WORLD WAR, supra note 187, at must fight in an American army is generally accounted the assignment of Captain Samuel Ansell to Pershing’s 16-17. Pershing’s father was also a target of that raid. one of his principle achievements.”). Id. at 382. command in the Philippines. In this letter, Crowder SMITH, supra note 56, at 5. Crowder’s father served in 59. See C.J. BERNARDO & EUGENE H. BACON, AMERICAN states that Ansell is “abreast” of “the best men in the Union Army and his namesake uncle was killed in MILITARY POLICY: ITS DEVELOPMENT SINCE 1775, 354 the service.” Id. Pershing concurred in Crowder’s action. LOCKMILLER, supra note 23, at 19–20. (1957); DOUGHTY ET AL., supra note 5, at 603. assessment, responding that “I consider him an 46. Letter from John J. Pershing to Enoch H. Crowder exceptional man.” Letter from John J. Pershing to (Jun. 28, 1918) (Pershing Papers). 60. Letter from John J. Pershing to Enoch H. Crowder Enoch H. Crowder (Aug. 19, 1910) (Pershing Papers). (Oct. 15, 1918) (Pershing Papers). A decade later, Crowder and Ansell would have a very 47. See CROWDER, supra note 67, at 76-91; JOHN. J. PERSHING, MY EXPERIENCES IN THE WORLD WAR 21–22 61. Letter from Enoch H. Crowder to John J. Pershing public dispute over military justice reform that would (Aug. 29, 1918) (Pershing Papers). involve the credibility of the Judge Advocate General’s (1920). Pershing relates that he convinced Texas Department. KASTENBERG, supra note 89, at 352–407. officials to support the idea of universal conscrip- 62. Letter from John J. Pershing to Enoch H. Crowder tion in 1917 and states that “[i]t was very important (Jun. 28, 1918) (Pershing Papers). 30. See, e.g., Letter from Enoch H. Crowder to John J. that a repetition of the experience in the Civil War Id Pershing (Sept. 11, 1916) (Pershing Papers). In this 14- should be avoided. Id. at 21. Pershing also goes on 63. . page letter, Crowder listed his thoughts on forty-two to praise Crowder’s work in preparing the Selective 64. Letter from Enoch H. Crowder to John J. Pershing candidates for appointment as judge advocates. See also Service Act and administering the draft. Id. at 27. Of (Jul. 22, 1918) (Pershing Papers). Letter from John J. Pershing to Enoch H. Crowder note, Pershing’s autobiography also won the Pulitzer 65. CROWDER, supra note 7, at 363.

52 Army Lawyer • November/December 2018 66. “Doughboys” was the general slang for infantry along a hillside next to his, Crowder is quoted as saying Papers) (stating that “if Hull is appointed Judge Soldiers in World War I. See e.g., WILLIS R. SKILLMAN, that “[w]e must locate another lot. I’ll be damned if I Advocate General, the army will have the poorest THE A.E.F., WHO THEY WERE, WHAT THEY DID, HOW have that old S-O-B- looking downing on me through- lawyer and the best politician.”). See also Letter from THEY DID IT 62 (1920). out eternity.” LOCKMILLER, supra note 3, at 260. Enoch H. Crowder to John J. Pershing (Dec. 28, 1926) (Pershing Papers) (stating that “[f]or some reason 67. Id. at 363. 81. LOCKMILLER, supra note 3, at 202. General Habbord took a fancy to Hull.”). Id. 68. See LOCKMILLER, supra note 3, at 166-68. 82. See LOCKMILLER, supra note 3, at 200–16; 93. See, e.g., Letter from John J. Pershing to Enoch H. Registration began on Jun. 5, 1917 and the first lottery KASTENBERG, supra note 9, at 352–407; Borch, supra occurred on Jul. 20, 1917. note 9, at 4. There is also speculation that Ansell’s Crowder (Sep. 3, 1921) (Pershing Papers). Pershing motives were not entirely pure, as Ansell believed states that “my own selection, if it were left to me, 69. HISTORY, supra note 59, at 395. Id that Crowder would not return to the Judge Advocate would be General Bethel.” . 70. YOCKELSON, supra note 8, at 320; HISTORY, supra note General’s office after being appointed the Provost 94. Letter from Enoch H. Crowder to John J. Pershing 59, at 393. In HISTORY, the author states that “[w]hen Marshall General. LOCKMILLER, supra note 3, at 202-03. (Jan. 18, 1923) (Pershing Papers). the Americans continued to arrive in mounting See, e.g numbers and continued to go into battle…German 83. ., Letter from Enoch H. Crowder to John 95. Letter from Enoch H. Crowder to John J. Pershing calculations were so upset that the high command J. Pershing (Jan. 18, 1923) (Pershing Papers). In this (Jan. 18, 1923) (Pershing Papers). went into a funk from which it never emerged, except letter, Crowder refers to the Ansell affair and points 96. Crowder most likely refers to the 1886 publication. to an isolated incident when Bethel failed to confront to importune the civil government to make peace.” Id. See WILLIAM W. WINTHROP, MILITARY LAW (1886). an unnamed critic of Crowder. Crowder stated 71. Letter from Enoch H. Crowder to John J. Pershing dismissively that Bethel “did not regard it as a matter 97. Letter from Enoch H. Crowder to John J. Pershing (Aug. 29, 1918) (Pershing Papers). of sufficient importance to give the offender a proper (Jan. 18, 1923) (Pershing Papers). 72. Crowder sought a combat command and was dis- lesson in loyalty and decency.” Id. 98. Id. appointed that he was not given a division in France. 84. Letter from John J. Pershing, U.S. Army, to Enoch 99. Letter from John J. Pershing to Enoch H. Crowder See OCKMILLER supra L , note 3, at 190. Crowder ex- H. Crowder, (Apr. 19, 1919) (Pershing Papers). (Jan. 13, 1922) (Pershing Papers). Pershing states that pressed this displeasure in multiple letters to Pershing, Pershing states that “[t]he Ansell affair and consequent “I regret that Bethel’s claim could not have received a stating that “[r]emember Pershing, it is a hell of a thing investigation shows complete failure to appreciate war little bit stronger backing from you.” Id. to go through a war in which our Country is engaged, condition by those who are airing their views. Perhaps especially this World War, without getting shot at.” when some of the fighting men get home they shall be 100. Letter from John J. Pershing to Enoch H. Letter from Enoch H. Crowder to John J. Pershing able to help you out.” Id. See LOCKMILLER, supra note 3, Crowder (Sept. 3. 1921) (Pershing Papers). (Feb. 25, 1918) (Pershing Papers). Among other com- at 215. 101. Letter from Enoch H. Crowder to John J. ments, Crowder also stated that “I hate to think that it ASTENBERG supra Pershing (Dec. 28, 1926) (Pershing Papers). can be said that I have been efficient in the means of 85. K , note 9, at 402. selecting other men to be shot at and equally efficient 86. See, e.g., Letter from John J. Pershing to Enoch H. 102. The Judge Advocate General’s Corps, Regimental in not finding duty where I was not likely to be shot Crowder (Dec. 17, 1921) (Pershing Papers). Pershing History, https://www.jagcnet2.army.mil/sites/history. at myself.” Letter from Enoch H. Crowder to John J. and Crowder visited the Univ. of Missouri together as nsf/ homeContent.xsp?open&documentId=2CA917 Pershing, (Jan. 19, 1918) (Pershing Papers). honored guests at commencement on Apr. 21, 1920. 451330519E852580200070FA92 (last visited Jun. 18, Pershing Arrives at 1:40 P.M. Tomorrow, City to Greet 2018) [hereinafter Regimental History]. 73. Letter from John J. Pershing to Enoch H. Crowder A.E.F. Leader and Crowder HE VENING ISSOURIAN (Jun. 28, 1918) (Pershing Papers). , T E M , 103. Letter from John J. Pershing to Enoch H. April 20, 1920. Reporting on the joint visit, the local Crowder (Dec. 22, 1926) (Pershing Papers). 74. SMITH, supra note 6, at 162. newspaper referred to the pair as “Missouri’s two 104. Regimental History, supra note 1023. 75. Letter from Enoch H. Crowder to John J. Pershing foremost sons.” All Columbia Out to See Pershing and (Jan. 19, 1918) (Pershing Papers). Crowder describes E.H. Crowder, THE EVENING MISSOURIAN, Apr. 21, 1920. 105. Regimental History, supra note 1023. During the visit, the two lawyers were also awarded the creation of this Council during a late-night meet- 106. See, e.g., Telegram from John J. Pershing to Enoch honorary Doctorate of Laws degrees. Pershing Awarded ing with the Secretary of War. Id. H. Crowder (Feb. 10, 1932) (Pershing Papers). LL.D. By University, THE EVENING MISSOURIAN, Apr. 22, 76. Id. 1920. 107. Charles N. Pede, Communication is Key – Tips for the Judge Advocate, Staff Officer and Leader RMY AW 77. Letter from John J. Pershing to Enoch H. Crowder 87. Letter from John J. Pershing to Enoch H. Crowder , A L ., (Jan. 19, 1918) (Pershing Papers). Crowder states that (Sep. 3, 1921) (Pershing Papers). June 2016, at 4, 5. he argued over several meetings “to analyze all the 108. Id. correspondence with you since you first set foot on 88. REGISTER, supra note 101, at 3179; SMITH, supra note foreign soil and see how many unsatisfied requisitions 56, at 228. 109. REGISTER, supra note 101, at 2879, 3179. for men and material you had made.” Id. 89. REGISTER, supra note 101, at 3179; SMITH, supra note 110. Letter from Enoch H. Crowder to John J. 78. Letter from Enoch H. Crowder to John J. Pershing 56, at 253-56 Pershing (Sep. 28, 1926) (Pershing Papers). (Jan. 19, 1918) (Pershing Papers). 90. WAR DEP’T, supra note 101, at 2. 111. U.S. DEP’T OF ARMY, DOCTRINE PUB. 6-22, ARMY LEADERSHIP para. 35 (1 Aug. 2012); U.S. DEP’T OF ARMY, 79. Letter from John J. Pershing to Enoch H. Crowder 91. LOCKMILLER, supra note 23, at 219, 231. See also (Jul. 22, 1918) (Pershing Papers). Letter from Enoch H. Crowder to John J. Pershing DOCTRINE PUB. 1, THE ARMY para 2-8 (17 Sep. 2012). 80. See, e.g., id. Crowder recognized that he had a close (Feb. 18, 1920) (Pershing Papers). In a reversal of 112. U.S. DEP’T OF ARMY, FIELD MANUAL 1-04, LEGAL relationship with the Secretary of War. Letter from their wartime situations, Crowder writes from the SUPPORT TO THE OPERATIONAL ARMY para. 1-12 (18 Mar. Enoch H. Crowder to John J. Pershing (Jan. 19, 1918) U.S.S. Minnesota and expresses his appreciation for 2013). (Pershing Papers). In addition, Crowder also had a Pershing’s correspondence, noting that “I am necessar- 113. Crowder’s work ethic is frequent reference for his Id close relationship with many politicians, due to the ily out of touch with affairs at home.” . biographers. Even in his obituary, he was praised for role of tJAG during his service. KASTENBERG, supra 92. Based on Crowder and Pershing’s correspondence, his “capacity for incessant work.” Major General F.J. note 9, at 8–9. This included Pershing’s father-in-law, Kreger and Bethel were the clear frontrunners. See, Kernan, Enoch H. Crowder, SIXTY-THIRD ANNUAL REPORT Senator Francis E. Warren. KASTENBERG, supra note e.g., Letter from John J. Pershing to Enoch H. Crowder OF THE ASSOCIATION OF GRADUATES OF THE U.S. MILITARY 9, at 396. See Letter from Enoch H. Crowder to John (Sep. 3, 1921) (Pershing Papers). Hull’s candidacy ACADEMY 122 (1932) available at http://digital-library. J. Pershing (Feb. 10, 1919) (Pershing Papers). In one appears to have been the result of Hull maneuvering usma.edu/cdm/compoundobject/collection/aogre- instance, this relationship served to notify Pershing of himself into consideration through his relationship union/id/19934/show/19684/ rec/69. General Peyton March’s attempt to curtail Pershing’s See with Pershing’s assistant, General Habbord. Letter 114. Borch, supra note 98, at 1. command authority. KASTENBERG, supra note 9, at 396. from Enoch H. Crowder to John J. Pershing (Jul. Of note, Crowder had an especially contentious rela- 18, 1921) (Pershing Papers); Letter from Enoch H. tionship with March. LOCKMILLER, supra note 3, at 260. Crowder to John J. Pershing (Nov. 24, 1922) (Pershing Informed that March’s gravesite in Arlington would be

