Chapter 10
Information Operations
I. Introduction
A. Overview. Statutory and doctrinal changes in the area of information operations necessitate a careful and detailed practice in this area. Practitioners should resolve to be diligent in their research and appreciate the myriad aspects of information operations. Congressional action on information operations is in response to the challenges of the current security environment where strategic competitors pursue national objectives and advantage through the information environment. The threat posed by strategic competitors demands an integrated response that considers a military option. Judge advocates practicing in this area should stay abreast of new laws (codified in 10 U.S.C. § 397 (notes)) and new doctrine (new Joint Publication 3-04, Information in Joint Operations (2022)), which will continue to change and update to address the challenges posed by threats and activities in this area.
In military operations, information plays a critical role. Formerly, Information Operations (IO) were “the integrated employment, during military operations, of information related capabilities (IRCs) in concert with other lines of operation to influence, disrupt, corrupt, or usurp the decision making of adversaries and potential adversaries while protecting our own.”[3] The term “IRC” referred to those tools, techniques, or activities that are inherently information-based or primarily focused on affecting the information environment.
Prior IO doctrine proved too narrow and often times lacked sufficient prioritization in planning and operations (which brought about the changes contained in JP 3-04). Operations in the information environment are “[m]ilitary actions involving the integrated employment of multiple information forces to affect drivers of behavior.” Practitioners in this area should also read up on other U.S. Government Agencies such as Department of State and understand the roles and responsibilities of the U.S. Country Team. This chapter provides an overview of common information activities and the supporting information forces, along with potential legal issues.
Potentially as important as the references in this area may be the framework to address legal issues in this area. Judge advocates practicing in this area need to be diligent about ascertaining the background of the activity through a common set of baseline questions (for example see list of questions in Chapter 9).
B. Information Activities (formerly Information -Related Capabilities)
1. Public Affairs (PA): “Communication activities with external and internal audiences.”[8]
a. Discussion: “PA activities and IO support JFC objectives; counter adversary propaganda, misinformation and disinformation; and deter adversary actions. Although both PA and IO staffs plan public information activities and conduct media analysis, IO differs with respect to their authorities regarding domestic and international populations, scope, and intent.” PA provides truthful and accurate information regarding U.S. intentions and actions both to U.S. and foreign audiences.[10] PA aims exist in tension with OPSEC (restrict disclosure), MILDEC (deceive the adversary), and to an extent MISO (provide select information to influence, not merely inform). At the same time, PA and IO must maintain sufficient distance within the staff to avoid any appearance of propagandizing U.S. audiences or undermining the command’s credibility.[11]
b. Potential Legal Issues: Requirement that information be truthful; Prohibitions on use of funds for publicity or propaganda purposes within the United States or to influence U.S. public opinion.
c. Operational Guidance: Annex F to the OPLAN addresses Public Affairs.
2. Civil Affairs (CA): “Joint forces conduct [civil military operations (CMO)] and civil affairs operations (CAO) to enable unified action.” CMO are “[a]ctivities of a commander performed by designated military forces that establish, maintain, influence, or exploit relations between military forces and indigenous populations and institutions by directly supporting the achievement of objectives relating to the reestablishment or maintenance of stability within a region or host nation.”[15] CAO are “[a]ctions planned, coordinated, executed, and assessed to enhance awareness of, and manage the interaction with, the civil component of the operational environment; identify and mitigate underlying causes of instability within civil society; and/or involve the application of functional specialty skills normally the responsibility of civil government.” While CA is the primary coordinators and synchronizers of CMO and CAO, other joint forces, including legal support, “play major roles in supporting CMO.”
a. Discussion: “The joint force conducts CMO to facilitate military operations by establishing, maintaining, influencing, or exploiting relationships between military forces and the civilian populace.”
b. Potential Legal Issues: Mission overlap with other USG agencies and at operational and tactical levels, legal advisors must ensure support does not undercut USG and command objectives, as defined in theater or operational orders, plans, and other guidance. Legal advisors must also ensure that the DoD uses its appropriated funds for the correct missions. There are several statutory and policy requirements and limitations for CMO. “[R]estraints on CMO will exist during [security cooperation] based upon bilateral agreements the [United States] has with given countries. Most agreements prevent interference with HN internal affairs.” “Within the realm of [Defense Support to Civil Authorities], CMO is limited to the support rendered by DOD to domestic civilian authority.” Practitioners should also avail themselves of Chapters pertaining to Operational Funding and the Fiscal Law Deskbook.
c. Operational Guidance: Annex G to the OPLAN addresses Civil-Military Operations.
