War, on Advice of Counsel

When Air Force targeters in Afghanistan spotted a Taliban convoy rumbling along a road near Kandahar on a dark October night, they asked permission to strike.

A Pentagon lawyer advised against it, fearing civilians might be killed. The convoy moved forward, allowing the Taliban to reinforce troops faced off against the U.S.-backed Northern Alliance.

A week earlier, it was a lawyer, operating at the right hand of commanding Gen. Tommy R. Franks, who at first advised against firing a missile at a line of Jeeps that intelligence officials believed was carrying Taliban leader Mullah Mohammed Omar. The lawyer feared the attack might violate a policy against assassinating a head of state.

By the time missile operators got the go-ahead, the Jeeps had escaped.

The two incidents, each related separately by senior Pentagon lawyers and by military officials involved in the targeting process in Afghanistan, highlight growing tensions in the war room as legal advisors take on a more prominent role in military operations.

In today’s war, every bombing run, every missile firing, every raid by U.S. soldiers is vetted by teams of lawyers who are experts on international rules of war.

There are lawyers in the top-secret operations center, called The Tank, deep inside the Pentagon, 24 hours a day, seven days a week, signing off on the legality of raids and strikes. There are lawyers at the Combined Air Operations Center at Prince Sultan Air Base in Saudi Arabia, poring over lists of potential bombing targets. Teams of lawyers based on aircraft carriers brief Navy pilots on what they can and can’t shoot before they jet off into Afghan skies. Military lawyers on the ground in Kandahar and Bagram work hand in hand with U.S. commandos. When special operations forces head out on top-secret missions, a lawyer is often at their side.

In the two convoy incidents, accounts differ on whether the lawyers’ advice was the critical factor in Franks’ decision to hold fire. But the disparate versions of what happened only serve to heighten the controversy over the lawyers’ role.

“There’s been a decision by the people running this war to rely on the advice of the lawyers to a greater degree than they have before,” said one senior Air Force commander privy to war room discussions who agreed to speak on condition of anonymity. “It seems like there has been undue influence given to the lawyers in not just one decision, but many.”

As recently as a dozen years ago, the idea of putting lawyers in the war room with commanding officers was unthinkable. But with military operations increasingly constrained by a complex web of international laws, agreements, accords and treaties, lawyers have moved to the forefront.

Lawyers parachuted in with special operations forces to Panama in 1989, flew with Army troops to Haiti in 1994 and were deployed by the hundreds in Kuwait and Saudi Arabia during the Gulf War, sleeping in the sand alongside troops in the field. The lawyers--judge advocate generals, or JAGs in military parlance--reviewed airstrikes over Kosovo from an operations center in Germany and the movements of special operations and Army soldiers in Somalia and Rwanda. They rode into Macedonia with Army brigades and flew in the airborne operations command post over Haiti. They are permanently stationed in the Sinai, South Korea and Kuwait.

“You might say that, for better or worse, we’re unleashing an army of lawyers,” said Alfred P. Rubin, a former Pentagon lawyer in the office of the secretary of Defense and now a professor at the Fletcher School of Law and Diplomacy at Tufts University.

As their visibility and their power have grown, so has the lawyers’ cachet.

“There you are, sitting there with the commanders,” said Air Force Lt. Col. Nancy Richards, an operational lawyer deployed for the Iraq, Somalia and Rwanda conflicts, “when he turns and says, ‘Lawyer, what do you think, do we have the legal authority?’ . . . Just to be able to look at a target the next day and think, I looked at that target and last night they bombed it. It’s a unique opportunity.”

The unconventional and unprecedented war on terrorism has made the legal thicket even more dense.

In Afghanistan, America’s adversaries wore no uniforms and fought without traditional command structures under the leadership of people who never formally declared war on the United States. Led by religious zealots hiding in caves, the fighters waged war for a terrorist network and a militia that bear no relation to governments in the traditional sense.

Warriors shifted sides from one day to the next and hid weapons, ammunition and troops in mosques, houses, markets and cultural sites. It became difficult for U.S. commanders to know whether their forces had hit friend or foe.

The Pentagon has sought to minimize the chance of disastrous mistaken air attacks by instituting stringent rules on targeting. Commanders, pilots, intelligence analysts and spotters on the ground nominate lists of targets they think are valid. Those nominations are then collected in computerized folders and analyzed by intelligence officials.

Lawyers, often seated at the right hand of commanders, vet the list to determine whether the target is being used for a military purpose and to judge whether the potential for civilian deaths is clearly outweighed by the military utility of the strike. The lawyers review the types of munitions commanders plan to use to ensure that what is ultimately dropped is least likely to harm civilians. They can recommend a bomb be dropped at a different angle or at a different time to minimize civilian deaths. The final decision is the commander’s.

As the fight moves beyond Afghanistan, the legal issues become thornier yet. Military lawyers have been charged with determining the legal constraints on conducting military operations in countries such as Yemen, Sudan, Malaysia and Saudi Arabia, whose legitimate governments to varying degrees tolerate terrorists or their supporters.

The old adage that “all’s fair in love and war” hasn’t been true for at least a century, but the detailed involvement of lawyers in battlefield decisions is relatively recent.

During World War II, both sides deliberately bombed civilian populations to destroy factories and instill fear. After Vietnam, a military still reeling from criticism of the 1968 My Lai massacre, in which U.S. forces killed hundreds of unarmed Vietnamese civilians, required military lawyers for the first time to review combat plans for compliance with international conventions and treaties.

