No. 2: Cutting the Gordian Knot

(Credit: Andy Dean – stock.adobe.com)

No. 2

Cutting the Gordian Knot

Delivering Principled Fiscal Counsel in Support of Operations

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By Lieutenant Colonel Ryan Howard & Major Katherine F. Mitroka

It does not do to leave a live dragon out of your calculations, if you live near one.1

As the United States has pursued her national interests over the last two decades, the importance of alliances has become ever more apparent. The recent interim national security strategic guidance calls for a renewed commitment to our partnerships around the world “because our strength is multiplied when we combine efforts to address common challenges, share costs, and widen the circle of cooperation.”2 In furtherance of this strategy, national security leaders have increasingly adopted a “by, with, and through” (BWT) operational approach in support of military campaigns.3 Under this approach our “operations are led by our partners, state or non-state, with enabling support from the United States or U.S.-led coalitions, and through U.S. authorities and partner agreements.”4 Significantly, BWT requires legal authorities that allow the U.S. military to build partner capacity and provide support to partner forces abroad.5 Consequently, the role of fiscal law at operational headquarters6 is now prominent.

For both national security law (NSL) and fiscal law (KFL) attorneys, the challenge is clear: provide planners with a clear understanding of funding authorities so commanders can leverage funds appropriated by the legislative branch7 to achieve the national security objectives of the executive branch.8 Against this separation of powers backdrop, Army organizational structure and doctrinal planning processes layer added complexity to this practice area. Fiscal law issues arise throughout the operations process9 and permeate each of the legal functions10 and each of the warfighting functions.11 Taken together, counsel of all ranks and backgrounds often confront a Gordian knot12 of appropriations and legal authorities entangled with doctrinal processes and procedures.

Do not be overwhelmed! Judge advocates (JAs) can cut the knot by understanding the operations process, integrating with the staff, mastering the law, offering legal counsel that enables planning, and providing legal reviews grounded in principled counsel. Using this approach, NSL/KFL counsel have a unique opportunity to create and preserve options for commanders. To that end, this article offers practical advice to JAs providing fiscal law counsel to commanders and staffs in support of operations. After an orientation to relevant legal authorities and doctrine, the article offers observations, best practices, and examples based on the authors’ experiences in the U.S. Central Command (USCENTCOM) and U.S. Europe Command (USEUCOM) areas of responsibility.

The Authorities Context: The Operations Process and Appropriated Funds

As dual professionals, JAs must master both the law and the profession of arms.13 These two bodies of knowledge converge when providing legal counsel at an operational headquarters. This is particularly true when practicing fiscal law, where the absence of funding authority can form hard limitations14 that constrain the commander’s options and undermine the feasibility of a course of action.15 A successful NSL/KFL attorney, therefore, cultivates knowledge and skill as a professional staff officer and develops expertise in fiscal law. Therefore, let us first address the fundamentals of the Army’s processes.

Operations Process

Army commanders use the operations process to plan, prepare, execute, and assess assigned missions.16 Within this cycle, the commander visualizes, describes, directs, and leads, while the staff promotes shared understanding, enables decision-making, controls operations, and assesses progress.17 To drive the operations process, commanders cross-functionally organize their staffs into functional and integrating cells18 dedicated to understanding challenges and developing proposed solutions.19 Commanders leverage six warfighting functions to serve as functional cells, which enable and inform planning from a subject matter-specific perspective.20 Additionally, commanders establish integrating cells comprised of subject-matter representatives to develop comprehensive plans tied to specific time horizons.21 In this context sits the JA, who provides legal advice to the commander and staff.22

Judge Advocate Engagement in the Operations Process

How then should JAs engage in the operations process? The role of the JA is wide-ranging. Judge advocates are “counselors, advocates, and trusted advisors to commanders [and] staffs . . . who practice law [across] six legal functions.”23 With regard to the operations process, JAs must integrate with the staff to effectively provide legal advice to each of the warfighting functions.24 From a planning perspective, JAs are expected to engage throughout the Military Decision Making Process (MDMP)25 and contribute to numerous planning products.26 Such support is required because legal issues, from any of the six legal functions, may arise within any planning cell or warfighting function.27 Therefore, JAs must be postured to identify and resolve legal issues—irrespective of legal function—across all planning horizons (integrating cells) and throughout the battle rhythm (functional cells).

Fiscal Law

Legal issues pertaining to funding authorities present considerable risk to commanders and their staffs as they develop plans in support of national security objectives. Why? Fiscal law issues have the unique potential to constrain operations in a way that cannot be resolved within the executive branch. The Constitution vested the legislative branch with the authority to fund the Federal Government.28 Significantly, that authority is expressed in the negative—“No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .” 29 Consequently, all Federal Government activities, including those of the executive branch (e.g., military operations), are dependent on the legislative branch appropriating funds.30 Therefore, each activity contemplated by an operation must enjoy positive fiscal authority. When an operation includes activities that do not fall within the parameters of an appropriation, funds may not be obligated in support of those activities. Moreover, the executive branch cannot unilaterally adjust constraints rooted in appropriated funds; to create or modify funding authority, the legislative branch must act. In this way, fiscal law uniquely constrains operational planning efforts.

Effective legal support to planners requires NSL/KFL counsel to engage early and often. Failure to do so could mean the staff will discover they lack positive fiscal authority too late, which wastes precious time, or the staff will not discover the error at all, thereby allowing the commander to unknowingly accept risk of violating federal law (e.g., the Anti-Deficiency Act).31 To avoid these outcomes, NSL counsel must develop a strong understanding of relevant funding authorities and constraints; while KFL counsel must attain fluency with ongoing operations to provide meaningful counsel on time.

Operational Funding in Action

Given the need for effective fiscal law counsel throughout the operations process, how can JAs best advise leaders and planners? KFL/NSL practitioners should leverage a series of best practices, outlined below, throughout five phases of legal support: 1) staff integration, 2) staff education, 3) mastery of the law, 4) legal advice to planners, and 5) legal reviews. This article outlines relevant authorities and doctrine, offers practitioner insights, and shares real world examples for each phase, enabling NSL/KFL counsel to provide principled fiscal counsel at the speed of relevancy to create or preserve options for commanders.

Staff Integration: Staff Officership, Relationships, and Posturing Legal Personnel

Long before opining on a funding challenge, NSL/KFL counsel must integrate with the staff and develop strong relationships with lead planners, warfighting functions, and the chief of staff (COS) or executive officer (XO). According to doctrine, commanders make the best decisions when they are supported by a staff that collaborates, engages in frank dialogue, and enjoys shared understanding.32 This teamwork “produces the staff integration essential to synchronized operations.”33 To achieve staff integration, the staff meets in integrating cells,34 operational planning teams,35 and working groups,36 organized into a battle rhythm37 to drive the operations process. While planners may not realize it, they require legal support—particularly fiscal law counsel—early in the planning process.38 Judge advocates must fully integrate with each warfighting function and planning cell to describe funding authorities and identify potential shortfalls.39 To achieve successful staff integration, JAs must first develop proficient staff officer skills, build strong relationships, and effectively posture their legal personnel.

Staff Officership

To effectively operationalize legal counsel, JAs must first become outstanding staff officers by communicating their knowledge, insights, and analysis to the commander and staff.40 This requires staff officers, including JAs, to be “experts in doctrine and the processes and procedures associated with the operations process . . . .”41 “Doctrine” is the lingua franca for integrating with the staff—this is the language planners use to define problems and develop solutions.42 Therefore, JAs must develop a fluency with doctrinal processes in order to translate their legal expertise into staff understanding. Judge advocates who cannot speak the language will not effectively communicate their legal advice. To that end, counsel must first master the operations process. Second, NSL/KFL attorneys must engage in the operations process—in garrison, during field training exercises, and in support of real-world operations. By participating in doctrinal processes, JAs will grow in their ability to anticipate challenges, communicate their advice, and coordinate solutions. Strengthening one’s knowledge of doctrinal processes is the first step to effective staff integration.

