Law and military operations in Haiti, 1994-95


Material Information

Law and military operations in Haiti, 1994-95 lessons learned for judge advocates
Cover title:
Law and military operations in Haiti, 1994-1995
Physical Description:
1 online resource (vi, 419 pages) : illustrations ;
Center for Law and Military Operations (U.S.)


Subjects / Keywords:
1991   ( fast )
Military law -- United States   ( lcsh )
Soldiers -- Legal status, laws, etc -- United States   ( lcsh )
Judge advocates -- United States   ( lcsh )
Military readiness -- Law and legislation   ( lcsh )
Droit militaire -- États-Unis   ( ram )
Soldats -- Statut juridique -- États-Unis   ( ram )
Militaires -- Statut juridique -- États-Unis   ( ram )
Justice militaire -- États-Unis   ( ram )
Armements   ( ram )
Judge advocates   ( fast )
Military law   ( fast )
Military readiness -- Law and legislation   ( fast )
Soldiers -- Legal status, laws, etc   ( fast )
History -- Haiti -- Coup d'état, 1991   ( lcsh )
Haïti -- 1991 (Coup d'État)   ( ram )
Haiti   ( fast )
United States   ( fast )
History   ( fast )
History.   ( fast )
bibliography   ( marcgt )
federal government publication   ( marcgt )
non-fiction   ( marcgt )


Includes bibliographical references.
General Note:
"11 December 1995."
Statement of Responsibility:
Center for Law and Military Operations.

Record Information

Source Institution:
University of Florida
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
oclc - 56722786
System ID:

Table of Contents
    Front Matter
        Front Matter
    Title Page
        Title Page 1
        Title Page 2
        Title Page 3
    Table of Contents
        Page i
        Page ii
        Page iii
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        Page vi
    I. Introduction
        Page 1
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    II. The military operations and their context
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    III. Lessons learned
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    IV. Conclusion
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    Appendices A through Z
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    Appendices AA through EE
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    Back Matter
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Full Text

This volume was donated to LLMC to enrich its on-line offerings and
for purposes of long-term preservation by

U.S. Army Judge Advocate
General School Library

IN HAITI, CLA 1994-1995


Center for Law and Military Operations
The Judge Advocate General's School oAG SCH- O O-L
United States Army
Charlottesville, Virginia .. .
U.S. Army JAG School Library LI BRARY


Colonel David E. Graham

Deputy Director Inter-Service Secretariat
Major Mark S. Martins Captain David G. Bolgiano


Combat Maneuver Training Center
Major Michael E. Sainsbury

Joint Readiness Training Center Battle Command Training Program
Captain James M Patterson Captain Roger C. Cartwright

Reserve Component Liaisons

United States Army Reserve Army National Guard of the United States
Colonel Keith H. Hamack USAR Lieutenant Colonel Peter Menk, ARNGUS

The Judge Advocate General established the Center for Law and Military Operations in 1988 at the direction of the Secretary of the Army.

The purpose of the Center is to examine legal issues that arise during all phases of
military operations and to devise training strategies for addressing those issues. It seeks to fii1fill this purpose in five ways. First, it is the central repository within The Judge Advocate General's Corps for memoranda, lessons learned, and after-action materials pertaining to legal support for deployed forces. Second, it serves as the Secretariat for the Inter-Service Committee on International Legal Education, which coordinates legal training provided by the separate military services to foreign countries under several statutory programs. Third, it supports judge advocates in the field by disseminating key lessons learned, by building a database of legal issues encountered by previously deployed judge advocates, by creating guides to successftil operational law training and evaluation, and by recommending refinements to doctrine for legal operations Fourth, it integrates lessons learned from deployments into the curriculum of all relevant course-;, workshops, orientations, and seminars held at The Judge Advocate General's School. Fifth, wifThe Judge Advocate General's School, it sponsors conferences and symposia on topics of interest to operational lawyers.

The Director of the Center also serves as Chief, International and Operational Law
Division, Office of The Judge Advocate General. The Deputy Director heads the main office in Charlottesville, where the Center forms an important part of The Judge Advocate General's School and represents the Corps' growing commitment to excellence in operational law.

The contents of this report are not to be construed as official positions, policies, or
decisions of the Department of the Army or The Judge Advocate General. The Center welcomes and solicits suggestions and contributions of relevant operational law materials from the field. Please call 934-7115, ext. 339 (DSN) or (804) 972-6339 (commercial); send electronic mail to; post a message to Major Mark Martins on the Legal Automation Army-Wide Systems (LAAWS) electronic bulletin board service (1313S); or write Major Martins, Center for Law and Military Operations, The Judge Advocate General's School, 600 Massie Road, Charlottesville, Virginia, 22903-1781.

IN HAITI, 1994-95:




11 DECEMBER 1995 ,P 2 997 LIBRARY




1. Introduction .............................................................................. I

11. The Military Operations and Their Context ..................... 7
A. Situation Before the Military Operation ....................... 7
B. Operation UpholdDemocracy ....................................... 13
C. United Nations Mission in Haiti .................................... 22
D. Judge Advocate Support ................................................ 25

111. Lessons Learned ................................................................. 30
A. Rules of Engagem ent ....................................................... 34
1. Be Preparedfor Controversy Over Protection of
Foreign N ationals ....................................................... 37
2. Use Situational Training ............................................ 40
3. Be Willing to Take the Lead in Multinational ROE
D evelop m ent ................................................................ 43
B. International Law ............................................................ 45
1. Understand the International Justification for Use
of Force and the Impact of Domestic Legislation ..... 47
2. Expect to Practice Law Without the Benefit of a
S O F A ........................................................................... 50
3. Understand When The Law of Armed Conflict
Does Not Strictly Apply ............................................... 53
C Intelligence L aw ............................................................... 57
1. Know That Force Protection Can Justify
Collecting Information on United States Persons ..... 58
2. Understand the Different Roles of Military
Intelligence and Military Police ................................. 59
3. Monitor Counter-Intelligence Force Protection
and Use of Intelligence Contingency Funds ............. 62



D. Detention ofNon-members of the Force ........................ 63
1. Begin Planning Earlyfor Detention Issues ............... 65
2. Give Two Judge Advocates Independent Roles in
the Release Determination Process ............................ 67
3. Encourage the Commander to Delegate Authority
to R elease ..................................................................... 70
E. Weapons Buyback and Control ........................................ 72
1. Know and Coordinate With All the Key Players in
the W eapons Program ................................................. 74
2. Be Prepared to Advise Commanders About
Disarming Threats to the Force ................................. 76
3. Understand Applicable Search and Seizure Law ....... 77
F. M edia R elations ................................................................ 78
1. Describe the Processes and Legal Authorities that
Explain M ilitary Actions ............................................. 80
2. Acknowhdge the Legitimacy of the Media's
Presence in Operations Other Than War ................... 82
G. Joint, Inter-Agency, and Nongovernmental
C oordination ...................................................................... 84
1. Use Technical Judge Advocate Channels .................. 85
2. Develop Skillsfor Inter-Agency Coordination .......... 89
3. Maintain Close and Open Communications With
the ICRC and other Nongovernmental Agencies .... 93
H C ivil Affairs ...................................................................... 97
1. Ensure That the Staff Judge Advocate is the Sole
Advisor to the Command on Its Legal Obligations ... 99
2. Understand All Three Legs in the Stool of the
Justice System .............................................................. 102
3. Be Prepared to Mentor Foreign Judges and
M inistry Officials ......................................................... 105
L C rim inal L aw ..................................................................... 107
1. Seek Court-Martial Convening Authorityfor the
Joint Task Force Commander Over All Members
of the Joint Task Force ............................................... 109


2. Emphasize to Soldiers That Neither General
Guidance from the President Nor Personal
Feelings Will Justify Disobedience..................... 112
3. Be Prepared to Conduct Courts-Martial in the
Area of Operations ......................................... 115
J. Legal Assistance ............................................... 116
1. Expect the Rush in Demand for Wills.................. 118
2. Educate Soldiers That Deployment Does Not
Dissolve Their Debts....................................... 119
3. Discourage General Powers of Attorney ......... 122 K. Administrative Law............I................................ 124
1. Advise Commander to Announce Clear and
Straightforward Guidance on "War. Trophies". .... 127
2. Brace for the Flood of Questions About Eligibility
to Obtain Medical Care, Use the Post Exchange,
and Travel in.Military Aircraft ..... ..................... 129
3. Take Initiative to Assist Officers Conducting
Official Investigations...................................... 131
L. Procurement Law and Fiscal Constraints................. 132
1. Know the Terms and Conditions of the LOGCAP .... 134
2. Expect Second-Guessing About Advance Payments
on Acquisitions.............................................. 136
3. Step Forward to Ensure that Operational Funds
are not Expended for Unauthorized Purposes ......... 138
4. Understand the Status of Civilian. Contractor
Employees...*.................................................. 142
M. Claims ............................................. .... 144
1. Appoint Many Judge Advocates to Foreign Claims
Commissions ................................................ 146
2. Make Linguist Support and Protection of
Claimants Leadership Priorities .......................... 148
3. Expect Misdirected and Exaggerated Claims ......... 150


N. Reserve Components ........................................................ 152
1. Assist the Command in Developing a Knowledge
Base About Individual Mobilization Augmentees
and in Securing Individual Reservists With Special
S kills ............................................................................. 154
Z Forge Strong Training and Mutual Support
Relationships with Reserve Units ............................... 157
0. Equipment and Military Training ................................... 158
1. Pack Foodockers Ahead of Time With Forms and
References, to Include Fiscal Law and Intelligence
Law M aterials .............................................................. 160
Z Deploy With 486 Laptops Having Software Used
By the Rest of the Staff and Having
Communications and CD-ROM Reading
C ap ability ..................................................................... 162
3. Conduct Individual Soldier and Officer Training
on Such Things as First Aid, Vehicle and Weapon
Primary Maintenance, and Writing Messages .......... 166
P. Staff Procedures and Operations .................................... 167
1. Keep a Log of All Significant Actions ........................ 168
2 Maintain a Binder With Messages and Other
Authorities Relating to the Operation ........................ 169
3. Obtain Top-Secret Security Clearancesfor the
Staff Judge Advocate, Deputy Staff Judge
Advocate, and Operational Law Attorneys ................ 170

IV C onclusion ........................................................................... 171

Appendix A: Governors Island Agreement .............................. 174
Appendix B: Security Council Resolution 940 ......................... 177
Appendix C. Carter-Jonassaint Agreement ............................. 182
Appendix D: President Clinton Speech of3l March 1995 ...... 184
Appendix E: Legal Personnel Deployed ................................... 189
Appendix F. Judge Advocates Significantly Involved ............. 197


Appendix G:- ROE Soldier Card for Nonpermissive Entry .... 200 Appendix H:- ROE Operation Plan Annex....................... 203
Appendix I.- ROE Soldier Card, 6 September 1994............. 213
Appendix J.: ROE Soldier Card, 23 September 1994 ........... 215
Appendix K:- ROE Vignette Training Sheets ..................... 217
Appendix L: ROE Training Card, 82d Airborne Div........... 235
Appendix M:- Full Text ROE for UNMIH........................ 237
Appendix N.- ROE Soldier Card for UNMIH.................... 250
Appendix 0: SOFA for MNF....................................... 255
Appendix P:- SOMA for United Nations Mission in Haiti .... 273 Appendix Q: Bilateral SOFA Between United States and
Haiti.................................................... 292
Appendix R: Memorandum ofAgreement on Detention
Facility ................................................ 295
Appendix 5:- Nongovernmental Organizations in Haiti........ 297 Appendix T:- Correspondence Pertaining to Appointment of
Force Commander, UNMIH....................... 299
Appendix U:- General Order Number 1 .......................... 312
Appendix V:- Congressional Testimony on Rockwood Case .. 332 Appendix W.: Form Used to Process Requests for Air
Transport .............................................. 344
AppendixX.: Section 607 Agreement Between the United
States and Haiti ...................................... 347
Appendix Y:- Claims Accident SOP ............................... 354
Appendix Z.: Claims Accident Form .............................. 356
Appendix AA: Presidential Callup of Selected Reserve........ 357 Appendix BB: Responses to Survey on Equipment and
Training ................................................ 359
Appendix CC:- Excerpt From Daily Events Log Maintained
by the 10th Mountain Division..................... 373
Appendix DD: Excerpt From Daily Events Log Maintained
by the 25th Infantry Division ....................... 402
Appendix EE: Extract of Events Recorded in SJA Office
Log of the United States Forces Haiti ............. 415



Figure 1: Deployment of Forces Into Haiti ............................. 19
Figure 2: UNM IH Regions ........................................................ 22
Figure 3: CJTF-180 Legal Organization (D+I) ....................... 27
Figure 4: CJTF-190 Legal Organization (D+4) ....................... 28
Figure 5: MNF Legal Organization (D+35) .............................. 29
Figure 6: MNF Legal Organization (D+120) .......................... 29
Figure 7: UNMIH Legal Organization ..................................... 30
Figure 8: Categories of Lessons Learned ................................... 31
Figure 9: Three Legs of the Stool of Justice System ................. 102


With this report, the Center for Law and Military Operations identifies lessons learned for judge advocates from United States military operations in Haiti during 1994 and 1995. The report focuses on providing guidance and practical considerations within the sphere of control ofjudge advocates who may be deployed. The Center prepared the report based on after action reports submitted by judge advocate sections involved in the operation, on materials gathered during a three-day conference attended by participants, on interviews of individual judge advocates who deployed, and on other sources. The Center finds that the Corps delivered legal services well in every functional area, and that doctrine for legal operations is fundamentally sound. Among other suggestions, the Center recommends that judge advocates help develop situational training on rules of engagement, make frequent use of technical channels, step forward to ensure operational funds are not expended for unauthorized purposes, acquire and study legal references pertaining to fiscal law, and keep a log of all significant actions.



1. Introduction

United States military operations in the Republic of Haiti in 1994 and 1995 represented a comprehensive and stunningly successful application of law to fluid and challenging circumstances. Many Americans will recall the tense beginning, when a large combat force entered Haiti peacefully on terms negotiated in the I11th hour by duly empowered civilian representatives of the United States. Many Americans also will recall how these operations soon achieved the ouster of a dictator, the return to power of an elected Haitian president, and the removal of a threat to regional peace and security.1I These aspects of the Haiti deployment not only reaffirmed the rule of law, 2 they also held a symbolic and political importance that aroused great popular interest.

Yet other significant applications of law took place day-to-day, at the individual and unit level. Infantry privates balanced initiative with

ISee infra notes 140-142 and accompanying text.
2 In this report, "law" and the "rule of law" refer to notions of justice generally taken for granted today among western developed nations but not necessarily found in underdeveloped countries, such as Haiti. Hereinafter "law," when used outside the context of a specific rule or statute, will connote any or all of three meanings: an autonomous body of rules, independent from (though influenced by) religion, morality, and other social norms; a vehicle for ordering society and resolving disputes; something which regulates the conduct of governments as well as of individuals. See RUDOLPH B. SCHLESfNGER, COMPAR.ATIV LAW: CASES, TEXT, MATERIALS 80 (Supp. 1994 to 5th ed.). "Rule of law" will connote the notion of a "law-governed" state or community, which in addition to institutional arrangements-such as judicial review of legislative acts or civilian control of the military--demands "a disposition to take law seriously, a concern with process and with following forms, as much as with substantive results." Id at 77. In finding that the Haiti intervention reaffirmed the rule of law, this report directly contradicts the view that respect for laws will cripple future military operations. See, e.g., Ralph Peters, After the Revolution, PARAMETERS, Summer 1995, at 7, 13 ("Attempts to bring our wonderful, comfortable, painstakingly humane laws and rules to bear on broken countries drunk with blood and anarchy constitute the ass end of imperialism.").


restraint under the rules of engagement while confronting potentially hostile Haitians. Supply clerks distributed food and other items that had been purchased strictly in accordance with acquisition and appropriations laws. Military policemen treated Haitian detainees pursuant both to internal rules and to standards derived from international treaties. Investigating officers performed their duties thoroughly and fairly in gathering evidence about incidents of alleged misconduct. Soldiers, sailors, airmen, and marines remained undistracted by personal concerns, enjoying a sense of security provided by statutory programs of life insurance and legal assistance. With very few exceptions, these men and women in uniform also scrupulously followed orders given by their chain of command, justifying a disciplinary system acknowledged by Congress and the courts to be essential to mission accomplishment. Although policy and operational concerns also held sway when appropriate, law governed or influenced these and countless other examples of individual and unit conduct.

For their contributions to this thorough application of law during military operations in Haiti, attorneys of all services shared in the remarkable success of those operations. This report recounts successes ofjudge advocates who participated. More important, however, it seeks to capture knowledge gained by those judge advocates so that future deploying attorneys and soldiers may learn without having to receive hard lessons from experience. Personal experience will inevitably teach its own lessons; careful study of recent history, however, will enable the operational lawyers of tomorrow to stand on the shoulders of their predecessors. 3

3 The team ofjudge advocates that reviewed legal support provided during
Operations Desert Shield and Desert Storm stated the need for capturing lessons learned in strong terms:
If [Desert Storm and this report] teach anything to the Army legal
community, let it be to confirm the need for a continuing system of gathering, analyzing, and storing in retrievable form, the activities,
accomplishments, shortcomings, and lessons learned of the JAGC in
peace and throughout the operational continuum.


Some of what follows will seem blindingly obvious. Other
portions will trigger questions deserving of detailed answers. Is there a systemic response that can fix this problem? Which office should be the proponent for resolving that issue? This narrative cannot frilly answer these and other important questions. In pursuing the approach of the Desert Storm Assessment Team Report and TheArmy Lessons Learned Program,5 this report neither avoids restating basic principles nor proposes final solutions. The simplest lessons are often the most important to reinforce. Also, the time lag required to complete an exhaustive analysis can frustrate universal dissemination of these crucial, if simple, lessons.

A goal of the Center for Law and Military Operations over the
medium term is to develop and make available to judge advocates in the field a database of operational legal issues.7 Such a database would permit research of the entire range of issues arising in a specific operation; alternatively, it would permit research of specific legal issues arising across a series of operations. At present, CLAMO's automated database contains 659 issues identified by the Desert Stormi Assessment

See UNITED STATES ARMY LEGAL SERVICES AGENCY, DESERT STORM ASSESSMENT TEAM'S REPORT To THE JUDGE ADVOCATE GENERAL OF THE ARMY at Intro-4 (22 Apr. 1992) (copy on file with CLAMO) [hereinafter DSAT REPORT]; see also id, at Oral History Prograrn-4 ("TJAG should establish, with quality resources, a JAGC version of the Center for Army Lessons Learned (CALL) to capture lessons learned from contingency operations like [Desert Storm].").
4 See id. Frequent references to the Desert Storm Assessment Team Report are not intended to imply that the Persian Gulf conflict is ideal as a model for the types of military operations judge advocates are likely to see. Surely it is not. These references merely acknowledge that many aspects of legal support are constant throughout the operational continuum and that the last comprehensive collection and examination of lessons learned dealt with that conflict.
6 Hereinafter referred to in text and notes as either "CLAMO" or "the Center."
7 See Major Mark S. Martins, Responding to the Challenge of an Enhanced OPLA W Mission: CLAMO Moves Forward with a Full-Time Staff, ARMY L, Aug. 1995, at 3, 7 & n. 45.


