The nature of war is never [going to] change. But the character of war is changing before our eyes—with the introduction of a lot of technology, a lot of societal changes with urbanization and a wide variety of other factors.1
Imagine you are a brigade judge advocate with a brigade combat team (BCT), forward-deployed during a future conflict.2 Your BCT is the battlespace owner in a foreign country, engaged in active combat operations in a densely populated city against a combination of non-state actors and mercenaries from a private military company in the employ of a near-peer competitor.3 Your BCT’s order of battle includes both manned and unmanned combat vehicles, unmanned aerial vehicles from your headquarters’ reconnaissance platoon, ultrasonic systems, and micro-drones at the squad and platoon level. Your BCT also has its own organic tactical offensive cyber capability that has the ability to shut down every utility in the city. Because of a tactical cyber-attack against the theater’s joint task force, you are not able to communicate with your higher-headquarters’ Office of the Staff Judge Advocate (OSJA) via phone or email. The only way you have to communicate with the OSJA is by radio from your BCT’s command post, which is ten miles away from your forward line of troops. Your headquarters is taking indirect fire from non-state actors and is actively defending against a local cyber-attack of its own, resulting in highly-degraded tactical network capability. Even while enemy mortar rounds begin to land close to your command post, an integrated team of software and design engineers from the military and the private sector in your S2 section are developing and implementing new defensive-cyber code to stop the enemy cyber-attack. You have to provide legal advice on lethal and non-lethal targeting and a key acquisition. You are alone and you have to provide principled legal counsel at the speed of operations.
Fortunately, you came prepared for this scenario. You attended at least one Decisive Action Training Environment training exercise, and you are already comfortable operating in an analog setting. You deployed with an off-network Operational Law Kit-Expeditionary from the Center for Law and Military Operations, you have printed copies of key resources you will need to conduct multi-domain operations (MDO), including the Operational Law Handbook,4 the Law of Armed Conflict Documentary Supplement,5 Army Doctrine Publication (ADP) 3-0 (Operations),6 the new Field Manual (FM) 6-27 (Commander’s Handbook on the Law of Land Warfare),7 Joint Publication 3-60 (Joint Targeting),8 and others.
You have also trained. You listened closely to your instructors at the graduate course at The Judge Advocate General’s Legal Center and School about national security law, administrative law, contract and fiscal law, and criminal law, and you are prepared to conduct tactical and operational legal operations within all four core competencies. You trained your legal staff and trained with the brigade staff prior to deployment, and you were fully integrated in the planning of all your operations. You are an expert in at least one area of law, competent in all core legal functions, and you understand the capabilities and needs of your brigade, which includes understanding its systems, processes, and weapon systems.
This is one of many scenarios the Future Concepts Directorate (FCD) envisions when researching the future operating environment9 for the Judge Advocate General’s (JAG) Corps. The FCD is the JAG Corps’s think tank and is one of four directorates of the Judge Advocate General’s Legal Center.10 Its mission is to serve as the JAG Corps’s subject matter expert on the application of the law to future conflict by assessing the legal requirements of the future operational environment. It also reviews Army doctrine on behalf of the JAG Corps and provides the intellectual foundation and disciplined approach to design, develop, and field a JAG Corps that is ready for future operations.11
The FCD operates along three primary lines of effort: future conflict, doctrine, and strategic initiatives.12 First, it seeks to be the premier organization within the U.S. government on the application of the law to future conflict. The FCD thinks of this broadly as applying the law of armed conflict to the future operational environment, or law of armed conflict-future. To that end, FCD partners and engages with any organization thinking about technology and its applications on the future battlefield. Second, the FCD provides timely, ethical, responsive, and purposeful support and analysis to military doctrine development organizations in all branches of the Army, the joint force, and the multinational force. Third, the FCD provides support to the JAG Corps’s strategic initiatives in order to prepare its legal professionals to support future MDO.13
Despite being a think tank and located far from the edge of battle, one of the FCD’s goals is to empower leaders across the JAG Corps by providing them with information and subject-matter to prepare them for future MDO. In the near future, the FCD will field several initiatives to assist in this endeavor. First, a redesigned website will include a doctrine library with key pieces of doctrine that tactical and operational14 judge advocates (JAs) will need in order to integrate with staffs and plan operations from beginning to end. Second, the FCD website will contain a repository of scholarly articles addressing the legal challenges for future MDO. Third, the FCD will publish frequent blog posts written by JAs and others. Fourth, the FCD is producing the JAG Corps’s very first podcast entitled Battlefield Next15 that will feature doctrinal concepts, information on strategic initiatives, and interviews with military leaders, scholars, and members of industry.