Relationships

Judge advocates must also develop strong relationships with the staff. As the adage goes: “relationships are a pacing item”43—they are critically necessary to achieve the mission.44 Nowhere is this more true than for the JA, where relationships form the context of the practice of law. JAs are in the relationship business every day—by building strong relationships with the commander and staff, JAs gain access to the meetings and information they need to provide counsel that strengthens and refines planning. Without effective relationships, JAs are often out of position to deliver value—allowing planning to occur without the support of legal counsel who could help inform the development of feasible options.

How then should a JA develop relationships with the staff? Build Trust. High performing teams require mutual trust built through a shared understanding that is grounded in knowing one another. Prior to any legal crisis, JAs must build trust with the commander and staff through a blend of presence, intellect, and character.45 To be on the team, JAs must be with the team—in garrison and in the field.46 Moreover, JAs can bolster trust by leveraging their expertise and displaying character to help their team solve problems and win.

Posturing Legal Personnel

Finally, JAs must be postured throughout the headquarters in a way that promotes staff integration. After developing sound relationships, the demand for legal counsel will exceed the supply of available personnel. This is particularly true for fiscal law counsel. Accordingly, JA leaders must determine how to best posture their limited legal personnel to ensure effective operational funding (opfunding) support to planning efforts. The challenge is to provide efficient support to the operations process by leveraging the correct attorney at the right place and at the right time.47 The NSL/KFL counsel can neither afford to miss a meeting regarding the use of appropriated funds, nor routinely attend meetings that are not ripe for opfunding advice.

Senior JAs should develop a legal support plan in coordination with the COS or XO to establish which events legal personnel will attend.48 JAs should first meet with each planning cell and working group lead to better understand the purpose, frequency, composition, inputs, outputs, and agenda for each planning cell meeting and battle rhythm event.49 While most meetings will involve some activity subject to legal authority, JAs should consider attending meetings where 1) legal issues are likely to arise, 2) planners are unlikely to identify the issue, and 3) failure to identify the issue will result in wasted staff time or allow the commander to unknowingly accept risk.50 When legal support is appropriate, JA leaders should analyze which attorney is best suited to support each engagement.51

Judge advocates must also be intentional about when to provide legal support. Identifying the correct moment for engagement in the planning cycle is more art than science. When counsel engage too soon, the factual predicate is too vague to render legal advice. However, when counsel engage too late, plans may already be fully developed or executed. To strike this balance, JAs should ask: (1) am I engaging early enough to enable planning? and (2) am I engaging late enough such that planners have developed a sufficient factual predicate on which I can offer meaningful legal insight? In sum, JAs, leveraging their skill as staff officers and relationships with planners, should develop a legal support plan, in coordination with the COS/XO, that addresses when and where to posture limited legal resources to add value to the planning process.

Staff integration is the foundation of effective legal counsel. When JAs successfully integrate with planners, they enjoy a better understanding of the plan earlier in the planning process. Consequently, they can provide better counsel faster. To enjoy this desired level of staff integration, JAs must become effective staff officers who enjoy strong relationships with planners and posture their legal personnel in time and space to deliver value early in the planning process.

The Fiscal Law Context: Separation of Powers

After successfully integrating with the staff, NSL/KFL attorneys should educate key leaders and planners on the foundational principles of, and unique challenges presented by, fiscal law. Within the context of an operation, fiscal law concerns can seem bizarre if not comedic. From the planner’s perspective, they are developing courses of action based on guidance they received from their higher headquarters, who received an order from a combatant commander (CCDR), who received an order from the Secretary of Defense (SecDef).53 Given that posture, planners are often shocked when a plan draws a fiscal law non-concur: “Hey Judge—we appreciate your support, but senior leaders at the highest levels tasked us to do this . . .so what is your legal concern?” To promote more efficient coordination, JAs are wise to meet with planners, explain need for positive fiscal authority, and discuss the nuance that mission authority does not convey fiscal authority.

Positive Authority

Our Constitutional framework requires that NSL/KFL counsel work closely with planners to ensure each activity of the operation enjoys positive fiscal authority. Counsel should focus their education efforts on several foundational fiscal law principles. First, counsel should start with the Constitution—address the appropriations clause and emphasize its negative phrasing.54 Address the fact that all executive activity (including operations) relies on appropriations by Congress: planners need positive funding authority for each activity contemplated by the operation.55 Describe the challenges and lengthy timelines associated with creating or modifying appropriations. And, depending on the audience, conclude by sharing how attorneys analyze funding authorities in terms of purpose,56 time,57 and amount.58

Mission Authority Is Not Fiscal Authority

Counsel should also address the challenging interface between fiscal law and the operations process. The central issue for JAs is the frequent conflation of mission and fiscal authorities. To expend appropriated funds in support of any mission, commanders must enjoy both mission authority59 and fiscal authority.60 While commanders and planners understand the general need for funding, they are often surprised to find they need any authority beyond the mission authority that flows from the President. Because funding authority flows from Congress alone, mission authority from the executive branch does not convey funding authority. Therefore, NSL/KFL counsel should ensure leaders and planners understand the need for both authorities prior to approving any activities that require the obligation of appropriated funds.

Given the unique challenges presented by fiscal law, counsel must exploit opportunities to educate leaders and planners on the relationship between funding authorities and operations. Judge advocates should help planners understand the broader separation of powers context: planners are developing courses of action to enable Department of Defense (DoD) activities in support of executive branch objectives by using funds appropriated by the legislative branch. In this context, planners are more likely to appreciate the need for positive fiscal authority and the distinction between funding and mission authorities. When JAs have this discussion prior to planning, planners are better equipped to identify and resolve fiscal issues during planning; they are also more likely to understand fiscal advice and be able to resolve fiscal issues at the action officer level. However, educating planners on fiscal law principles is not enough—counsel must themselves master funding authorities and actively participate in planning to create and preserve options.

Mastery—Legal Research and Technical Chain Discussions

Parallel to staff integration and education initiatives, JAs must also develop mastery of the legal authorities specific to the current planning effort. Whether creating new plans or modifying existing plans, commanders are looking for attorneys to provide clarity on how various legal authorities will enable or constrain their options. This is particularly true for fiscal law: Which activities enjoy positive authority? Which activities are prohibited or unfunded? Are there other available funding sources? Where is the authority unclear? This requires mastery of the funding authorities applicable to the specific operation.

Planning Context

Within the planning context, developing mastery should commence upon “Receipt of the Mission” during step one of the MDMP.62 By developing mastery prior to “Mission Analysis,” NSL/KFL counsel are better postured to advise the staff during planning.63 Judge advocates can accelerate their learning by reviewing all existing planning products, including their higher headquarters’ operations order,64 the CCMD’s campaign and contingency plans,65 and SecDef Execute Orders.66 By starting with these planning products, NSL/KFL counsel can leverage their understanding of the operating environment and the commander’s desired end-state to focus their legal research.

