Chapter 6
National Security Structure & Joint Operations
I. INTRODUCTION
A. “As a nation, the U.S. wages war employing all instruments of national power—diplomatic, informational, military, and economic. The President employs the Armed Forces of the United States to achieve national strategic objectives. The Armed Forces of the United States conduct military operations as a joint force. ‘Joint’ connotes activities in which elements of two or more Military Departments participate.”[1]
B. This chapter is divided into two components for purposes of Judge Advocate national security law knowledge. The first component is the national military structure, which involves the organization of the Department of Defense and how service component forces (i.e., the Army, Navy, Air Force, and Marines) are provided to the operational commanders (i.e., combatant commands) to conduct military operations overseas. The United States military operates as a joint force; therefore, this chapter also discusses the joint force operational structures and command relationships associated with those structures.
C. The second component is the national security process, which describes how the decision to use military force is made and how other strategic guidance is communicated through the military chain of command to the operational and tactical commanders. This structure and process is important to understand because it serves as the source for guidance and approval authority on various operational issues.
D. The appendices to this chapter contain more specific information on individual components of the national security structure.
II. ORIGINS OF THE MODERN NATIONAL SECURITY STRUCTURE
A. The Army, Navy, and Marine Corps were initially established by the Continental Congress in 1775 at the onset of the American Revolution. Following adoption of the U.S. Constitution, the War Department was formally established in 1789 with the Revenue Cutter Service, the progenitor of the Coast Guard, being formed a year later in 1790, and the Department of the Navy formally established in 1798. The dichotomy of the armed services under these two cabinet-level departments remained in place until the end of World War II.[2] Following World War II, a trend toward greater centralization and jointness permeated the national security structure.
B. The National Security Act of 1947 created the modern national security structure by bringing all of the military departments under one entity, the National Military Establishment (NME) headed by the newly minted Secretary of Defense. “The changes in military organization prescribed in the act were intended to bring about unification of the armed forces through more centralized direction, stronger cohesion, and greater join effort and mutual support.”[3] The same act also created the Department of the Air Force, the Central Intelligence Agency, and the President’s National Security Council (NSC).[4]
C. In 1949, amendments to the National Security Act changed the name of the NME to the Department of Defense and elevated it to an executive department while subordinating the military departments under the DoD. This had the practical effect of removing the Service Secretaries from directly advising the president on military matters in the Cabinet. The Secretary of Defense was given increased authority to exercise “direction, authority, and control” over the department. In addition, the amendment created the Chairman of the Joint Chiefs of Staff (CJCS) and the entire JCS was designated the “principal military advisers” to the president, the NSC, and the Secretary of Defense.[5]
D. The Goldwater-Nichols Defense Reorganization Act of 1986
1. Goldwater-Nichols provided for a stronger and more active chairman, or CJCS, as the principal adviser to the president, NSC, and secretary of defense.[6] It increased the CJCS’s powers in relation to the Joint Chiefs of Staff (JCS), gave full authority over a strengthened Joint Staff, and control over the development of joint doctrine. To assist the chairman and act in his or her place when necessary, the act created the position of vice chairman of the JCS.[7]
2. Goldwater-Nichols also clarified the chain of command from the President to the Secretary of Defense to the Combatant Commands. The Combatant Commanders came directly under the Secretary of Defense—the chairman and the JCS were eliminated from the command chain.[8] The act authorized the Secretary of Defense to use the CJCS as a channel of communication to the Combatant Commanders, and this has generally been the practice.[9] The emphasis on the primacy of the Secretary of Defense in the military establishment reiterated a major theme of all major Defense Department organizational legislation since 1949 and clearly reflected the intent of Congress.[10]
III. NATIONAL STRATEGIC DIRECTION AND NATIONAL COMMAND AUTHORITY
A. National strategic direction is governed by the Constitution, U.S. law, U.S. policy regarding internationally recognized law, and the national interest as represented by national security policy. This direction leads to unified action which results in unity of effort to achieve national goals. At the strategic level, unity of effort requires coordination among government departments and agencies within the executive branch, between the executive and legislative branches, with nongovernmental organizations (NGOs), intergovernmental organizations (IGOs), the private sector, and among nations in an alliance or coalition, and during bilateral or multilateral engagement.[11]
B. National policy and planning documents generally provide national strategic direction. The President and Secretary of Defense, through the Chairman of the Joint Chiefs of Staff (CJCS), provide direction for Service Chiefs, Military Department Secretaries, Combatant Commanders (CCDRs), and Combat Support Agencies (CSA) directors to:[12]
1. Provide clearly defined and achievable national strategic objectives.
2. Provide timely strategic direction.
3. Prepare Active Component (AC) and Reserve Component (RC) forces for combat.
4. Focus DOD intelligence systems and efforts on the operational environment.
5. Integrate DOD, partner nations, and/or other government departments and agencies into planning and subsequent operations.
6. Maintain all required support assets in a high state of readiness.
7. Deploy forces and sustaining capabilities that are ready to support the Joint Force Commander’s (JFC) concept of operations (CONOPS).
C. The President of the United States is responsible to the American people for national strategic direction. When the U.S. undertakes military operations, the Armed Forces of the United States are only one component of a national-level effort involving all instruments of national power.[13]
1. Instilling unity of effort at the national level is necessarily a cooperative endeavor involving a number of USG departments and agencies. In certain operations, agencies of states, localities, or foreign countries may also be involved. The President establishes guidelines for civil-military integration and disseminates decisions and monitors execution through the NSC.[14]
2. Complex operations may require a high order of civil-military integration. Presidential directives guide participation by all U.S. civilian and military agencies in such operations. Military leaders should work with the members of the national security team in the most skilled, tactful, and persistent ways to promote unity of effort. Operations of departments or agencies representing the diplomatic, economic, and informational instruments of national power are not under command of the Armed Forces of the United States or of any specific JFC.[15]
3. In U.S. domestic situations, another department such as the Department of Homeland Security (DHS) may assume overall control of interagency coordination including military elements. Abroad, the chief of mission, supported by the country team, is normally in control.[16]
D. The Secretary of Defense (SecDef) is responsible to the President for creating, supporting, and employing military capabilities. SecDef is the link between the President and the CCDRs, and provides direction and control of the CCDRs as they conduct military activities and operations. SecDef provides authoritative direction and control over the Services through the Secretaries of the Military Departments. SecDef exercises control of and authority over those forces not specifically assigned to the combatant commands (CCMDs) and administers this authority through the Military Departments, the Service Chiefs, and applicable chains of command. The Secretaries of the Military Departments organize, train, and equip forces and provide for the administration and support of forces within their department, including those assigned or attached to the CCDRs.[17]
E. The Chairman of the Joint Chiefs of Staff (CJCS) is the principal military advisor to the President, the NSC, and SecDef and functions under the authority, direction, and control of the President and SecDef. The CJCS assists the President and SecDef in providing for the strategic direction of the Armed Forces. Communications between the President or SecDef and the CCDRs are normally transmitted through the CJCS.[18]
F. The Combatant Commanders (CCDRs) exercise combatant command (command authority) (COCOM) over assigned forces and are responsible to the President and SecDef for the preparedness of their commands and performance of assigned missions. Some combatant commanders have responsibility for a geographic area of responsibility (AOR) assigned through the Unified Command Plan (UCP). The UCP establishes CCMD missions and responsibilities, delineates the general geographical AORs, and provides the framework used to assign forces. Some combatant commanders have transregional responsibilities for assigned functions and support (or can be supported by) other CCDRs or may conduct missions assigned by the UCP independently.[19]
IV. ORGANIZATION OF THE DEPARTMENT OF DEFENSE
A. The Department of Defense (DoD) is essentially composed of: (1) the Office of the Secretary of Defense; (2) the Joint Chiefs of Staff; (3) the Joint Staff; (4) the Office of the Inspector General DoD; (5) Combatant Commands; (6) the Military Departments; (7) the Defense Agencies; and (8) the Field Activities.[20] Directions for military operations emanate from the National Command Authority, a term used to collectively describe the President and the SecDef. The President, as commander-in-chief of the armed forces, is the ultimate authority. The Office of the Secretary of Defense (OSD) carries out the SecDef’s policies by tasking the military departments, the Chairman of the Joint Chiefs of Staff and the Combatant Commands. The military departments train and equip the military forces. The Chairman plans and coordinates military deployments and operations. The Combatant Commands conduct the military operations.
B. Office of the Secretary of Defense (OSD). The SecDef has statutory authority, direction, and control over the Military Departments and is responsible for the effective, efficient, and economical operation of the DoD. The Office of the Secretary of Defense helps the Secretary plan, advise, and carry out the nation’s security policies as directed by both the Secretary of Defense and the President. Several key advisers work with the Secretary of Defense in critical areas, including policy, finance, personnel, and intelligence. OSD also performs oversight and management of the Defense Agencies and DoD Field Activities.[21]
C. Joint Chiefs of Staff (JCS). The Joint Chiefs of Staff, consisting of the Chairman of the Joint Chiefs of Staff; the Vice Chairman of the Joint Chiefs of Staff; the Chief of Staff, U.S. Army; the Chief of Naval Operations; the Chief of Staff, U.S. Air Force; and the Commandant of the Marine Corps, and supported by the Joint Staff under the direction of the Chairman of the Joint Chiefs of Staff, constitute the immediate military staff of the Secretary of Defense. An all-service, or “joint” service office supports the Chairman of the Joint Chiefs of Staff as the principal military advisor to the President, the National Security Council, the Homeland Security Council, and the Secretary of Defense. The Chairman plans and coordinates military operations involving U.S. forces and as such is responsible for the operation of the National Military Command Center, commonly referred to as the “war room,” from where all U.S. military operations are directed. In carrying out these duties, the Chairman consults with and seeks the advice of the other members of the Joint Chiefs of Staff and the combatant commanders, as appropriate.[22]
D. Military Departments. The Military Departments (Department of the Army, Department of the Navy, and Department of the Air Force) are organized separately under civilian secretaries who are responsible for and have authority to conduct the affairs committed to their departments. The Service secretaries are not in the operational chain of command. The Secretary of each Military Department, and the civilian employees and Military Service members under the jurisdiction of the Military Department Secretary, must cooperate fully with OSD to achieve efficient administration of the DoD and to exercise the authority, direction, and control of the SecDef effectively, efficiently, and economically. [23]
E. Defense Agencies and Field Activities. Defense Agencies and DoD Field Activities are established as DoD Components by law, the President, or the Secretary of Defense to provide for the performance, on a DoD-wide basis, of a supply or service activity that is common to more than one Military Department when it is determined to be more effective, economical, or efficient to do so. There are currently 18 defense agencies. Some defense agencies are assigned combat support functions and referred to as CSAs. CSAs support CCMDs. There are currently 10 DoD Field Activities.[24]
F. Combatant Commands. The Commanders of the Combatant Commands are responsible to the President and the Secretary of Defense for accomplishing the military missions assigned to them and exercise command authority over assigned forces as directed by the Secretary of Defense. The National Security Act of 1947 required that the Joint Chiefs of Staff create “unified commands,” and the Reorganization Act of 1958 confirmed in law the concept of “unified or specified combatant commands.” The number of commands varied over the years, but today there are now eleven “unified” commands: USAFRICOM; USCENTCOM; USEUCOM; USNORTHCOM; USINDOPACOM; USSOUTHCOM; USSPACECOM; USCYBERCOM; USSOCOM; USSTRATCOM; and USTRANSCOM[25]
V. THE CHAIN OF COMMAND
A. The President and SecDef exercise authority, direction, and control of the Armed Forces through two distinct branches of the chain of C2. One branch runs from the President, through SecDef, to the CCDRs for missions and forces assigned to their commands. For purposes other than the operational direction of the CCMDs, the chain of command runs from the President to SecDef to the Secretaries of the Military Departments and as prescribed by the Secretaries, to the commanders of Military Service forces.[26]
B. The Administrative Chain of Command.
1. The Military Departments operate under the authority, direction, and control of the Secretary of that Military Department. The Secretaries of the Military Departments may exercise administrative control (ADCON) over Service forces through their respective Service Chiefs and Service commanders. The Service Chiefs, except as otherwise prescribed by law, perform their duties under the authority, direction, and control of the Secretaries of the respective Military Departments to whom they are directly responsible.[27]
2. The Secretaries of the Military Departments operate under the authority, direction, and control of SecDef. This branch of the chain of command is responsible for ADCON over all military forces within the respective Service not assigned to CCDRs (i.e., those defined in the Global Force Management Implementation Guidance [GFMIG] as “unassigned forces”). This branch is separate and distinct from the branch of the chain of command that exists within a CCMD.[28]
C. The Operational Chain of Command. The CCDRs exercise combatant command or COCOM over assigned forces and are directly responsible to the President and SecDef for the performance of assigned missions and the preparedness of their commands. CCDRs prescribe the chain of command within their CCMDs and designate the appropriate command authority to be exercised by subordinate commanders.[29] Judge Advocates must understand the precise definitions of the various degrees of command in order to help ensure that U.S. commanders do not exceed the lawful authority conveyed by the command and control arrangements of the CJCS execute order. NOTE: The command and control lines between foreign commanders and U.S. forces represent legal boundaries that the lawyer should know and monitor.
D. Role of the CJCS. The role of the CJCS in the chain of command of the combatant commands is threefold: communications, oversight, and spokesman. Communications between the president and SecDef and the combatant commanders may pass through the CJCS. The Goldwater-Nichols DOD Reorganization Act of 1986 permits the
From JP 1, Doctrine for the Armed Forces of the United States, II-10
President to place the Chairman in the communications chain and the president has in fact directed that such communications pass through the Chairman. Oversight of the activities of combatant commands may be delegated by the SecDef to the CJCS. Finally, the CJCS is the spokesman for the CCDRs on the operational requirements of their commands. It must be reinforced here that the CJCS is not in the operational chain of command. The CJCS has no authority to direct operational forces.[32]
VI. COMMAND AUTHORITY AND RELATIONSHIPS
A. Combatant command (COCOM) (command authority) is the command authority over assigned forces vested in the combatant commander by Title 10, U.S. Code, Section 164, and is not transferable. Combatant command is exercised only by the CDRs of unified and specified CCMDs. It is the authority of a CCDR to perform those functions of command over assigned forces involving organizing and employing commands and forces, assigning tasks, designating objectives, and giving authoritative direction over all aspects of military operations, joint training, and logistics necessary to accomplish the missions assigned to the command.[33]
B. Operational Control (OPCON) is another level of authority used frequently in the execution of joint military operations. OPCON authority may be delegated to echelons below the combatant commander. Normally, this is authority exercised through component commanders and the commanders of established subordinate commands. Limitations on OPCON, as well as additional authority not normally included in OPCON, can be specified by a delegating commander.[34]
1. OPCON is the authority delegated to a commander to perform those functions of command over subordinate forces involving the composition of subordinate forces, the assignment of tasks, the designation of objectives, and the authoritative direction necessary to accomplish the mission. It includes directive authority for joint training. Commanders of subordinate commands and joint task forces will normally be given OPCON of assigned or attached forces by a superior commander.
2. OPCON normally provides full authority to organize forces as the operational commander deems necessary to accomplish assigned missions and to retain or delegate OPCON or tactical control as necessary. OPCON may be limited by function, time, or location. It does not include such matters as administration, discipline, internal organization, and unit training.
C. Tactical Control (TACON) The term tactical control is used in execution of operations and is defined as: "the detailed and direction and control of movements or maneuvers necessary to accomplish missions or tasks assigned . . . ."[35]
From Joint Pub. 3-0, Joint Operations, II-3.
VII. GLOBAL FORCE MANAGEMENT
A. The Goldwater-Nichols Act requires that forces under the jurisdiction of the Military Departments be assigned to the combatant commands, with the exception of forces assigned to perform the mission of the Military Department, (e.g., recruit, supply, equip, maintain). A force assigned or attached to a CCMD, or Service retained by a Service Secretary, may be transferred from that command to another CCDR only when directed by SecDef and under procedures prescribed by SecDef and approved by the President. The command relationship the gaining commander will exercise (and the losing commander will relinquish) will be specified by SecDef.[36]
B. Assignment and Transfer of Forces. Establishing authorities for subordinate unified commands and Joint Task Forces (JTFs) may direct the assignment or attachment of their forces to those subordinate commands and delegate the command relationship as appropriate. More information on how this process works in practice can be found in the following excerpt from Joint Publication 1, Doctrine for the Armed Forces of the United States:[37]
1. The CCDR exercises COCOM over forces assigned or reassigned by the President or SecDef. Forces are assigned or reassigned when the transfer of forces will be permanent or for an unknown period of time, or when the broadest command authority is required or desired. OPCON of assigned forces is inherent in COCOM and may be delegated within the CCMD by the CCDR.
2. The CCDR normally exercises OPCON over forces attached by SecDef. Forces are attached when the transfer of forces will be temporary. Establishing authorities for subordinate unified commands and JTFs normally will direct the delegation of OPCON over forces attached to those subordinate commands.
3. Except as otherwise directed by the President or SecDef, all forces operating within the geographic area assigned to a specific CCDR shall be assigned or attached to, and under the command of, that CCDR. (This does not apply to USNORTHCOM.) Transient forces do not come under the chain of command of the CCDR solely by their movement across operational area boundaries, except when the CCDR is exercising TACON for the purpose of force protection.
4. Unless otherwise specified by SecDef, and with the exception of the USNORTHCOM AOR, a CCDR has TACON for exercise purposes whenever forces not assigned to that CCDR undertake exercises in that CCDR’s AOR.
VIII. JOINT OPERATIONS[39]
- Joint Force Commands (JFCs).
1. Combatant Commands (CCMDs). A CCMD is a unified or specified command with a broad continuing mission under a single commander established and so designated by the President, through SecDef, and with the advice and assistance of the CJCS. Unified commands typically are established when a broad continuing mission exists requiring execution by significant forces of two or more Military Departments and necessitating single strategic direction and/or other criteria found in JP 1, Doctrine for the Armed Forces of the United States.
2. Subordinate Unified Commands. When authorized by SecDef through the CJCS, commanders of unified (not specified) commands may establish subordinate unified commands (also called subunified commands) to conduct operations on a continuing basis in accordance with the criteria set forth for unified commands. A subordinate unified command may be established on a geographic area or functional basis. Commanders of subordinate unified commands have functions and responsibilities similar to those of the commanders of unified commands and exercise OPCON of assigned commands and forces and normally of attached forces within the assigned operational or functional area.[40] Current examples of subunified commands are Alaskan Command under USNORTHCOM, and U.S. Forces, Japan (USFJ) under USINDOPACOM.
3. Joint Task Forces (JTFs). A JTF is a joint force that is constituted and so designated by SecDef, a CCDR, a subordinate unified command commander, or an existing commander, joint task force (CJTF) to accomplish missions with specific, limited objectives and which do not require centralized control of logistics. However, there may be situations where a CJTF may require directive authority for common support capabilities delegated by the CCDR.[41]
a. JTFs may be established on a geographical area or functional basis. JTFs normally are established to achieve operational objectives. When direct participation by departments other than DOD is significant, the TF establishing authority may designate it as a joint interagency task force. This might typically occur when the other interagency partners have primacy and legal authority and the JFC provides supporting capabilities, such as disaster relief and humanitarian assistance.[42]
b. The proper authority dissolves a JTF when the JTF achieves the purpose for which it was created or is no longer required.[43]
c. There are several ways to form a JTF HQ. Normally, the CCMD’s Service component HQ or the Service component’s existing subordinate HQ (e.g., Army corps, numbered air force, numbered fleet and Marine expeditionary force) convert themselves to JTF HQ. Also, the theater special operations forces, or SOF command or a subordinate SOF HQ with the requisite C2 capability can form the basis for a JTF HQ staff.[44]
d. CCDRs are responsible for verifying the readiness of assigned Service HQ staffs to establish, organize, and operate as a JTF-capable HQ. JTF HQ basing depends on the JTF mission, operational environment, and available capabilities and support. JTF HQ can be land- or sea-based with transitions between both basing options. JTFs are normally assigned a JOA.[45]
B. Components of a Joint Force Command (JFC).
1. There are essentially two major components of a JFC: a service component and/or a functional component. Regardless of the organizational and command arrangements within joint commands, Service component commanders retain responsibility for certain Service-specific functions and other matters affecting their forces, including internal administration, personnel support, training, logistics, and Service intelligence operations. This generally means that Army commanders will be responsible for Army matters within a Joint Command. Functional and Service components of the joint force conduct supported, subordinate, and supporting operations, not independent campaigns.
a. Service Components. CCDRs and subordinate unified commanders conduct either single-Service or joint operations to accomplish a mission. All JFCs may conduct operations through their Service component commanders, lower-echelon Service force commanders, and/or functional component commanders. Conducting joint operations through Service components has certain advantages, which include clear and uncomplicated command lines. This arrangement is appropriate when stability, continuity, economy, ease of long-range planning, and scope of operations dictate organizational integrity of Service components. While sustainment remains a Service responsibility, there are exceptions such as arrangements described in Service support agreements, CCDR-directed common-user logistics lead Service, or DOD agency responsibilities.[46]
b. Functional Components. The JFC can establish functional component commands to conduct operations when forces from two or more Services must operate in the same physical domain or accomplish a distinct aspect of the assigned mission. These conditions apply when the scope of operations requires that the similar capabilities and functions of forces from more than one Service be directed toward closely related objectives and unity of command is a primary consideration. For example, functionally oriented components are useful when the scope of operations is large and the JFC’s attention must be divided between major operations or phases of operations that are functionally dominated. Functional component commands are subordinate components of a joint force. Except for the Joint Force Special Operations Component Commander (JFSOCC), joint special operations task force (JSOTF), functional components do not constitute a “joint force” with a JFC’s authorities and responsibilities, even when composed of forces from two or more Military Departments.[47]
2. JFCs may conduct operations through functional components or employ them primarily to coordinate selected functions. The JFC will normally designate the Service component commander who has the preponderance of forces and the ability to command and control them as the functional component commander. However, the JFC will always consider the mission, nature and duration of the operation, force capabilities, and C2 capabilities when selecting a commander. The establishment of a functional component commander must not affect the command relationship between Service component commanders and the JFC.[48]
3. The functional component commander’s staff composition should reflect the command’s composition so that the staff has the required expertise to help the commander effectively employ the component’s forces. Functional component staffs require advanced planning, appropriate training, and frequent exercises for efficient operations. Liaison elements from and to other components facilitate coordination and support. Staff billets and individuals to fill them should be identified and used when the commander forms the functional component staff for exercises and actual operations.[49]
4. Joint forces often are organized with a combination of Service and functional components. For example, joint forces organized with Service components normally have SOF organized under a JFSOCC, while the conventional air forces will normally have a Joint Force Air Component Commander (JFACC) designated, whose authorities and responsibilities are defined by the establishing JFC based on the JFC’s CONOPS.[50]
IX. THE NATIONAL SECURITY PROCESS AND THE MILITARY
A. To best understand how the national security process impacts military operations, an understanding of the levels of warfare is necessary. Joint doctrine identifies three levels of warfare: strategic, operational, and tactical. The strategic, operational, or tactical purpose of employment depends on the nature of the objective, mission, or task. While most Judge Advocates will practice at the tactical and operational level, a few Judge Advocates advise at the strategic level as well. Judge Advocates should read and refer to the following strategic level documents: the National Security Strategy, the National Defense Strategy, the National Military Strategy, and the Unified Command Plan.
