A Day in the Life
In today’s combat environment, it is rare that a fellow military member would wonder about the need for a lawyer supporting a combat mission. Our intent is to show how, during a single twenty-four-hour period, military lawyers have become integral with modern combat deployments.
We constitute just four of the fifty-eight lawyers—U.S. and Coalition—currently serving in the Combined Joint Operations Area—Afghanistan, or CJOA-A. All support, at some level, both the NATO Resolute Support (RS) Mission and the U.S. Operation Freedom’s Sentinel (OFS). While we each deployed from different home units, we all are assigned to United States Forces-Afghanistan (USFOR-A). Our Staff Judge Advocate (SJA) is COL Eric Young, who advises the four-star general USFOR-A Commander. He is also dual-hatted as the NATO Senior Legal Advisor (LEGAD), advising the NATO RS Commander.
Between the four of us, we represent the Bars of California, Georgia, Texas, and Virginia, as well as several federal courts. We received our law training at Loyola Law School in Los Angeles, University of Georgia, Tulane, and Washington and Lee. Three of us were directly commissioned into the JAG Corps, two active duty and one U.S. Army Reserves, with the fourth receiving his commission from West Point. Two of us have prior military service: one serving for fourteen years in the U.S. Air Force and Air National Guard as a C-130/HC-130P crewmember, the other serving for three and a half years as a Medical Service Corps Officer. Three of us are married with a combined total of four children. Three of us are on our first deployment as judge advocates, and for two of us this is our first combat deployment.
While all of us perform duties outside our assigned portfolios, MAJ Eddie Gonzalez is assigned as Chief of Intelligence Law in the USFOR-A/RS legal office in Kabul; CPT Kyle Hoffmann is an Operational Law Attorney with the Special Operations Joint Task Force—Afghanistan (SOJTF-A), based out of Bagram Airfield; MAJ Ernie Reguly is the Command Judge Advocate for the Train, Advise, and Assist Command—South (TAAC-S) at Kandahar Airfield; and CPT Jack Gibson is an Operational Law Attorney in the USFOR-A/RS legal office at Bagram Airfield.
As combat deployments go, there are no off days. However, Mondays somehow still carry the same feel of the start of a new week as they do stateside. Interestingly, the day we chose for this article ultimately had several issues and incidents that crossed the path of more than one of us, as readers will discover. This was our “day in the life” in Afghanistan—Monday, 30 April 2018.
Chief of Intelligence Law
MAJ Eddie Gonzalez’s day began like most others by attending the daily morning intelligence brief to the USFOR-A J2/NATO RS Deputy Chief of Staff—Intelligence (a Rear Admiral, U.S. Navy). MAJ Gonzalez does not have a speaking role during this brief, he merely attends for situational awareness or to respond to any legal questions based on updates provided. The first half of this morning’s update progressed as normal, but half way through, a loud boom silenced the room and then the silence was broken by a blaring alarm notifying the USFOR-A / NATO RS Headquarters (RS HQ) that the camp was immediately locked down. The lockdown resulted from a personnel borne improvised explosive device (PBIED) detonation approximately 100 meters from the camp’s outer fence. The assessed target was an Afghan National Defense Service checkpoint—one of the many checkpoints charged with keeping Afghans and Coalition Forces, like those at RS HQ, within the Kabul green zone safe.
The incident triggered MAJ Gonzalez to depart the intelligence brief early and head to the RS HQ Strategic Operations Center (SOC). Along with his Intelligence Law portfolio, in the latter half of his yearlong deployment, MAJ Gonzalez also assumed Operational Law portfolio duties. One of those duties was to immediately seek information on significant incidents like that morning’s explosion and advise the SOC Director regarding force protection matters, as well as keeping the operational law attorneys at Bagram informed. His presence in the SOC was also to be available should the incident involve U.S. or Coalition Forces, whether as a direct result of the attack or in a base defense response. MAJ Gonzalez quickly learned that this incident was fully in the hands of Afghan authorities, so he would simply be in an observer capacity. However, within an hour of the first PBIED, a second PBIED was detonated within a few hundred yards from the first. This second explosion was further from RS HQ, but tragically it was in the middle of dozens of local journalist who had gathered to report on the first suicide attack.
While in the SOC, MAJ Gonzalez received word of a second significant incident in Afghanistan. A U.S. Soldier with the SOJTF-A had just been killed during a combat operation and another was severely wounded. MAJ Gonzalez reported the information to the SJA and coordinated with the operational law attorneys at Bagram. From his vantage at RS HQ, he was ultimately limited to supporting the subordinate legal staff at SOJTF-A as they were involved supporting this engagement and making sure the higher headquarters legal office at U.S. Central Command (USCENTCOM) was aware.
By a little after 1000, just three hours into his morning, MAJ Gonzalez made his way to his desk for the first time that day. He had just a few minutes to check emails before attending the weekly SVTC involving the USFOR-A OSJA / RS LEGAD office and all of the subordinate legal offices in the CJOA-A. In all, fifteen different offices join in the meeting, with multiple attorneys and paralegals attending at each location. The SJA, COL Young, chairs the meeting and all outstations provide a weekly update on anything relevant for the group. It is an opportunity for everyone to get at least a brief weekly understanding of legal issues impacting the various commands across Afghanistan.
After the SVTC ended at 1100, MAJ Gonzalez headed to the Combined Joint Intelligence Operations Center (CJIOC) to follow up with a request from a Signals Intelligence (SIGINT) analyst who wanted advice on how to best present, from a legal perspective, several products that support target validation nomination packets. MAJ Gonzalez is one of the attorneys that advises the USFOR-A Target Validation Authority (TVA). The TVA reviews proposed targets for possible future kinetic engagement. The judge advocate’s role on the board is to advise the validation authority on whether the proposed target complies with the Laws of Armed Conflict (LOAC) and Rules of Engagement (ROE). That these CJIOC analysts reached out for legal support in advance was a welcome opportunity for MAJ Gonzalez to help shape targeting products on which he would eventually advise the TVA. The conversation was a fruitful one, and MAJ Gonzalez left hopeful that his job was made a little easier by these forward leaning intelligence analysts.
On his way out of the CJIOC, MAJ Gonzalez was stopped by a Joint Targeting Cell analyst, who wanted to provide him with a pre-look at one of the target packets that would be presented at that day’s TVB. MAJ Gonzalez noticed a discrepancy in some of the imaging supporting the nomination. Several Geospatial Intelligence (GEOINT) analysts were brought into the discussion, and through a collaborative effort, the cause was identified and resolved. Again, the efforts of the analysts to reach out early for legal support saved them from having that discussion in front of the two general officers during the TVB.
After lunch, MAJ Gonzalez called the legal office at Bagram to speak to Capt Mitch Altman. Capt Altman is a Marine Corps judge advocate and the USFOR-A Chief of Operational Law. MAJ Gonzalez and Capt Altman share the TVB advising duties, so MAJ Gonzalez wanted to make sure Capt Altman was informed of the two separate targeting conversations MAJ Gonzalez had prior to lunch with the intelligence analysts. They also discussed the two Kabul city PBIED attacks from that morning and the U.S. Soldier who had been killed in action. Although neither the Bagram nor Kabul legal offices had a direct role in responding to the attacks, keeping each other informed helps to provide accurate and timely advice should a response become necessary.
