W A R S T O R I E S : T H E M I L I T A R Y L A W Y E R

Thursday February 2nd, 2017 - 1:30 PM

(1.0 CLE) The presenters will provide stories illustrating how the practice of law impacts the

mission of the military, including an overview of the legal principles involved. The roles of

military attorneys will be focused on related to defense counsel in Military Commissions

convened to try Guantanamo Bay detainees, in advising the Department of Defense regarding

proposed enhanced interrogations techniques, in providing Rule of Law support for nation

building operations from Bosnia to Iraq to Afghanistan, and acting in concert with NATO

countries and their military attorney in the context of a NATO exercise.

Speakers: Dana K. Chipman, Hon. Kenneth G. Gale , Jeffrey Colwell, Thomas Romig

“The Canadian Dilemma” or

“Lawyers Make Deals Everywhere”

The following is not the opinion of the U.S. Courts, the U.S. Army, NATO, or my Mom.

This all happened 16 years ago –

“Old men forget; yet all shall be forgot, But he'll remember, with advantages, What feats he did that day”

Henry V, Act IV Scene iii.

This presentation is Unclassified

One of 16 active Infantry Divisions in the U.S. Army. 8 of these are in the National Guard.

An Infantry Division is composed of about 15,000 – 20,000 soldiers.

Commanded by a Major General (two stars). Headquarters is at Fort Leavenworth and is part of the Kansas National Guard Staff Judge Advocate is member of commander’s personal staff and is chief counsel for the Division.

An international sea-based NATO exercise

- 6 NATO participants: US, Canada, UK, Germany, France, and Denmark

- 27,000 individual participants

- USS Mount Whitney, USS Truman Carrier Group, various international ships and aircraft

-

Dates - 16 Oct 00 - 30 Oct 00 Locations

Army Forces (ARFOR), Response Cell, Joint Fire Support Cell, and Joint Intelligence Support Cell aboard USS Mount Whitney (command ship) at sea.

Joint Operations/Intelligence Support Team (JOIST) ashore in Suffolk, VA.

The exercise will comprise two (2) geographically separate scenarios, conducted within the same theatre of operations. ONE SCENARIO (SAVANNAH--SAVFOR) WILL BE A

PEACEKEEPING OPERATION WITH TRAINING EMPHASIS ON THE OPERATIONAL AND STRATEGIC LEVELS, WITH THE COMMANDER, STRIKING FLEET/SECOND FLEET ATLANTIC (COMSTRIKFLTLANT), COMMANDER JOINT TASK FORCE (CJTF) HQ STAFF AS THE PRIMARY PARTICIPANT.

THE SECOND SCENARIO, (KARTUNA—GOSFOR) REVOLVES AROUND THE U.S. NATIONAL JTFEX 01-1. IT WILL BE A PEACE ENFORCEMENT OPERATION WITH TRAINING EMPHASIS ON THE TACTICAL LEVEL AND EXERCISING THE U.S. CARRIER BATTLE GROUP (CVBG), SUBORDINATE STAFFS, AND U.S. AND ALLIED UNITS AS THE PRIMARY PARTICIPANTS.

This will be the first time a JTFEX has been imbedded in another exercise. As a result the exercise will be significantly larger than normal, with international (NATO) participation.

GEOGRAPHY TELARI

N. SABANI

KARTUNA

KHEMIS PROV

KORONA

S. SABANI

FLORIDA

WILLOW ISL

MASTIFF

ADHOCK ISL

W ADHOCK STRAIT

MELBOURNE STRAIT

Telari

TELAR

I

N. Sabani

KARTUNA

KHEMIS PROV

KORONA

S. Sabani SAVANNAH

FLORIDA

Willow

Mastiff

Adhock Boxer

GORDON IS. SPRINGER IS.

CRISIS OVERVIEW

(1 of 2)

• KORONA MAINTAINS

HISTORICAL CLAIM TO

KARTUNA

• SINCE 1995, KORONA HAS

ADOPTED AN INCREASINGLY

HOSTILE STANCE TOWARDS

KARTUNA

• DISCOVERY OF LARGE OIL

DEPOSITS IN KHEMIS LED

KORONA TO REITERATE ITS

CLAIM TO THE REGION

• KARTUNA PRESIDENT

PROPOSED JOINT

EXPLOITATION OF NEW OIL

FIELDS, KORONA REJECTED

Telari

TELARI

N. Sabani

KARTUNA

KHEMIS PROV

KORONA

S. Sabani SAVANNAH

FLORIDA

Willow

Mastiff

Adhock Boxer

GORDON IS. SPRINGER IS.

CRISIS OVERVIEW

(2 of 2)

• KORONA (KO) MAINTAINS

HISTORICAL CLAIM TO

KARTUNA (KA)

• SINCE 1995, KO HAS

ADOPTED AN INCREASINGLY

HOSTILE STANCE TOWARDS

KA

• DISCOVERY OF LARGE OIL

DEPOSITS IN KHEMIS LED KO

TO REITERATE ITS CLAIM TO

THE REGION

• KA PRESIDENT PROPOSED

JOINT EXPLOITATION OF NEW

OIL FIELDS, KO REJECTED

12

KARTUNA

KORONA

TERRAIN

KHEMIS

PROVINCE

200-500

50-200

0-50 FT

KERR RESERVOIR

BRIDGE

COLUMBIA

CHARLOTTE

RALEIGH

GREENSBORO

WINSTON-

SALEM

NORFOLK

HAMPTON

RICHMOND

TERRAIN

KORONA Aggressor KARTUNA Defender FLORIDA Aggressor SABANI Neutral SAVANNAH Neutral / Friendly TELARI Neutral / Friendly

Kartuna

Korona

Mastiff Is.