B. Equally important is that Judge Advocates at the tactical level should have an understanding of the processes that lead to important strategic and operational guidance that ultimately shapes the tactical missions they may be providing legal advice on. While the traditional separate levels of war may help commanders visualize a logical arrangement of missions, allocate resources, and assign tasks to the appropriate command, campaigns and major operations then provide the framework within which the joint force accomplishes the mission; the actual execution is more complicated. With today’s constant 24-hour media coverage and easy access to the Internet by our enemies for propaganda, a tactical-level plan and resulting action can have severe operational or strategic implications. For example, national policy established by the NSC may inform certain ROE limitations at the tactical level and explain why those limitations are in place. The figure below from JP 1 better illustrates the levels of warfare and their interaction.
From JP 1, Doctrine for the Armed Forces of the United States, p. I-7.
1. Strategic Level of Warfare: Strategy is a prudent idea or set of ideas for employing the instruments of national power in a synchronized and integrated fashion to achieve theater and multinational objectives. At the strategic level, a nation often determines the national (or multinational in the case of an alliance or coalition) guidance that addresses strategic objectives in support of strategic end states and develops and uses national resources to achieve them. The President, aided by the National Security Council (NSC) and Homeland Security Council (HSC) as the National Security Staff, establishes policy and national strategic objectives. The day-to-day work of the NSC and HSC is accomplished by the combined National Security Staff, the President’s principal staff for national security issues. The Secretary of Defense (SecDef) translates these into strategic military objectives that facilitate identification of the military end state and theater strategic planning by the CCDRs. CCDRs usually participate in strategic discussions with the President and SecDef through the CJCS and with partner nations. The CCDR’s strategy is an element that relates to both U.S. national strategy and operational-level activities within the theater.[53]
2. Operational Level of Warfare: The operational level links strategy and tactics by establishing operational objectives needed to achieve the military end states and strategic objectives. It sequences tactical actions to achieve objectives. The focus at this level is on the planning and execution of operations using operational art: the cognitive approach by commanders and staffs—supported by their skill, knowledge, experience, creativity, and judgment—to develop strategies, campaigns, and operations to organize and employ military forces by integrating ends, ways, and means. JFCs and component commanders use operational art to determine when, where, and for what purpose major forces will be employed and to influence the adversary’s disposition before combat. Operational art governs the deployment of those forces and the arrangement of battles and major operations to achieve operational and strategic objectives.
3. Tactical Level of Warfare: Tactics is the employment and ordered arrangement of forces in relation to each other. The tactical level of war is where battles and engagements are planned and executed to achieve military objectives assigned to tactical units or JTFs. Activities at this level focus on the ordered arrangement and maneuver of combat elements in relation to each other and enemy to achieve combat objectives.
U.S. Army
Battles are won by the infantry, the armor, the artillery, and air teams, by soldiers living in the rains and huddling in the snow. But wars are won by the great strength of a nation—the soldier and the civilian working together. ~General of the Army Omar N. Bradley
I. IntroDUCTIOn
Landpower is the ability—by threat, force, or occupation—to gain, sustain, and exploit control over land, resources, and people.[55] Our Army provides the United States with a campaign-quality force able to secure, seize, and occupy terrain; sustain itself; and enable our unified action partners to interact with, secure, or control populations. When necessary, the Army conducts large-scale ground combat operations on land to achieve strategic objectives and impose our will on enemies. No other force has this capability.[56]
II. MISSION
“The Army Mission—our purpose—remains constant: To deploy, fight, and win our Nation’s wars by providing ready, prompt, and sustained land dominance by army forces across the full spectrum of conflict as part of the Joint Force. The Army mission is vital to the Nation because we are a Service capable of defeating enemy ground forces and indefinitely seizing and controlling those things an adversary prizes most—its land, its resources, and its population.”[57]
III. ORGANIZATION
The Army organizes Armies, Corps, Divisions, and Brigades to meet its mission.[58] Operational units are task-organized to make the most effective use of the functional skills and specialized equipment. In addition to conventional organizations, the Army maintains Special Operations units. Major force organizations include:
A. Armies: Army Service Component Command (ASCC), or Theater Army/Field Army. Armies are usually commanded by three- or four-star Generals. Of the nine ASCCs, six are focused on geographic regions, while three are focused on functional areas.[59]
B. Corps. Lieutenant Generals (three-star) command Corps. There are currently four corps headquarters: I Corps (Fort Lewis, WA); III Corps (Fort Hood, TX); V Corps (Fort Knox, KY); and XVIII Airborne Corps (Fort Bragg, NC).[60]
C. Divisions. Divisions are commanded by Major Generals (two-star). The Army has twenty division headquarters (twelve Active Component, and eight National Guard).[61] The division headquarters are designated light, armored, airborne, etc.; however, they have all types of brigades task-organized to them for operations.
D. Brigade Combat Teams (BCT). Commanded by Colonels, BCTs are the Army’s primary combined arms close combat force.[62] BCTs conduct offensive, defensive, stability and civil support operations. All BCTs include maneuver; field artillery; intelligence; signal; engineer; chemical, biological, radiological, and nuclear (CBRN); and sustainment capabilities. Augmentation might include aviation, armor, infantry, field artillery, air defense, military police, civil affairs, military information support elements, engineers, CBRN, and information systems. The BCT legal staff includes a brigade judge advocate (O-4), a military justice advisor (O-3), and a senior paralegal NCO (E-7), who are responsible for providing legal services across core legal disciplines as required, especially: military justice, national security law, administrative law, and contract and fiscal law.[63] The brigade judge advocate (BJA) serves as the legal advisor to the BCT commander. However, the BJA is under the technical supervision of the staff judge advocate.[64] There are three types of maneuver BCTs: Infantry,[65] Armored,[66] and Stryker.[67]
Army Units
|
Unit
|
Commander/Leader
|
Approx. Size
|
Unit
|
Commander/Leader
|
Approx. Size
|
|
Army
|
General or Lieutenant General
|
100,000+
|
Battalion
|
Lieutenant Colonel
|
500-600
|
|
Corps
|
Lieutenant General
|
20,000-40,000
|
Company
|
Captain
|
100-200
|
|
Division
|
Major General
|
10,000-18,000
|
Platoon
|
Lieutenant
|
16-50
|
|
Brigade
|
Colonel
|
3,000-5,000
|
Squad
|
Staff Sergeant
|
4-10
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IV. OPERATIONS. NSL Practitioners should review Army doctrinal publications to understand Army operations such as ADP 3-0 and Field Manual 3-0, updated in October 2022. The Army prepares leaders and Soldiers for the fluid operational environment. The operational environment is characterized by diverse operational and mission variables.[69] No two operational environments are alike and the operational environment will change over time.[70] Army land operations are characterized by four tenets: simultaneity, depth, synchronization, and flexibility.[71] Commanders in these operations leverage the six warfighting functions—command and control, movement and maneuver, intelligence, fires, sustainment, and protection—to accomplish the mission.[72] Commander apply combat power through these warfighting functions using leadership and information.[73]
V. CONCLUSION. The Army’s primary mission is to fight and win our Nation’s wars. The Army’s structure provides the flexibility and lethality necessary to meet the demands of the fluid operational environment, which includes offensive, defensive and stability operations. The Army forms the key ground force for joint operations.
U.S. Marine Corps
I. Mission
A. Under 10 U.S.C. § 5063, the Marine Corps’ primary mission is to be “organized, trained, and equipped to provide fleet marine forces of combined arms, together with supporting air components, for service with the fleet in the seizure or defense of advanced naval bases and for the conduct of such land operations as may be essential to the prosecution of a naval campaign.” In addition, the Marine Corps provides detachments and organizations for service on armed Navy vessels, security detachments for the protection of naval property at naval stations and bases, and such other duties as the President may direct.
B. The ground, air, and supporting forces that make up the Marine Corps are trained and equipped to make available to the President and the unified Combatant Commanders the capability to react quickly to any military contingency in the world. As a result, Marine operational forces are “task organized” and deployed to meet whatever contingency mission they may be assigned, ranging from a natural disaster, such as Operation UNIFIED RESPONSE, the relief effort following the January 2010 earthquake in Haiti, to sustained ground combat such as in Operation INHERENT RESOLVE (OIR) and Operation FREEDOM’S SENTINAL (OFS). Because Marine forces often deploy from and are sustained by sea-based platforms, they are referred to as “expeditionary” (being able to operate in areas where there was previously no supporting infrastructure).
II. Force Structure
A. Introduction. The Marine Corps is organized as the nation’s “force in readiness” into four broad categories: Headquarters, U.S. Marine Corps (the Commandant of the Marine Corps and his advisory staff agencies); the operating forces; Marine Corps Forces Reserve; and the supporting establishment (personnel, bases, and activities that support the operating forces). According to 10 U.S.C. § 5063, “the Marine Corps, within the Department of the Navy, shall be so organized as to include not less than three combat divisions and three air wings, and such other land combat, aviation, and other services as may be organic therein.” The Marine Corps present force structure is approximately 186,000 active duty Marines and 38,000 Reservists.
B. Operating Forces. The operating forces (as supplemented by the Reserves) are considered the heart of the Marine Corps. They constitute the forward presence, crisis response, and fighting power available to the Combatant Commanders. The Marine Corps has established three permanent combatant-level service components in support of unified commands with significant Marine forces assigned: U.S. Marine Corps Forces Command (MARFORCOM); U.S. Marine Corps Forces, Pacific (MARFORPAC); and U.S. Marine Corps Forces, Special Operations Command (MARSOC). Marine Corps Forces Command (MARFORCOM) is one of three major Marine Corps commands (with U.S. Marine Corps Forces, Pacific (MARFORPAC) and U.S. Marine Corps Forces, Reserve (MARFORRES)) that provide operating forces. About 64 percent of all active duty Marines are assigned to these operating forces. As dictated by 10 U.S.C. § 5063, operating forces are made available from four (3 active, 1 reserve) Divisions, Wings, and Marine Logistics Groups (MLG). II Marine Expeditionary Force (II MEF) is provided by the Commander, MARFORCOM, to Combatant Commanders. I and III MEFs are provided by the Commander, MARFORPAC, to the Commander, U.S. Pacific Command. Marine forces are apportioned to the remaining geographic combatant commands for contingency planning and are provided to the Combatant Commands when directed by the Secretary of Defense. The newest Marine Corps Command, U.S. Marine Corps, Cyber (MARFORCYBER) became operational in October of 2010.
C. Legal Support. Command legal advice in the Marine Corps is provided primarily by a command’s Staff Judge Advocate (SJA). Four Legal Services Support Sections (LSSS) (located in Camp Pendleton, CA, Camp Lejeune, NC, Camp Butler, Okinawa, and Marine Corps Base Quantico, VA) and nine subordinate Legal Services Support Teams (LSST) provide consolidated legal services in garrison beyond the organic capability of a command’s SJA. The LSSS and LSSTs provide support to commands and individual Marines, Sailors, and other eligible recipients within their designated Legal Services Support Area (LSSA). The LSSS and LSSTs provide a full range of legal services in the following functional areas: military justice, civil law, administrative law, ethics, claims, and legal assistance. Each subordinate LSST is comprised of a Trial Services Office, a Defense Service Branch Office, an Administrative Law Office, a Legal Assistance Office, and a Special Assistance U.S. Attorney (if required). Each LSSS is comprised of a regional office geographically co-located with the respective Marine Corps Installation (MCI) headquarters. The Officer-in-Charge (OIC) of each LSSS is responsible to the regional MCI Commanding General (CG) for the provision of legal services in garrison, beyond the organic capability of SJAs, to all operating forces and supporting establishment commands within the LSSS’s designated LSSA. The OIC, LSSS also serves as a special staff officer to the regional MCI CG and has exclusive staff cognizance over the legal services support function within the region. While the OIC, LSSS is responsible for supporting the legal needs of the operational commands, he or she does not provide legal advice to the commanding general of the operating forces. That traditional duty remains with the SJA. Each major command (division, wing, logistics group) has an SJA and a small legal staff consisting of a Deputy SJA, several company grade officer staff attorneys, and an enlisted legal support staff. The bulk of the legal assets remain in the LSSS. During OIF and OEF, lawyers were directly assigned to deploying Battalion and Regimental staffs to provide legal counsel to that respective commander. This operational change, however, is not permanently embedded into the USMC Table of Organization (T/O). Marine Judge Advocates are also assigned to Headquarters, U.S. Marine Corps, the supporting establishment, and MARFORRES. These Judge Advocates are often called upon to support the operating forces through deployments as individual augmentees or by providing reach-back support. Legal support to Marine Air Ground Task Forces (MAGTFs) (see section III(A) below) is provided based on mission requirements. Marine Expeditionary Units (MEU) (see section III(E) below) traditionally deploy with one field grade officer JA and an enlisted legal chief. Marine Judge Advocates are unrestricted line officers and may also serve in command billets and various other non-legal billets.
III. task organization: the marine air-ground task force (magtf)
A. To meet mission-oriented expeditionary requirements, the Marine Corps has developed the concept of Marine Air-Ground Task Force (MAGTF) organization. The MAGTF is the Marine Corps principal organization for the conduct of all missions across the range of military operations. The MAGTF provides a combatant commander or other operational commander with scalable, versatile amphibious and expeditionary forces able to assure allies; deter potential adversaries; provide persistent United States presence with little or no footprint ashore; and respond to a broad range of contingency, crisis, and conflict situations. MAGTFs are a balanced combined arms force package containing command, ground, aviation, and logistics elements. It is a building block concept: the fleet/joint commander’s operational requirement or task is analyzed, and the appropriate units are drawn from a Marine division, aircraft wing, and logistics group into an air-ground-logistics team under one commander to meet the task. The resulting MAGTF may be of any size, and the weight and composition of its component elements may vary, depending on the mission and enemy situation. The building block approach also lends itself to rapid expansion into a larger force as a situation demands. In each case, there will be a MAGTF command element (CE), a ground combat element (GCE) (under certain conditions, more than one), an aviation combat element (ACE), and a logistics combat element (LCE).
MAGTF STRUCTURE
The CE Provides a single headquarters for command, control, and coordination of ground, air, and logistic support elements.
The GCE may range in size from an infantry battalion to one or more divisions. It may include artillery, tanks, assault amphibious vehicles, light armored infantry, and combat engineer organizations.
The ACE may vary in size from a detachment of one or more aircraft to a reinforced helicopter squadron to one or more aircraft wings. It may include offensive air support, assault support, air reconnaissance, anti-air warfare, electronic warfare, and command and control organizations.
The LCE forms around a combat logistics headquarters, and may vary in size and composition from a support detachment to, one or more Marine Logistics Groups (MLGs). It is task organized to provide the full range of combat logistics functions and capabilities necessary to maintain the continued readiness and sustainability of the MAGTF as a whole.
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B. Four types of MAGTFs can be task organized as follows: the Marine Expeditionary Force (MEF), the Marine Expeditionary Brigade (MEB), the Marine Expeditionary Unit (MEU), and the Special Purpose Marine Air Ground Task Force (SPMAGTF).
C. A MEF is the principal Marine Corps warfighting organization, particularly for a larger crisis or contingency, and is normally commanded by a lieutenant general. A MEF can range in size from 20,000 to 90,000 Marines and sailors, from less than one to multiple divisions and aircraft wings, together with one or more MLGs. With sixty days of accompanying supplies, MEFs are capable of both amphibious operations and sustained operations ashore in any geographic environment. With appropriate augmentation, the MEF command element is capable of performing as a Joint Task Force (JTF) Headquarters. A MEF will normally deploy in echelon and will designate its lead element as the MEF (Forward). MEFs are the primary “standing MAGTFs,” existing in peacetime as well as wartime. The Marine Corps has three standing MEFs: I MEF is based in California and Arizona; II MEF is based in North and South Carolina; and III MEF is forward-based in Okinawa and mainland Japan.
D. A MEB, normally commanded by a brigadier general, is a scalable MAGTF with a force of up to 20,000 Marines and Sailors. The scalable MEB is capable of full spectrum operations, and self-sustainment for 30 days. The standing MEB CEs are the 1st MEB, which is embedded in the I MEF staff, while 2d and 3d MEBs are stand-alone organizations. The standing MEB CEs do not have permanently assigned forces, instead they maintain habitual relationships with associated major subordinate elements through planning and exercises. When mobilized, a MEB is comprised of a reinforced infantry regiment, a composite Marine Aircraft Group, and a task-organized Combat Logistics Regiment. MEBs provide CCDRs with a scalable warfighting capability across the ROMO and can conduct amphibious assaults and operations ashore in any geographic environment. As an expeditionary force, a MEB is capable of rapid deployment and employment via amphibious shipping, strategic air and sealift, geographic or MPF assets, or any combination of these. A MEB can operate independently, serve as the forward echelon of a MEF, or act as a JTF headquarters with augmentation. During potential crisis situations, a MEB may be forward deployed afloat (typically aboard fifteen amphibious ships, including five large-deck amphibious assault ships) for an extended period in order to provide an immediate combat response.
E. Forward deployed MEUs embarked aboard amphibious shipping (typically three ships) within a larger naval Expeditionary Strike Group (ESG) package, operate continuously in the areas of responsibility of numerous unified combatant commanders. A MEU is typically comprised of approximately 2,600 Marines and sailors. These are standing units that provide the President and combatant commanders an effective means of dealing with the uncertainties of future threats by providing a forward-deployed force with unique capabilities for a variety of quick reaction, sea-based, crisis response options in either a conventional amphibious/expeditionary role or in the execution of maritime special operations. MEUs train for operations to be executed within six hours of receipt of the mission. The forward-deployed MEU, forged and tested in real-world contingencies, remains the benchmark forward operating Marine force. The MEU is commanded by a colonel and deploys with fifteen days of accompanying supplies. It is composed of a reinforced infantry battalion, a composite aviation squadron, and a combat logistics battalion. The 11th, 13th, and 15th MEUs are drawn from I MEF assets based in Camp Pendleton, CA. The 22nd, 24th, and 26th MEUs are drawn from II MEF assets based in Camp Lejeune, NC and the 31st MEU is drawn from III MEF assets based in Okinawa, mainland Japan, and Hawaii. A MEUs organic capabilities include:
1. Amphibious Operations: Amphibious Assault, Amphibious Raids, Small Boat Raids (31st MEU), and Maritime Interception Operations.
2. Expeditionary Support to Other Operations/Crisis Response and Limited-Contingency Operations: Noncombatant Evacuation Operations, Humanitarian Assistance, Embassy Reinforcement, Stability Operations, Joint and Combined Operations, Aviation Operations from Expeditionary Sites, Theater Security Cooperation Activities, Airport and Port Seizures, Visit/Board/Search and Seizure, and Advance Force Operations.
Notional laydown of a Marine Expeditionary Unit (MEU)
F. A SPMAGTF may be of any size, but normally no larger than a MEU, with tailored capabilities required for accomplishing a particular mission. It may be task-organized from non-deployed Marine Corps forces or formed on a contingency basis from a portion of a deployed MAGTF. Regimental-level headquarters often assume the role as a SPMAGTF command element and may conduct training in anticipated mission skills prior to establishment. A SPMAGTF may deploy using amphibious warfare ships, commercial ships or aircraft, inter-theater airlift, or organic Marine aviation. Frequently, SPMAGTFs conduct sea and land-based security cooperation activities, while others have been formed to provide sea-based FHA or military support to civil authorities or to participate in freedom of navigation operations.