Research

There are two common methodologies for fiscal law research: authorities-oriented and activities-oriented. First, the authorities-oriented approach: counsel should review the higher headquarters’ planning documents and note any specific reference to a funding authority, including law, policy, and regulation.67 Effective legal research includes both positive fiscal authority and prohibitions outlined in U.S. Code, National Defense Authorization Acts, and DoD Appropriations Acts. Legal research must also include any germane policy guidance from the Office of Management and Budget (OMB), DoD, military departments, and other federal agencies.68 Finally, legal research should include all applicable regulatory guidance including, the DoD Financial Management Regulation69 and military department regulations, directives, and instructions.70

Second, counsel should conduct activities-oriented legal research by examining planning products for each activity that implicates the use of appropriated funds. Counsel should review their higher headquarters’ order for tasks and activities that contemplate procurement of goods and services, construction, security cooperation, or humanitarian assistance. While reviewing the order, counsel are likely to identify activities that will require the expenditure of appropriated funds, but the order will not reference the required funding authority.71 Therefore, to complete the activities-oriented legal research, counsel must meet with the responsible planning cell and each warfighting function to understand the activities contemplated by planners. With a clearer understanding of the plan, counsel should research those authorities available to fund each anticipated activity and organize that research into a document library. Through authorities- and activities-oriented research, counsel will both identify and master the funding authorities implicated by the operation.

Funding Authority Matrix

Having established a funding authorities library, counsel should organize their legal research into an “authority matrix.”72 While this product can take many forms, the substance should synthesize all relevant authority (i.e., law, policy, and regulation) for each category of expense. Consider categories such as: security cooperation,73 burden sharing,74 acquisition and cross servicing agreements,75 humanitarian assistance,76 construction,77 partner force assistance,78 and extraordinary enabling authorities.79 When summarizing the potential authorities, counsel should describe the fund’s purpose, limitations, and approval authorities; note related limitations and prohibitions; and reference applicable law, policy, and regulation.80

Technical Chain 1.0

Legal research is not complete, and mastery cannot be achieved, until NSL/KFL counsel are able to refine their understanding of fiscal authorities with senior counsel. Building on their foundational legal research, NSL/KFL counsel should secure approval from their SJA to engage the legal technical chain (tech-chain), including their higher headquarters, service component, and CCMD; the Joint Staff; and potentially the DoD Office of General Counsel (OGC). By engaging senior counsel, NSL/KFL attorneys will dramatically strengthen their understanding of funding authorities, evolving policy guidance, and OGC legal positions. One way to organize this engagement is through socialization of the “authority matrix.” By sharing this product with senior counsel, NSL/KFL attorneys will refine their knowledge of evolving authorities, while building confidence in their mastery of well-settled funding authorities. In sum, effective fiscal law counsel requires inclusive frequent discussions between forward counsel (those closest to the facts) and senior counsel (those closest to law and policy). Therefore, OSJA leaders should allow and encourage their NSL/KFL counsel to directly engage the fiscal law tech-chain.

Prior to mission analysis (MA), NSL/KFL counsel must aggressively pursue mastery of all relevant funding authorities. Counsel should review the planning products of the higher headquarters to kick start their legal research focused on the authorities implicated by the operation. Effective legal research includes, at a minimum, applicable law (funding authorities and prohibitions), policy guidance, and regulations. After developing a solid understanding of these authorities, NSL/KFL attorneys should engage senior counsel to understand established JS or DoD OGC legal positions. Following this tech-chain engagement, NSL/KFL counsel will be postured to support the SJA and enable planners to develop feasible courses of action. Developing this level of mastery is the key to practicing fiscal law at the speed of relevancy.

Legal Support to Planning

After developing strong staff relationships, briefing key leaders on fiscal law foundations, and developing mastery of relevant funding authorities, NSL/KFL attorneys are now postured to provide legal support to planners.82 Judge advocates can deliver tremendous value to the commander and staff by engaging early in the planning process. Regarding fiscal law, it is essential for this engagement to occur as early as possible to enable planning and maximize lead time to resolve funding challenges. Counsel can best support planning by engaging in mission analysis, developing an authorities-activities crosswalk, providing a legal running estimate, and meeting with planners to promote shared understanding of available funding sources and limitations.

Mission Analysis

As the staff commences MA, legal support to planners increases in relevance and importance.83 During this step of the MDMP, the staff assesses the situation and “gather[s], analyze[s], and synthesize[s] information” about the operating environment to “better understand the situation and problem.”84 This assessment enables the staff to understand “what the command must accomplish, when and where it must be done, and most importantly why—the purpose of the operation.”85 The staff ascertains key tasks;86 develops facts and assumptions;87 determines constraints, including resource limitations;88 and reviews available assets—including the identification of resource shortfalls.89 Throughout this assessment, the commander and staff rely on legal counsel to identify and understand the impact of legal authorities and limitations.90 As the staff works to understand the operating environment, frame the problem, and develop options for the commander, well-versed NSL/KFL counsel can deliver value by articulating funding parameters and anticipating shortfalls.

Activities-Authorities Crosswalk

As part of the planning effort, NSL/KFL counsel must find ways to translate their mastery of the law into useful “staff inputs” that strengthen the staff’s understanding of funding authorities and limitations. One best practice is to develop an “activities-authorities crosswalk.” This product, often taking the form of a chart, depicts likely activities and the corresponding potential funding authorities.91 The crosswalk will serve as a useful graphic for counsel to visualize which activities enjoy positive fiscal authority, which activities lack funding authority, which activities are prohibited, and those areas where the authority is unclear. This legal planning product is a pragmatic way to anticipate questions from leaders, while equipping counsel with analysis that delivers value.

Legal Running Estimate

NSL/KFL counsel should now provide input to the SJA’s legal running estimate (LRE). “A running estimate is the continuous assessment of the current situation used to determine . . . if planned future operations are supportable . . . .”92 Running estimates are maintained throughout the planning process to inform course of action development and assessment.93 Doctrine acknowledges that running estimates will be unique, which is certainly true for SJAs.94 Using the crosswalk methodology, counsel may develop recommended input for the SJA’s LRE and brief the SJA on the parameters of funding sources for each major operational activity—noting where the command enjoys positive fiscal authority, where prohibitions limit activities, and where funding shortfalls may occur. This discussion will strengthen the SJA’s understanding of funding sources.95

Legal Advice and Shared Understanding

Equipped with a funding authority matrix, an activities-authorities crosswalk, and an updated running estimate, NSL/KFL counsel are now postured to provide legal support to planning. Too often, however, this is the moment where staff integration breaks down. While each staff section knows their assessment, planners often fail to translate their knowledge into shared understanding throughout the entire staff.96 This is of critical importance for NSL/KFL counsel, who must communicate their understanding of funding authorities to planners with sufficient clarity to enable course of action development.97 Therefore, NSL/KFL counsel should aggressively engage planners, while maintaining ongoing inclusive discussions with the tech-chain.98

As the MDMP continues, NSL/KFL counsel can deliver value by advising planners on funding authorities from course of action (COA) development (COADEV) through approval.99 By providing legal advice during planning, planners are empowered to help ensure COAs conform to the law from inception. As the staff transitions from MA to COADEV, counsel will observe the factual predicate sharpen with detail. During this shift, legal counsel should evolve from a description of the law to advice on specific activities in light of the law. Counsel should highlight where activities enjoy positive fiscal authority and where activities are constrained by prohibitions or funding shortfalls. Where appropriate, counsel should address policy and regulatory constraints, with recommendations to seek exceptions to policy.100

Regarding limitations or shortfalls, NSL/KFL counsel have a unique opportunity to create options for their command. Depending on the nature of the limitation and the urgency of the requirement, counsel can work to modify or eliminate limitations in a way that the rest of the staff cannot. When the plan hits a limitation, counsel should first describe the nature and source of the limitation.101 If the limitation is inflexible, counsel should work to identify different funding authorities or work with planners to change the plan to fall within the parameters of available funding authorities.102 If the staff cannot adjust the plan and no authorities are available within the command, counsel should look for broader enabling authorities available at higher echelons or consider developing a legislative proposal.103

As NSL/KFL counsel advise planners, they should also reengage the legal tech-chain and build on the foundational dialogue initiated during their legal research. Equipped with additional facts, counsel at operational headquarters are uniquely postured to strengthen legal support at echelon. Through sharing updated planning efforts and draft legal positions with counsel at higher headquarters, senior counsel will gain a better understanding of the operating environment and potential legal issues. In turn, the NSL/KFL counsel at the operational headquarters will receive guidance from senior counsel that will strengthen their understanding and legal reasoning. Counsel at the operational level can, in turn, push this refined legal perspective to forward counsel and themselves remain up to date on the operating environment. In this way, vertical dialogue strengthens the entire legal community.

