It was a bizarre kind of "friendly fire," one where not a single "friendly" life was directly lost. Yet it was still one of the worst setbacks in U.S. military history. Although the enemy gained not a single inch of ground, the joint force commander, lieutenant General Ricardo Sanchez, characterized the outcome as "clearly a defeat"1 for his forces. Few dispute that the events at Abu Ghraib inflicted operational effects just as damaging as any combat-imposed loss.
The highly-publicized reports of the Abu Ghraib prison abuse scandal2 energized the Iraqi insurgency and eroded vital domestic and coalition support. Most damaging was the negative reaction of ordinary Iraqis, a constituency whose backing is essential to strategic success. A 2004 poll found that 54% of them believed all Americans behave like those alleged to have taken part in the abuse.3 So adverse were the strategic consequences that it is no overstatement to say that Americans—and will continue to die—as an indirect result of this disciplinary catastrophe.
All of this should be an object lesson for the joint force commander (JFC) about the operational impact of indiscipline on modern war. JFCs have traditionally considered troop behavior largely an internal component responsibility. The long shadow of Abu Ghraib dictates, however, that joint commanders take a new approach. Force discipline is too central to operational success to leave entirely to the components.
The key lesson of Abu Ghraib for JFCs is, as one publication put it, that "the rule of law matters, even where America's worst enemies are concerned."4 This article will examine why that is, and discuss how adherence to law is becoming a "center of gravity." It will further consider the emerging role of law as a weapon of choice for many adversaries, how force discipline is vital to countering that development, and offer suggestions as to how a JFC might tackle this complex aspect of 21st century conflicts.
Law as a Center of Gravity
How does a disciplinary issue become a strategic factor? Surprisingly, the answer has much to do with America's military dominance. Few adversaries can hope to defeat the U.S. in any kind of conventional force-on-force clash. Instead, they seek asymmetric solutions. Unfortunately, Americans too often think of asymmetric warfare in exclusively technological terms (e.g., computer warfare), or simply focus on the symptoms of an asymmetric strategy (e.g., countering roadside explosives). Our enemies, however, have another view.
Historically, the U.S. seeks to defeat adversaries by destroying the enemy's physical capability to wage war. Our adversaries are keenly aware of America's overwhelming military might. They do not seek to militarily defeat the U.S., but to separate the people from the military and the government; in short, to erode will.
Law is increasingly employed to accomplish that end. Indeed, "lawfare," the strategy of using or misusing law to accomplish operational objectives, is emerging as a leading means of asymmetrical warfare.5 There are several permutations of lawfare, but a prominent one has adversaries seeking to take advantage of deviations from the rule of law by U.S. forces to create public hostility towards the American military effort.
Adherence to the rule of law has become, literally, a "center of gravity." Professor William Eckhardt describes the enemy's lawfare technique:
Knowing that our society so respects the rule of law that it demands compliance with it, our enemies carefully attack our military plans as illegal and immoral and our execution of those plans as contrary to the law of war. Our vulnerability here is what philosopher of war Carl von Clausewitz would term our "center of gravity."6
Abu Ghraib illustrates that even allegations of individual wrongdoing can suffice for a lawfare strategy if they create the desired hostility in the body politic. Professors W. Michael Reisman and Chris T. Antoniou warn that, regardless of the worthiness of the political objective, public support can erode rapidly "if people believe that the war is being conducted in an unfair, inhumane, or iniquitous way."7
Thus, if adversaries can portray American forces as acting in an "unfair, inhumane, or iniquitous way," they may be able to win a victory just as real as if it were achieved by force of arms. What facilitates this strategy is the influence of technology-empowered news outlets that beam reports and images almost instantaneously around the world. Quite often the media becomes a prime instrument of lawfare "because winning modern wars is as much dependent upon carrying domestic and international public opinion as it is on defeating the enemy on the battlefield."8
The power and immediacy of information technologies gives the behavior of troops at every level strategic significance. Consider retired Marine Corps commandant General Charles C. Krulak's conceptualization of what he calls the strategic corporal:
The inescapable lesson of Somalia and of other recent operations. . . .is that their outcome may hinge on decisions made . . . . and by actions taken at the lowest level. . . .In many cases, the individual Marine will be the most conspicuous symbol of American foreign policy and will potentially influence not only the immediate tactical situation, but the operational and strategic levels as well. His actions, therefore, will directly impact the outcome of the larger operation; and he will become. . . .the Strategic Corporal.9
The aftermath of the prisoner abuse cases amply demonstrates the efficacy of General Krulak's thesis. Indeed, the growth of lawfare spurred by today's global media is yet another demonstration of how technology can transform the conduct, if not the nature, of war in unexpected ways—and this is why military justice and force discipline, once the exclusive province of the components, ought to now be of mounting concern to the JFC.
