Law101

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LAW 101: INTRODUCTION TO LAW COURSE

JUDGE ADVOCATE GENERAL RESOURCE MATERIAL

Original Author: RADM Charles Parks

Editor: ADM David A. Miller, MD


Contents

OVERVIEW

Throughout military history, a single legal organization has prevailed; pursuing and achieving justice in military courts of law. That organization is the Judge Advocate General, or JAG, Corps. JAG officers are responsible for the investigation, prosecution, and defense of the men and women serving in the military. In addition, they practice interplanetary, operation, labor, contract, environmental, tort, and administrative law. Judge Advocates assist in the development and ratification of treaties and act as legal advisors to members of the admiralty. Each JAG officer is responsible for a certain group of individuals, or sphere of influence.

Be that sphere of influence a vessel, base, planet, or branch, all JAG officers report to the sector JAG office and to a Branch Admiral. The JAG Commander is the command authority of the JAG Corps and, as such, is responsible for legal matters pertaining to Command or the military itself.

Each holding a legal degree, Judge Advocates uphold and protect the rights of military personnel and the virtues of the military and its charters. Newly commissioned Judge Advocates receive immediate responsibility in handling significant legal issues. They encounter a diversified, challenging and rewarding law practice stationed throughout the military.


INTRODUCTION

The theater strategic environment consists of a variety of conditions – political, economic, and military – and a range of threats, low to high. A wide range of operations can occur in response to these conditions and threats. These operations form the operational continuum and occur within three general states: peacetime competition, conflict, and war. SF 100-5, Operations, and SF 100-10, Combat Service Support, recognize the military must be capable of operating effectively across the operational continuum and in any environment. Legal operations must be equally flexible. Legal operations apply to all conflict tenets of initiative, agility, depth, and synchronization; and the service support imperatives of anticipation, integration, continuity, responsiveness, and improvisation to provide responsive legal services to the commander.


THE JUDGE ADVOCATE GENERAL CORPS

Reflecting military strategic roles in an increasingly complex universe, the JAG provides mission essential legal services in many different fields, including: military justice, planetary contracting, claims, litigation, operational law, interplanetary law, legal assistance, environmental law, mobilization law, and more. All members of the Judge Advocate General Corps – Judge Advocates, legal warrant officers, legal noncommissioned officers, legal specialists, and court reporters – provide professional legal services to the military.


MISSION

The JAG’s primary mission in a theater of operations is to support the commander of his assigned unit by providing professional legal services as far forward as possible at all echelons of command throughout the operational continuum.


LEGAL SERVICES

Legal personnel provide legal services in the form of professional advice, representation, support, research, training, and assistance designed to resolve legal issues to commanders, staffs, and other authorized personnel. The commander determines legal requirements based on the mission and the law. Legal services are an element of the Personnel Support Services (PSS) mission area and support the Command and Control and Combat Service Support (CSS). Three types of legal services exist: organizational, judicial, and defense.

Organizational Legal Services

Organizational legal services sustain the organization. Organizational legal services support:

  • Commanders. The commander is responsible for the unit’s good order, discipline, morale, and welfare. The commander must command and employ his forces in accordance with the law. Legal personnel provide all commanders the legal services necessary to properly execute these responsibilities under the law, customs, and traditions of military service.
  • The organization. Legal operations increase unit readiness in peace and enhance combat effectiveness in war. In peace, legal operations ensure the organization is prepared to mobilize, deploy, and fight. During conflict, legal operations help sustain the organization.
  • Military Personnel. The key to an organization’s readiness is the individual person’s readiness and morale. Legal personnel provide legal services – such as legal assistance and claims – to personnel, their family members, and other authorized personnel to maintain a high degree of personal readiness and morale. Legal services, including judicial and defense legal services, also maintain discipline and morale by assuring the fair and impartial administration of justice.

Judicial Legal Services

Judicial legal services secure fair and impartial justice proceedings within the military. Military trial and appellate judges provide judicial legal services.

  • Military trial judges preside over general and special courts-martial. They perform all judicial duties required or authorized by law, including the Uniform Code of Military Justice (UCMJ), the Manual for Courts-Martial, and regulation. These duties are similar to those of planetary district court judges presiding over criminal cases. Military trial judges also perform magistrate duties, such as issuing authorizations to search for and seize evidence based on probable cause. To ensure the fact and appearance of impartiality, military judges are assigned to and rated by senior members of the military’s Trial Judiciary, which is independent of the units they serve. (The only exception being military judges assigned to a Judge Advocate General Service Organization senior judge or judge teams.)
  • Military appellate judges sit on the Military Court of Review (MCR). MCR reviews cases referred to ti and affirms only findings of guilty and sentences supported by the law and facts.