But their role was limited until the 1980s, when the Joint Chiefs of Staff codified an expanded role for military lawyers, emphasizing for the first time their importance in every phase of operations. The memorandum required that all operational plans, contingency plans and rules of engagement be reviewed by lawyers for compliance with the international Law of War and with U.S. domestic law.

The Law of War is a code of conduct agreed to by signatories of the 1949 Geneva Convention and the 1907 Law of the Hague and their subsequent revisions. The two documents are designed to protect innocent civilians and provide rights for combatants.

The two conventions are not enforceable in the domestic legal sense. There is no permanent international body that polices violations of international law. Domestic courts can try individuals for violations of the conventions but rarely do. International tribunals have in some instances been set up to enforce the laws, most notably after World War II and the 1994 civil war in Rwanda.

But enforceable or not, the United States seeks to adhere to the conventions in order to convince its citizens and other governments that its actions are not just moral, but legal.

“As one Marine once summarized, the military’s job is to kill people and break things, and yet they are being asked to engage in a delicate form of international security policy,” said Joseph Montville, director of the preventive diplomacy program at the Center for Strategic and International Studies in Washington. “I think the highest policy levels want to make sure they have a legal case.”

As the U.S. military has seeded its ranks with lawyers at all levels, there is a concern that commanders have in some cases ceded their place as the ultimate decision makers to legal advisors whose advice should never be the final word.

“The risk is [that] in a society or a situation where people are often being second-guessed, it is awfully easy for the line commander to simply rely on the advice of the lawyer, particularly if the advice is to not shoot,” said retired Rear Adm. John Hutson, judge advocate general for the Navy until 2000. “That’s safe. It is the path of least resistance.”

In the case of the Taliban military convoy reinforcing positions against the Northern Alliance in October, Air Force targeters on the ground privy to intelligence reports on the convoy told their commanders it was a prime target, an Air Force general said.

But the Central Command’s top lawyer, Navy Capt. Shelly Young, advised against the strike, worried that there were indications that women and children might be in the convoy, the senior officer said.

Young declined through a spokesman to be interviewed for this article. But two senior operational lawyers at the Pentagon confirmed the account.

Rear Adm. Craig Quigley, spokesman for Central Command, wrote in an e-mail reply to a request to speak to Young that her role “is typical of other Judge Advocate Generals in advising their bosses on the legal aspects of target selection.

“She was never in a position to ‘stop’ any attack (nor is any JAG anywhere). That is the prerogative of Franks and other operational commanders alone.”

Under the Geneva Convention, warring nations are required to weigh the military effect of their actions against the likelihood of civilian deaths. And neither civilians nor civilian institutions such as churches and cultural sites are to be intentionally targeted.

In the case of the same lawyer’s advice not to strike at the convoy believed to be transporting Omar, two things gave Young pause, according to lawyers and Air Force generals familiar with the discussions. The Geneva Convention prohibits government-sponsored assassinations, and Omar could be considered a foreign leader. And the aircraft carrying the missile, an experimental Predator unmanned spy plane armed with a Hellfire missile, had not been vetted by legal staff for use as a weapon. Under Pentagon protocols, weapons must not be deemed unnecessarily cruel or capable of doing disproportionate damage to non-targets.

There is an element of the absurd to such legal distinctions. A bayonet with a hook on its end developed by the Pentagon in the 1960s, for example, was rejected by lawyers, who judged that the hook mechanism was unnecessarily cruel. But America’s nuclear arsenal, with the capability to kill many thousands of civilians, is considered legal.

While fighters complain that the lawyers wield too much power to halt military operations, human rights advocates complain that they wield too little. Two recent U.S. attacks in Afghanistan, for example, are being investigated on suspicion that they killed numerous innocent civilians.

In October, American bombs twice hit a Kabul warehouse belonging to the International Committee of the Red Cross.

Strikes against clearly marked Red Cross facilities are prohibited under the Geneva Convention.

“When they blew up that Red Cross warehouse twice in a row and said they knew what they were doing, I have problems with that,” said Francis A. Boyle, a professor of international law and an expert on laws of war at the University of Illinois College of Law. “I think decisions are clearly made not to adhere to the rules of war at the highest levels.”

While Pentagon officials have acknowledged that the second attack on the warehouse may have been a mistake, they defend the initial decision to strike.

“There is a lot of evidence that the area with the Red Cross on the warehouse, that warehouses in the immediate area were being used by the Al Qaeda, and it is not immediately clear that the warehouse that the ICRC used was not also being used by the Taliban,” a senior military official said.

“There is an incredible complexity here that does not exist in force-on-force warfare in a World War II sense.”

So the well-meaning efforts to make war a little less brutal has not made the targeting process--or the role of lawyers in it--any less controversial, much less eliminated the risk of civilian casualties.

While paid to uphold the law, ultimately the lawyers’ loyalty is to their commanders and to the military mission. It was the office of judge advocate general for the Air Force, for example, that in 1977 approved the use of cluster bombs. But the legality of the bombs, which disperse hundreds or thousands of tiny explosives over an area, has been disputed time and again in the years since, because they are more likely than other precision munitions to inadvertently strike civilians near a military target.

“The lawyers have to be the ones who aren’t afraid to tell the commanders no,” said Richards, the operational lawyer. “And there is a problem, because the general tendency is, you want to be able to accomplish the mission and help as much as possible. The burden is on lawyers to not be an obstacle to the mission.”