deployed marine air-ground task force judge advocate handbook

270 Pages·2013·2.03 MB·English

DEPLOYED
MARINE AIR-GROUND TASK FORCE
JUDGE ADVOCATE
HANDBOOK

April 2013

International and Operational Law Branch
Judge Advocate Division
Headquarters Marine Corps
Washington D.C., 20350

Center for Law and Military Operations
The Judge Advocate General’s Legal Center and School
U.S. Army
Charlottesville, Virginia 22903
DEPLOYED MAGTF JUDGE ADVOCATE HANDBOOK

Contributing Authors & Editors

Col Jason Lagasca
LtCol Derek Brostrek
LtCol Edward Danielson
LtCol Keith Forkin
LtCol John Hackel
LtCol Kurt Larson
LtCol Paul Meagher
LtCol Andrew Metcalf
LtCol Christopher Tolar
LtCol Devin Winklosky
Maj John Diefenbach
Maj Joseph Galvin
Maj Anthony Giardino
LCDR Paul Kapfer, JAGC, USN
Maj Tim Kelly
Maj Iain Pedden
Maj Michael Renz
Maj William "Joe" Schrantz
Capt James Burkart
Capt Matthew Richardson
Mr. Joseph Rutigliano

Special Thanks to all those in Judge Advocate Division that
contributed to the writing and editing of this Handbook.

Special Appreciation to all those involved
in the original 2002 publication.
DEPLOYED MAGTF JUDGE ADVOCATE HANDBOOK

Table of Contents
Chapter 1 Introduction to the Marine Air-Ground Task Force

Chapter 2 Judge Advocate’s Role in the Marine Corps Planning Process

Chapter 3 Recurring Rules of Engagement and Law of War Issues in
MAGTF Operations

Chapter 4 Military Justice

Chapter 5 Administrative Investigations

Chapter 6 Civil Law

Chapter 7 Foreign and Deployment Claims

Chapter 8 Legal Assistance

Chapter 9 Resources Necessary in a Deployed Environment

Appendices
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CHAPTER 1

INTRODUCTION TO THE MARINE AIR GROUND TASK
FORCE (MAGTF)

“The Marine Corps is America’s Expeditionary Force in Readiness
– a balanced air-ground-logistics team. We are forward deployed
and forward engaged: shaping, training, deterring, and responding
to all manner of crises and contingencies. We create options and
decision space for our Nation’s leaders. Alert and ready, we
respond to today’s crisis with today’s force…TODAY.”
- Gen James Amos, Commandant of the Marine Corps1

Since World War II, in nearly every crisis, the United States Marine
Corps has projected forces to the crisis area with the ability to move ashore,
backed with sufficient sustainability for prolonged operations. These forces
have been organized into Marine Air Ground Task Forces (MAGTF), a
combination that includes air, ground, and logistic assets, that maximizes the
combat power of each of the war fighting elements. This capability is unique
among all the military services and provides combatant commanders with
scalable, versatile, and agile expeditionary forces.

The largest standing MAGTF is the Marine Expeditionary Force (MEF),
which is comprised of a headquarters element, possibly multiple divisions
(ground combat element), wings (aviation combat element), and logistic groups
(combat service support element). The intermediate-sized MAGTF is the
Marine Expeditionary Brigade (MEB), which is normally composed of a
headquarters element, a reinforced infantry regiment, a composite air group,
and a brigade service support element. The smallest standing MAGTF is the
Marine Expeditionary Unit (MEU), which is composed of a headquarters
element, a reinforced infantry battalion, a composite air squadron, and a MEU
service support group. In addition to the MEF, MEB, and MEU, a MAGTF can
be task organized into essentially any size for a specific mission, operation, or
exercise. Such a MAGTF is referred to as a Special Purpose MAGTF
(SPMAGTF).

1 General James F. Amos, USMC; Reshaping America’s Expeditionary Force in Readiness, Report of the 2010
Marine Corps Force Structure Review Group (March 14, 2011).
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MAGTFs have long provided the United States with a broad spectrum of
response options when U.S. and allied interests have been threatened, or in non-
combat situations requiring instant responses to a crisis. Selective, timely, and
credible commitments of MAGTF units have, on many occasions, helped bring
stability to a region and sent signals worldwide to aggressors that the United
States is willing to defend its interests and able to do so on extremely short
notice with a significantly powerful force.

