U.S. military commanders must deal with at least 280 military lawyers overseeing their decisions and scrutinizing the legality all proposed U.S. combat missions before they are authorized, according to a Daily Caller News Foundation investigation.
The number appears to be the first comprehensive compilation of the number of lawyers assigned at the headquarter levels. They provide often real-time legal advice to military commanders about the “laws of war” and rules of engagement for all U.S. military strikes, counter-terror operations and rescue missions.
Critics have charged that, as the number of lawyers in the military has swelled, lawyers are trumping commanders about military strategy and operations. Others contend that the growth in military lawyers reflects the risk-adverse nature of the Obama administration on military matters.
The 280 lawyers do not include attorneys assigned at or below the battalion level. The figure also excludes lawyers or judges who oversee criminal acts committed by uniformed personnel under the Uniform Code of Military Justice.
Lawyers are found throughout the military. They are ensconced in the paneled offices of the Secretary of Defense and at the Joint Chiefs of Staff to far flung forward commands serving Africa, Asia, the Pacific, Europe, the Americas and the war torn areas of the Middle East.
TheDCNF received cooperation from all U.S. military units to compile the numbers, including the offices of Secretary of Defense Ashton Carter, the Joint Chiefs of Staff and the U.S. Central Command.
The fact that at nearly 300 military lawyers work side-by-side with military at the command level means they are a permanent fixture for all U.S. military operations.
“This has been a trend that’s been going on since 2001, and their numbers are increasing,” said former Brigadier General Kenneth P. Bergquist, who was the U.S. Central Command’s operations staff director for Operation Enduring Freedom and oversaw unconventional warfare and special operations in Afghanistan after the September 11 terrorist attacks.
U.S. commanders must abide by the increasingly complex “laws of war” and rules of engagement. Last year, the Obama administration produced the first-ever “Laws of War Manual” that applied to all branches of the military.
The original manual was to be released in 2010, but was reportedly delayed by more than five years so Obama appointees could provide input. The current manual is 1,176 pages long.
Retired Special Operations Colonel James Williamson told TheDCNF that the manual is “beyond unwieldy. It’s an academic piece of garbage. No commander is going to read through that.” Williams also is co-founder of the OPSEC, a non-partisan organization made up of retired Special Forces officers and American intelligence officials,
Non-governmental organizations also have attempted to inject an added legal layer to military decision-making by invoking what they call “international humanitarian law.” These rules seek to limit armed action by Western military forces. The IHL is often cited by activist groups when they accuse the West of committing “war crimes.”
The largest single number of military lawyers are assigned to the Special Operation Command, which employs 206 full-time military lawyers.
The command comprises some of the U.S. military’s most elite forces including the Army’s Special Operations Command and its Joint Special Operations Command at Fort Bragg, N.C., the Air Force’s Special Operations Command at Hurlburt Field, Fla, the Naval Special Warfare Command in Coronado, California and the Naval Special Warfare Center. About 69,000 personnel are attached to the Special Operations Command.
“Legal officers advise the Commander, U.S. Special Operations Command (SOCOM) and staff regarding legal aspects of special operations activities,” explained SOCOM Capt. Brian J. Wagner to TheDCNF upon delivery of the list of lawyers.
The SOCOM Headquarters has 17 lawyers, including nine in uniform led by a lieutenant colonel or Navy captain and eight civilian attorneys.
But 179 military lawyers are in forward command centers. The lawyers are led by seven lieutenant colonels who oversee Special Forces operations worldwide. Ten other civilian lawyers also advise special operations. Ninety-three military lawyers are at the rank of major.
Importantly, the 206 lawyers aren’t the only military lawyers who offer legal advice. The SCOCOM spokesman added, “subordinate commands have separate legal offices that provide similar support.”
In addition to slowing down military action during crises, critics contend that lawyers trump military commanders.
“I think there’s an issue of over-lawyering here,” Bill Roggio, a senior fellow at the Foundation for the Defense of Democracies and editor of the Long War Journal, told TheDCNF.