G. Maritime Prepositioning Force. As is evident from the above, an overriding requirement for MAGTFs, and especially MEUs, is the ability to plan rapidly and effectively for the execution of real world contingencies with the forces, lift, logistics, and enemy situation at hand. MAGTFs deploy by amphibious shipping and airlift and are sustained on the ground by their own organic assets, as well as by Maritime Prepositioning Force (MPF) or other prepositioned equipment. The MPF program, which began in 1981, consists of fourteen self-sustaining, roll-on/roll-off ships, civilian-owned and operated under long-term charters to the Military Sealift Command (MSC). The MPF is organized into two Maritime Pre-positioning Ship Squadrons (MPSRON),. MPSRON-2 is based at Diego Garcia in the Indian Ocean, and MPSRON-3 is based in Guam and Saipan in the Western Pacific Ocean. Each MPSRON provides enough tanks, artillery, vehicles, ammunition, supplies, food, fuel, and water to support a MEB for thirty days of combat. The ships can be used separately or in larger groups to support smaller or larger MAGTFs. A single MPF ship is capable of supporting a MEU for thirty days.
U.S. Navy
I. INTRODUCTION. “The United States is a maritime nation. Our security and prosperity depend on the seas.”[77] “By value, 90 percent of global trade travels by sea, facilitating $5.4 trillion of U.S. annual commerce and supporting 31 million American jobs. Undersea cables transmit 95 percent of international communications and roughly $10 trillion in financial transactions each day.”[78]
II. MISSION
A. Navy Mission. “
“On December 23, 2022, President Biden signed the Fiscal Year 2023 National Defense Authorization Act [] into law. . . Of particular interest to the Navy JAG Corps is a critical change in the statutory mission of the Navy . . . Specifically, 10 U.S.C. 8062(a), which describes the Navy’s mission, now reads:
‘The Navy, within the Department of the Navy, includes, in general, naval combat and service forces and such aviation as may be organic therein. The Navy shall be organized, trained, and equipped for peacetime promotion of the national security interests and prosperity of the United States and for prompt and sustained combat incident to operations at sea. It is responsible for the preparation of naval forces necessary for the duties described in the preceding sentence except as otherwise assigned and, in accordance with integrated joint mobilization plans, for the expansion of the peacetime components of the Navy to meet the needs of war.’
The revised language in bold above is a significant new statutory mandate, as it is the first change to the Navy’s mission since 1986, and only the second change since this statutory mission was enacted in 1956. Furthermore, it highlights the importance of the Navy’s daily contribution to ensuring our nation’s security, both during active combat operations as well as when ensuring freedom of the seas for all nations. At the highest levels, this articulation of the Navy’s non-combat functions may also facilitate resourcing discussions in support of the Navy’s mission.”[79]
The Secretary of the Navy stated: “As our central governing concept, the top priority for the Department of the Navy will be to develop concepts of operations and capabilities that bolster deterrence and expand our warfighting advantages vis-[à]-vis the People’s Republic of China
B. Maritime Strategic Concept. The Chief of Naval Operations Navigation Plan (CNO NAVPLAN) executes the 2020 TRISERVICE Advantage at Sea Strategy: “A larger, more lethal, more ready fleet manned by the world's greatest Sailors is required to maintain our advantage at sea and protect America for years to come. We will deliver, operate, and maintain that Navy with a focus on our core roles of sea control and power projection. Sea control provides the Joint Force freedom to maneuver and strike, protects friendly shipping, and denies use of the sea to our adversaries. In our digital age, it also means fighting our adversaries in space, cyberspace, and along the electromagnetic (EM) spectrum. Successful modern sea control demands the all-domain power of our Navy and the Joint Force. Our Navy must also be able to influence events ashore. This starts with deterring a nuclear attack against our nation with our ballistic missile submarines – the most survivable leg of the nuclear triad. Projecting power and influence from the seas is vital to deterring aggression and resolving crises on acceptable terms. Projecting power and influence ranges from launching strikes against adversary forces to shaping the battle ‘well left of launch’ and demonstrating to a competitor they have no viable means of achieving their objectives. Naval forces field capabilities in all-domains to deter aggression - employing information warfare, cyber capabilities and special operations to a host of conventional weapons launched from under, on, and above the sea. Our power projection capabilities alongside our strategic deterrent provide the surest guarantee of security for America and our allies and partners.”[81] In 2022, the CNO released a NAVPLAN update based on “three key developments,” to include the release of the 2022 National Defense Strategy, the development of the Joint Warfighting Concept, and a recognition that “the Navy needs a more continuous, iterative Force Design process to focus [] modernization efforts.
III. ORGANIZATION AND FORCE STRUCTURE
A. Components. The Department of the Navy has three principal components: (1) The Navy Department; (2) the operating forces, including the Marine Corps, the reserve components, and the U.S. Coast Guard, which can be transferred to the Navy in whole or in part, by either act of Congress or executive action in time of war; and (3) the shore establishment.
1. Navy Department. The Navy Department is comprised of the Office of the Secretary of the Navy (SECNAV), and the Office of the Chief of Naval Operations (OPNAV). The Chief of Naval Operations (CNO) is the senior military officer in the Navy, akin to the Chief of Staff of the Army or Air Force.
2. Operating Forces. Known as “the fleet,” the operating forces, commanders, and fleet commanders have a dual chain of command. Administratively, they report to the CNO and provide, train, and equip naval forces. Operationally, they provide naval forces and report to the appropriate Unified Combatant Commanders. Commander, Fleet Forces Command, commands and controls fleet assets in both the Atlantic and the Pacific Oceans for inter-deployment training cycle purposes. As units of the Navy enter the area of responsibility for a particular Navy area commander, they are operationally assigned to the appropriate numbered fleet. All Navy units also have an administrative chain of command (exercising administrative control, or ADCON), with the various assets reporting to the appropriate Type Commander (e.g., surface vessels, submarines, and aircraft are different ‘types’).
3. Shore Establishment. The shore establishment is composed of ten Regions, containing 70 installations, and 123 Naval Operations Support Centers that span the globe and provide support to the operating forces in the form of facilities for the repair of machinery and electronics; port security; communications centers; training areas and simulators; ship and aircraft repair; intelligence and meteorological support; storage areas for repair parts, fuel, and munitions; legal, medical, and dental facilities.
B. Power Projection. The Carrier Strike Group (CSG) is the most effective method of U.S. power projection. Other methods of naval power projection include unmanned systems and the Amphibious Ready Group (ARG).
1. Carrier Strike Group. A CSG generally consists of an aircraft carrier (CVN), its embarked air wing (CVW)[84] of approximately 60-75+ fixed- and rotary-wing aircraft,[85] a cruiser and at least two destroyers,[86] a replenishment ship,[87] and a submarine.[88] A CSG is normally commanded by a Rear Admiral (lower or upper half, one or two stars respectively), with a Lieutenant Commander (O-4) as staff judge advocate (SJA) and one First Class Petty Officer/Legalman (E-6)/staff paralegal. The SJA is the only lawyer assigned to the Rear Admiral’s staff.[89]
2. Amphibious Ready Group. An ARG generally consists of a “big-deck” amphibious assault ship (LHD/LHA(R)), or “amphib”; its embarked Marine Expeditionary Unit (MEU) including an Aviation Combat Element (ACE) of fixed- and rotary-wing aircraft,[91] and two smaller amphibs (LPD/LSD). Each of the three vessels in an ARG will have a variety of landing craft used to transport Marines ashore, such as Landing Craft Air Cushioned (LCAC) and Landing Craft Utility (LCU) (see previous section on U.S. Marine Corps). If the mission requires an expanded strike capability, the ARG can be augmented by a cruiser and/or two destroyers, and a submarine to form an Expeditionary Strike Group (ESG). An ESG is normally commanded by a Rear Admiral (one-star), who is supported by an O-3 or O-4 SJA and one First Class Petty Officer/Legalman (E-6)/staff paralegal.
3. Unmanned Systems. In 2021, the Department of the Navy published its “Unmanned Campaign Framework.” The stated “vision” of this campaign framework is to: “Make unmanned systems a trusted and sustainable part of the Naval force structure, integrated at speed to provide lethal, survivable, and scalable effects in support of the future maritime mission.” These unmanned systems will run the full gamut of autonomy from “remote piloting an unmanned aircraft system” to systems with “human-machine teaming” (MQ-25 and UCAS autonomous carrier landing) to systems with “near-independent autonomy” (USV executing independent mission in a set operating box). Unmanned systems are expected to make the Navy a more lethal force, deepen interoperability with allies and partners, and “deliver performance at the speed of relevance.”
C. Strategic Deterrence. The U.S. Navy maintains the ability to respond to nuclear aggression or threats with highly reliable, credible and survivable nuclear forces. Undetected ballistic missile submarines (SSBNs) provide the most survivable leg of the U.S. strategic defense arsenal.[96] Since the 1960s, strategic deterrence has been the SSBN’s sole mission, providing the United States with an enduring nuclear strike capability.[97] Each SSBN has two crews, Blue and Gold, which alternate manning the submarines while on patrol. This maximizes the SSBN’s strategic availability, reduces the number of submarines required to meet strategic requirements, and allows for proper crew training, readiness, and morale.
D. AEGIS Weapon System (AWS). AWS “is a centralized, automated, command-and-control (C2) and weapons control system,” — the most ubiquitous “Lethal Autonomous Weapons System” in the U.S. military. It was “designed as a total weapon system” that uses a high-powered multi-function phased-array radar to simultaneously detect, distinguish, and guide defensive weapons to engage more than 100 targets at a time. The AEGIS C2 interface enables this “combat system capable of simultaneous operations against multi-mission threats: anti-air, anti-surface and anti-submarine warfare.” While AWS was originally designed as the mobile sea-based component of the Missile Defense Agency’s Ballistic Missile Defense (BMD) System, it is currently considered the U.S. military’s best defense against emerging hypersonic threats as well. As of 2021, there are 84 Aegis BMD ships (22 cruisers and 62 destroyers) in service. In 2009, the U.S. decided on AEGIS as a key component of the “European Phased Adaptive Approach” or EPAA, which provides BMD to NATO allies. AEGIS Ashore is the land-based component of the EPAA. AEGIS Ashore deckhouse and launchers – designed to be nearly identical to the version installed aboard U.S. Navy destroyers and cruisers – are equipped with the AWS and the Standard Missile 3 (SM-3). The Navy has AEGIS Ashore sites in Romania and Poland.
IV. OPERATIONS
“[O]ur nation has consistently relied on the Naval Service to fulfill several enduring functions in pursuit of national objectives. In broad theoretical terms, naval forces exist to:
● Ensure the safe seaborne movement of friendly commerce and military forces[;]
● Influence events, to include projecting military power, overseas[;]
● Prevent an adversary’s seaborne movement of commerce and military forces [; and]
● Prevent an adversary from influencing events, to include projecting military power, on our own or other friendly shores.”[102]
“In practice, the Naval Service uses various doctrinal terms to definitively describe the execution of these functions. The following enduring functions are the primary means the Naval Service uses to pursue national objectives in peace and war.”
A. “Sea Control. Sea control is the condition in which one has freedom of action to use the sea for one’s own purposes in specified areas and for specified periods of time and, where necessary, to deny or limit its use to the enemy.
B. Power Projection. Power projection is the ability to inflict costs on our enemy from the maritime domain to the degree of our choosing, at the time and place of our choosing, with strike, amphibious, and naval special warfare capabilities.
C. Deterrence. Deterrence is the prevention of action by the existence of a credible threat of unacceptable counteraction and/or belief that the cost of action outweighs the perceived benefits.
D. Maritime Security. Maritime security includes those operations to protect maritime sovereignty and resources, and to counter maritime related terrorism, weapons proliferation, transnational crime, piracy, environmental destruction, and illegal seaborne migration.
E. Sealift. Sealift consists of the afloat pre-positioning and ocean movement of military materiel in support of United States and multinational forces.
Sea control enables all other naval functions.”
V. CONCLUSION. “The strategic objective of the Naval Service is to provide sea power for the security and prosperity of our nation. Sea power underpins Mahan’s notion of command of the seas—that unimpeded use of the maritime domain is necessary for our nation to flourish. It is the Naval Service’s duty to protect and maintain this strategic condition; for our nation, and for the global economic order built upon the demonstrated might of our sea power.”[105]
U.S. Air Force
I. INTRODUCTION
A. The U.S. Air Force traces its lineage to the Aeronautical Division of the U.S. Army Signal Corps, which was created in 1907 and acquired its first airplane from the Wright Brothers in 1909. The Air Force remained a functional component of the Army until the Department of the Air Force was established as an independent, co-equal branch of the military following the enactment of the National Security Act of 1947. President Truman signed the act on 26 July 1947 and the first Secretary of the Air Force was sworn in on 18 September 1947.
B. The National Security Act established the requirement that the Air Force "shall be organized, trained and equipped primarily for prompt and sustained offensive and defensive air operations.” The same day he signed the act, President Truman also signed Executive Order 9877, which established the first Air Force core missions of air superiority, airlift, air reconnaissance, strategic air force, air support to ground and naval forces, and coordination of air defense. Today, the Air Force continues to meet these requirements, even as they have evolved over the years, resulting in Global Vigilance, Global Reach, and Global Power for America and achieving its new vision as: “The World’s Greatest Air Force—Powered by Airmen, Fueled by Innovation.”
II. MISSION OF THE AIR FORCE
A. Mission and Vision of the Air Force. The Air Force mission is to “fly, fight, and win…airpower anytime, anywhere.” To achieve that mission, the Air Force adopted the following vision:
The United States Air Force will be a trusted and reliable Joint partner with our sister Services known for integrity in all of our activities, including supporting the Joint mission first and foremost. We will provide compelling air, space, and cyber capabilities for use by the combatant commanders. We will excel as stewards of all Air Force resources in service to the American people, while providing precise and reliable Global Vigilance, Reach, and Power for the Nation.
This vision has been modified overtime and in August 2013 it was modified to, “The World’s Greatest Air Force—Powered by Airmen, Fueled by Innovation.” However, the tenets of Global Vigilance, Global Reach, and Global Power remain part of that vision.
B. Role and Responsibilities of the Air Force. Air Force doctrine states that the role of the Air Force is to “prepare and employ forces… to achieve our national objectives” including “defend the homeland, remain the preeminent military power in the world, ensure the balances of power remain in our favor, and advance an international order that is most conducive to our security and prosperity.” Airpower is defined as “the ability to project military power through control and exploitation in, from, and through the air.”
To achieve its overall mission and vision, the Air Force conducts five core missions. These missions have evolved from the six original core missions established by President Truman in 1947. Today they are: 1) air and space superiority; 2) intelligence, surveillance, and reconnaissance; 3) rapid global mobility; 4) global strike; and 5) command and control. The Air Force accomplishes these core missions through a commitment to three core values: Integrity first, Service before self, and Excellence in all we do.
III. ORGANIZATION AND FORCE STRUCTURE
A. Standard Organization of the Air Force. The following is the basic command structure of the Air Force as established and described by Air Force Instruction (AFI) 38-101, Manpower and Organization, dated 29 August 2019.
1. Headquarters, U.S. Air Force (HQ USAF). Consists of the Secretariat led by the Secretary of the Air Force (SecAF) and the Air Staff led by the Chief of Staff (CSAF).
2. Major Commands (MAJCOM). MAJCOMs are management headquarters directly subordinate to HQ USAF that are assigned a major component of the Air Force mission. MAJCOMs are generally functional or geographic. MAJCOMs are commanded by a three-star general officer (O-9) or four-star general officer (O-10). The following is the current list of Air Force MAJCOMs: Air Combat Command (ACC), Air Education and Training Command (AETC), Air Force Global Strike Command (AFGSC), Air Force Materiel Command (AFMC), Air Force Reserve Command (AFRC), Air Mobility Command (AMC), Pacific Air Forces (PACAF), United States Air Forces Europe - Air Forces Africa (USAFE-AFAFRICA), and Air Force Special Operations Command (AFSOC). In addition, there is the Air National Guard (ANG).*
*The Air National Guard is considered a component in addition to a command in that it has a dual mission. In Federal status, the ANG augments the Active Component. In non-Federal status, the ANG reports directly to their respective state governors.
3. Numbered Air Force (NAF). NAFs are a level of command directly under a MAJCOM that have been described as a tactical echelon in that they provide operational leadership and supervision. A NAF is assigned subordinate units, such as wings, groups, and squadrons. Their purpose is to ensure the readiness of assigned forces and prepare forces for deployment and employment. NAFs are typically commanded by a three-star general (O-9). There are currently 16 activated NAFs worldwide.
a. Named Air Force. Named Air Forces operate at the same level of command as a numbered air force. There is currently one named air force, United States Air Forces Central (USAFCENT), which serves as the air component of United States Central Command.
b. Component NAFs (C-NAF). C-NAFs support the Air Force component commander (COMAFFOR) at the operational and tactical level. When designated as the Air Force component to a Unified Combatant Command (UCC), the C-NAF will function at the strategic, operational, and tactical level. There are currently 6 C-NAFs supporting the UCCs and United States Forces Korea (a subordinate unified combatant command). A C-NAF may carry a number, but also have a name associated with it. For example, First Air Force is the C-NAF supporting US Northern Command (USNORTHCOM) but is also referred to as Air Forces Northern (AFNORTH).
4. Wing. A level of command below the NAF or higher headquarters. A wing has a distinct mission with significant scope. A wing is usually composed of a primary mission group (e.g., operations, training, etc.) and the necessary supporting groups. By pulling together the mission and support elements, a wing provides a significant capability under a single commander. It is often responsible for maintaining the installation. A wing has several squadrons in more than one dependent group. There are generally three types of wings: operational, air base wing (support), and specialized wings. Either of these types may serve as the host wing on an installation. In practice, Air Base Wings have been created and utilized as the host units of joint bases. Wings must have a minimum of 1,000 people assigned. Wings are commanded by either a Colonel (O-6) or a Brigadier General (O-7) at larger installations.
5. Group. A level of command between wings and squadrons. Groups bring together multiple squadrons or other lower echelon units to provide a broader capability. For instance, a mission support group pulls together several squadrons in a variety of areas to provide a full spectrum mission support capability. Groups will have a minimum adjusted population of at least 400 personnel assigned. Groups are often commanded by a Colonel (O-6).
6. Squadron. Squadrons are the basic building block organizations in the Air Force, providing a specific operational or support capability. A squadron may be either a mission unit, such as an operational flying squadron, or a functional unit, such as a civil engineer, security forces, or maintenance squadron. A squadron has a substantive mission of its own that warrants organization as a separate unit based on factors like unity of command, functional grouping and administrative control, balanced with efficient use of resources. Squadrons vary in size according to responsibility but will have a minimum adjusted population of at least 35 personnel. Squadrons are often commanded by a Major (O-4) or Lieutenant Colonel (O-5).
7. Flight. Flights are a level of organization lower than squadron. If internal subdivision is required, a flight may consist of sections, then elements. A flight may be either a numbered flight, named flight, alpha flight, or a functional flight. A numbered or named flight is the smallest unit in the Air Force. It is usually led by a First Lieutenant (O-2) or a Captain (O-3).
8. Other Organizations. Other types of organizations in the Air Force include: (1) direct reporting units (DRUs) such as the Air Force Academy or Air Force District of Washington; (2) laboratories; (3) centers; and (4) field operating agencies (FOA). In addition, the Civil Air Patrol (CAP) serves as the civilian auxiliary of the Air Force.
B. Commander, Air Force Forces (COMAFFOR). The (COMAFFOR) is the Air Force Service component command assigned to the joint force commander (JFC) at the unified combatant command (UCC), subordinate unified combatant command, or joint task force (JTF) level.
When Air Force forces are assigned or attached to a JFC, the JFC normally receives operational control (OPCON) of these forces. This authority is best exercised through subordinate JFCs and Service component commanders and thus is normally delegated accordingly.
The two branches of the chain of command merge at the air component commander. Within the administrative branch, the commander, Air Force forces (COMAFFOR) is delegated ADCON over assigned and attached Air Force forces from the Air Force chain of command. Simultaneously, within the operational branch, the COMAFFOR is delegated OPCON over assigned and attached Air Force forces, and ensures forces are properly organized, trained, and equipped to be employed in support of the joint force commander’s (JFC’s) operational requirements.
C. The Air Expeditionary Force (AEF). The AEF is the force generation construct used to provide Air Force forces and associated support on a rotational basis to meet the Global Force Management and Combatant Commander requirements. The total force is part of the AEF. Through the AEF, the Air Force establishes a predictable, standardized battle rhythm ensuring rotational forces are properly organized, trained, and equipped to respond to emerging crises and sustained operations. Thus, while AEF forces may deploy, they stand up as part of an air expeditionary task force, not as their own warfighting entity. In short, the AEF is the mechanism for managing and scheduling forces for expeditionary use; the Air Expeditionary Task Force (AETF), discussed below, is the Air Force organizational structure for Air Force forces to execute operational tasking as an attachment to the JFC.