Providing legal advice in support of planning requires aggressive preparation for and engagement in MA and COADEV.105 Commanders and planners cannot afford for NSL/KFL counsel to limit their support to a legal review of the operations order at the end of MDMP. At that point, the plan, relying on an incomplete or inaccurate understanding of fiscal authorities presents considerable risk to mission (i.e., we cannot fund this activity) or to the commander (i.e., an Anti-Deficiency Act Violation). Instead, NSL/KFL attorneys must offer insights into relevant legal authorities during planning. Judge advocates can best deliver value by developing an activities-authorities crosswalk; drafting inputs to the running estimate; and briefing planners on funding authorities that support, fail to support, or prohibit each activity contemplated by the operation. Counsel must encourage planners to not abandon key activities when confronted with a perceived funding challenge. Instead, planners and attorneys must fight through friction to create options. Fiscal solutions almost always exist. Counsel who engage early in the planning process deliver tremendous value by enabling planners to develop legally sufficient COAs.

Legal Reviews of Operations Orders and Expenditure of Funds

When a course of action is approved by the commander, the staff transitions to orders production106 which necessitates formal legal review by NSL/KFL counsel.107 During this phase of planning, NSL/KFL counsel review the operations order for legal sufficiency and they review ancillary actions that seek to obligate appropriated funds in support of activities envisioned by the operation.108 In both contexts, NSL/KFL attorneys must validate that the activity or object of procurement enjoys positive fiscal authority. This first requires a clearly defined factual predicate.

Factual Predicate

Counsel must understand the salient facts of both the operation and the attendant activities prior to developing a legal position and drafting a legal review. To that end, counsel must work closely with the staff to ensure the operative facts are clear, accurate, and stable. If plans and related actions are opaque, NSL/KFL counsel cannot effectively determine if positive fiscal authority exists for a particular activity or procurement. Instead, counsel require a clear recitation of facts reduced to writing and endorsed by a senior leader.109 Additionally, the factual predicate must be accurate. When the legal review relies on facts that differ from what is actually going to happen, the legal review is nullified. Finally, the factual predicate must be stable. When facts evolve and differ materially from those originally presented to counsel, the legal review is, again, void. It is incumbent upon counsel to educate planners and approval authorities that legal reviews rest on a foundation of facts and when those facts are wrong or evolve, the legal conclusions fracture and the legal recommendation can no longer stand.110 When the staff fails to advise of changing facts or counsel fail to emphasize the fact-sensitive nature of the legal review, they allow the approval authority to unknowingly accept risk of violating the anti-deficiency act. For these reasons, the NSL/KFL counsel must ensure the factual predicate is clear, accurate, and stable before providing a legal review of the operations order or ancillary actions concerning the obligation of appropriated funds.

Legal Review of the Operations Order

The first category of legal review concerns the order itself. During the “orders reconciliation process,” the staff reviews the operations order to ensure it “is internally consistent and is nested with the higher commander’s intent.”111 As part of this process, JAs for each legal function complete their legal analysis in support of the SJA’s single legal review of the operations order.112 This review is both broad and deep, including the base operations order and each annex containing legally-significant matters.113 Counsel should leverage their activities-authorities crosswalk to review the fiscal law aspects of the operations order.114 Specifically, counsel should examine the order for each activity that will require the use of appropriated funds and ensure there is an available funding source.115 A legal review of this scope and detail will require considerable time. Therefore, NSL/KFL counsel should coordinate with the SJA for guidance to provide the best possible legal review on time.

When the reviewing NSL/KFL counsel is satisfied that the activities contemplated by the order enjoy positive fiscal authority, counsel will recommend the SJA concur in the final legal review. If, however, a review of the order reveals activities that lack funding or violate prohibitions, counsel should immediately brief the SJA.116 Additionally, NSL/KFL counsel should meet with planners, clearly describe the constraint, and offer a way ahead.117 When this occurs, counsel should walk planners through the following options: 1) modify the plan to fall within the parameters of the funding authority, 2) coordinate for broader funding authorities118 or an exception to policy, or 3) develop a legislative proposal to create a new funding authority. When the plan is inflexible and there is insufficient time to fully resolve the fiscal law issue, an established best practice is to insert a clause in the order stating that the activity is “subject to the identification of positive fiscal authority.”119 This approach enables orders production to continue; flags the issue for the forward headquarters; and allows planners, resource managers, and attorneys to pursue viable funding options in parallel with the orders process.

Legal Reviews of Ancillary Actions Related to Operations

The second category of legal review concerns actions ancillary to the order that are required to enable the operation. These actions arise in any number of ways. For example, guidance from the commander, engagement by an individual staff section, an output from a working group, or by implication from the order itself. Operational headquarters coordinate such actions using a variety of formal and informal processes.121 The combination of operational timelines, variant staffing processes, and fiscal law creates unique challenges for NSL/KFL attorneys. Counsel must work closely with the staff to provide legal advice that creates and preserves options for the commander. To this end, fiscal law legal reviews should be integrated across the legal team, coordinated throughout the legal tech-chain, delivered in a manner that promotes speed, and organized in a way that is easily understood by approval authorities.

First, legal reviews should be integrated within the legal team into a single legal position—the SJA speaking with one voice. Many actions in the operational setting implicate multiple legal functions. When this occurs, the legal team must avoid communicating inconsistent legal positions.122 The deputy SJA is usually the protagonist for this integration—ensuring analysis from each relevant legal function, including fiscal law, is included in developing the legal position. This internal integration will ensure each legal subsection understands the analysis and concerns of every other legal function. Moreover, this synchronization will ensure the SJA is empowered to advise the commander and staff with a complete analysis from all relevant legal functions. The result will be a more helpful single pronouncement of legal sufficiency or insufficiency.

Second, fiscal law legal reviews should be coordinated with the legal tech-chain when appropriate.123 With the support of their SJA, NSL/KFL counsel may decide to socialize their legal positions and draft legal reviews with senior and forward counsel. As discussed more fully above, vertical coordination is important to ensure counsel enjoy a current understanding of law, policy, and regulation.124 Similarly, coordination with forward counsel will ensure the legal review reflects a current understanding of the operating environment and plan. The virtue of this vertical coordination is two-fold: it ensures consistent legal counsel from the entire legal community and, when limitations are discovered, it accelerates any required coordination for alternate funding authorities or exceptions to policy.

Third, JAs should communicate their legal position in a way that maximizes speed, while mitigating risk to the command. Too often, fiscal counsel default to lengthy formal legal reviews. Instead, counsel should intentionally determine how to best provide their counsel for each situation.125 There are times when verbal fiscal law advice is appropriate. While it carries risk, this approach offers speed and should be considered for well-settled legal matters, with stable authorities, clear facts, and tight planning timelines.126 Second, counsel may decide to communicate their advice by email. This method “flattens communications”—allowing counsel to quickly build shared understanding with leaders, planning teams, and attorneys throughout multiple headquarters. However, counsel should take steps to ensure their legal advice does not “get ahead” of the SJA, the approval authority’s decision on funding, or the commander’s decision for the activity.127 Finally, counsel may communicate their legal opine through a formal legal review. This approach builds a record of the facts known at the time, captures the attorney’s understanding of the law, and documents the recommendation made to the approval authority. As NSL/KFL counsel are preparing to opine on the use of appropriated funds, they should intentionally select the means of providing that advice that best supports the operational timeline, in light of the risk presented.