Team and 48 issues thus far identified by the Center itself pertaining to legal support for operations in Haiti. Just as law reporters and modem databases have facilitated the development of traditional bodies of law, the CLAMO database seeks to facilitate the emergence and sharper definition of operational law. 9

A goal of the Center over the longer term is to serve as a focal point within a document imaging and retrieval system presently being planned for judge advocate community. The Center would scan opinions, memoranda, standard operating procedures, declassified operations plan annexes, as well as useftil forms, cards, and training aids. It would then upload these electronic files into the system, categorize them, 10 and replicate them to other servers on a wide area

8 With the help of automation specialists at the Office of The Judge Advocate General and at The Judge Advocate General's School, CLAMO recently imported the entire DSAT databasedeveloped by DSAT using Enable software-into Microsoft Access, a software now widely used in The Judge Advocate General's Corps.
9 Operational law is "that body of domestic, foreign, and international law that impacts specifically upon the activities of U.S. forces in war and operations other than war." See INT'L & OPERATIONAL L. DEP'T, THE JUDGE ADVOCATE GENERAL'S SCHOOL, UNITED STATES ARMY, OPERATIONAL LAW HANDBOOK at I- I (4th ed. 1995) [hereinafter OP. LAW HANDBOOK]. See also DEP'T OF ARmy, FIELD MANUAL 27-100, LEGAL OPERATIONS at para. 1-9g (3 Sept. 199 1) [hereinafter FM 27-1001 ("Operational law is the application of domestic, international, and foreign law to the planning for, training for, deployment of, and employment of United States military forces.").
Development of a useful database will require refinements in the system by which afteraction reports of legal support to military operations are written and submitted, see Memorandum, The Judge Advocate General of the Army, DAJA-10, to Command and Staff Judge Advocates, subject: After Action Reporting Policy-Policy Memorandum 95-5, para. 3b(4) (3 Oct. 1994) (tasking the senior judge advocate to produce a report for the JAG Corps and specify ing no particular forniat for lessons learned), as well as stable development of the subcategories constituting operational law. See, e.g., WEST'S MILITARY JUSTICE DIGEST (1995) (employing the system of "key numbers" and "digest topics" within the area of military justice). Specifically, CLAMO itself should prepare reports for Corps-wide dissemination, establish subcategories of issues, and guide the orderly evolution of additional subcategories. See infta note 80.
'0 The categories would be those developed according to the process described in note 9, supra.


network that would include legal offices at installations around the globe. I I

In issuing this report, the Center has the worthy but more modest aim of summarizing two to four useful lessons learned from the Haiti deployment in each Rinctional area of operational law. According to United States Army doctrine, the mission of the Judge Advocate General's Corps is to support the battlefield commander by providing professional legal services as far forward as possible at all echelons of command throughout the operational continuum. 12 In surveying a wide variety of lessons learned, the report permits an overall assessment of whether the legal services provided-and the method of deliverysupport Army doctrine for conducting operations other than war. 13 In

11 See generally Lieutenant Colonel Robert Van Hooser, Regimental Technology Plan, at Section IX, in THE JUDGE ADVOCATE GENERAL'S SCHOOL, DESKBOOK FOR PLENARY SESSIONS OF THE 1995 JAG CLE at 105, 113 (1-6 Oct. 1995) (describing the plan for work product retrieval (WPR) within the Judge Advocate General's Corps Wide Area Network (JAGC WAN)) (copy on file with CLAMO).

12 See FM 27-100, supra note 9, at para. 14 (3 Sept. 199 1).

13 See DEP'T OF ARmy, FIELD MANUAL 100-5, OPERATIONS at 13-4 to 13-8 (14 June 1993) (listing noncombatant evacuation operations, civil disturbance operations, humanitarian assistance, disaster relief, security assistance, nation assistance or peace building, counterdrug operations, counterterrorism operations, peacekeeping, peace enforcement, shows of force, attacks, raids, and support for insurgencies or counterinsurgencies), Glossary-6 (defining operations other than war as 14 military activities during peacetime and conflict that do not necessarily involve armed clashes between two organized forces") [hereinafter FM 100-5]; JOINT CHIEFS OF STAFF PUBLICATION 3-0, DOCTRINE FOR JOINT OPERATIONS 1-3 to 1-4 (9 Sept. 1993). The term "operations other than war" is relatively young.

Yet even as this report was being prepared, the Army strongly indicated that the term itself will drop out of usage, although the missions described by the term will remain a focus of doctrinal development. See Memorandum, Commander, United States Army Training and Doctrine Command to 35 Senior Addressees within the Command, subject: Commander TRADOC's Philosophy on the Term "Operations Other Than War" (2 Nov. 1992) (copy on file with CLAMO) ("As U.S. military forces became increasingly involved in worldwide operations following the breakup of the Soviet Union, the U.S. Army coined the term "OOTW' to provide an overarching concept for our doctrine as we entered a new historical period for the U.S. Army. The term "OOTW' has served us well to provide increased visibility for new types of operations over the past several years... We have reached a point in our post-cold war doctrinal development so we can now speak with more precision about Army operations in peacekeeping, humanitarian assistance, .


short, CLAMO finds that in the context of Haiti, the Corps delivered legal services well in every fictional area, and that doctrine for legal operations is fundamentally sound.

The Center's methodology is straightforward. Gather and read all available after action reports from legal offices world-wide that supported the mission. Examine input made by judge advocates to unit after action reports collected by the Center for Army Lessons Learned. 14 Study the videotapes of briefings and subsequent discussions conducted at The Judge Advocate General's School by those who provided legal support before and during the operations. 15 Review submissions on legal issues made to the Joint Uniform Lessons Learned System. 16 Personally interview a representative sample of

. and other specific missions. Since "OOTW' has served its purpose, we should begin to retire the term, while maintaining and enlarging the vital lessons learned in specific areas."). Because this report was in final draft form when the shift in official terminology occurred, it continues to use the overarching term "operations other than war" when discussing this diverse class of operations.
As used here, doctrine is "the authoritative guide to how [land forces] fight wars and conduct operations other than war." See FM 100:-5, supra, at v Doctrine seeks to build on collective knowledge within the military, to reflect wisdom that has been gained in past operations, and to incorporate informed reasoning about how new technologies may best be used and new threats may best be resisted. See generally MAJOR PAUL H. HERBERT, COMBAT STUDIES INSTITUTE, LEAVENWORTH PAPER No. 16, DECIDING WHAT HAS To BE DONE: GENERAL WILLIAM E. DEPuy AND THE 1976 EDITION OF FM 100-5, OPERATIONS 3-9 (1988) (describing the function of doctrine in an army and charting the modem practice of publishing doctrine in manuals).
14 See AR 11-3 3, supra note 5. at para. 1-5 (establishing the Center for Army Lessons Learned, at Fort Leavenworth, Kansas, as the focal point for the Army Lessons Learned System). The various products of the Center for Army Lessons Learned frequently contain information of value to deploying judge advocates, as is reflected by the frequent references to them in this report. Obtain a listing and copies of these products by dialing DSN 552-2255/3035 or (913) 6842266/3035, faxing a request to DSN 552-9564 or (913) 684-9564, or e-mailing a request to
15 See Memorandum, Assistant Judge Advocate General for Military Law and Operations, DAJA-ZD, to Staff Judge Advocate, XVIII Airborne Corps and Fort Bragg and other addressees, subject: After Action Report for Operation Uphold Democracy (2 Feb. 1995) (directing that the conference take place). The conference was held and videotaped at Charlottesville between 8 and 10 May 1995. This report at several points cites to remarks made at this conference, the videotapes of which are on file with CLAMO.


judge advocate personnel involved in the operations, and solicit additional documents and materials from them. Execute searches on commercial legal and news databases to confirm factual matters, such as dates and places, and to probe alternative perspectives of mission performance. Consult authoritative legal and doctrinal sources to determine whether field solutions differ from textbook solutions. Write the narrative report. Certify the most illuminating issues for entry into the database. Without claiming that this methodology is exhaustive, the remarkable recurrence of issues across the wide variety of sources gives the Center confidence it has identified all significant lessons learned.

This is a report of key lessons, not a history of judge advocate participation in the Haiti deployment. Nevertheless, full appreciation of any legal or practical issue requires some knowledge of the historical setting which gave rise to that issue. Accordingly, Part II of this report briefly describes the situation in Haiti prior to recent United States involvement,, recounts how United States forces and coalition partners executed operations in Haiti, and outlines the organization within which judge advocates supported those operations. Part III then summarizes lessons learned according to functional areas.

11. The Military Operations and Their Context

A. Situation Before the Military Operation.

A flood of migrants departing Haiti for foreign shores in
unseaworthy vessels furnished the immediate cause for recent United States and international involvement in this poor Caribbean country. 17

17 President William Clinton, Address Broadcast Live to the Nation (Sept. 15, 1994), reprinted in WASH. POST, Sept. 16, 1994, at A31 ("Three hundred thousand more Haitians, 5 percent of their entire population, are in hiding in their own country. If we don't act, they could be the next wave of refugees at our door.").


Increasing despair and perceptions of personal danger among growing numbers of Haitians, however, reflected deeper causes that combined in 1994 to precipitate the flood of migrants. Haiti's history of political instability, brutal repression, and economic hardship records these deeper causes. 1

Haiti was the first Caribbean state to achieve independence, which occurred in 1804 after ex-slave Toussaint l'Ouverture' s rebellion brought an end to French rule. Since that time, the country has never enjoyed a prolonged period of internal calm without outside intervention and has never developed institutions capable of sustained democratic government. Between 1915 and 1934, the United States occupied Haiti to quell disorder and protect strategic interests along the Windward Passage, the strait between Cuba and Haiti that leads to the Panama Canal. In 1920, the United States launched Operation Uplift, an ambitious --rogram involving construction of roads, bridges, a dam, electrical an,-- communications systems, hospitals, civic buildings, parks, and sanitation facilities. 19Until 1934, when the last United States forces left, Haitians enjoyed the benefits of these investments in infrastructure.

Soon thereafter, however, turmoil returned, and a series of dictators used the army-which had been established and armed by United States marines early in the occupation-to put down political opponents. The most repressive of these was Francois "Papa Doc"

18 Unless otherwise noted, the next 12 paragraphs of the text-which overview Haitian history, th,? events leading up to international intervention, and various demographic, geographic, and econoni ~c factors are based upon DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1993 at 467-74 (1994); The United Nations and the Situation in Haiti, U.N. Dep't of Public Information, DPL/1668 (1995) [hereinafter Situation in Haiti]; THE DoRLiNG KiNDERsLEY WORLD REFERENCE ATLAS 258-59 (Ian Castello-Cortes ed., 1994) [hereinafter KINDERSLEY]; Mission to Haiti: Chronology, N.Y. TIMES, Oct. 16, 1994, at 18 [hereinafter Haiti Chronology]; UNITED STATES ARMY COMBINED ARMS CENTER, CENTER FOR ARMY LESSONS LEARNED, NEWSLETTER No. 94-3, HAITI (Jul. 1,994) [hereinafter CALL NEWSLETTER 94-3 ].
'9 See Francis Maclean, Haiti Replays Its Tragic Drama of 19 IS, NEWSDAY, Sept. 29, 1994, at A4l1.


Duvalier, who gained power in 1957, ruled for 14 years, and then left control over the government in 1971 to his son, Jean-Claude "Baby Doc" Duvalier. Although the latter Duvalier's rule occasioned some liberalization of the government, Haiti had taken no significant steps toward democracy when he fled into exile in 1986 during an uprising. The army chief at the time, Lieutenant General Henri Namphy assumed power, but despite the enactment in 1987 of a democratic constitution, Haiti experienced a series of coups that prevented its implementation.

Then on December 16, 1990, in a presidential election deemed by observers to have been free and peaceful, the Reverend JeanBertrand Aristide captured an overwhelming majority of votes. Immediately after assuming office on February 7, 199 1, the new, populist President announced a major reorganization of the army. The wealthy businessmen who had controlled Haitian politics since the Baby Doc years felt threatened by President Aristide and his followers, and they supported a violent military coup led by Lieutenant General Raoul Cedras on 30 September 1991. They also approved the installation of Joseph Nerette, a supreme court justice, as provisional president. More than three years would pass before this latest and most disturbing military coup could be undone.

In 1993, the junta rebuffed a series of diplomatic efforts to restore Aristide to power. On 16 June, the United Nations Security Council declared an oil and arms embargo on Haiti. 20On 3 July at

2S.C. Res. 841, U.N. SCOR, 48th Sess., SR/81(1993). Bewe 6June 1994 and 30 January 1995, the Security Council would eventually adopt 14 resolutions directly relating to the situation in Haiti, and aver this time period, the President of the Security Council would issue nine statements pertaining to Haiti:

1993 Activity 1994 Activity
S.C. Res. 841 16 June 1993 S.C. Res. 905 23 Mar. 1994 S.C. Res. 861 27 Aug. 1993 S.C. Res. 917 6 May 1994 S.C. Res. 862 31 Aug. 1993 Pres. Statement I11 May 1994 Pres. Statement 17 Sept. 1993 S.C. Res. 933 30 June 1994


Governors Island, New York, General Cedras and President Aristide signed an agreement calling for Cedras to resign and Aristide to return by 30 October. Appendix A reprints this agreement. Pursuant to the Governors Island plan for the return of Aristide, about 200 lightly armed United States troops arrived in Port-au-Prince, Haiti's capital city, on 11I October. The ship carrying the soldiers, the US.S. Harlan County, turned around that day and left Haitian waters after a small group of gunmen demonstrated in the harbor. In response to this episode and to two days of violence instigated by the same group of gunmen, the United Nations on 13 October declared renewed sanctions against Haiti. 21The next day, assassins killed Justice Minister Guy Malary, an Aristide supporter, and two days later still, a group of international human rights monitors felt compelled to leave the country. On 19 October, the United Nations embargo on arms, military and police supplies, and oil shipments began, with United States and Canadian naval vessels and aircraft enforcing the embargo. The United States also froze assets and revoked visas of junta members. At the end of 1993, the scheduled return of Aristide had not occurred.

During the first half of 1994, a steadily growing number of
Haitians boarded boats and set out for the United States. Even as the international community was imposing ever-tighter trade sanctions against the de facto Haitian leaders, 22those leaders presided over an

S.C. Res. 867 23 Sept. 1993 Pres. Statement 12 July 1994 Pres. Statement I11 Oct. 1993 S.C. Res. 940 31 July 1994 S.C. Res. 873 13 Oct. 1993 Pres. Statement 30 Aug. 1994 S.C. Res. 875 16 Oct. 1993 S.C. Res. 944 29 Sept. 1994 Pres. Statement 25 Oct. 1993 S.C. Res. 948 15 Oct. 1994 Pres. Statement 30 Oct. 1993 S.C. Res. 964 29 Nov. 1994
Pres. Statement 15 Nov. 1993 1995 Activity
Pres. Statement 10 Jan. 1993 S.C. Res. 975 30 Jan. 1995 See Situation in Haiti, supra note 18.
21 S.C. Res. 873, U.N. SCOR, 48th Sess., S/RES/873 (1993).
22 S.C. Res. 917, U.N. SCOR, 49th Sess., SIRBS/917 (1994).


increase in politically motivated intimidation and repression against Aristide supporters. The first instrument of repression was the Haitian armed forces, or Forces Armees d'Haiti (FAd'H), which had constitutional responsibility for public security and law enforcement and which included a police force. The second was a group of paramilitary personnel in civilian clothes known as "attaches." The third was a group of provincial section chiefs known as "Tons Tons Macoutes," whom military regulations declared to be adjuncts to the FAd'H. The fourth, known as the Revolutionary Front for Advancement and Progress of Haiti (FRAPH), was a group that had emerged in 1993 and that since that time had opened offices in most towns and villages and infiltrated poorer neighborhoods.

On 8 May 1994, President Clinton announced that the United States would not refuse entry to Haitian boat people without hearing their claims for asylum. 23Haitian migrants would be permitted to claim asylum aboard United States vessels or in other countries. On 29 June, in response to the growing number of migrants, the United States opened a processing center at Guantanamo Bay naval base in Cuba. On 5 July, the still rising flood of Haitian boat people impelled a change in United States policy: Haitian migrants would be returned to Haiti or taken to "safe havens" at Guantanamo Bay, Cuba, in Panama, and elsewhere. Two days later, the United States announced that the

2This was a shift in United States policy. In May of 1992, Executive Order 12807 had directed the Coast Guard to intercept on the high seas vessels illegally transporting passengers from Haiti to the United States and to return those passengers to Haiti without first determining whether they might qualify as refugees. Policy had been determinative in this matter, despite the fact that a binding treaty provision, see United Nations Convention Relating to the Status of Refugees, July 28, 1951, art. 33.1, 19 U.S.T. 6259, 189 U.N.T.S. 137, and a section of the Immigration and Nationality Act of 1952, seeS8 U.S.C. 1253(h), prohibit the United States from expelling or returning a refugee to a country in which his life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. The Supreme Court ruled on 21 June 1993 that neither the treaty provision nor the statutory section provided a judicial remedy for the Coast Guard's return of Haitians intercepted on the high seas. See Sale v. Haitian Centers Council, Inc., 125 L.Ed. 128 (1993).


U.S.S. Wasp, with 1,800 marines on board, would sail into the waters off Haiti and practice drills required for invasion.

On 31 July 1994 the United Nations Security Council cleared
the way for an invasion. In Resolution 940, it voted 12 to 0-with two abstentions-to authorize member states

to form a multinational force under unified command and control and, in this framework, to use all necessary means
to facilitate the departure from Haiti of the military
leadership, consistent with the Governors Island
Agreement, the prompt return of the legitimately elected President and the restoration of the legitimate authorities of the Government of Haiti, and to establish and maintain
a secure and stable environment that will permit
implementation of the Governors Island agreement . . 24

Appendix B reprints the entire text of this resolution. The month of August resulted only in further tension, as Father Jean-Marie Vincent, an Aristide loyalist and prominent Catholic priest, was murdered by gunmen in Port-au-Prince.

In September of 1994, Haiti captured the full attention of the United States and the world. President Clinton stated in a nationally televised address on 15 September that the United States would use military force to oust the Cedras regime from power. On 17 September, in a final attempt to persuade the junta to step down without massive bloodshed, President Clinton dispatched a team consisting of former President Jimmy Carter, General Colin L. Powell, and Senator Sam Nunn to Haiti. On 18 September, in the very hour that paratroopers from the 82d Airborne Division were flying toward

24 S.C. Res. 940, U.N. SCOR, 49th Sess., S/RES/940 (1994).


designated drop zones within Haiti, 25the junta blinked. The Haitian military leaders agreed to step down when the Parliament passed an amnesty law or on 15 October, whichever came first. Appendix C reprints the terms of their agreement, which was signed by President Carter and Emile Jonassaint, the military-appointed president of Haiti.

Far from trusting the restoration of President Aristide to another promise by the junta, United States forces entered Haiti in large numbers beginning 19 September. These troops led the United States contingent of the multinational force that had been formed pursuant to Security Council Resolution 940. This was D-Day of Operation Uphold Democracy.