D. Air Expeditionary Task Force (AETF). The AETF is the organizational structure for Air Force forces in response to operational taskings. In other words, the AETF is how the Air Force will support the JFC. The AETF is a provisional organizational construct established for a temporary period of time to perform a specified mission. The AETF construct provides tailored capabilities of expeditionary, mobility and space operational forces in a provisional organizational construct to preserve Air Force unity of command and unity of effort. An air expeditionary task force construct can be tailored in size and composition as appropriate for the mission. Air Force operational planning efforts must focus on the ability of the air expeditionary task force construct to integrate and sustain command and control during mission execution. The AETF commander organizes forces as necessary into wings, groups, squadrons, flights, detachments, or elements to provide reasonable internal spans of control, command elements at appropriate levels, and to retain unit identity.
E. Joint and Coalition Operations. The Air Force prefers—and in fact, plans and trains—to employ in the joint fight through a COMAFFOR who is normally also dual-hatted as a joint force air component commander (JFACC) when operations involve air assets from multiple services. Joint doctrine provides that the JFACC should be from the service with the preponderance of forces to be tasked and the ability to effectively plan, task, and control air operations. The JFACC may become a combined force air component commander (CFACC) when operations involve multinational air assets.
IV. AIR FORCE OPERATIONS
A. Core Missions. As mentioned earlier, the Air Force currently has five core missions: 1) air and space superiority; 2) intelligence, surveillance, and reconnaissance; 3) rapid global mobility; 4) global strike; and 5) command and control. These core missions have evolved since they were first established by President Truman in 1947, but fundamentally they have remained the same.
1. Air & Space Superiority is the ability to control the air and space so that our military forces do not have to worry about being attacked from the air and space, while ensuring that joint forces have the freedom to attack in the air, on the ground, and at sea.
2. Intelligence, Surveillance, and Reconnaissance is the exploitation of the vertical dimension though a mix of aircraft, satellites, and other technologies to gain a decisive information advantage over our foes helping joint force leaders make informed decisions to maintain deterrence, contain crises, or achieve success in battle.
3. Rapid Global Mobility is the delivering of essential equipment and personnel for missions ranging from major combat to humanitarian relief operations around the world. Mobility forces also provide in-flight refueling necessary for joint power projection and medical airlift resulting in unprecedented survival rates across the joint force.
4. Global Strike is the ability of the Air Force’s nuclear and conventional precision strike forces to credibly threaten and effectively conduct global strike operations by holding any target on the planet at risk and, if necessary, disabling or destroying it promptly—even from bases in the continental United States. Whether employed from forward bases or enabled by in-flight refueling, global strike derives from a wide-range of systems that include bombers, missiles, special operations platforms, fighters, and other Air Force aircraft.
5. Command and Control is the providing of access to reliable Air Force communications and information networks so that the joint team can operate globally at a high tempo and level of intensity.
B. Airpower Operations. The Air Force supports joint force commanders by conducting specific airpower operations that provide specific effects. The following is a summary of these operations:
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USAF Airpower Operations
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1. Strategic Attack
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Offensive action that is specifically selected to achieve national or military strategic objectives.
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2. Counterair Operations
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Operations that integrate offensive and defensive operations to attain and maintain a desired degree of air superiority.
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3. Counterland Operations
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Operations against enemy land force capabilities to create effects that achieve joint force commander objectives.
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4. Countersea Operations
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Operations conducted to attain and maintain a desired degree of maritime superiority.
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5. Airspace Control
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The process used to increase operational effectiveness through safe, efficient, and flexible use of airspace.
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6. Space Operations
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The combination of space superiority (controlling the ultimate high ground of space) and mission assurance.
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7. Cyberspace Operations
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The employment of cyberspace capabilities where the primary purpose is to achieve military objectives or effects in or through cyberspace.
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8. Air Mobility
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The rapid movement of personnel, materiel, and forces to and from or within a theater by air.
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9. Special Operations
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USAF special operations forces, include dedicated special operations aviation units, battlefield Airmen (combat control teams, pararescue teams, special operations weather teams, and tactical air control party units), and dedicated SOF ISR units.
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10. Homeland Operations
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Construct through which the USAF supports homeland defense, defense support of civil authorities, and emergency preparedness operations designed to detect, preempt, respond to, mitigate, and recover from incidents and threats to the homeland.
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11. Nuclear Operations
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The USAF organizes, trains, equips, and sustains forces with the capability to support the national security goals of deterring adversaries from attacking the United States and its interests with their nuclear arsenals or other weapons of mass destruction (WMD); dissuading competitors from developing WMD; assuring allies and partners; and holding at risk a specific range of targets.
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12. Irregular Warfare (IW)
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The USAF supports and conducts principal IW activities or operations that may be undertaken in sequence, in parallel, or blended within a coherent campaign to address irregular threats.
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13. Foreign Internal Defense (FID)
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Generally, the preferred methods of helping another country are through education and developmental assistance programs. Most Air Force FID actions entail working by, with, and through foreign aviation forces to achieve US strategic and operational objectives.
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14. Global Integrated ISR
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Cross-domain synchronization and integration of the planning and operation of ISR assets, sensors, processing, exploitation, and dissemination systems; and analysis and production capabilities across the globe to enable current and future operations.
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15. Targeting
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The process of selecting and prioritizing targets and matching the appropriate response to them, considering operational requirements and capabilities.
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16. Information Operations (IO)
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The purpose of IO is to affect adversary and potential adversary decision-making with the intent to ultimately affect their behavior.
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17. Electronic Warfare (EW)
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Military action involving the use of electromagnetic and directed energy to control the electromagnetic spectrum or to attack the enemy.
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18. Personnel Recovery
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The Air Force organizes, trains, and equips personnel to conduct personnel recovery operations (PRO) using the fastest and most effective means.
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C. The Air Operations Center (AOC). The AOC provides operational-level command and control (C2) of air component forces as the focal point for planning, executing, and assessing air component operations. The AOC can be tailored and scaled to a specific or changing mission and to the associated task force the commander, Air Force forces (COMAFFOR), presents to the joint force commander (JFC). The baseline AOC organization includes an AOC commander, five divisions (strategy, combat plans, combat operations, ISR, and air mobility), and multiple support/specialty teams. Each integrates numerous disciplines in a cross-functional team approach to planning and execution. Liaisons from other Service and functional components may also be present to represent the full range of joint air, space, and cyberspace capabilities made available to the COMAFFOR/JFACC.
V. CONCLUSION. “Air dominance is not an American birthright. Without the U.S. Air Force’s unprecedented control of the air and enabling domains, no other U.S. military mission enjoys full freedom of maneuver … Overseas, our Airmen will have to fight to achieve localized air superiority to enable joint effects. Potential adversaries are also competing in other ways, threatening our ability to generate air power—from initial concept, through acquisition and fielding of systems, and operations and sustainment—with the intent to deny our ability to project power globally. Tomorrow’s Airmen are more likely to fight in highly contested environments, and must be prepared to fight through combat attrition rates and risks to the Nation that are more akin to the World War II era than the uncontested environment to which we have since become accustomed. The forces and operational concepts we need must be different. Our approach to deterrence must adapt to the changes in the security environment.”
U.S. Space Force
I. INTRODUCTION
A. The U.S. Space Force (Space Force) was established on 20 December 2019, when the Fiscal Year 2020 National Defense Authorization Act (NDAA) was signed into law.[144] The Space Force is the first new branch of the armed services since the Air Force was established in 1947. The Space Force is a “separate and distinct” branch of the armed services organized under the Department of the Air Force similar to how the Marine Corps is organized under the Department of the Navy.[145] Based on the growing threat of near-peer competitors in space, a military service focused solely on space and ensuring U.S. superiority in Space became necessary.[146]
B. The U.S. has declared that it will “maintain our position as the world’s leader in space and work alongside the international community to ensure the domain’s sustainability, safety, stability, and security.”[147] In the space domain, emerging technologies are transforming warfare and “pose novel threats” to the U.S. necessitating investment in a range of “advanced technologies and applications.”[148] The Department of Defense’s Strategy to deter by resilience identifies prioritizing resilience in the space because the space domain empowers the “entire Joint Force.”[149] Freedom to access and operate in space are integral to U.S. “national security and economic prosperity.”[150] The Space Force are the “warfighters who protect, defend, and project spacepower. They provide support, security, stability, and strategic effects by employing spacepower in, from, and to the space domain.”[151]
II. MISSION OF THE SPACE FORCE
A. Mission and Vision of the Space Force. The Space Force is responsible for organizing, training, and equipping Guardians to conduct global space operations that enhance the way our joint and coalition forces fight, while also offering decision makers military options to achieve national objectives.[152]
B. Role and Responsibilities of the Space Force. The Space Force as the custodian of military spacepower, has three Cornerstone Responsibilities: (1) preserve freedom of action in the space domain, (2) enable lethality and effectiveness of the joint force, and (3) provide U.S. national leadership with independent options capable of achieving strategic effects. Taken together, these three Cornerstone Responsibilities define the vital contributions of military spacepower and the core purpose of the United States Space Force.[153]
To achieve its overall mission and responsibilities, the Space Force conducts five core competencies. These core competencies are: (1) Space Security; (2) Combat Power Projection; (3) Space Mobility and Logistics; (4) Information Mobility, and (5) Space Domain Awareness.[154]
III. ORGANIZATION AND FORCE STRUCTURE
A. Standard Organization of the Space Force. The following is the basic command structure of the Space Force as described by the Space Force Website.
1. Headquarters U.S. Space Force and Office of the Chief of Space Operations (CSO). The Chief of Space Operations, U.S. Space Force, serves as the principal uniformed adviser to the Secretary of the Air Force on Space Force activities. The CSO presides over the Office of the Chief of Space Operations, transmits plans and recommendations to the Secretary of the Air Force and acts as the Secretary's agent in carrying them out.[155]
2. Field Commands. The Space Force is comprised of three field commands with specific mission focuses:
a. Space Operations Command (SpOC). The SpOC generates, presents, and sustains combat-ready Guardians for space operations, intelligence, cyberspace, and combat support forces.[156] The SpOC serves as the headquarters and staff of the U.S. Space Command’s (USSPACECOM) Combined Force Space Component Command (CFSCC).[157] The SpOC provides Space Domain Awareness; Space Electronic Warfare; Missile Warning; Command and Control; Cyber Operations; Intelligence, Surveillance and Reconnaissance; Position, Navigation and Timing; and Orbital Warfare capabilities to USSF and U.S. Space Command and other Combatant Commands.[158]
b. Space Systems Command (SSC). SSC is responsible for delivering new space capabilities at operationally relevant speeds, to include developing, acquiring, equipping, fielding, and sustaining those capabilities. SSC builds, launches, and sustains space capabilities for military and civilian users worldwide.[159]
c. Space Training and Readiness Command (STARCOM). STARCOM is responsible for preparing every Guardian to prevail in competition and conflict by developing and conducting education, training, doctrine, wargaming, lessons learned, test, and evaluation.[160]
3. Deltas. Space Deltas are organized around specific functions such as operations, installation support, training, etc. Deltas denote a level of command between the Field Commands and Squadrons. Deltas have a minimum of two assigned squadrons. Deltas are commanded by a Colonel (O-6) or a Brigadier General (O-7).
4. Squadrons. Within the deltas are squadrons focused on specific tactics. Squadrons are the basic building block organization in the Space Force, providing a specific operational or support capability. A squadron may be either a mission unit or a functional unit. Squadrons are often commanded by a Major (O-4) or Lieutenant Colonel (O-5).
IV. SPACE FORCE OPERATIONS
A. Core Competencies. As mentioned earlier, the Space Force has five core competencies: (1) Space Security; (2) Combat Power Projection; (3) Space Mobility and Logistics; (4) Information Mobility, and (5) Space Domain Awareness.[161] These Core Competencies represent the broad portfolio of capabilities military space forces need to provide successfully or efficiently to the Nation.[162]
1. Space Security establishes and promotes stable conditions for the safe and secure access to space activities for civil, commercial, intelligence community, and multinational partners.[163]
2. Combat Power Projection integrates defensive and offensive operations to maintain a desired level of freedom of action relative to an adversary. Combat Power Projection in concert with other competencies enhances freedom of action by deterring aggression or compelling an adversary to change behavior.[164]
3. Space Mobility and Logistics (SML) enables movement and support of military equipment and personnel in the space domain, from the space domain back to Earth, and to the space domain.[165]
4. Information Mobility provides timely, rapid, and reliable collection and transportation of data across the range of military operations in support of tactical, operational, and strategic decision making.[166]
5. Space Domain Awareness (SDA) encompasses the effective identification, characterization and understanding of any factor associated with the space domain that could affect space operations and thereby impact the security, safety, economy, or environment of our Nation.[167]
B. Space Operations Segments. Execution of operations in the space domain requires actions in the orbital, terrestrial, and link segments. Understanding the employment of space requires knowledge of orbital segment characteristics, terrestrial and link segment support to space operations, and threats across all three segments.[168]
1. Orbital Segment. The orbital segment consists of a spacecraft in the space domain. Spacecraft follow an orbital path in space, influenced by the pull of gravity and atmospheric drag in lower orbits. There are three nested orbital regimes of primary concern in the space domain: geocentric regime, the cislunar regime, and the solar regime. Currently, most space operations occur within the geocentric regime in the geosynchronous Earth orbit (GEO) (geostationary orbit is a type of GEO), highly elliptical orbit (HEO), medium Earth orbit (MEO), low Earth orbit (LEO) (polar orbits are a specialized type of LEO) or a transfer orbit moving between orbits.[169]
2. Terrestrial Segment. The terrestrial segment encompasses all the terrestrial based facilities and equipment required to launch and operate a spacecraft, exploit space data as well as terrestrial based radars for surveillance.[170]
3. Link Segment. The link segment comprises the signals in the electromagnetic spectrum (EMS) and the nodes that connect the orbital segment to the terrestrial segment as well as the individual terrestrial segments to each other.[171]
V. CONCLUSION. “Military space forces operate in the space domain, the dynamic and complex environment above the altitude where atmospheric effects on airborne objects become negligible. This challenging mission requires a comprehensive concept of operations to meet evolving threats and challenges across the competition continuum. USSF forces do not operate in the space domain alone. Space operations are integral to all-domain operations and, at the same time, dependent on operations in the land and cyberspace domains.”[172]
U.S. Coast Guard
I. Introduction. As an armed force, the United States Coast Guard (USCG) shares a similar national security role with DoD service branches, and thus its attorneys must be prepared to address many of the same operational law issues. However, because of its role as the United States’ primary maritime law enforcement agency, USCG missions can also involve many unique operational law issues that differ from those ordinarily faced by DoD service branches.
II. MISSIONS, AUTHORITIES, and Activities
A. Primary Missions. Under 14 U.S.C. § 101, 14 U.S.C. § 102, and 10 U.S.C. § 101(a)(4), the USCG is—at all times—both an armed force and a federal law enforcement agency of the United States. The USCG is the principal federal agency responsible for maritime safety, security, and stewardship. As such, the USCG protects vital economic and security interests of the United States, including the safety and security of the maritime public, natural and economic resources, the global maritime transportation system, and the integrity of U.S. maritime borders. It has eleven statutory missions, discussed in more detail below, that enable it to protect the public, the environment, and U.S. economic interests in the United States’ ports and waterways, on international waters, or in any maritime region as required to support national security.
B. Authority. In the maritime environment, there is no geographical limit to the USCG’s authority (although the exercise of that authority may be subject to flag and coastal state consent in accordance with international law). To the extent that seizure, arrest, and prosecution are desired outcomes of any maritime interdiction, the USCG is well-positioned to enforce U.S. law in waters subject to U.S. jurisdiction, on the high seas, and in foreign territorial seas in cooperation with coastal states.
C. Maritime Law Enforcement. Since the beginning of the United States, Congress has authorized the USCG to exercise broad law enforcement authority upon the high seas and waters over which the United States has jurisdiction, and aboard any vessel, wherever located, that is subject to the jurisdiction, or to the operation of any law, of the United States. The USCG is also specifically authorized to respond to acts of maritime terrorism. The USCG routinely exercises its maritime law enforcement authority on foreign-flagged vessels thousands of miles from the United States, sometimes on the high seas, and sometimes in foreign waters. The USCG is also authorized to carry weapons ashore, and to make seizures and arrests at maritime facilities. The USCG’s commissioned, warrant, and petty officers are also designated by statute as customs officers.
D. Activities. USCG law enforcement and homeland security operations cover a wide spectrum of activities including maritime smuggling of illicit drugs and other contraband, migrant smuggling and human trafficking, piracy, violations of U.N. Security Council resolutions, acts of violence in the maritime realm, and maritime transportation of weapons of mass destruction. International and domestic law govern the USCG’s conduct of maritime interdiction operations. Generally, international law applicable to USCG operations focuses on the exclusive jurisdiction of flag states on the high seas, and on the sovereign rights and control of coastal states in territorial seas. Thus, except in the exercise of national or collective self-defense, flag state and coastal state cooperation and consent are required for maritime interdiction activities not undertaken pursuant to the enforcement of U.N. Security Council resolutions. USCG maritime interdiction activities throughout the world always take into consideration the need to cultivate and sustain such cooperation and necessary consent.
E. International Agreements. Consistent with the well-settled legal principles discussed above, the USCG seeks flag or coastal state consent for extraterritorial enforcement operations on foreign vessels or in foreign waters, or exercises a variety of international legal authorities to obtain authority and jurisdiction over vessels not otherwise subject to exclusive U.S. jurisdiction. The USCG, as executive agent for the Department of State, has negotiated and completed more than sixty bilateral agreements between the United States and other countries that provide expedited procedures or preapproval for obtaining flag or coastal state consent for the USCG to conduct boardings and searches of foreign-flagged vessels suspected of various illegal activities. In cases in which such agreements are not in place, the USCG takes a leading role in the Maritime Operational Threat Response (MOTR) process to coordinate interagency concurrence and assistance in approaching foreign governments for authorization to take appropriate action.
F. Federal, State, and Local Cooperation. In accordance with 14 U.S.C. § 701, the USCG is specifically authorized to lend assistance to and receive assistance from other federal and state agencies. Unlike DoD personnel restrained by the Posse Comitatus Act, the USCG may utilize its personnel and facilities “to assist any Federal agency, State, Territory, possession, or political subdivision thereof, or the District of Columbia, to perform any activity for which such personnel and facilities are especially qualified.” Furthermore, the USCG, with the consent of the appropriate agency head, “may avail itself of such officers and employees, advice, information, and facilities of any Federal agency, State, Territory, possession, or political subdivision thereof, or the District of Columbia as may be helpful in the performance of its duties.” This unique authority provides the USCG with great flexibility when partnering with DoD and other federal and state agencies to support various missions.
III. ORGANIZATION
A. Administrative. Following the events of September 11, 2001, the USCG was transferred to the Department of Homeland Security (DHS). Notably, the Homeland Security Act specifically provided that the USCG’s authorities, functions, and capabilities remain intact following its transfer to DHS. The Commandant of the USCG reports directly to the Secretary of Homeland Security. Although the USCG ordinarily operates under DHS, “[u]pon the declaration of war if Congress so directs in the declaration or when the President directs,” the USCG may be transferred to the Department of the Navy.
B. Forces. Presently, the USCG force is comprised of approximately 44,500 active duty military personnel, 7,000 Reservists, over 8,500 civilian employees, and approximately 31,000 Auxiliarists (a uniformed all-volunteer force supporting all Coast Guard operations except military operations and law enforcement).
C. Geography. The majority of day-to-day USCG operations are directed by the Pacific Area (PACAREA) and Atlantic Area (LANTAREA) Commanders. Operational responsibilities are further delegated to District Commanders underneath each Area. PACAREA is located in Alameda, California, with an area of responsibility encompassing four Districts in the western United States and Pacific Ocean. LANTAREA is located in Portsmouth, Virginia, with an area of responsibility encompassing five Districts in the eastern United States, Atlantic Ocean, and Gulf of Mexico. PACAREA and LANTAREA are each commanded by a Vice Admiral (O-9); each District is commanded by either a Rear Admiral (Upper Half) (O-8) or Rear Admiral (Lower Half) (O-7). Each Coast Guard District exercises operational control over field-level commands including Sectors and Air Stations. While PACAREA and LANTAREA exercise operational control over larger USCG cutters, Districts and Sectors retain operational control of smaller cutters. Command centers at USCG Headquarters, LANTAREA and PACAREA, Districts, and Sectors control operations within their respective areas of responsibility. The following map shows the USCG’s geographical organization of Areas and Districts:
USCG Sectors are located in most large ports within the United States and have oversight of Coast Guard missions in port complexes, coastlines, and major navigable rivers. The Sector Commander acts under one of five main legal titles while conducting Sector missions: (1) Officer in Charge, Marine Inspection (OCMI, used for regulation of commercial vessels); (2) Captain of the Port (COTP, used to ensure the safety and security of persons, vessels, or waterfront facilities in a port area); (3) Federal Maritime Security Coordinator (FMSC, used when serving as COTP for an Area Maritime Security Committee pursuant to 33 C.F.R. § 103.200); (4) Federal On-Scene Coordinator (FOSC, used while overseeing a response to an oil spill or hazardous materials release in the coastal zone under the National Contingency Plan, 40 C.F.R. Part 300); and (5) Search and Rescue (SAR) Mission Coordinator (SMC, used while executing SAR missions consistent with the U.S. Coast Guard Addendum to the United States Search and Rescue Supplement (NSS) to the International Aeronautical and Maritime Search and Rescue Manual (IAMSAR), COMDTINST M16130.2 (series)).