3. Military Information Support Operations (MISO): “[P]lanned operations to convey selected information and indicators to foreign audiences to influence their emotions, motives, objective reasoning, and ultimately the behavior of foreign governments, organizations, groups, and individuals in a manner favorable to the originator’s objectives.”[23] Judge advocates should start with the positive law for the conduct of MISO by citing to 10 U.S.C. §§ 164 and 167, and also be aware of congressional oversight procedures enacted in December 2022 contained in 10 U.S.C. § 398 and 399. For other service legal publications referencing MISO, practitioners should examine relevant sections from The Commander’s Handbook on the Law of Naval Operations and The Air Force Cyber Law Primer.
a. Potential Legal Issues: U.N. Charter (jus ad bellum analysis whether an action or message constitutes a threat of force under Article 2(4)); Law of Armed Conflict (jus in bello compliance with treaties and customary norms, e.g., rules on treachery and perfidy,[26] as well as prisoner of war and detainee treatment[27]); Communications Law (international law prohibiting harmful interference with radio broadcasts, and domestic or foreign laws regulating broadcasting); Law of the Sea (restricting pirate radio broadcasts and delineating territorial boundaries); Intelligence, Privacy, and Free Speech Laws (primarily domestic, restricting the state’s use of certain methods, targets, or actors to gather information, and preserving freedom of expression); Other U.S. domestic law restrictions (e.g., attribution vs. covert action,[28] copyright and trademark restrictions, and prohibition on propaganda directed at U.S. audiences,[29] State Department public diplomacy mission); and international agreements (e.g., on status of forces) or foreign domestic law, which may place limits on activities of military information support units.
b. Operational Guidance: Generally contained in Appendix 3 to Annex C of the OPORD or OPLAN. MISO generally proceeds under approved MISO programs. A MISO series is nested under a MISO program. In creating a MISO series, PSYOP planners must conduct research and analysis of critical information, develop themes and messages, and recommend methods of production and dissemination of the MISO product. When planning dissemination to an approved target audience, the staff must consider the most effective type of MISO product for a particular area; for example, leaflets, radio broadcasts, TV broadcasts, SMS messages, and/or internet-based products may each work better as delivery platforms in certain areas of the world than they would in others. Furthermore, MISO products must not be directed at domestic (i.e., U.S.) audiences. Legal advisors assist both in developing programs and series and in ensuring products compliance.
4. Military Deception (MILDEC): “[A]ctions executed to deliberately mislead adversary military, paramilitary, or violent extremist organization decision makers, thereby causing the adversary to take specific actions (or inactions) that will contribute to the accomplishment of the friendly mission.”[31]
a. Discussion: “MILDEC has been an aspect of warfare since antiquity.” Military Deception operations have been used throughout history. Famous examples include the Trojan Horse and World War II efforts to divert attention from Normandy for the D-Day invasion. The focus of MILDEC is desired behavior—not merely to mislead, but to cause adversaries to behave in a manner advantageous to the friendly mission, such as misallocating resources, attacking at a time and place advantageous to friendly forces, or avoiding action at all. MILDEC is unique from other information activities, and is controlled on a strict need-to-know basis due to the sensitive nature of its plans, goals, and objectives.[34]
b. Potential Legal Issues: U.N. Charter (jus ad bellum analysis whether actions constitute a threat or use of force under Article 2(4), or an armed attack under Article 51 that justifies actions in self-defense); Law of Armed Conflict (jus in bello compliance with treaties and customary norms, particularly those governing ruses and perfidy and protection of civilians and civilian property);[35] Neutrality Law (including both a sovereign nation’s right to remain neutral in armed conflicts and its obligation to prevent use of its territory to stage attacks); Communications Law (requiring, in peacetime, non-interference with certain state infrastructures and broadcasts); Intelligence, Privacy, and Free Speech Laws (primarily domestic, restricting the state’s use of certain methods, targets, or actors to gather information and preserving freedom of expression). For purposes of 50 U.S.C. § 3093, military deception techniques constitute a traditional military activity. Military Deception actions cannot intentionally target or mislead the U.S. public, Congress, or the U.S. media.
c. Operational Guidance: Generally contained in Appendix 3 to Annex C of the OPORD or OPLAN.
5. Operations Security (OPSEC): “OPSEC is a standardized process designed to meet operational needs by mitigating risks associated with specific vulnerabilities in order to deny adversaries critical information and observable indicators. OPSEC identifies critical information and actions attendant to friendly military operations to deny observables to adversary intelligence systems.”[39]
a. Discussion: OPSEC facilitates IO’s mission to ‘protect our own’ information and decision-making. Beyond information, the OPSEC process also serves to protect personnel and physical assets. Other IRCs and non-IO communities frequently satisfy OPSEC requirements to mitigate vulnerabilities.[40]
b. Potential Legal Issues: Counter Intelligence investigations; Freedom of Information Act (FOIA); Unauthorized disclosures of information. “OPSEC practices must balance the responsibility to account to the American public with the need to protect critical information. The need to practice OPSEC should not be used as an excuse to deny noncritical information to the public.”[41]
c. Operational Guidance: May be contained in Appendix 3 to Annex C of the OPORD or OPLAN, though other sections or annexes of the OPLAN may also discuss OPSEC.