The legal review itself should consist of counsel’s opine on the law, read on policy, business advice on risk, and overall recommendation.128 Moreover, fiscal law legal reviews should be easily understood in a rapid single reading. After opening with a clear conclusion, counsel should succinctly summarize key facts and efficiently communicate their purpose-time-amount analysis. To the maximum extent possible, counsel should limit caveats.129 Counsel should then identify funding constraints and limitations, with specific references to the source authority (i.e., law, policy, or regulation), and describe the impact. Counsel should identify the risk and then articulate ways to mitigate or eliminate that risk. Finally, legal reviews should end with a clear conclusion and recommendation.130

A Word on Advocacy

A JA builds trust by developing a reputation as a credible problem solver—an attorney who uses their staff officer acumen and mastery of the law to create and preserve options for planners and commanders. In seeking to deliver value, however, counsel must not compromise their reputation in an effort to “get to yes.” As NSL/KFL counsel advise commanders on using appropriated funds to achieve executive branch objectives, they must dispassionately analyze the availability of funding authorities.131 In doing so, NSL/KFL counsel must not advocate—counsel must not bend the parameters of a fund around the facts of the operation.132 When advocacy permeates fiscal law reviews, counsel enable approving authorities to unknowingly accept risk. The approval authority will see a clean legal review that “concurs.” Based on their trust and confidence in their JA, the approval authority will then obligate funds . . . not knowing that counsel accepted risk on their behalf by bending the law around the facts of the plan. Effective fiscal law advice requires dispassionate analysis—never advocacy.

As the staff completes the orders reconciliation process, NSL/KFL counsel conduct legal reviews of both the operations order and ancillary actions related to the order. Before developing a legal position on either of these matters, counsel should first ensure they have a ripe factual predicate—a set of operative facts that are clear, accurate, and stable. Equipped with a vivid picture of the plan, counsel should review the order using a cross-walk approach to validate each activity enjoys positive fiscal authority, noting those activities that will require separate actions to access or create funding authority. Running parallel to the orders process is an entirely separate ecosystem of actions that seek the obligation of appropriated funds. In this context, NSL/KFL counsel identify actions arising throughout the headquarters, develop integrated legal positions, and, where appropriate, coordinate those positions with the legal tech-chain. When translating that legal position into legal advice, counsel will intentionally decide how to best communicate that advice to promote speed while mitigating risk. Counsel’s best military legal advice will include their opine on the law, read on policy, business advice on risk, and overall recommendation. This advice will be grounded in a dispassionate application of law to facts, without advocacy.

Brig. Gen. Shezard Nanaki, head of the Committee for the Delivery of New Aide from the International Coalition, and U.S. Army 1st Lt. Raphael Valles, reporting officer with the Counter-ISIS Train and Equip Fund (CTEF) program, reviews forms at Erbil Air Base, Iraq, on 8 March 2022. The Combined Joint Task Force - Operation Inherent Resolve’s CTEF program has divested more than $500 million of equipment, vehicles, weapons and ammunition to advise, assist, and enable partner forces in the enduring defeat of Daesh. (U.S. Army photo by Cpl. Tommy L. Spitzer)

Conclusion

The practice of opfunding law is both challenging and rewarding. The task is easily articulated—advise planners how to use funds appropriated by the legislative branch to enable the commander to achieve the national security objectives of the executive branch. The path to successfully meeting this challenge, however, is complex. To effectively practice in this cross-discipline area, counsel must be exceptionally strong staff officers, who are fluent in both planning processes and command post organization. Moreover, counsel must master two separate legal disciplines: national security law and fiscal law. Beyond the complexity, NSL/KFL counsel must navigate significant friction when the demands of the operation conflict with the limitations of funding authorities. How then should JAs understand the practice of “opfunding?” Principled counsel.

In 2017, Lieutenant General (Retired) Charles N. Pede, the former Judge Advocate General, introduced the concept of “principled counsel,” as one of the Corps’s four constants that shape and inform our practice.134 Principled counsel acknowledges the challenges outlined above, while illuminating the path forward for the opfunding attorney: “Our Corps’s doctrine defines ‘principled counsel’ as ‘professional advice on law and policy, grounded in the Army Ethic and enduring respect for the Rule of Law, effectively communicated with appropriate candor and moral courage, that influences informed decisions.’”135

The best practices offered in this article trace their roots to this understanding of principled counsel. Effective NSL/KFL counsel provide professional advice by developing fluency in doctrinal processes and mastery of relevant funding authorities, identifying positive fiscal authority for each activity contemplated by the operation, and coordinating integrated legal positions throughout the legal team and tech-chain. Their legal advice is grounded in the Army Ethic by building trust through staff integration; adopting a paradigm of “getting to right, not to yes;”136 and zealously guarding against the inclusion of advocacy in legal reviews. Their counsel is effectively communicated with candor and moral courage by engaging early in planning processes, by clearly and firmly articulating resource limitations, and by providing legal advice in a manner than promotes speed and clarity, while mitigating risk.

James Madison once described the separation of powers as a defect supplied to the interior of government to ensure the proper partition of power.137 A defect. By making executive branch action dependent on legislative appropriations, the founders deliberately engineered friction into our system of government. Sitting at the fault line between these two powers is the NSL/KFL counsel who must navigate, and ultimately embrace, this friction so that their headquarters can fight and win by leveraging positive fiscal authority for each aspect of the operation. TAL

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LTC Howard is the deputy staff judge advocate of III Corps and Fort Hood; he previously served as chair of the Contract and Fiscal Law Department at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.

MAJ Mitroka is the brigade judge advocate for the 2d Stryker Brigade Combat Team, 4th Infantry Division, at Fort Carson, Colorado.

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Notes

1. J.R.R. Tolkien, The Hobbit 217 (Del Rey Books 2020) (1937).

2. Joseph R. Biden, Jr., U.S. President, Interim National Security Strategic Guidance 10 (2021).

3. Joseph L. Votel & Eero R. Keravuori, The By-With-Through Operational Approach, 89 Joint Force Q., 2d quarter, 2018, at 40 (quoting Secretary James Mattis: “Our approach is by, with, and through our Allies, so that they own these spaces and the U.S. does not.”).

4. Id. at 40.

5. Id. at 46.

6. Joint Chiefs of Staff, Joint Pub. 1, Doctrine for the Armed Forces of the United States, at I-8 (25 Mar. 2013) (C1, 12 July 2017).

7. U.S. Const. art. I, § 9, cl. 7 (the “appropriations clause” also known as the “power of the purse”).

8. U.S. Const. art. II, § 2, cl. 1.

9. U.S. Dep’t of Army, Doctrine Pub. 5-0, The Army Operations Process para. 1-15 (31 July 2019) [hereinafter ADP 5-0].

10. U.S. Dep’t of Army, Field Manual 1-04, Legal Support to Operations paras. 1-6, 1-7, fig.1-2 (8 June 2020) [hereinafter FM 1-04]. The six legal functions are Administrative and Civil Law; Contract and Fiscal Law; Military Justice, National Security Law; Soldier and Family Legal Services and Trial Defense Service.