IV. OPERATIONS OVERVIEW
A. Role. The USCG’s fundamental responsibility is to protect the public, the environment, and U.S. economic and security interests. The USCG carries out this responsibility in America’s inland waterways, ports, and harbors; along 95,000 miles of U.S. coastline; in the U.S. territorial seas; in the nearly 3.4 million square miles of U.S. Exclusive Economic Zone (EEZ); and in international waters and other maritime regions of importance to the United States.
B. History. The USCG’s history shows a gradual accumulation of additional responsibilities, resulting primarily from its status as the nation’s primary maritime law enforcement agency and protector of U.S. ports and waterways. On August 4, 1790, the First Congress authorized the construction of ten vessels to enforce tariff and trade laws, prevent smuggling, and protect the collection of the Federal revenue, which became known as the Revenue Cutter Service. In 1915 the Revenue Cutter Service merged with the U.S. Life-Saving Service. It was renamed the U.S. Coast Guard and was placed under the Treasury Department. In 1939 President Franklin Roosevelt ordered the transfer of the Lighthouse Service to the Coast Guard. In 1946 Congress permanently transferred the Commerce Department’s Bureau of Marine Inspection and Navigation to the Coast Guard. In 1967 the USCG transferred to the Department of Transportation. Finally, in 2003 the USCG transferred to the Department of Homeland Security. As the service merged with other agencies over time, it accumulated the missions it has today. Although the USCG occupies a unique position as an armed force that also serves as the United States’ primary maritime law enforcement agency (and now the lead federal agency for maritime homeland security), it is probably best known for its humanitarian service missions.
C. Mission Categories. The Homeland Security Act (HLSA) of 2002, Pub. L. 107-296, which transferred the USCG from the Department of Transportation to DHS, categorizes the USCG’s eleven statutory missions as either homeland security or non-homeland security missions.
1. Homeland security missions include: ports, waterways, and coastal security; drug interdiction; migrant interdiction; defense readiness; and other law enforcement.
2. Non-homeland security missions include: marine safety; search and rescue; aids to navigation; living marine resource protection (fisheries law enforcement); marine environmental response; and icebreaking.
V. HOMELAND SECURITY OPERATIONS. The following is a brief description of the USCG’s principal operations as organized within the HLSA.
A. Maritime Homeland Security (MHLS)/Maritime Homeland Defense (MHLD).
1. As both a military service and a federal law enforcement agency, the USCG plays a unique role in homeland security and homeland defense. Although homeland security had always been incorporated into the USCG’s maritime security role, the USCG refocused its homeland security capabilities in the wake of September 11, 2001. Following the attacks, the USCG quickly organized and conducted the largest port security operation since World War II to protect the U.S. Marine Transportation System (MTS). The USCG immediately deployed resources and established security zones around vessels and significant critical infrastructure such as power plants, bridges, dams, and locks—in addition to providing overall security in U.S. ports. Additionally, on September 21, 2001, the USCG promulgated temporary regulations creating stationary and moving Naval Vessel Protection Zones (NVPZ), in order to ensure the safety and security of U.S. naval vessels within U.S. navigable waters. Many of these security zones, including those created under the NVPZ regulations, were made permanent.
2. On a day-to-day basis, the USCG carries out its homeland security mission as a law enforcement agency while working with the Department of Justice (DOJ) and numerous DHS agencies, such as Immigration and Customs Enforcement and Customs and Border Protection. In addition to its general law enforcement authorities, the USCG draws on a broad range of legal authorities specifically tailored to port and waterways safety and security to carry out its homeland security missions. Moreover, the Maritime Transportation Security Act (MTSA) of 2002, while establishing new security requirements, clarifies USCG legal authorities and provides additional homeland security assets and capabilities.
B. Maritime Law Enforcement, Drug Interdiction, and Migrant Interdiction.
1. Since its founding as the Revenue Cutter Service in 1790, the USCG has been the primary maritime law enforcement agency in the United States. The USCG’s statutorily-defined law enforcement mission provides that it “shall enforce or assist in the enforcement of all applicable Federal laws on, under, and over the high seas and waters subject to the jurisdiction of the United States.” Coast Guard active duty commissioned, warrant, and petty officers are authorized to “make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States.” Notwithstanding the Posse Comitatus Act, authorized DoD assistance to USCG law enforcement missions includes: the provision of information collected during military operations, use of military equipment and facilities—or providing DoD personnel to operate and maintain that equipment, and use of U.S. Navy vessels to embark USCG Law Enforcement Detachments (LEDETs) for counterdrug support and homeland security missions. Today, the USCG’s law enforcement mission involves significant USCG-DoD interaction, as LEDETs are statutorily required to deploy on U.S. Navy ships assigned to “drug-interdiction areas” to interdict illegal narcotics.
2. Drug traffickers operating out of South and Central America typically transport multi-ton loads of cocaine on fishing or other commercial vessels, “go-fast” vessels, and self-propelled semi-submersibles. Drug loads typically range in size from two to ten tons, but loads in excess of twenty tons are not uncommon. Coast Guard LEDETs and other boarding team personnel receive extensive training in the drug interdiction mission and are uniquely qualified to find well-concealed drug loads, collect other evidence (e.g., biometrics, ion scans), and prepare detailed prosecution case packages in support of federal investigations and prosecutions.
3. The USCG’s migrant interdiction mission is part humanitarian operation, part border control, and part law enforcement. Because migrants take great risks to flee their countries, often sailing in overloaded and unseaworthy vessels, USCG migrant interdiction operations often begin as search and rescue operations. Nonetheless, migrants pose a significant potential security threat, and as outlined in Executive Orders and other Presidential directives, the President suspended the entry of undocumented aliens into the United States and established a policy that the USCG interdict migrants as far as possible from U.S. shores. As in the counter drug realm, the nature of the migrant interdiction mission continues to change in response to increasingly sophisticated smuggling operations and enhanced security risks that undocumented migration poses to the United States.
C. National Defense.
1. Though the more familiar non-defense missions dominate the public perception of the USCG, the USCG is at all times an armed force of the United States. Indeed, the USCG is a military, multi-mission maritime service that has answered America’s calls continuously for over 220 years. In addition to its status as a federal maritime law enforcement agency within the DHS, the USCG is “a military service and a branch of the armed forces of the United States at all times.” The USCG’s role as both a maritime law enforcement agency and a military service is not a matter of changing hats depending on the mission—the USCG is at all times military and at all times may exercise its unique and broad law enforcement authority. During peacetime, the USCG supports the Navy and geographic combatant commanders by participating in port security and military exercises, providing polar icebreaking capabilities, and conducting freedom of navigation operations. The USCG has served during critical national defense missions in every major conflict in United States’ history, and today, the USCG routinely supports DoD’s National Military Strategy and other national-level defense and security strategies. In recent years, a stronger and more collaborative relationship between U.S. Cyber Command and U.S. Coast Guard Cyber Command has evolved in support of DoD cyberspace operations.
2. Commander, PACAREA, and Commander, LANTAREA, also serve separately as Commander, Coast Guard Defense Force West (CGDEFOR-W), and Commander, Coast Guard Defense Force East (CGDEFOR-E), respectively. In the event of a maritime homeland defense (MHLD) mission, CGDEFOR-West/East fall under the C2 of NORTHCOM, through the Joint Force Maritime Component Commander (JFMCC NORTH). In the INDOPACOM AOR a similar relationship exists through Commander, Pacific Fleet (COMPACFLT). It is important to note that the respective Commanders serve at all-times concurrently as Commander PAC/LANTAREA and CGDEFOR-W/E. This allows them to both direct MHLD missions with assigned Coast Guard and Navy units while also maintaining authority over the Coast Guard’s Title 14 missions. One unique aspect of this arrangement is that the same Coast Guard Vice Admiral will both fall within the C2 of the respective DoD combatant command for MHLD missions while simultaneously falling within the Coast Guard chain of command for performance of other statutory missions.
VI. NON-HOMELAND SECURITY OPERATIONS
A. Marine Safety. The USCG’s Maritime Safety mission involves the regulation and oversight of numerous aspects of the maritime industry. USCG marine safety experts establish vessel design and equipment standards, inspect vessels (ranging in size from small charter fishing boats to passenger cruise ships), investigate marine casualties (accidents involving vessels and waterfront facilities), implement waterways management criteria (for example, the management of bridge opening and closing schedules), and oversee merchant mariner credentialing, among other responsibilities. Sectors, discussed above, have the largest role in overseeing these missions, which typically fall under the OCMI or COTP role of the Sector Commander. At the international level, the USCG promotes maritime safety standards as the primary Unites States representative to the International Maritime Organization, a specialized agency of the United Nations responsible for setting standards for international shipping.
B. Search and Rescue. From the founding of the U.S. Life-Saving Service in 1848, search and rescue (SAR) has been a cornerstone USCG mission. The USCG is the lead U.S. agency for maritime SAR in U.S. waters. Each year, the USCG saves thousands of lives and millions of dollars of property. In fact, in Fiscal Year 2021, the USCG responded to 16,020 SAR cases and saved 4,555 lives. To carry out its SAR mission, the USCG closely coordinates with federal, state, local, and tribal authorities, as well as the maritime industry. Established and operated under international and national legal obligations and standards, the USCG serves as a model for SAR services in other countries.
C. Living Marine Resource Protection and Fisheries Enforcement. Protecting the Exclusive Economic Zone (EEZ) and key areas of the high seas is another important mission for the Coast Guard. The U.S. EEZ is the largest in the world, containing 3.3 million square miles of ocean and 90,000 miles of coastline, and the USCG is the United States’ primary at-sea fisheries enforcement agency charged with protecting EEZ resources. U.S. fisheries are among the world’s largest and in 2021 the U.S. commercial fishing industry landed over 8.5 billion pounds of fish worth over $4.9 billion. In carrying out fisheries missions, the USCG enforces both international treaties and domestic fisheries laws, including the Magnuson-Stevens Fisheries Conservation and Management Act, a primary U.S. fisheries law which extends U.S. fisheries management authority out to the full extent of the EEZ (200 nautical miles as authorized by international law). The USCG’s strategic priorities for fisheries enforcement are: (1) to protect the U.S. EEZ from foreign encroachment; (2) to enforce domestic living marine resource laws; and (3) to ensure compliance with international fisheries agreements. The USCG’s efforts reflect the substantial economic interest the United States has in protecting its ocean resources. The USCG closely coordinates with the National Oceanic and Atmospheric Administration (NOAA) for this mission since enforcement of fisheries laws and the promulgation of fisheries regulations is administered by NOAA Fisheries (also known as the National Marine Fisheries Service). Further, the Maritime Security and Fisheries Enforcement Act of December 2019 (Maritime SAFE Act) directed 21 federal agencies, including the Coast Guard and the Department of Defense, to establish an interagency working group on illegal, unreported, and unregulated (IUU) fishing in order to coordinate and strengthen efforts to counter IUU fishing and related threats to maritime security.
D. Marine Environmental Protection.
1. The USCG executes its Marine Environmental Protection (MEP) mission through both regulation of the marine industry (which is part of the “Prevention” mission set for the Coast Guard) and enforcement actions against polluters who violate the law (which is part of the “Response” mission set for the Coast Guard). On the Prevention side, the USCG inspects marine facilities, waterfront oil terminals, mobile fuel transfer facilities, and many types of vessels to ensure they are in compliance with safety and environmental protective measures. On the Response side, the USCG oversees spill cleanups and takes civil and criminal action against polluters. The USCG also has the regulatory authority to halt marine operations by facilities and vessels until they have properly addressed a pollution issue. Under the Federal Water Pollution Control Act (FWPCA or Clean Water Act) and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), its two primary pollution response authorities, the USCG can supervise the cleanup of pollution by a responsible party or assume control of (“federalize”) a cleanup if needed. In response to the Exxon Valdez oil spill on March 23, 1989, Congress passed the Oil Pollution Act of 1990 (OPA 90), which amended the FWPCA. OPA 90 re-emphasizes the role of the USCG as the federal agency with primary responsibility for preventing and responding to maritime oil spills. As discussed above, USCG Sector Commanders, typically with the rank of Captain (O-6), are the pre-designated Federal On-Scene Coordinators (FOSC) under the National Contingency Plan for spills involving oil or releases involving hazardous substances in all coastal areas in the U.S.
2. The USCG also plays a critical role in many DOJ prosecutions for environmental crimes in the maritime realm involving other federal statutes, such as the Clean Water Act, the Act to Prevent Pollution from Ships, CERCLA, the Ocean Dumping Act, and the Refuse Act. The Coast Guard details judge advocates to DOJ to serve as prosecutors for these criminal cases at the various U.S. Attorneys’ Offices.
E. Maritime Mobility: Aids to Navigation and Icebreaking. The Maritime Transportation System (MTS) “facilitates America’s global reach into foreign markets and the nation’s engagement in world affairs.” The USCG is a leading force in ensuring a safe and efficient MTS. Pursuant to its maritime mobility responsibilities, the USCG domestically maintains aids to navigation (e.g., buoys, lighthouses, foghorns, etc.), administers bridges, oversees waterways and vessel traffic management systems, and conducts icebreaking operations in critical waterways to ensure the continued flow of commerce by water. The USCG operates the only U.S.-flagged heavy icebreakers capable of providing year-round access to the polar regions.
VII. USE OF FORCE POLICY/RULES OF ENGAGEMENT. Since a primary USCG mission is law enforcement, most USCG use of force issues arise within that context. The use of force in law enforcement operations is governed by the USCG Use of Force Policy, which comports with requirements established in the Fourth Amendment to the U.S. Constitution that any use of force by a law enforcement officer must be reasonable under the circumstances present. When applicable, the USCG adheres to the Standing Rules of Engagement (SROE).
North Atlantic Treaty Organization (NATO)
I. overview
A. The North Atlantic Alliance has existed since 1949, yet its organization remains obscure to many Judge Advocates (JA). This chapter discusses five topics: NATO’s structure, decision-making process, regulatory framework, NATO ROE, and the concept of self-defense.
B. The purpose of the North Atlantic Alliance is to safeguard the freedom and security of its Alliance members by political and military means.[234] In the military domain, the Alliance accomplishes this purpose by maintaining and developing its individual and collective ability to deter and resist armed attack, by consulting together whenever the security of one of the Alliance nations is threatened, and by defending Alliance territory and population from armed attack, as set out in Articles 3, 4, and 5 of the North Atlantic Treaty.[235]
C. NATO provides a multitude of doctrine, directives, guidance, and procedural frameworks which cover matters of coordination and collaboration among forces within a multinational operational framework. NATO doctrine is found in Standardization Agreements (STANAGs), Allied Administrative Publications (AAP), Allied Joint Publications (AJP)) and regulations. In order to be able to provide correct and effective legal advice, an understanding of NATO’s doctrine and terminology is crucial.
D. In this context, it is important to comprehend the differences of the NATO and partner troop-contributing nations (TCN), national self-defense concepts, NATO ROE, NATO member nations’ national caveats, the NATO military decision-making process, as well as the dynamics and interactions of national and NATO chains of command. Online training on these topics is provided by the NATO Allied Command Transformation Joint Advanced Distributed Learning (JADL) website to military and civilian personnel assigned to all NATO Nations.
II. NATO INSTITUTIONAL BACKGROUND AND INTEGRATED COMMAND STRUCTURE
A. Institutional Background, Treaty Provisions, and Status
1. Twelve nations founded the North Atlantic Alliance on 4 April 1949 by signing the North Atlantic Treaty in Washington, D.C. Because it was signed in Washington, the North Atlantic Treaty is often referred to as the “Washington Treaty.” After being initially located in London and then Paris, since 1967 NATO’s Headquarters is in Brussels, Belgium.
2. Article 9 of the North Atlantic Treaty established a “Council to consider matters concerning the implementation of this Treaty.” This Council is known as the North Atlantic Council (NAC). The NAC directs all actions undertaken by NATO. All members of the North Atlantic Alliance have a Permanent Representative of ambassadorial rank who normally represents them in the NAC. Permanent Representatives must be available “to meet promptly at any time.” The NAC meets regularly in “Permanent Session,” to fulfill its treaty-based obligations. The NAC is an extraordinarily flexible institution that, since 1956, may also meet at the level of Heads of State and Government, Ministers of Defense, (where the United States is represented by the Secretary of Defense), and at the level of Ministers of Foreign Affairs, (where the United States is represented by the Secretary of State). When the NAC meets to discuss the Alliance’s nuclear policy, it is called the “Nuclear Planning Group” (NPG).[241] Note that France is not part of the NPG and does not participate in its meetings. [242]
3. Article 9 also enabled the NAC to create “such subsidiary bodies as may be necessary.” Besides the NAC and NPG, other major NATO committees are the Defense Policy and Planning Committee (DPPC), the Deputy Permanent Representatives Committee (DPRC), and the Military Committee (MC). The DPRC deals with cross-cutting issues ranging from strategic and political oversight areas, such as changes in the international security situation which has implications for NATO. It acts as a “trouble-shooting committee” on issues where no consensus can be achieved in the competent committee. The DPPC is the senior advisory body to the North Atlantic Council on defence matters concerning all member countries and it also has the lead on defense aspects of partnership. The MC is composed of the Military Representatives, usually general officers of three star or equivalent rank, from all NATO members. The MC is the senior military authority in NATO and is the primary source of military advice to the Secretary General and the NAC. The MC meets regularly in Permanent Session. Three times a year the MC meets at the level of Chiefs of Defense. When this occurs, the U.S. is represented by the Chairman of the Joint Chiefs of Staff.
4. Article 3 requires “the Parties, separately and jointly, by means of continuous and effective self-help and mutual aid, [to] maintain and develop their individual and collective capacity to resist armed attack.” NATO seeks to have interoperable military forces, and through its expansion to 30 nations, has strategically positioned itself within Europe.[243] The individual nations have joint and individual responsibilities to be able to defend themselves and others. Article 3 forms the basis for the NATO Defense Planning Process, a five-step process to provide a framework within which national and Alliance defense planning activities can be harmonized to enable Allies to provide the required forces and capabilities in the most effective way. It facilitates the timely identification, development, and delivery of the necessary range of forces that are interoperable and adequately prepared, equipped, trained, and supported, as well as the associated military and non-military capabilities, to undertake the Alliance’s full spectrum of missions.
4a. Article 4 declares, “The Parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened.” Article 4 consultation is not a prerequisite to invoking Article 5 but allows affected nations to bring their concerns to the NAC for discussion. As of this writing, Article 4 has been invoked seven times in history, most recently on 24 February 2022 by Bulgaria, Czechia, Estonia, Latvia, Lithuania, Poland, Romania, and Slovakia in the hours following Russia’s full-scale invasion of Ukraine.
5. Article 5 is the heart of the North Atlantic Treaty because “[t]he Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all ...” Article 5, along with Article 3, forms the basis for collective self-defense. Article 5 obligates the Parties to, “assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.” [emphasis added]. The only time NATO invoked Article 5 was in response to the September 11, 2001, attacks against the United States. On the evening of 12 September 2001, NATO invoked Article 5 for the first time in its history. On 4 October 2001, NATO agreed on a package of eight measures to support the United States. On the request of the United States, it launched its first ever anti-terror operation – Eagle Assist – from mid-October 2001 to mid-May 2002. It consisted of seven NATO AWACS radar aircraft that helped patrol the skies over the United States; in total 830 crew members from 13 NATO countries flew over 360 sorties. This was the first time that NATO military assets were deployed in support of an Article 5 operation. On 26 October, the Alliance launched its second counter-terrorism operation in response to the attacks on the United States, Active Endeavour. Elements of NATO's Standing Naval Forces were sent to patrol the Eastern Mediterranean and monitor shipping to detect and deter terrorist activity, including illegal trafficking. In March 2004, the operation was expanded to include the entire Mediterranean. Actions planned or undertaken pursuant to Article 5 are referred to as “Article 5 Operations.”
6. Article 6 defines the area where Article 5 applies, that is, essentially, “on the territory of any of the Parties in Europe or North America” or the islands in the North Atlantic “under the jurisdiction of any of the Parties . . . north of the Tropic of Cancer.” Also included in the geographic confines of Article 6 are attacks “on the forces, vessels, or aircraft of any of the Parties, when in or over these territories . . . the Mediterranean Sea or the North Atlantic area north of the Tropic of Cancer.” Textually, Article 5 does not appear to apply to locations such as the United States Virgin Islands, the Falkland Islands, or Hawaii. However, the invocation of Article 5 is a political decision. If an armed attack were to take place on these islands, the United Kingdom or the US could choose to invoke Article 4 (defense consultations), and based on those discussions, the Allies could then agree to invoke Article 5.
7. In addition to Article 5 operations, NATO conducts so called “Non-Article 5 Crisis Response Operations” (NA5CRO) in order to respond to a crisis beyond the concept of collective defense under Article 5. Essentially, NATO’s objective of NA5CRO is focused on contributing to effective crisis management when there appears to be no direct threat to NATO nations or territories that otherwise would fall under Article 5. An example of NA5CRO is Peace Support Operations (PSO). The first NATO PSO was the Implementation Force (IFOR) in the Balkans in 1995, pursuant to the General Framework Agreement for Peace (also known as the Dayton Peace Accord).
8. NATO has expanded eight times and now numbers at 30 members. The expansion process is elaborated in Article 10 of the Treaty. Specifically, “any other European State” may be invited to join NATO. The invitation is made by unanimous agreement of the current members and is based on the invitees’ ability to further the principles of the Treaty and “contribute to the security of the North Atlantic area.”