Roggio said “the legal aspect will at times trump the military necessity. Who’s running the show — is it the lawyers or is it the commanders?”
Williamson said lawyers over time have “played much more of a role than they should beyond an advisory capacity. There have been a lot more constraints placed on the military.”
Bergquist was more blunt, telling TheDCNF “they are using lawyers to handcuff people down the chain of command in operations.” In addition to his operational experience within the U.S. military and at the Central Intelligence Agency, Bergquist is a lawyer who once served a Deputy Attorney General at the Justice Department.
He said the delays often hamper acting on “actionable intelligence” that may be useful only a short period of time.
“Every commander is looking over his shoulder before he makes a decision. This means we lose a lot of actionable intelligence,” Bergquist said. “Everybody’s second guessing it and it slows down the ability to strike quickly. And is the target still there? The prospect diminishes.”
Last April, the Pentagon punished 16 servicemen for a mistaken air attack last October on a Doctor’s Without Borders hospital in Kunduz, Afghanistan, that killed 42. The doctor’s group, invoking International Humanitarian Law said the attack should be investigated as a war crime.
Williams said, “those men in Air Force Special Operations were sacrificed. They made responsible decisions based on information that was available. But because it became a political issue, careers were unjustly lost over that.”
Two of the largest ongoing U.S. military campaigns are filled with 22 military lawyers. Operation Resolute Support in Afghanistan and Operation Inherent Resolve in Iraq together have military lawyers directly advising military commanders in the field.
A spokesman for Inherent Resolve told TheDCNF its 12 full time lawyers, “provide legal advice to the Commander, Deputy Commanders, the Combined Joint Task Force and Directors on a wide range of legal matters including operational law, the law of war, international law, criminal law, and administrative and civil law, including ethics, standards of conduct, and fiscal law.”
Lt. Cmdr. Ronald E. Flesvig told TheDCNF, there are 10 full time military lawyers at Resolute Support’s headquarters who provide legal advice “on a wide range of legal issues including, operational law, international law, the law of war” as well as civil issues.
The Marine Corps, Air Force and Navy Central Command headquarters have 16 combined full time military lawyers.
The Office of the Commander U.S. Central Command employs 15 full time military lawyers.
The Office of the Legal Counsel to the Chairman of the Joint Chiefs of Staff includes 11 full-time military judge advocates and 3 civilian attorneys.
They provide “legal advice to the Chairman, Vice Chairman, and the Director of the Joint Staff, as well as the Joint Directors and their staffs on a wide range of legal matters such as operational law, the law of war, international law, and administrative and civil law, including ethics, standards of conduct, and fiscal law,” according to a spokesman for the Joint Chiefs.
Army Lt. Col. Joe Sowers, a Department of Defense spokesman, told TheDCNF “the General Counsel of the Department of Defense is the chief legal officer in the department, advising both the Secretary and Deputy Secretary on all legal matters affecting the Department including the law of war.”
“At the Office of the Secretary of Defense level, there are approximately seven lawyers who advise the Secretary on matters related to the law of war,” Sowers told TheDCNF.
Roggio said that in addition to delays in approval for strikes another power of the lawyers is to restrict missions and limit the rules of engagement.
“The bigger problem is restrictive rules of engagement, now so narrowly defining military missions and then putting in place, the lawyers,” he said. “There seems to be a lot of layers and the layers are being put in because of overly restrictive rules.”
The Wall Street Journal reported Tuesday how U.S. officers could not launch air strikes against Taliban fighters who were attempting to ambush Afghan allies because military lawyers said that there was no “imminent threat” to U.S. forces. The lawyers also said it was not clear the armed fighters were going to ambush the Afghan unit.
After four intense hours of back-and-forth communications with the military lawyers, no strikes were ever authorized.
Reggio commented on the Journal story. “So you’re in a battlefield. You’re looking at Taliban. Someone makes a determination, then, ‘we have to check with the lawyers.'”
“Boom, right there, as soon as you do that the process is halted. I can’t imagine we would ever do something like that in World War II,” he said.
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