Discipline as the Key to Command and Control
Disciplinary authority is intrinsic to genuine command and control. Absent an enforcement mechanism and the power to use it, a commander has no real "control" over assigned forces. This is just as true for the joint force commander as for any other. Accordingly, the Goldwater-Nichols Department of Defense Reorganization Act of 198610 explicitly designated combatant commanders as courts-martial convening authorities, and gave them the function of "coordinating and approving those aspects of . . . .discipline necessary to carry out missions assigned to the command."11
The Manual for Courts-Martial12 and joint doctrine make it clear that subordinate JFCs have disciplinary power in their own right. Notwithstanding these legal authorities, joint doctrine suppresses the joint commander's use of military justice tools by indicating that discipline matters are usually handled by service components.13 Given this doctrinal impetus, it is not surprising that no combatant commander has ever convened a court-martial. Indeed, joint or "purple" courts-martial of any type are extremely uncommon. The few that have taken place are complex undertakings because their rarity precludes the evolution of accepted processes and procedures.14 Joint discipline is not yet normalized within the armed forces.
Thus, as a practical matter, JFCs seldom take disciplinary actions themselves. Moreover, it would be difficult to do so without appearing to be micromanaging a component. This is especially so if one considers how discipline unravels in a military organization: it begins with seemingly minor infractions at the lowest levels. In fact, in one of the earliest investigations of the Abu Ghraib allegations, Major General Antonio Taguba reportedly concluded that discipline was "lax" in the unit whose members were primarily responsible for the abuse. For example, he found that "[u]niform dress codes were not enforced; soldiers regularly failed to salute."15
These were warning signs. Uniforms, grooming standards, military customs and courtesies, are all indicia of the unique status of the profession of arms.16 When troops abandon them, it may signal an erosion of the warrior's ethic that is the ultimate bulwark against brutal behavior in war.17 Conversely, adherence to such standards is an indicator of individual self-discipline, something of note given that the Army inspector general concluded that "individual discipline failures led to detainee abuse."18
Vice Admiral Albert T. Church's investigation, which addressed not only Abu Ghraib but also detainee abuse elsewhere, highlighted another possible cause of the indiscipline:
[T]he nature of the enemy, and the tactics it has employed in Iraq (and to a lesser extent, in Afghanistan) may have played a role in this abuse. Our service members may have at times permitted the enemy's treacherous tactics and disregard for the law of war—exemplified by improvised explosive devices and suicide bombings—to erode their own standards of conduct.19
Admiral Church's report went on to cite as an example of this phenomena an episode from August 2003, several months before the Abu Ghraib events. In that case an artillery unit commander abused a prisoner by firing a weapon near the detainee's head in an effort to coerce him into cooperating with an interrogation. As a result, the Army relieved the lieutenant colonel of command but elected to impose only nonjudicial punishment—a disposition limited by law to minor offenses.20
Regrettably, the officer's misconduct was widely justified by what many perceived as the exigencies of a war waged by a savage enemy.21 By treating a field grade commander's crime so lightly, the Army may have unintentionally implied that criminal behavior towards prisoners would be punished, if at all, as a minor matter.
The Proper Role of the Joint Commander
Clearly, today's joint force commanders need to be concerned about adherence to legal standards by component forces. Yet the practical problem of personal involvement in the administration of military justice is daunting for JFCs immersed in combat operations. Additionally, few have supporting legal staffs sufficient to perform the necessary administration on a substantial, continuing basis. Realistically, the actual disciplinary process in specific cases must ordinarily remain at the component level.
However, this de facto attenuation of disciplinary authority is sustainable only where JFCs exercise explicit and determined leadership and oversight. Several recommendations are, therefore, in order:
JFCs must insist upon regular, detailed briefings from components concerning the status of discipline. The JFC can then spot trends and take action as appropriate to "promote the efficiency and effectiveness" of the command.22 Ordinarily the JFC's staff judge advocate can facilitate this process, but, if necessary, the JFC should establish a joint agency to monitor disciplinary issues.
JFCs must be prepared to personally exercise military justice authority when dictated by the needs of morale and discipline. Such cases may be relatively rare, but could arise, for example, in cases involving those in leadership positions. Thus, developing better guidelines and procedures for conduct of joint disciplinary actions is a must.
JFCs should encourage and facilitate feedback about morale and discipline from those outside the chain of command. In fact, Congress mandates that The Judge Advocate Generals of the respective services "make frequent inspection in the field in supervision of the administration of military justice."23 Unfortunately, notwithstanding the expertise of senior military lawyers, these inspections are frequently misunderstood as simply "tourist" visits24 by legal personnel rather than the broad-based assessments Congress intended, so their full potential is seldom realized.