11. U.S. Dep’t of Army, Doctrine Pub. 3-0, Operations paras. 5-9, 5-11, 5-13, 5-15, 5-17, 5-19, 5-25, fig.5-2 (31 July 2019) [hereinafter ADP 3-0] (“A warfighting function is a group of tasks and systems united by a common purpose that commanders use to accomplish missions and training objectives.”) The six warfighting functions are command and control, movement and maneuver, intelligence, fires, sustainment, and protection.

12. See Ernest A. Fredricksmeyer, Alexander, Midas, and the Oracle at Gordium, 56 Classical Philology 160 (1961) (A “Gordian knot” means a complex or unsolvable problem. The expression traces back to classical antiquity. As the myth goes, King Gordius tied his ox-cart to a post using such an intricate knot that no one could untie it. It remained in place until Alexander the Great arrived. After analyzing how to untie the knot, he elected to simply cut the knot, which released the wagon.).

13. U.S. Dep’t of Army, Doctrine Pub. 1-01, Doctrine Primer, at iii (31 July 2019) [hereinafter ADP 1-01] (describing doctrine as the “entire body of professional knowledge and beliefs that shape the art and science of [the] profession.”).

14. Joint Chiefs of Staff, Joint Pub. 5-0, Joint Planning, at GL-10 (1 Dec. 2020) [hereinafter JP 5-0] (defining a “limitation” as “[a]n action required or prohibited by higher authority, such as a constraint or a restraint, and other restrictions that limit the commander’s freedom of action . . . .”).

15. Id. at GL-8 (defining “feasibility” as a “plan review criterion for assessing whether the assigned mission can be accomplished using available resources within the time contemplated by the plan.” (emphasis added)).

16. U.S. Dep’t of Army, Doctrine Pub. 5-0, The Army Operations Process para. 1-15, fig.1-1 (31 July 2019).

17. Id. para. 1-18, fig.1-1.

18. Joint Staff J7, Joint Headquarters Organization, Staff Integration, and Battle Rhythm 5 (3d ed. Sept. 2019) [hereinafter J7 Staff Integration Focus Paper] (“The use of cross-functional staff integration elements (frequently referred to as Boards, Bureaus, Centers, Cells, and Working Groups [B2C2WGs] and OPTs), coupled with solid Knowledge Management (KM) processes, [drives] staff coordination . . . .”).

19. U.S. Dep’t of Army, Field Manual 6-0, Command and Staff Organization and Operations para. 8-12, fig.8-1 (16 May 2022) [hereinafter FM 6-0].

20. ADP 3-0, supra note 11, para. 5-9, fig.5-2.

21. U.S. Dep’t of Army, Field Manual 6-0, Command and Staff Organization and Operations paras. 8-22 to 8-28, fig.8-2 (16 May 2022).

22. Id. paras. 2-143–144.

23. U.S. Dep’t of Army, Field Manual 1-04, Legal Support to Operations para. 1-8 (8 June 2020).

24. Id. para. 3-48, fig.2-10.

25. This article assumes basic knowledge of the Military Decision Making Process (MDMP). A good resource for readers with limited familiarity is U.S. Dep’t of Army, Field Manual 5-0, Planning and Orders Production (16 May 2022) [hereinafter FM 5-0].

26. U.S. Dep’t of Army, Field Manual 1-04, Legal Support to Operations paras. 3-49, 3-50, 3-53, tbl.3-1 (8 June 2020).

27. To better understand how issues from each of the legal functions arise within each of the warfighting functions, see id. tbl.C-1 and tbl.3-2 depicting the legal support required for common battle rhythm events. Practice Note: Within the MDMP, a NSL attorney may be asked to determine if appropriated funds are available to provide logistics support to a partner force. A sustainment working group might ask an administrative law attorney if they may transfer excess property to a host nation in support of retrograde operations. During a combat update brief, the commander may ask the SJA if the military can fly a State Department official to a forward operating base. Each of these legal issues implicate fiscal law and may arise from any of the warfighting functions. This assertion is based on the author’s professional experiences as the Chief, Contract and Fiscal Law for U.S. Central Command from 1 July 2019 to 30 June 2020 [hereinafter Professional Experience].

28. See U.S. CONST. art. I, § 9, cl. 7.

29. Id.

30. Kate Stith, Congress’ Power of the Purse, 97 Yale L.J. 1343, 1350 (1988) (“The Constitution’s appropriations requirement is . . . a condition precedent to executive branch action . . . . For the executive branch to act to achieve the ends of government identified by Congress, Congress must affirmatively authorize the funds to do the job.”).

31. 31 U.S.C. § 1519.

32. U.S. Dep’t of Army, Field Manual 6-0, Command and Staff Organization and Operations para. 2-32 (16 May 2022).

33. Id. para. 2-33 (emphasis added).

34. Id. para. 8-22, fig.8-2.

35. Joint Staff J7, Joint Headquarters Organization, Staff Integration, and Battle Rhythm 5 (3d ed. Sept. 2019) (defining an operational planning team as a cross-functional group of experts “established to solve a single problem related to a specific task or requirement on a single event horizon.”).

36. Id. at 6 (defining a working group as a fairly “permanent cross-functional organization formed to develop, maintain, and leverage expertise from within and external to the [headquarters] in order to provide analysis and recommendations on more enduring challenges across all three event horizons”).

37. ADP 5-0, supra note 9, para. 1-82. Commanders establish a battle rhythm to “integrate and synchronize . . . activities, meetings, and reports within their headquarters, and with higher, subordinate, supporting, and adjacent units as part of the operations process.” Id. paras. 1-16, 1-82.

38. For example, various legal issues arise when a plans team (an integrating cell) conducts MDMP to integrate a partner force into the next phase of the operation, while the sustainment warfighting function (a functional cell) develops options to provide that partner force with logistics support. Professional Experience.

39. FM 1-04, supra note 10, para. 2-48.

40. U.S. Dep’t of Army, Field Manual 6-0, Command and Staff Organization and Operations para. 2-8 (16 May 2022).

41. Id. para. 2-31.

42. Luke O’Brien, The Doctrine of Military Change: How the US Army Evolves, War on the Rocks (25 July 2016), https://warontherocks.com/2016/07/the-doctrine-of-military-change-how-the-us-army-evolves/.

43. Major General Chris Field (AU), Seven Ideas for Leadership Beyond Covid-19, The Cove (6 March 2020), https://cove.army.gov.au/article/seven-ideas-leadership-beyond-covid-19.

44. U.S. Dep’t of Army, Reg. 220-1, Army Unit Status Reporting and Force Registration—Consolidated Policies 100 (16 Aug. 2022) (defining “pacing item” as “equipment central to an organization’s ability to perform its designated mission).

45. U.S. Dep’t of Army, Doctrine Pub. 6-22, Army Leadership and The Profession para. 5-45 (31 July 2019) (C1, 25 Nov. 2019). While these attributes promote trust in the leadership context, they also promote trust in legal counsel.

46. Judge advocates should participate in training exercises—from academics to field problems, combat training center rotations to division warfighters—each repetition will strengthen a counsel’s skills while building strong relationships and trust with the staff.

47. Developing an effective legal support plan is challenging. While some desire for JAs to attend every planning meeting, others pool legal resources and ask planners to identify legal issues. Both approaches are suboptimal. When JAs attend every planning meeting, time is wasted and competing legal requirements go unsupported. In the alternative, when JAs do not attend planning meetings, they allow planners to develop infeasible options that fail to account for legal limitations.

48. U.S. Dep’t of Army, Techniques Pub. 6-0.5, Command Post Organization and Operations para. A-21 (1 Mar. 2017) (describing how the chief of staff or executive officer should analyze battle rhythm attendance requirements).

49. FM 6-0, supra note 19, para. 4-24.

50. Judge advocate leaders should leverage their relationships to gain access to agendas and anticipated talking points to assess whether contract and fiscal law (KFL) counsel should attend.