B. Operation Uphold Democracy

The Haiti encountered by soldiers and marines participating in Uphold Democracy was a country of about 6.5 million people inhabiting a landmass about the size of the state of Maryland. 26The population was predominantly rural, roman catholic, black, French Creole-speaking, and extremely poor, Haiti having earned the distinction of being the poorest country in the western hemisphere. 27 Although a few Haitians descended from Europeans rather than African slaves, and although many of the former were affluent, social tensions focused on class rather than race.

One-third of the Haitian landscape had suffered serious soil
erosion as result of generations of indifference to ecological problems. Most Haitians could not afford health care, and in rural areas, sick persons often sought help from voodoo priests. The masses lived

2See infra note 74, and accompanying text.
2See KINDERSLEY supra note 18, at 258-59 (noting that in remote villages, most houses are made of earth and have no windows).


without running water or proper sanitation, and AIDS was among the many diseases afflicting them. Paved roads were rare, and ferries from Port-au-Prince provided the main transportation to the southern peninsula of the country. Coffee exports, light manufacturing, and tourism, which had been among the few bright spots in the Haiti economy, all had come close to collapse as a result of the embargoes imposed following the coup. 2

Operation Uphold Democracy was the most decisive in a series of military operations to support United States policy aims in Haiti. In October of 1993, in the wake of General Cedras' failure to comply with the terms of the Governors Island accord, United States Atlantic Command (USACOM) 29formed Joint Task Force (JTF) 120 and gave

28 Two sources report that trafficking of illicit drugs, however, was on the increase. See CALL NEWSLETTER 94-3, supra note 18, at 11-8 to 11-9 (noting that Haiti's many social and economic ills make it well-suited as a cocaine trans-shipment point); KLNDERSLEY supra note 18, at 259 ("The military makes large profits from the transportation of narcotics to the USA.").
2United States Atlantic Command (USACOM) is one of the unified combatant commands around which worldwide projection of United States military power is organized. A unified command is "a military command which has broad continuing missions and which is composed of forces from two or more military departments." 10 U.S.C. 161(c)(1). The President, acting through the Secretary of Defense and with the advice and assistance of the Chairman of the Joint Chiefs of Staff (JCS), establishes unified commands, see 10 U.S.C. 161 (a), of which there are presently nine:

United States Atlantic Command USACOM Norfolk, VA
United States European Command USEUCOM Stuttgart, FRG
United States Pacific Command USPACOM Camp Smith, HI
United States Southern Command USSOUTHCOM Quarry Heights,Panama
United States Central Command USCENTCOM MacDill AFB, FL
United States Transportation Command USTRANSCOM Scott AFB, IL
United States Special Operations Command USSOCOM MacDill AFB3, FL
United States Space Command USSPACECOM Peterson AFB, CO
United States Strategic Command USSTRATCOM Offuit AF13, NE
See DEP'T OF DEFENSE, DEFENSE ALMANAC '94, Issue 5, at 11 (1994). More than seven major pieces of legislation over the past forty-six years have molded the defense organization of the United States, DEP'T OF DEFENSE, ARMED FORCES STAFF COLLEGE PUBLICATION 1, THE JOINT STAFF OFFICER'S GUIDE 32 (1993) [hereinafter AFSC PUB. 1], but the definition of a unified command has not changed since Congress passed the National Security Act of 1947. See id at 42.


it the mission to protect and evacuate American citizens and key Haitian nationals. 30 Built around a United States Navy CruiserDestroyer group, this Joint Task Force provided off-shore protection and evacuation support and also directed United Nations maritime embargo operations around Haiti. In June of 1994, USACOM formed JTF- 160 to address the flood of Haitian migrants, which in turn had resulted from the worsening situation on the island and President Clinton's decision to suspend direct repatriation. This second JTF, though activated aboard a hospital ship in Kingston, Jamaica, soon moved to Naval Station Guantanamo Bay, where it established safe havens for roughly 15,000 Haitians. 31

The third and fourth JTF's corresponded to two separate plans for ending the junta's reign in Haiti. A plan for forced entry into Haiti would be executed, if appropriate, by Combined JTF- 180 (CJTFThe purpose of the National Security Act of 1947 was to incorporate into law the lessons World War 11 had taught about the hazards of parochialism among the military services and thus "provide for the effective strategic direction of the armed forces and for their operation under unified control and for their integration into an efficient team of land, naval, and air forces." See id The most recent significant development in the trend toward a unified command structure occurred in 1986, when Congress designated the Chairman, JCS the principal military adviser to the President, transferred duties of the corporate JCS to the Chairman, specified that the operational chain of command shall run from the President to the Secretary of Defense directly to the combatant commanders, and authorized the President to communicate with the combatant commanders through the Chairman. See Dep't of Defense Reorganization (Goldwater-Nichols) Act of 1986, Pub. L. No. 99-433, 100 Stat. 1012-17 (codified at 10 U.S.C. 161-66 (1988)); see also DEP'T OF DEFENSE, DIRECTIVE 5 100. 1, FUNCTIONS OF THE DEP'T OF DEFENSE AND ITS MAJOR COMPONENTS (25 Sept. 1987) (exercising the President's authority by directing that the Chairman functionon] within the chain of command by transmitting communications to the commanders of the combatant commands from the President and the Secretary of Defense"). See generally AFSC PUB. I at 32-45.
30 The Secretary of Defense as well as the commanders in chief (CINCs) of unified
commands may establish joint task forces. See, e.g., FM 100-5, supra note 13, at 4-4. A joint task force consists of elements of two or more services operating under a single commander. It performs missions having specific limited objectives or missions of short duration. See id. Because Haiti is within the geographic area of responsibility (AOR) of USACOM, the CINC of USACOM was the establishing authority for JTF 120.
31 The safe havens also housed some 30,000 Cubans. See Rear Admiral Thomas R.
Wilson, Joint Intelligence and Uphold Democracy, JOINT FORCE QUARTERLY, Spring 1995, at 54, 55.


180),3 under the command of Lieutenant General Henry H. Shelton, Commander of XVII1th Airborne Corps. 33 The 82d Airborne Division would be the divisional element leading the assault, and about 1800 marines would participate by conducting an amphibious landing in Cap Haitien. 34 A plan for semi-permissive entry would be executed, if appropriate, by Combined JTF- 190 (CJTF- 190), under the command of Major General David C. Meade, Commander of 10Oth Mountain Division. 35 One infantry brigade would seize control of Port-au-Prince while another would air assault separate elements into Cap Haitien and Jeremie, cities on the northern and southern claws of the Haitien landmass. 36 During the summer of 1994, as the political situation worsened, the staff of USACOM and the staffs of component commands of all services feverishly refined these two alternative plans for the same operation. The codename for the forced entry was Uphold Democracy; the codename for the semi-permissive entry was Maintain Democracy. 37

32 A combined task force "involves the military forces of two or more nations acting together in common purpose." See FM 100-5, supra note 13, at 5-1. The lines of command for combined task forces created pursuant to formal, stable alliance relationships between nations will generally follow principles predetermined by the alliance agreement. The lines of command for combined task forces arising from a temporary coalition follow no set principles and are negotiated on an ad hoc basis. The delicacy of coalition operations-arising from differences in goals, culture, military doctrine and training, equipment, and language-almost guarantee that the President and the State Department will remain involved in setting guidelines for a combined task force that includes United States forces. See generally id at 5-1 to 5-5.
3See Wilson, supra note 3 1, at 55.
3Telephone Interview with Lieutenant Colonel Carl Woods, Office of the Staff Judge
Advocate, USACOM and Supreme Allied Command, Atlantic, (Aug. 24, 1995) [hereinafter Woods Interview].
35See Memorandum, Major Bradley P. Stai, Chief, Civil Law, Office of the Staff Judge Advocate, XVIIIth Airborne Corps and Fort Bragg, AFZA-JA-Cv, to Staff Judge Advocate, subject: After Action Report (AAR)-Operation Uphold Democracy, at 20 (2 Feb. 1995) (copy on file with CLAMO) [hereinafter Stai Memorandum].
36Headquarters, 10th Mountain Division (Light Infantry), Combined JTF Haiti Operation Plan 2380, para. 3a (16 Aug. 1994) (copy of declassified extract on file with CLAMO) [hereinafter OPLAN 2380].
37See Stai Memorandum, supra note 35, at 1, 18. A fifth joint task force would also
deploy in support of the Haiti intervention. This was JTF 188, a joint special operations task force,


Yet the Uphold Democracy that occurred was actually a blend of the two alternative plans, and both CJTF-180 and CJTF-190 had pieces of the resulting operation.38 When former President Carter announced that General Cedras and his de facto regime had agreed to step down, the plan for forced entry was already underway. The Commander-inChief of USACOM, Admiral Paul D. Miller, quickly halted the forced entry, organized CJTF- 190 as a subordinate command to CJTF- 180, and ordered a semi-permissive entry.39 General Shelton, at the headquarters of CJTF- 180, promptly recalled the 82d Airborne Division to Fort Bragg and directed CJTF- 190 to land at Port-auPrince airport.40 Two brigades of the 10th Mountain Division-one

designated by CINCUSACOM on 13 September 1994, and comprising about 2200 personnel from elements of USSOCOM. These USSOCOM forces included elements of the 75th Ranger Regiment, the 160th Special Operations Aviation Regiment, the United States Army Special Operations Command, the United States Air Force Special Operations Command, and the Naval Special Warfare Command. They deployed on the U.S.& America, and their equipment included standard light weapons, high mobility multipurpose wheeled vehicles (HMMWVs), CH-47 Chinook helicopters, several variants of the UH-60 Blackhawk helicopter, and light observation helicopters. The US.S. America, with JTF 188 operating from it, was positioned in the joint operations area near the coast of Haiti until it was ordered back to the United States on 19 October 1995. See generally Headquarters, United States Atlantic Command, Briefing Viewgraphs (8 May 1995) (copies deposited with CLAMO during conference mentioned in note 15, supra) [hereinafter USACOM Briefing Viewgraphs].
39 Headquarters, Joint Task Force 180, Briefing Viewgraphs (8 May 1995) (depicting "Planning Flexibility" and describing the resulting plan variously as "2375" and "2380 'Plus"') (copy on file with CLAMO) [hereinafter JTF 180 Viewgraphs].
39 Woods Interview, supra note 34.
40 Telephone Interview with Major Kyle D. Smith, Operational Law Attorney, XVIIIth Airborne Corps and Fort Bragg (Sept. 5, 1995) [hereinafter Smith Interview]. The CJTF-180 Commander's intent for the hybrid mission was as follows:
The purpose of this operation is to expand the security operations and set
conditions for decisive civil-military operations (CMO). We will deter violence
and promote stability by creating a highly visible force presence of mobile and
stationary security operations. We must set objectives that result in steady
progress and measurable success in the eyes of the Haitian people, enlist the
cooperation of the FAd'H, police, and civilians without sacrificing our neutrality
or authority. The assistance provided to NGOs and PVOs to establish essential
services must be balanced against potential mission creep. Success is defined as


aviation and one infantry-began executing this modified plan on 19 September from the US.S. Eisenhower, where Army infantry and helicopters had been loaded onto the aircraft carrier. By nightfall of 19 September, about 2,000 soldiers were on the ground near Port-auPrince. 41

The next day, 20 September, another 3,000 soldiers from the
10th Mountain Division deployed in Port-au-Prince while about 1,800 marines launched an amphibious landing into Cap Haitien from the U. S. S. Wasp.4 This was D + 1, the end of which found nearly 7,000 United States soldiers and marines ashore, having suffered no casualties. By 21 September, D + 2, the number was over 10,000. 43 Within days, this number had swelled to more than 15,000, including two battalions from 3d Special Forces Group. Close to 2 1,000 United States soldiers and marines were in Haiti on 4 October, when the first group of soldiers from the other coalition nations arrived .4 Figure 1
depicts the deployment of forces into Haiti.

the freedom of action for multi-national forces to transition from expansion of
initial security operations to decisive CMO.
JTF 180 viewgraphs, supra note 38 (depicting "2380 'Plus' Intent").
41A 'Cordial' Reception as Americans Take Control; Peacekeeping Troops Met No
Resistance-and Some Cheers-As They Took Haitian Ports and Airfields, But Risks Remain High,
ORLANDO SENTINEL, Sept. 20, 1994, at AlI (citing Lieutenant General Shelton).
4See Julian Beltrame, US. Troops Watch as Haitians Beaten; At Least One Killed, TnE MONTREAL GAZETTE, Sept. 21, 1994, at AlI (citing spokesman Colonel Barry Willy).
4See Douglas Farah, US. Warns Haitian Leaders on Abuses; GI Patrols Stepped Up to Stop Civilian Beatings, WASH. POST, Sept. 21, 1994, at AlI (citing Lieutenant General Shelton).
See Chris Black, US Troops Storm Haiti Militia Headquarters; Crowd Cheers Arrest of FRAPH Members, BOSTON GLOBE, Oct. 4, 1994, at 1 (citing Lieutenant General Shelton). Other nations' coalition forces-which would eventually number about 3600 personnel from 32 different countries -formed a diverse group. During 1994, contributions came from Argentina (2 ships, 100 police), Bangladesh (1000 military, 100 police), Belgium (30 police), Benin (25-30 personnel), Netherlands (20 police), Costa Rica (20 civilian specialists), Bolivia (100 police), United Kingdom (12 ships, 12 trainers), Israel (30 police), Panama (60 police, 120 civilian specialists), and 12 nations of the Caribbean Community (CARICOM) (266 military, 90 police). See JTF 180 Briefing Viewgraphs, supra note 38 (depicting "Forming the Coalition").


Marine Air-Ground TF

Army Brigade AE R
Combat Team NM
From Deck of USS
Eisenhower ITHNH


Figure 1

Cedras soon resigned and left the country, and President Aristide returned.45 On or about 6 October, the marines departed Cap Haitien to be replaced by the second infantry brigade from the 10th Mountain Division.46 On 24 October, CJTF 180 stood down, handing command of the multinational force in Haiti (MNF) to the commander of CJTF190.47 By January 1995, the role of the 10th Mountain Division within this MNF would be replaced by the 25th Infantry Division, and by
the end of March 1995 the MNF itself would eventually be replaced by

45 See Haiti Chronology, supra note 18, at 18 (reporting that Cedras resigned on 10 October 1994 and that President Aristide returned on 15 October).
46 Interview with Captain E.J. O'Brien, former Trial Counsel for the 2d Brigade Combat Team, in Charlottesville, VA (Aug. 25, 1995) [hereinafter O'Brien Interview].
47 Id.
48 See Memorandum, Staff Judge Advocate, Multinational Force Haiti, MNF-SJA, to MNF Historian, subject: Unit Historian After Action Review, para. 3s (recording that transition occurred on 14 January 1995) [hereinafter MNF Historian Memorandum].


a peacekeeping force, the United Nations Mission in Haiti (UNMIH). 4 Reflecting broad international support for the deployment, some 32 nations would eventually contribute forces to either MINF or UNMIH. 50 Also, most of the migrants in safe havens at Guantanamo Bay would eventually return to Haiti. 51

Yet Uphold Democracy did not unfold without tense moments. Compelled by the terms of the Carter-Jonassaint agreement to co-exist with the Haitian police force, 52newly arrived United States troops concerned themselves with maintaining essential civic order rather than with policing crimes committed by Haitians against Haitians. After 20 September, when police who were loyal to the Cedras regime brutally beat pro-Aristide demonstrators in the streets of Port-auPrince, the maintenance of civic order demanded that United States troops intervene to stop violent crimes. 5

Tension would escalate further before it subsided. On 25 September a Marine Corps lieutenant opened fire and shot a

4See id The UNMIH was initially conceived in August of 1993, see S.C. Res. 862, U.N. SCOR, 48th Sess., U.N. Doc. S/RES/862 (1993), and it was a contingent of UNMIH that was aboard the U.S.S. Harlan County when that ship turned around on I11 October 1993. See Statement By the President, U.N. SCOR, 48th Sess., 3289th mntg., U.N. Doc. Sf26567.
50 See, e.g., President William Clinton, Remarks at United Nations Transition Ceremony (Mar. 31, 1995), reprinted at Appendix D.
51 Telephone Interview with Captain Daniel J. Cowhig, former judge advocate assigned to JTF 160 at Guantanamo Bay, Cuba, (Aug. 28, 1995) (stating that by early 1995, only about 700 Haitian migrants remained at Guantanamo Bay) [hereinafter Cowhig Interview]; Telephone Interview with Captain Jeffrey Pederson, former judge advocates assigned to JTF Safe Haven in Panama (Aug. 24, 1995) [hereinafter Pederson Interview] (stating that soon after the start of the Haiti intervention the command shelved plans for "Operation Distant Haven," which would have established a camp in Belize for Haitians).
5See infra Appendix C, para. 2 ("To implement this agreement, the Haitian military and police forces will work in close cooperation with the U.S. Military Mission. This cooperation, conducted with mutual respect, will last during the transitional period required for insuring vital institutions of the country.").
5'See part III.A.1I infra.


threatening policeman, initiating a barrage of fire-from members of 2d platoon, E Company, 2d Battalion, 2d Brigade, 2d Marine Division-that left 10 Haitian security men dead in Cap Haitien. 54 This incident emboldened Aristide supporters and intimidated the police forces. On 30 September, in Port-au-Prince, six Haitian demonstrators died and about a dozen received injuries at the hands of gunmen loyal to the junta.5 Months later, even after violent confrontations had indeed subsided and a stable environment had been achieved, assassins killed Mireille Durocher Bertin, a political opponent of President Aristide. 6

The assassination, occurring just days before the M3INF
transferred responsibilities to LINMIH, served to remind all outside parties that Haiti's problems could not be solved overnight. Nevertheless, despite these tense episodes, President Clinton justly termed Operation Uphold Democracy a "remarkable success" during a ceremony on 31 March marking the transfer of responsibilities to the United Nations. Appendix D reprints the text of his speech as well as those of Secretary-General Boutros-Ghali and President Aristide. 57

54Se Tom Rhodes & Ian Brodie, Americans Admit They Fired First, THE TIMES, Sept. 26, 1994, at 1.
55 See T.J. Milling, The Haiti Crisis; Haiti March Against Regime Turns Deadly; Confrontation Leaves 6 Slain, HOUSTON CHRONICLE, Oct. 1, 1994, at Al.
5See Kathy Lewis, Clinton Visit Heralds Haiti Democracy; US. Troops Thanked as UN. Takes Over, DALLAS MORNING NEWS, Apr. 1, 1995, at IA.
5Although the combat forces it deployed to Haiti consisted mostly of light infantry, the United States also deployed a small mechanized infantry force as insurance against a the sort of emergency that arose in Mogadishu, Somalia on 3 and 4 October 1993, when mechanized infantry perhaps could have averted the tragedy that befell some of the 18 soldiers who were killed by forces of Mohammed Farah Aideed. See, e.g., Rick Atkinson, Night of a Thousand Casualties: Battle Triggered the US. Decision to Withdraw from Somalia, WASH. POST., Jan. 31, 1994, at Al1, All (quoting Major General William F. Garrison's urgent request on the evening of 3 October for somee tanks and some APCs" and describing Major General Thomas M. Montgomery's subsequent attempts to borrow armored and mechanized forces from Pakistani, Malaysian, and Italian forces). This force consisted of a mechanized infantry company from the 24th Infantry Division (Mechanized), which deployed from Fort Stewart, Georgia. See generally Telephone Interview with COL Waldo W. Brooks, Staff Judge Advocate, 24th Infantry Division (Mech) & Fort Stewart


rZone ResnibililenHdut

I Pakistan N an
III Netherlands
V U.S.
VI Bangladesh N

KA ICOMM'rk mc


Figure 2

C. United Nations Mission in Haiti

The force that continued the international presence in Haiti on 31 March 1995 consisted of about 6,000 military personnel from 33 countries, including about 2,400 from the United States.58 United

(27 Oct. 1995) (identifying the unit as B Company, 3-15th Infantry, a company equipped with M2 Bradley Infantry Fighting Vehicles).
58 See USACOM Briefing Viewgraphs, supra note 37.. As of April 1995, the breakdown of personnel was as follows:
United States 2400 Canada 474
Caricom 275 Honduras 120
Bangladesh 1050 Pakistan. 850
Guatemala 121 India 120
Nepal 410 Argentina 15
Netherlands 150 Surinam 36
See Headquarters, Multinational Force Haiti and 25th Infantry Division (Light), Briefing Viewgraphs (9 May 1995) (copies deposited with CLAMO during the conference mentioned in note 15, supra) [hereinafter 25th ID Briefing Viewgraphs].


