Newton: Modern Military Necessity: The Role & Relevance of Military Lawyers

Michael A. Newton (Vanderbilt Univ. - Law) has posted Modern Military Necessity: The Role & Relevance of Military Lawyers (Roger Williams University Law Review, forthcoming). Here's the abstract:

Modern warfare presents an array of legalistic overtones that require the presence and participation of attorneys of exceptional courage and breadth of expertise in demanding and austere conditions. Military lawyers today must confront complex missions and competing operational demands in representing the needs of operational commanders. The legal dimension of conflict has at times overshadowed the armed struggle between adversaries as the nature of conflict itself has changed. The overall mission will often be intertwined with political, legal, and strategic imperatives that cannot accomplished in a legal vacuum or by undermining the threads of legality that bind diverse aspects of a complex operation together. The newly promulgated United States doctrine for counterinsurgency operations makes this clear in its opening section. Insurgency and counterinsurgency (COIN) are complex subsets of warfare. Globalization, technological advancement, urbanization, and extremists who conduct suicide attacks for their cause have certainly influenced contemporary conflict; however, warfare in the 21st century retains many of the characteristics it has exhibited since ancient times. Warfare remains a violent clash of interests between organized groups characterized by the use of force. Achieving victory still depends on a group's ability to mobilize support for its political interests (often religiously or ethnically based) and to generate enough violence to achieve political consequences. Means to achieve these goals are not limited to conventional forces employed by nation-states. Even in light of the nonnegotiable necessity for accomplishing the mission and the culture that correspondingly prizes the selfless pursuit of duty, lawyers have a vital role that supports rather than impedes the effort to create and sustain combat ready forces.

This Article will address the range of responsibilities incumbent on lawyers in the military and their necessity to the functioning of the military. Though the phrase is most commonly associated with the jus in bello principle that governs the conduct of conflict, Part II addresses lawyers as a military necessity. Military legal expertise provides an irreplaceable source of guidance and insight to military commanders during times of armed conflict. Part III addresses the law of lawyers regarding the implementation of humanitarian law along with the military lawyer's challenge in making legal aspects integral to the actions of military commanders. In Part IV, the continued necessity of military lawyers is discussed due to the military lawyer's ongoing roles as trainers, negotiators, enforcers and reporters.