Following the conversation with Capt Altman, MAJ Gonzalez had a short window before a scheduled brief on the RS and OFS ROE to the Personal Security Detachment for the incoming 9th Air and Space Expeditionary Task Force—Afghanistan (9th AETF-A). A more detailed ROE brief would follow shortly after he assumes command. During the time before he provided this ROE briefing, MAJ Gonzalez reviewed a proposed Military Deception (MILDEC) Concept of Operations (CONOP) for the USFOR-A J-39. As there was not enough time to draft a written review, MAJ Gonzalez gave it an initial read and was prepared to contact the CONOP’s drafting action officer to get clarification or suggest edits. Luckily, the CONOP was relatively straightforward and no phone call was necessary.
MAJ Gonzalez then departed the OSJA and walked to the 9th AETF-A area to provide the requested ROE brief. As he had provided similar briefings for over ten months, this ROE brief went relatively smoothly. The recipients were attentive and asked plenty of thoughtful questions—about all you can ask for an audience required to attend and receive these mandatory briefings. Once complete, MAJ Gonzalez returned to his office at 1500 to make final preparations for the TVB he was about to attend. He reviewed the proposed target packets that he had earlier discussed with the JIOC intelligence analysts and Capt Altman one last time, then he made his way to the TVB. During the TVB, the attorney on the board will focus on whether the proposed targets are valid military objectives under LOAC and ROE. Thanks in part to the changes the JIOC intelligence analysts made earlier in the day, the TVB went without incident and all proposed targets were approved. The TVB lasted about an hour, then MAJ Gonzalez met up with several other members of the OSJA for dinner at the RS dining facility.
After dinner, MAJ Gonzalez called the USCENTCOM Chief of Intelligence Law. USCENTCOM is USFOR-A’s higher headquarters and is nine and a half hours behind Kabul, so most calls to counterparts in the U.S. occur in the evening. This call was driven by a discussion with CPT Hoffmann at SOJTF-A. CPT Hoffmann was dealing with an information sharing issue where guidance from CENTCOM was conflicting with guidance he was receiving internally at SOJTF-A. Because of the subject matter, MAJ Gonzalez offered to call his counterpart at USCENTCOM to clear up the discrepancy. A brief discussion on authorities gave MAJ Gonzalez the information he believed CPT Hoffmann was seeking; he relayed the information back to the SOJTF-A legal office and crossed another task off his list.
MAJ Gonzalez’s day ended with reviewing several documents that had arrived on his desk early in the day. Because of the operational tempo, routine tasks like reviewing drafts of U.S. or NATO RS Standard Operating Procedures, and drafting legal reviews of investigations or MILDEC products, are usually reserved for the late evenings when phone calls and meetings are fewer and far between. After completing enough tasks to feel that tomorrow’s leftovers would be manageable, MAJ Gonzalez was able to get on to his favorite part of his day, video calling home to his wife Megan and watching his two boys, Joey and Luke, play for a little while without a care in the world.
Special Operations Operational Law Attorney
At SOJTF-A, the Joint Operations Center (JOC) operates twenty-four hours per day, seven days per week—so the operational law judge advocates work in twelve-hour shifts. As one of nine judge advocates serving in a special operations legal advisor billet in Afghanistan, CPT Kyle Hoffmann takes the “day” shift, covering operational law requirements from noon until midnight. However, by 1030 on a daily basis SOJTF-A forces are usually kinetic somewhere in Afghanistan, so CPT Hoffmann arrives early to review the previous night’s operations, the upcoming day’s operational priorities, and get up to speed on what has occurred in the few hours since he last left the JOC. Today, since his last shift ended, he learns that one U.S. Soldier supporting the SOJTF-A was killed and one severely wounded during a combat operation with Afghan special operations forces, and two ISIS-K insurgents wearing suicide vests had detonated themselves, killing scores of civilians.
All U.S. forces in Afghanistan are authorized to defend themselves and their unit, so judge advocates always ensure they understand when and how U.S. forces can use indirect or air delivered strikes against enemy forces located in built-up or populated areas. In this case, the U.S. and Afghan forces were taking effective small arms fire from Taliban insurgents located in adjacent buildings, and there were no assessed civilians anywhere near the structure. Both CPT Hoffmann and the subordinate Task Force judge advocate believed the air strikes were appropriate, advised their commands as such, and the buildings were destroyed.
During a break for a brief lunch, CPT Hoffmann received word that the Taliban exploded a vehicle-borne improvised explosive device (VBIED) outside of Kandahar airfield in TAAC-S’s area of operations. Later reporting indicated eleven Afghan children were killed in that attack.
After lunch, CPT Hoffmann conducted a positive hand-off with the “night” operational law attorney and officially took over the “Op Law” seat in the JOC. The JOC is comprised of four rows of tiered seating facing CineMassive screens displaying information from across the country. The operational law judge advocate has a permanent desk in the JOC, seated next to the intelligence officer for current operations, the chief of operations, and the fires officer. This team, along with the Deputy Director for Operations and the Director for Current Operations, oversees the day-to-day activities of Special Operations Forces (SOF) across Afghanistan.
Following the handoff, CPT Hoffmann met for an hour with the Director of Psychological Operations (PSYOP) to discuss whether their upcoming operations were within the current authorities. These discussions are steeped in military history, as the psychological operations officer tries to use historic precedent to justify his plans.
Once the PSYOP director left, a warrant officer knocked on the door requesting a power of attorney so his wife in Florida could get their son a military dependent identification card. In between his operational duties, CPT Hoffmann wrote the power of attorney and notarized it for the warrant officer.
By early afternoon, a CONOP arrives in CPT Hoffmann’s inbox for legal review. Each time a SOF unit conducts an operation, a judge advocate reviews the intelligence to ensure it is current, and reviews the scheme of maneuver to ensure that Coalition Forces (CF) are aware of potential protected objects and places during the operation and plan to act appropriately, and that the CF are authorized to conduct this particular operation. This CONOP involved a helicopter assault force clearing a known ISIS-K stronghold, with Afghan military forces leading the effort.
After the CONOP review, there are two lingering emails requiring immediate attention. The first is a request by the SOJTF-A Director of Future Operations asking CPT Hoffmann to review a Fragmentary Order prior to the CG signing it. This is more of an editing assignment than a legal one, but the staff trusts their judge advocates, so these quick tasks are not uncommon.
The second is an email from a Coalition Special Forces commander asking whether an operation he would like to conduct is allowed by his country’s national caveats. Special Operations Joint Task Force-Afghanistan is part of a “dual-hatted” command: it also serves as the NATO Special Operations Component Command—Afghanistan (NSOCC-A). As such, the judge advocates must be well-versed in both U.S. and NATO authorities. Each of the RS troop contributing countries release their respective “national caveats” to the overall RS mission (a list of what they are willing and unwilling to do). Each time an NSOCC-A unit plans an operation, the plan must be considered against the respective national caveats. Although the particular Coalition country of which the Coalition SOF commander was inquiring has a caveat related to this issue, they are still authorized to conduct the operation and CPT Hoffmann advises as such.
By mid-afternoon a kinetic strike request arrives on CPT Hoffmann’s desk. CPT Hoffmann quickly reviews the request, there are no LOAC or ROE concerns, so he forwards his review to the commander.