States Army Major General Joseph Kinzer commanded this United Nations force, which had the mission of maintaining the stable and secure environment that had been established by the IvNF .5 In such an environment, the international community hoped that Haitians could begin to establish a lasting democracy. Figure 2 depicts the regions of Haiti into which IJNMIH forces deployed.

About 1300 soldiers from the 25th Infantry Division stayed in Haiti and either donned the blue berets of the UNMvIH or participated in bilateral progams authorized under United States security assistance laws.6 These included medical, logistics, military police, aviation, and infantry personnel. About 600 soldiers from United States Army Special Operations Command, including 550 special forces soldiers and 50 members of psychological operations units, also contributed to the international presence after the 31 March transfer. 61 Another 400 personnel of all services, including United States Navy engineers and medical personnel, rounded out the American contingent. 62

In June of 1995, soldiers from the 2d Armored Cavalry
Regiment out of Fort Polk replaced the remaining members of the 25th Infantry Division, who returned to their home in Schofield Barracks, Hawaii. 63Then in September of 1995, a smaller number of soldiers from the 10 1st Airborne Division (Air Assault), replaced the 2d

5The most important criterion to be fulfilled prior to completion of the M-NF-UNMIH transition was the adoption of a Security Council resolution that declared a "stable and secure environment" in Haiti. See USACOM Briefing viewgraphs, supra note 37.
6See USACOM Briefing viewgraphs, supra note 37.
61 See id.
62 See id.
6See Major Mark Ackerman, Legal Support to Current Operations in Haiti, ARMY LAW., Aug. 1995, at 41 n. 118.


Armored Cavalry Regiment soldiers. 64Numbers of United States soldiers in Haiti continue to drop, in fulfillment of the scheduled February 1996 departure date for all remaining United States forces. 65 Major milestones during the UNMIH presence included the June 1995 parliamentary elections, which occurred peacefully and fairly but with organizational difficulties, and will include the December 1995 presidential election. 66Throughout the UNMIIH presence, efforts to create a professional civilian police force built upon groundwork laid during Uphold Democracy. 67

Other programs begun during Uphold Democracy also
continued, such as those to establish a functioning judicial system. Spearheaded by a team ofjudicial mentors, attached to the United States Embassy and consisting of 18 attorneys with broad judicial, administrative, and practical experience, these efforts sought to make both short and longer-term contributions to the Haitian legal infrastructure. 68This project complemented other civic work being done by eight United Nations agencies and hundreds of private voluntary organizations. in the country. 69

64Telephone Interview with Lieutenant Colonel Daniel Bolger, Commander of 1 st
Battalion, 327th Infantry Regiment, 10 1st Airborne Division (Air Assault) (Jul. 26, 1995). Mention of specific units in the text is intended merely to provide some flavor of the variety of units that participated. The other units-both active and reserve component-that contributed soldiers, sailors, airmen, or marines are too numerous to list here. It is a function of the task organization principle that the Haiti intervention involved so many different units.
6Telephone Interview with Major William Hudson, Senior UNMIH Staff Legal Officer, (Sept. 8, 1995) [hereinafter Hudson Interview].
66See id 67 Seid.
6See Memorandum, Lieutenant Colonel Philip A. Savoie to Brigadier General Walter B. Huffmnan, subject: Interim Report, Haitian Judicial Mentorship Program (7 Apr. 1995) (copy on file with CLAMO) [hereinafter Savoie Memorandum]. Lieutenant Colonel Savoie was the Center Judge Advocate of Fitzsimons Army Medical Center, Aurora, Colorado, when he served as judicial mentor in Haiti on a temporary duty status. See generally part III.H.3, infra.
69 See part III.G.3 and Appendix infra.


D. Judge Advocate Support

Uphold Democracy and subsequent operations in Haiti profited from heavy judge advocate support. The peak number ofjudge advocates in the area of operations at any one time was 23. The peak total number of legal personnel, officer and enlisted, was 32. Altogether, 54 different judge advocates and 39 different legal noncommissioned officers and specialists deployed to Haiti for some period between September 1994 and September 1995. Among these were representatives of each military service, and of the active as well as reserve components. Appendix E lists these personnel. Another 29 judge advocates in key staff positions did considerable work on Haiti issues, and some of these officers traveled to Haiti in furtherance of that work. Appendix F lists these judge advocates.

Other legal personnel deployed to the field in support of
operations in Haiti. These included participants in JTF- 160, who deployed to Guantanamo Bay Cuba, and in JTF-Safe Haven, who deployed to Panama. These operations accommodated or prepared to accommodate Haitian boat people who left their country in the summer of 1994, as the junta clung to power. Altogether, 8 different judge advocates and 4 different legal specialists deployed to camps in Cuba or Panama. 70 A much larger number ofjudge advocates supported the various Haiti operations less directly-by pulling shifts in emergency operations centers at installations where soldiers were deploying, by rendering predeployment legal assistance, or by assisting with other numerous and diverse legal issues generated by the deployment. 71

7These are conservative estimates based on Cowhig and Pederson Interviews, supra note 5 1, which also are the bases for the other information in this paragraph pertaining to JTFs 160 and Safe Haven.
71 Contrast these numbers with the number deployed to Desert Storm:
JA presence in SWA built from 46 on 3 Sep 90 to about 270 by G Day. There
were 92 other RC JA's on active duty around the world at the same time, 33
serving as individuals and 59 as members of units. Ultimately, 12 JAG
Detachments (or JAGSOs) were called; of these, 5 deployed. There were


From January to June of 1994, individual operational lawyers on key staffs actively participated in planning the operations that would
unfold An Army judge advocate at XV111th Airborne Corps received access to the classified forced entry plan, as did a counterpart in the 82d Airborne Division. An air force judge advocate on the 12th Air Force staff similarly involved himself in the planning process. Two judge advocates at United States Atlantic Command-one Navy and the other Marine Corps-contributed to the forced entry plan, as well as to the maritime interdiction operations that had been underway since October of 1993. An operational lawyer in the I Oth Mountain Division contributed to the development of that unit's plans for both the forced and semi-permissive entries. Members of the coordinating staff group 73 especially welcomed judge advocate involvement in writing rules of engagement, general orders, foreign claims procedures, and procedures for seizing property.

On D-Day, two judge advocates were among the soldiers in military aircraft sweeping toward Haiti. Ninety minutes before the

approximately 18 non-civil affairs units called with organic JA's. Five were
Dep't of Army, Office of The Judge Advocate General, The Judge Advocate General After Action Report: Operation Desert Shield & Operation Desert Storm at 1-1-2 (1991) (copy on file with CLAMO).
72 The information in this paragraph is based on the following sources: Stai Memorandum, supra note 35; Major Bradley P. Stai, Chief, Civil Law, Office of the Staff Judge Advocate, Xvillth Airborne Corps, Remarks Before the Haiti After Action Review Conference in Charlottesville, VA (May 8, 1995) (videotape on file with CLAMO); Woods Interview, supra note 34; Telephone Interview with Captain Darryl Wishard, Operational Law Judge Advocate, I Oth Mountain Division (Light Infantry) (Aug. 3, 1995) [hereinafter Wishard Interview].
73 The coordinating staff group consists of the commander's principal staff assistants, each concerned with a broad field of interest. A large joint staff organization, for instance, will typically have a coordinating staff that includes a J- I (Personnel), J-2 (Intelligence), J-3 (Operations), J-4 (Logistics), J-5 (Plans), J-6 (Communications-Electronics), and J-7 (Civil-Military Operations). See, e.g., DEP'T OF ARmy, FIELD MANUAL 101-5, STAFF ORGANIZATIONS AND OPERATIONS 2-1, 2-2 & 2-13 (25 May 1984). The Staff Judge Advocate is a member of the commander's special and personal staffs. See id. at 2-9.


scheduled parachute assault was to begin, these attorneys--one aboard a C-i 141 with the XVIllth Airborne Corps Assault Command Post (ACP) and the other aboard an EC- 13 5, with the airborne command and control element-were diverted from their destinations. 74 When the two CJTF's then executed their entry into Haiti unopposed, judge advocates deployed to the area of operations according to the organization depicted in Figures 3 and 4. Although they were certainly crucial to the operation, legal specialists and junior noncommissioned officers are not included in any of the following Figures, but one or more supported each of the brigade elements depicted.

Figure 3-CJTF-180 Legal Organization (D+1)
Staff Judge Advocate COL
Deputy Staff Judge Advocate CDR
Operations Law Judge Advocate MAJ
Contract Law Judge Advocate MAJ
1 st COSCOM Judge Advocate CPT
16th MP Brigade Judge Advocate CPT
Joint Interrogation Facility Judge Advocate CPT 20th Engineer Brigade Judge Advocate CPT
3d Special Forces Group Judge Advocate CPT

7See Smith Interview, supra note 40.


Figure 4-CJTF-190 Legal Organization (D+4)
Staff Judge Advocate LTC
Deputy Staff Judge Advocate MAJ
Operations Law Judge Advocate CPT
Claims Judge Advocate CPT
Criminal Law Judge Advocate CPT
Legal Assistance Judge Advocate CPT
Chief Legal NCO MSG
Claims NCO SSG
1 st Brigade Legal Adviser CPT
2d Brigade Legal Adviser CPT

These initial legal support structures were larger than what is contemplated in Judge Advocate General's Corps doctrine, but they were fully consistent with evolving Army doctrine.7 They were also certainly appropriate given the multifaceted nature of the operations. Within five weeks, in early October 1994, legal support in Haiti corresponded to the organization at Figure 5. By the end of January 1995,1 when the 25th Infantry Division had replaced the 10Oth Mountain Division in the MNF, organization for legal support resembled Figure
6. After 31 March, when the MNF transferred functions to UNMvIH, judge advocate support corresponded to Figure 7.

7See FM 27-100, supra note 9, at para. 7-4; DEP'T OF ARMY, FIELD MANUAL 71-100-2, INFANTRY DIVISION OPERATIONS, TACTICS, TECHNIQUES, AND PROCEDURES 2-83 (1993) ("The SJA is a critical element in the assault CP during the early stages of the deployment.").


Figure 5-MNF Legal Organization (D+35)
Staff Judge Advocate LTC
Deputy Staff Judge Advocate MAJ
Operations Law Judge Advocate CPT
Claims Judge Advocate CPT
Criminal Law Judge Advocate CPT
Legal Assistance Judge Advocate CPT
Chief Legal NCO MSG
Claims NCO SSG
1 st Brigade Legal Adviser CPT
2d Brigade Legal Adviser CPT
Joint Logistics Support Command Judge Adv Civ 16th MP Brigade Judge Advocate CPT
Joint Interrogation Facility Judge Advocate CPT 20th Engineer Brigade Judge Advocate CPT
3d Special Forces Group Judge Advocate CPT

Figure 6-MNF Legal Organization (D+120)
Staff Judge Advocate COL
Deputy Staff Judge Advocate MAJ
Operations/Admin Law Judge Advocate CPT
Claims/Legal Asst Judge Advocate CPT
Defense Counsel CPT
Chief Legal NCO SSG
1 st Brigade Legal Adviser CPT
2d Brigade Legal Adviser CPT
Joint Logistics Support Command Judge Adv LTC 3d Special Forces Group Judge Advocate CPT


Figure 7-UNMIH Legal Organization (D+210)
UIMH Legal Adviser MAJ
Deputy UNMIH Legal Adviser (Canadian) MAJ
United States Forces Haiti Judge Advocate CPT United States Forces Haiti Legal NCO SSG

111. Lessons Learned

A few terms and distinctions ftom the military art may- help readers understand the purpose and scope of this part of the report. According to The Army Lessons Learned Program, an "observation" is "raw information from any source which has not been refined through analysis." 76 A "lesson learned" is "validated knowledge and experience derived from observations and historical study of military ,,77
training, exercises, and ... operations. An "issue" is "a category of lessons learned that requires action by the subject matter proponent to change, develop, resolve, or refine doctrine, training, organization, material, and leadership development or exercise design."78 Although these definitions may seem over-technical, they do convey important distinctions. Put simply, observations are raw data, lessons learned are confirmed observations that have undergone analysis and are worthy of dissemination, and issues are those lessons learned that lend themselves to some systemic action or resolution and that should therefore be made the responsibility of a proponent.

Besides issues, another category of lessons learned merits attention. "Combat relevant lessons learned" are ",[c]onclusions derived from analysis of observations obtained from military

76 See AR 11-3 3, supra note 5, at 10.
77 ld.
79 Id.


operations and training exercises that are useful to commanders in preparing their units for combat by identifying successful doctrine, tactics, techniques, and procedures or problems thereto. M In nontechnical terms, these are lessons learned that give commanders useful "how to" guidance or that highlight practical considerations bearing on their decisions. Although the categories overlap, combat relevant lessons learned differ from issues in that the consumers of the former are commanders, while the consumers of the latter are proponent offices or agencies.

This part of the report records more than raw information
(observations) and defers most discussion of lessons learned requiring systemic action by proponent offices (issues). 80 It provides for the



Lessons Learned

Issues Judge

Figure 8

79 Id.
80 Again, following the commendable lead of the Desert Storm Assessment Team Report, C,
the key document guiding Corps-wide action will be the database, which will identify issues, proponents, and systemic resolutions. See DSAT REPORT, supra note 3, at Introduction-6. Note 9, supra discusses the CLAMO database.


judge advocate what combat relevant lessons learned provide for the commander: useful guidance and practical considerations that can help get the mission accomplished. See Figure 8.

It is important to note that combat relevant lessons learned-and the analogous category of lessons learned for judge advocates-are not restricted to the tactical level of military operations. Although military doctrine distinguishes between the tactical, operational, and strategic levels, 81 it also acknowledges that these levels "are defined more by the consequences of their outcome than ... by the echelon of involvement ...... 82 This means that while a judge advocate on the joint staff may deal more often with operational concerns than may the deployedjudge advocate captain, 83 the captain may also occasionally deal with problems, decisions, and legal rules that have operational or strategic implications for present and future deployments.

An example is the trial defense counsel who represents clients receiving vastly different treatment for violations of a general order because the joint task force commander is the convening authority for one but not the other. 84 Although this particular judge advocate's daily concerns are mostly at the tactical level, he or she is wrestling with a principle-unity of command-that cuts across operational and strategic levels. 85 Any attempt to catalogue useful lessons learned

8 1 See FM 100-5, supra note 13, at 1-3, ch. 6, glossary -8 (defining "tactics" as "the art and science of employing available means to win battles and engagements"), glossary-6 (defining the "operational art" as "the employment of military forces to attain strategic goals through the design, organization, integration, and execution of battles and engagements into campaigns and major operations") & glossary-8 (defining strategy as "the art and science of employing the armed forces and other elements of national power during peace, conflict, and war to secure national security objectives").
See id. at 1-3.
93 See, e.g., infta note 314 (discussing guidance provided by judge advocates on the joint staff with respect to a sensitive diplomatic matter with potential to influence relations with the United Nations).
See infra note 362.
85 See infra subpart 111.1. 1.


must focus on the problems, rules, and procedures that deployed and supporting judge advocates actually face, not on an abstract distinction between levels of warfare. 86

It is also important to note that this report-usefully but perhaps somewhat artificially-organizes the lessons learned according to discrete topics or subdisciplines rather than to chronological sequence. As a result, readers might conclude that issues which arose late in the deployment were considered and resolved identically to those which arose early on, when the area of operations was still fluid and the fate of the mission uncertain. In the words of one judge advocate who arrived in Haiti on 19 September 1994,

[t]here is a[n] ... impact on legal operations when, for the
first three weeks of the operation, everybody (lawyers
included) are eating nothing but IvREs, fighting for scarce water supplies, scrounging for a place to sleep, not having
electricity, digging slit trenches, wearing full battle dress (flak vests, Keviar, and locked and loaded weapons), and
otherwise concerned with survival while trying to also
provide legal services. 87

Readers must read the lessons in this report with this important truth in mind. Issues arising in a fairly well-developed and mature theater will benefit from the infrastructure-logistical, administrative, operational, and legal--created earlier. Moreover, they may not have the same capacity to ruin the entire mission if handled poorly. 8

8See Major Mark S. Martins, Rules of Engagement for Land Forces: A Matter of
Training, Not Lawyering, 143 MIL L. Ri~v. 1, n.274 (1994) (discussing the unhelpfulness of the strategic-operational-tactical distinction in the context of rules of engagement).
87Se Facsimile Message, Staff Judge Advocate, 10th Mountain Division and Fort Drum, AFZS-JA, to Deputy Director, Center for Law and Military Operations, subject: Draft Lessons Learned--Haiti (13 Oct. 1995) (copy on file with CLAMO).
88A example of an early problem for the MNF resolved through judge advocate efforts was that of persuading commanders from disparate units of CJTF 190 to share their scarce water


A. Rules of Engagement9

Nowhere during military operations in Haiti were legal
considerations more visible than in the area of rules of engagement (ROE). In operations other than war, some of the hardest yet most important questions involve "who can shoot at what, with which weapons, when, and where?"90 Both tentativeness and its oppositesupplies with soldiers not in their units. This was scarcely a "legal" problem, but judge advocates assertively and correctly got involved, and the mode of resolution was far different from the writing of an administrative law opinion on a military installation, and the morale and discipline of the entire force hung in the balance. See generally id The Center for Law and Military Operations recognizes the inherent differences in lessons stemming from when they arise. Accordingly, a goal for the longer term is to bring together judge advocates from diverse military operations to compare notes and assemble wisdom concerning appropriate priorities in the early hours after arrival in the area of operations.
99 Readers may debate whether the categories represented in this report are optimal. For instance, there is herein no separate category of "operational law," which other authorities have sometimes used to denote a relatively narrow set of topics, such as rules of engagement, treatment of detainees, civil affairs, and law of war. See, e.g., FM 27- 100, supra note 9, at 1-9g; DSAT REPORT, supra note 3, at Operational Law- I and Operational Law-2. Instead, the topics traditionally gathered under this category are broken out into their own categories, and the term operationall law" is used as an umbrella term under which all of the categories in this report will fit. Similarly, whereas other authorities have created special categories for environmental law and labor and employment law, the Haiti intervention did not frequently implicate these areas; as a result, this report collapses these tremendously important areas of operational law back into the topic of Administrative and Civil Law. See infra note 415 (discussing isolated instances in which environmental law and labor law issues arose). During its internal debates over the merits of various schemes of classification, CLAMO has been guided by the famous words of Mr. Justice Holmes: "The life of the law has not been logic: it has been experience." OLIVER WENDELL HOLMES, THE COMMON LAW xxi-xxii (Mark DeWolfe Howe ed., Little, Brown & Co. 1963) (1881).

