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Response to Terror | COLUMN ONE

War, on Advice of Counsel

Every U.S. strike and raid is vetted by the attorneys versed in international combat rules. Did one ruling help Taliban leader avoid a missile attack?

February 15, 2002|ESTHER SCHRADER | TIMES STAFF WRITER

WASHINGTON — When Air Force targeters in Afghanistan spotted a Taliban convoy rumbling along a road near Kandahar on a dark October night, they asked permission to strike.

A Pentagon lawyer advised against it, fearing civilians might be killed. The convoy moved forward, allowing the Taliban to reinforce troops faced off against the U.S.-backed Northern Alliance.

A week earlier, it was a lawyer, operating at the right hand of commanding Gen. Tommy R. Franks, who at first advised against firing a missile at a line of Jeeps that intelligence officials believed was carrying Taliban leader Mullah Mohammed Omar. The lawyer feared the attack might violate a policy against assassinating a head of state.

By the time missile operators got the go-ahead, the Jeeps had escaped.

The two incidents, each related separately by senior Pentagon lawyers and by military officials involved in the targeting process in Afghanistan, highlight growing tensions in the war room as legal advisors take on a more prominent role in military operations.

In today's war, every bombing run, every missile firing, every raid by U.S. soldiers is vetted by teams of lawyers who are experts on international rules of war.

There are lawyers in the top-secret operations center, called The Tank, deep inside the Pentagon, 24 hours a day, seven days a week, signing off on the legality of raids and strikes. There are lawyers at the Combined Air Operations Center at Prince Sultan Air Base in Saudi Arabia, poring over lists of potential bombing targets. Teams of lawyers based on aircraft carriers brief Navy pilots on what they can and can't shoot before they jet off into Afghan skies. Military lawyers on the ground in Kandahar and Bagram work hand in hand with U.S. commandos. When special operations forces head out on top-secret missions, a lawyer is often at their side.

In the two convoy incidents, accounts differ on whether the lawyers' advice was the critical factor in Franks' decision to hold fire. But the disparate versions of what happened only serve to heighten the controversy over the lawyers' role.

"There's been a decision by the people running this war to rely on the advice of the lawyers to a greater degree than they have before," said one senior Air Force commander privy to war room discussions who agreed to speak on condition of anonymity. "It seems like there has been undue influence given to the lawyers in not just one decision, but many."

As recently as a dozen years ago, the idea of putting lawyers in the war room with commanding officers was unthinkable. But with military operations increasingly constrained by a complex web of international laws, agreements, accords and treaties, lawyers have moved to the forefront.

Lawyers parachuted in with special operations forces to Panama in 1989, flew with Army troops to Haiti in 1994 and were deployed by the hundreds in Kuwait and Saudi Arabia during the Gulf War, sleeping in the sand alongside troops in the field. The lawyers--judge advocate generals, or JAGs in military parlance--reviewed airstrikes over Kosovo from an operations center in Germany and the movements of special operations and Army soldiers in Somalia and Rwanda. They rode into Macedonia with Army brigades and flew in the airborne operations command post over Haiti. They are permanently stationed in the Sinai, South Korea and Kuwait.

"You might say that, for better or worse, we're unleashing an army of lawyers," said Alfred P. Rubin, a former Pentagon lawyer in the office of the secretary of Defense and now a professor at the Fletcher School of Law and Diplomacy at Tufts University.

As their visibility and their power have grown, so has the lawyers' cachet.

"There you are, sitting there with the commanders," said Air Force Lt. Col. Nancy Richards, an operational lawyer deployed for the Iraq, Somalia and Rwanda conflicts, "when he turns and says, 'Lawyer, what do you think, do we have the legal authority?' . . . Just to be able to look at a target the next day and think, I looked at that target and last night they bombed it. It's a unique opportunity."

The unconventional and unprecedented war on terrorism has made the legal thicket even more dense.

In Afghanistan, America's adversaries wore no uniforms and fought without traditional command structures under the leadership of people who never formally declared war on the United States. Led by religious zealots hiding in caves, the fighters waged war for a terrorist network and a militia that bear no relation to governments in the traditional sense.

Warriors shifted sides from one day to the next and hid weapons, ammunition and troops in mosques, houses, markets and cultural sites. It became difficult for U.S. commanders to know whether their forces had hit friend or foe.

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