51. Cross-communication within the Office of the SJA is key. NSL action attorneys can often provide KFL-focused attorneys with key insight into operations and planning efforts, while KFL counsel can equip NSL counsel with knowledge of relevant funding authorities.

52. Professional Experience.

53. A JA must know where their headquarters fits within the broader national security structure, understand how their missions get assigned, and appreciate to what extent their headquarters can influence joint planning.

54. U.S. Const. art. I, § 9, cl. 7.

55. See United States v. MacCollom, 426 U.S. 317 (1976). The Court held that “[t]he established rule is that the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.” Id. at 321.

56. Counsel should address the “Purpose Statute.” 31 U.S.C. § 1301(a) (stating that agencies may only apply appropriations “to the objects for which the appropriations were made”). Counsel should also outline the Government Accountability Office’s “Necessary Expense Doctrine.” U.S. Gov’t Accountability Off., GAO-17-797SP, Principles of Federal Appropriations Law, Chapter 3: Availability of Appropriations: Purpose at 3-16 (“The expenditure must bear a logical relationship to the appropriation[;] must not be prohibited by law[; and] must not be otherwise provided for . . . .”).

57. Counsel should address the “Bona Fide Needs” rule. 31 U.S.C. § 1502(a) (appropriations are available only for the bona fide need of an appropriation’s period of availability).

58. Counsel should discuss the Antideficiency Act, 31 U.S.C. §§ 1341–1342, 1511–1519, to ensure leaders and planners understand the consequence of knowingly obligating funds for impermissible purposes.

59. “Mission Authority” (authority to direct troops and materiel in support of a specified end state) flows from the President or the Secretary of Defense through the Combatant Command to the Joint Task Force (JTF) or Service Component under the U.S. Constitution and federal statute. See U.S. Const. art II, § 2, cl. 1–2; 10 U.S.C. § 113; 10 U.S.C. § 153; 10 U.S.C. § 164.

60. “Funding Authority” (authority to obligate appropriated funds) flows from the U.S. Const. art. I, § 9, cl. 7, as described by 31 U.S.C. § 1301(a) and U.S. v. MacCollom, 426 U.S. 317 (1976).

61. Professional Experience.

62. U.S. Dep’t of Army, Field Manual 5-0, Planning and Orders Production para. 5-14 (16 May 2022).

63. Id. para. 5-29; FM 1-04, supra note 10, para. 3-50.

64. Joint Chiefs of Staff, Joint Pub. 5-0, Joint Planning, at I-18 (1 Dec. 2020).

65. Id. at I-8 to I-10. Campaign Plans “establish objectives, conditions, and tasks under which the CCMD and Service components build operations, activities, and investments to achieve objectives (set conditions) in support of national policy.” Id. at I-8. Contingency Plans are “branches of [campaign plans] that are planned for designated threats, catastrophic events, and contingent missions without a crisis at-hand, pursuant to the strategic guidance in the Unified Command Plan (UCP), [the Contingency Planning Guidance (CPG)], and [Joint Strategic Campaign Plan] and guidance given by the CCDR.” Id. at I-10.

66. Id. at I-18.

67. For example, when counsel’s review of the CCMD order references a funding authority (e.g., REF//N/ 10 U.S.C. § 2561 “Humanitarian Assistance”) opfunding counsel should add this authority in their legal research.

68. See, e.g., Off. of Mgmt. & Budget, Exec. Off. of The President, OMB Cir. A-11, Preparation, Submission, and Execution of the Budget (2022).

69. U.S. Dep’t of Def., 7000.14-R, DoD Financial Management Regulation (Dec. 2021).

70. See, e.g., U.S. Dep’t of Def. Dir., 2010.09, Acquisition and Cross Servicing Agreements (28 Apr. 2003) (C2, 31 Aug. 2018). See also, U.S. Dep’t of Def. Inst., 2205.02, Humanitarian and Civic Assistance Activities (May. 2017).

71. Headquarters often include tasks and activities without reference to corresponding funding authorities. Why? Mission Command. Under this approach to command and control, higher headquarters use mission orders that convey results and effects without providing details regarding how to complete the task. By using mission orders, higher headquarters enable subordinate decision-making and decentralized execution. See, U.S. Dep’t of Army, Doctrine Pub. 6-0, Mission Command: Command and Control of Army Forces paras. 1-14 to 1-21; 1-53 (31 July 2019) [hereinafter ADP 6-0]. For the opfunding attorney, this means the higher headquarters’ order, because it is not addressing “how,” will often not include specific funding authorities or the facts required to identify a funding authority. Those details will come from the planners within counsel’s headquarters.

72. The authority matrix is a document intended only for legal counsel and should not be distributed to the staff as a substitute for legal advice.

73. See, e.g., Foreign Security Forces: Authority to Build Partner Capacity, 10 U.S.C. § 333.

74. See, e.g., Burden Sharing Contributions by Designated Countries and Regional Organizations, 10 U.S.C. § 2350J.

75. See, e.g., Authority to Acquire Logistic Support, Supplies, and Services for Elements of the Armed Forces Deployed Outside the United States, 10 U.S.C. § 2341.

76. See, e.g., Humanitarian and Civic Assistance Provided in Conjunction with Military Operations, 10 U.S.C. § 401.

77. See, e.g., Contingency Construction, 10 U.S.C. § 2804.

78. See, e.g., Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, Authority to Provide Assistance to Counter the Islamic State in Iraq and the Levant, Pub. L. No. 113-291, § 1236, 128 Stat. 3292, 3558 (2014) (as amended).

79. See, e.g., Emergency and Extraordinary Expenses, 10 U.S.C. § 127.

80. See Figure 1, Sample Authorities Matrix.

81. Professional Experience.

82. The authors view legal support to planning as distinct from legal reviews of orders and legal reviews of ancillary actions that seek to obligate appropriated funds. Why? The factual predicates in these two contexts differ dramatically. When providing legal support to planning, legal advisors are often limited to describing the parameters of funding authorities because the facts are too vague or rapidly evolving. It is only after the facts are clear and stable that counsel can conduct a legal review, drawing a conclusion as to the availability of funds for these specific purposes.

83. FM 1-04, supra note 10, para. 3-50, tbl.3-3.

84. U.S. Dep’t of Army, Field Manual 5-0, Planning and Orders Production para. 5-29 (16 May 2022).

85. Id.

86. See id. paras. 5-40, 5-41, 5-43 (addressing specified, implied, and essential tasks).

87. See id. paras. 5-47, 5-48 (addressing facts and assumptions).

88. See id. para. 5-45 (addressing constraints and limitations).

89. Id. para. 5-44.

90. Id. para. 5-46.

91. This legal planning product does not constitute legal advice.

92. FM 6-0, supra note 19, para. 7-11.

93. FM 5-0, supra note 25, app. C. Running estimates generally include facts, assumptions, a summary of the current situation, conclusions, and recommendations.

94. FM 1-04, supra note 10, para. 3-55, fig.E-1. The SJA’s running estimate will differ from other staff sections because the SJA’s focus is distinct (legal authorities, constraints, and shortfalls).

95. Follow-on activities may include engaging senior counsel to better understand a specific authority, meeting with planners to clarify the nature of activities, or enabling SJA advice to the commander.

96. This assertion is based on the author’s professional experiences as the Senior Operational Law Observer, Coach, and Trainer at The Joint Readiness Training Center from 1 July 2016 to 30 June 2018.