November/December 2018 • Army Lawyer 53 A U.S. soldier assigned to the 1st Battalion, 503rd Infantry Regiment, 173rd Airborne Brigade Combat team exits a Russian Air Force helicopter during a multinational ground force training exercise (Credit: SPC Shardesia Washington). No. 3 Ops and Interoperability Back-to-back symposiums examined emerging legal issues in LOAC

By Strategic Initiatives Staff

rom 28–30 May 2018, LTG Charles attendees included military legal experts (Germany, Austria-Hungry, Bulgaria, and FN. Pede, The Judge Advocate General from Argentina, Australia, Brunei, Brazil, the Ottoman Empire) fought against the (TJAG), U.S. Army, hosted nearly fifty mul- Canada, Colombia, France, Honduras, Allied Powers (Great Britain, France, Italy, tinational senior military lawyers at the 4th Iraq, Kuwait, Lebanon, Mexico, the Romania, U.S., Russia, and Japan). In the Major General John L. Fugh Symposium Netherlands, New Zealand, Poland, Qatar, First Battle of the Marne fought in 1914, on Law and Military Operations (Fugh Romania, Singapore, Sri Lanka, Taiwan, French and British forces checked the Symposium) and the Multinational the United Arab Emirates, the United German advance and mounted a successful Judge Advocate General Interoperability Kingdom, Uganda, Ghana, Malawi, South counterattack, driving the Germans back Symposium (MJIS). The biennial symposia Africa, Cameroon, Nigeria, and NATO. to north of the Aisne River. The defeat convened at The Judge Advocate General’s The first day of the symposia was in meant the end of German plans for a quick Legal Center and School in Charlottesville, honor of Major General John L. Fugh, and victory in France. Virginia. The events invited the most featured four academic panel discussions The 1917 Battle of Caporetto was a senior military legal officials and law of war focused around the potential legal issues resounding victory for the Central Powers experts from around the world to exchange of future conflict. The second day was during World War I. After more than views on current and emerging legal issues dedicated to the MJIS, where a series of two years of indecisive fighting along in the Law of Armed Conflict (LOAC). roundtable discussions focused on legal the Isonzo River, the Austro-Hungarian AFRICOM, CENTCOM, interoperability issues in targeting in an command devoted more resources to EUCOM, NORTHCOM, PACOM, and urban environment, mitigation of civilian strengthening the Italian front. Using new SOUTHCOM all sponsored interna- casualties, and the protection of soldiers infiltration tactics and heavy artillery, the tional military lawyers from their areas under domestic criminal law. Historically, 14th Army overwhelmed its enemy for of operations to attend the symposia. interoperability is not a new concept. nearly two weeks, until the Italian line The event was truly multinational as During World War I, the Central Powers finally held up near the Piave River with

November/December 2018 • Army Lawyer 55 Polish army Rak 120mm Self-Propelled Mortar Systems with 15th Mechanized Brigade fire for effect during a joint training exercise in Poland earlier this year with the U.S. and nineteen other countries. (U.S. Army photo by SPC Hubert D. Delany III) help from the French, British, and later, the key is interoperability. Both the Fugh directly affecting the conduct of military American troops. Effective interoperabil- Symposium and the MJIS served to con- operations and is geared for participation ity among the Allied forces would lead to tinue solidifying the foundation for future by a mixed audience of military, civilian, the unraveling of the Central Powers and collaborative work between militaries, and academic legal community members. signing of the Treaty of Versailles. ultimately in-creasing interoperability. This year’s symposium explored legal Multinational coalitions are still The inaugural Fugh Symposium issues associated with the nature of future common in modern military operations occurred in 2011, followed by the second conflict. Specifically, the Fugh Symposium and play a central role in security strategies. in 2014 and the third in 2016. In 2016, presented four panels of subject matter ex- The benefits of operating as a coalition are the JAG Corps sponsored the MJIS in perts from around the U.S. to help facilitate both practical in terms of the mass capa- conjunction with the Fugh Symposium. candid and thought-provoking discussions. bilities of the forces brought together to The positive response received from that The symposium began with a panel on the achieve mission success and political with inaugural pairing of symposia prompted the nature of future conflict. This discussion respect to increasing the level of legiti- continuation of the tandem event this year. helped establish a foundation for the rest of macy recognized through collective action. The Fugh Symposium commemorates the day by exploring what future conflicts However, managing differences between the late Major General John L. Fugh, the might look like. The panel addressed how multinational partners brings additional first Chinese-American General Officer LOAC may apply to new technologies, how complexity to any operation, thereby in the United States Army, and TJAG the law can inform development policy potentially causing adverse effects to the from 1991 to 1993. The Fugh Symposium and Rules of Engagement on the modern effectiveness of operating as a coalition. provides a forum for exploration and battlefield, and how the United States and Thus, for a coalition to operate successfully, discussion of contemporary legal topics its European allies have differed in their