At this point in the late afternoon, the U.S. Soldier who had been killed in action that morning and the wounded service member, were medically evacuated from the firefight. To do so, the supporting U.S. aircraft and ground force commander wanted to deny the enemy the ability to fire on the approaching MEDEVAC helicopter by firing at the ground near the enemy’s location, known as a terrain denial strike, as they were still present in the village. Due to the highly restrictive ROE and concerns for civilian casualties and damage to civilian property, such strikes require judge advocate review. Quickly assessing the tactical situation, CPT Hoffmann reviewed the plan and found it legally sufficient.
Since there are two U.S. Army attorneys billeted as operational law attorneys for NSOCC-A/SOJTF-A, they split other judge advocate responsibilities—CPT Hoffmann is also the Chief of Administrative Law, and his counterpart is the Chief of Military Justice. Once per week, CPT Hoffmann provides an update on administrative investigations to the USFOR-A higher headquarters. Thankfully, there was recent progress on a lingering investigation into a Coalition Force member’s death, and two other investigations were approved by the SOJTF-A commander, so CPT Hoffmann submits those updates to the USFOR-A administrative law attorneys.
Nearing dinner time, CPT Hoffmann—who attended a class to become a military mail handler—retrieves the SOJTF-A SJA’s mail from the mailroom. It is, without doubt, his most important duty.
The NSOCC-A/SOJTF-A judge advocates—the U.S. Army SJA, the on-shift U.S. Army operational law attorney, and the U.S. Air Force fiscal law attorney—eat dinner together every night at 1800. Eating a family-style dinner with the SJA and the two on-shift captains provides a semblance of normalcy.
Following dinner, the Special Forces team that suffered the U.S. Soldier killed in action is in the process of being exfiltrated from the objective area when one of the subordinate special operations units calls to discuss whether a structure from which U.S. helicopters had received effective fire earlier in the morning could be destroyed. In the end, the Special Forces team is able to be successfully recovered from the objective location without the Afghan building being destroyed.
CPT Hoffmann then discussed an ongoing issue with the Chief of Intelligence Law at USFOR-A, MAJ Eddie Gonzalez, to determine whether one of the SOJTF-A’s units could share a PSYOP product with an Intelligence Community organization. MAJ Gonzalez had previously discussed the question with USCENTCOM, which allowed both he and CPT Hoffmann to collectively determine it was legal to do so. CPT Hoffmann passed this information on to the requesting intelligence officer.
As CPT Hoffmann also serves as the SOJTF-A Chief of Administrative Law, he is then required to draft an appointment memorandum for the required investigation into today’s combat death. This is the sixth death investigation appointment memorandum that he has written in his ten months in Afghanistan. He completes it, and sends it to the SOJTF-A SJA for his review.
Once per month, the operational law attorneys at NSOCC-A/SOJTF-A conduct an informational brief to the SOJTF-A Joint Operations Center (JOC) personnel on the current U.S. and NATO operational authorities. This is intended to ensure everyone who works on operations understands and is current on the authorities and ROE. Today’s briefing covers the RS ROE and NATO self-defense.
At 2100, the rest of the “day” shift personnel change over with the “night” shift, and there are few legal requirements as SOJTF-A waits for night operations to begin. CPT Hoffmann passes the next few hours researching and writing a “white paper” on the difference between covert action and traditional military activities to aid the command with operational decision-making.
At midnight, CPT Hoffmann’s day ends as the night shift judge advocate arrives to sit in the JOC until the morning, until CPT Hoffmann’s return.
Command Judge Advocate
The morning started for MAJ Reguly at around 0700 with the best part of every day, a video call to his wife Cecilia and children, Isabel and Anthony, to talk about how their day had gone and to say goodnight before they went to bed. At 0830, he walked to the TAAC-S compound and started reviewing emails that had come in overnight. The morning’s emails included one from his regular National Guard office at the division regarding a judge advocate’s annual evaluation. As an Active Guard and Reserve (AGR) member in the California Army National Guard, MAJ Reguly is the active duty Command Judge Advocate (CJA) for his installation, and the single full-time judge advocate at the division. Active Guard and Reserves are part of the organizational personnel structure that operate National Guard units between weekend drills. In Afghanistan, like at home, MAJ Reguly’s function as the CJA is to serve as the legal advisor to the division commander. However, some of the subjects that he advises on in Afghanistan are quite different.
After addressing the Soldier’s evaluation issue, MAJ Reguly moved to addressing the rest of his emails, as well as reviewing the TAAC-S situation report (SITREP) from the night prior and the daily Combined Joint Operations Center (CJOC) update. Once finished, he reviewed an updated Information Operations (IO) CONOP before it was time for the weekly LEGAD SVTC at 1030, which is attended by all U.S. and Coalition LEGAD offices throughout Afghanistan. Following the SVTC, MAJ Reguly’s office held a quick staff meeting since it is one of the few times during the week that the five attorneys and one paralegal that make up the TAAC-S legal office are together at the same time. Three of the attorneys work in different locations on TAAC-S. The OPLAW attorney, CPT Frank Bittar, works in the CJOC, and the Police Advising Team (PAT) and Military Advising Team (MAT) advisors, CPTs Donato Clay and Julian Kisner respectively, work in the main headquarters building with their respective advising teams.
At 1120, following the office staff meeting, MAJ Reguly contacted the Commanding General’s (CG) aide to confirm time on his calendar to brief the findings of an Army Regulation (AR) 15-6 investigation involving officer misconduct and the appointment of an investigating officer in another matter. After the phone call, he went to the CJ39 to discuss questions regarding the IO CONOP he had reviewed earlier. With the answers in hand, MAJ Reguly went back to his office, completed the CONOP legal review and sent it to the CJ39. While drafting the legal review, MAJ John Olson, the 2nd BCT, 4th Infantry Division judge advocate returned to the office from briefing some newly arrived Soldiers at the Joint Defense Operating Center (JDOC). At the JDOC, MAJ Olson had been advised of a Vehicle Born Improvised Explosive Device (VBIED) attack that had just struck one of TAAC-S’s Ground Defense Area’s (GDA) patrols. The VBIED driver had rammed the GDA patrol vehicles before detonating. The attack injured several Romanian soldiers, who are part of the NATO RS Coalition, killed eleven civilians and injured several others, most of whom were children. Acts like that definitely have an effect on the day, and as a parent it was difficult for MAJ Reguly not to stop and wonder what the families of those children must be going through.
Around noon, MAJ Reguly had lunch at the DFAC with a couple members of his office, a short but welcomed break from the bad news that morning. After lunch, he began preparing for a 1530 meeting with the CG, to discuss the officer misconduct investigation and separately, the appointment of an investigating officer into a potential LOAC violation.
Before his meeting with the CG, MAJ Reguly had to draft the appointment order for the investigating officer in the investigation of the potential LOAC violation. Once he finished the appointment order, MAJ Reguly had time to review the supplemental information provided by an individual who had filed a claim against the U.S. Government relating to the use of land in Afghanistan by U.S. and Coalition forces, land which he claimed to own. Much of the approximately 200 pages of information that had been provided by the claimant had previously been received, and none of the information overcame the fact that the land in question was provided by the Government of the Islamic Republic of Afghanistan (GIRoA) for use by the U.S. Government and Coalition forces. Further, any claim by the claimant would have to be presented to GIRoA for resolution. With nothing new or relevant to consider, MAJ Reguly would be able to draft a Notice of Final Action after returning from his meeting with the CG.