6. Joint Electromagnetic Spectrum Operations (JEMSO): “JEMSO are military actions undertaken by a joint force to exploit, attack, protect, and manage the electromagnetic operational environment (EMOE)” to achieve the commander’s objectives.[43]
a. Discussion: EW may utilize technologies such as jamming equipment that have an effect in the physical domain, and JEMSO must consider international, foreign, and domestic rules allocating and protecting frequencies in the EMS. “All nations have a sovereign right to allocate the EMS as needed to support their national interests.” The successful conduct of operations requires the JFC to work with the nation at issue to balance these rights with the need to maintain security of United States and multinational forces.”
b. Electromagnetic Warfare: EW refers to any military action involving the use of electromagnetic (EM) and directed energy to control the EM spectrum or to attack the adversary. It includes three major subdivisions: Electromagnetic Attack (EA), Electromagnetic Protection (EP), and Electromagnetic Warfare Support (ES). EW contributes to the success of IO by using offensive and defensive tactics and techniques in a variety of combinations to shape, disrupt, and exploit adversarial use of the EM spectrum while protecting friendly freedom of action in that spectrum.[47]
(1) Electromagnetic Attack (EA): The use of EM energy, directed energy, or anti-radiation weapons to attack personnel, facilities, or equipment with the intent of degrading, neutralizing, or destroying adversary combat capability. It is considered a form of fires. EA platforms may also be used to deliver MISO messages in inaccessible terrain; rather than jamming a frequency with static, the platform broadcasts an approved MISO message to an approved target audience.
(2) Electromagnetic Protection (EP): Actions taken to protect personnel, facilities, and equipment from any effects of friendly or enemy use of EM spectrum that degrade, neutralize, or destroy friendly combat capability.
(3) Electromagnetic Warfare Support (EWS): Actions tasked by, or under direct control of, an operational commander to search for, intercept, identify, and locate or localize sources of intentional and unintentional radiated EM energy for the purpose of immediate threat recognition, targeting, planning, and conduct of future operations.
c. Potential Legal Issues: Particularly for EW, U.N. Charter (jus ad bellum analysis whether act constitutes a threat or use of force under Article 2(4), or an armed attack under Article 51 that justifies actions in self-defense); Law of Armed Conflict (jus in bello compliance with treaties and customary norms governing weapons, tactics, targeting, and protection of civilians and civilian property); Neutrality Law (including both a sovereign nation’s right to remain neutral in armed conflicts and its obligation to prevent use of its territory to stage attacks). For all aspects of JEMSO, Communications Law (international, foreign, and domestic, regulating the EMS and requiring, in peacetime, no harmful interference with certain state infrastructures and broadcasts); Law of the Sea (delineating territorial boundaries); Free Speech Laws (primarily domestic, preserving freedom of expression); Criminal Law (primarily domestic or foreign, prohibiting certain interferences with broadcasts); and National Security Law (attribution vs. covert action). Due to the continued expansion of wireless networking and the integration of computers and radio frequency communications, there will be operations and capabilities that blur the line between CO, signals intelligence (SIGINT), and EW and that may require case-by-case determination whether the activity is SIGINT and, when EW and CO are assigned separate release authorities.
d. Operational Guidance: Generally contained in Appendix 3 to Annex C of the OPORD or OPLAN.
7. Key Leader Engagement (KLE): “KLEs are deliberate, planned engagements between US military leaders and the leaders of foreign audiences that have defined objectives, such as a change in policy or supporting the JFC’s objectives.”[50]
a. Discussion: “These engagements can be used to shape and influence foreign leaders at the strategic, operational, and tactical levels, and may also be directed toward specific groups such as religious leaders, academic leaders, and tribal leaders; e.g., to solidify trust and confidence in US forces. At the tactical level, such engagements may be referred to as “Soldier and leader engagements.” KLEs may be applicable to a wide range of operations such as stability operations, counterinsurgency operations, noncombatant evacuation operations, security cooperation activities, and humanitarian operations. When fully integrated with other IRCs into operations, KLEs can effectively shape and influence the leaders of foreign audiences.”
b. Potential Legal Issues: Vary according to the engagement. Watch for overpromising or making promises that cannot legally, ethically, or fiscally be fulfilled; or accidentally concluding international agreements without authorization. Consult the relevant chapters in this Handbook on these subjects. Regarding IO specifically, U.S. forces must observe the U.N. Charter and Law of Armed Conflict obligations, including those regarding threats, ruses, and perfidy.
c. Operational Guidance: No specific annex is currently dedicated to key leader engagements.
8. Combat Camera (COMCAM): “(COMCAM) provides operational imagery; supports combat, information, humanitarian, special force intelligence, engineering, legal, and public affairs requirements; provides imagery that supports strategic, operational, and tactical levels of war; speeds decision making; and facilitates the vertical and horizontal flow of information.”
a. Discussion: COMCAM provides unique benefits at all levels of military operations. Some of these benefits include recording “engagements for historical purposes,” preparing “future public affairs or MISO products,” and countering “threat propaganda.” As a general precaution, units should avoid using the same footage for both MISO and public affairs products, as it can blur the distinction between the two. “If combat camera assets are not available, units can designate one or more Soldiers to use unit-issued or personal cameras.”
b. Potential Legal Issues: The most common legal issues with COMCAM are related to how the unit chooses to use the footage. Footage of captured, wounded, or deceased personnel should not be used in a manner that would constitute humiliating or degrading treatment. Additionally, units “must have a procedure in place for the review, clearance, and disposition of any images taken.”
c. Operational Guidance: No specific annex is currently dedicated