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Military Law Review, Volume 224, Issue 4, 2016

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Military Law Review, Volume 224, Issue 4, 2016 Volume 224 Issue 4 2016 ACADEMIC JOURNAL 27-100-224-4 MILITARY LAW REVIEW ARTICLES UCLEAR EAPONS ARGETING HE VOLUTION OF AW AND OLICY N W T : T E L U.S. P MILITARY LAW REVIEW LAW MILITARY Lieutenant Colonel Theodore T. Richard REDEFINING THE NARRATIVE: WHY CHANGES TO MILITARY RULE OF EVIDENCE 513 REQUIRE THE COURTS TO TREAT THE PSYCHOTHERAPIST-PATIENT PRIVILEGE AS NEARLY ABSOLUTE Major Angel M. Overgaard GENDER ADVISORS IN NATO: SHOULD THE U.S. MILITARY FOLLOW SUIT? Lieutenant Colonel Keirsten H. Kennedy WHY “GREEN DREAMS” SHOULD NOT COME TRUE: KEEPING BOARDS OF CONTRACT AP- PEALS OFF THE SCALES OF JUSTICE Major Elinor J. Kim CONDUCTING UNCONVENTIONAL WARFARE IN COMPLIANCE WITH THE LAW OF ARMED CONFLICT Major Jim Sleesman BAD PAPER: REFORMING THE ARMY REPRIMAND PROCESS VOLUME 224 • 2016 Captain Mark E. Bojan Academic Journal 27-100-224-4 Military Law Review Volume 224 Issue 4 2016 CONTENTS Articles Nuclear Weapons Targeting: The Evolution of Law and U.S. Policy Lieutenant Colonel Theodore T. Richard 862 Redefining the Narrative: Why Changes to Military Rule of Evidence 513 Require Courts to Treat the Psychotherapist-Patient Privilege as Nearly Absolute Major Angel M. Overgaard 979 Gender Advisors in NATO: Should the U.S. Military Follow Suit? Lieutenant Colonel Keirsten H. Kennedy 1052 Why “Green Dreams” Should Not Come True: Keeping Boards of Contract Appeals off the Scales of Justice Major Elinor J. Kim 1073 Conducting Unconventional Warfare in Compliance with the Law of Armed Conflict Major Jim Sleesman 1101 Bad Paper: Reforming the Army Reprimand Process Captain Mark E. Bojan 1150 i Headquarters, Department of the Army, Washington, D.C. Academic Journal No. 27-100-224-4, 2016 Military Law Review Volume 224 Issue 4 Board of Editors Colonel Randall Bagwell Dean, The Judge Advocate General’s School Lieutenant Colonel May Nicholson Chair, Administrative and Civil Law Department Major Laura O’Donnell Director, Professional Communications Program Mr. Sean Lyons Legal Editor Mr. Benjamin Spencer Contributing Editor Captain Vanessa R. Asmus Editor Since its inception in 1958 at The Judge Advocate General’s School, U.S. Army, in Charlottesville, Virginia, the Military Law Review has encouraged a full and frank discussion of legislative, administrative, and judicial principles through a scholarly examination of the law and emerging legal precepts. In support of that mission, the Military Law Review publishes scholarly articles that are relevant to, and materially advance, the practice of law within the military. The Military Law Review does not promulgate official policy. An article’s content is the sole responsibility of that article’s author, and the opinions and conclusions that are reflected in an article are those of the author and do not necessarily reflect the views of the U.S. government, the Department of Defense, the Department of the Army, The Judge Advocate ii General’s Corps, The Judge Advocate General’s Legal Center and School, or any other governmental or non-governmental agency. WEBSITE: The Military Law Review is available at http://www.jagcnet.army.mil/MLR. COPYRIGHT: Unless noted in an article’s title, all articles are works of the United States Government in which no copyright subsists. When copyright is indicated in the title, please contact the Military Law Review at [email protected] for copyright clearance. SUBSCRIPTIONS: Interested parties may purchase private subscriptions from the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402, at (202) 512-1800. An annual subscription is $20 for a domestic subscriber or $28 for an international subscriber. For Army legal offices, including within the Army National Guard and the U.S. Army Reserve, and other federal agencies, inquiries and address- change requests should be communicated to the Military Law Review. Other military services may request distribution through official publication channels. This periodical’s postage is paid at Charlottesville, Virginia, and additional mailing offices. Reprints of published works are not available. POSTMASTER: Send address-change requests to Military Law Review, The Judge Advocate General’s Legal Center and School, U.S. Army, 600 Massie Road, ATTN: ALCS-ADA-P, Charlottesville, Virginia 22903-1781. CITATION: This issue of the Military Law Review may be cited as 224 MIL. L. REV. page number (2016). SUBMISSION OF WORKS: The Military Law Review accepts submissions of works from military and civilian authors. Any work that is submitted for publication will be evaluated by the Military Law Review’s Board of Editors. In determining whether to publish a work, the Board considers the work in light of the