97. FM 5-0, supra note 25, para. 5-91, fig.5-1.

98. See discussion supra “Mastery—Legal Research and Technical Chain Discussions.” 

99. FM 5-0, supra note 25, paras. 5-91, 5-137, 5-191, 5-199, fig.5-1.

100. See discussion supra note 82.

101. Commanders and planners will want to know if the limitation is something they can change. For example, if the limitation is found in policy, counsel should help the staff pursue an exception to policy where appropriate.

102. In good faith, these adjustments to the plan must be real changes that reflect a true shift in understanding and operational approach (not merely an adjustment in wording). To chart the right path, consider: What is the commander’s intent? What other options do we have to create this effect without offending fiscal authority?

103. See, e.g., Emergency and Extraordinary Expenses, 10 U.S.C. § 127; Combatant commands: funding through the Chairman of Joint Chiefs of Staff, 10 U.S.C. § 166a.

104. National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, § 1218, 133 Stat. 1198, 1633–1635 (2019); Professional Experience.

105. U.S. Dep’t of Army, Field Manual 5-0, Planning and Orders Production paras. 5-14, 5-29, 5-91, 5-137, 5-191, 5-199, fig.5-1 (16 May 2022).

106. Id. para. 5-203 (the process of “turning the selected [course of action] into a clear, concise concept of operations (with) the required supporting information”).

107. Building on the discussion at supra note 82, as the planning process added clarity to the planned activities, counsel transition from articulating legal parameters of funding authorities to drawing legal conclusions: “it is legally permissible to expend appropriated funds on this.”

108. FM 1-04, supra note 10, para. 3-54 (directing JAs review the base order and annexes).

109. The factual predicate must address who is funding what, for whom, why, when, and where in order to inform counsel’s analysis of “purpose, time, and amount.” When appropriate, counsel should ask these questions of planners to sharpen the facts.

110. Counsel should include a recitation of facts in their legal review and then caveat the review: “based on the facts presented.” This practice puts approval authorities on notice that counsel’s legal conclusion is based on these facts—if the facts presented are not accurate or if they evolve, a new legal review is required.

111. U.S. Dep’t of Army, Field Manual 5-0, Planning and Orders Production paras. 5-203 to 5-207, app. D (16 May 2022).

112. Id. para. 5-46 (explaining that the commander and staff should coordinate with the SJA for a legal review of constraints or limitations in the plan).

113. FM 1-04, supra note 10, para. 3-54. Counsel must understand who has the authority to “chop” (i.e., to concur or nonconcur) on the operations order. Sometimes this authority resides at the action officer level (e.g., chief, NSL/KFL) and sometimes the authority is withheld to the general officer/flag officer level, meaning the staff-lead or director must sign. Within the legal team, this means the SJA. The SJA’s legal “chop” should always come last in the staff action process so other directorates’ modifications do not change the underlying facts after the SJA’s final legal review.

114. Identifying funding limitations and shortfalls in operations orders is challenging. It is not uncommon for counsel to discover new activities within the order that were not discussed during the planning process. Moreover, many fiscal issues are hidden within activities and lack any reference to funding.

115. Counsel should examine each activity within the order and ask “how” is this going to be funded? For example, as counsel review the order, they may see a task to “provide logistics support” to a partner force, a directive to transport interagency partners on MILAIR, or a line of effort to train partner forces. For each activity counsel should ask “how is this being funded?”

116. Throughout the process, NSL/KFL counsel must ensure the SJA is aware of any fiscal concerns. This will avoid surprises and enable timely legal advice from the SJA to the commander and staff primaries.

117. When counsel anticipate they will “non-concur” to the order for fiscal law reasons, they should, communicate their position immediately to the SJA and, subject to SJA guidance, to planners.

118. See, e.g., Emergency and Extraordinary Expenses, 10 U.S.C. § 127; Combatant commands: funding through the Chairman of Joint Chiefs of Staff, 10 U.S.C. § 166a, etc.

119. When this clause is used, NSL/KFL counsel should engage the forward counsel to ensure they understand the order includes a task or activity and at the time of orders production no funding authority was identified. Professional Experience.

120. Def. Sec. Coop. Agency, Manual 5105.38-M, Security Assistance Management Manual para. C12.3.4.1 (30 Apr. 2012), https://samm.dsca.mil/chapter/chapter-12#C12.3, Professional Experience.

121. For example, software, email, working groups, and office discussions.

122. For example, NSL counsel may “concur” on an operation from their NSL legal function’s perspective, but the order may also include fiscal law issues that subsequently draw a “nonconcur” from KFL counsel. This promotes confusion on the staff, wastes precious time, and undermines the credibility of the legal team.

123. Before engaging the technical chain, counsel should first fully develop their legal position based on all known facts and legal authority—do not senior counsel “is this legal?” Second, counsel should assess risk in close coordination with the SJA. When the funding concerns well-settled matters with a strong track record of precedent, those actions often do not require engaging senior counsel. However, when there is lack of clarity on the law, the use of these funds for this purpose is unprecedented, or counsel know their position differs from senior counsel, engaging the technical chain is appropriate.

124. Given the breadth of authorities governing fiscal law and the rate at which law and policy shift, it is not uncommon for counsel to be made aware of new authority (or changes to authority) during these engagements.

125. Counsel should consider 1) are law and policy well-settled or is there debate amongst senior counsel, 2) is there any precedent for expending these funds on this purpose, and 3) does this planner have a track record of candor and accuracy or is there a history of evolving facts and “misunderstandings”? These variables should inform how counsel decides to provide their legal advice and legal review.

126. Verbal legal advice, particularly after working groups, can dramatically improve processing times.

127. Emailed legal advice should clearly state the legal position is “developing” or “draft,” if the SJA has yet to opine. Moreover, counsel should caveat that their position is based on “the facts presented,” to avoid application of the advice to materially different fact patterns (i.e., forwarding the emailed advice to third parties).

128. Rear Admiral Christopher C. French, Joint Officer Legal Training (Oct. 30, 2018) (unpublished PowerPoint presentation) (on file with author) [hereinafter Rear Admiral French].

129. Fiscal counsel understandably use caveats because it allows counsel to opine and move the action forward, while simultaneously noting what the planners have to do to bring the activity within the parameters of the appropriated fund (i.e., it is legally permissible to obligate X funds on Y purpose provided A, B, and C). However, such conditions often go unnoticed, or they promote confusion: “Judge—I’ve read your review . . . is this legal or not?” Counsel should work to resolve all caveats and eliminate all conditions prior providing a final legal review.

130. For example, “I recommend approval”; “I recommend modifying the plan”; “I recommend pursuing a different fund”; or “I recommend seeking an exception to policy.”

131. Oath of Office, 5 U.S.C. § 3331.

132. Counsel should ask themselves: “Am I wordsmithing definitions to justify this activity falls within a funding authority” or “Am I working with planners to modify the plan so it falls within the parameters of the fund?”

133. U.S. Dep’t of Def., Instr. 4515.13, Air Transportation Eligibility tbl.4 (22 Jan. 2016) (C6, 2 Mar. 2022); Professional Experience.

134. See The Judge Advoc. Gen. & Deputy Judge Advoc. Gen., U.S. Army, TJAG & DJAG Sends, Vol. 40-16, Principled Counsel—Our Mandate as Dual Professionals (9 Jan. 2020).

135. Lieutenant General Charles N. Pede, Putting Principled Counsel into Action, Army Law., no. 4, 2020 at 2, 3 (emphasis added) (quoting The Judge Advoc. Gen. & Deputy Judge Advoc. Gen., U.S. Army, TJAG & DJAG Sends, Vol. 40-16, Principled Counsel—Our Mandate as Dual Professionals (9 Jan. 2020)).

136. Rear Admiral French, supra note 128.

137. The Federalist No. 51 (James Madison).