At the meeting with the CG, MAJ Reguly first briefed on the officer misconduct report, not a quick task as the report was about two or three inches thick. MAJ Reguly discussed his recommendations with the CG, which he took under consideration pending his review of the investigation report. Next was the appointment order for the potential LOAC violation. The CG provided some additional guidance on the matter, which would require a revised appointment order. After the meeting, MAJ Reguly returned to the office to revise the appointment order and draft the notice of final action for the land claim.
On Monday afternoons, one of the busiest Soldiers on TAAC-S is the legal office’s paralegal, SSG Andrew Marshall, who is the Soldier to see if you need a power of attorney or a document notarized. TAAC-S seems to have a never ending supply of personnel in need of those services, so the office can get busy on Monday afternoons. Unfortunately, so does MAJ Reguly’s telephone because someone listed his direct line all throughout Kandahar Airfield (KAF) as the number to call if you need these services. So between the phone calls and the constant flow of Soldiers, Sailors, Airmen, and contractors through the legal office, it takes a little extra time to get things done on a Monday afternoon.
Finally, it was time to go to the DFAC for dinner. After dinner, MAJ Reguly and MAJ Olson discussed a number of issues relating to the potential LOAC violation and the information collected regarding the incident. The unit involved had already returned to the United States so they contacted the unit’s Brigade Judge Advocate, MAJ Olson’s predecessor, to discuss the matter. After the long call to the States ended, it was time for MAJ Reguly to complete some administrative work, which included updating the weekly investigations tracker, compiling the end of month legal report that gets sent up to the RS HQ LEGAD/OSJA, and clearing out the last batch of emails that had come in. Like most U.S. personnel in Afghanistan, TAAC-S uses three different email domains and three different telephone domains to communicate, so there is a never ending supply of information to manage and things to do that fill in the gaps of each day. By about 2250, MAJ Reguly was at that point where he could start something new or go to the gym. The gym won out and then he called it a night.
USFOR-A / NATO RS Operational Law Attorney
At 0728, the USFOR-A/RS Combined Joint Operations Center (CJOC) Director contacted the USFOR-A operational law section with a request for legal advice about a tactical situation involving U.S. Forces. CPT Gibson, along with Capt Mitch Altman (JA, USMC) discussed the details of the initial report. A group of SOJTF-A Soldiers, while conducting a pre-approved partnered mission with Afghan Special Security Forces, came into contact with a group of Taliban fighters in eastern Afghanistan. The initial report indicated that the partnered forces might be receiving fire from a mosque, creating a potential tactical dilemma between the right to exercise self-defense and the protected status mosques receive under the ROE and LOAC. While SOJTF-A retained operational control of the U.S. Forces on the ground and all supporting combat enablers, the USFOR-A/RS CJOC is responsible for overseeing all current operations in Afghanistan and facilitating the reallocation of assets when necessary. As such, the CJOC Director needed CPT Gibson to remain on standby to advise on the application of the ROE and LOAC in the event SOJTF-A requested assistance. After finishing his discussion with the CJOC Director, CPT Gibson manned his permanent desk in the CJOC.
CPT Gibson left the CJOC later that morning to meet with MAJ Davis, the Operations Officer for Task Force 3 Geronimo (TF 3G). TF 3G’s mission is to provide force protection for Bagram Airfield (BAF), the largest military installation in Afghanistan. In the four days since the Taliban announced its annual spring offensive on 25 April 2018, BAF received indirect fire (IDF) on three separate occasions. MAJ Davis wanted to discuss TF 3G’s available options to mitigate the IDF threat. They considered both non-lethal solutions, such as meeting with Afghan district or provincial level civic leaders and asking our Afghan military partners to conduct more frequent patrols in areas associated with IDF launch areas, and more lethal alternatives, e.g. the employment of terrain denial fires against historic rocket and mortar point of origin sites. Based on the applicable authorities, CPT Gibson advised MAJ Davis on which commanders could exercise approval authority for the potential solutions, and they also discussed the second and third order effects that each course of action might carry with it.
Immediately upon returning to the CJOC, CPT Gibson learned of a separate ongoing and fatal situation. Two, possibly linked, IED attacks had just taken place in Kabul, and the CJOC had already received reports of several civilian casualties. One of the attacks occurred just a few hundred meters away from the NATO Headquarters in Kabul (HQ RS). The CJOC was actively coordinating assets to respond to the situation, if necessary. The CJOC Director again directed CPT Gibson to remain on standby to provide operational legal advice should the circumstances evolve to require CJOC action.
During the lunch hour, CPT Gibson delivered a training presentation to approximately 100 Soldiers from 1st Stryker Brigade Combat Team, 4th Infantry Division (1/4ID), who recently arrived in Afghanistan, as part of the Joint Reception, Staging, Onward Movement, and Integration (JRSOI) training program. Over the course of a six to eight week period, which began in early April and will run through May, over 2,000 Soldiers from 1/4ID will deploy to Afghanistan. Each of these Soldiers will participate in mandatory JRSOI training to prepare them for operations in Afghanistan. The USFOR-A/RS operational law team conducts a class as a part of the JRSOI curriculum. The class covers general LOAC principles, both the NATO and U.S. specific ROE and authorities governing operations in Afghanistan, the application of and limits on self-defense, and vignettes highlighting lessons learned from recent engagements in theater. The classes are designed to be interactive in nature and provide all Soldiers an opportunity to alleviate any confusion about authorities prior to conducting any operations.
After concluding the training session, CPT Gibson returned to the CJOC to begin preparing for the daily Concept of Operations (CONOP) meeting that afternoon at 1600. The meeting, attended by a representative from every staff section, provides a forum for all subordinate commands and task forces to present their planned missions, often referred to as CONOPs, for approval. The headquarters for both RS and USFOR-A have published CONOP approval matrices, prescribing the CONOP approval authorities based on the level of risk associated with the CONOP. For every CONOP being presented, the operational law team provides a written legal review in order to confirm the correct approval authority, identify potential LOAC, ROE, or authorities concerns, and determine whether the CONOP is supportable under the existing authorities framework.
Today, five CONOPs, from four different subordinate units, were being presented. CPT Gibson conducted written legal reviews for each. One contained significant legal concerns so CPT Gibson forwarded the written legal review to the appropriate subordinate unit liaison officer (LNO) and followed up in person with the LNO to address.
LTC Pat Bryan, the USFOR-A Deputy Staff Judge Advocate and RS Deputy LEGAD, serves as the legal advisor for the CONOP meetings. After the afternoon CONOP meeting concluded, CPT Gibson briefed LTC Bryan on the three CONOPs requiring approval in preparation for their presentation that evening.
As the day began winding down, a subordinate unit judge advocate called Capt Altman and CPT Gibson to seek advice on an engagement their commander authorized that may have inadvertently caused collateral damage. The unit was still in the process of gathering details to determine whether a formal report was required based on the established information reporting requirements. However, given the significant emphasis on collateral damage and civilian casualty mitigation from the highest levels of leadership, the subordinate unit judge advocate deemed it prudent to discuss any concerns stemming from the potential incident with Capt Altman and CPT Gibson as early as possible.
