The Fox Nation and Hot Air.com have seized on a Wall Street Journal article that described how a Marine in Afghanistan consulted a member of the judge advocate general (JAG) corps about the legality of an air strike in order to falsely suggest President Obama initiated a policy where troops in battle would have to call “lawyers for permission to kill terrorists.” In fact, news reports indicate that the practice was already in place during the Bush administration.
Hot Air.com, The Fox Nation suggest Obama started policy of consulting lawyers before strikes
HotAir.com: “Obama's rules of engagement: Calling lawyers for permission to kill terrorists.” In a HotAir.com blog post titled, “Obama's rules of engagement: Calling lawyers for permission to kill terrorists,” right-wing blogger Patterico wrote: “When we have the terrorists in our crosshairs, we are still calling the lawyers to ask permission to fire....Quite literally.” He then quoted a Wall Street Journal article that “highlights the infuriating rules of engagement that we are operating under in Afghanistan.” The Wall Street Journal reported:
When Capt. Zinni spotted the four men planting the booby trap on the afternoon of Feb. 17, the first thing he did was call his lawyer.
“Judge!” he yelled.
Capt. Matthew Andrew, judge advocate for 1st Battalion, 6th Marine Regiment, advises the battalion about when it is legal to order the airstrikes. He examined the figures on the video feed closely. “I think you got it,” Capt. Andrew said, giving the OK for the strike.
The Fox Nation: “Obama's Army? Calling Lawyers for Permission to Kill Terrorists.” The Fox Nation linked to the HotAir.com post with the title, “Obama's Army? Calling Lawyers for Permission to Kill Terrorists.” From The Fox Nation:
But news reports show troops consulted “combat lawyers” during the Bush administration too
2003: Christian Science Monitor: “Squads of 'combat lawyers'...have been deployed to the war zone.” A Christian Science Monitor article by Brad Knickerbocker from March 14, 2003 (accessed via Nexis) describes how judge advocates were being deployed to war zones to assess the legality of air strikes. From the article:
More than ever, collateral damage and friendly fire - the downside of the likely “shock and awe” approach to war with Iraq - is a key part of Pentagon planning these days. New technologies, some of them untried in combat, are being deployed. The services are training to work together better than before. And squads of “combat lawyers” from the Judge Advocate Corps (JAG) have been deployed to the war zone to help make sure that targets of aerial bombing are allowed under international law and accepted rules of combat.
2003: U.S. Combat attorney: "[I]t is a lawyer's responsibility to advise the commander as he conducts his missions." On the March 19, 2003 edition of MSNBC's The Abrams Report, U.S. Army combat attorney Teresa Raymond discussed how lawyers are embedded with soldiers and “advise the commander as he conducts his missions that make sure that we're staying within” the rules of engagement. From the transcript (accessed via Nexis):
DANA LEWIS, NBC NEWS CORRESPONDENT (on camera): I'm in Camp New York where the 101st Airborne is based over the last week. We've been showing you soldiers firing weapons, rehearsing for war, and what a lot of people don't realize is that embedded in with the with the soldiers are a platoon-size group of lawyers. Some 26 lawyers and Captain Teresa Raymond is part of that. How do lawyers get involved with the commanders who are planning, you know, pulling the trigger on Iraq?
CAPT. TERESA RAYMOND, U.S. ARMY COMBAT ATTORNEY: Well, Mr. Lewis, actually the lawyers are an interval part of the planning process. The United States Army has set rules of engagement by the president of the United States. It outlines how we are going to conduct ourselves in a war. And it is a lawyer's responsibility to advise the commander as he conducts his missions that make sure that we're staying within those confines.
LEWIS: I've seen you in some of the mission planning sessions where there's maps and there's targets out on the wall and you're saying to the commander, what about those targets? That there are some that you can go after, and there are some that are questionable?
RAYMOND: Absolutely. We have set aside thousands of targets where we have decided that they are very important to the Iraqi public -- places like mosques, schools, museums, things of cultural importance. We are not at war with the Iraqi people and we want to preserve their culture, their heritage, and as much of their infrastructure as possible. So I will tell the commander, look sir, we're treading on dangerous here, we might want to steer away from this.
LEWIS: Is there concern, Captain Raymond that Saddam Hussein when war begins may try to use some of those so-called protected targets to his advantage?
RAYMOND: Absolutely, yes sir. We think that he is going to put some big guns near some schools, near some other targets that he can anticipate that we don't want to shoot at.
LEWIS: It leaves you with some very difficult choices, doesn't it?
RAYMOND: Gut-wrenching, gut-wrenching choices.
LEWIS: What if somebody fires on you from a hospital or a school? What do you do?
RAYMOND: We're going to defend ourselves. We're going to have to.
LEWIS: But there's proportion?
RAYMOND: Absolutely. We're always going to act proportionately to any threat that's levied against us with as much control over it as we can so that we can preserve as much of the protected targets as possible.
