Military Control in a Military Milieu - A Functional Necessity
By Marion Edwyn Harrison (04/26/07)
Most people who have served in the Armed Forces undoubtedly understand that in a military setting efficiency demands that command military personnel control the activity. “Hangers-on” of many varieties, including some contractors, not always are helpful in fulfilling the military mission. At times they are detrimental. The increasingly more ubiquitous media rarely are helpful. Often they are a bother - that is, an added responsibility to the uniformed personnel who are attempting to do their duty. These considerations obviously are all the more compelling in a combat milieu - perhaps even more so in the present Iraqi War context, in which our American military personnel are spread out and too often the victims of suicide terrorists who are not identifiable until they have blown up themselves and their victims.
This phenomenon is an added twist, to use the trite phrase, in the type of warfare which Free Congress Foundation’s military scholar William S. Lind uniquely has labeled Fourth Generation Warfare - combat in which one sovereignty does not fight another but in which the enemy mostly is a terrorist and non-traditional military mixture, guided by a sacrificial religious or other impetus rather than nationality.
The media, somewhat inexplicably, has reported very little about the fact that Public Law 109-364 extends Uniform Code of Military Justice (“UCMJ”) jurisdiction over various civilians - e.g., contractors, contractors’ employees, some journalists. The extension is a logical, and arguably very much needed, continuum of somewhat expanded jurisdiction enacted in 2001 and 2004. Because evidence of implementation of PL 109-364 is sketchy, it remains to be seen how useful and effective this broader jurisdiction will prove to be. In due course more than a few UCMJ and Department of Defense regulatory amendments may be helpful, perhaps even necessary.
Those who have not served in the military usually, and understandably, do not appreciate the complication and difficulty inherent in operating an effective command. Many of us who have served also do not, sometimes cannot, appreciate it because of a limited frame of reference. It unfortunately is not difficult to name a Member of Congress, for example, who served with distinction, sometimes in combat, but whose frame of reference necessarily is so constricted by his duty assignments that he has no broad comprehension of military operational needs but publicly comments as though he had such a perspective.
I graduated from The Infantry Officers School at Fort Benning (which we jokingly, sometimes admiringly, termed “Benning School for Boys”) and The Judge Advocate General’s School (“TJAGS”); served as a judge advocate officer in France and at the Pentagon; later in limited Reserve duty; never in actual combat; years later, as a civilian, on TJAGS Board of Visitors (by appointment of the Secretary of the Army). Those frames of reference inherently were limited but were considerably broader than that of many more “real” soldiers who lacked the opportunity for perspective as to how various military operations worked - among them, two schools, USAREUR COMZ two-star/later three-star command in Orléans, USAREUR four-star command in Frankfort, EUCOM higher command near Paris, OTJAG at the Pentagon, Secretary of the Army, occasional short-term field duty, so on. Sometimes I was reminded of that witty - alas, long out of print - World War I vintage book THE GOOD SOLDIER SCHWEIK, which, amid remarkable humor, recounted by a talented soldier in the field the confusion in the Austro-Hungarian Army.
The point simply is that few can know the complexity and diversity of levels and scenarios of military operation but that commanders at every level must have the maximum reasonable authority to control their operations. This control must include the functional equivalent of command over civilians who more and more these days are functioning with the military complex.
This column is not the place for a legal analysis of, or speculation about, the changes and possible changes in UCMJ jurisdiction and military command function. As a generalization, the UCMJ courts-martial system works well, whether a full trial or a more summary Article 15 proceeding. The military personnel trying facts on military courts are more relevantly experienced and far less susceptible to emotion and irrelevance than so many civilian juries. Suffice it to say the most recent change in the law if vigorously and meaningfully implemented should be a major plus in the more and more difficult task of operating a military force in which media are “embedded” and contractors, contract employees and other civilians are ubiquitous.
Marion Edwyn Harrison, Esq. is President of, and Counsel to, the Free Congress Foundation
(Printer friendly version) 
Send Feedback