Moreover, although there are scores of flag officers in joint billets, none are judge advocates, and none has a military justice oversight mandate akin to that of the service JAGs—a deficiency in joint architecture needing rectification. Regardless, the JFC should also seek out chaplains, medical personnel, senior noncommissioned officers, and others with the ability to get "ground truth" as to the disciplinary environment so as to deal with potential issues while they are still embryonic.
JFCs must establish an unambiguous disciplinary policy and philosophy. While JFCs do issue general orders establishing rules applicable to all forces,25 it is vitally important that JFCs seize opportunities to express their views and emphasize the relationship of force discipline to operational success.
Among the concepts the JFC may wish to emphasize is the importance of addressing minor disciplinary infractions before they mushroom into major disciplinary implosions as happened at Abu Ghraib. This is not to suggest that commanders become martinets insensitive to the realities of intense combat environments, but rather to advocate for recognition of the eternal verities of the profession of arms. Field Marshal Lord Slim, the Allied commander who successfully fought the Japanese in Burma—one of the most inhospitable and bitterly contested theaters of World War II—came to this conclusion:
We found it a great mistake to belittle the importance of smartness in turn-out, alertness of carriage, cleanliness of person, saluting, of precision of movement, and to dismiss them as naive, unintelligent parade-ground stuff. I do not believe that troops can have unshakeable battle discipline without showing those outward and formal signs, which mark the pride men take in themselves and their units and the mutual confidence and respect that exists between them and their officers.26
The approach seems to be enjoying something of a renaissance among some U.S. forces in Iraq. The Washington Post recently reported that an Army command near Mosul "launched a crackdown on inappropriately tucked-in shirts, improper use of sunglasses and even swearing."27 Insistence on attention to these and other details of military deportment were obviously adaptations of a "sweat the small stuff" philosophy that imprints a disciplined mindset where it is most needed: in a high-stress environment where the natural instinct is to overlook details with, too-often, fatal consequences. Though some soldiers griped—as soldiers do—the command sergeant major wisely pointed out that "[d]iscipline makes our army stronger than any other army on the planet."28
Observations
While it is certainly true, as one investigation of detainee abuse concluded, that "[c]ommanders are responsible for all their units do or fail to do,"29 it is nevertheless not surprising that no joint commander was found culpable, notwithstanding that the scandal involved as many as 350 instances of abuse in Iraq and Afghanistan.30 The reason is readily apparent: how would they know? Joint doctrine, culture, and practice currently portray disciplinary issues as simply internal service matters of only passing interest to a JFC. Holding them accountable can occur only with fundamental changes in policies and practices about force discipline.
Abu Ghraib amply demonstrates that the hands-off approach must change if for no other reason than to counter the risk to mission success occasioned by lawfare-savvy adversaries ready to capitalize on troop misconduct. Some JFCs recognize the need to evolve accordingly. General James L. Jones, USMC, the Supreme Allied Commander Europe, noted in January 2003:
It used to be a simple thing to fight a battle ... In a perfect world, a general would get up and say, "Follow me, men," and everybody would say, "Aye, sir" and run off. But that's not the world anymore. . . .[Now] you have to have a lawyer or a dozen. It's become very legalistic and very complex.
While joint commanders may not welcome the fact that modern war has become so legalistic, that is the reality. Abdicating responsibility for ensuring compliance with the law to subordinate components leaves a critical aspect of 21 st century warfighting adrift. Apart from moral and professional imperatives, sheer pragmatism should drive the joint commander to scrutinize the disciplinary health of his forces. As military analyst Andrew Bacevich observed in the aftermath of Abu Ghraib, if the erosion of "soldierly standards" is left unchecked, it "could well mean the difference between victory and defeat."32
1 Tom Brokaw, "Gen. Sanchez: Abu Ghraib 'Clearly a Defeat,'" available at http:// msnbc.msn.com/id/5333895/ (last modified 30 June 2004).
2 The Abu Ghraib prison abuse scandal became part of a larger investigation of detention and interrogation activities elsewhere in Iraq, as well as Afghanistan and Guanlanamo Bay, Cuba. See GlobalSecurity.com, Abu Ghurayb Prison Investigation Reports, available at http://www.globalsccurity.org/intell/world/iraq/abugburayb-prison-iiwesligalion.htm (last visited 20 April 2005).
3 John Solomon, "Poll of Iraqis Reveals Anger Toward U.S.," 15 June 2004, Top News from the Associated Press, available at http://apnews.myway.com/article/20040616/D837QRAOO.html (last visited 21 June 2004).
4 "Rule of Lawlessness," Washington Post, 2 May 2004, p. B06 available at http://www.washingtonpost.com/ac2/wp-dyn/A59807-2004May 1 ?lan guage-prinler.