Military Law Review’s mission and evaluates the work’s argument, research, and style. No minimum or maximum length requirement exists. Footnotes should be numbered consecutively from the beginning to the end of the writing, not section by section. Citations must conform to The Bluebook: A Uniform iii System of Citation (20th ed. 2015) and to the Military Citation Guide (TJAGLCS 21st ed. 2016). A submitted work should include biographical data concerning the author or authors. This information should consist of branch of service, duty title, present and prior positions or duty assignments, all degrees (with names of granting schools and years received), and previous publications. If submitting a lecture or a paper prepared in partial fulfillment of degree requirements, the author should include the date and place of delivery of the lecture or the date and source of the degree. All submissions must be in Microsoft Word format and should be sent to the Editor, Military Law Review, at usarmy.pentagon.hqda- [email protected]. If electronic mail is not available, please forward the submission, double-spaced, to the Military Law Review, Administrative and Civil Law Department, The Judge Advocate General’s Legal Center and School, U.S. Army, 600 Massie Road, Charlottesville, Virginia 22903-1781. iv INDIVIDUAL PAID SUBSCRIPTIONS TO THE MILITARY LAW REVIEW The Government Printing Office offers a paid subscription service to the Military Law Review. To receive an annual individual paid subscription (4 issues), complete and return the order form on the next page. RENEWALS OF PAID SUBSCRIPTIONS: You can determine when your subscription will expire by looking at your mailing label. Check the number that follows “ISSDUE” on the top line of the mailing label as shown in this example: When this digit is 7, you will be sent a renewal notice. MILR SMITH212J ISSDUE007 R1 JOHN SMITH 212 BROADWAY STREET SAN DIEGO, CA 92101 The numbers following ISSDUE indicate how many issues remain in the subscription. For example, ISSDUE001 indicates a subscriber will receive one more issue. When the number reads ISSDUE000, you have received your last issue and you must renew. To avoid a lapse in your subscription, promptly return the renewal notice with payment to the Superintendent of Documents. If your subscription service is discontinued, simply send your mailing label from any issue to the Superintendent of Documents with the proper remittance and your subscription will be reinstated. INQUIRIES AND CHANGE OF ADDRESS INFORMATION: The Superintendent of Documents, and not the Editors of the Military Law Review, is solely responsible for the individual paid subscription service. For inquires and change of address for individual paid subscriptions, fax your mailing label and new address to 202-512-2250, or send your mailing label and new address to the following address: United States Government Printing Office Superintendent of Documents ATTN: Chief, Mail List Branch Mail Stop: SSOM Washington, DC 20402 v MILITARY LAW REVIEW Volume 224 Issue 4 NUCLEAR WEAPONS TARGETING: THE EVOLUTION OF LAW AND U.S. POLICY LIEUTENANT COLONEL THEODORE T. RICHARD* The world will note that the first atomic bomb was dropped on Hiroshima, a military base. That was because we wished in this first attack to avoid, insofar as possible, the killing of civilians. But that attack is only a warning of things to come. If Japan does not surrender, bombs will have to be dropped on her war industries and, unfortunately, thousands of civilian lives will be lost. I urge Japanese civilians to leave industrial cities immediately, and save themselves from destruction.1 I. Introduction Hiroshima was not a military base, but a city in Japan, when it was struck with the first ever military atomic bomb strike at 8:15 A.M. on August 6, 1945. President Truman’s diary entry from July 25, 1945, recorded his recollection of a conversation that he had with Secretary of War Henry Stimson the previous day during which the President instructed Stimson to use the atomic bomb “so that military objectives and soldiers and sailors are the target and not women and children.”2 He also wrote Lieutenant Colonel Theodore Richard is a United States Air Force Judge Advocate and is currently serving as the Deputy Staff Judge Advocate at United States Strategic Command. The author thanks Professor Sean Watts, Dr. Jerome Martin and Dr. Daniel Harrington for their insights and guidance into law and history, respectively. The author 863 MILITARY LAW REVIEW [Vol. 224 that he and his Secretary of War were agreed that “[t]he target will be a purely military one.”3 Nothing else in the historical record appears to corroborate President Truman’s recollection of events. President Truman’s classification of the bombing as a purely military objective has caused
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