56 Army Lawyer • November/December 2018 view of how conflicts are categorized (e.g., Judge Advocate, Combined Joint Forces commanders and service members in the International Armed Conflict vs. Non- Land Component Command, Operation course of NIAC, with the requirements International Armed Conflict (NIAC)) Inherent Resolve—presented a brief on of international humanitarian law (IHL). in the fight against terrorist groups. The Operation EAGLE STRIKE, a nine-month Some nations have revised their criminal second panel addressed how existing laws campaign to liberate Mosul, Iraq’s sec- codes in order to ensure service members apply to NIACs. The panelists led an engag- ond largest city, from the Islamic State, acting in a NIAC have either immunity or ing discussion on the importance of conflict which involved some of the most intense at least a defense in law for acts committed classification and understanding these urban warfare U.S. forces have seen since while conducting international security classifications as applied to the modern World War II. The result was a legally operations. These revisions protect service operational environment. intensive operation that relied heavily on members from domestic criminal liabil- During the afternoon session, a panel advice from judge advocates at all levels ity when acting in compliance with the convened on the weapons systems of of command for ultimate success. The requirements of IHL. future conflicts and the attempt to apply Islamic State in Iraq and Syria (ISIS) forces Overall, the MJIS succeeded in existing law to future weapons. Specific prepared extensive defensive positions in advancing the interoperability discussion talking points included whether cur- anticipation of the operation, including by facilitating frank dialogue focusing on rent laws of war set a minimal necessary interconnected fighting positions, forti- the ways multinational coalitions can best degree of human involvement in war and fied buildings, obstacles, and underground manage the threats associated with urban new weapon systems, the Department of shelters. These preparations alone would operations, specifically targeting in an Defense Manual’s treatment of direct par- have made for a difficult campaign; how- urban environment, mitigating CIVCAS, ticipation in hostilities and membership in ever, ISIS also routinely used the civilian and command responsibility as they relate armed groups, and the challenges for lethal population against coalition forces both to service member immunity from domestic autonomous systems (and their program- defensively as involuntary human shields criminal liability when acting in compliance mers) in complying with proportionality. and offensively as a means to create civilian with IHL. Finally, the day ended with a panel on casualty (CIVCAS) allegations. The result These symposia were much more than weaponizing cyber capabilities. The panel was a legally intensive operation that relied academic exchanges. The events facilitated led the audience in discussion on the heavily on advice from military lawyers at deep thinking at both the strategic and application of LOAC in cyberspace, what all levels of command. operational levels about difficult prob- constitutes an act of war in cyberspace, the The first roundtable discussion, lems, and proved to be an ideal forum to challenges of attribution in cyberspace, and Targeting during Urban Operations, engage with senior military legal advisors finally, on whether existing international highlighted the expanded focus from from around the world. We look forward law principles, including the LOAC, are counterinsurgency to a high-end, decisive to continuing the dialog with our military sufficient to address cyber operations. action fight against a near peer adversary. counterparts from across the Globe, and On 30 May 2018, the MJIS brought This discussion provided a backdrop on know that the event in 2020 will be as in- together senior ranking multinational mil- the importance of the LOAC principles in teresting and informative as the last. TAL itary lawyers to discuss the persistent legal the targeting process and interoperability issues involved with operating as part of a during high-end, decisive action within an coalition during multinational operations, urban environment. The viewpoints of the especially high intensity conflict. This year’s multinational military lawyers on operating focus was on coalition interoperability in in such an operating environment proved preparation for high intensity peer and critical to generating a greater understand- near-peer conflicts. This event allowed ing of how to conduct coalition operations for continued strategic dialogue that U.S. more effectively, while respecting the appli- Army judge advocates began this past year cable laws from coalition participants. with key allies on a variety of engagements As the nature of warfare evolves and around the world. coalition partners continue to conduct The MJIS emphasized the importance operations in heavily populated environ- of close collaboration among military ments, the risk of collateral damage persists. lawyers as a critical factor for coalitions to The second roundtable discussion addressed succeed and the raison d’être for establish- CIVCAS and highlighted the continued ing the MJIS forum. The MJIS forum by efforts by coalition forces to employ all design allowed for a thorough discussion of feasible measures to avoid and minimize lessons learned from recent multinational collateral damage. combat operations. The MJIS concluded with a round- Following opening remarks by table discussion focused on the debate TJAG, COL Warren Wells—former Staff over legal treatment of certain actions by

November/December 2018 • Army Lawyer 57 An interpreter with the Japan Ground Self Defense Force explains to Soldiers of the Indiana National Guard’s 76th Infantry Brigade Combat Team that they will be showing a “care under fire” demonstration during Orient Shield 2018, a joint training exercise aimed at increasing interoperability between the U.S. and Japan. (Credit: SPC Joshua A. Syberg/Released) No. 4 Developing Regionally- Focused Leaders

By Colonel George R. Smawley and Colonel (Retired) Pamela M. Harms

Victorious warriors win first and then go to war; defeated warriors go to war and then seek to win.1

I. Introduction The relative ease and consistency of the NATO treaty regime, Never has the U.S. military been more reliant upon strategic and its established leadership and decision making structure, are partners for mission success. Operations and readiness require- straightforward when compared to the Indo-Pacific web of bilateral ments in Iraq, Afghanistan, Korea, Eastern Europe, and across the and multilateral agreements and arrangements governing mili- contingency spectrum all rely upon the Army’s ability to cultivate tary relationships. Where NATO was an event—a reaction to the and leverage interoperability with others. In this multilateral world, post-WWII cold war environment—the legal framework for the Army leaders are empowered and most effective when they are able Indo-Pacific has evolved over time in response to the region’s eco- to think and act with a regional focus in concert with allies, and nomic and military importance throughout the past century. when they learn to link military education and experience with part- The distinctions are important. The sixty-nine year expe- ners—both long-standing and evolving—in new and different ways. rience of the NATO intergovernmental military alliance and its In some regions, like Europe, experience and interoperability associated command structure, galvanized by the 1950 Korean succeed as a product of decades of coalition work and comprehensive War, brought a cohesive lexicon to how member states talk and legal frameworks that bring predictability and definition to relation- function in support of one another and in support of the broader ships. But in the absence of profound historical or cultural affinity, alliance. America’s military, political, cultural, and historic ties and recognizing our expeditionary Army is becoming increasingly make the relationships all the more predictable. CONUS-based, there is a growing need for leaders with regional flu- In the Indo-Pacific, however, the relationships are generally ency in the countries in which they operate. The regional alignment newer and are increasingly cultivated in an atmosphere of evolving of forces (RAF) to combatant commands clearly established the threats—China, a nuclear North Korea, Philippine insurgency, and strategic focus for regionally aligned units.2 The challenge, then, is high probability of natural disasters across the region—and a more how to prepare officers and NCOs who will lead those units.3 recent tapestry of national diplomatic, economic, and military This is particularly the case in regions like the Indo-Pacific, arrangements and priorities. where U.S. forces operate in the absence of a unifying treaty In response, since World War II the U.S. has entered into construct like the North American Treaty Organization (NATO).4 myriad arrangements and agreements governing bilateral and