Substantive topics intended to be tackled on the website and podcast will be the use of artificial intelligence, offensive cyber operations, space operations including ground operations, autonomous weapons, ultrasonic effects, low-yield tactical nuclear devices, emerging biological threats, deep fakes and their dangers to national security, private special operations-capable organizations in light of Syria and Crimea, and effects of technology on civilian populations on future battlefields. Although there is much discussion about the use of emerging technology on the battlefield, many future conflicts will still bear similar characteristics to present-day conflicts in places like Syria, Libya, and Yemen. Accordingly, the FCD will continue to explore chronic issues in warfare that will likely remain issues in the future, including the use of explosive ordnance in densely-populated urban areas, the continuing practice of targeting medical personnel and facilities, and accountability mechanisms for violations of the law of war.
The FCD is also the JAG Corps’s doctrine development organization. Doctrine is a body of knowledge unique to military service and plays a critical role in planning and conducting military operations.16 Joint doctrine contains “fundamental principles that guide the employment of United States military forces in coordinated action toward a common objective and may include terms, tactics, techniques, and procedures.”17 Army doctrine contain “fundamental principles, with supporting tactics, techniques, procedures, and terms and symbols, used for the conduct of operations and as a guide for actions of operating forces, and elements of the institutional force that directly support operations in support of national objectives.”18 Army doctrine is contained in Army Doctrine Publications found on the Army Publishing Directorate’s website.19
Doctrine should not be confused with other elements of the Army’s body of knowledge. Regulations address the administration of the Army. For details on specific training tasks and how to train those tasks, the Army uses training publications.20 For details on using specific pieces of equipment, the Army uses technical manuals.21 Doctrine, on the other hand, is guidance on how the U.S. Army employs and supports land power.22 Think of it as the common language of our military profession and those deliberate processes that help us conduct business. Although authoritative, doctrine is not necessarily prescriptive, and requires sound judgment in its employment.23 Unlike a regulation, at times, forces may deviate from doctrine for various reasons.
The FCD reviews all Army doctrine from all branches for legality. As a branch of the Army, the JAG Corps has its own doctrine contained in FM 1-04, Legal Support to Operations, and FM 6-27, The Commander’s Handbook on the Law of Land Warfare. The FCD is the proponent of a new version of FM 1-04 that is currently in Army-wide staffing with an expected publication in 2020. The most recent published version of FM 1-04 is from 18 March 2013, and contains language and concepts that have become, or may quickly become, outdated, as the Army continues to innovate and focus on peer-to-peer MDO, while remembering lessons learned from decades of fighting counter-insurgencies.24
The new FM 1-04 accounts for the evolution of the term “international and operational law” into the new umbrella concept of “national security law.”25 With the changing nature of warfare, the JAG Corps recognized that it requires expertise in several different emerging areas to account for new capabilities of the joint force. National security law, along with administrative and civil law, contract and fiscal law, and military justice, is one of the four legal functions supporting the Army.26 Use of the term “national security law” recognizes that JAs need expertise in constitutional authority, cyberspace law, intelligence law, and support to special operations—all of which are becoming increasingly complex as we integrate new technology and capabilities. International and operational law remain areas of practice under national security law in the new FM 1-04. The new FM 1-04 will also account for changes to the Uniform Code of Military Justice from the Military Justice Act of 2016 and Military Justice Redesign.27 The new FM 1-04 will contain revised roles for the trial counsel and guidance on the intended duties of the commander’s military justice advisor.
Additionally, the FCD assisted in the staffing and publication of the new FM 6-27, The Commander’s Handbook on the Law of Land Warfare, a multi-service piece of doctrine shared with the United States Marine Corps.28 The predecessor doctrinal publication of FM 6-27 was FM 27-10,29 which had not been updated since 18 July 1956. Much has changed in international law and the way that the United States interprets international law since then. Field Manual 6-27 represents a complete re-write of FM 27-10 and incorporates revisions made to the Department of Defense Law of War Manual, dated June 2015 and updated May 2016.30 Further, FM 6-27 is an important document to military practice, not only for its contemporary articulations of international law, but also because it reinforces the Department of Defense Law of War Manual, which is the United States’ interpretation of the law war. Governmental interpretations of the law are authoritative, in contrast to interpretations made by non-governmental organizations and academia.
Where Is Strategic Initiative?
The fictional scenario at the beginning of this article may seem to describe the “hardest of the hard” with respect to tactical legal advising in MDO. Nevertheless, future operations are increasingly complex, and future JAs will need to operate accurately with deliberate speed and be fully integrated with their non-JA staff counterparts. They will need to be smart enough and confident enough to operate in a decentralized formation, while at times operating independently from traditional reach-back resources. With mindful envisioning of the future operating environment and training, Army JAs will be prepared to fight on “Battlefield Next.” The FCD aspires to support the JAG Corps with ensuring the right lawyers with the right skills and attributes are advising at the right echelons, and our hope is that leaders will be able to use the FCD resources to develop their own training programs. TAL
1. Comments by then-Army Chief of Staff, General Mark A. Milley at the Association of the United States Army annual convention in October 2017. See State of Defense, Defense One, https://www.defenseone.com/feature/state-defense-2018/ (last visited Jan. 22, 2020).