Following the conversation, CPT Gibson wrapped up his work day by responding to a few outstanding emails. He then headed back to his room to speak via FaceTime with his wife, Meredith, before getting some sleep in preparation for the next day.
Another Day Done—and Closer to Home
This was our day, 30 April 2018. It was colored, as many other days have been during the seventeen years of U.S. military operations in Afghanistan, with news of a U.S. Soldier killed in action, Coalition soldiers wounded, and many more Afghan lives taken through terror and violence. As lawyers, we did our best that day to support our fellow service members, Coalition partners, civilian teammates, and Afghan hosts. We do this all with the conviction that every effort toward a just and successful mission in Afghanistan is an effort toward not letting those lives lost that day having been in vain. Every day we complete, like this one, is one day closer to a fulfilled mission and return home to our families and loved ones. TAL
A Lawyer’s Day in Vietnam
|Captain Thomas Strassburg, a judge advocate serving with the 101st Airborne Division, steps off a helicopter in Vietnam circa 1971 (Photo courtesy of JAGC's Regimental Historian & Archivist's office).|
Does the military need lawyers in Vietnam? Repeatedly asked this question by their fellow lawyers in the United States, the authors, who comprise the legal staff of an Army headquarters in Vietnam, determined to let American lawyers decide for themselves. The authors selected in advance a day on which each would keep notes on his activities. This article, which first appeared more than 50 years ago in the American Bar Association Journal, is a description of that day—March 11, 1968.1
Do Judge Advocates practice law? Why do we need lawyers in Vietnam?
These are two questions all four of us have frequently heard from fellow lawyers in the states. Perhaps this, the outline of one of our days in Vietnam, may provide an answer.
We constitute the lawyer complement of the Office of the Staff Judge Advocate, Headquarters, II Field Force, and Vietnam. This is a corps-level headquarters that has operational control of several United States divisions and many nondivisional units and is responsible for military operations in the Vietnamese III Corps Tactical Zone, which includes the most heavily populated areas of the country and surrounds its capital city. We are authorized six lawyers, but only four are assigned. The office is also staffed by a warrant officer for office administration, a sergeant major as chief legal clerk, a sergeant first class as claims clerk, and three specialists who are, respectively, our court reporter, stenographer, and clerk typist. The enlisted men also take their share of duty on perimeter guard and must be as handy with their rifles as with their typewriters. The captain and our warrant officer also take their turns as officer of the guard for the headquarters area.
We represent the Bars of California, Colorado, Massachusetts, South Carolina, and Texas as well as of several federal courts. We received our law training at Georgetown, Harvard, South Carolina State, and Texas. Three of us are career military men and one is fulfilling his military obligation. The three career officers, all ROTC graduates, have all had military service in other branches—Armor, Finance, Infantry, or Ordnance—before becoming judge advocates. Two of us are married with a combined total of six children. While all of us perform other duties, as required, Lieutenant Colonel Kent is assigned as staff judge advocate, Major Kulish as deputy and also as chief, international affairs, and legal adviser to the units located in and around the headquarters company, Major Felder as trial counsel (prosecutor) of the general court and also as claims officer, and Captain Green as defense counsel and legal assistance officer.
For this description of one of our days in Vietnam, we chose in advance a day that turned out to be neither our lightest nor our heaviest. We deliberately picked a day on which no general court-martial was scheduled since we suspect that everyone will acknowledge that the prosecution or defense of a felony is the practice of law. It was just one of the 365 days of our tour here—the office is open and manned seven days a week from 7:30 A.M. to 6 P.M. Our mission is to provide total legal services for the commanding general, his staff and subordinate commanders and all other members of this command.
This was the day—Monday, March 11, 1968.
The Staff Judge Advocate.
After a quick check of the office and a short conference with his deputy, the staff judge advocate, Colonel Kent, accompanied by the chief legal clerk, left by helicopter for the base camp of one of the II Field Force artillery groups and elements of two of its battalions. They had been alerted to notify all personnel that a legal assistance officer would be available. Every trip away from the headquarters is also a legal assistance trip. We have a one briefcase legal assistance kit which contains interview cards, form clauses for wills and powers of attorney, income tax forms and instructions, and applications for military ballots.
A Question of Prompt Justice.
This visit was based on a complaint by a Soldier of an apparently undue delay in the disposition of charges against him. These allegations, if substantiated, would raise the issue of the right of speedy trial.2 Colonel Kent wished to discuss this with the group commander and to indicate that if investigation revealed that these allegations were true, the best interests of justice might be served by a dismissal of the charges. Further, as on all such trips, he wanted to reemphasize some of the rules concerning the imposition of nonjudicial punishment3 and to emphasize the Army claims program, particularly with regard to losses of personal property caused by hostile action.4 A supply of claims forms was taken along and distributed to the units with instructions for their use. The staff judge advocate has authority for the approval of such claims up to $1,000. By 11 A.M., these matters accomplished, Colonel Kent set up shop for legal assistance. ln the meantime the chief legal clerk was providing instruction on the administrative processing of courts-martial papers, non judicial punishment actions, and claims investigations for the clerical personnel of group headquarters. Except for a thirty-minute lunch break the legal assistance program continued until 3 P.M. During this time there were five requests for assistance on federal income tax problems. Four of these were relatively simple inquiries pertaining to combat zone pay exclusions, but the fifth came from a [S]oldier who wanted to complete his return for 1967. Rapid calculations revealed that he was due a substantial refund, and therefore he was advised to file immediately. There were two requests for powers of attorney, one in connection with settlement of an insurance claim and the other for a real estate transaction. A judge advocate has the powers of a notary. 5
One Soldier wanted information on the legality of his becoming a candidate for public office while still in the military service. The aspiring young politician was assured that “greetings from his friends and neighbors” did not deprive him of his civic rights in this regard.
Finally, two men with serious marital problems sought help. The apparent solution was the institution of divorce proceedings. One of them knew a lawyer in his home town and was helped with the drafting of a letter to that lawyer. The other man’s case was complicated by a matter of choice of forum. His home was in one state and his wife had since moved elsewhere. The facts were noted, and arrangements were made to provide him with information on the grounds for divorce in each of the two states and then, if he wished, to work with bar referral agencies to obtain counsel in the better forum.
By 4 P.M., the circuit riders were home. A problem had arisen under the provisions of Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War6 and the Regulations of the Military Assistance Command, Vietnam, promulgated to implement this convention. A wounded Vietnamese had been brought into a United States military medical facility under obscure circumstances, he had no identification papers, denied being a Viet Cong, and had admitted to being a draft dodger from the Vietnamese Armed Forces. There was no indication that he had committed a hostile act. The problem at hand was to determine whether he was to be declared an innocent civilian and released, a civil defendant and turned over to the Vietnamese police or a prisoner of war. Such cases require the decision of the staff judge advocate of the command which has custody of the individual. In the light of the evidence, Colonel Kent determined that he was a civil defendant to be turned to the Vietnamese police.
By this time it was almost 5 P.M. and time for the staff judge advocate to attend the daily intelligence and operations briefing.
The Defense Counsel/Legal Assistance Officer.