90 Colonel Fred Green, An Address to the American Society of International Law, on the Subject of Implementing Limitations on the Use of Force: The Doctrine of Proportionality and Necessity (1992) (using this informal definition of ROE), reprinted in 86 Am. SOC'Y INT'L L. PROC.
3 9, 62-67 (1992); see also DEP'T OF ARMY, SUBJECT SCHEDULE 27- 1, THE GENEVA CONVENTIONS OF 1949 AND THE HAGUE CONVENTION No. IV OF 1907, para. 3a (29 Aug. 1975) (using this definition of ROE). Formally, ROE are "directives issued by competent authority that delineate the circumstances and limitations under which United States forces will initiate and/or continue combat engagement with other forces encountered." JOINT CHIEFS OF STAFF, PUBLICATION 1-02, DEP'T OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED TERMS 317 (1 Dec. 1989) [hereinafter JOINTf PUB. 1-02].


over-aggressiveness-can hinder mission accomplishment in such operations. Moreover, the mission will involve achievement of diplomatic or policy aims rather than prosecution of a war. Accordingly, ROE will be "conduct-based," in that decisions to use force must respond to hostile acts or intentions, rather than "statusbased," in which pre-declared enemy forces may be shot on sight. 91

Judge advocate involvement in drafting and disseminating ROE is heaviest in operations other than war, 92 and the Haiti deployment confirmed this modem trend. Rules of engagement serve three distinct yet overlapping types of purposes-legal, policy, and military. 93 The legal purposes that ROE serve include fulfillment of United Nations Security Council resolutions, compliance with international agreements applicable in peacetime, and respect for host nation laws. Executive branch policy purposes may not be apparent in the face of conflicting directives. Achievement of military purposes requires familiarity with weapons systems and tactics. Consequently, judge advocates are well equipped to provide the interpretive and other assistance Commanders need to issue effective rules.

Uphold Democracy marked the full integration of Joint ROE
terms, concepts, and procedures into a land force operation other than

92 See Martins, supra note 86, at 27, 52-54 (charting essential differences between wartime and peacetime rules of engagement, noting the large base of doctrinal and training materials available for wartime rules, and citing modem operations in which wartime ROE issues "when they finally arose, were relatively simple to resolve"); see also Colonel W.H. Parks, USCMR, No More Vietnams, UNITED STATES NAVAL INSTITUTE PROCEEDINGS, Mar. 199 1, at 27-28 (noting the contrast between Vietnam, in which rules of engagement were complicated by policy constraints far more complex and restrictive than the law of war, and Desert Storm, in which battlefield commanders were returned the responsibility to prosecute operations within the law of war); FM 100-5, supra note 13, at 134 ("In operations other than war, these ROE will be more restrictive, detailed, and sensitive to political concerns than in war. Moreover, these rules may change frequently.").
93 See Captain Ashley Roach, USN, Rules ofEngagement, NAVAL WAR C. REV. 46, 48 (1983).


war. Although standing joint peacetime rules had been in effect since 1986, 94 their security classification (secret), orientation (naval and air force), and applicability (superseded in times of conflict) frustrated widespread use by land forces. 95 The technical terms "hostile act," "hostile intent," and "proportionality" might or might not have appeared in a corps or division operations plan in the early 1990's. 96 The joint system of ROE supplementation might or might not have received emphasis in land force exercises and evaluations. 97

Two particularly telling facts reflect the incompleteness ofjoint ROE integration in land forces before the Haiti deployment. First, keystone Army doctrine as late as 1993 included no mention of the existence of a standing set of rules in several passages discussing ROE. 98 Second, the Army's rapid deployment corps continued to employ its own unique terminology as late as early 1994. 99 By D-Day of Operation Uphold Democracy, however, United States land forces had assimilated the joint ROE apparatus. 100

94 SECRET Memorandum, Joint*Chiefs of Staff, subject: Peacetime Rules of Engagement (PROE) (28 Oct. 1988) (superseding 1986 Memorandum of identical subject). See generally Martins, supra note 86, at 33-45 (charting the development of standing rules).
95 See, e.g. International Law Note, "Land Forces Rules ofEngagement Symposium: The CLAMO Revises the Peacetime Rules ofEngagement, ARMY LAW., Dec. 1993, at 48.
% See Martins, supra note 86, at 57-58.
97 See id. at 54.
98 See FM 100-5, supra note 13, at 2-3 to 24, 134.
99 See Stai Memorandum, supra note 35, at 6 ("XVIII Abn Corps had long used its own
terms, such as 'suspicious actor" and "hostile actor"; its own unclassified definitions of "hostile act" and "hostile intent"; and its own OPLAN format rather than the Joint Operation Planning and Execution System (JOPES) format.").
100 See, e.g., Wishard Interview, supra note 72 (describing numerous examples in which infantry privates deployed to Haiti understand the meaning of "hostile act" and "hostile intent"). Three reasons explain the recent assimilation. First, the core of the new standing rules of engagement is unclassified. See SECRET CHAIRMAN OF THE JOINT CHIEFS OF STAFF, INSTRUCTION 312 1.01, STANDING RULES OF ENGAGEMENT FOR U.S. FORCES (I Oct. 1994) (including a unclassified portion, Enclosure A, intended for wide distribution). Second, recent missions for land forces in Somalia and northern Iraq have accustomed judge advocates and commanders to use the supplemental structure of the joint ROE apparatus. Third, the placement of operations other than


1. Be Prepared for Controversy Over Protection of Foreign Nationals. This apparatus received great public scrutiny in the initial phase of the deployment. Prior to D-Day, commanders, judge advocates, and other staff officers concentrated on two alternative sets of ROE,, corresponding to the two plans for entry into Haiti."'1 The forced-entry plan was to employ ROE in which the FAd'H was declared a hostile force. Appendix G reprints the card summarizing the ROE for soldiers. The permissive entry plan was to employ ROE that declared no forces hostile, but that permitted use of force in response to hostile acts or indications of hostile intent. Appendix H contains the ROE for the permissive entry plan, while Appendix I reprints the soldier card for that plan. After the Carter-Jonassaint agreement was signed, the two plans were melded, and various portions of each plan survived in the melded version. The ROE and card for the permissive entry plan were among the portions that survived.'102

Prior to D-Day, judge advocates and other officers at United
States Atlantic Command and the I10th Mountain Division recognized a lack of express guidance in the ROE with respect to violence committed by one Haitian against another.103 The mission was to establish a secure and stable environment, and in the context of a permissive entry, the Joint Chiefs of Staff understandably believed that conducting police duties in the streets of Port-au-Prince could defeat rather than help create such an environment. 14Nevertheless, on 18 September, D- 1, USACOM requested, and JCS ultimately approved,

war into keystone Army doctrine has created unprecedented emphasis upon ROE within the land forces. See, e.g., Dep't of Army, Training Circ. 7-98-1, Brigade and Battalion Operations Other Than War Training Support Package, Ch. 2, Lesson 4 (May 1995) (as yet unapproved draft, a copy of which is on file with CLAMO) (containing 32 pages entitled "Rules of Engagement Application").
101 See Stai Memorandum, supra note 35, at 1-32.
12See Wishard Interview, supra note 72.
13Id; Woods Interview, supra note 34.
104 Woods Interview, supra note 34.


additional guidance that expressly permitted soldiers to use deadly force against persons committing serious criminal acts. 105 USACOM transmitted this additional guidance to CJTT 180, and the latter headquarters transmitted same to CJTF 190 headquarters. 106 Meanwhile, I Oth Mountain Division soldiers who would eventually enter Haiti continued to carry and study the card containing permissive-entry ROE but lacking the additional guidance on Haitian violence against Haitians. 107 This card, Appendix I, bore the date 6 September 1995.

Cards containing the additional guidance were not issued until 21 September. 108 In the meantime, ROE had jumped into news headlines around the United States. As recounted in part ILA above, on 20 September Haitian police and militia brutally beat demonstrating Aristide supporters. Among the persons beaten was a coconut vender, who died after about five minutes of continuous clubbing, in view of United States soldiers, and after some of the fatal attack had been videotaped. Networks and newspapers in the United States widely 109 reported the killing and the decision of the soldiers not to intervene.

105 Id.
106 See Message, Headquarters, Combined Joint Task Force 180, subject: Change One to Rules of Engagement ISO OPORD 2380-95 (211008 Sep 94).
107 Woods Interview, supra note 34.
109 Coordination of printing ROE cards required great energy and attention to detail, given the rapid pace of events. See Stai Memorandum, supra note 35, at 28 (describing events on 15 Sept. 1994) ("With time running out, MAJ [Kyle] Smith recommended that we print the ROE cards based on our best assessment of what the final changes would be. The total cost of printing 43,000 hostilities ROE cards, 43,000 CMO ROE cards, and 1,000 air ROE cards was about $ 1,000."); Office of the Staff Judge Advocate, 10th Mountain Division (Light Infantry), Operation Uphold Democracy, Multinational Force Haiti After-Action Report, 29 July 1994-13 January 1995, at 5-6 (May 1995) [hereinafter 10th Mountain Div. AAR] ("Although we produced sufficient cards for all soldiers in the operational area, imperfect distribution, unexpected unit arrival, and individual loss of cards led to shortages. Future ROE card production should aim for three times the number of soldiers in theater. This amount should cover the need for replacement cards.").
109 See, e.g., Kenneth Freed, Haitian Police Attack Crowds as American Troops Look on; At Least One is Killed andDozens Injured as Local Forces Disperse Demonstrators Welcoming Arriving Soldiers; U.S. Policy Leaves Issue of Civil Order to Haitian Authorities, Los ANGELES


Then, on 21 September, units in CJTF 180 distributed on new cards the additional guidance pertaining to violence by Haitians against Haitians.'110 News reports widely attributed this "change" in the ROE to embarrassment over media coverage from the day before.'

Spokesmen and commanders, advised by judge advocates, appropriately stressed the mission to establish a "stable and secure environment," and to maintain "essential civic order."' 12 They also emphasized troops' obligation to respect the Carter-Jonassaint agreement, which had reserved a role for the FAd'H. 13 Although
these responses effectively defused the criticism and media attention soon turned toward other aspects of the operation, the visibility and potential controversy of ROE provide an important lesson learned for judge advocates in operations other than war.

TIMES, Sept. 21, 1994, at Al1; T.J. Milling, Haitian Police Savagely Club Demonstrators; Man Beaten to Death at Port; Disgusted G.I. 's Forced to Watch, HOUSTON CHRON., Sept. 21, 1994, at AlI; Julian Beltrame, US. Troops Watch as Haitians Beaten; At Least One Killed, N.Y. TIMES, Sept. 21, 1994, at AlI; Mark Matthews, US. Forces' Failure to Intervene in Haitian-on-Haitian Violence Raises Questions, BALTimoRE SUN, Sept. 21, 1994, at 1 IA.
11 e Appendix J to this report, at para. 7 ("Persons observed committing serious criminal acts will be detained using minimal force necessary up to and including deadly force. Serious criminal acts include homicide, aggravated assault, rape, arson and robbery.").
IISee, e.g., Douglas Farah, US Warns Haitian Leaders on Abuses; GI Patrols Stepped Up to Stop Civilian Beatings, WASH. POST, Sept. 22, 1994, at Al1; T.J. Milling, U.S. Troops Cleared for Deadly Force, HOUSTON CHRON., Sept. 23, 1994, at AlI ("The rules of engagement have been changed five times since a delegation led by former President Carter struck an 11Ith-hour peace accord Sunday. The latest changes have given troops more latitude in dealing with civil unrest. They were apparently in response to public criticism of the troops' inaction while Haitian military and police brutally beat demonstrators calling for the return of democratically elected President Jean-Bertrand Aristide."); Geordie Greig & James Adams, Sleeping with the Enemy, SUNDAY TIMES, Sept. 25, 1994 ("Rules of engagement which did not permit American forces to open fire unless they were threatened were too narrow and were changed the next day.").
112 See, e.g., Freed, supra note 109 (quoting spokesman Colonel Barry Willey); Brigadier General John Altenburg, Staff Judge Advocate, XVIIIth Airborne Corps, Remarks Before the Haiti After Action Review Conference in Charlottesville, VA (May 8, 1995) (videotape on file with CLAMO) [hereinafter Altenburg Remarks]; see also infra notes 269-274 and accompanying text.
113 See Altenburg Remarks, supra note 112.


Z Use Situational Training. Judge advocates who deployed or prepared to deploy to Haiti agree that soldiers benefit from situational training on the ROE. According to Army training doctrine, situational training exercises (STX's) focus on one or a small group of taskswithin a particular mission scenario-and require that soldiers practice until the tasks can be executed to some preestablished standard. 114 Some authorities refer to the scenarios as "vignettes, and to this t pe of training as "lane tra ,:; _1 g.,, 115 To conduct STX's on ROE, a commander, judge advocate., jr other trainer places a soldier in a particular simulated METT-T1 16 and then confronts him with an event, such as the crashing of a traffic checkpoint barrier by a speeding vehicle. The trainer evaluates the soldier's response, and afterward discusses alternative responses available within the ROE. The STX brings to life abstract rules on the ROE card, giving the soldier concrete terms of reference within which to determine his response. In this way, the soldier achieves the balance between initiative and restraint so important to success in operations other than war. 117

A debate continues over whether it would be wise to establish default rules in the form of a common task upon which soldiers could train-before the deployment. Some senior judge advocates express principled concerns that to do so risks oversimplifying responses that must be based on judgment, or creates a false sense of security in commanders who have concerns about ROE, or causes too much emphasis to be placed on restraint and thus erodes the warrior spirit

114 DEP'T OF ARMY, FIELD MANUAL 25-10 1, BATTLE FOCUSED TRAINING at C-7 (Sept. 1990) [hereinafter FM 25-10 1 ].
115 See, e.g., JTF COMMANDER'S HANDBOOK, supra note 9 1, at 76; FM 25-10 1, supra note 114, at 3-20, 4-8, 4-13, 4-22, 4-23, 4-24, 4-3 7, 442 & 446.
116 See, e.g., DEP'T OF ARMY, SOLDIER TRAINING PUBLICATION No. 2 1 -11-MQS, MILITARY QUALIFICATION STANDARDS 11: MANUAL OF COMMON TASKS FOR LIEUTENANTS AND CAPTAINS 386 (31 Jan. 1991) (Task 04-3303.02-0014, Prepare Platoon or Company Combat Orders) (describing the factors of "mission, enemy, terrain, troops, and time available").
117 See generally Martins, supra note 86, at 90-92 (extolling the virtues of scenario training).


essential for victory in combat. 18Other judge advocates maintain that truly effective STX's require some standard against which to evaluate the soldier's response, and that even a nicely worded ROE card has limited value as a training tool if it arrives on the scene during the deployment.'19 The former group generally has reservations about mnemonics that some unit commanders have adopted in efforts to make STX's more effective; the latter group generally supports the use of such mnemonics. 120

Both sides of the debate agree, however, that before and during the operations in Haiti, vignette training made a positive difference in soldier preparedness. The most elaborate ROE training took place in

118 See, e.g., Altenburg Remarks, supra note 112; Brigadier General Walter Huffinan,
Assistant Judge Advocate General for Military Law & Operations, Remarks Before the Haiti After Action Review Conference in Charlottesville, VA (May 8, 1995) (videotape on file with CLAMO) [hereinafter Huffinan Remarks].
119 See, e.g., Mr. W. Hays Parks, Special Assistant to The Judge Advocate General, United States, for Law of War Matters, Remarks Before the 2d Annual Rules of Engagement Conference in Fort Bragg, NC (Nov. 10, 1994); Martins, supra note 86; Colonel F. M. Lorenz, USMC, Rules of Engagement in Operation United Shield, at 8 (16 May 1995) (draft manuscript of article soon to appear in Military Review); 10Oth Mountain Div. AARZ, supra note 108, at 5.
120 See, e.g., Martins, supra note 86, at 86-90 (proposing "R-A-M-P"); infra Appendix L
(utilizing "A-R-M-E-D"). The idea of putting notes onto a card that soldiers may carry with them is a popular response to many operational challenges. See, e.g., Memorandum, Staff Judge Advocate, 25th Infantry Division (Light) and U.S. Army, Hawaii, APvG-JA, to G-3 Plans, subject: Haiti and Uphold Democracy Lessons Learned, para. Ilf(2) (28 Apr. 1995) [hereinafter 25th ID Lessons Learned Memorandum] ("A medical ROE card should be published and disseminated in the same manner as the use of force ROE card, and medical ROE vignettes should be added to the use of force training scenarios.") (copy on file with CLAMO); Memorandum, LTC Arthur L. Passar, AMSMI-GC-AL-D, to Staff Judge Advocate, U.S. Army Material Command, subject: After Action Report, Legal Support to Joint Logistics Support Command, Joint Task Force 190, Haiti, Operation Uphold Democracy, September 1994-March 1995, at para. 6h(iv) (11I May 1995) [hereinafter Passar AAR] ("Though [soldier claims of ignorance of the prohibition against souvenir-taking] were not necessarily credible, and without legal significance even if true, I would advise minimizing such claims by providing each soldier in a deployment with a card summarizing any similar punitive order just as we do rules of engagement."). Nevertheless, no one advocating use of soldier cards harbors illusions that such cards are a panacea. See, e.g., LIEUTENANT GENERAL W.R. PEERs, THE MY LAI INQUIRY 230 (1979) (noting that "[sleveral of the men [of Task Force Barker] testified that they were given [Military Assistance Command, Vietnam's] "Nine Rules" and other pocket cards, but. ... they had put the cards in their pockets unread and never had any idea of their contents ...