2. The brigade combat team (BCT) “is the Army’s primary combined arms, close combat force.” See U.S. Dep’t of Army, Field Manual 3-96, Brigade Combat Team intro., at ch.1 (8 Oct. 2015). Brigade combat teams “conduct decisive action, which is the continuous, simultaneous combinations of offensive, defensive, and stability tasks.” Id.
3. Private military companies (PMCs) are private business entities that provide military or security services, and often supplement official military formations. Int’l Comm. of the Red Cross, The Montreux Document: On Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict 9 (Aug. 2009). One of the more well-known PMCs in recent events is “ChVK Vagner,” also known as “Wagner Group,” a Russian paramilitary organization operating in Syria and Ukraine. Laurence Peter, Syria War: Who are Russia’s Shadowy Wagner Mercenaries? BBC News (Feb. 23, 2019), https://www.bbc.com/news/world-europe-43167697. Although controversial, one of the political advantages of using a PMC is the non-attribution of activities to state governments. Id.
4. Int’l & Operational Law Dep’t, The Judge Advocate Gen.’s Legal Ctr. & Sch., U.S. Army, Operational Law Handbook (2018).
5. Int’l & Operational Law Dep’t, The Judge Advocate Gen.’s Legal Ctr. & Sch., U.S. Army, Law of Armed Conflict Documentary Supplement (2018).
6. U.S. Dep’t of Army, Doctrine Pub. 3-0, Operations (31 July 2019) [hereinafter ADP 3-0].
7. U.S. Dep’t of Army, Field Manual 6-27/U.S. Marine Corps, Techniques Publication 11-10C, The Commander’s Handbook on the Law of Land Warfare (7 Aug. 2019).
8. Joint Chiefs of Staff, Joint Pub. 3-60, Joint Targeting (28 Sept. 2018).
9. An operating environment is “the composite of the conditions, circumstances, and influences that affect employment of capabilities and bear on the decisions of the commander.” Joint Chiefs of Staff, Joint Pub. 3-0, Joint Operations IV-1 (17 Jan. 2017) (C1, 22 Oct. 2018).
10. The mission of the Future Concepts Directorate is to serve as the Judge Advocate General’s (JAG) Corps’s subject matter expert on the application of the law to future conflict by assessing the legal requirements of the future operational environment, to propose and review Army doctrine, and to provide an intellectual foundation and disciplined approach to design, develop, and field a globally responsive future JAG Corps. See Future Concepts Directorate (FCD), The Judge Advocate Legal Ctr. & Sch., https://tjaglcspublic.army.mil/fcd (last visited Jan. 22, 2020).
13. Operations conducted across multiple domains are known at multi-domain operations, or MDO. U.S. Dep’t of Army Training and Doctrine Command, Pam. 525-3-1 glossary (6 Dec. 2018). To date, MDO is not yet a doctrinal term, but rather represents an operational and strategic reality based on Russian and Chinese anti-access and area denial systems. Id. at vii. The MDO concept will drive future doctrine development. Id. at iii. These domains include land, air, maritime, space, and cyberspace. Id. For a discussion on how the Army participates as part of the joint force during operations across multiple domains, see ADP 3-0, supra note 6, para. 1-37.
14. There are three “levels” of warfare: tactical, operational, and strategic. ADP 3-0, supra note 6, para. 1-2. The tactical level refers to the use and arrangement of combat forces in relation to one another, generally at the brigade level and below, although sometimes at the division level. Id. The operational level links tactical forces with strategic objectives and generally focuses on the design, planning, and the conduction of operations. Id. This ordinarily occurs at the division level and higher. Id.
15. The Battlefield Next podcast can be found on Apple Podcasts, Stitcher, Spotify, and other popular podcast applications.
16. See U.S. Dep’t of Army, Doctrine Pub. 1-01, Doctrine Primer para. 1-1 (31 July 2019) [hereinafter ADP 1-01].
17. See Chairman, Joint Chiefs of Staff, Instr. 5120.02D, Joint Doctrine Development System (5 Jan. 2015).
18. ADP 1-01, supra note 16, para. 1-5.
19. See Army Publishing Directorate, https://armypubs.army.mil/ (last visited Jan. 22, 2020).
20. ADP 1-01, supra note 16, para. 1-2.
22. Id. para. 1-1.
23. Id. para. 1-5.
24. See id. para. 1-12 (one of doctrine’s roles is to capture best practices and lessons learned).
25. U.S. Dep’t of Army, Field Manual 1-04, Legal Support to the Operational Army para. 4-36 (forthcoming 2020).
26. There are also two legal functions supporting Soldiers and Families.
27. Military Justice Act of 2016, Pub. L. No. 114-328, 130 Stat. 2894 (2016).
28. Field Manual 6-27 is an example of multi-service doctrine. Multi-service doctrine “contains principles, terms, [tactics, techniques, and procedures] used and approved by the forces of two or more Services.” ADP 1-01, supra note 16, para. 2-15.
29. U.S. Dep’t of Army, Pam. 27-10, The Law of Land Warfare (July 1956).
30. U.S. Dep’t of Def., DoD Law of War manual (May 2016).