The defense counsel/ legal assistance officer, Captain Green, as usual, saw the greatest variety of clients. The combination of these positions in one officer saves many possible conflicts of interests. In an overseas command where civilian counsel are unavailable, legal advice on the broadest possible variety of matters must be provided if the individual [S]oldier is to receive total legal service.7
Captain Green’s first client was awaiting trial by summary court martial. He had heard that, since he had not been offered nonjudicial punishment under Article 15 of the Code, he could refuse trial by summary court martial.8 Captain Green corroborated this, explained the alternatives, including the much wider range of punishments imposable by a special court martial,9 and advised him to accept trial by summary court martial, outlining for him an appropriate line of defense.
A newly promoted major had just been appointed a summary court-martial officer. No advice had been provided about the disposition of any specific sets of charges or about the accused. Captain Green gave the major a copy of the “Guide for Summary Court-Martial Trial Procedure10”,which is comparable to the guides for justices of the peace published in several states. Then he gave him a thorough briefing on procedure, rights of the accused, the doctrine of reasonable doubt and his sentencing powers.
The next clients were two [S]oldiers recently transferred to Vietnam from Thailand. While there, both had fallen in love with Thai girls, and they wanted advice on marriage procedures. The Army’s requirements and methods of submitting applications to marry aliens residing outside of CONUS were explained.11 Both [S]oldiers decided to await completion of their overseas tours and then invite their fiancées to come to the United States as “tourists” and proceed from there.
Another pair of [S]oldiers walked in as our lovelorn swains left. They were seeking advice on application for early discharge to attend college. The provisions of the regulations12 were explained, and they were referred to their unit commanders.
Mail call presented a welcome break as well as some news for clients. A few weeks earlier two [S]oldiers involved in divorce proceedings had asked for legal advice. In both cases they had no objection to a divorce but wanted to ensure that they would not have heavy financial burdens imposed upon them for life. Correspondence with the attorneys for their spouses brought replies that fully met the desires of these two men. Documents were included for them to execute. Telephone calls were made to their units asking that they be sent to the legal assistance office.
Another letter was a response to an earlier motion for a stay of proceedings in a civil suit under the Soldiers’ and Sailors’ Civil Relief Act.13 The attorney for the plaintiff wrote that his client had agreed to drop the [S]oldier as a party to the action.
About this time Major Kulish handed Captain Green a copy of the staff judge advocate’s review of a general court-martial case which had been tried two weeks before. This written review is required by Article 61 of the Code14 in each general court-martial case for consideration by the convening authority prior to his action on the case. It provides a complete written summary of all of the evidence adduced at the trial and of the applicable law as well as a personal history of the accused based on the official records concerning him and a personal post trial interview with him. The convening authority has plenary power to set aside or reduce the findings of guilty and the sentence.15 The accused and his counsel are given the opportunity to see the review prior to the submission to the convening authority and to submit matter in rebuttal.16 Captain Green felt that certain additional facts about the accused’s military record should be brought out. After lunch, Captain Green accompanied Major Kulish to the stockade, where the latter served a copy of the review on the accused. While the Major interviewed another man, Captain Green conferred with the accused, explained his rights and reached agreement with him that a particular rebuttal should be submitted. Captain Green prepared the rebuttal, obtained the signature of the accused and delivered it for attachment to the review. The Captain then conferred with an upset young officer who was afraid that he might owe several hundred dollars on his 1967 income tax. He has used the standard deduction. After re-computing his return with proper deductions for interest, state and local taxes and charitable contributions, it appeared that he had a refund of nearly $100 coming to him.
Captain Green had been told earlier by the staff judge advocate that he was assigned to defend a suspected homosexual who was being brought before a board of officers that would consider discharging him from the military service.17 The initial interview with this respondent took the better part of an hour, as the man denied any such tendencies and wanted to fight the allegation. Captain Green made an outline of the interview, prepared requests for witnesses on the accused’s behalf and made appointments to interview them.
Advice for Counsel for a Special Court.
The next visitor was a young officer who had been appointed defense counsel for a special court martial. The Army did not then have enough judge advocates to provide them as trial and defense counsel in most special courts martial, but did provide technical assistance to the officers so appointed. It has a military justice handbook called “The Trial Counsel and The Defense Counsel”.18 Captain Green gave a copy of this book to this officer, showed him how to use it as a procedural guide and then analyzed with him the evidence and probable questions of law in three cases then pending. Military law requires that an accused and his counsel be given copies of all statements made by the witnesses and of reports of investigation that are available to the prosecution.19 This occupied most of the remainder of the afternoon.
Before Captain Green could leave, he found two more clients waiting. One had been offered nonjudicial punishment but was uncertain whether to accept it or to demand trial by court-martial. Captain Green outlined the law pertaining to the alleged offense and his rights under the code. After this discussion the client felt that he would be far better off to accept nonjudicial punishment than to demand trial. The other client had been tried by a summary court-martial and wanted to know how to file an appeal. Captain Green explained that the officer who appointed the court-martial had to review the case before the sentence could be ordered into execution20 and that after this review the case would automatically be reviewed again by our office.21 He also advised the client that anything he wished to have considered by the reviewing authorities should be attached to the record of trial,22 outlined for him an approach and provided citations of law which tended to support his position and technical assistance in the preparation of his appeal.
The Trial Counsel/Claims Officer.
Captain (now Major) Felder’s day started earliest of all. He was our “on call” lawyer and was awakened by the military police at 2:10 A.M. They had a suspect in an aggravated assault case who, after being warned under Article 31 of the code,23 had requested counsel prior to interrogation.24 At the military police station, Captain Felder consulted privately with the suspect and advised him to make no statement and to refuse any further interrogation in the absence of counsel. The client wanted advice as to the legality of the seizure by the military police of his wristwatch. Captain Felder advised him that a search and seizure made in connection with a lawful arrest was proper25 but that he would inquire as to the seizure of the watch. After a short discussion, the military police agreed to return the watch if the client would sign a receipt for it. At 4 A.M. Captain Felder returned to bed.
Captain Felder arrived at the office at 9 A.M. He informed Captain Green of his attorney-client relationship with this suspect—then to work on a revision of the II Field Force, Vietnam, Military Justice Circular. Command circulars direct compliance with the rulings of the United States Court of Military Appeals by means of clear, simple and direct language which unit commanders and military policemen can understand and follow. On March 11, Captain Felder worked on the following:
(1) The problem of having a suspect utter words for voice identification. While this has the approval of the United States Supreme Court,26 the United States Court of Military Appeals has held that the protections afforded to military personnel by Article 31 of the code are broader than those accorded to the remainder of the population by the Fifth Amendment,27 and military suspects may not be legally ordered to utter words for this purpose.
(2) The problem of “speedy trial”, a difficult one in a theater of operations. Recent decisions of the Court of Military Appeals28 indicate that restriction to the limits of a military installation imposes upon the Government a duty to proceed with due dispatch.
(3) Additional guidance required for the omnipresent problem of nonjudicial punishment under Article 15 of the code. We want to ensure that everyone understands that the acceptance of Article 15 by an accused is not the equivalent of a plea of guilty but merely an acceptance of the forum and that commanders must still have proof of an offense cognizable by the code before they may administer punishment.
At 10 :30 A.M. two criminal investigation agents came in for guidance. Since he had no attorney-client relationship with the suspect they had under surveillance, Captain Felder proceeded to examine the file and consider a proposed search. In this case, an order from an appropriate commander takes the place of a civilian search warrant29 and must be obtained prior to a search. Captain Felder drafted a document for the signature of the company commander. He advised the agents that they must provide the commander with sufficient information for probable cause to order such a search. Otherwise his order, and hence the search, would be unlawful.30
After lunch, a helicopter pilot wanted information about a claim. The same enemy shell that had sent him to a hospital had also ruined his camera. Captain Felder explained the operations of the Military Personnel and civilian Employees Claims Act of 196431 and Army Regulation 27-29 which implements it. Captain Felder provided the forms and indicated the evidence necessary to support the claim.