November/December 2018 • Army Lawyer 59 multilateral operations and activities, . . . regional knowledge, and cultural Reconstruction Teams, Advise and Assist including three mutual defense treaties awareness enable effective joint Brigades, and others, but is being lost as (Korea, Philippines, Japan); two collective operations. Deployed joint forces opportunities for deployments diminish defense treaties; (Compact Nation defense should understand and effectively and strategic priorities shift to other parts obligations the Taiwan Relations Act); communicate with HN populations, of the world. thirteen different Acquisition and Cross- local and national government This same kind of understanding—and Servicing Agreements (ACSA)/Mutual officials, and multinational part- patience—is required to get things done Logistics Support Agreements (MLSA) and ners. This capability is best built on in regions like the Indo-Pacific. We have unassociated logistics support agreements; analysis of national, regional, and personally encountered planners and nineteen Status of Forces Agreements local culture, economy, politics, re- legal advisors of various services who, for (SOFA), Diplomatic Notes, and Visiting ligion, and customs. Lessons learned example, are entirely too quick to cite their Forces Agreements; and various facility and from Operation IRAQI FREEDOM experience in Iraq or Afghanistan as a qual- basing agreements. (OIF) and Operation ENDURING ification for operating in the world’s most This article describes some of the FREEDOM (OEF) indicate these populated Islamic country—Indonesia—or key operational and legal challenges of capabilities can save lives and are among the Muslim populations in India, an expeditionary Army and the need for integral to mission accomplishment. Malaysia, or Bangladesh. Their cultures, leaders who can function effectively in Consequently, commanders should religiosity, and rule of law traditions could foreign environments across the spectrum integrate training and capabilities not be more different. of a theater level campaign. It describes for foreign language and regional So how can the Army and the JAG observations from the Pacific Pathways expertise capabilities in contingency, Corps identify and develop leaders with re- initiative developed by U.S. Army Pacific campaign, and supporting plans, and gional focus and fluency? At the unit level, in 2014 to enhance readiness through provide for them in support of daily the Army has cultivated and trained readi- experience in partner nations without operations and activities.5 ness via rotational brigades (Korea, Eastern foreign basing. We offer a detailed case Europe) and myriad exercises including example of the complexities of operating It has been said that you can’t surge the innovative Pacific Pathways program in a largely bilateral environment, and the trust, empathy, or understanding. If we are forged in 2014 by U.S. Army Pacific. That nature and history of some of those bilat- truly an Army and a JAG Corps focused on program, which ties and synchronizes U.S. eral relationships. Finally, we argue that operational readiness, then it is worth con- and partner exercises in the Indo-Pacific developing regionally-focused leaders for sidering how the Corps prepares its leaders region, enables “cooperative and persistent service in a complex world is, ultimately, to operate within the RAF units, whether engagement with regional partners, fos- a readiness issue meriting a systemic in combat, humanitarian assistance/disas- tering greater collaboration with Joint and approach to leadership training, education, ter relief, or operations other than war. intergovernmental stakeholders without and career management. This is particularly important given our forward basing.”7 The allegorical reference largely CONUS-based force, and the natural refers to the idea that hands-on experience II. Regional Focus and limit of synthetic training environments and presence in the region contribute to Cultural Fluency (Military Training Centers), which hone conditions and expertise that make future Regionally-focused leaders are officers critical skills, but generally do not qualify as operations in Asia easier, via “pathways” and NCOs who have achieved a level of experience. laid by repeated and meaningful entry, professional and cultural fluency within In his book, Three Cups of Tea: One exercise, and partnership. a geographic area of operations. They Man’s Mission to Promote Peace...One School at A fundamental premise of the Pathways understand the operational environment, a Time,6 former registered nurse and moun- initiative is that development of readiness bilateral and multilateral legal regimes, tain climber Greg Mortenson tells a story for regionally-focused units and leaders personalities, priorities and agendas, and (as relayed to his co-author, David Oliver is a process of “relationships, rehearsal have the ability to optimize interoperabil- Relin) about the importance of personal and reconnaissance.”8 In a 2016 article in ity with allies and partners. These leaders relationships and cultural understanding in Military Review, MG Charles A. Flynn, are appropriately “talent matched” to their his effort to build schools in rural Pakistan. Commanding General of the 25th Infantry commands and missions. Just as small unit He explains that that takes three cups of Division, offered the following observations combat has a distinct physicality requiring tea . . . not just one or two, to develop the after two years of Pathways exercises: a specific type of training and experience, requisite level of trust needed to get by-in so too do judge advocates and others in the from local leaders to get things done. It is Because of Pacific Pathways de- sustainment force require special skills and a lesson in cultural understanding and pa- ployments, the leaders of our BCTs understanding to achieve their full poten- tience which sometimes runs counter to the and other organizations have spent tial among regional partners. As noted in American desire to get things done quickly. countless hours with their foreign Joint Publication 3-0, Joint Operations: It is also a lesson in regional understand- counterparts, from every branch and ing that was hard-fought by Provisional across the Total Army; the bonds

60 Army Lawyer • November/December 2018 they created through their shared tac- attendance at various schools, training exer- develop messages, establish dialogue, tical experiences in training will have cises, subject matter expert exchanges, and and determine other ways and means positive strategic impacts. This is collaboration during regional professional of delivery, especially in societies time well spent, as gestures of respect conferences to name a few. It is the reason where interpersonal relationships are and friendship are all in an effort to senior leaders at combatant commands and paramount.13 create interoperability at the most the service components spend so much time junior levels.9 traveling and hosting—to personally engage The opportunity for personal relation- counterparts in furtherance of common ships in a regional context simply cannot Soldiers, leaders, and, most import- goals and objectives. This is no less import- be replicated at training centers; it requires ant, commanders at every echelon learn ant for staff officers, whether they operate something more. The same could perhaps and grow while deployed on Pathways. within plans and exercises directorates, be said for foreign officers who attend They develop confidence in their skills and security cooperation programs, the medical U.S. schools, including the Judge Advocate abilities through the repetitive performance community, or the JAG Corps. Officer Basic and Advanced Courses. The of tasks and the continual decision making Over the past eighteen months or so, Army values and supports foreign atten- associated with accomplishing missions in Army judge advocates have participated dance at U.S. military schools precisely foreign countries.10 in engagements and exercises with part- because it allows those officers to develop The Soldiers assigned to Pacific-based ner uniformed legal personnel across the a vital understanding of U.S. Army educa- units (and those, like the Indiana National Indo-Pacific, including Australia, Japan, tion, culture, people, and operational focus. Guard, who participated in a 2018 Pathway Korea, Indonesia, Thailand, Cambodia, In exchange, U.S. officers have the chance to Indonesia and Hawaii) are developing Nepal, Bangladesh, Taiwan, Singapore, and to enter into personal relationships with precisely the kind of regional focus that Malaysia. No doubt the same is happen- current and future strategic leaders of part- will serve them now and in the future. The ing in Europe, Africa and South America. ner nations. These relationships hold great Senior Service Colleges have long-standing Through these experiences, judge advo- promise for future readiness and coopera- programs for regional orientation—aca- cates develop relationships with foreign tion in multilateral strategic environment, demic seminars and trips overseas—but commanders, as well as develop expertise and should be actively cultivated. nothing can compare to the experience of in foreign legal systems—military justice, actually serving in foreign countries with operational law, ROE development—and B. Rehearsal (Process) the same partners we will rely upon in in the legal and policy constraints on their The Pathways program offers a model real-world operations. operations, to name a few. They come to for how the active component supports So what are the basic elements to con- understand their professional development the RAF model and develops experience sider when building a regionally-focused systems and the seams and gaps where in leaders. Indeed, all the Geographic force? MG Flynn11 and others reduce the the U.S. can provide assistance with, for Combatant Commands (GCCs) and their basic building blocks for regionally-focused example, opportunities for engagement in associated service components and theater leaders and operations to three essential U.S. military training and academic centers. enabling commands work tirelessly to considerations: personal relationships, With sufficient time in the region, they also develop rigorous training and exercise pro- tactical rehearsals, and reconnaissance of garner professional relationships—even grams designed to replicate the challenges possible areas of operation. friendships—which can serve as important of operating outside the U.S., with (and resources for operations: people we can call without) partner nations, the interagency, A. Relationships (People) with questions, coordinate with in advance and others. Regionally-focused and engaged leaders of exercises, or engage with to solve real One of the challenges reserve com- are, in part, valuable to broader regional world problems such as foreign detention of ponent judge advocates have had is how strategies because of the opportunities that U.S. personnel under criminal investigation. to obtain valuable experience and regional arise from the relationships they build over The idea that relationships matter is understanding in advance of possible time via routine engagement with part- recognized in joint doctrine, including in mobilizations, particularly in the case of ner militaries and other regional actors, Joint Publication 3-0, Joint Operations, which the Korean Peninsula, where mobilization including U.S. interagency personnel and states: times could be as short as fourteen days in non-governmental organizations. The a theater where the U.S. might not control challenge is to leverage these personal rela- Most operations require command- timelines the way it has during the past tionships in a way that garners mutual trust ers and other leaders to engage key seventeen years of conflict. As a training and understanding, creating opportunities local and regional leaders to affect and readiness exercise consideration, Army for cumulative growth between and among their attitudes and gain their sup- Service Components / Theater Armies militaries. port. Building relationships to the point must leverage reconnaissance in support of The importance of relationships finds of effective engagement and influence reserve component units that might logi- expression at a number of levels, including usually takes time. Commanders can cally be called upon to support the GCCs. the Military Personnel Exchange Program,12 be challenged to identify key leaders,