9. To assist the candidate nation, NATO develops a Membership Action Plan (MAP). While not establishing criteria, the MAP is a consultative process between NATO and the prospective member State to ascertain the State’s progress toward membership. The MAP is divided into five areas dealing with political and economic issues, military and defense issues, resource issues, security issues, and legal issues. Each aspiring nation drafts an annual “national program” on preparations for possible membership, setting objectives for its preparations, and containing specific information on steps being taken on the preparations. Participation in MAP does not imply a timeframe for or guarantee of NATO membership. Decisions on membership have been, and will continue to be, taken on a case-by-case basis by the NAC at a NATO Summit. The Alliance has no precondition for stationing troops or nuclear weapons on the territory of new members. However, new members must accede to all NATO status and technical agreements.
10. The status of military and civilian personnel assigned to NATO International Military Headquarters (IMHQ) such as Allied Command Operations (ACO) or Allied Command Transformation (ACT) or their subordinate bodies is determined by the provisions of the NATO SOFA and the Paris Protocol to the NATO SOFA. These two documents must be read together, along with the IMHQ Status Agreement and any supplemental agreements. Together these agreements establish a framework of rights and responsibilities in the relationship between the sending state, the NATO headquarters, and the receiving state. Those include, inter alia, rules for weapons, entry and exit procedures, taxes and fees, driver’s license, claim procedures and jurisdiction.
B. Political and Military Decision-Making Process
1. NATO is a collective defense and security alliance consisting of its 30 sovereign nations (Allies). The 30 Allies retain full command over their military. NATO is not a supranational organization and has no legal power over any NATO member. Indeed, NATO has no independent authority or power to make any decisions. Instead, all decisions are made by the Allies in the NAC and by consensus. All 30 Allies must agree to any course of action. This principle of consensus among the Allies is extremely broad and includes the approval of OPLANs, Rules of Engagement (ROE), and targeting.
2. To implement the consensus process, NATO developed the “silence procedure.” The silence procedure is an unwritten practice used in all committees and subordinate working groups at NATO Headquarters to reach consensus on NATO decisions and policies. Under the “silence procedure,” the basic text of a decision is first negotiated in one or more working groups, after which a draft version is circulated. If no NATO member “breaks silence” by proposing an amendment (implying that a member State has concerns with parts of the text), the text is adopted. When consensus is reached at the level of the NAC, it is the expression of the collective will of all the sovereign states that are members of the Alliance.
3. There are two supporting staffs at the NATO Headquarters in Brussels: the International Staff (IS), and the International Military Staff (IMS). The IS provides direct support to the NAC and the civil/political committees under it. The IS facilitates reaching consensus among the Allies on the political side of NATO by chairing meetings, preparing policy recommendations, and drafting communiqués and reports. The IMS provides support for the Military Committee and is composed of military officers from each NATO country. The IMS facilitates the reaching of consensus among the Allies the on military side of NATO by chairing meetings and preparing draft military advice. This military advice is considered by the Allies in MC working groups at the staff/action officer level, and then by the MC itself.
4. The NAC typically tasks the MC to provide military guidance on a variety of issues. The MC then seeks input from the SCs, who develop their input and report back to the IMS. The IMS then staffs and works the issue and develops a document called an IMS Working Memorandum (IMSWM), which is sent to the Military Representatives for consideration and coordination with their respective capitals. After reviewing the IMSWM, each NATO Ally can either maintain silence (with or without providing comments), or formally express their disagreement by breaking silence. Silence is broken by a member nation sending a letter to the IMS indicating its objection. When silence is broken, a working group typically meets to resolve the concerns and attempts to achieve consensus. If silence is maintained, this means that the member State accepts, or at least does not disagree with the content of the IMSWM. If all members maintain silence, then the IMSWM goes forward to the NAC as an MC Memorandum (MCM) of military advice.
5. After this subsequent attempt at consensus, the Chairman of the Military Committee may convene the MC to discuss the issue. If consensus is reached at the MC, the MCM is sent forward to the NAC as military advice. If consensus is not reached, however, the Chairman may send forward a recommendation, called a Chairman’s Memorandum (CM), to the Secretary General as military advice. Nations are not required to state rationales. Indeed, one of the mottos of NATO is “outcomes, not rationales.”
C. The U.S. Decision-Making Process In The North Atlantic Alliance
The formulation of the U.S. position in the North Atlantic Alliance involves interagency coordination between the Department of Defense, Department of State, the Joint Staff, and the National Security Staff. The U.S. Mission to NATO (i.e., the Ambassador’s staff) and the U.S. Military Delegation to the MC (i.e., the U.S. Military Representative’s staff) are physically located in the NATO Headquarters building, and coordinate with each other on a daily basis. When the U.S. takes a position on a NATO topic, interagency guidance is received by the U.S. Mission and Military Delegation in Brussels from both the State Department, the Department of Defense, other relevant federal departments and, depending on the magnitude of the issue, even the Office of the President of the United States. After receiving, this guidance and advice the U.S. personnel whether in the U.S. Mission or the U.S. Military Delegation begin working with their Allied counterparts from the other national missions to NATO Headquarters to build and achieve consensus on the NATO topic that is being considered.
D. The NATO Integrated Military Command Structure (NCS) and Dual Chains of Command
1. NATO is an organization comprised of many “NATO Bodies.” Some of the “NATO Bodies,” like NATO Headquarters and the military command structure of Allied Command Operations, Allied Command Transformation, and their subordinate headquarters distinct bodies within the organization. Other entities are the NATO Communications and Information Agency (NCIA) and NATO Support and Procurement Agency (NSPA), both of which are largely civilian agencies (with a comparatively small military presence). However, there are also “MOU bodies” (such as the many NATO Centers of Excellence) which support NATO and receive support from NATO but are not purely NATO.
2. Adding to the complication is that not all NATO military bodies fall completely under NATO. Units under the NATO Command Structure (NCS) are purely NATO units led by NATO commanders and supported by the NATO Military budget. For example, ACO and ACT, and the bodies directly subordinate to those headquarters are NCS. There are other multinational military units which do not fall under the NATO Command Structure yet are pledged to NATO in the event of crisis or need. Those units fall under the “NATO Force Structure.” NATO does not have direct command and control over the NATO Force Structure.
3. Allied personnel assigned to a unit under the NATO Command Structure have a dual reporting chain. The NATO chain of command exercises “OPCOM” or Operational Command over the persons assigned to NATO and can direct their work, duties, and responsibilities. However, they remain members of their national armed forces, and their national authorities retain ultimate authority over them. The Chart below shows the NATO Command Structure at the time of this writing (Jan 2023).
5. After the 2012 reform of the NCS, NATO possesses a rather flat command structure, consisting of a number of permanently established headquarters operating at the strategic, operational and tactical levels and headed by two Strategic Commands (SC): Allied Command Operations (ACO) and Allied Command Transformation (ACT). ACO is located at Supreme Headquarters Allied Powers Europe (SHAPE) in Mons, Belgium, which is forty-five miles south of NATO Headquarters in Brussels. ACT is located at the Headquarters Supreme Allied Commander Transformation (HQ SACT) in Norfolk, Virginia.
6. The SCs are responsible to the NAC via the MC for the overall direction and conduct of all NATO military matters within their command areas. ACO’s mission is to prepare for, plan and conduct military operations in order to meet Alliance political objectives. ACT’s mission is to contribute to preserving the peace, security and territorial integrity of Alliance member states by leading the warfare development of military structures, forces, capabilities and doctrines. The mission must enable NATO to meet its level of ambition and core missions.
7. The SCs provide direct advice to the MC and are authorized to provide direct advice to the NAC on matters within their purview while keeping the MC simultaneously informed. When preparing for and conducting operations, the SCs may receive political guidance directly from the NAC, although this is typically done via the MC. ACO and ACT are continuously represented at NATO Headquarters in Brussels by representatives from their respective staffs to facilitate the timely two-way flow of information.
8. ACO is commanded by the Supreme Allied Commander Europe (SACEUR) and is responsible for all Alliance military operations. The command headquarters, known as Supreme Headquarters Allied Powers Europe, or SHAPE, is in Casteau near Mons, Belgium. The mission of ACO and the SACEUR is to contribute to preserving the peace, security, and territorial integrity of NATO member nations in its area of responsibility.
8.a. The operational level of ACO consists of three standing Joint Force Commands (JFCs): JFC Brunssum, The Netherlands; JFC Naples, Italy; and JFC Norfolk, United States. All JFCs must be prepared to plan, conduct, and sustain NATO operations of different size and scope. Effectively, they need to be able to manage a major joint operation either from their static location or from a deployed headquarters when operating directly in a theatre of operation.
8.b. The tactical (or component) level consists of three Single Service Commands (SSCs) Headquarters:
Headquarters Allied Air Command (HQ AIRCOM) Ramstein, Germany: this command's role is to plan and direct the air component of Alliance operations and missions, and the execution of Alliance air and missile defense operations and missions; Allied Land Command (HQ LANDCOM), Izmir, Turkey: this command's role is to provide a deployable land command and control capability in support of a Joint Force Command running an operation larger than a major joint operation; and Headquarters Allied Maritime Command (HQ MARCOM) Northwood, the United Kingdom: this command's role is to provide command and control for the full spectrum of joint maritime operations and tasks.
9. Notwithstanding the assignment of a military member to one of the commands in the NATO Command Structure, NATO member states retain full national command over their forces, even when they are placed under NATO operational command. The NATO command structure and chain of command does not override national direction. Although forces may be placed under operational command of a NATO commander within the NCS through the process of “transfer of authority”, the respective member nation will never lose its full command over its troops. They are therefore still subject to and bound by their national laws and interpretation of international law. National caveats to an operation are an appropriate and meaningful tool to mitigate conflicts between NATO and national requirements and the potential related risk to the interoperability of the force (see below). National caveats are limitations that nations can apply to operations that do not constitute a break of silence yet provide limits on the utilization of forces provided by that nation to the NATO operation at issue.
10. A NATO operation, under the NATO integrated military command structure, relies on both NATO and national chains of command. The phenomenon of dual chains of command might be better described as integrated multinational chains of command within the NCS. As a practical example, since the formation of the North Atlantic Treaty Organization in 1951, and the creation of NATO military headquarters and US European Command in 1952, starting with Army General Dwight D. Eisenhower, the Supreme Allied Commander Europe is also the commander of all US forces in the European theater. When this occurs at a theater or lower operational level, for the purpose of interoperability, US commanders must give consideration during the planning and execution of operations the differing NATO and U.S. target engagement and other authorities, ROE sets, self-defense concepts as well as investigative authorities and obligations prescribed by domestic law.
11. Although not part of the NATO integrated command structure, the NATO Force Structure (NFS) is composed of allied and multinational Corps and Headquarters placed at NATO’s disposal on a permanent or temporary basis. The NFS provides additional and follow-on joint headquarters capabilities, and most of the tactical capabilities and forces to meet the full level of ambition.
E. Terminology. Even seemingly simple terminology can be problematic and have an impact on the interoperability of a multinational force, because the same term may be defined, understood, and used differently across the spectrum of a multinational force, with consequential effects on the conduct of operations. The website, NATO Term, provides an easy-to-use search function that has access to all NATO glossaries.
F. NATO Communications capabilities. The NATO Communications and Information Agency (NCIA) supports and enables communications within NATO organizations. Established NATO headquarters and commands within ACO and ACT utilize the NATO Communications Network (NCN) for internal telephone communications, and the NATO Unclassified and NATO Secret computer networks. Additionally, NATO utilizes the Battlefield Information Collection and Exploitation System (BICES), which provides a classified multinational system between national military intelligence organizations and NATO to share and exchange information and intelligence. Not all NATO communications abilities interface directly with individual Alliance member networks. Legal practitioners working with NATO should take steps to ensure they are able to access NATO networks adequately in order to communicate effectively.
III. NATO Rules of Engagement, Self Defense Concepts, AND CAVEATS
A. NATO ROE
1. The Rules of Engagement (ROE) for NATO forces are guidance and directives approved by the NAC and provided to NATO Commanders and the forces under their command or control.”[258] NATO ROE are premised on the obligation that all troop-contributing nations have provided their forces training in the law of armed conflict. The NATO ROE templates are written as a series of prohibitions and permissions applicable to activities in a wide range of military operations and activities. When issued as prohibitions, the rules are orders to commanders not to take the designated action(s). When issued as permissions, they define the limits of the threat or use of force, or of actions that might be construed as provocative, that commanders may take to accomplish their mission.[260] The training standard expected to be used by troop contributing nations to NATO operations is STANAG 2597 with its associated Allied Training Publication-4, Edition B, Version 1 (2022) Training in Rules of Engagement.
2. In contrast with U.S. ROE, which are generally considered permissive, NATO ROE may be considered by some to be more restrictive in nature. However, because NATO ROE are always mission specific, neither by definition nor by default are they more restrictive than U.S. ROE.
3. International law, including the law of armed conflict, applies to all NATO military operations. In NATO its member nations have not ratified the same conventions and treaties. Consequently, efforts must always be made to develop a common approach consistent with the obligations assumed by those who are bound by the conventions and treaties they have ratified, while respecting the sovereign decisions of those nations who have chosen not to accept these obligations.[262]
4. NATO member states must also adhere to their respective national laws, and their military, in addition, must adhere to national political guidance. Thus, if national laws, interpretations of international law, or national policies are more restrictive than those in NATO ROE, the affected forces must comply with their national constraints. In this case, each nation must issue instructions restricting the ROE to their troops to ensure compliance with their respective national laws and political guidance. When national laws are at variance with the ROE for a NATO operation or an activity, nations must inform SACEUR of their limitations as early as possible.[263] This is primarily done by the affected nation issuing appropriate caveats. Caveats are defined as:“[A]ny limitation, restriction or constraint of any nation on its military forces or civilian elements under NATO Command and Control or otherwise available to NATO, that does not permit NATO commanders to deploy or employ these assets fully in line with approved OPLAN. But note that a caveat may apply inter alia to freedom of movement within the joint operations area and/or to compliance with the approved ROE.”[264] National caveats to an operation are thus an appropriate and meaningful tool to mitigate conflicts between NATO and national requirements and the potential related risk to the interoperability of the force. Where caveats are notified and articulated during the operational planning process, they become an integral part of the OPLAN including NATO ROE. Any given national restrictive position can be anticipated before the commencement of and during the execution of NATO operations or missions. In practice caveats are submitted to and published by SHAPE for a given operation as either part of the OPLAN, or within the ROE set or as a separate accompanying document. Since these caveats may impact on the ability of national forces to perform assigned task under NATO operational command JAs need to be very vigilant of such caveats in order to advise the commander during the planning process and execution of any given mission during a NATO operation.
B. Self-Defense. The concept of self-defense differs significantly between US Forces and our Allies. Navigating this distinction is one of the primary challenges to NATO interoperability of different forces.
1. NATO defines self-defense as “[t]he use of such necessary and proportional force, including deadly force, to defend NATO forces and personnel against attack or an imminent attack.”[265] The definition is further refined by defining “necessary” as indispensable; “proportional” as a response commensurate with the perception of the level of the threat posed; “imminent” as manifest, instant and overwhelming; and “attack” as “the use of force against NATO forces and personnel. The NATO ROE MC 362/2 guidance on NATO ROE acknowledges that ROE do not limit the right of individual and unit self-defense.
2. Even though the NATO ROE guidance provides for a NATO definition of self-defense, it is important to bear in mind that NATO member nations’ national self-defense laws and respective definitions always prevail.
3. US and NATO terminology can differ, both in terms of definition and also in the context in which an identical term is being used.
3a. For example, while the basic US definition of “hostile act” means “an attack or use of force,” the NATO ROE definition defines the same term differently and more narrowly, covering only situations short of an actual attack. Both US and NATO ROEs permit attack “against . . . individuals who commit or directly contribute to any intentional act causing serious prejudice or posing a serious danger to NATO/NATO-led forces…”
3b. In the context of this definition, it is important to note its broad scope and that the NATO ROE guidance specifically clarifies and further defines hostile attack as “hostile act (not constituting an actual attack).” Not only is the same term “hostile attack” defined differently, the term is not used in the context and framework of self-defense concept, but only in order to describe a threat scenario covered solely by ROE and hence LOAC, yet, outside the NATO and member states’ self-defense concept of imminent and actual attack.
4. Although the US and NATO define the term “hostile intent” very similarly, they differ greatly in how it is applied to operations. In NATO, the term “hostile intent” is used in the context of use of force under NATO ROE, whereas in the US, the term immediately connects to the concepts of unit and individual self-defense. Hostile intent under NATO ROE is a “likely and identifiable threat recognizable on the basis of both the following conditions: (a) capability and preparedness of individuals…which pose a threat to inflict damage and, and (b) evidence, including intelligence, which indicates an intention to attack or otherwise inflict damage.” Under the U.S. definition, the term means a “threat of imminent use of force; imminent not necessarily means immediate or instantaneous”. Both terms define “threat” very similarly, and the definition of imminence does not diverge significantly. The broad NATO definition, particularly the conditions (a) and (b), allows for the assumption of a broad temporal scope of “imminence”, like in US ROE.
5. To close the legal gaps between the different legal regimes allowing for the permissible use of force in self-defense, NATO ROE may authorize the use of force in “hostile act” and “hostile intent” situations (so called defensive NATO attack ROE). These NATO ROE are basically rules on attack against elements constituting a threat to NATO forces which falls short of the requirements of an imminent or actual attack (i.e., NATO and most member states’ definition of self-defense). As a result, use of force cases not meeting the requirements of restrictive national self-defense concepts that rely on imminent and actual attack are covered by expanding the spectrum of the use of force. In other words, NATO “defensive attack” ROE accommodate different national self-defense concepts because the authorization of defensive attack NATO ROE allows for the use of force under an international law/LOAC paradigm beyond narrow national self-defense concepts. This assures the commander of a combined force that the forces under his or her command will respond uniformly to the actions of the enemy.
6. The different understanding of self-defense and its relation to NATO ROE has direct implications on the work of the Judge Advocates (JAs) and legal advisors in a NATO operation. It is critical to understand the differences between US and Allied concepts of self-defense.
7. MC 362/2 (NATO ROE) formally distinguishes peacetime ROE from armed conflict ROE. Whether in peacetime or in armed conflict, NATO ROE, like US ROE, are a mixture of authorizations and limitations. Once an armed conflict has commenced in which NATO forces are involved as combatants, the NATO ROE recognize that “[c]are must be taken to ensure that any ROE do not unduly restrict the commander’s ability to effectively carry out the mission and obtain military advantage.”[266] Annex A of MC 362/2 is entitled “Compendium of Rules of Engagement,” and lists “a menu of possible options.”[267] Specific guidance on the use of ROE in each of the various war-fighting mediums are contained in Annexes B (Air), C (Land), D (Maritime), and E (Cyberspace). NATO related material may be requested from the Center for Law and Military Operations (CLAMO) (see the CLAMO chapter for contact information).
IV. LOAC & International Human Rights
It is important for JAs to be aware of the latest decisions of the European Court for Human Rights (ECtHR) regarding the system and application of the European Convention of Human Rights (ECHR) in armed conflict. Most importantly, the ECtHR has ruled that the ECHR is applicable extraterritorially, e.g., in Afghanistan and Iraq and the LOAC has to be read in light of the ECHR. The US and Canada are the only NATO Allies that are not ECHR states. Hence, both US and Canadian JAs might find themselves in a situation where they have to take ECtHR jurisprudence into account when advising on NATO operations.
V. NATO FUNDING
A. All NATO Allies contribute funds to operate NATO. Each nation’s funding share is based on its relative share of Gross Domestic Product, as adjusted by the Alliance based on concepts of equity.
b. There are three NATO budgets: The Civil Budget, which pays the salaries of the civilian employees at HQ NATO, plus the cost of operating the HQ facilities; the Military Budget, which pays the salaries of the civilians assigned to NATO Command Structure units, as well as certain costs of conducting day-to-day operations (NATO AWACS and Global Hawk programs, among others) and finally, the NATO Investment Budget which provides funding for the NATO Security Investment Program (NSIP).
c. One major principle of NATO funding is that “costs lie where they fall.” If a particular cost or expense can be reasonably traced back to a particular Ally, it is the responsibility of that Ally to assume responsibility for that cost. NATO Common Funds (the three budgets) can only be used to pay for costs not otherwise attributable to a particular ally. In practice, this means that an Ally is responsible for all its own costs of participating in NATO operations and exercises, with very few exceptions.
VI. DETENTION
A. NATO is not a state and therefore cannot itself be a party to treaties and other international instruments relating to the conduct of hostilities. Only individual NATO member states may be a party to such instruments, such as the Geneva Conventions (GC). The conduct of detention ops is therefore a pure national responsibility.
B. Nonetheless, in 2007, the nations agreed to a NATO Standard, STANAG 2195, Captured Persons, Materials and Documents with its associated 192-page Allied Joint Publication AJP-2.5 (A) to provide guidance on the procedures for the handling and administration of captured persons, their effects, and for their interrogation within the NATO Alliance. It is also intended to improve cooperation between NATO forces during the conduct of operations.
C. Given the prevalence of national responsibilities and obligations in respect of detention operations AJP 2.5 is set to common denominators among NATO member states. During the approval process the US declared its many reservations to the eight chapters of AJP 2.5 and its six annexes. Because of these reservations it is important for US legal practitioners involved in NATO operations that potentially involve detainee operations to understand both the NATO publications and the US policies and regulations governing detainee operations.
