Sgt. Emmett Browne (left), a team leader with
U.S. Army Alaska’s 1st Battalion (Airborne), 501st
Infantry Regiment, 4th Infantry Brigade Combat
Team (Airborne), 25th Infantry Division, trains with
Japanese soldiers as part of Exercise North Wind
2015 (Credit: U.S. Army Sgt. Eric-James Estrada/
Released).
Military Exchange Personnel
Balancing Interoperability and Accountability
By Lieutenant Colonel Daniel R. Kicza
Recognizing the importance of interoperability with our allies, the U.S. Army has fully embraced the Military Personnel Exchange Program (MPEP). The Army currently has 156 total exchanges with fifteen countries. The foreign personnel serving in U.S. Army positions includes nine foreign general officers serving as deputy commanding general or chief of staff at the division, corps, and Army Service Component Command levels.
While this relationship building provides incredible benefits to the United States and the allied force, the robust expansion of the responsibilities and duties assigned to foreign general officers has raised concern at the congressional and Joint Staff levels. In response, on 7 August 2018, the Deputy Secretary of Defense published updated guidance on the permissible and impermissible duties for foreign general officers. Legal advisors must stay attuned to the policy limitations on foreign general officer duties in order to support their commanders. Legal advisors must also appreciate the balance between interoperability and building partnerships, and legitimate policy concerns over accountability and authority.
The Program
Under the MPEP, foreign exchange personnel are assigned to duty positions in the U.S. Army. Memorandums of Agreement between the United States and the foreign partner create the exchanges. They are enforceable international agreements and may be reciprocal or non-reciprocal. Unlike Foreign Liaison Officers who perform duties on behalf of their home nation, foreign exchange personnel are assigned to duty positions within authorized U.S. Army manpower requirements and are given the same authority and supervisory responsibilities that would be given U.S. personnel in the same unit in a similar position.1
The Legal Basis and Legal Restriction on Duties Performed
Section 311 of Title 10 of the U.S. Code2 authorizes the Secretary of Defense to enter into exchange programs with an ally or other friendly foreign nation. The statute prohibits exchange personnel “to take an oath of allegiance to the host country or to hold an official capacity in the government of such country.”3 The statute does not define the term “official capacity.”
Policy limitations and Restrictions on Duties Performed
Army Regulation 614-10, Army Military Personnel Exchange Program with Military Services of Other Nations, places several restrictions on the duties performed by foreign exchange personnel. Foreign exchange personnel may not be assigned to positions that would require them to “exercise responsibilities reserved by law or regulation to an officer or employee of the USG”4 or “perform duties reserved for U.S. personnel.”5 They may, however, “exercise general supervisory functions over U.S. military and civilian employees.”6
The regulation specifically prohibits foreign exchange personnel from exercising disciplinary powers over U.S. personnel7 or taking “personnel actions of a disciplinary nature” which affect civilian employees.8 Additionally, “[w]hen attending meetings or conferences outside the host command and/or activity, the PN (Partner Nation) MPEP participant must make it clear that they are performing in an exchange role and cannot represent the U.S. Army. Under no circumstance will they be sent as the sole representative of the command and/or activity.”9 As far as rating and evaluating U.S. personnel, foreign exchange personnel may rate, but not senior rate, U.S. officers and noncommissioned officers.10
Updated Guidance from the Department of Defense
On 7 August 2018, the Deputy Secretary of Defense issued “Updated Guidance on the Foreign Personnel Exchange Program.” In it, the Deputy Secretary of Defense found “that the Department lacks clear guidance, central oversight, and a means of certifying compliance with Section 311, including guidance on the duties and functions that may be performed by foreign exchange personnel consistent with Articles II and VI of the U.S. Constitution.”11 The memorandum further directed review, amendment, and certification of all position descriptions, functions, and responsibilities of foreign general officer exchange personnel.
Included with the memo is a non-exclusive list of permissible and impermissible functions and duties for foreign general officers. In general, most advisory functions are permissible and the foreign general officer may execute “internal office and organizational functions.”12 The examples of prohibited functions and duties contains some relatively bright-line prohibitions (e.g., no commanding U.S. military forces or controlling intelligence or counterintelligence operations; no receiving, disbursing, or distributing public funds or U.S. Government real property.) Two other prohibitions, however, appear straight forward, but upon further analysis, may raise questions and debate when applied to the practical duties performed by a foreign general officer serving as a deputy commanding general or chief of staff. Those prohibitions are: 1) no making final determinations regarding plans, policies, directives, or orders; and 2) no conducting “foreign relations.”13
No Making Final Determinations
At first glance, compliance with this prohibition appears easy. A foreign general officer serving as a deputy commanding general should only be advising the commander and the commander makes the final determination on everything. The commander makes the decision explicitly, or they issue detailed guidance on the issue. Potentially lost, however, is a broad spectrum of situations where a motivated foreign general officer could act with disciplined initiative, especially regarding interoperability issues that the commander may not be aware of, has not considered, and for which they have not issued guidance. In reality, much of a command’s day-to-day decision making is accomplished based on very broad guidance and trust that the officer can and will make the right call.