November/December 2018 • Army Lawyer 61 So, how does Legal Command shorten world tasks: one to USARPAC SJA for China Sea, its surrounding nations, the anticipated mobilization time for exposure to fiscal, operational and admin- and the extensive span of tactical legal support to operations in the Pacific istrative law issues; one to Japan for the operations in Balikatan this year, the Theater? How do we develop a cohort of KR/NEO exercise; one to 25ID for KR; and units participating in the Pathways trained, ready, and regionally-focused offi- one to 8th TSC for exercise and real-world TF were well versed in what was cers and NCOs who are prepared to deploy experience. The second cohort, in June required to operate in the Philippines. on short notice to the AOR, able to imme- and July, had a similar experience among Our planners at every echelon, our diately integrate asymmetrically at all levels Hawaii-based units. understanding of the operational of command from brigade, to garrison, to The third cohort of approximately a environment, and our knowledge of JTF, to sustainment, to Non-Combatant dozen officers and NCOs trained ex- the threats and the political nuances Operations (NEO), to the USARPAC Main clusively in Korea in coordination with in that environment were excellent. Command Post? And, importantly, how do the 8th U.S. Army and its subordinate . . . From port operations, to cus- we achieve regional currency in support of units. There they integrated with respec- toms, command-and-control nodes, readiness for future contingencies? tive legal staff sections and developed as airspace, and cyber, the reconnais- In late 2017, leaders from the U.S. much experience with the mission on the sance that our soldiers and leaders Army Legal Command, U.S. Army Pacific, Korean peninsula as possible during the accomplished on Pathways was and the 12th Legal Operations Detachment three week readiness training program. extraordinary. It set conditions for (LOD) met in Hawaii to develop a readiness The after action reviews were extremely the United States to be in a position training plan that would help answer these positive, and from the perspective of 12th of relative advantage upon arrival if questions. Internally called “Pacific Surge”, LOD personnel offered them a regional called upon to respond to a crisis.14 the plan was born out of the idea that any perspective and mission orientation they conflict in the Pacific Rim would afford could never have achieved in an academic For regionally-focused leaders, the idea very little pre-mobilization time; certainly or CONUS training environment. The of reconnaissance simply identifies the in- not the thirty to ninety days we have rehearsal of moving from CONUS to herent value of in-country experience with become used to. This requires a cohort of theater for several weeks left them better partner nations and the ability to rapidly Reserve Personnel truly prepared to fall in prepared, better regionally oriented, and anticipate challenges they can expect to on the considerable (53 PAX) un-resourced better trained in support of possible con- encounter while serving in and among the judge advocate contingency requirements tingency mission than ever before. different countries in the Indo-Pacific. It is for the AOR. While not equivalent to something that can be learned over time, service and stationing in the region, from C. Reconnaissance (Places) when there is time. But when there isn’t, the RC perspective this offered an intense, The nature and importance of recon- as in the case of humanitarian assistance hands-on introduction to the Pacific region. naissance in military operations is well missions arising from natural disasters, the On 25 January 2018, BG Ural Glanville, understood. In its most basic form it is experience that these leaders bring becomes Commander for the Legal Command, concerned with developing situational invaluable and assists commanders and oth- approved a concept that would bring 12th understanding through intelligence and ers to make informed decisions in support LOD personnel to various locations in assessment of an enemy, an area of opera- of Army operations. the Pacific for twenty-eight days under tion, etc. It can involve land, sea, space, or USARPAC guidance, with the purpose of any partition thereof. In a regional context, III. The Challenge of Complex providing real-time operational context, reconnaissance enables and empowers Regional Legal Regimes— realistic readiness training, immersion, and leaders through awareness, and affords a The Indo-Pacific systems integration (NIPR, SIPR, clear- contextual and first hand appreciation for The United States military remains stead- ances, etc.). the operational environment. fastly committed to the Indo-Pacific region The first of three cohorts of 12th LOD Although methods of reconnaissance as an enduring focal point of strategic personnel were identified, and immediately vary greatly, we argue there is a profound interest and priority, just as it has since began pre-deployment training as though benefit for judge advocate leaders who Commodore Dewey first made contact for a real-world contingency mission. actually walk the ground in areas they may with the Chinese in 1842. North Korean Medical, SERE, etc. The first cohort of four one day operate. This is a key justification aggression and missile development, field grade officers arrived on 8 April 2018; for pre-deployment site surveys and senior Chinese expansion into the South China the second of two field grades and one leader recons, and is echoed by command- Sea, and a seemingly intractable extremist senior NCO arrived on 17 June. Each spent ers at all levels. As noted by MG Flynn, threats elsewhere are reminders of the three days in orientation at HQ USARPAC challenges the U.S. and partner nations (operational family of plans, network Mere presence alone provides re- face in the region. access, badging, etc.), and then were sent markable insights into our partnered Secretary of Defense Mattis, speaking out to units in support of exercises—Key countries’ governments. Given the in June 2017 at the Shangri-La defense Resolve (KR), the NEO TTX—and real growing importance of the South summit in Singapore, noted that

62 Army Lawyer • November/December 2018 South Korean soldiers coordinate fires during a joint artillery exercise with U.S. Soldiers from the 1st Battalion, 82nd Field Artillery Regiment, 1st Armored Brigade Combat Team, 1st Cavalry Division. (Credit: U.S. Army photo by SSG Keith Anderson, 1st Armored Brigade Combat Team Public Affairs, 1st Cav. Div.)

[t]he United States will continue to personnel are currently assigned to the 16 IV. The Treaty Nations. Five of adapt and continue to expand its ability USINDOPACOM area of responsibility.” the U.S.’ seven treaty alliances are to work with others to secure a peaceful, Any discussion about the importance located in the Indo-Pacific Region prosperous and free Asia, with respect for of developing leaders with regional fluency all nations upholding international law… can find easy examples in the legal regime A. Japan Because we recognize no nation is an behind American partnership and presence The U.S.’s security relationship with island, isolated from others, we stand with in the Indo-Pacific region, an area largely Japan is governed by the Treaty of Mutual our allies, partners and the international composed of a mosaic of mature albeit Cooperation and Security between Japan community to address pressing security evolving mutual defense and cooperation and the United States (MST) (1960).17 challenges together.15 treaties; bi-lateral compacts; domestic Article V of the MST provides that an The global importance of the region legal arrangements based on status as U.S. armed attack against either Party in the ter- therefore cannot be understated. As sum- territories; special relations status based on ritories under the administration of Japan marized by U.S. Indo-Pacific Command U.S. law; cross-service and military logistics would be dangerous to its own peace and (USINDOPACOM), the U.S. presence support agreements; SOFAs; and facilities safety and declares that it would act to meet underpins national security, economic, and and basing agreements. the common danger. The U.S.’s position is national leadership “across roughly half the To understand the patchwork of that the territories administered by Japan earth’s surface, from the West Coast of the largely bilateral agreements which enable include the disputed Senkakus Islands, U.S. to the western border of India, and U.S. operations in the Pacific Rim, it is claimed by China, Taiwan, and Japan. In from Antarctica to the North Pole. The important to realize that each has its own addition to the MST, the U.S.-Japan SOFA region’s 36 nations are home to more historical basis—some quite interesting— was signed in 1960. There is also a mature than 50% of the world’s population, five and technical implementing requirements ACSA with Japan, the latest of which en- of the top seven largest militaries, and the benefiting from regional fluency and under- tered into force in 2017. world’s the largest democracy and its largest standing. The following paragraphs discuss The Guidelines for Japan-U.S. Defense Muslim-majority nation. Approximately some of the most important of our defense Cooperation of 2015 further define the 375,000 U.S. military and civilian relationships in the region. Alliance between the U.S. and Japan,