VII. LEGAL OPERATIONS
A. In NATO, the concept of ‘Legal Operations’ is broadly understood as the use of law as an instrument of power. Similar, but broader than the more common term lawfare, legal operations may encompass any categories of actions in the legal domain by state or non-state actors. These actions are aimed at, among others, gaining – or undermining an opponent’s – legitimacy, advancing or undermining interests, or enhancing or denying capabilities, at the tactical, operational, strategic and/or political levels. They may occur across the whole peace-crisis-conflict spectrum in combination with a wide range of instruments of power in the DIMEFIL spectrum.
B. The SHAPE Legal Office has developed a doctrine of legal operations that can be divided in three main lines of effort: legal vigilance, legal operations response, and anticipation and legal operations training and education. The aim of these efforts is to anticipate, identify, assess and respond to hostile legal operations, detect and address legal vulnerabilities, increase interoperability and awareness across the Alliance beyond the legal community and, overall, serve the NATO mission of deterrence and defense while protecting the rule of law and the rules-based international order.
C. The SHAPE Legal Office provides regular trainings and exercises on legal operations for security and defense officials across the Alliance.
VII. REFERENCES
A. The North Atlantic Treaty, 1949
B. Agreement Between The Parties to the North Atlantic Treaty Regarding The Status Of Their Forces, 1951
C. Allied Joint Publication 1, Allied Joint Doctrine 2017
D. Allied Joint Publication 3, Conduct of Operations 2019
E. Allied Joint Publication 3.9 Joint Targeting 2016
F. Allied Joint Publication 5 Operational-Level Planning 2019
G. Allied Administrative Publication 6 NATO Glossary of Terms and Definition 2019
H. Allied Administration Publication 15 NATO Glossary of Abbreviations used in NATO Documents and Publications 2017-2018
I. Allied Command Operations, Comprehensive Operations Planning Directive, Version 3.0, 15 January 2021
J. Allied Procedural Publication 13, Coalition Operations Handbook, Edition A Version 1 November 2013
K. NATO Standard ATP-4 Training in Rules of Engagement 2015
L. MC 362/2 NATO Rules of Engagement 2019
M. North Atlantic Treaty Organization, E-library, https://www.nato.int/cps/en/natohq/publications.htm.
N. NATO Joint Advanced Distributed Learning, Online Course Catalogue, https://jadl.act.nato.int/
CourseCatalog.pdf.
O. North Atlantic Treaty Organization, NATO Standardization Document Database, https://nso.nato.int/
nso/nsdd/_CommonList.html
P. Functional Planning Guide on Treatment and Handling of Captured Persons, ACO Provost Marshal and Legal Office, July 2019
Q. Bi-SC Directive 15-23 Policy on Legal Support 2009
R. Legal Advisors Worktop Functional Area System – LAWFAS (ACO/SHAPE Legal Office sponsored web portal that provides research databases and collaboration tools, including the Central Repository of International Agreements (CRIA) for Alliance legal advisors). Visit https://lawfas.hq.nato.int to request access.
Multinational Operations
“Throughout history, we see nations with allies thrive, and nations without allies wither”.
Former Secretary of Defense Mattis, NPR Interview, published 2 Sep 2019
I. Introduction
A. Doctrine.
1. Multinational Operations
a. Military actions conducted by forces of two or more nations are defined as “multinational operations.”[268] Such actions are usually undertaken within either a formal alliance (e.g., NATO) or an ad hoc coalition. An alliance is a relationship that results from a formal agreement (e.g., a treaty) between two or more nations for broad, long-term objectives that further the common interests of the members. A coalition is an ad hoc arrangement between two or more nations for common action. Coalitions may be formed for single occasions or longer periods, but usually address a narrow sector of common interest. They are less likely to provide the same degree of organizational maturity as alliances.
b. The U.S. Armed Forces’ starting point for consideration of multinational operations, JP 3-16, lists eight core tenets: respect, rapport, knowledge of partners, patience, mission focus, team building, trust, and confidence. Failure to adhere to these tenets could jeopardize unity of effort within the coalition or alliance, and thus risk mission failure. Judge Advocates (JA) have a role in ensuring that mission failure does not occur.
2. Interoperability. NATO AAP-06 provides a list of accepted definitions; this should be consulted when working with NATO partners. Outside of NATO, the ABCANZ (American, British, Canadian, Australian, and New Zealand Armies’ Program) process also provides a source of interoperability policy and direction. ABCANZ is the FVEY (Five Eye community) lead for interoperability; it has potential to be of particular use when integrating Australia and New Zealand into NATO and ad hoc coalition activities (see further below).
3. Multinational Legal Interoperability. Multinational Legal Interoperability is “the achievement of shared understanding of respective authorities, permissions, restrictions, obligations, and interpretations of international and domestic law and policy that enables the Combined Force to act together lawfully, coherently, effectively and efficiently to achieve tactical, operational and strategic objectives.” Legal Interoperability facilitates lawful mission accomplishment by supporting Combined Force Commanders so they are ready to deploy, fight, and win as part of a multinational force across the range of military operations and against the full spectrum of threats around the world. The tempo, fog, and friction of the Large-Scale Combat Operations demonstrate the importance of establishing relationships early to build mutual understanding and trust amongst allies within the legal function.
In multinational operations, the United States is not alone. Ideally, JAs will weave a legal community network beforehand, distribute a legal function directory, and even install a daily legal synchronization meeting into the battle rhythm. They will have thoroughly prepared the “legal battlefield” by finalizing matrices for the legal employment of certain conventional weapons (particularly anti-personnel mines and cluster munitions) and distributed national caveats to the rules of engagement (ROE). The relationships in a multinational environment and the preparation of the legal battlefield are paramount to achieving legal interoperability.
B. Military Operations. Both alliances and coalitions may be employed across the full spectrum of military operations, and may require coordination, not only with other multinational partners, but also with a variety of U.S. government agencies, host nation authorities, and intergovernmental and nongovernmental organizations. Multinational operations do not necessarily require interoperability (ranging from mere de-confliction to compatible to integration), although the more interoperable the nations are, the more efficient and effective they are likely to be in achieving the mission. For example, NATO mitigates interoperability challenges with various instruments, inter alia with a variety of Standardization Agreements and its integrated command structure (see above, NATO).
C. Judge Advocates. JAs need to be cognizant of differences in multinational partner laws, doctrine, organization, weapons, equipment and terminology, and the potential of those differences to impact on operations. For instance, the U.S. definition of “hostile act” as used in the SROE is significantly different from the NATO definition (see above, NATO). Additionally, an understanding of cultural, political, and religious considerations applicable to partner nations will benefit a JA operating in a multinational environment. It is essential to appreciate that different nations will have different approaches to the provision of legal advice to commanders. For example, not all partners or allies will deploy legal officers into theater, nor will all legal officers be members of a bar or equivalent. In addition, as long as the Law of Armed Conflict (LOAC) does not mandate combatant status, Legal Advisors from other nations’ armed forces may participate in multinational military operations in civilian status.
II. MISSION
A. Sources. The mission of a multinational force may derive from national channels or from international treaties, mandates, resolutions or agreements common to the contributing nations. Each nation will be driven by its own political considerations which may affect mission execution. Mission analysis for a multinational operation must consider the ROE of each troop-contributing nation (TCN) and other national factors that may affect mission accomplishment. National differences in interpretation of applicable law, policy, doctrine, training, capabilities, and equipment may be overcome by informed force composition, mission assignment, and integrated command structures.
B. Coordination. When advising at any stage of a multinational operation it is imperative that JAs actively liaise and maintain close coordination with legal staff of partner forces and those employed within the allied/ coalition headquarters. A sound understanding of legal differences across the spectrum of operational functions is essential in order to advise in relation to the legal aspects of the mission. JAs will need to understand the respective national positions and the legal or policy rationales behind them in order to ensure that they are properly accounted for in the planning and execution of operations. JAs cannot be expected to know all the variations in legal approaches and obligations but can be expected to reach and identify points of contact within the legal branches of partner nations. This process begins by way of legal community and network building during pre-deployment training/combined and joint exercises, exchanges, and international courses and events.
III. ORGANIZATION
A. Planning Multinational Operations
1. Cohesion. Perhaps the biggest challenge to any multinational operation is the requirement to protect the cohesion of the force. Political, practical, and legal considerations shape the nature of multinational action. Commanders must be clear about the terms[274] under which constituent national contingents will operate, as well as the possible impact upon the strength and cohesion of the multinational force.
2. Legal Authority. JAs must be conversant with and advise on the differing legal regimes applicable to multinational partners.[275] Signatures and ratifications of treaties are published in the United Nations Journal and may be accessed electronically via the UN treaty database.[276] Moreover, JAs must be aware that parties to treaties may not interpret their obligations and responsibilities in exactly the same manner as the United States. If differing interpretations are understood and accommodated within the multinational force’s plan, their potential to become a source of friction or negatively impact the cohesion of the multinational force can be minimized. It is essential to consider any published reservations to treaties entered by multinational partners and verify which partners have ratified specific treaties. It is also important to consider the national status of and approach to memoranda of understanding (MOU); for some states, MOU have the status of treaties whilst for others they are considered politically, rather than legally, binding.
3. Limitations. Other factors which may limit the military capabilities of multinational partners include linguistic and communications issues, domestic political and policy considerations, doctrine, organization, training, and technology levels. A good example for domestic policy considerations is the casualty tolerance in respect of both own forces and civilian casualties. It is not uncommon for nations to limit their role within a multinational operation on the basis of such factors—for example, participation may be restricted to the support of strictly defensive roles. However, multinational commanders may be able to reduce the impact of such differences by merging capabilities in order to balance weaknesses in one contingent with strengths in others. This requires JAs to assist the staff in identifying which component is able to carry out which tasks.
4. Procedures. The rationalization, standardization, and cooperation procedures for formal alliances may assist with planning in this regard.[277] JAs should familiarize themselves with any bilateral agreements between multinational partners, including status of forces agreements (SOFAs) or status of mission agreements (SOMAs), which may shape the legal landscape.
B. Command and Control, C-2
1. Chain of Command. Command relationships in multinational operations involve both national and multinational chains of command. U.S. policy dictates that the President, as Commander in Chief, always retains national command authority, but may place U.S. forces under the operational control (OPCON) of a multinational commander.[278]
2. Command Structure. While multinational operations within formal alliances lend themselves to an integrated command structure (i.e., where an integrated multinational headquarters supports the designated commander), a coalition operation is often characterized by a lead/framework nation command structure which may or may not rotate. Less common is a parallel command structure where no single force commander is designated, and consensus often stems from compromise. As exemplified by the C-2 structure for the Operation Desert Storm coalition, lead nation and parallel command structures may exist alongside one another and may evolve as the operation progresses. An example for an international ad hoc coalition with a fully integrated, multinational headquarters supporting a single commander is Operation Inherent Resolve (OIR), which continues to work by, with and through regional partners to militarily defeat the Islamic State of Iraq and Syria, or ISIS. To execute the OIR mission, Commander OIR exercises Operational Control (OPCON) over a number of U.S. Task Forces. Coalition partners contribute collective capabilities to these Task Forces under Tactical Control (TACON) arrangements, with OPCON exercised by parallel national command authorities.
C. Communications and Intelligence Sharing
We will not win the war on terror through military action. The sharing of information and intelligence will be vital to protecting our country.
- Former Secretary of State for Defense, William Cohen
1. National Disclosure Policy. The release of classified information to multinational partners is governed by national disclosure policy (NDP).[279] Multinational partners frequently request access to U.S. information, but the security classification of such information may preclude this. It is therefore good practice to encourage a ‘write for release’ approach with appropriate use of paragraph marking and the use of ‘tear lines.’ Lack of multinational partner access to SIPRNET can be a major interoperability issue as these means are typically the default setting for passage of significant amounts of both classified and unclassified operational information.
2. Standardization Agreements. While NDP tends to be controlled by the Combatant Commands, JAs should be aware of the existence of international standardization agreements, such as those established within standing alliances (e.g., the NATO standardization agreements (STANAG)). Such documents provide a useful starting point for policies concerning the ability to share classified information among multinational partners. However, the unique nature of coalition operations means that their application may require modification based on the circumstances. Details of the intelligence-sharing agreements between the United States, the United Kingdom, Canada, Australia, and New Zealand are laid out in classified MOUs. Additionally, the ABCANZ Coalition Intelligence Handbook provides guidance in relation to the planning and conduct of intelligence in support of ABCANZ coalitions.
D. Military Justice. Jurisdiction over U.S. personnel suspected of committing criminal offenses is decided on a case-by-case basis in accordance with applicable international agreements with host nation authorities. It is U.S. policy to retain jurisdiction in all criminal cases to the fullest extent possible. This position is common to most nations willing to contribute forces to multinational operations.[281] Foreign military commanders exercising OPCON or TACON over U.S. forces do not administer discipline. The converse is also true; U.S. commanders exercising OPCON or TACON over multinational forces do not administer discipline over those forces. Although nations do not administer discipline over other nations’ personnel, they may seek the involvement of personnel during investigations and disciplinary or criminal process. The process for, and degree of, such mutual support will need to be considered on a case-by-case basis. This should be considered at the outset of operations rather than when an incident arises. JAs should ensure they understand what the relevant processes are and the degree of support available in relation to the cases most likely to arise. Acknowledging that discipline is a matter for national authorities, there will be occasions where the commander of a multinational force, under the doctrine of command responsibility, needs to be satisfied that a multinational partner is taking action in respect of an allegation and that allegations are investigated. Such a multinational force commander is free to suggest to the relevant Senior National Representative that the soldier in question be repatriated, provided the evidence base suffices for that procedure, which will regularly be clarified by the legal advisor (LEGAD) of the involved nation.
E. Exchange Personnel. The United States has a number of permanent bilateral individual exchange positions with other nations. Deployed exchange personnel must comply with their own domestic law. Thus, an exchange officer’s government may place conditions on, or prohibit, involvement in certain operations if its domestic law or policy is more restrictive than that of the host unit. Exchange personnel are essential to promoting multinational interoperability and disseminating lessons learned from previous multinational operations. They can also be key to explaining to other multinational partners how the evolving nature of an operation may impact them, and therefore prevent misunderstanding and risk of weakening the strength and unity of the multinational effort. JAs have a role to play in the deployment of exchange personnel by ensuring that both the commander and the exchange personnel are aware of the impact of any national limitations and that they have the relevant authority to deploy. Note, however, that exchange personnel regularly have no official representation function of their sending nation and do have not the specific report duties and liaison tasks that so labeled liaison personnel have. The details should be clarified in a bilateral MOU.
F. Investigations and Claims
1. Multinational incidents. Incidents that give rise to investigations, including accidents and alleged war crimes, may involve members of more than one multinational partner force. Each multinational partner is likely to have its own national requirements for investigations and release of information, and it may not be possible for all partners to adopt the same policy. While there is no simple solution, early discussion of the types of incidents to be investigated by each multinational partner, as well as the information that will be released, will help minimize the impact (both from a substantive context, and a procedural / administrative point of view) of national policy differences. In many cases, particularly in alliance operations, Standard Operating Procedures (SOPs) agreed upon by the multinational partners delineate the procedures to be followed. Examples of positive interaction in multinational investigations include the Linda Norgrove[282] inquiry and the PUMA II helicopter crash at Headquarters Resolute Support Mission in Kabul/Afghanistan. The Norgrove inquiry was a U.S. investigation with British participation. That investigation successfully fused the requirements of both nations in a report that was written for release and could be used by a British coroner in his inquiry into the cause of death. The PUMA II crash investigation was a British service inquiry that included both French and U.S. observers on account of the death of their personnel.[283] These are just two examples of situations in which U.S. personnel were required, and able, to work with other nations in conducting successful investigations during multinational operations.
2. Claims in a multinational environment. Each nation will also tend to have its own policies and procedures with regard to claims received by the force. Not all countries will use military legal personnel for this task. JAs should be aware that differences may be due to domestic law (for example, where a SOFA removes the legal requirement to pay compensation, a multinational partner may lack the legal basis for making such payments). Different policies and the existence of multiple procedures may increase the potential for exploitation by the local population, for example “forum shopping” or, indeed, the submission of multiple claims in relation to the same incident. Alliance operations may generate common claims polices or procedures which multinational partners are requested to follow to the extent possible. In any event, maintaining an open dialogue and sharing claims-related information between multinational force members will facilitate a more effective and economic claims regime within the area of operations.
G. Fiscal Law Considerations. Many multinational partners do not have the same degree, or type, of fiscal regulation as the United States. Multinational partners often make logistic requests of the United States. JAs must understand and be able to explain U.S. fiscal limitations, especially the operation of acquisition and cross-servicing agreements (ACSAs). In some circumstances, a multinational partner’s greater fiscal flexibility may be used to achieve multinational force objectives that cannot be funded from U.S. sources. In alliance operations, common funding of specific military requirements may be provided for. These issues should be analyzed at the earliest point in the development of the operational plan in order that the implications can be addressed in the planning process and workarounds put in place where possible. This area can be further complicated where commanders have dual roles and responsibilities such as commanding both a U.S. and a NATO or coalition force concurrently; the fiscal streams must be clearly delineated and the methods for crossover must be made clear if they exist. J8 personnel should regularly be involved, if only for situational awareness and cross-checks.
IV. OPERATIONS
A. Detention Operations – Detention is normally a matter for national command chains but will have a multinational element in terms of command responsibility and cohesion.
1. National Policies. Multinational operations often feature the involvement of armed forces in the detention of individuals. Given the responsibilities of the Detaining Power under LOAC and national obligations under domestic and international human rights law (IHRL), detention and associated detention policies are regarded as a national issue. However, NATO endeavored to accommodate different national policies and approaches in an Allied Joint Publication[284], which is intended to provide guidance on the procedures for the handling, administration, and interrogation of captured persons, as well as to improve coordination between NATO forces in operations. The document provides a good overview of detention-related matters in a multinational context and contains relevant official U.S. reservations regarding this issue. However, it cannot and does not provide all of the answers. JAs must therefore understand the underlying principles and the application of the third and fourth Geneva Conventions, the Additional Protocols, Common Article three and applicable LOAC, in order to be in a position to discuss detention policies with partner nations. The treatment and management of captured persons have been of particular importance in recent operations to a number of multinational partners, including Australia, Canada and the United Kingdom.[285]
2 Obligations. A nation’s legal position in relation to detention will be shaped by its interpretation of its LOAC, IHRL and domestic law obligations. In relation to the application of LOAC, nations may reach different conclusions based on their classification of the conflict. Even when there is consensus in this respect, nations may determine the status of captured persons differently. IHRL is even more likely to impact nations differently owing to national positions regarding the extraterritoriality of human rights treaties and the application of regional human rights systems and domestic law. National obligations under IHRL have the potential to impact on detention operations and may in fact shape the willingness of some multinational partners to detain civilians during overseas military operations.[286] European partners increasingly face complex human rights considerations in relation to security detention arising from decisions of the European Court of Human Rights (ECtHR), particularly with regard to the extraterritorial jurisdiction of the European Convention of Human Rights (ECHR).[287] The issue of hooding is one example of a practice that is not prohibited under LOAC, but which has been prohibited as a matter of policy and practice by at least one coalition partner. JAs need to be able to explain the importance and reality of such differences in approach. For example, the full application of the ECHR to forces deployed on combat operations in foreign countries could lead to strategic consequences, possibly impacting cohesion of a coalition force.
3. Transfer. In the context of multinational operations legal issues may arise in relation to the transfer of individuals from the effective control of one nation to that of another. This is in recognition of both Geneva Convention[290] and human rights responsibilities. Risks associated with transfer of detained persons are not new and can arise both within an alliance and in respect of the host nation. Concerns regarding transfer between TCNs may be alleviated by the negotiation of an agreement establishing terms and procedures for the transfer of prisoners of war, civilian internees and/or civilian detainees between multinational partners (such as in the case of Operation Iraqi Freedom).[291] Concerns arising from potential imposition of the death penalty, torture or ill-treatment by the receiving nation, have been particularly significant in recent multinational operations in relation to transfer to the host authorities.[292] Both the United Kingdom[293] and Canada[294] faced legal challenges in their domestic courts in relation to their policy to transfer detainees to Afghan authorities. Furthermore, reports by the United Nations Assistance Mission in Afghanistan (UNAMA) led NATO to impose restrictions on transfers. Negotiation of formal national level agreements with the host nation containing assurances regarding humane treatment and use of the death penalty may alleviate some of the concern. The issue is whether such arrangements can adequately address any risk that detainees will be subject to torture or mistreatment on transfer. Accordingly, even while no relevant obligation under LOAC exists, some nations have chosen to use post-transfer monitoring regimes to address this issue. Such regimes may also be used within a multinational force to discharge national responsibilities.
4. Standard Operating Procedures. While detention is necessarily a matter of national concern, this does not detract from the desirability of a common and coordinated approach. The Copenhagen Process on the Handling of Detainees in International Military Operations: Principles and Guidelines[295] is an example of an effort to develop principles and good practices for States and international organizations who detain individuals during the course of non-international armed conflict and peace support operations However, it was later criticized by academics and civil society as being inadequate and uncertain in scope. Indeed, one of the challenges for multinational commands is the development of SOPs and common standards that reflect detailed legal obligations. Potential areas for consideration include the determination of a detainee’s status, standards for the treatment and management of detained individuals, use of terminology and policies regarding transfer and personnel exploitation. Detention within multinational operations is potentially complex and problematic. A clear understanding of national positions will ensure maximum cooperation and enable planning to minimize operational impact of varying national positions.