Camp Santiago, Puerto Rico, where a judge advocate and other soldiers from 194th Armored Brigade conducted STX's for a battalion of Combined Caribbean soldiers, a Bangladeshi battalion, a Guatemalan battalion, and a group of international police monitors that eventually deployed to Haiti as part of the M4NF. 121 This meticulously planned and well-resourced training consisted of a circuit of six lanes, comprising 18 different vignettes. The availability of a 9-day block in which to conduct the STX's permitted soldiers to experience repetitive reinforcement of key rules, and to practice until their performance achieved the high standard set by the trainers. Appendix K reprints the sheets used by trainers as they evaluated soldiers' responses during the vignette. Even when lack of time made full STX's impossible, soldiers benefited from briefback sessions based on vignettes.12 Appendix L
reprints a card used as a basis for briefbacks by the 82d Airborne Division prior to D-Day. 123

121 See Memorandum, Brigade Judge Advocate, 194th Armored Brigade (Separate),
AFVL-JA to Staff Judge Advocate, XVIII Airborne Corps, subject: After Action Report for Judge Advocate Participation in Uphold Democracy (19 Dec. 1994) [hereinafter 194th Armored Brigade AAR] (on file with the CLAMO).
122 See, e.g., UNITED STATES ARMY TRAINING AND DOCTINE COMMAND, CENTER FOR ARMY LESSONS LEARNED (CALL), NEWSLETTER No. 95-2, PEACE OPERATIONS TRAINING VIGNETTES (Mar. 1995) (including 18 vignettes developed by CALL in conjunction with the 25th Infantry Division (Light) in preparation for that unit's deployment to Haiti in January of 1995); Passar AAR, supra note 120, at 12-13 (describing ROE briefback sessions); Office of the Staff Judge Advocate, XVIIIth Airborne Corps, Conduct Combat Operations According to the Rules of Engagement (July 1994) (consisting of 23 pages of performance-oriented training materials prepared by Major Brad Stai and Captain Query Erisman) (copy on file with CLAMO); Office of the Staff Judge Advocate, I10th Mountain Div. (Light Infantry), Combined JTF Haiti ROE Training Lesson Plan and Vignettes (Aug. 1994) (including 38 vignettes anticipating conditions in Haiti).
123 It is difficult to overstate the success a wide range number of units have experienced with situational training on ROE. One staffjudge advocate heavily involved with Operation Safe Haven, see supra notes 70-71 and accompanying text, and with subsequent migrant operations offered the following comments:
From our experience in Panama in Operations Safe Haven and Safe Passage, we realized that situational training plays a major role in the successful execution of an operational mission. Our situational training for Operation Safe Passage was
created with combined efforts of Judge Advocates (JA's) and 10 1st Airborne Division officers to ensure realistic scenarios and practical responses. Classes were taught by JA's and Airborne officers. After the classes, each commander


3. Be Willing to Take the Lead in Multinational ROE
Development. The Haiti deployment provided unique opportunities for United States forces to develop ROE in conjunction with forces from other nations and with civil authorities from the United Nations. Prior to the arrival in Haiti of the international components of the MNF, commanders of United States forces sought to ensure that all members of the N4NF would be implementing the same guidance on the use of force.124 Commanders of international units,, meanwhile, occasionally expressed concerns about whether the ROE were consistent with their countries' national policies or military doctrine regarding the use of force. 125 Later, in early 1995, during the transition from the N4NF to UNNHH, officials in the United Nations sought to create ROE that resemble those used in peacekeeping operations elsewhere in the world, while the United States component of the UNMIH force articulated its interest in rules consistent with a peace enforcement mission. 126

Energetic participation by judge advocates in the drafting process helped ensure that final products reflected the legitimate

practiced the situational training in the field with his/her troops. the soldiers felt well-prepared and thoroughly understood the ROE. The soldiers were sensitized to potential problem situations, and had rehearsed their responses to them. That,
in turn, reduced reaction time during the actual operation. The operation was
executed with precision and confidence.... Situational training is not just
beneficial, it is vital. When properly prepared, taught, and practiced, situational training can save lives because soldiers can swiftly and instinctively react to all
situations within the guidelines of the ROE.
Memorandum, Staff Judge Advocate, Headquarters, United States Army South, Unit 7104 SOJA, subject: Review of the Draft Law and Military Operations in Haiti, 1994-95: Lessons Learned for Judge Advocates, paras. 2-3 (16 Nov. 1995) (copy on file with CLAMO) (recommending revision of the draft to place greater emphasis on the value of situational training).
124 See 194th Armored Brigade, supra note 12 1, at Observation Number 1.
125 See id.
126 Letter from Colonel David Petraeus, U-3 of United Nations Mission in Haiti, to Major Mark Martins (Mar. 17, 1995) (on file with CLAMO).


interests of all sides. 17These judge advocates benefited by having a completed draft available as a basis for discussion, particularly in circumstances when a nation's military doctrine or experience have never incorporated ROE. When developing ROE in conjunction with the United Nations, diplomatic or policy constraints occasionally dictated language peculiar to United Nations operations. 18In these cases, the availability of a complete, preferred alternative gave United States judge advocates and commanders a medium with which to communicate their concerns.12 Appendix Mreprints the full text of
the ROE eventually issued for UNMvIH. Appendix N reprints the soldier card.

After the drafting stage had passed, judge advocates participated in developing situational training exercises effective in reinforcing the UNMIH ROE. 10As the June 1995 parliamentary elections approached, vignettes pertaining to balloting sites received particular training emphasis. 11Also, once newly trained police forces had been

17Id; Hudson Interview, supra note 65; Telephone Interview with Major Mark
Ackerman, International & Operational Law Division, Office of the Judge Advocate General (Mar. 29, 1995).

129 Id. Frequent areas of friction include the question whether deadly force may be used to protect any property, even mission-essential property, and whether troops may intervene to prevent harm to civilians; see also Office of the Staff Judge Advocate, United States Atlantic Command, Transition to UN Mission in Haiti (UNMIH): Uphold Democracy AAR, at 2c (May 1995) (unpublished issue sheet on file with CLAMO) ("Good result obtained by US UN commander, US JA advisor, and more aggressive UN5R 940 mandate.").
130 See generally Headquarters, United Nations Mission in Haiti, United Nations Forces In Haiti: Force Training Program, Annex C (3 Mar. 1995) (consisting of 59 pages of training viewgraphs on rules of engagement, including discussions of I1I vignettes) (copy on file with CLAMO).
VIGNETTrES (May 1995) (10 page document containing 8 vignettes labeled as follows: Vignette IRoutine, Peaceful, Organized Electoral Operations; Vignette 2-BIV [registration and voting bureau] Runs Out of Ballots or Time; Vignette 3-BIV Fails to Open; Vignette 4-Political Party or Candidate Complain of Fraud (Name Not on Ballot or Some Other Injustice); Vignette 5-Voters Complain of Intimidation; Vignette 6-Noisy Demonstration Outside BEC [departmental electoral


deployed in Port-au-Prince and other communities, vignettes relating to instances of Haitian violence against other Haitians received added emphasis.'132 These police forces in many instances still wore civilian clothes while executing law enforcement missions, requiring UINMH soldiers to be extremely alert when facing an apparent situation of Haitian-on-Haitian violence.

B. International Law

Military operations other than war such as those undertaken by the MINF and UNMIH in Haiti challenge traditional categories of international law. In one respect, the United States was acting as an agent of the United Nations and was exercising authority granted to it by that body. United States troops in Uphold Democracy were contributing to a "peace enforcement" action, authorized by a Security Council resolution that expressly invoked Chapter VII of the United Nations Charter.133 United States soldiers participating in UNMvIH were "peacekeepers," members of a type of force authorized under Chapter VI of the Charter.'134

bureau] or BIV; Vignette 7-violent Demonstration Outside BEC or BIV; Vignette 8-Shots Fired at a BIV or BEG) (copy on file with CLAMO).
132 Memorandum, COL K. M. Huber, U-3, United Nations Mission in Haiti, to Distribution C, subject: Rules of Engagement Training, at para. 3 and ends (1 Nov. 1995) (enclosing 3 situational training exercises).
133 See S.C. Res. 940, U.N. SCOR, 49th Sess., 34 13th mtg., at para. 4, U.N. Doc.
S.RES/940 (1994); An Agenda For Peace-Preventive Diplomacy, Peacemaking, and Peacekeeping: Report of the Secretary-General, para. 44, U.N.G.A., 47th Sess., U.N. Doc. A 47/277 (1992) ("[Peace enforcement units] would have to be more heavily armed than peacekeeping forces and would have to undergo extensive preparatory training within their national forces. .. I consider such peace-enforcement units to be warranted as a provisional measure under Article 40 of the Charter. Such peace-enforcement units should not be confused with the forces that may eventually be constituted under Article 43 to deal with acts of aggression ....
134 See, e.g., Salley Morphet, UN Peacekeeping and
Monitoring, in UNITED NATIONS, DIVIDED WORLD 183, 201 (1994) (stating the guiding principles of peacekeeping to be "the important role of the UN Secretary-General and of UN command-albeit one that the Permanent Members [of the Security Council] had to keep an eye on;


In another respect, the United States and Haiti were acting as separate sovereign states in the international community of states, subject to the law-treaty-based and customary-that governs relations between states. 135 Because the deployment was permissive and did not involve international armed conflict, a bod of law applicable to states in wartime did not strictly apply, 13V eventhough the presence of thousands of armed troops and the displacement of thousands of civilians and noncombatants created compelling analogies to that body of law. The prevailing regime was the international law of peace, and under this regime a sovereign host nation applies its domestic laws within its territory. 137 This is part of the meaning of sovereignty. 138

the necessity for agreement, both at the UN and on the ground, of the political parameters of the operation, including the need for consent of the host states, and also, in some cases, of the other main parties involved; the fact that those engaged in peacekeeping had to maintain neutrality and impartiality (as peacekeepers not peace enforcers) so that they could contribute to the management of the problem rather than risk becoming part of it; the fact that the military should not use force except in self-defence or to defend their positions; and the importance of creative flexibility (e.g. through use of police and administrators) in response to the varying situations that faced them on the ground").
135 RESTATEMENT ffi-nRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 101(2) (1986) [hereinafter RESTATEMENT] ("Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.").
136 See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 2, 6 U.S.T. 3316, 75 U.N.T.S. 135, [hereinafter Geneva Convention III]; Theodore Meron, Extraterritoriality ofHuman Rights Treaties, 89 Am. J. INT'L L. 78-82 (1995) ("The agreement of September 18, 1994, negotiated in Port-au-Prince between President Jimmy Carter and General Raoul Cedras, and its acceptance by the Aristide government, led to the consent-based, nonviolent, hostilities-free entry of U.S. forces and their peaceful deployment. In such circumstances, the Geneva Conventions on the Protection of Victims of War of August 12, 1949, are not, strictly speaking applicable.") (citing authorities).
137 See, e.g., RESTATEMENT, supra note 135, at 206 ("Under international law, a state has
sovereignty over its territory and general authority over its nationals.").
138 See id. at cmt. b ("As used here, ['sovereignty'] implies a state's lawful control over its territory generally to the exclusion of other states, authority to govern in that territory, and authority to apply law there.").


The prevailing Haitian legal system-to the extent that a
systeme" can be said to have survived the long history of repression and arbitrary rule-was part of the romano-germanic or civil law tradition, which it received from France. 139 In 1825, Haiti had adopted the French Napoleanic Code with minor changes. It had continued to build its legal system on the French pattern, a development reflected in the adoption of the French Commercial, Criminal, Civil, Civil and Commercial Procedure, and Criminal Procedure Codes.

In Haiti, as under other civil law systems, the principal sources of law are legislative codes rather than cases decided by judges. Haiti's 1987 constitution called for a bicameral legislature consisting of a Chamber of Deputies and a Senate, a judiciary consisting of courts of first instance, courts of appeal, and a supreme court, and an executive branch headed by a popularly elected president. Haiti was divided into nine administrative departments, each possessing a "prefet" who implemented decisions of the central government. Following the French model-and unlike the United States model of federalism-Haiti's administrative departments had no independent legislative power.

1. Understand the International Justfication for Use of Force and the Impact of Domestic Legislation. By repudiating the Governors Island Agreement and frightening thousands of citizens to take to the high seas, the junta threatened international peace and security and thus justified a temporary displacement of Haitian law and sovereignty. Despite the fact that the Haitian migrants created particular burdens for the United States, any forceful unilateral remedies taken against the de facto Haitian regime would have been legally questionable. The United Nations Charter generally outlaws the

139 This two paragraph discussion of Haiti's legal system is based on Chantal Hudicourt Ewald, The Legal System of Haiti4 in 7 MODERN LEGAL SYSTEMS CYCLOPEDIA at 7.21 0.3 to
7.2 10.35 (Kenneth R. Redden ed. 1985).


threat or use of force by one state against another, 10and the exception permittin use of force in individual or collective self defense is narrow. 14 However, a multilateral response pursued through duly constituted organs of the United Nations provided an international justification for use of force. The member states of the United Nations, in signing the Charter, clearly gave the Security Council broad power to act with respect to "any threat to the peace." 142

The series of Security Council resolutions addressing the crisis in Haiti put abundant meat on the legal framework justifying the deployment and provided useful guideposts to judge advocates on the ground. Resolution 940 authorized the NqF "to use all necessary means" to restore the Aristide government and "to establish and maintain a secure and stable environment." 143 Resolution 944 provided further direction to the MNF and guided the timing of UNNIH 's deployment.'144 Resolutions 841, 873, 875, 905, and 917 gave operational lawyers a detailed account of the international response to the Haiti crisis and a helpful historical context for their counsel to commanders. The Carter-Jonassaint agreement of 18 September-on its face a bilateral instrument-incorporated Resolutions 940 and 917 by reference.'145 This agreement further

140 U.N. CHARTER art. 2, para. 4.
141 U.N. CHARTER art. 5 1; REsTATEMENT, supra note 135, at 904.
141 U.N. CHARTER art. 39; Conrad K. Harper, Legal Adviser, Dep't of State, Legal Authority for Peace Operations, Statement Before the Legislation and National Security Subcommittee of the House Government Operations Committee (Mar. 3, 1994) (copy on file with CLAMO) ("To begin with, the United Nations Charter provides an extensive and flexible international legal fr-amework for the conduct of peace operations. ... Chapter V11 of the Charter authorizes the Security Council to determine the existence of a threat or breach of the peace or act of aggression and to make recommendations or decide on measures of a mandatory character to restore or maintain the peace... .UN Member States are required by the UN Charter to carry out decisions of the Council.").
13See supra quotation in text accompanying note 24 and Appendix B.
'44See S.C. Res. 944, U.N. SCOR, 49th Sess., 3430th mtg., at paras. I & 2, U.N. Resolution provided additional guidance for the MNE.").
145 See Appendix C infra.


instructed United States forces that "the Haitian military and police forces will work in close cooperation with the U.S. Military Mission" and that "[flhis cooperation, conducted with mutual respect, will last during the transitional period required for insuring vital institutions of the country." 146 These texts, because they were continuously consulted by judge advocates, ensured that the Haiti deployment followed the rule of international law. 147

It is important to distinguish these international constraints on the operation from certain closely related constraints that stem from domestic United States law. The United Nations Participation Act limits to 1000 the number of United States military personnel that may be assigned to United Nations peacekeeping operations worldwide. 148 Because more than 800 United States soldiers were serving in other peacekeeping operations prior to the constitution of UNMIH, this cap imposed a severe constraint on the latter phases of the Haiti deployment. 149

Other domestic laws also imposed constraints that merited the
attention of operational lawyers. The War Powers Resolution contains reporting requirements with respect to deployed United States forces that are "equipped for combat;" 150 accordingly, while War Powers

146 Id.
147 See, e.g., Smith Interview, supra note 40.
148 United Nations Participation Act of 1945, 7(a)(1), Pub. L. No. 79-264, 59 Stat. 619 (amended by legislation and codified at 22 U.S.C. 287d-1(a)(1) (1988 & Supp)) [hereinafter UNPA] (comprising one of the nine sections of the Act that are codified at 22 U.S.C. 287 to 287e-1).
149 Lieutenant Colonel Richard B. Jackson, Office of the Staff Judge Advocate, United States Atlantic Command, Remarks Before the Haiti After Action Review Conference in Charlottesville, VA (May 9, 1995) [hereinafter Jackson Remarks] (videotape on file with CLAMO); Memorandum, Office of the Chairman, The Joint Chiefs of Staff, Office of the Legal Advisor, to The Legal Advisors and Staff Judge Advocates of the Combatant Commands, subject: Chairman's Legal Counsel Newsletter V, para. 4 (22 Mar. 1995) [hereinafter Chairman's Legal Counsel Newsletter].
150 War Powers Resolution of 1973, sec. 4 (2), Pub. L. No. 93-148, 87 Stat. 555 (codified at 50 U.S.C. 1543(2) (1988 & Supp.)).


reports became unnecessary when the United States deployed lightly armed UNN4IH peacekeepers, 151 deployment of soldiers with the MINF arguably triggered such reports. On the other hand, because NF soldiers performed their duties under the operational control of United States leadership, the United Nations Participation Act limit did not apply. During all phases of the deployment, meanwhile, the purpose statute 12in conjunction with the Foreign Assistance Act 13and the Arms Export Control Act'154 placed limits on the extent to which United States forces could provide defense articles, military training, or other defense related services to either Haiti or other participant states.'155

2. Expect to Practice Law Without the Benefit of a SOFA. As soon as the MNF had established a secure and stable environment and the Aristide government had resumed power, some agreement became necessary to define the legal status of United States troops on Haitian

151 In addition to light armament, peacekeepers also have ROE that stress the maintenance of neutrality vis a vis the warring factions. See supra note 134. This is a another factor militating against applying the War Powers reporting provisions.
152See 31 U.S.C. 1301(a).
13Foreign Assistance Act of 1961, 75 Stat. 434 (amended by more than 15 subsequent pieces of legislation and codified at 22 U.S.C. 2301-2349aa-9 (1988 & Supp.) (comprising ch. 32 ("Foreign Assistance"), subch. Il ("Military Assistance and Sales")) [hereinafter FAA].
154 Arms Export Control Act of 1976, 90 Stat. 734, (amended by more than 8 subsequent pieces of legislation and codified at 22 U.S.C. 2751l-2796c (1988 & Supp.) (comprising ch. 39 ("Arms Export Control")) [hereinafter AECAI.
155 Note that section 628 of the Foreign Assistance Act authorizes the President to detail personnel to international organizations "to render any technical, scientific, or professional advice or service to. ... such organization." 22 U.S.C. 2388. Given the 1000 person restriction in the United Nations Participation Act, see note 148 supra, the majority of personnel constituting the 2400 person United States contribution to UNMIH needed to fall under this description. See, e.g., Chairman's Legal Counsel Newsletter, supra note 149, at para. 4 (stating that "the 2400+ troops required of the United States for the UNMIH operation must be detailed to the UN under a combination of these two authorities"); Memorandum, Mr. John McNeill, Acting Principal Deputy General Counsel, Dep't of Defense, to The Deputy Assistant Secretary of Defense for Peacekeeping and Peace Enforcement Policy, subject: Authorities for Assignment of U.S. Military Personnel to Peace Operations (27 Sept. 1993) (opining that a MASH unit deployed to the former Yugoslavia could properly be deemed "technical, scientific, or professional").


soil. Otherwise, these troops would be subject to Haitian laws that could impede their activities and frustrate the political, diplomatic, and strategic objectives that impelled their deployment. In prior centuries, no express agreement was necessary to establish the status of military forces stationed in foreign lands. A sovereign state automatically ceded a portion of its territorial jurisdiction to another when the latter state placed troops on the former state's soil. 156 This was th& doctrine of "extra-territoriality," under which a grant of permission by a state to station foreign troops in its territory implicitly contained a broad waiver of jurisdiction. Today, however, this doctrine is in doubt. 157

Yet for four reasons, modem operations other than war often make the rapid conclusion of a comprehensive and detailed status of forces agreement difficult. First, the hope that the deployment will be short in duration and the presence of many other pressing demands on diplomatic resources tend to make the conclusion of a SOFA a lessthan-urgent priority. 158 Second, the host nation-if it has a functioning government at all--often may have no well-developed or efficient apparatus with authority to negotiate and conclude agreements. Third, even if the host nation is ready, willing, and able to

156 Coleman v. Tennessee, 97 U.S. 509, 515 (1878).
157 Lauritzen v. Larsen, 345 U.S. 571, 584-85 (1952); see also DEP'T OF ARMY, PAMPHLET 27-16 1 1, LAW OF PEACE at I I I (Sept. 1979) [hereinafter DA PAM 27-16 1 11. But see MANUAL FOR COURTS-MARTIAL, United States, R.C.M. 201 (d) analysis, app. 2 1, at A21-8 (1984) [hereinafter MCM] ("With respect to the exercise ofjurisdiction by the United States or a foreign government, Wilson v. Girard, 354 U.S. 524 (1957), establishes that the determination of which nation will exercise jurisdiction is not a right of the accused."); infra notes 351-352 and accompanying text (finding vitality in the doctrine of extra-territoriality).
158 For small missions of a short duration, standing authority exists for the Department of Defense to negotiate and conclude simple status of forces agreements that provide members of the contingent the same status as members of the technical and administrative staff of the United States Embassy, who are granted criminal immunity and a few other limited privileges by preexisting international law. See Dep't of State, Action Memorandum, Circular 175 Procedure: Request for Blanket Authority to Negotiate and Conclude Temporary Status of Forces Agreements with the Sudan and Other Countries (Nov. 4, 198 1) (approved by Ambassador Stoessel on Nov. 6, 198 1) (citing Vienna Convention on Diplomatic Relations, Apr. 18, 1961, arts. 27, 29-35, 23 U.S.T. 3227, 500 U.N.T.S. 95).


become party to a SOFA, our own laws and regulations place significant though understandable constraints on who may negotiate and conclude international agreements with foreign states and on how that process must occur. 159 Fourth, United States forces may be present in Haiti representing either the nation or a variety of multinational entities, creating a need for bilateral as well as multilateral instruments.