November/December 2018 • Army Lawyer 63 providing a general framework and policy as the Commander, UNC, CFC and U.S. activities at “Agreed Locations” within the direction for the roles and missions of each Forces Korea (a sub-unified command of Philippines. To date, there are five such country. The Guidelines outline that the U.S. USINDOPACOM). The CFC deputy com- “Agreed Locations” on Philippine military and Japanese forces operate as a bilateral, mander is a ROK four-star general officer. bases. Exercise BALIKATAN is the annual rather than a combined or coalition, force. Exercise ULCHI FREEDOM GUARDIAN joint/combined bilateral exercise conducted Under this construct, U.S. forces will operate (UFG), an annual U.S.-ROK joint and com- in the Philippines to address contingency in support of Japan’s defensive operations. bined CPX, focuses on training for joint/ plans for the defense of the Philippines. Therefore, judge advocates advising com- combined operations.20 manders on the defense of Japan must have a D. Australia and New Zealand working knowledge of Japan’s Constitution C. The Philippines The security relationship with Australia and and its laws that place strict limits on the The U.S. security relationship with the New Zealand is governed by the Security use of force by the Japanese Self-Defense Philippines is governed by the Mutual Treaty between Australia, New Zealand and Force.18 Exercise YAMA SAKURA, the Defense Treaty between the Republic of the the United States (ANZUS Treaty) (1951). largest annual Army command post exercise Philippines and the United States (1951). This treaty was intended to protect the se- conducted in the Indo-Pacific AOR each It is U.S. policy that it does not speculate as curity of the Parties in the Pacific, and each year, exercises this bilateral construct. to whether or not the treaty applies to dis- Party declared that it would act to meet the puted land features in the South China Sea. common danger of an armed attack in the B. The Republic of Korea Under the treaty, the Parties recognizes that Pacific Area on any of the Parties. An armed The U.S.-Republic of Korea (ROK) security an armed attack in the Pacific area on either attack includes an attack on the metropol- relationship is governed by the Mutual Party would be dangerous to its own peace itan territory of any of the Parties, or on Defense Treaty between the United States and safety and that it would act to meet the the island territories under its jurisdiction and the Republic of Korea (1953). The common dangers. The treaty clarifies that in the Pacific or on its armed forces, public treaty entered into force four months after an armed attack is deemed to include an vessels or aircraft in the Pacific. the Korean War Armistice Agreement was armed attack on the metropolitan territory The U.S. continues its robust alli- signed, and provides that an armed attack of either Party, or on the island territories ance with Australia. The U.S. has a SOFA in the Pacific area on either of the Parties under its jurisdiction in the Pacific Ocean, with Australia (1963), as well as an ACSA in territories under their respective control its armed forces, public vessels or aircraft (2010). The 2014 Force Posture Agreement would be dangerous to its own peace and in the Pacific. State Department guidance between Australia and the U.S. reaffirms safety and the Parties would act to meet the issued on 11 July 2014 applies this mutual the U.S.-AUS strong defense relationship common danger. The treaty also grants the defense provision to those attempting to and intent to expand and increase oppor- U.S. military the right to “dispose” its armed resupply the Philippine Naval vessel Sierra tunities for joint and combined training in forces in and about the territory of the Madre in the South China Sea. 21 The U.S. locations within Australia. The Agreement ROK, as determined by mutual agreement. also has a Visiting Forces Agreement with authorizes the U.S. Forces to undertake The U.S. also has a SOFA with Korea, the Philippines which entered into force mutually determined activities in Australia, signed in 1966, and a MLSA, the most in 1999, and a MLSA, the most recent of including security cooperation exercises and recent of which was signed in 1988. which was signed in 2017. joint/combined training. It also provides Unlike the U.S.-Japan bilateral security Throughout the Cold War, the U.S. Forces unimpeded access to and use arrangement, the U.S. and ROK forces two largest overseas U.S. military bases of “Agreed Facilities and Areas” for these prepare to conduct combined/coalition were located in the Philippines: Clark activities. This includes a U.S. Marine operations. In 1950, after tens of thousands Airbase and Subic Bay Naval Base (the Rotational Force in Darwin, funded under a of North Korean People’s Army forces largest U.S. military base overseas is now separate cost sharing arrangement. Exercise crossed the 38th parallel, the UN Security Camp Humphreys in South Korea). Both TALISMAN SABER is the biennial, joint/ Council issued UNSCR 84, recommend- were closed in the early 1990s; however, combined bilateral exercise conducted in ing the creation of the United Nations after lease negotiations broke down the Australia that includes all components of Command (UNC) under the authority of Philippine Government refused to renew USINDOPACOM and Australia’s army, the United States.19 Based on this recom- the leases. Over twenty years later, the navy and air force to exercise combined mendation, the U.S. established the UNC U.S. and Philippine Governments signed operations across the full range of military under the command of a U.S. four-star the Enhanced Defense Cooperation operations in the Indo-Pacific.22 general officer (originally GEN Douglas Agreement (EDCA) in 2014. Although the In 1986, the U.S. suspended its ANZUS MacArthur). The UNC exercised opera- EDCA affirmed the parties’ understanding Treaty obligations to New Zealand when tional control over ROK units during the that the U.S. would not establish a per- New Zealand refused to allow U.S. Navy Korean War and until the creation of the manent military presence or base in the vessels to enter its ports unless they ROK-U.S. Combined Forces Command Philippines, the Philippine Government specifically declared they were not carry- (CFC) in 1978. The Commander of CFC is agreed that U.S. forces, vehicles, vessels, ing nuclear weapons. The resulting U.S. a U.S. four-star general who is triple-hatted and aircraft may conduct certain military sanctions cooled relations between the two

64 Army Lawyer • November/December 2018 countries for twenty-five years. In 2010, the a 2017 Joint Statement between President relationship with the United States. After parties signed the Wellington Declaration, Trump and Prime Minister General Prayut WWII, pursuant to UNSCR 21 (1947), all reaffirming close ties between the two Chan-o-cha reaffirming the importance three Pacific Islands were placed under the countries and restoring military coopera- of the U.S.-Thai enduring alliance and UN Trusteeship System and the U.S. was tion. In 2012, the Washington Declaration resolving to further strengthen the alli- appointed the Administering Authority. provided a framework and strategic guid- ance through a broad range of measures, The Commonwealth of the Northern ance for security cooperation and defense including defense modernization efforts. Marianas Islands (CNMI) was also placed dialogues. In November 2016, the destroyer The two leaders also welcomed closer under the administration of the United USS Sampson visited New Zealand, the first military-to-military cooperation and joint States. Although in 1975 CNMI chose to bilateral ship visit in more than thirty years. exercises, including exercise COBRA become a U.S. territory, Micronesia, the Currently, USARPAC units participate in GOLD, the largest multilateral military Marshall Islands and Palau have chosen to the New Zealand Defense Force biennial exercise in Asia. The US has no SOFA with become sovereign countries, each entering joint exercise SOUTHERN KAITPO, and Thailand, although it has an ACSA (2014). into a Compact of Free Association with biennial Army exercise KIWI KORU. the United States.26 The Compact provides While the U.S. has an ACSA (2012) with F. Taiwan the U.S. full authority and responsibility New Zealand, there is no SOFA.23 In 1979, pursuant to a U.S.-China Joint for the security and defense of the Compact Communique, the U.S. recognized the Nations, including the obligation to defend E. Thailand Government of the People’s Republic of the countries from attack or threats of The security relationship between the China as the sole legal government of China, attack as the U.S. and its citizens are de- U.S. and Thailand is governed by the acknowledging there is but one China and fended. Therefore, USINDOPACOM plans Southeast Asia Collective Defense Treaty Taiwan is part of China. The communique must account for the U.S. obligation to (Manila Pact) (1954). The Manila Pact was also stated, however, that the U.S. would defend these countries. signed by the U.S., Thailand, Australia, maintain cultural, commercial, and unof- Under the Compact, the U.S. also may New Zealand, Philippines, France and the ficial relations with the people of Taiwan. establish and use military areas and facilities United Kingdom. Under the Manila Pact, Legislation passed that same year, known as in the Compact Nations, subject to the the Parties recognize that aggression by the Taiwan Relations Act (TRA),25 provides terms of separate agreements. The U.S. cur- means of an armed attack in the Treaty the legal basis for this unofficial relationship. rently has an agreement with the Marshall area against any of the Parties or any State Under the TRA, U.S. policy is to preserve Islands to use Kwajalein Atoll, home of or territory which the Parties designate, and promote extensive ties with Taiwan, the U.S. Army Space and Missile Defense would endanger its own peace and safety, consider any effort to determine the future Command’s Ronald Reagan Ballistic Missile and agree it will act to meet the common of Taiwan by other than peaceful means Defense Test Site, supported by U.S. Army danger. The Manila Pact area is the general a threat to the peace and security of the Garrison—Kwajalein. The U.S. also has a area of Southeast Asia, including the entire Western Pacific and a grave concern to the SOFA with each country, but no ACSA, as territories of the Asian Parties.24 The Manila U.S., provide Taiwan with arms of a defen- the countries do not have their own defense Pact was originally part of the Southeast sive character, and maintain U.S. capacity to forces (under the Compact, citizens of Asia Treaty Organization (SEATO), which resist any resort to force or other forms of these countries are eligible to volunteer for was implemented to prevent the spread of coercion that would jeopardize the security, service in the U.S. Armed Forces). communism in the region. SEATO was dis- or social or economic system of Taiwan. banded in 1977, but the Manila Pact remains USARPAC maintains a robust secu- V. Summary in force and represents the formal security rity cooperation program with Taiwan, Regionally focused leaders are a critical part agreement between the U.S. and Thailand. conducting its activities with Taiwan under of the future of the Army. Despite recent In 2012, the U.S. Secretary of Defense a program called “LU WEI,” which means hints of unilateral rhetoric in US policy and his Thai counterpart issued a Joint Army Strong. These security cooperation channels, there is little to suggest that DoD Vision Statement for the Thai-U.S. activities include observer training, mobile will waiver from its ever increasing role in Defense Alliance, focusing on partnerships training teams, and subject matter expert programs facilitating partnership, shared for regional security in Southeast Asia, exchanges, including legal SMEEs devel- strategic approaches, access, cooperation, supporting stability in the Asia-Pacific oped and executed by the USARPAC OSJA. and operational and tactical interoperability Region and beyond, bilateral and multi- Because the U.S. does not recognize Taiwan with strategic allies. Whether as part of lateral interoperability and readiness, and as a separate nation, the U.S. has no SOFA Pacific Pathways, Army Europe’s multi-fac- relationship building, coordination and or ACSA with Taiwan. eted Atlantic Resolve, Army Africa’s collaboration. After a military coup in interagency and regionally partnered Thailand in 2014, the U.S. reduced the size G. The Compact Nations Unified Focus, or the National Guard’s of joint military exercises, and took other The Federated States of Micronesia, the State Partnership Program, training and steps to curtail ties with the Thai junta. Republic of the Marshall Islands, and readiness will remain inextricably linked to Relations have since thawed, however, with the Republic of Palau maintain a special regional alignment with partner forces.