A sergeant arrived for help with his income tax.
A [S]oldier interested in acquiring United States citizenship came in. He had read about a new “law” which would make it easier for those on active duty to acquire citizenship. The new “law” was H.R. 15147 which passed the House of Representatives on March 4, 1968, and which would amend the present Immigration and Nationality Act.32 After explaining the current status of the bill, Captain Felder gave him the necessary forms and told him to return when he had gathered the information required.
The mail contained three records of trial by special courts-martial in our units. These had already been approved by the respective convening authorities and had arrived for the required review.33 One of the cases involved the offense of sleeping on post while on duty as a sentinel.34 As the offense had occurred in an area subject to “hostile fire”, the maximum punishment was a dishonorable discharge and confinement at hard labor for ten years.35 Most such cases, however, are disposed of by special courts-martial, in which the maximum punishment is limited to confinement at hard labor and a forfeiture of two thirds’ pay for six months. The other two cases both involved vehicles—one charge was “joy riding” in a government vehicle36 and the other reckless driving.37 In each case Captain Felder determined that the evidence of record supported the finding of guilty, that the sentence was within legal limits and that there were no grounds for further clemency action. He recommended to Major Kulish that the cases be stamped “legally sufficient”. While the law merely requires review by “a judge advocate”, in this office all such records of trial are reviewed by at least two judge advocates, and if they disagree the matter is determined by the staff judge advocate. It was now 4 P.M. and Captain Felder was able to return to work on his circular.
The Deputy Staff Judge Advocate.
Major Kulish, the deputy staff judge advocate, came in early to finish his draft review of a general court-martial case. He wanted to discuss the recommendation on approval of the sentence with the staff judge advocate prior to his projected departure. This case involved two counts of aggravated assault under Article 128 of the code.38 By the time Colonel Kent left, the draft was completed, approved and in the hands of the typist. As the staff judge advocate departed, an artillery battery commander walked in. His unit, an automatic weapons battery, would soon be fragmented into sections to provide protection for several fire support bases of heavy artillery in widely separated areas. The previous night there had been an assault with a deadly weapon involving two of his men. Major Kulish advised him to secure detailed written statements at once from each witness and pointed out that despite the use of a deadly weapon there had apparently been no real intent to inflict serious injury. The battery commander decided to recommend trial by a special court martial. Major Kulish received a telephone call from the legal clerk of one of the battalions asking for help in phrasing an order vacating a suspension of a sentence to confinement. The battalion commander had ordered into execution only a forfeiture of pay and had suspended execution of the confinement since the accused was a first offender. The current misbehavior was a repetition of disrespect to a noncommissioned officer.39 The clerk was guided to Appendix 15e of the Manual for Courts-Martial.
An Affidavit Needed at Home.
The next client was a [S]oldier who, while on his pre-embarkation leave, had witnessed a conversation between his father and a forest ranger regarding the appropriate time for trash burning. Now his mother had been cited for improper burning during those hours. An affidavit concerning the conversation which he had heard was executed for mailing to this [S]oldier’s parents.
While this affidavit was being typed, another client came in who needed a special power of attorney for his wife so that she could settle with his automobile insurance company.
The remainder of the morning was occupied by proofreading the final draft of the general court-martial review, and a copy was given to Captain Green so that he could read it before it was served on the accused. The telephone rang. A battalion legal clerk needed reassurance. He bad drafted some court martial charges and wanted Major Kulish’s approval. This particular clerk happened to be the most competent but least self-assured on the base. Major Kulish gave him a verbal pat on the back, a mental kick in the pants, and went off to lunch.
Upon his return to the office, Major Kulish skimmed the daily reading file to look at changes in regulations and to see from the serious incident reports what sort of military justice “business” might he in the wind. Then off to the stockade with Captain Green. While the defense counsel was interviewing his client, Major Kulish conducted a post-trial interview with another accused whose general court martial had been completed recently. Prior to this case, the man had had no serious trouble but it was obvious that he had a quick temper that he had not learned to control. Major Kulish checked with the confinement facility personnel to determine the man’s behavior in the stockade. Major Kulish concluded that rehabilitation was possible and decided to recommend that the punitive discharge imposed by the court-martial be suspended.
The Major returned to the office at 2:30 P.M, to find a unit commander waiting for assistance in the drafting of charges. One [S]oldier in this commander’s unit decided to supplement his income by engaging in private enterprise—i.e., the cigarette business. Unfortunately, regulations already promulgated made his efforts illegal. Cigarettes are rationed items in the post exchanges and may not be resold or bartered lawfully. The [S]oldier had cajoled his nonsmoking friends into buying their rations for him. He also had discovered a means of erasing the check mark on his own ration card so that he was able to reuse each ration block several times. As the man had no history of prior offenses, the unit commander was interested only in a special court martial. Therefore, it was decided to ignore the more sophisticated offenses involving falsification of a government document, which would have been tried under Article 134 of the code,40 and charges dealing with the violation of a lawful general regulation under Article 92 of the code41 were drafted.
Major Kulish started to arrange his post-trial interview notes but was interrupted by a sergeant who had signed an option to purchase a home in a new development in his native Louisiana. His wife was to complete the deal armed with a special power of attorney which had been prepared by the attorney for the financing institution. The sergeant had this instrument and wanted it notarized. Asked if he had read it, he said no because he wouldn’t understand it anyway, but he knew he had to sign it to get the house. After a careful reading of the document and inquiry of the sergeant as to the state of title and financial responsibility of the developer, Major Kulish suggested that he retain an attorney in Louisiana to represent him. The sergeant replied that he did not need a lawyer—and that he wanted to execute this document now. Since the power was a very restrictive one and only allowed the wife to sign for the amount and rate of interest to which the sergeant had already agreed, Major Kulish notarized his signature.
It was about 3:40 P.M. when a corps intelligence agent arrived with a file for examination. Major Kulish was preparing a memorandum analyzing the evidence in the file when Colonel Kent walked in. Major Kulish gave him the memorandum and the file and sat in on the discussion. After that, the trial counsel of one of the special courts-martial came in for consultation on the method of submission of an official document into evidence as an exception to the hearsay rule. Major Kulish explained the law on the subject and the manner in which the trial counsel should submit the document and prove its official nature and authenticity. Finally, back to the interview notes until time to close the office for another day.
This, then, was our day. Other days would have shown other problems, some similar and some different. There might well have been a contract to draft or review and probably a great deal more claims business. But we chose this day in advance, not knowing what it would bring, and determined to report it without embellishment. We consider ourselves to be part of what Mr. Justice Brennan has called the “public bar”42 but we shall leave to our civilian colleagues the answers to our original questions. In turn, however, we would ask two: (1) If we are not practicing law, what are we doing? (2) If they don’t need lawyers in Vietnam, what do you suggest they replace us with?
1. Reprinted with permission of the American Bar Association Journal, Irvin M. Kent et. al., A Lawyer’s Day in Vietnam, 54 Am. B. Ass’n J. 1177 (1968).