Eventually, three different agreements governed the legal status of different United States soldiers in Haiti. The status of forces agreement reprinted at Appendix 0 defined the privileges, immunities, and responsibilities of the MNF. A United Nations Status of Mission agreement, reprinted at Appendix P, defined the status of Americans serving with UNNUH. A bilateral agreement between the United States and Haiti, reprinted at Appendix Q, governed those individuals who served in Haiti outside the umbrella of these international forces. 160 Although numerous existing agreements were available to provide models for judge advocates and diplomats seeking to articulate United States interests in negotiations, and although several dedicated and resourceful professionals led the United States effort, no SOFA was concluded before 22 December 1994. When this agreement-the MNF SOFA-went into effect, early issues that arose included the

160 See also Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 1 U.N.T.S. 15 (Convention acceded to by Haiti on 6 Aug. 1947).
Note that there existed other agreements between the United States and the many nations and international organizations represented in Haiti. See, e.g., Agreement Between the United States of America and the United Nations Organization Concerning the Provision of Assistance on a Reimbursable Basis in support of the Operations of the UN in Haiti (Sept. 19, 1994), cited in Memorandum, CPT Fred K. Ford, Chief of Claims and Legal Assistance, Multinational Forces Haiti, MNF-SJA, to Director of the Combined Joint Staff, subject: Treatment of UN Personnel at MNF Medical Facilities (16 Feb. 1995) (copy on file with CLAMO).


questions whether locally hired Haitians could use the Post Exchange and whether certain United States servicemembers on military flights need pay a $25 "departure fee" to Haitian authorities. 161

When advising commanders or soldiers on legal issues in a foreign country without the benefit of a SOFA, appreciation of that country's legal system takes on practical significance. Operational lawyers in Haiti appreciated the need for legal materials on Haiti and resourcefully solicited them from a variety of places; however, the paucity of material written in English limited the extent to which judge advocates could become knowledgeable of Haitian law. 162 The need for attorneys in the force to have such knowledge-for example in the areas of claims and civil affairs-is distinct from the need for troops to be aware of local laws and customs. 163 Both needs, however, reaffirm the wisdom of having pre-prepared and current country law studies and country studies available for distribution to deploying units. 164

3. Understand When The Law of Armed Conflict Does Not Strictly Apply. The mandate of the MNF in Haiti was not military

161 See, e.g., Passar AAR, supra note 120, at para. 6g(ii).
162 See, e.g., Stai Memorandum supra note 35, at 7-8, 19-21 (reporting that one judge advocate translated several Haitian statutes into English); see also SCHLESINGER, supra note 2, at 891-98 (describing bibliographies and other research tools for locating foreign law materials). See also Ewald, supra note 139 (representing the only Haiti country law study in English).
163 See DEP'T OF DEFENSE, CONDUCT OF THE PERSIAN GULF WAR: FINAL REPORT To CONGRESS 489-90 (1992) [hereinafter DOD FINAL REPORT] ("It is a tribute to American service men and women that, under conditions of considerable stress and hardship, they demonstrated impeccable respect for a culture much different than their own. They recognized the importance to their mission of the overall relationship between Saudi Arabia and the United States.").
INFORMATION, para. 14, 1-6, App. B (15 Dec. 1989) (requiring and explaining the importance of conducting formal criminal law studies for countries where United States forces may be stationed). Unfortunately, none of the commercial electronic legal databases contains foreign legal materials for smaller developing countries. See, e.g., Reed Elsevier, Inc., LEXIS-NEXIS Directory of Online Services (1995) (limiting coverage to materials from the United States, Canada, certain British Commonwealth countries, the European Community organization, France, and specific Middle East, African, and South American countries with developed commercial legal practices).


victory or occupation of hostile territory; rather it was "to establish and maintain a secure and stable environment. . ." 165 Moreover, the Carter-Jonassaint agreement-and the Aristide government's assent to that agreement-resulted in an entry that was based on consent and not hostilities between nations. Under these circumstances, the treaties and customary legal rules constituting the law of armed conflict do not strictly apply. 166 The law of armed conflict includes rules pertaining to the conduct of combat and safeguards that must be provided in time of war to the wounded and sick, to prisoners of war, and to civilians. 167

As a matter of policy rather than legal obligation, United States forces elected to treat potentially hostile persons detained during the operation as if they were prisoners of war. Humanitarian organizations and scholars commended this approach, given the overarching purpose of the Geneva Conventions of 1949 to accord basic fairness and other protections to persons taking no part in ongoing hostilities and to eliminate unnecessary suffering associated with conflict.' 68 Still, the details of this policy raised very practical issues for the judge advocates, military police and soldiers in the intelligence community who dealt with the several hundred persons who were detained at some point in the operations. This report addresses some of these specific issues below, in subpart IILD, in the context of detention issues. At this point, it suffices to note that quite a few of the 143 articles of the Geneva Convention Relative to the Treatment of Prisoners of War do not neatly translate from their intended context of war into an operation other than war. 169

165 S.C. Res. 940, U.N. SCOI 49th Sess., 3413th mtg., at para. 4, U.N. Doc. S.RES/940
166 See supra note 13 6.
167 See, e.g., DA PAM 27-16 1 1, supra note 157, at I I to 1-2.
168 See, e.g., Meron, supra note 136, at 78 ("This attitude deserves to be commended because the Geneva Convention ensures humane treatment and judicial guarantees.").
169 See, e.g., Geneva Convention III, supra note 136, at art. 60 (providing a monthly pay schedule for prisoners), art. 79 (providing for prisoner of war representatives), art. 84 (requiring


With respect to the law of occupation-that subset of the law of armed conflict that presumes an invader has rendered an invaded state incapable of self-government 17 --translation of the rules to operations in Haiti was still more problematic. United States policy maintained that the NM was not an occupying force, with good reason. 171
Treaties place affirmative duties on the occupying power to protect civilian inhabitants. An occupying force has a comprehensive duty to restore and maintain public order, 172 an obligation in tension with a specific provision of the Carter-Jonassaint agreement. Such a force must provide food and medical supplies to the general population, 173 a massive requirement that makes sense following an invasion by one

prisoners to be tried for offenses by a military court of the detaining power); Larry Rohter, Legal Vacuum is Testing US. Policy, N.Y. TIMES, Nov. 4,1994, at A32.
170 See, e.g., DEP'T OF ARmy, FIELD MANuAL 27-10, THE LAW OF LAND WARFARE at para. 352 (18 July 1956) [hereinafter FM 27-10] ("Occupation ... is invasion plus taking firm possession of enemy territory for the purpose of holding it."); id. at para. 355 ("Military occupation is a question of fact. It presupposes a hostile invasion, resisted or unresisted, as a result of which the invader has rendered the invaded government incapable of publicly exercising its authority, and that the invader has successfully substituted its own authority for that of the legitimate government in the territory invaded."). Cf DOD FINAL REPORT, supra note 163, at 6 10 ("Coalition forces [in the Persian Gulf conflict] acted briefly as an occupying power.").
171 Lieutenant General Henry H. Shelton, Commander of Combined Joint Task Force 180, Remarks During Press Conference at the United States Embassy in Port-au-Prince Haiti (Sept. 19, 1994) ("We have stressed from the beginning that this is not an occupation force."), quoted in A 'Cordial'Reception as Americans Take Control; Peacekeeping Troops Met No Resistance-and Some Cheers-As They Took Haitian Ports and Airfields. But Risks Remain High, THE ORLANDO SENTINEL, Sept. 20, 1994, at Al.
172 Annex to Hague Convention No. IV Embodying the Regulations Respecting the Laws and Customs of War on Land, Oct. 18, 1907, art. 43, 36 Stat. 2295, 205 Consol. T.S. 289 [hereinafter Hague Regulations] (stating that the occupying power "shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.") reprinted in FM 27- 10, supra note 170, at para. 363.
173 Geneva Convention Relative to the Protection of Civilians in Time of War, Aug. 12, 1949, art. 55, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Civilians Convention] ("To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.") reprinted in FM 27- 10, supra note 170, at para 3 84.


belligerent of another but that conflicts with the more limited contributions member states are requested to make when they assist in peace operations under United Nations auspices. These and other burdens borne by occupiers address material resources that the inhabitants of every underdeveloped country-not merely occupied populations-desire. Yet while the plight of these inhabitants arouses our sympathy and may be the basis for voluntary humanitarian aid, it does not give rise to an international legal duty to intervene. 174

174 Nor does any treaty outside of the law of armed conflict impose such a duty. Defenders of Captain Lawrence Rockwood, see infta subpart 111.1.2, have construed a peacetime treaty as imposing an obligation on individual members of the armed forces to investigate and police human rights violations committed by foreign officials on their own citizens. Lawyers Committee for Human Rights, Protect or Obey: The United States Army versus CPT Lawrence Rockwood 5(1995) [hereinafter Lawyers' Committee] (invoking International Covenant on Civil and Political Rights, Dec. 16, 1966, art. 2, 999 U.N.T.S. 171, 6 I.L.M. 368, entered intoforcefor the UnitedStates Sept. 8, 1992 [hereinafter Covenant] ) (reprinting an amicus brief submitted in opposition to a prosecution pretrial motion). Examination of the text of the treaty, however, reveals a more restrictive meaning. The treaty establishes a procedural apparatus under which a Human Rights Committee shall be formed and shall study and take action on reports of human rights practices submitted to it by states. However, the Covenant's language also reflects the understanding of the states party to it that the Covenant will not create new individual obligations or rights that tear at the fabric of discipline and good order essential to military operations: "Everyone shall have the right to freedom of association with others .... This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right." See Covenant, supra, at art 22.
Nor can customary international law serve as an authority for such an obligation. Captain Rockwood's defenders have also invoked this source of law. See Lawyers Committee, supra, at 5 ("These duties derive not from the UN Charter or from the treaties themselves, but from customary rules, acknowledged as firmly established law, of which the treaties are a concrete manifestation."); Id. (" . there is growing support for the view that even without separate warring sides, violence in a contested political situation may trigger customary humanitarian law governing non-international armed conflicts."). It is true, the United States Supreme Court has long recognized the binding character of customary international law. See The Paquette Habana, 175 U.S. 677 (1900) (holding that even in the absence of a treaty, "an ancient usage among civilized nations" had ripened into a rule of international law that exempted coast fishing vessels from capture as prize of war). Nevertheless, recall that "[c]ustomary international law results from a general and consistent practice of states followed by them from a sense oflegal obligation." RESTATEMENT, supra note 135, at 102(2) (emphasis added). The United States government is careful to maintain that treaties applicable to armed conflict do not apply to particular operations other than war, despite the fact that United States forces as a matter of policy follow all relevant rules and protections from those treaties during their operations. See, e.g. Letter from Abraham D. Sofaer, Legal Adviser to the United States Dep't of State, to Richard L. Thornburgh, United States Attorney General (Jan. 3 1, 1990) (explaining that "[p]risoner of war status is generally sought by captured individuals because


C. Intelligence Law

No issues from the body of law regulating intelligence activities received wide attention during the Persian Gulf War. 175 "Intelligence Law" is not one of the functional areas addressed in the Desert Storm Assessment Team Report. 176 Nor does official army doctrine for legal operations-written at the end of the cold war in support of AirLand Battle doctrine-list any aspect of intelligence law among the seven functional areas of legal services provided by the Judge Advocate General's Corps. 177 Legal concerns with intelligence functions
during military operations are a modem outgrowth of two factors: first, the strong public and political reaction against military intelligence activities that targeted Americans in dissident groups and that came to light in the mid- I 970's; 178 second, the dramatic change in the military threat away from an advancing Soviet column of tanks and artillery pieces toward a diverse collection of bad actors capable of harming national security through sporadic acts of violence at home or abroad. 179

persons entitled to such status may not be prosecuted for legitimate acts of war," and reporting that on December 20, 1989 the Departments of State and Defense had elected to extended protected treatment to members of the Panamanian Defense Force "even if they might not be entitled to these protections under the terms of Article 4 of Geneva Convention 111").
175 In this subpart, "intelligence law" will refer to rules governing intelligence activities. See Daniel B. Silver, Intelligence and Counterintelligence, in JOHN NORTON MOORE, FREDERICK S. DPSON & ROBERT F. TuRNER, NATIONAL SEcuRiTy LAW 913 (1990) [hereinafter NATIONAL SEcuRiTY LAW] (also including in the body of intelligence law relations between branches of government in controlling intelligence and having access to it, secrecy in the judicial process, and internal discipline in the intelligence community).
176 See DSAT REPORT, supra note 3.
177 See FM 27-100, supra note 9, at para. 1-9 (listing administrative law, claims, contract law, criminal law, international law, legal assistance and operational law).
178 See Silver, supra note 175, at 920.
179 See, e.g., Peters, supra note 2.


Even the open society can easily accommodate intelligence activities on the traditional battlefield. Intelligence collection, analysis, and dissemination coexist harmoniously with any urgent need to defeat an enemy army locked in mortal combat with our own forces. Yet the open society-at least in its American form-grows concerned at spying and kindred activities in peacetime. This truth complicates military operations other than war, increasing the demand for judge advocates to ensure that intelligence and counterintelligence assets are not so paralyzed by rules meant to protect basic liberties that the entire operation fails.' 80

Knowledgeable observers attribute part of the military success in Haiti to "joint intelligence."' 81 This term refers to a series of measures designed to bring the divers military and nonmilitary assets in the intelligence community to bear upon the Joint Task Force Commander's needs. Despite changes in intelligence law designed to unify intelligence efforts, 182 many regarded intelligence support to the Persian Gulf war as fragmented and suboptimal. 183 Among the successful corrective measures fielded in Haiti was a joint intelligence staff in support of the MNF Commander in Port-au-Prince. Judge advocates who supported this joint intelligence apparatus also deserve a portion of the credit.

1. Know That Force Protection Can Justify Collecting
Information on United States Persons. One example of the role operational lawyers serve occurred when members of the 519th Military Intelligence Battalion told their supporting judge advocate

180 Intelligence law for the military community largely involves interpretation of regulatory materials subordinate to a fourteen year-old executive order. Executive Order No. 12,333, 46 Fed. Reg. 59,941 (198 1) ("United States Intelligence Activities.").
191 See, e.g., Wilson, supra note 3 1.
193 See Wilson, supra note 3 1, at 57.


that they were unwilling to interrogate someone who claimed to be a United States person. 184 Eye witnesses had linked this individual to violent crimes committed by the extreme right wing of FRAPH, and his interrogation would have contributed to force protection and to the mission of creating a secure and stable environment.

Telephone conferences with judge advocates in his technical chain, 185 confirmed the initial opinion of the 519th's legal advisor on the ground: the individual could be interrogated. The regulation governing Army intelligence activities contains a clear exception to the general rule prohibiting intelligence components from gathering information about United States persons. That exception states that "information may be collected about a United States person who is reasonably believed to threaten the physical security of Department of Defense employees, installations, operations, or official visitors." 186

The tendency of military intelligence personnel to read the rules restrictively is understandable. Rigorous training, such as that provided to Army intelligence specialties at Fort Huachuca, Arizona, commendably stresses caution with respect to many intelligence activities that can threaten basic civil liberties if abused. Judge advocates can and must contribute their ability to see particular rules in the context of the entire architecture of intelligence law, and thus advise as to when exceptions apply.

2. Understand the Different Roles of Military Intelligence and Military Police. The Joint Detention Facility in Port-au-Prince was a source of intelligence for the N4NF as it sought to stabilize the country in the early months of the operation. At one point in the first few

184 Unless otherwise stated, the information in the next twenty paragraphs is based upon Interviews with Major Peter G. Becker, Former Legal Advisor to the Joint Intelligence Facility in Port-au-Prince, in Charlottesville, Aug. 22-25, 1995 [hereinafter Becker Interviews].
185 See infta notes 283-284 and accompanying text.
186 DEPT OF ARmy, REG. 38 1-10, U.S. ARMY INTELLIGENCE ACTWITIES, at 2-2 (1 Jul. 1984).


weeks after entry, the facility housed more than 200 persons. 187 Notwithstanding their commitment to staying within the law, military intelligence personnel sought to assemble for the commander an accurate picture of the threats he, his forces, and the fragile democratic structures of the Haitian government faced. To interrogate those persons who were detained pursuant to clearly established and reasonable criteria would support this crucial intelligence mission. Furthermore, the doctrinal manual for military intelligence interrogators properly urged techniques that, while respecting basic humanity and dignity, might cause a judge to rule a confession inadmissible were they used to elicit statements from an accused soldier prior to a court-martial. 188

From the perspective of the military police who administered it, the Joint Detention Facility was a prisoner of war camp. As subpart 1113.3 above explained, because the Haiti deployment was not international armed conflict, the protections of the Geneva Convention Relative to the Treatment of Prisoners of War did not strictly apply, 189 nor did service implementing policies. 190 Yet broadly worded commitments in a diplomatic note and in military operations plans to

187 See Becker Interviews, supra note 184; Roliter, supra note 169 (citing American
military authorities for a cumulative figure of more than 200 persons as of early November 1994).
189 See DEP'T OF ARMY, FIELD MANUAL 34-52, INTELLIGENCE INTERROGATIONS, I 11, Fig. 1-4 (28 Sept. 1992) (describing the "ego-down" approach). So long as not used arbitrarily and inhumanely, such techniques are defensible in light of the fact that use for intelligence purposes (i.e., corroborating a much larger collection of data pointing to the time and place that a violent attack might occur) differs from use for prosecution (i.e., establishing criminal guilt and punishment against a particular individual).
189 The Haiti intervention was not "international armed conflict." See Geneva Convention 111, supra note 136, at art. 2. It also was not a "Common Article 3" armed conflict. Id, at art. 3; INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY ON III GENEVA CONVENT70N FOR THE PROTECTION OF PRISONERS OF WAR OF 12 AUGUST 1949 at 27-44 (jean S. Pictet ed., 1960) [hereinafter III PicTET] (construing article 3's reference to "armed conflict not of an international character").
EMPLOYMENT, AND COMPENSATION, para. 1-5a(l) (2 December 1985) [hereinafter AR 190-8] ("All persons captured, interned, or otherwise held in U.S. Army custody during the course of conflict ..... ) (emphasis added).


accord "prisoner of war treatment" to detained persons, 191 resulted in disagreements between military policemen and intelligence personnel over whether interrogation procedures constituted a form of coercion forbidden under the Geneva Convention and under the implementing policies. 192 Despite the fact that even the Convention and the policies contemplate noncoercive questioning of prisoners and a robust apparatus for collecting intelligence both before and after camp inprocessing has occurred, 193 military police are apt to take a conservative approach by discouraging good faith interrogation measures that an outside observer might challenge.