With these unique MAGTF capabilities come unique challenges. Three
of these challenges are recurrent themes of this book: tempo, transience, and
isolation. First, MAGTF operations are characterized by speed. Things move
fast in the MAGTF world, from the ability to deploy at a moment’s notice to the
ability to execute missions within hours of receipt of a warning or execute
order. As a result, MAGTF commanders and staff planners, including the judge
advocate (JA), must be able to act quickly and decisively with little time for
contemplation and debate. Second, MAGTFs rarely stay in one place for an
extended period of time. Whether it is the MEU floating from port to port on a
routine deployment or the MEB establishing a foothold in a hostile country for
follow-on forces, MAGTF operations are marked by the uncertainties and the
fluidity of transience. Third, because of its ability to sustain itself and fight as a
combined arms package, the MAGTF often finds itself as the lone force in the
early days of an operation or for an entire operation, requiring commanders and
staff planners to make critical decisions and take critical actions often times
with little outside support or guidance.

The unique mission of the MAGTF drives our law practice and our
approach to developing and assigning JAs. Our Corps is committed to the
principle that every Marine officer is a complete MAGTF officer and every
Marine is a rifleman. Without a MAGTF officer background, our JAs would be
less effective in their primary roles as command legal advisors, military justice
practitioners, and operational law advisors.

The JA Community assigns only the most senior and experienced JAs as
Staff Judge Advocates (SJAs) to the Marine Forces components, MEFs, Marine
Corps Installations, and our major subordinate commands. In the context of the
MAGTF, and in addition to MEF SJAs, Marine JAs serve on the commander’s
staff for the MEB and MEU. These assignments reflect the priority these billets
have in the Corps and the role these JAs have in advising senior commanders,
planning legal support of operations, and supervising the military justice
process for their commands. As a key member of a MAGTF commander’s
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staff, the JA provides advice and guidance to the commander on all legal issues,
including operational law, both in garrison and in deployed environments. The
value of the JA to the commander has been demonstrated in the recent
assignment of JAs to the regiment and battalion levels.

To meet the demand for legal support during combat operations, Marine
JAs have been assigned on an ad hoc, but continuous basis to deploying
regimental and battalion-level commands. As special staff officers, these JAs
perform a wide range of legal and non-legal functions within the unit. Similar
to higher headquarters SJAs, command JAs are intended to be the resident
experts and primary advisors to the commander on such issues as the Law of
War (LOW), rules of engagement (ROE), detainee handling, sensitive site
exploitation, targeting, military justice, and preventive law. A deployed
MAGTF JA also may be called upon to adjudicate claims in a foreign country,
or resolve complex legal issues with top-level officials from nongovernmental
organizations or foreign military forces as the only JA on the scene. Given
these challenges, the purpose of this handbook is to help MAGTF JAs quickly
identify and resolve recurring legal issues in MAGTF operations.

“Operational law” is a term that can have different meanings for different
persons. A common perception is that operational law deals exclusively with
ROE and the LOW. Another view is that operational law encompasses every
field of law that is practiced in a deployed environment. This handbook, similar
to Army legal doctrine, and guided by Marine experience, uses operational law
as an umbrella term to describe those legal disciplines and functions that have a
tangible impact on operations.2 According to Marine Corps Order 3300.4:
“Operational law is that body of international, foreign (host nation), and United
States domestic laws, regulations, and policies that directly affect United States
military operations across the operational spectrum – from peacetime activities
to combat operations.” Operational law, as a legal support function, addresses
the entire range of legal issues that arise as a direct result of planning and
executing military operations.

While traditionally focused on areas such as the LOW, status of forces
agreements, and ROE, it also encompasses such divergent areas as claims,

2 According to Army doctrine, “Judge Advocates serve at all levels in today’s operational environment and
advise commanders on a wide variety of operational legal issues. These issues include the law of war, rules of
engagement, lethal and nonlethal targeting, treatment of detainees and noncombatants, fiscal law, foreign
claims, contingency contracting, the conduct of investigations, and military justice.” U.S. DEP’T OF ARMY,
FIELD MANUAL 1-04, LEGAL SUPPORT TO THE OPERATIONAL ARMY at 1-1 (15 Apr. 2009).
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intelligence law, law of the sea, and cyber operations. The art of providing
operational law support is to identify legal and related policy issues in many
divergent areas, and rapidly synthesize them in order to give timely and
coherent legal advice to commanders, their staffs and Marines, and to assist
commanders in the assessment and mitigation of legal risk. The ultimate goal is
to ensure the Marine Corps can maintain unit readiness and conduct operations
in accordance with applicable laws, regulations, and policies.