35

67

5

EAK

11

16

MOST LIKELY ECOA

S. Sabani

Willow Is.

N. Sabani

XX

xx

XX

III

XX

Khemis

Province

III

SF

SF

SF

SF

XX

26

1st Scud BDE

3rd Scud BDE

2nd Scud BDE

X

X

X

III

110

III

120

III

210

III

220

III

320

III

310

IN PREPARATION FOR THE KORONAN GROUND OFFENSIVE, SPECIAL OPERATIONS FORCES CONDUCT

DIRECT ACTION AND PROVIDE TARGETING INFORMATION ON US/KARTUNAN C2, APOD, SPOD,

LOGISTICS AND KEY ASSETS. AIR ASSAULT REGIMENT SEIZES KEY BRIDGE(S) TO FACILITATE

MAIN ATK. KORONAN DIVISIONS ATTACK FROM THE WEST AND SOUTH IOT FIX

KARTUNAN FORCES. EAK (ME), 35TH AR (SE) AND 5TH MRD (SE) ATTACK FROM THE NORTH

IOT SEIZE KHEMIS.

35th Infantry Division HQ participants Commander General

Chief of Staff Operations Officer + 4 Intelligence Officer +5 Artillery Coordinator +1 Air Support Coordinator Combat Engineer +1 Logistics Officer +1 Provost Marshall Air Defense Coordinator Aviation Coordinator Staff Judge Advocate * Public Affairs Officer Civil Affairs Officer Signal Officer Chemical Officer Psychological Operations Officer

Command Ship USS Mount Whitney

' l~ ::, • \: ; ,,.,I .:J

.... f - -iiiill..j ........ ~-· ..... ·-

Duties of the Operational Law Judge Advocate during Exercise

Advise the Commanding General Concerning Rules of Engagement Law of Armed Conflict Issues in Plan Development Law of Armed Conflict Issues as Battle Progresses US Army Legal Representative to Joint Command and NATO participants Meet daily with lawyers from other NATO participant's and US Navy, Air Force and Marines.

The problem: 35th Infantry Division planned an offensive operation for its “notional” brigades. Conventional land tactics called for a defensive plan to protect the rear of the Division from a flanking attack. The engineer plan for the disbursement, by air, of anti-personnel mines to protect the flank. This plan was shared with our allies.

Legal issue 1: Under the Law of Land Warfare, specifically the Hague Convention, art. 23 annex, it is “forbidden . . . to employ arms, projectiles, or material calculated to cause unnecessary suffering.” Though U.S. policy has never considered this provision to implicate the discriminate use of landmines, some disagreement exists.

Legal Issue 2: The U.N. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (1997) does unambiguously prohibit the use of land mines. (The Ottawa Treaty). Every NATO member (at that time) had signed the treaty except the United States. (In 2014 U.S. declared intention to follow the treaty except in Korea).

U.S. Ground operations plan raised at Judge Advocate meeting. Canada had reviewed plan. In additional to being a signor of the treaty, Canada had a criminal law prohibiting its military members from participating in military action in which the treaty was violated. The U.S. Command refused to amend its plan to exclude the use of mines. The Canadians threatened to go home!

Solution: The U.S. Army and the Canadian Army lawyers were called before the Deputy exercise commander, a United Kingdom Vice Admiral. What was the solution?

District of Kansas Legal Revitalization Conference

February 2017

Disclaimer

“The views expressed herein do not represent those of the United States of America, the

United States Courts, the District of Colorado, the Department of Defense, the United States Marine Corps, the Department of Justice, the

Central Intelligence Agency, the Federal Bureau of Investigation, the Republican Party,

Fox News …”

Me

• 25 years on active duty in U.S. Marine Corps – Retired 2012 • United States Naval Academy • Flight School stint – crashed and burned • Communications Officer: Desert Shield/Storm • Law School • Judge Advocate – not a JAG

– Prosecutor – Defense Counsel – Military Judge – Contract Law Attorney – Pentagon Tour – Various schools – Guantanamo

August 7, 1998

Dar es Salaam, Tanzania 11 deaths

Nairobi, Kenya 214 deaths

October 12, 2000

USS Cole 17 deaths

September 11, 2001

Response

• President Bush issues Military Order #1 creating military commissions for: – Members of al Qaida / those engaged, aided or

abetted, or conspired to commit acts of international terrorism

• Military tribunals for violations of the laws of war

• Selects Guantanamo Bay, Cuba as detention and trial site – Beyond the reach of the Constitution and Courts

Office of the Chief Defense Counsel

Chief Defense Counsel for Military Commissions

• Sort of like FPD for Guantanamo Bay • Staff of approx 100:

– 40 Attorneys • Army • Navy • Air Force • Marines • Civilians • Learned Counsel

– Linguists – Investigators – Intelligence Analysts – IT – HR

• Civilian pool of pro-bono counsel

a

GUANTANAMO BAY, CUBA

• •

Challenges in GTMO

• Getting There • Infrastructure • Establishing Client Relationships

– Torture – Cultural Differences

• Enemy or criminals? • National Security vs. Constitutional principals? • Makeshift Legal System

– No precedence – Government changes the rules every time the system fails

• Right to counsel – access and communication • Death Penalty Cases • Speedy Trial • Right to evidence – classified information • Hearsay evidence

My Client

• Ahmed Khalfan Ghailani

• Indicted in SDNY in 1998 for E. African embassy bombings

• FBI’s Most Wanted List

• Captured in 2004 in Pakistan

• 2 years in black sites

• Transferred to GTMO in September 2006

• Charged in Military Commission – facing death penalty

SDNY

• Transferred to SDNY – June 2009

• Counsel election

• Sued DoD

• Denied

• Issues at trial – Speedy trial

– Admissibility of statement

• NG on 284 of 285 counts

• LWOP – ADX Florence