Judge Advocates in Combat

436 Pages·2014·33.03 MB·English

by  Frederic L. Borch

jUDGE ADVOCATES
IN
COMBAT
Army Lawyers in Military Operations
from Vietnam to Haiti
by
Frederic L. Borch
OFFICE OF THE JUDGE ADVOCATE GENERAL
and
CENTER OF MILITARY HISTORY
UNITED STATES ARMY
WASHINGTON, D.C., 2001
Libruy of Congress Cataloging-in-Publication Data
Borch, Frederic L., 1954-
Judge advocates in combat : Army lawyers in military operations from
Vietnam to Haiti /by Frederic L. Borch
p. em.
Includes bibliographical references and index.
I. Judge advocates- United States- History. 2. United States. Army
Lawyers- History. I. Title.
KF7307 .B67 200 l 2001031309
355.3'4-dc21
First Printing-CMH Pub 70-77
For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402
Foreword
As the U.S. Army has evolved in the past half-century, the Judge
Advocate General's Corps has been an important part of its maturing
ability to provide effective military force to meet a broad range of chal
lenges. Since the opening days ofA merican involvement in Vietnam, the
U.S. Army has been working to meet national secm·ity objectives m1der
close public scrutiny in complex, demanding situations. Those condi
tions call for commanders to make full use of all available staff input,
and the special training of the Staff Judge Advocate has often made the
lawyer one of the most important sources of insight. This volume
recounts numerous instances when new challenges would not have been
met so effectively had that specialized staff work not been available.
At one level this is the chronicle of judge advocates at work in the
theater of active operations. It provides valuable information on the
organization, tasks, and performance of legal offices in a wide array of
activities. The author uses the term "combat" to evoke the theater of
active operations- justifiable shorthand, but calling too little attention
to the operations other than war covered very ably in the last chapter.
Throughout, the reader is introduced to Army lawyers who met unex
pected requirements while working tmder tough, demanding conditions.
At another level, this is the history oftbe evolution of "operational
law"-the concept that put those Army lawyers at the right hand of
commanders during the deployments of the 1990s so that everything
from Status of Forces Agreements to application of the principles of the
Law of Land Warfare would be integrated into the planning and execu
tion of operations such as JusT CAUSE and DESERT STORM as well as the
many "peacekeeping" operations and deployments in support of civil
authorities. This operational focus of judge advocate staff support- in
addition to traditional legal support- has enJ1anced mission success in
the politically charged and militarily ambiguous operations that have
become common in our era.
Commanders and staff officers should read this book to see how
the Army lawyer's role has evolved. Judge advocates should read it
because it offers a shortcut to knowledge that ordinarily is gained only
through experience. Those interested in the Army's history should read
it because it provides details published in no other source. It provides
iii
operational context so that the military lawyer's contribution can be
easily understood against the larger backdrop, and it describes the
lawyer's work in ways that will be accessible to all.
GORDON R. SULLIVAN
Washington, D.C.
General, USA (Ret.)
29 May 2001
iv
The Author
Col. Frederic L. Barch Til is a career Army judge advocate. He has an
A.B. in history from Davidson College, a J.D. from the University of
Notth Carolina at Chapel Hill, an LL.M. in international and compara
tive law from the University of Brussels, Belgium, and an LL.M. in
military law from the Judge Advocate General's School in
Charlottesville, Virginia.
Since entering the Judge Advocate General's Corps in 1980,
Colonel Barch has served in a variety of assignments in the United
States and overseas, including tours at the Infantry Center at Fort
Benning, XVUJ Airborne Corps at Fort Bragg, 21st Support Command
in Germany, and the 41J1 Battalion, 325th Airborne Infantry Combat
Team, in Italy. His area of expertise is military justice, and he taught
criminal law at the Judge Advocate General's School in Charlottesville
and served as a member of the Department of Defense Joint Service
Committee on Military Justice while assigned to the Office of the
Judge Advocate General in the Pentagon. Colonel Barch also super
vised the high-profile prosecution of drill sergeants charged with sexu
al misconduct at Aberdeen Proving Ground and subsequently served as
the Deputy Chief, Government Appellate Division, U.S. Army Legal
Services Agency. He also served as Staff Judge Advocate, U.S. Army
Signal Center, Fort Gordon, Georgia. Colonel Borch is presently
attending the Naval War College, Newport, Rhode Island. He is the co
author of two books: The Purple Heart: A Hist01y ofA merica:~ Oldest
Milifa1y Decoration and The Soldier:~ Medal: A History of the US.
Army :s- Highest Award for Non-Combat Va/01:
v