November/December 2018 • Army Lawyer 65 Judge advocates and paralegal NCOs maximizes the potential of its leaders and 14. Flynn, supra note 8, at 111. who serve and practice in RAF units or those enhances Army readiness when it develops 15. Amy R. Connelly, James Mattis says U.S. committed with distinct regional focus, such as Special the regional-focus these Soldiers need to to Asian-pacific nations, UPI.COM (Jun. 3 2017, 6:13 AM), https://www.upi.com/James-Mattis-says-US- Forces or the Army Service Components/ function most effectively among the people, committed-to-Asian-Pacific-nations/9111496481151/ Theater Armies, face special challenges as places, and processes they may one day face 16. http://www.pacom.mil/About-USPACOM/. do Reserve Component units on the time- in support of GCC requirements and oper- 17. The original U.S.-Japan Security Treaty was signed phased force and deployment data roster ations. The past sixteen years in places like in 1951 after Japan gained full sovereignty at the end of (TPFDD). These leaders work hard to Iraq and Afghanistan have demonstrated the Allied occupation. This earlier treaty expired upon achieve maximum readiness for short-turn the worth of such expertise. The question the entering into force of the MST. operational requirements, and are reconcil- is how we are preparing for the next decade 18. See Information Paper: Intro to U.S.-Japan Security Operations and Defense Cooperation (Jan. ing routine military training requirements in places now far less familiar. TAL 18, 2017) found on JAGCNet, RAF Repository, with the professional obligation to function for an excellent discussion of this issue. https:// effectively outside the US with partners in COL Smawley is the Staff Judge Advocate, www.jagcnet2.army.mil/Sites%5C%5Cio.nsf/0/ B8B7A48BB89CF723852580F00079AB4C/%24File/ real-world scenarios that are difficult to pre- U.S. Army, Pacific, Fort Shafter, Hawaii. Japan%20Security%20Cooperation%20Information%20 dict or replicate, e.g., humanitarian assistance COL (Ret.) Harms is the Senior Civilian and Paper.pdf missions in Liberia and Nepal. International Law Advisor, U.S. Army, Pacific, 19. S.C. Res. 84, U.N. Doc. S/1588 (Jul. 7, 1950). Despite many years of increasing Fort Shafter, Hawaii. The UN exercises no control of the United Nations Command. cooperation, most of the international 20. Implementing the results of the June 2018 legal regimes outside the NATO com- Singapore Summit between President Donald Trump munity are new to Army practitioners, Notes and North Korean Chairman Kim Jun Un, Defense complex, often bilateral, and evolving. The 1. SUN TZU, THE ART OF WAR (Lionel Giles trans., Secretary James Mattis indefinitely suspended UFG. Thrifty Books) (2009). USINDOPACIFIC area of operation serves 21. The Sierra Madre is a Philippine Navy ship EADQUARTERS EP T F RMY XECUTION as a good example. As the Judge Advocate 2. See H , D ’ O A , E anchored near Ayungin shoal in the Spratly group ORDER 052-13 IN SUPPORT OF REGIONALLY ALIGNED of islands in the South China Sea, west of Palawan, General’s Corps works to increase the read- FORCES (27 Dec. 2012); HEADQUARTERS, DEP’T OF ARMY Philippines. The Philippine Navy deliberately ran it iness of leaders to serve in these compelling FRAGMENTARY ORDER 1 TO EXECUTION ORDER 052-12 aground to mark the Philippine claim to the reef and locations, it—and the rest of the Army— IN SUPPORT OF REGIONALLY ALIGNED FORCES annex a small contingent of Philippine soldiers are stationed AA (17 Oct. 2013); HEADQUARTERS, DEP’T OF ARMY onboard. should consider the: (1) the academic FRAGMENTARY ORDER 2 TO EXECUTION ORDER 052-12 IN 22. In 2019, the CPX portion of this exercise has SUPPORT OF REGIONALLY ALIGNED FORCES, para 1.C.2.A opportunities afforded leaders for regional been combined with Exercise PACIFIC SENTRY, a (29 Jul. 2015). specialization; (2) regional operational USINDO-PACOM Joint readiness CPX. 3. For overview of the professional considerations training for Active, Reserve, and National 23. There is, however, a U.S.-New Zealand Exchange required for judge advocates serving in regionally of Notes Constituting a Chapeau Agreement, which Guard; and (3) the manner in which the aligned units, see Lieutenant Colonel Ryan Dowdy, addresses certain defense commitments, including et al., A Primer on Key International Law Issues for the talent management process is leveraged to liability and claims and use of information. Exchange Regionally Aligned Legal Advisor, ARMY LAW, Nov. cultivate cohorts of legal professionals at all of Notes Constituting a Chapeau Agreement between 2015, at 16–29. echelons within the respective communities the Government of New Zealand and the Government 4. See generally Colonel Brian Brady, The North Atlantic of the United States of American Concerning of practice most directly supporting the Treaty Organization Legal Advisor: A Primer, ARMY the Establishment of Certain Mutual Defense respective GCCs and other regionally fo- LAW, Oct 2013, at 2–25. Commitments, 16 July 1996. cused commands. We also recommend that 5. JOINT CHIEFS OF STAFF, JOINT PUBLICATION 3-0, 24. Article VIII of the Manila Pact specifically provides the Army Judge Advocate General’s School JOINT OPERATIONS III-23 (Jan. 17 2017) [hereinafter that the treaty area is the general area of Southeast HAIRMAN OINT HIEFS OF TAFF make a concerted effort to better track JP 3-0]; see also C , J C S , Asia, including the territories of the Asian Parties, and INSTR. 3126.01A, LANGUAGE, REGIONAL EXPERTISE, AND the general area of the Southwest Pacific, but not in- and engage foreign alumni of the School’s CULTURE (LREC) CAPABILITY, IDENTIFICATION, PLANNING, cluding the Pacific area north of 21 degrees 30 minutes academic programs, akin to what the U.S. AND SOURCING (31 Jan. 2013) [hereinafter CJCSI north latitude. 3126.01A]. Army War College does. 25. Pub. L. No. 96-8, 93 Stat. 14 (1979). 6. GREG MORTENSON AND DAVID OLIVER RELIN, THREE In our view, regionally focused leaders 26. See the International Trusteeship System of the CUPS OF TEA (2006). rarely happen by accident and require United Nations Charter, in particular Article 76. 7. See https://www.usarpac.army.mil/pdfs/Pacific%20 Micronesia and the Marshall Islands signed a Compact either a dedicated effort or specialization Pathways%2016%20Tri-fold.pdf (last visited 19 Jul of Free Association with the U.S. and gained inde- by individuals (e.g., as a result of heritage 2018). pendence in 1986. Palau signed a Compact of Free or language ability), or a deliberate process 8. MG Charles A. Flynn, Pathways: A Division Association with the U.S. and gained its independence in 1994. by Army organizations to identify and Commander’s Observations in the Pacific, 96 MIL. REV., cultivate the expertise and fluency required no. 6, Nov.–Dec. 2016, 107, 109 [hereinafter Flynn]. for service in support of GCCs. There is 9. Id. at 109–110. genuine goodness and wisdom to the idea 10. Id. at 111. of developing judge advocates who are 11. Id. at 109. versatile experts, at least in the early phases 12. See 10 U.S.C. 311 (2012) of a career model. But at the mid-grade 13. JP 3-0, supra note 5, at III-19. and senior level, the institutional Army