2. United States, v. Brown, 10 U.S.C.M.A. 498, 28 C.M.R. 64 (1959).
3. Art. 15, Uniform Code of Military Justice (hereinafter referred to as U.C.M.J.). 10 U.S.C. § 815.
4. 31 U.S.C. §§ 240-243; Army Regulations (hereinafter referred to as A.R. 27-29).
5. Art. 136, U.C.M.J., 10 U.S.C. § 936.
6. July 14, 1955. 6 U.S.T. 3316, T.I.A.S. No. 3364.
7. Cf. A.R. 608-50.
8. Art. 20, U.C.M.J, 10 U.S.C. § 820.
9. Art. 19, U.C.M.J, 10 U.S.C. § 819.
10. Dep’t. of the Army Pamphlet No. 27-7.
11. A.R. 608-61.
12. A.R. 635-200.
13. 50 U.S.C. App § 521.
14. 10 U.S.C. § 861.
15. Art. 64, U.C.M.J., 10 U.S.C. § 864.
16. United States v. Griffin, 8 U.S.C.M.A. 206, 24 C.M.R. 16 (1956).
17. A.R. 635-89.
18. Dep’t. of the Army Pamphlet No. 27-10.
19. Manual For Courts-Martial, 1951 ¶ 44h; see also Kent, The Jencks Case: The Viewpoint of a Military Lawyer, 45 A.B.A.J. 819 (1959).
20. Art. 64, U.C.M.J., 10 U.S.C. § 864.
21. Art. 65, U.C.M.J., 10 U.S.C. § 865(c).
22. Manual For Courts-Martial, 1951, ¶ 48j (2).
23. Miranda v. Arizona, 384 U.S. 436 (1966), was declared applicable to military law in United States v Tempia, 16 U.S.C.M.A. 629m, 37 C.M.R. 249 (1967).
24. C.M.R. 249 (1967).
25. Manual for Courts-Martial, 1951, ¶ 152.
26. United States v. Wade, 388 U.S. 218 (1967).
27. United States v. Newborn, 17 U.S.C.M.A 431 (1968), of which we were informed by cable from the Office of The Judge Advocate General.
28. United States v. Smith, 17 U.S.C.M.A. 427 (1968) and United States v. Parish, 17 U.S.C.M.A. 411 (1968).
29. Manual for Courts-Martial, 1951, ¶ 152.
30. United States v. Brown, 10 U.S.C.M.A. 482, 28 C.M.R. 48 (1959).
31. 31 U.S.C. §§ 240-243 (1965 Supp.).
32. 8 U.S.C. § 1440.
33. Art. 65, U.C.M.J., 10 U.S.C. § 865(c).
34. Art 113, U.C.M.J.
35. Exec. Order No. 11.317.3 C.F.R. § 913.
36. Art. 121, U.C.M.J., 10 U.S.C. § 921a (2).
37. Art. 111, U.C.M.J., 10 U.S.C. § 911.
38. 10 U.S.C. § 928.
39. Art. 91, U.C.M.J., 10 U.S.C. § 891.
40. 10 U.S.C. § 934.
41. 10 U.S.C. § 892.
42. Brennan, The Responsibilities of the Legal Profession, 54 A.B.A.J. 121, at 123 (1968).
98 In Nazi Germany, a “Kreisleiter” was a “county leader” and was the highest Nazi Party official in a “kreis” or county municipal government. Today, Kreis Kaplitz is in the Czech Republic. In 1944, however, it was part of Germany, having been annexed as part of German-speaking
Sudetenland in October 1938.
99 Strasser, Case No. 8-27, at 6.
101 Headquarters, Third U.S. Army, Special Orders No. 229 (19 Aug. 1945). For more on war crimes trials at Dachau, see JOSHUA M. GREENE, JUSTICE AT DACHAU (2003). Strasser and Lindemeyer were apprehended and charged after the Army conducted an investigation into the deaths of the five airmen soon after 8 May 1945 (Victory in Europe (VE) Day). JACK R. MYERS, SHOT AT AND MISSED: RECOLLECTIONS OF A WORLD WAR II BOMBARDIER 298–99 (2004).
102 Strasser, Case No. 8-27, at 1.
103 Id. at 5.
105 Id. at 4.
106 Id. at 6.
107 Perhaps by Lindeman or one of the men accompanying him, although this is unclear from the record.
108 Strasser, Case No. 8-27, at 6.
109 EDWARD F. L. RUSSELL (LORD RUSSELL OF LIVERPOOL), SCOURGE OF THE SWASTIKA 39 (2002).
110 Id. at 40.
111 Strasser, Case No. 8-27, at 1.
112 A native of Saginaw, Michigan, Ford R. Sargent entered The Judge Advocate General’s Department after graduating from the 11th Officer Course held at The Judge Advocate General’s School, Ann Arbor, Michigan. THE JUDGE ADVOCATE GENERAL’S SCHOOL, STUDENT AND FACULTY DIRECTORY 42 (1946).
113 Strasser, Case No. 8-27, at 8.
116 While the official legal view of the Judge Advocate General’s Department was that “the rule in American municipal criminal law as to
reasonable doubt and presumption of innocence was not applicable as such to war crimes trials, in the absence of a suitable prescribed standard, the rule requiring that an accused be presumed innocent until proven guilty and that proof of guilt be established beyond a reasonable doubt was adhered to in war crimes trials” in the European Theater (emphasis added). REPORT OF THE DEPUTY JUDGE ADVOCATE FOR WAR CRIMES,
EUROPEAN COMMAND, JUNE 1944 TO JULY 1948, at 67 (1948).
117 Strasser, Case No. 8-27, at 8.
118 Id. Claude B. Mickelwait had a lengthy and distinguished career as an Army lawyer. Born in Iowa in July 1894, he later moved to Twin Falls, Idaho and graduated from the University of Idaho in 1916. He entered the Army as a first lieutenant in 1917 and served in a variety of infantry
assignments until obtaining a law degree in 1935 from the University of California School of Jurisprudence and transferring to The Judge
Advocate General’s Department.
With the invasion of North Africa in 1942, Mickelwait was stationed in Casablanca as Judge Advocate, Atlantic Base Section. He subsequently served as Judge Advocate, Fifth Army, in both North Africa and Italy. In March 1944, Colonel (COL) Mickelwait became Acting Theater Judge Advocate of the North African Theater of Operations. Two months later, he was the Judge Advocate of First Army Group in
England and, in July 1944, deployed to France as the Judge Advocate of the 12th U.S. Army Group.
In August 1945, COL Mickelwait was appointed Deputy Theater Judge Advocate of the U.S. Forces in the European Theater and in May 1946, he assumed duties as Theater Judge Advocate of those forces. Colonel Mickelwait returned to the United States when he was promoted to brigadier general in April 1947. He was promoted to major general and appointed as The Assistant Judge Advocate General in May 1954.
Major General Mickelwait retired from active duty in 1956. General Promotions—Army JAG, JUDGE ADVOCATE J., June 1954, at 4–5.
119 Short video clips about the military tribunal of Strasser are available at http://www.t3licensing.com/license/clip/49312041_033.do and
120 Transcript of Record at 8, United States v. Albert C. Homcy, CM 271489 (19 Oct. 1944) (on file with Regimental Historian).