5. International Committee of the Red Cross. Engagement with the International Committee of the Red Cross (ICRC) is a central issue to consider in relation to detention. Even during multinational operations, detention facilities are usually administered by individual nations, such that the reports provided by the ICRC are directed in confidence to national governments and their senior military commander in theatre.[296] This does not, however, rule out the opportunity for a multinational commander to engage with the ICRC and, for instance, to report consolidated, force-wide, detainee-related information to the ICRC. In any case, JAs must be aware that all departments and agencies of the Federal Government shall provide the ICRC with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, or other agent of the U.S. Government or detained within a facility owned, operated, or controlled by a department or agency of the U.S. Government, consistent with DoD regulations and policies.
B. Use of Force
1. Self-Defense
a. While domestic laws of all nations recognize a right of self-defense, it is a concept that varies in meaning between countries. JAs must not assume that multinational partners share the U.S. understanding regarding the use of force in self-defense. The right of self-defense is exercised in accordance with national laws which differ in terms of definition and scope of the right. Accordingly, the circumstances in which forces from different nations can act in self-defense may vary. In NATO/NATO-led Operations, the defensive use of force actions is listed in NATO MC 0362/2, ROE Series 33. This ROE Series exists to compensate the gap between any given Nation’s understanding of self-defense and the commander’s requirements to use force for mission accomplishment and to authorize the use of force under specified circumstances in designated operations. Some of these ROE are marked “DEF” (defensive use of force) and are considered the minimum necessary in most operations or missions to compensate for national divergence and ensure maximum interoperability, particularly for force protection. They should always be approved as they precisely aim to overcome Troop Contributing Nations’ restrictions.
b. Regardless of the terms of the ROE or any SOFA, U.S. forces retain the right to use necessary and proportional force for unit self-defense in response to a hostile act or demonstration of hostile intent.[299] Other nations use different criteria to determine when the right of self-defense is triggered and may apply a different meaning to the same terminology. The right to use self-defense can be considered to be triggered in cases of actual and imminent attacks; however, the particular interpretation of the term “imminent” differs from country to country. While the U.S. definition of “demonstration of hostile intent” as per the current SROE concept follows a broad interpretation by way of stipulating that “imminent does not necessarily mean immediate or instantaneous,” other countries construe “imminent” to mean precisely that (i.e., that “imminent means “immediate”). These latter interpretations include situations in which an attack is immediate in terms of directly impending, being near execution and hence require immediate defensive action. Different parameters with regard to self-defense may affect when the right to use lethal force in self-defense ends and the requirement for mission accomplishment ROE begins[300].
c. National self-defense rules may also differ with regard to who or what can be defended. U.S. forces must have specific authorization to use collective self-defense and defend multinational forces.[301] Other nations’ laws of self-defense may govern the defense of others, such that their soldiers retain that right unless it is specifically restricted. Self-defense rules may also differ with regard to the protection of property. For example, at all times, including when guarding property, British forces must not use lethal force other than for the protection of human life unless explicitly authorized under ROE or in accordance with the law of armed conflict. Only when the potential loss or destruction of property causes an imminent threat to life, will self-defense rules apply. Military commanders may designate specified property as mission essential and must ensure that accompanying mission accomplishment ROE stipulate what force can be used to protect the specified property.
d. While the U.S. ROE provide that unit commanders may limit individual self-defense by members of their unit, other nations consider individual self-defense to be inherent such that it cannot be restricted in any circumstances. Differences may also arise in relation to the use of warning shots and whether, and in what circumstances, pursuit is permitted in self-defense. The practical impact of different national laws of self-defense may in some circumstances be addressed by the provision of relevant rules within the ROE but higher authority may be required to use force on that basis.
2. Rules of Engagement (ROE).
a. While an alliance may issue ROE that apply to the entire multinational force, it is rare for the ROE for any coalition operation to be contained within a single document. More commonly each contingent will receive ROE from its chain of command that reflect, in addition to common considerations such as international law and mandate, national, political, and operational concerns and domestic law. National caveats may be declared to facilitate the application of multinational ROE. The U.S. Standing Rules of Engagement (SROE) provide that U.S. forces assigned to the operational or tactical control of a multinational force will follow the ROE of that force for mission accomplishment if authorized by the Secretary of Defense.[302] When U.S. forces operate in conjunction with a multinational force, reasonable efforts are made to establish common ROE. If this is not possible, U.S. forces operate under the SROE.[303] The U.S. currently has combined ROE (CROE) with a number of nations and is continuing to work on CROE with additional nations. JAs should confirm the detail of the relevant authorities that they are understood by both commanders and the relevant staff sections.
b. Whether coalition partners operate under separate national ROE or one multinational ROE, there will be variations in their ability to use force which may be reflected in different rules or national caveats. Even when the terminology looks familiar, JAs must ensure that they understand the coalition partner’s meaning in advance of a mission. For example, other countries may have a different approach from the Unites States in relation to the meaning of “hostile act” and “hostile intent.” While the United States uses the term to define situations in which the use of lethal force is always permitted, the United Kingdom and other nations apply a different definition and require specific authorization to use force in response.[304] This approach is reflected within NATO ROE,[305] when they allow e.g., for the use of force in situations which fall under the NATO definitions of “hostile act” and “hostile intent” (see Chapter 23, NATO). Where nations have different treaty obligations, for example in relation to weapon usage, constraints will be stipulated within national ROE, or by way of using caveats in multinational ROE, which may also provide guidance in relation to interoperability with nations that do not have the same constraints.
c. Where national ROE is issued, it is essential that the ROE of each coalition partner is understood and continually reviewed, as they are likely to be subject to change (particularly if the nature of the operation changes in the view of that coalition partner). Differences in terminology should be minimized, or where this is not possible, understood. References such as the AAP-06 NATO Glossary of Terms and Definitions and the NATO compendium of ROE should be considered in the effort to reduce such differences. Joint consultation while drafting the ROE can be beneficial, although it is accepted that this is typically the exception, not the rule. A clear understanding of national ROE positions will inform decisions in relation to force composition and mission assignment and minimize operational impact. Legal advice to commanders and ROE training for U.S. forces must address any issues arising from different national ROE. An agreed matrix showing the comparison of national ROE will be of value. Version control must be strictly adhered to in order to ensure all partners have the most recent versions.
3. Military Objective / Targeting
a. States may come to different conclusions regarding whether certain objects are military objectives in accordance with Art. 52(2) of Additional Protocol I to the 1949 Geneva Conventions.[306] Differences of opinion often arise in relation to television and radio stations that are state-owned or may be used for propaganda purposes; symbols of the enemy regime such as palaces and statues; and civilian (non-uniformed) enemy regime officials. Also, the United States substitutes “war-fighting or war-sustaining capability” comparably far-reaching for “military action” in the definition of Art. 52(2) AP I and includes targets that contribute not only to the war-fighting or war-supporting, but also to the war-sustaining capability of an opposing force. Particularly in the preparation phase for Large Scale Combat Operations, it is advised to check the legal opinion of United States allies and partners as to how far they share this or have a more limited view.
b. Another area of diverse opinion amongst multinational partners is the question of when a civilian taking a direct part in hostilities can be lawfully targeted. In addition, some multinational partners may not view certain objects as politically acceptable targets despite their legality under international law. Such targets may be prohibited outright or require high-level approval before engagement. This may affect not only the relevant multinational partner’s ability to prosecute the target, but also whether it may provide support to other multinational forces who do so. For example, if the target falls outside of a State’s permissible target set, that multinational partner may be prohibited from refueling strike aircraft, providing airborne early warning and control, or participating in the planning for that mission.
c. Despite the legality of an operation against a military objective, some multinational partners may have particular sensitivities that need to be considered if their support for the operation is to be maintained. Consultation in the planning process may help to avoid potential negative consequences for multinational force cohesion.
d. Multinational partners may also use different methodology when conducting collateral damage or proportionality assessments (i.e., the determination of whether the anticipated concrete and direct military advantage outweighs the expected incidental loss of civilian life, injury to civilians, damage to civilian objects, or combination thereof), or have different collateral damage thresholds and target sets. JAs should therefore seek opportunities to identify and understand the differing national interpretations and requirements.
4. Anti-Personnel Landmines (APL)
a. Unlike many other nations, the United States is not bound by the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (“Ottawa Treaty”), which prohibits States parties from using, developing, producing, acquiring, stockpiling, retaining or transferring APL, either directly or indirectly, and from assisting, encouraging or inducing any of these activities.[309] If APL use is under consideration during a multinational operation, it is important to understand the parameters of the APL prohibition for relevant multinational partners, especially regarding assistance and whether the partner is permitted to take tactical advantage of U.S. employment of APL. If multinational partners are prohibited from deploying or assisting the deployment of APL, it is unlikely that they will be authorized to request such deployment by U.S. personnel.
b. These parameters depend upon national interpretation and policy, so are not necessarily the same for each State. The prohibition on assistance may impact a multinational partner’s ability to be involved in air-to-air refueling, transport, or even mission planning. While several multinational partners have issued unclassified guidance on their national interpretation of their obligations, these documents provide insufficient detail for mission planning.[310] Accordingly, JAs should seek advice from multinational legal advisors regarding their nation’s position.
c. The use of APL can present legal interoperability challenges. 164 states (of 193 United Nations member states) are parties to the 1997 Ottawa Treaty. The United States has not ratified the Ottawa Treaty and remains a persistent objector to it. “Anti-personnel mine” is a mine designed to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure, or kill one or more persons. Mines designed to be detonated by the presence, proximity, or contact of a vehicle (usually anti-tank mines) that are equipped with anti-handling devices, are not considered anti-personnel mines under the Ottawa Treaty.
d. Along with 105 other states, the United States ratified the 1980 Convention Prohibiting Certain Conventional Weapons with its amended Protocol II Prohibiting Mines, Booby-Traps and Other Devices (CCW’s Protocol II). This treaty does not prohibit the use of APL per se but does prohibit use which is indiscriminate or directed against civilians. Under Art. 2(3) of the CCW’s Protocol II, “anti-personnel mine” means a mine primarily designed to be exploded by the presence, proximity, or contact of a person and that will incapacitate, injure, or kill one or more persons. Anti-tank mines with anti-handling elements are not included in this definition of anti-personnel mines.
e. Evidently, mine usage creates legal interoperability friction, starting with different interpretations by parties of what constitutes anti-personnel mines and that parties have different international treaty obligations towards mines. And unlike the 2008 Convention on Cluster Munitions (CCM, see below), the Ottawa Treaty contains no special interoperability provision that permits limited ability for parties to work with non-parties in military operations. Additionally, U.S. policy prohibits the deployment, regardless of delivery mechanism, of all landmines without a self-destruct or self-deactivation feature. Conversely, the CCW’s Protocol II only prohibits remotely-delivered mines without a self-destruct or self-deactivation mechanism. This difference means that hand-emplaced persistent anti-tank mines are prohibited under U.S. landmine policy while other states might use them in operations. With these examples it should become clear that JAs need to be aware of the nuances in the applicable weapons treaty law and national policies, creating different legal and/or political implications for coalition partners.
5. Cluster Munitions
a. Parties to the 2008 Convention on Cluster Munitions (CCM) are prohibited, under any circumstances, to (a) use cluster munitions; (b) develop, produce, otherwise acquire, stockpile, retain, or transfer to anyone, directly or indirectly, cluster munitions; (c) assist, encourage or induce anyone to engage in any activity prohibited to a state party under the convention. The United States, as well as some other NATO member states, have not ratified the CCM. The United States is guided in its use of cluster munitions by the DoD Cluster Munitions Policy.[317] Other NATO member states have ratified the CCM, leading to a legal interoperability challenge concerning the employment of cluster munitions. Legal practitioners also need to be aware of the fact that national positions may be affected by their domestic law giving effect to the convention.
b. Unlike the 1997 Ottawa Treaty (see above), Are. 21 of the CCM contains a special interoperability provision allowing military cooperation between parties to the convention. The provision permits contracting states and their armed forces to participate in military operations with non-state parties, even if such participation could result in the use of cluster munitions in military operations. But the special interoperability clause prohibits CCM signatories to “expressly request the use of cluster munitions in cases where the choice of munitions used is within its exclusive control.” The “expressly request” and “exclusive control” language are the key terms for legal analysis. Specifically, the CCM prohibits cluster munition use when a party has exclusive control of the actual choice of munitions.
c. Therefore, units bound by the CCM can request a desired effect, such as neutralize or destroy, on a specific target, but cannot expressly request the use of cluster munitions in cases in which their forces have exclusive control of the choice of munitions. This can present a planning problem when e.g., a fire direction center and the munition weaponeering is conducted by a CCM-bound field artillery battalion. A possible solution can be the placement of a U.S. liaison package in the fire direction center solely for the purpose of processing cluster munition missions to avoid the CCM-bound unit breaching their CCM treaty obligations.
d. The CCM also bans the “transfer” of cluster munitions by any party to the convention. This specific provision must not in every situation become an issue, but it is worth noting so JAs may determine if parties interpret “transfer” broadly to include combat resupply. In the event that use of cluster munitions is being considered in a multinational environment, JAs should seek advice from national legal advisers as to their nation’s position.
6. Riot Control and Riot Control Agents (RCA)
a. The Chemical Weapons Convention (CWC) prohibits the use of RCA “as a method of warfare.”[320] The phrase does not enjoy universal definition and interoperability issues may arise in the event that States do not share the U.S. interpretation. The view adopted by the United Kingdom and Germany is that when troops are deployed in armed conflict, RCA cannot be used in offensive operations.[321] However, ROE or domestic laws of those nations may permit the use of RCA in other circumstances such as a civil policing role or within a detention facility for the purposes of maintaining or restoring control. Other multinational partners may take a more restrictive view.
b. The use of military personnel in policing and riot control work is one that requires a careful assessment and understanding of a multinational partner’s capabilities and legal authority to conduct such operations. Consultation with multinational partners is essential to determine if their troops are permitted to participate in such operations, including in relation to developing (by providing resources or training) a host nation’s capacity in these fields. The JA should and can assist the staff in making best use of the assigned resources by identifying the strengths and weaknesses of each partner nation so that the staff allocate tasks that can be completed.
C. Reconstruction and Civil Affairs Efforts. Provincial Reconstruction Teams (PRTs) may be established in support of multinational operations, with multinational partners providing all or a portion of a PRT’s personnel. Moreover, those personnel may be civilian, military, or both. According to the U.S. Center for Army Lessons Learned, “PRTs are intended to improve stability in a given area by helping build the host nation’s legitimacy and effectiveness in providing security to its citizens and delivering essential government services.”[322]
D. The American-British-Canadian-Australian-New Zealand (ABCANZ) Program. The American-British-Canadian-Australian-New Zealand (ABCANZ) Program evolved from the World War II alliance, a security relationship based on a common culture, historical experience, and language. Although not a formal alliance, ABCANZ has become an interoperability standard-bearer. The ABCANZ nations have served together in ad hoc coalitions on several occasions. ABCANZ nations developed the Coalition Operations Handbook, now in its seventh edition, to assist in the establishment of coalitions, and to provide guidance to commanders and staff of organizations operating in a coalition environment, thereby helping the coalition commander to understand and develop solutions to create an effective fighting force.
E. Challenges. The chart that follows this section is designed to assist commanders and JAs in navigating the challenges that multinational operations present. It is neither prescriptive nor perfect but serves to highlight areas that should be considered in the preparation, planning and execution of multinational operations. This chart may assist with the running legal estimate and support mission analysis. It is an unavoidable fact that different states have different legal obligations and different interpretations of international law, and that treaty ratification is not universal. This should be reflected in caveats. One suggested use for this chart is as a handrail for discussions with your commanders and with your international colleagues in order to identify actual or potential friction points as well as to identify areas for further exploration.
V. LEGAL CONFERENCES. This chapter has sought to identify some of the issues associated with multinational, whether alliance or coalition, operations and, in places, to suggest some answers. The experience of multiple JAs and legal officers from a number of theatres and deployments has shown that legal conferences can perform a leveling function to maximize exposure to issues and differences in approach between partner nations. Legal conferences, both virtual and physical, can be conducted at any time or level and should not be limited to responding when problems have arisen – forewarned is forearmed.
VI. CONCLUSION
a. Resolving Interoperability Issues
1. Interoperability issues may be successfully managed through:
a. communication between legal officers early and often to identify differences;
b. resolution of those differences where possible; and,
c. where resolution is difficult or impossible, ensuring that differences are not overstated and that action is taken to ensure that they are factored into mission planning and execution.
2. JAs and legal officers work together to spot issues, analyze those issues, and either mitigate or incorporate those issues into planning and conduct of military operations. The development of relationships between multinational partner legal advisors is an important aspect of this process. Operational and training experience is valuable and is enhanced by bilateral, multilateral, and institutional contacts. The National Security Law Division (NSLD) at the Office of The Judge Advocate General (OTJAG) and CLAMO also maintain a list of training opportunities including overseas courses and distributed online learning.
B. Working in an Alliance or Coalition. Close and trusted working relationships and liaison networks at all levels significantly enhance effective multinational operational planning. Such relationships and networks should be cultivated with actual and potential multinational partners. However, given that each operation will be different, a truly agile force will be required to adapt and exploit their key liaison appointments and requirements in order to exploit the opportunities and minimize the frictions that multinational operations present. Potential future multinational partners, including both traditional allies and less familiar partners, should maintain awareness of and ensure interoperability with each other’s forces, and in particular identify which areas come within multinational control and which remain under national control. This requires forces to be organized, trained and resourced, in order to facilitate multinational partner interoperability.
C. Finally, recall the eight core tenets set out in JP 3 – 16: Respect, Rapport, Knowledge of Partners, Patience, Mission Focus, Team Building, Trust, and Confidence.
VI. REFERENCES
A. National Defense Strategy, 2022.
B. Joint Chiefs of Staff, JP 3-16, Multinational Operations, 2019, validated 2021
C. Army FM 3-16, The Army in Multinational Operations, 8 Apr 2014
D. Chairman of the Joint Chiefs of Staff, Instr. 3121.01B, Standing Rules of Engagement/Standing Rules for the Use of Force for U.S. Forces, 2005)
E. Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3. Not ratified by the United States. See note 20, supra page 11, for more information about the U.S. position on AP I.
F. Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction Jan. 13, 1993, S. TREATY. No 103-21, 1974 U.N.T.S. 3, 32 I.L.M. 800, entered in to force and for the United States Apr. 29, 1997.
G. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Landmines and on Their Destruction, 18 Sept. 1997, 36 I.L.M. 1507 (Ottawa Treaty). Not ratified by the United States.
H. Convention on Cluster Munitions, CCM//77 (30 May 2008). Entry into force 1 Aug 2010. Not signed by the United States.
I. ABCANZ Coalition Operations Handbook, Edition 7, 2021
J. Center for Army Lessons Learned Multinational Interoperability Reference Guide, 2020
K. Multinational Legal Interoperability Handbook, The Judge Advocate General’s Legal Center & School, U.S. Army, 2021
L. Tactical Legal Interoperability Smartbook for Judge Advocates and Legal Advisors, Center for Law and Military Operations and Headquarters British Army Operational Law, 2022
U.S. Dep’t of Def, Dir. 5100.01, Functions of the Department of Defense and its Major Components para. 4 (21 Dec. 2010) [hereinafter DODD 5100.01]. A sixth component contained within the directive is the DoD Inspector General.
The twelve active Divisions are: 1st Armored Division (Fort Bliss, TX); 1st Cavalry Division (Fort Hood, TX); 1st Infantry Division (Fort Riley, KS); 2nd Infantry Division (Camp Casey, Korea); 3rd Infantry Division (Fort Stewart, GA); 4th Infantry Division (Fort Carson, CO); 7th Infantry Division (Joint Base Lewis-McChord, WA); 10th Mountain Division (Fort Drum, NY); 11th Airborne Division (Joint Base Elmendorf-Richardson, AK); 25th Infantry Division (Schofield Barracks, HI); 82nd Airborne Division (Fort Bragg, NC); and 101st Airborne Division (Fort Campbell, KY). The eight National Guard Divisions are: 28th Infantry Division (Harrisburg, PA); 29th Infantry Division (Fort Belvoir, VA); 34th Infantry Division (Saint Paul, MN); 35th Infantry Division (Fort Leavenworth, KS); 38th Infantry Division (Indianapolis, IN); 40th Infantry Division (Los Alamitos, CA); 42nd Infantry Division (Troy, NY); and 49th Armored Division (Austin, TX).
An Arrangement for the Transfer of Prisoners of War, Civilian Internees, and Civilian Detainees Between the Forces of the United States of America, the United Kingdom of Great Britain and Northern Ireland, and Australia (23 Mar. 2003) (on file with CLAMO). See also, Secretary of State for Foreign and Commonwealth Affairs and another (Appellants) v Yunus Rhamatullah (Respondent) [2012] UKSC 48 appeal from [2011] EWCA Civ 1540; [2012] EWCA Civ 182 and Rahmatullah v Ministry of Defence in [2017] UKSC 3 for a discussion of this arrangement in the context of a habeas corpus application.