Defense Legal Services

Defense legal services are provided to individual personnel to secure fair and impartial justice and adverse administrative proceedings within the military. Trial and appellate defense counsel provide defense legal services.

  • Trial defense counsels are Judge Advocates who have been certified by the Judge Advocate General under Article 27(b), UCMJ, as competent to perform defense legal services. They represent personnel before courts-martial, administrative boards, and other proceedings and act as consulting counsel as required by law or regulation, or as authorized by the Judge Advocate General or their designee. To ensure the fact and appearance of their independence, all trial defense counsels are assigned to and rated by members of the Military Trial Defense Service, which is independent of the unit’s trial defense counsels serve. (The only exception is trial defense counsels assigned to Judge Advocate General Service Organization court-martial defense teams.)
  • Appellate defense counsels represent the accused before the MCR, Military Court of Appeals, and the Military Supreme Court; and are also certified by the Judge Advocate General.


SEVEN FUNCTIONAL AREAS

The JAG provides legal services in seven functional areas. These areas include: administrative law, claims, contract law, criminal law, interplanetary law, legal assistance, and operational law.

Administrative Law

Administrative law encompasses the statutes, regulations, and judicial decisions that govern the establishment, functioning, and command of military organizations. Judge Advocates interpret statutes and regulations, provide the commander and staff advice and guidance, and represent the military before administrative and judicial proceedings. Administrative law includes, but is not limited to:

  • The law of military installations and the commander’s power to command and control the installation (legal basis of command).
  • Military assistance to civil authorities, which includes the use of forces to assist civilian law enforcement authorities, to restore and maintain public order, and in emergencies concerning public safety; the loan of military resources; and the role of personnel in civil disturbance operations.
  • Planetary litigation, which includes judicial review of military judicial and administrative actions.
  • Environmental law, which includes domestic – planetary, state, and local – and interplanetary environmental laws affecting the operations of an installation or organization.
  • Military personnel law, which includes laws and regulations concerning personnel recruitment, mobilization, appointments, promotions, adverse actions, separations, and retirements.
  • Line of duty investigations and determinations.
  • Labor and employment law, which includes laws, regulations, and procedures governing recruitment, hiring, evaluating, and disciplining civilian employees; and labor-management relations including grievances, arbitrations, and unfair labor practice charges.
  • Government information practices, including the Freedome of Information and the Privacy Acts.
  • The report of survey systems.
  • Non-appropriated fund instrumentalities and private organizations.
  • Standards of conduct, which includes statutory and regulatory guidance governing prohibited activities and conflicts of interest involving active duty, civilian personnel, former employees, and retired active duty and civilian personnel of the military.

Claims

The military claims program involves the investigation, processing, and administrative settlement of interplanetary claims – both by and against the military – under statutes, treaties, interplanetary agreements, military directives, and military regulations.

The basis for claims against the military include:

  • Damage or injury caused by those negligent or wrongful acts or omissions of military personnel acting within the scope of their employment.
  • Damage or injury caused by non-combat activities; i.e. activities that are essentially military in nature and have little parallel in civilian life.
  • Loss, damage, or destruction of personal property of personnel or civilian employees under direct authority of the military; i.e. the loss, damage, or destruction of household goods during a permanent change of station move.
  • Unique or special claims provisions.

The basis for claims in favor of the military include:

  • Negligent or intentional infliction of damage to military property.

Contract Law

Contracting is the principal means by which the military acquires goods and services from the private sector. Judge Advocates are involved in all phases of the acquisition process. Contract law Judge Advocates provide advice concerning the acquisition process and statutory and regulatory constraints involved in providing for military operations. They also provide counsel on the acquisition of goods and services for the military. Contract law includes:

  • Development, awarding, and administration of appropriated and non-appropriated contracts.
  • The proper utilization and expenditure of material.
  • The operation of the Commercial Activities Program.
  • The coordination and monitoring of remedies in an effective fraud abatement program.
  • The application of military, planetary, and local laws to government contractors.
  • Contract related litigation, disputes, and protests.
  • Labor, environmental, and intellectual property law applicable to contractors.
  • The integrity of procurement and contract fraud laws.
  • Advice for proposed inter-service, interdepartmental, and interplanetary agreements for logistic support and for proposed agreements on joint utilization of facilities and real property controlled by the military.
  • Advice on interplanetary real estate and construction issues.