5 See generally, Charles J. Dunlap, Jr., Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts, Carr Center, Harvard University, 2001, available at http://www.ksg.harvard.edu/cchrp/Web%20Working%20Papers/Use%20of%20Forcc/Dunlap2001.pdf .
6 See William George Eckhardt, "Lawycring for Uncle Sam When He Draws His Sword," Chicago Journal of International Law 4, pp. 431, 441 (Fall 2003).
7 W. Michael Reisman & Chris T. Antoniou, The Laws of War XXIV (1994).
8 Kenneth Payne, "Media as an Instrument of War," Parameters, Spring 2005, p. 81.
9 General Charles C. Krulak, "The Strategic Corporal: Leadership in the Three-Block War," Marines Magazine, January 1999, available at http://www.usiric.mi1/cmcarticles.nsf/0/2d90f3fc41087d8525670f0059b50d?OpenDocument.
10 1986 Department of Defense Reorganization Act, Pub. L. No. 99-433, 100 Stat. 1013 (codified as amended at 10 U.S.C.A. § 111 et seq. (1998).
11 10 U.S.C. §164 and 10 U.S.C. §822.
12 See e.g., Manual for Courts-Martial, United States (2002 ed.) [hereinafter "MCM"], Rules for Courts-Martial 201.
13 See ;oint Chiefs of Staff Publication 0-2, Unified Action Armed Forces, IO July 2001,1 ¶V-11 el seq. (24 February 1995).
14 See generally, William H. Walsh and Thomas A. Dukes, Jr., The Joint Commander as Convening Authority: Analysis of a Test case, 46 A.F. L. Rev. 195 (1999).
15 Katherine McIntire Peters, "Duty, Honor, Country," Government Executive Magazine, 1 June 2004.
16 Richard Holmes, Acts of War: The Behavior of Men in Battle (Free Press, 1985), pp. 34-35.
17 See Michael Ignatieff, The Warrior's Honor, (1997), p. 6. Ignatieff argues that the disappearance of true "soldiers" from modern conflicts "may be one reason why postmodern war is so savage, why crimes and atrocities are now integral to the very prosecution of war." He insists that true "warriors have a code of honor; human beings - qua human beings - have none."
18 Joe Burlas, "Individual Discipline Failures Led to Detainee Abuse," Army News Service, 22 July 2004, available at http://www4.army.mil/ocpa/reacl.php?story_id_key=6184 (italics added).
19 Vice Admiral Albert T. Church, III, USN, Review of DoD Detention Operations and Detainee interrogation Techniques, 10 March 2005, available at http://www.defenselink.mil/news/Mar2005/d2005031 Oexe.pdf.
20 See 10 U.S.C. §815.
21 See e.g., Ed Offley, "No Court-martial for Lt Col. West," Military.com, 10 December 2003, available at http://www.military.com/NewContent/0%2C13190%2CDefensewatch_121003J3ffley%2C00.html.
22 MCM, Part 1, para. 3, states that the purpose of military law is, among other things, to "promote efficiency and effectiveness in the military establishment thereby strengthening the national security of the United States."
23 10 U.S.C. §806(a).
24 See e.g., David H. Hackworth, "Iraq Isn't for Tourists or Brass' Entourages," Daily Press, 7 December 2003, p. K3.
25 See e.g., Commander, U.S. Central Command, Prohibited Activities for U.S. Department of Defense Personnel within the U.S. Central Command (USCENTCOM) AOR, 19 December 2000, available at http://www.mnf-iraq.com/command-info/policy-memo/Gcneral%200rders/General_Order_1A_(GO-1A).pdf.
26 John Bayncs, Morale: A Study of Men and Courage (Avery, 2d. ed., 1988) (1967), p. 194 (quoting Field Marshal Lord Slim).
27 Steve Fainaru, "Opinions on Attire Not Quite Uniform," Washington Post, 4 April 2005, p. 11.
28 Ibid.
29 Honorable James R. Schlesinger, et al., Final Report of the Independent Panel to Review DoD Detention Operations, August 2004, p. 43, available at htlp://www.dod.mil/ncws/Aug2004/d20040824fmalreport.pdf.
30 Josh While, "Rights Groups Reject Prison Abuse Findings," Washington Post, 24 April 2005, p. A20, available at http://www.washinglonposl.com/wp-dyn/content/article/2005/04/23/AR2005042301368.html.
31 Lyric Wallwork Winik, "A Marine's Toughest Mission" (Gen. James L. Jones), Parade Magazine, 19 January 2003. General Jones is the Supreme Allied Commander, Europe.
32 Andrew J. Bacevich, "Military Must Squarely Face New 'My Lai'," Los Angeles Times, 31 August 2004, p. B11.
Brigadier General Dunlap is the Staff Judge Advocate of Air Combat Command. He is a distinguished graduate of the National War College. He has served in Korea and England, and deployed for various operations in the Middle East and Africa.