No Conducting Foreign Relations
Again, at first glance this prohibition appears straightforward and obvious. The memo provides further explanation that the prohibition includes representing, speaking, or acting on behalf of the United States, or making determinations of foreign policy. Additionally, the Army regulation prohibits foreign exchange personnel from attending activities outside of their assigned command as the sole representative of the command, and they must make it clear to other attendees they are present in an exchange capacity and cannot represent the U.S. Army.
Consider, however, what a senior U.S. commander expects of a deputy commanding general in an exercise with foreign partners or even in the garrison environment in a command located outside of the United States. Can they pledge the command’s support to the local community surrounding an OCONUS base? Can they state the U.S. Army’s official position on a certain issue, or state the commander’s established policy and priorities to another allied foreign military’s representative? While not making determinations of foreign policy, is the foreign deputy commanding general impermissibly representing or speaking on behalf of the United States? Arguably they are.
Where the policy likely contemplates, and seeks to prevent, a situation where a foreign general officer establishes the policy of the unit or the U.S. Government by himself or herself, it likely neglected to factor in a situation where the foreign general officer is representing the command by stating already established official policy originally promulgated by the appropriate U.S. authority.
Staying Out of the Danger Zone
The risk is that if the Army pushes the limits of the permissible duties of a foreign general officer, there will be even more restrictive guidance published which will make the Army’s foreign general officer positions potentially ineffective with no benefit to interoperability. For example, a proposed draft legislative proposal to amend 10 U.S.C. § 311 would have prohibited any foreign exchange personnel from performing an inherently governmental function.14
To avoid such restrictions on a program that Army commander-clients are heavily invested in, the National Security Law Division (NSLD) at The Office of the Judge Advocate General (OTJAG) recommends the following guidance to legal advisors who are tasked with determining the legality of a proposed duty or action to be performed by a foreign general officer: Brief incoming foreign general officers on the legal and policy restrictions on their duties. Make them comfortable with seeking legal guidance if they sense the commander is asking them to perform possibly prohibited functions, or if their assigned duties seemingly require them to perform prohibited functions in order to be effective. More importantly, ensure they contact you if, upon reflection, they question whether an action they already took might have been impermissible.
Ensure a foreign general officer’s decisions are never the absolute final determinations. Make the commander aware of and acknowledge or adopt the determinations of a foreign general officer. If that does not happen through normal operations, ensure an appropriate staff member notifies the commander of the action taken. This may sound burdensome, but it is no different from what judge advocates often do when reports come up through legal channels and must be cross-leveled with the operations community.
When foreign general officers interact with any foreign entity, NSLD OTJAG recommends the command’s legal advisor draw a line well short of anything that an outsider could reasonably interpret as representing, speaking, or acting on behalf of the United States. Any statement, comment, or action by a foreign general officer that causes a foreign military, government, or official to rely on the United States or obligates (or appears to obligate) the United States to take some action or refrain from some action is potentially the impermissible conduct of foreign relations.
The best way to support commanders who value their foreign general officers is to advise them to avoid pushing the limits of the new policy. Some within the Department of Defense see the Army’s use of foreign general officers as deputy commanding generals as beyond the scope of the implementing statute.15 Avoiding policy or law that further restricts their duties will require a delicate balance and a conservative reading of the duty restrictions. TAL
LTC Kicza is the Chief of the International Law Branch at the National Security Law Division of OTJAG.
Notes
1. U.S. Dep’t Of Army, Reg. 614-10, Army Military Personnel Exchange Program with Military Services of Other Nations, para 4-5 (14 July 2011) [hereinafter AR 614-10].
2. As amended by Nat’l Def. Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 5301.
3. 10 U.S. Code § 311(e).
4. AR 614-10, supra note 1, para 5-1a(3).
5. AR 614-10, supra note 1, para 4-9.
6. AR 614-10, supra note 1, para 4-9.
7. AR 614-10, supra note 1, para 4-7.
8. AR 614-10, supra note 1, para 4-9.
9. AR 614-10, supra note 1, para 5-1a(3).
10. U.S. Dep’t of Army, REG. 623-3, Evaluation Reporting System, para 2-1a(1) & b(1) (4 Nov. 2015).
11. Memorandum from Deputy Secretary of Defense, subject: Updated Guidance on the Foreign Personnel Exchange Program (7 Aug. 2018) [hereinafter Foreign Personnel Exchange Program Memo].
12. Id.
13. Further clarified as “representing, speaking or acting on behalf of the United States, or making determinations of foreign policy.”
14. The term “inherently governmental function” is defined in the Federal Activities Inventory Reform (FAIR) Act of 1998 as “ . . . a function that is so intimately related to the public interest as to require performance by Federal Government employees.” Those functions “ . . . includes activities that require either the exercise of discretion in applying Federal Government authority or the making of value judgments in making decisions for the Federal Government . . . .” Using the FAIR Act standard for inherently governmental functions would likely greatly restrict the duties of foreign general officers and potentially negate any value of the program to Army commanders.
15. This view is the author’s and is based upon conversations with the action officer of the updated guidance memorandum in the Office of the Under Secretary of Defense Policy.