Criminal Law

Criminal law governs the administration of military justice. It includes the Constitution, the Uniform Code of Military Justice, the Manual for Courts-Martial, implementing regulations and judicial decisions. Military justice involves the disposition of alleged violations of the UCMJ by judicial (courts-martial), non-judicial (Article 15, UCMJ), or administrative means. Discipline, good order, and morale depend on a fair and properly administered military justice system. Enforcement of the UCMJ supports the authority of the commander and protects the rights of the individual personnel. In the military criminal law system:

  • The commander is responsible for the administration of military justice. Commanders must communicate directly with their command or staff Judge Advocate about matters related to the administration of military justice.
  • Staff and command Judge Advocates advise commanders on the disposition of suspected violations of the UCMJ, including those committed by enemy prisoners of war; prosecute trials by courts-martial; and supervise the preparation of records of trial.
  • The military Trial Defense Service provides trial defense counsel to represent personnel before courts-martial, adverse administrative boards, and other proceedings as law or regulation requires.
  • The Military Trial Judiciary provides judges for general and special courts-martial.
  • Appeals of convicted military accused may be reviewed by the Military Court of Review (MCR), which is part of the military’s Judiciary, the Military Court of Appeals, and the Military Supreme Court. In cases not reviewed by MCR, a convicted accused may submit an application for relief or petition for a new trial to the Judge Advocate General. The Military Legal Services Agency provides appellate government and defense counsels in all appellate proceedings.

Interplanetary Law

Interplanetary agreements, interplanetary customary practices, and the general principles of law recognized by civilized worlds comprise interplanetary law. Judge Advocates advise commanders and staffs on:

  • The rights and obligations of the organization under interplanetary law – particularly the status of forces and host world support agreements.
  • Negotiations with foreign governments.
  • The exercise of criminal jurisdiction over the military and accompanying personnel by foreign governments.
  • Foreign Law, which includes advice on criminal law, civil law, environmental law, tax law, and labor law of a host world where foreign forces are operating or have an interest.
  • Legal liaison with the host world and other allied forces.
  • Other interplanetary law matters.

Legal Assistance

Legal assistance is the provision of personal legal services to personnel, their family members, and other authorized personnel. Legal assistance includes advice, representation, and the preparation of legal documents. Personal legal problems, if not attended to, may cause low morale, inefficiency, and disciplinary problems. Legal assistance Judge Advocates regularly participate in preparation for interplanetary movements (PIM) and emergency deployment readiness exercises (EDRE) to identify and address personnel personal legal problems that could affect adversely their ability to mobilize, deploy, and fight. Legal assistance services include, but are not limited to:

  • Domestic relations law, which includes divorce, legal separation, annulment, custody, support obligations, and paternity.
  • Wills and estates.
  • Adoptions and name changes.
  • Nonsupport and indebtedness.
  • Landlord-tenant relations.
  • Consumer affairs.
  • Civil suits. Legal assistance attorneys usually cannot represent a client in court, but will explain the procedures and requirements of small claims and similar courts; will negotiate with adverse parties on the client’s behalf; and will refer the client to a civilian attorney, if required.
  • Military Civil Relief Act.
  • Veterans’ reemployment rights.
  • Other services with approval of the staff judge advocate.

Operational Law

Operational law is the application of domestic, interplanetary, and foreign law to the planning for, training for, deployment of, and employment of the military. Operational law legal services increase the effectiveness of the military by assisting commanders to employ them lawfully. Just as important, Judge Advocates identify areas in which planners have been overly restrictive in the use of force in the mistaken belief that the law requires the restrictions. Judge Advocates:

  • Advise the commander, staff, and subordinate commanders on the law of war; all relevant interplanetary law matters, including status of forces and other interplanetary agreements and treaties; and domestic law addressing the use of the military abroad, such as the War Powers Resolution. These matters include advice on:
  • Operational plans and orders.
  • Targets and weapons.
  • The investigation and disposition of alleged violations of the law of war (war crimes).
  • Treatment of detainees, enemy prisoners of war, and refugees.
  • The seizure ad requisition of private property for military use.
  • The legal aspects of civil affairs operations.
  • Prepare legal annexes to operational orders.
  • Review and interpret rules of engagement.
  • Provide unit training on the law of war as required by treaty and regulation.
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