66 Army Lawyer • November/December 2018 individuals usually comprise the foundation in the vast majority of installations, there are variations on the members, and it does not always include five persons. Whatev- er the case may be, its best use is not as a leadership model, but rather a technique or tool to build consensus and promote collaboration. Army Regulation (AR) 600-20, Army Command Policy is one doctrinal reference that discusses accountable leadership and command and why a clear and articulable chain of command is paramount to ensure mission success. Paragraph 2-1a, provides in part, “A simple and direct chain of com- mand facilitates the transmittal of orders from the highest to the lowest levels in a minimum of time and with the least chance misinterpretation.”1 This regulation goes on to articulate the role of the NCO support channel as an important concept in Army leadership doctrine. It states, in part, “[T]he NCO support channel (leadership chain) parallels and complements the chain of command.”2 These two sections are a small part of this overarching command policy regulation, but the point is that doctrine envisions a single individual being solely responsible for the successes and failures of an organization; and, effective use of the chain of command through subordinate leaders is vital in achieving these successes. (Credit: iStock/ koya79) Simplifying the chain of command and leveraging the NCO support channel pro- motes efficiencies in units and places those in and outside the organization on notice that decisions, responsibility and infor- Closing Argument mation flow up and down the chain, and a single individual at the top is ultimately accountable. The Foundation of Five model con- Demolishing the Foundation of Five flicts with this basic paradigm. No other branch in the Army uses the same or similar language when referring to certain mem- By Major Trenton Powell bers of its teams.3 In this regard, Field Man- ual 1-04, Legal Support to the Operational Army,4 stands alone.5 Paragraph 4-20 states,

The Army JAG Corps should abandon model describes a group of people at JAG The SJA leads the OSJA at the level of the Foundation of Five as a leadership Corps offices that serve in certain roles. division headquarters and above and model because it has no basis in Army Across the force, the members of the Foun- at installations that support opera- doctrine, confuses the chain-of-command dation of Five include the staff judge ad- tional units. The SJA manages and and noncommissioned officer (NCO) sup- vocate, the deputy staff judge advocate, the leads with the help of key advisors: port channels, and de-emphasizes members legal administrator, the command paralegal, the deputy SJA, the legal administra- of the organization. This unique leadership and the senior civilian. While these five tor, the command or chief parale-

November/December 2018 • Closing Argument • Army Lawyer 67 gal NCO, and the civilian advisor. Arguing otherwise discounts the basic defi- Notes Together, they are known as the nition of foundation and ignores the struc- 1. U.S. DEP’T OF ARMY, REG. 600-20, ARMY COMMAND POLICY para. 2-1a. (6 Nov. 2014). foundation of five. With the advice tural building blocks of military organiza- and assistance of the other members tions. While these individuals are essential 2. Id. at para. 2-18a. of the foundation of five, the SJA in delivering legal support, and perform 3. Asserted after an exhaustive search through doctrine in the Army Publishing Directorate (https://armypubs. ensures that the OSJA is led, trained, vital functions as The Judge Advocate Gen- army.mil).

equipped, and supported in a manner eral’s representatives in the field, the body 4. U.S. DEP’T OF ARMY, FIELD MANUAL 1-04, LEGAL to accomplish the mission. The upon which the JAG Corps enterprise rests SUPPORT TO THE OPERATIONAL ARMY (18 Mar. 2013) foundation of five is a flexible and are the junior members of our team. The [hereinafter FM 1-04]. dynamic concept. SJAs should tailor captains, junior NCOs, junior paralegals, 5. A new version of FM 1-04 is currently being drafted to nest with the latest version of FM 3-0, Operations. the concept individually depending civilian attorneys, and paraprofessionals are Whether the Foundation of Five concept survives in on their mission and office structure. the actual foundation of the organization. the new draft is unknown. Each division within the OSJA has Day-in and day-out, these individuals take 6. FM 1-04, supra note 4 at para. 4-20. a division chief and a noncommis- the calls, get the transmittals signed, send 7. Id. sioned officer in charge who receives the emails, draft the motions, and call the 8. Id. direction, guidance, and support from PT formations to attention. They are the 9. Foundation, MERRIAM-WEBSTER.COM, https://www. 6 senior leadership. JAG Corps’ base and its support. merriam-webster.com/dictionary/foundation (last One benefit in moving away from visited Aug. 25 2018). The Foundation of Five as a leadership using the Foundation of Five as a leadership concept simply does not reconcile with core model is that it will provide a paradigm Army doctrine. Comparing the substance shift in the organization and emphasize the of this clause with those cited earlier in AR most valuable assets in the JAG Corps—the 600-20 illustrate the confusing nature asso- junior judge advocates (JAs) and junior ciated with the Foundation of Five concept. paralegals. These two groups are the orga- Army Regulation 600-20 describes chains nization’s most important resource. The of command as simple, direct, and easily JAG Corps mission to provide principled ascertainable. In addition, NCO support legal counsel and premier legal services to channels aid in the use and execution of the the Army fails without the efforts of JAs chain of command. On the other hand, in and junior paralegals. This is not to say defining the JAG Corps’ leadership model, that other members of the team are not FM 1-04 provides that the supervisory SJA important and not value added. Rather, in has a set of key advisors, but the use and objectively assessing the source of the JAG authority of these advisors may change Corps power, it is this population’s capacity based on “mission and office structure.”7 and the critical capabilities it provides that Furthermore, subordinate division chiefs allow the enterprise to achieve its objective and NCOs in charge receive “direction, and attain the desired end state. Eliminating guidance, and support from senior leader- the Foundation of Five as a leadership mod- ship.”8 Presumably, these senior leaders are el is one small step in renewing focus on the members of the Foundation of Five whose JAG Corps’ front line troops. duties and authorities are ever changing. Even though the JAG Corps should This is just a difficult leadership model to eliminate the Foundation of Five as a lead- apply in military organizations where clear ership model, there is value in preserving chains of command and support channels the notion as a means, in some situations, ensure resource efficiencies and assign ap- to get buy-in and build consensus among propriate authority and responsibility. the diverse populations of the enterprise. Probably the most obvious problem is Leaders need advice and counsel, and the use of the word foundation as part of a while this concept may be the method to naming convention to describe the senior do, it should not be codified in JAG Corps members of an organization. Used in this doctrine and promoted as a model to lead context, Webster’s defines a foundation as offices across the Army. TAL “a body or ground upon which something is built up or overlaid.”9 Army JAG Corps of- MAJ Powell is a Future Concepts Officer fices are not built upon the SJA, the deputy within the Legal Center at TJAGLCS in SJA, the legal administrator, the command Charlottesville, Virginia. paralegal, and the designated senior civilian.

68 Army Lawyer • Closing Argument • November/December 2018 Mr. Christopher Rydelek, Chief, Legal Assistance Office, offers legal counsel to a Soldier in the Legal Services Office at Fort Belvoir, Va. (Credit: Chris Tyree) The Army Lawyer is actively seeking article ideas, submissions, and photos.

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