Closing Argument

The Judge Advocate’s Role in Empowering Innovation

By Lieutenant Colonel Matthew T. Miller

As the Command Judge Advocate of the 1st Multi-Domain Task Force (1st MDTF), it has been my privilege to serve in a team focused on innovation. Since its inception, 1st MDTF has experimented with new capabilities, tactics, and procedures in an effort to better realize the full potential of multi-domain operations (MDO). This continuous experimentation has reinforced valuable lessons about the role of judge advocates (JAs) and the ways in which we can use our skill set to help shape the future force.

CPT Vergil Decker, a JA assigned to the New Hampshire Army National Guard, works on a laptop at Camp Nett, Niantic, CT. Personnel from the JAG Corps played a key role in Cyber Yankee, a cyber training exercise, by advising on cyber law issues. (Credit: SGT Matthew Lucibello)

Integrated and Effective Staff Work

On the wall of the 1st MDTF’s All Domain Operations Center is a large sign with the words “Anticipate Requirements, Preserve Options, Exploit Opportunities.” This mantra is a distillation of the characteristics of effective staffs found in Field Manual 6-0.1 These three priorities apply just as much to JAs as they do to any other staff officer, and they have been a driving force behind our successful innovation efforts.

Anticipating legal requirements is clearly in a JA’s wheelhouse. Multi-domain operations experimentation can implicate many legal regimes: environmental law, domestic and international regulations concerning airspace and the electromagnetic spectrum, contract and fiscal law, intelligence law, and operational authorities within the joint force. Complying with these legal regimes often requires considerable time and coordination, and failure to do so will stop an experiment before it even begins. Unfortunately, the complexity of these legal issues often requires expertise beyond the capabilities of a single JA.

I am not an expert in all the legal areas I listed above. But the unique nature of our legal community allows me to quickly connect with those experts. When the MDTF wants to try something involving space operations, I proactively coordinate with attorneys in U.S. Space Command so they can identify potential friction points early in the planning process. For experiments in foreign countries, the national security law team at U.S. Army Pacific helps identify country-specific legal requirements and pushes our operational concepts through the joint approvals process. Even when trying something new, there will be attorneys who have experience in the relevant legal issues. Leverage the legal community to identify and solve legal problems before they materialize.

We can also leverage our legal “tech chain” to create and exploit opportunities. A significant portion of MDO innovation involves finding ways to improve interoperability throughout the joint and multi-national force. Judge advocates can coordinate with attorneys in other organizations to identify opportunities for interoperability, such as leveraging different authorities or identifying limits on the types of information that can be shared between organizations. Once you identify what is legally possible, the rest of your staff can plan ways to exploit those possibilities.

When the MDTF wants to try something involving space operations, I proactively coordinate with attorneys in U.S. Space Command so they can identify potential friction points early in the planning process

Modernized Legal Advice for Automation

The last year with the 1st MDTF has shown me that synchronizing operations across all domains will create the potential for information overload. Commanders are obligated to make good-faith decisions based on the information that is reasonably available.2 But when the information available is massive, we need to find a way to filter and analyze that data to make decisions at a speed and scale that will outpace peer adversaries. I believe this creates a military necessity to automate the decision cycle as much as technology and the law will allow. This automated decision cycle must also ensure appropriate levels of human judgment over the use of force. The use of such a system must be consistent with the Department of Defense AI Ethical Principles3 and Responsible Artificial Intelligence Strategy and Implementation Pathway.4

A military decision cycle that maximizes automation and speed will make it very difficult, if not impossible, for JAs to interject advice in the ways that we are accustomed. Accordingly, we will need to integrate compliance with the law of armed conflict into the automated systems. Legal advisors must, therefore, be closely involved in their development.

First MDTF has worked with numerous companies that are developing automated systems for the military. There are always members of my team who ask questions about an automated system’s capabilities. But I am the one who asks questions related to the law of armed conflict—especially the need to uphold command responsibility.5 For example, is there a feedback loop that will allow commanders to confirm that an automated system is carrying out their intent? Can commanders apply reasonable controls to mitigate risk of collateral harm? Is there a way for commanders to investigate and correct unintended outcomes? Having attorneys work alongside programmers will ensure automated systems address these essential issues and that these systems’ use is in accordance with both the law of war and the applicable rules of engagement.

COL Jess Roberts, SJA, U.S. Army Space and Missile Defense Command (USASMDC), and MAJ Chuck Wedin, acquisition attorney, USASMDC, at the USASMDC booth during the AUSA Global Force Symposium in Huntsville, AL. The symposium was an opportunity for USASMDC to showcase the command’s unique worldwide mission set, which includes the Army Astronaut Program, missile defense, and space operations. Secure the High Ground! (Photo courtesy of COL Jess Roberts)

Conclusion

As the military modernizes its capabilities and innovates ways to carry out MDO, the law remains. Judge advocates must continue to integrate into their unit staffs to anticipate and solve legal problems that may arise during experimentation. Legal advisors must also be integrated into the development of new technology—especially automated systems. We have an important role to play in ensuring new capabilities are designed in a way that maximizes commanders’ options and upholds our legal obligations. TAL

LTC Miller is the Command Judge Advocate of the 1st Multi-Domain Task Force at Joint Base Lewis-McChord, Washington.

Notes

1. See U.S. Dep’t of Army, Field Manual 6-0, Commander and Staff Organization and Operations paras. 2-30, 2-31, 2-148 (16 May 2022) (describing characteristics of effective staff officers). For example, the conclusion of chapter 2, which details staff organization, roles, and effective characteristics and relationships, reads:

Staff officers must be subject matter experts in their own fields, integrate as a member of the staff, and be flexible and able to anticipate and solve complex problems sets. They must anticipate problems and generate and preserve options for the commander to make timely decisions. They must be leaders. Based on available capabilities and resources, staff officers must also be able to receive, interpret, and implement the guidance from their higher headquarters. Likewise, they must support their subordinate echelons and ensure subordinate commanders (and their staffs) have the proper guidance, capabilities, and resources to accomplish their missions. Competent staffs and their innovations are the key to the Army’s ability to adapt and overcome challenges.

Id. para. 2-148.

2. See Off. of Gen. Couns., U.S. Dep’t of Def., Department of Defense Law of War Manual § 5.3 (12 June 2015) (C2, 13 Dec. 2016) (“Commanders and other decision-makers must make decisions in good faith and based on the information available to them”); Memorandum from Joint Chiefs of Staff to Sec’y of Def., subject: Review of the 1977 First Additional Protocol to the Geneva Conventions of 1949, app. at 52 (3 May 1985) (“Commanders and other military personnel who make decisions in the fog of war must do so in good faith and on the basis of whatever information they have available at the time. Such decisions will almost never be free of ‘doubt,’ either subjective or objective.”).

3. See, e.g., C. Todd Lopez, DOD Adopts 5 Principles of Artificial Intelligence Ethics, U.S. Dep’t of Def. (Feb. 25, 2020), https://www.defense.gov/News/News-Stories/Article/Article/2094085/dod-adopts-5-principles-of-artificial-intelligence-ethics.

4. U.S. Dep’t of Def. Responsible AI Working Council, U.S. Department of Defense Responsible Artificial Intelligence Strategy and Implementation Pathway (2022).

5. See Matthew T. Miller, Command Responsibility: A Model for Defining Meaningful Human Control, 11 J. Nat’l Sec. L. & Pol’y 533 (2021) (outlining my argument for upholding command responsibility when using artificial intelligence).