Preface
This is a narrative history of Army lawyers in military operations from
L9 59-when the first judge advocate reported for duty in Vietnam-to
1996-when the last Army lawyers participating in United Nations
operations in Haiti returned home to the United States. Its principal
theme is the evolution of the role ofj udge advocates in military opera
tions and how this development has enhanced commanders' ability to
succeed. As thjs role changed dramatically during this period, Judge
Advocates in Combat explores how soldier-lawyers have evolved from
their Vietnam-era responsibility simply to provide traditional legal ser
vices- military justice, claims, legal assistance, administrative law-to
today's practice of "operational law" in which Army lawyers provide a
broad range of legal services that directly affect the conduct of an oper
ation. This new judge advocate role, and the accompanying emergence
of operational law- a process that came to full bloom in the 1990s- has
increased commanders' ability to achieve mission success in a variety of
environments, from conventional combat to operations other than war.
The book explores this theme by examining what individuals did as
judge advocates in Vietnam, Grenada, Panama, the Persian Gulf,
Somalia, Haiti, and selected other deployments. When people read
about those who served at home and abroad as soldier-lawyers, they
want answers to at least three questions: Who was there? What did they
do? How did that enhance the commanders' ability to accomplish the
assigned mission?
In answering the first tv\'o questions, Judge Advocates in Combat
identifies the men and women who deployed in a particular military
operation, and it looks at selected courts-martial, military personnel
and foreign claims, legal assistance, administrative and contract law
issues, and international and operational law matters handled by those
judge advocates. Examining who was there and what they did is impor
tant, because it captures for posterity the contributions of judge advo
cates of an earlier era. Viewed from this perspective, Judge Advocates
in Combat is a contemporary branch history. But, in light of the princi
pal theme-the evolution of the Army lawyer's role from that of a spe
cial staff officer providing traditional legal support to the current role
in which judge advocates are integrated into operations at all levels-
vii
Judge Advocates in Combat answers the third question by also focusing
on those events where Army lawyers blazed new paths, enhancing mis
sion success in nontraditional ways.
During the Vietnam era, lawyers who took on nontraditional roles
did so on an individual basis; there was no institutional recognition that
such matters were appropriate issues for judge advocates. In 1960, for
example, during a coup d'etat led by disaffected South Vietnamese
paratroopers, Army judge advocate Lt. Col. Paul J. Durbin left the safe
ty of his home to observe the rebels in action. As a result, Durbin was
able to see-and explain-to an American adviser accompanying the
coup leader that "advising" this Vietnamese paratroop colonel did not
include participating in a rebellion against the Saigon government. Lt.
Col. George C. Eblen, who followed Durbin as the lone Army judge
advocate in Vietnam, decided to begin monitoring war crimes commit
ted by the VietCong against Americans. Eblen's decision to tape record
all interviews of U.S. personnel claiming mistreatment resulted in a
command policy that a military lmvyer participate in all future deb rief
ings involving war crimes. Again, like Durbin, Colonel Eblen stepped
outside his traditional role.
Similarly, then-Col. George S. Prugh, the staff judge advocate for
the Military Assistance Command, Vietnam (MACV), from 1964 to
1966, spearheaded a number of unique efforts ranging from compiling
and translating all existing Vietnamese laws to establishing a legal advi
sory program that monitored the real-world operation of South
Vietnam's criminal justice system. Of particular significance was
Prugh's successful effort in persuading the South Vietnamese military
that its conflict with the VietCong and North Vietnamese was no longer
an internal civil disorder. This was a significant achievement for, once
its military leaders had accepted the international nature of the conflict,
the South Vietnamese government also acceded to this view-and
agreed that the provisions of the 1949 Geneva Convention on Prisoners
of War would be applied.
Persuading the South Vietnamese armed forces to change their
position concerning the conflict- and therefore their vie\v of the status
and treatment of VietCong and North Vietnamese prisoners- was not
a judge advocate responsibility, and Colonel Prugh had not been tasked
with resolving this matter. Recognizing, however, that the increasing
number of Americans captured by the VietCong and North Vietnamese
would have significantly enhanced chances to survive if South Vietnam
applied the Geneva Prisoners of War Convention to enemy soldiers in
its custody, Prugh and his staff spearheaded the efforts to bring about
this change.
viii