The balance of civil/military power and the DOD Law of War Working Group Commentary
The balance of civil/military power and the DOD Law of War Working Group
Edited by: JURIST Commentator

Geoffrey Corn, South Texas College of Law: "On May 9th, the Department of Defense published a revised version of Department of Defense Directive 5100.77, "The Department of Defense Law of War Program." This Directive is the foundation for all law of war related policies, training, application, and compliance programs throughout the armed forces. Like the prior version, establishes as a matter of DOD policy that the armed forces of the United States shall comply with the law of war during all armed conflicts and all other operations. This policy mandate provides the consistent standard for military units executing military operations across the "conflict spectrum."

This Directive also establishes the Department of Defense Law of War Working Group, the DOD "think tank" on law of war issues. In a subtle but potentially significant modification to the prior version of the Directive, the composition of the Working Group has been modified. In the past, although chaired by the DOD General Counsel, this Working Group was composed almost exclusively of representatives from the uniformed legal services: representatives of the Service Judge Advocate's General and the Legal Adviser to the Chairman of the Joint Chiefs of Staff. The revised version of the Directive alters this composition by including representatives from each Service General Counsel's office. Unlike their uniformed counterparts, the General Counsels are political appointees who serve as legal advisers to the civilian chains of command for each Service, and are therefore normally not responsible for providing advice on operational issues.

The inclusion of these representatives may be a positive development, but it is without question a significant change. According to the media, certain controversial legal issues related to the "war on terror" have disagreements between the uniformed legal advisers and their civilian counterparts. One must question why the longstanding composition of the Working Group was modified. If the purpose was to enhance the analytical process by including more voices, the change should be applauded. However, if the purpose was to dilute the effectiveness of the uniformed legal adviser's by increasing the representation of the politically appointed General Counsels, this change might further strain the civil/military balance within the DOD legal community. Only time will tell."

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