LEWIS: And that's where the lawyers stay in the battle. They actually go forward with the battle commanders. They are at the war front and they continue to advise them as the battle develops, even on an hourly basis as that's happening about what they think they should do and how they should conduct themselves as Americans in the battlefield.
2003: Fox News' Judge Napolitano: Military has a “judge advocate general court” who make “judgment calls on the spot.” On the March 18, 2003 edition of Fox News' The Big Story with John Gibson (transcript accessed via Nexis), Fox News contributor Judge Andrew Napolitano explained “how 1,500 lawyers will help keep America legal,” saying: “Believe it or not, this time around, the Army has 1,500 members, as you said, of the judge advocate general court, just a fancy word for military lawyers. These are officers who also happen to be lawyers with their laptops...Most of what they will be doing is making judgment calls on the spot. There's a mosque there, but there's also a tank in front of the mosque. Can we go for the tank even if we risk destroying the mosque? There are human shields in front of this radar installation. Can we attack it anyway?” Napolitano also reported that the practice of embedding the lawyers in units escalated under Bush. From the transcript (accessed via Nexis):
NAPOLITANO: The lawyers are not going to be running this war. But because of the presence of the media, because any bad things that may happen will be available to the world to watch immediately, the Pentagon is concerned that every effort be made to follow the rules of war. To make sure that civilians aren't intentionally killed and to give military commanders the opportunity, at least to rationalize, is this an appropriate target? Or is not worth what's going to happen even if we do hit the target?
JOHN GIBSON (host): Well, look. We all want to not see a repeat of the Melie incident, where we have William Calley mowing down a bunch of innocents. But on the other hand, this sounds a little bit like fighting with a lawyer shackled to your wrist. You know, can I shoot him? No. Can I shoot that one? Yes. Does this make sense, really? Even coming from a judge?
NAPOLITANO: Even coming from a judge, I'll tell you the last thing you want is a lawyer telling you which targets to aim at. But, basically, the lawyers will tell the commanders, in advance, what the rules of war are. If human shields go in front of a bona fide military target, it is not illegal to attack that target anyway. And that's the type of advice that lawyers should be giving these commanders. On the other hand, if a military target is of limited value, and will cause great but lawful civilian casualties, the commander might want to think twice. We not only have to win the war, we have to win the peace. But the war must be fought by professional military folks and not by lawyers.
GIBSON: Now, wait a minute. Has this ever happened before? Did we ever field an army of lawyers to go along with our army of soldiers?
NAPOLITANO: Never of this size. Believe it or not, there were judge advocate generals in the field in World War II, and certainly in the field in Vietnam and certainly in the field in the Gulf War, but never this number. Nor were there this many cameramen in the field recording and broadcasting live everything that's happening. And the military wants to make sure it does the right thing.
2004: Novak: “My sources tell of commanders, despite credible intelligence of enemy forces, calling off air strikes on the advice of JAGs.” Conservative columnist Bob Novak criticized the practice in a May 31, 2004 Chicago Sun-Times column (accessed via Nexis). Novak wrote: “It is a strange war, with the JAGs -- Judge Advocate General military lawyers -- given a hand in military decisions. My sources tell of commanders, despite credible intelligence of enemy forces, calling off air strikes on the advice of JAGs. This is the kind of restraint the U.S. military has experienced starting with the Korean War, when as a noncombat Army officer, I knew our forces had their hands tied behind their backs.”
2003: Senior Dept. of Defense official: “Every commander at every level has a legal adviser with him because there are laws of armed conflict and there are accepted means of behaving on a battlefield.” From a 2003 "Background briefing on Targeting":
Q: I want to go back to an issue that Jack raised, and that's about targeting oversight. There was this story -- whether it was correct or not, I don't know -- from Afghanistan, where a Predator had spotted a vehicle and there was a question about whether the JAG on duty had to authorize that strike. That created a lot of controversy over whether the role of the JAGs, given the -- sort of the short sense of the shooter space that we have now, whether the role of the JAGs is the same as it was in the past. Do JAG officers have to rule on --
Senior Defense Official: No. I think that was a grossly unfair characterization of the process. But I will say that it was also a process that we were learning, because that's the first time that we used that particular kind of weapon system on the battlefield, that gives you that situational awareness. But I think it was unfair to say that the JAG rules that process. Every commander at every level has a legal adviser with him because there are laws of armed conflict and there are accepted means of behaving on a battlefield. And so if you have a question, at every command level, you have a relationship with your combat lawyer that says, “Well, what do you think? This seems a little bit of a gray area to me; is it?” That is a healthy interaction and it needs to occur. The key is making that decision loop as tight as you can. And I think we've learned a lot from the first day of Afghanistan till today, and I think -- I'm confident, to go back to the point over here, that the decision cycle is very, very agile and should not be a concern.