Guided by this fundamental premise of operational law as a legal
umbrella, this handbook divides operational law into discrete chapters
discussing the legal disciplines and functions that comprise it.3

The first substantive chapter, chapter two in order, discusses crisis action
planning during MAGTF operations, specifically, the Marine Corps Planning
Process (MCPP). The MAGTF JA plays a pivotal role in the MCPP, yet most
JAs have had little or no MCPP training. This chapter endeavors to fill the
training gap by providing a detailed description of how the process works,
defining the terminology used in it, and emphasizing the critical need for JA
integration into MAGTF staff planning efforts. This chapter is consistent with
MCPP (MCWP 5-1) released by MARADMIN 487/10.

Chapter three addresses recurring ROE and LOW issues that arise in
MAGTF operations. Rather than duplicate material covered in other
publications, such as the Operational Law Handbook,4 this chapter strives to
analyze ROE and LOW issues in greater detail and with more of a focus on
Marine issues and problems than found in these other works.

Chapter four is dedicated to military justice. Discussed here are topics
such as the difficulties of conducting courts-martial in a deployed setting,
foreign criminal jurisdiction, and nonjudicial punishment aboard a naval vessel.
This chapter is not intended to be a military justice primer, but rather to
augment the baseline military justice knowledge most JAs possess with a
discussion of recurring criminal law issues unique to shipboard life and
deployment to foreign countries.

3 This handbook also borrows from Army legal doctrine in the selection of legal disciplines. “The core legal
disciplines are … military justice, international and operational law, administrative and civil law, contract and
fiscal law, claims, and legal assistance.” Id. at iii. Each of these disciplines is the subject of its own separate
chapter in this handbook, save international law, which is more of a cross-cutting discipline that appears in
many of the chapters, most prominently in the chapter on recurring ROE and LOW issues.
4 INT’L & OPERATIONAL LAW DEP’T, THE JUDGE ADVOCATE GENERAL’S SCHOOL, U.S. ARMY, OPERATIONAL
LAW HANDBOOK (2011).
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Chapter five focuses on recurring administrative law concerns in
MAGTF operations. In addition to discussions of government ethics and
informal unit funds, the chapter attempts to outline the interrelationships
between the various administrative investigations likely to arise in a deployed
environment, most notably aircraft and ground safety mishaps.

Broadly speaking, chapter six deals with civil law. More specifically, the
chapter highlights three areas of civil law that have proven difficult for MAGTF
JAs to grasp: fiscal law, deployment contracting, and overseas environmental
law. Somewhat of a departure from the other chapters, this chapter does not
strive to take a baseline knowledge of civil law and develop finer points
applicable to MAGTF operations. Put frankly, after action reports and
anecdotal evidence suggest that Marine JAs have a less-than-adequate
understanding of fiscal law, deployment contracting, and overseas
environmental law. To help alleviate this deficiency, the chapter wades through
the complexities of civil law in these three areas, capturing the essence of what
a MAGTF JA should be prepared to address.

Chapter seven addresses foreign claims. The primary purpose of this
chapter is to tie together claims statutes, international agreements, and claims
regulations into a comprehensible whole. For example, most JAs are familiar
with statutes such as the Foreign Claims Act, but few understand how the Act
interrelates with status of forces agreements or the concept of single-service
claims responsibility or the actual mechanics of paying a claim. This chapter
attempts to provide a logical framework for the JA to follow in determining
how to adjudicate and pay foreign claims.

Chapter eight’s focus is legal assistance. The purpose is not to present an
outline of substantive law, an undertaking that could fill an entire book, but
rather to identify recurring legal assistance issues and practical concerns in
MAGTF operations to better prepare the JA to provide sound counsel for
Marines of the MAGTF who are in need of legal assistance.

The final chapter sets forth guidance on conducting legal research and
providing legal support in a deployed environment. This chapter discusses
equipment, resources, and materials to bring on a deployment, and also
provides a current listing of unclassified and classified web sites useful for the
MAGTF JA.

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The remainder of the handbook consists of appendices. Feedback from
readers of other Center for Law and Military Operations (CLAMO)
publications indicates that oftentimes the materials found in the appendices
prove even more useful than the substantive chapters themselves.

In the end, it should be emphasized that this handbook is not a legal
“cookbook” for MAGTF JAs, nor a comprehensive collection of legal lessons
learned, nor a substitute for primary sources of law. The handbook’s focus is
on recurring legal issues faced by deployed MAGTF JAs and constitutes an
ambitious attempt to offer legal insight, analysis, and, when possible, guidance.

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