The judge advocate often inherits the duty of reconciling legal and doctrinal references that to the two sides in disagreement seem irreconcilable. 194 The judge advocate assigned to the Joint Intelligence Facility discharged this duty by explaining that the rules, though

191 See United States Permanent Mission in Geneva, Diplomatic Note to the International Committee of the Red Cross (Sept. 19, 1994) ("If it becomes necessary to use force and engage in hostilities, the United States will, upon any engagement of forces, apply all of the provisions of the Geneva Conventions and the customary international law dealing with armed conflict. Further, the United States will accord prisoner of war treatment to any detained member of the Haitian armed forces. Any member of the U.S. armed forces who is detained by Haitian forces must be accorded prisoner of war treatment."), quoted in Meron, supra note 136, at 78; Headquarters, XVIIIth Airborne Corps, Combined JTF- 180, Operation Plan 23 70, Tab D to Appendix 4 to Annex E, para. 5b (10 Sept. 1994) (copy of declassified appendix entitled "ICRC Inspections of Detention Facilities," on file with CLAMO) ("The JTF Provost Marshal will ensure that ... detaineess are treated in accordance with the Geneva Conventions.").
192 See AR 190-8, supra note 190, at para. 1-5d ("No form of coercion may be inflicted on persons to obtain information of any kind. Those who refuse to answer questions may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind."). Operational lawyers readily discern that the drafters of the regulation intended this paragraph to incorporate Geneva Convention 111, supra note 136, at art. 17.
193 See, e.g., DEP'T OF ARMY, FIELD UAL 1940, ENEMY PRISONERS OF WAR, CIVILIAN INTERNEES, AND DETAINED PERSONS, para ., 2-2, 2-5, 3-2, 3-62 to 3-65 (27 Feb. 1976) [hereinafter FM 1940]; PICKET 111, supra note 189, at 163-64; HOWARD S. LEVIE, PRISONERS OF WAR IN INTERNATIONAL ARMED CONFLICT 108-09 (1976).
194 Put simply, the texts in question are an executive order which charges the military
intelligence community with the responsibility of conducting intelligence activities, see Exec. Order 12,333, supra note 180, at subparts 1. 11, 1. 12 (d), 1. 12 (e), and a regulatory provision seeking to implement a binding treaty. See AR 190-8, supra note 190, at 1-5(a)(1).


ultimately compatible, are intended to constrain each other. The interrogators must be brought to understand that treatment of individual detainees may not be arbitrary, and that absent articulable bases, the schedules for feeding, sleeping, and so on will be enforced as to all prisoners. 195 Military police must accept that rules are meant to accommodate the collection of valuable intelligence, and that the questioning of a detainee may sometimes call for a reasonable,, minimally intrusive variation of the camp's regimen. 196

3. Monitor Use of Intelligence Contingency Funds and
Counter-Intelligence Force Protection Operations. During Uphold Democracy, local informants provided the NINF Commander perishable information on potential terrorists, saboteurs, and other activities hostile to the NfNF. 197 Supporting intelligence units procured the services of these local informants using intelligence contingency funds (ICF).

Regulations carefully circumscribe the use of informants for force protection purposes. 198 Intelligence experts today refer to such operations as "counterintelligence force protection operations (CIFPO), 59 a term that recently replaced "defensive source

195 See, e.g., DEP'T OF ARMY, TRAINING AND DOCTRINE COMMAND, FIELD MANUAL 3096C, SOLDIER'S MANUAL FOR INTERROGATOR, MILITARY OCCUPATIONAL SPECIALTY 96C, Task 301-96C-1 102 (11 Feb. 1977) (training interrogators to comply with Geneva Convention III strictures).
196 See Becker Interviews, supra note 184 (discussing situations in which interrogators sought to wake detainees thought to have time-sensitive information and in which military police objected to particular detainees being fed scalloped potatoes).
197 See, e.g., Stai Memorandum, supra note 35, at 14 (reviewing operation plan for lowlevel source operations); 25th ID Briefing Viewgraphs, supra note 58 (discussing counterintelligence operations); cf Major General S.L. Arnold & Major David T. Stahl, A Power Projection Army in Operations Other Than War, PARAMETERS, Winter 1993-94, at 4, 21 ("in Somalia our counterintelligence agents were our major source of the intelligence information that shaped maneuver operations.").


operations."'9 Regulations also carefully circumscribe the use of ICF, for CIFPO as well as other uses. 200 In isolated but important instances, the military intelligence brigade judge advocate in Port-au-Prince referred intelligence personnel to provisions of these regulations. 201

D. Detention of Non-members of the Force

United States troops did not fight their way into Haiti and did not capture prisoners of war. Nevertheless, within 72 hours of the United States' arrival in the country, the need for a facility to house detained persons became apparent. 22Intelligence sources indicated that certain Haitians posed threats to the force, and soldier eyewitness accounts established that certain Haitians were seriously harming other Haitians. The newly arrived military forces had ample international legal authority to detain such persons. 23Moreover, the Haitian jails and prisons were not reliable places to transfer these individuals. 204

The COTT 180 staff initially considered removing the first
individuals detained to the brig aboard the US.S. America. 25This course of action held several disadvantages. The ship would have been tied to Haitian waters. It would have been deprived of brig space for sailors accused of crimes because the brig's layout would not permit segregation of detainees. Visitation by representatives of the

199 See id
200 DEP'TOF ARmy, REG. 3 81-14 1, INTELLIGENCE CONTINGENCY FuNDS (30 Jul. 1990) (C).
21See Becker Interviews, supra note 184 (declining to discuss classified details).
202 See Wishard Interview, supra note 72.
23At the time, deployed judge advocates were expressly relying upon Security Council
Resolution 940 and article 51 of the United Nations Charter. See Headquarters, Multinational Force Haiti and 10th Mountain Division (Light Infantry), Briefing viewgraphs (9 May 1995) (copies deposited with CLAMO during the conference mentioned in note 15, supra) [hereinafter 10th Mountain Div. Briefing viewgraphs].
24See JTF- 180 Briefing viewgraphs, supra note 3 8.
25See Smith Interview, supra note 40; USACOM Briefing viewgraphs, supra note 37.


International Committee of the Red Cross would have been cumbersome. Moreover, the Secretary of Defense would need to approve the plan. 206 In light of these disadvantages, the CJTF constructed a small, temporary facility at the Light Industrial Complex in Port-au-Prince and began detaining individuals there on 30
September. Within a few days, the detention operation, termed the
Joint Detention Facility, moved to a larger building nearby. A military police company commander commanded this larger facility, and his company provided the manpower for daily operations. 208 A small military intelligence cell operated in the Facility. This cell consisted of several interrogation teams.

The Joint Detention Facility became one of the most
conspicuous successes of Uphold Democracy. Beyond removing threats to the force, to President Aristide's restoration, and to other Haitians, the Facility instituted the rule of law in a land that had rarely before seen it. The Facility's standards of humane treatment and due process stood in marked contrast to Haiti's legacy of arbitrary and sometimes brutal detention. These standards also convinced the International Committee of the Red Cross-if not all members of the news media or human rights groups--of the discipline, good faith, and essential justice of the multinational force. As one judge advocate remarked, "ICRC personnel became strong supporters of the JDF when criticism arose from the media and several detainee family members. 11209

206 See DEP'T OF THE NAVY, SECRETARY OF THE NAVY INSTRUCTION 3461.3, PROGRAM FOR PRISONERS OF WAR AND OTHER DETAINEES (I 9XX); UNITED STATES ARMY TRAINING AND DOCTRINE COMMAND, CENTER FOR ARMY LESSONS LEARNED (CALL), OPERATION UPHOLD DEMOCRACY, INITIAL IMPRESSIONS: HAITI D-20 To D+ 120, VOLUME II, at 123 (Apr. 1995) [hereinafter CALL INITIAL IMPRESSIONS VOL. 11]; see also Geneva Convention 111, supra note 136, at art. 22 ("Prisoners of war may be interned only in premises located on land and affording every guarantee of hygiene and healthfulness.") (emphasis added).
207 See 10th Mountain Div. AAF, supra note 108, at 7-9.
209 See id.
209 id.


1. Begin Planning Earlyfor Detention Issues. Operational lawyers and other staff officers in the I Oth Mountain Division began planning for a detention facility on 29 July 1994. The model on which they based their plans was the I Oth Mountain Division's detention facility in Somalia in 1993. 210 Planners must make detailed arrangements for locating a building of appropriate size and sturdiness, for processing, safeguarding, feeding, and clothing the detainees. Plans must also consider providing health care, questioning detainees for intelligence purposes, and responding to requests for access made by attorneys, human rights groups, and members of the media. Operations in Grenada and Panama provided useful precedents for some of these planning factors. 211 Given the ultimate responsibility they bear in administering the facility, military police must be involved at every stage of the planning process.

Peculiarities of the locale must receive careful attention. Will there be any buildings suitable to house the detainees? If not, when will the flow of material into the country permit the erection of a shelter? What is the extent of the disparity between United States standards of detention and local living conditions? 212 Will the

210 1d; cf Colonel F.M. Lorenz, Law andAnarchy in Somalia, PARAMETERS, Winter 199394, at 27, 34-35 (summarizing issues pertaining to detention of civilians during the early phases of Restore Hope) ("A military detention facility with a capacity of 20 prisoners was established at the U.S. Support Command Headquarters. It never held more than six prisoners at once, and it was not equipped to handle long-term detainees.").
211 See, e.g., Colonel Ted B. Borek, Legal Services in War, 120 MIL. L. REv. 19, 47 (1988) (describing judge advocate involvement in detention issues in Grenada); Center for Law and Military Operations, Just Cause After-Action Seminar Executive Summary, para. III.C (26-27 Feb. 1990) ("Over 4 100 persons were detained during the first few days of Just Cause.") (copy on file with CLAMO).
212 The Staff Judge Advocate for the MNF discussed the implications of this question as follows:
The material on detention facilities in [the draft Haiti Lessons Learned report] is crucial, especially when we are not an occupying force. Much work needs to be done in this area. However, a problem we really need to look at is the difference between what we as Americans consider acceptable physical standards and what


detainees likely be afflicted with any unusual diseases? With regard to this last question, those who planned the detention facility and those who executed the plan grappled with how to provide medical care to 213
HI V-infected Haitians. Given that the Geneva Conventions served as the baseline for treatment, detainees would receive a level of care equal to that provided United States servicemembers. Yet field surgery upon a detainee whose HIV status was unknown could result in the infection of other detainees as well as members of the force. Because United States servicemembers undergo regular HIV testing, medical workers elected to set aside a surgical bed for detainees. They also stressed the importance of field sterilization techniques. 214

the local populace is experiencing. More specifically, when detainees were
released and spread the word about our clean, safe detention facilities with decent
food and medical check-ups/treatment, we were flooded with petty "criminals"
doing just enough to get detained-they admitted doing this to receive the benefits
of our detention. What. ... are we supposed to do when humane detention
standards far exceed average living conditions? This is a very serious problem."

See Memorandum, Staff Judge Advocate, 10Oth Mountain Division (LI) Fort Drum, AFZB-JA, to Deputy Director, Center for Law and Military Operations, subject: Haiti AAR--Duty Loge/ I st Week--lIOth Mtn (19 Oct. 1995).
213 See, e.g., U5ACOM Briefing viewgraphs, supra note 37.

24Captain Warren Reardon, Recorder for the Haiti After Action Review Conference in
Charlottesville, VA, at para. 4-5 (May 9, 1995) [hereinafter Reardon Notes] (recorder's notes on file with CLAMO) (recording the conclusion of the conference participants that "for future contingencies, the Army must have superior field sterilization procedures in place").
It would be a mistake to conclude that because operations took place in a "legal vacuum," see Rohiter, supra note 169, plans for the treatment of detainees lacked specificity. These plans properly built upon techniques, procedures, and training that, while created to support wartime operations, nevertheless provided detailed and orderly guidelines to camp guards. See, e.g., UNITED STATES ARMY TRAINING AND DOCTRINE COMMAND, CENTER FOR ARMY LESSONS LEARNED (CALL), OPERATION UPHOLD DEMOCRACY, INITIAL IMPRESSIONS: HAITI D-20 To D+40, at 145-47 (Dec. 1994) [hereinafter CALL INITIAL IMPRESSIONS VOL. 1] (concluding that the military police company "had no problems reaching mission success with this [detention facility] mission because this is on their Mission Essential Task List (METL) and they train it to standard") (also noting, nonetheless, that innovations were developed: "A young NCO developed the method used to secure and distribute the personal hygiene packets which is being considered for incorporation into the new FM 1 9-XX (MP Support to OOTW)").


The plan should anticipate transfer of responsibility for the facility to the host govenunent. Bolstering the legitimacy of that government militates in favor of such a transfer, as does relieving scarce military police assets from a burdensome mission. In circumstances such as those in Haiti, the transfer will likely occur in phases. The detainee population crested at about 200 during the first month of the deployment, 215 but by 9 January 1995, only 24 detainees remained in the facility. 216 On this day, the Commander of the MNF sent a letter to the Haitian government proposing a plan for transfer. 217 The MNF would turn over the physical structure and would continue for several weeks to provide outer security, to assist in record-keeping and interrogation, and to supply food, water, and medical care. 218 Release authority and overall responsibility would immediately vest in the Haitian government, though MNF staff officers recommended that 12 of the 24 detainees be released. 219 Appendix R reprints the Memorandum of Agreement between the MNF and the government of Haiti that effected the transfer. 220

2. Give Two Judge Advocates Independent Roles In the
Release Determination Process. Upon the arrival of detainees in the Facility, military police would prepare a Detainee Personnel Record

215 See supra note 187 and accompanying text.
216 See 25th ID Briefing Viewgraphs, supra note 58; Telephone Interview with Major Mark Sposato, Chief Criminal Law, Office of the Staff Judge Advocate and former Deputy Staff Judge Advocate for MNF Haiti, (Sept. 5, 1995) [hereinafter Sposato Interview].
217 Letter from Major General David C. Meade, Commander, Multinational Force to Prime Minister Smarck Michel (Jan. 9, 1995).
218 Id.
219 Id; See also Memorandum For Record, Staff Judge Advocate, Multinational Force Haiti, subject: Detention Facility, paras. 34 (13 Feb. 1995).
220 Planning for detention of facilities also extended to coordinating with federal
prosecutors in Florida concerning potential trials of Haitians alleged to have committed United States federal offenses. See, e.g., JTF-180 Briefing Viewgraphs, supra note 38; Telephone Interview with Lieutenant Colonel Richard E. Gordon, Former Deputy Staff Judge Advocate for M NF Haiti (Sept. 7, 1995) [hereinafter Gordon Interview].


form for each individual detained. 221 The 52 fields of this form are
automated in a database maintained as part of the Prisoner of War Information System (PWIS), which captures and reports available and pertinent facts such as name, date of birth, nationality, sex, place, date, and circumstances of detention, and medical information. 22 Facility
personnel would collect, inventory, and safeguard detainee personal effects, conduct a medical examination, and perform several other ,tasks of processing. 223 Interrogators would compile additional information pertaining to the intelligence provided by the detainee, to biographical information about the detainee, and to the circumstances 224
and legal bases for detention.

The legal adviser to the Facility, a judge advocate captain,
would review detainee files within 72 hours of the detainee's arrival to prepare a recommendation as to whether further detention was
warranted Continued detention could rest on one or more of the
following three grounds:

1. the individual is a member of the Haitian military or
police, or is armed, and threatens essential civic order;

221 See CALL INITIAL IMPRESSIONS VOL. 1, supra note 214, at 146; Becker Interviews, supra note 184.
222 AR 190-8, supra note 190, at para. 2-10. Because the Privacy Act requires safeguards only for individuals who are citizens of the United States or aliens lawfully admitted for permanent residence, see 5 U.S.C. 552a(a)(2) (1988), this database raises no Privacy Act issues.
223 See I Oth Mountain Div. AAR, supra note 108, at 8 (noting also that "[d]etainees were permitted access on a limited basis to family members, religious services, and to retain legal counsel and private medical treatment'); CALL INITIAL IMPRESSIONS VOL. 1, supra note 214, at 14445.
224 See Becker Interviews, supra note 184.
225 See id. Every attempt was made to comply with the letter and intent of the Constitution of Haiti. HAITI CONST. art. 26 (1987) ("No one may be kept under arrest more than forty-eight (48) hours unless he has appeared before a judge asked to rule on the legality of the arrest and the judge has confirmed the arrest by a well-founded decision."); 10th Mountain Div. AAR, supra note 108, at 9 (stating that the MNF afforded detainees treatment of prisoners of war and due process protections of human rights instruments and also that "we crafted a system similar to Haitian law").


2. the individual poses a threat to United States forces,
other protected persons, key facilities, or property
designated mission-essential by the Combined Joint
Task Force Commander;
3. the individual has committed a serious criminal act,
meaning homicide, aggravated assault, rape, arson,
robbery, burglary, or larceny;
4. the individual has valuable information pertaining to
individuals not yet detained to whom one or more of
grounds I through 3 app ly. 226

A separate judge advocate captain would interview each detainee. Each detainee was given the opportunity to make a statement through an interpreter and to present facts rebutting the command's stated basis for detention. The interviewing judge advocate did not establish an attorney-client relationship with the detainee, but rather served as an independent source of information for the command by articulating the argument against further detention. 227

Throughout the period of detention, detainees were permitted access on a limited basis to family members and to private legal

226 See Becker Interviews, supra note 184 (stating that Detention Facility authorities derived grounds 1, 2, and 3 from the ROE card reprinted at Appendix J and ground 4 from Resolution 940's mandate to "use all necessary means to ... establish and maintain a stable and secure environment"). Operational lawyers in the MNF fully understood that it was an extraordinary situation-an environment that was far from stable and secure, a broken judicial and prison system, the need to ensure safety for the newly reinstalled government-that justified ground 4, and even then that ground 4 detentions should be as brief as possible in light, inter alia, of provisions of the Haitian Constitution. See HAm CONST., art. 24 (1987) ("No one may be prosecuted, arrested, or detained except in cases determined by law and in the manner it prescribes. . Except where the perpetrator of a crime is caught in the act, no one may be arrested or detained other than by written order of a legally competent official."); id. at art. 25 ("Any unnecessary force or restraint in the apprehension of a person or in keeping him under arrest, or any psychological pressure or physical brutality, especially during interrogation, is forbidden.... No one may be interrogated without his attorney or a witness of his choice being present."); see also supra note 188 (discussing the defensibility of interrogation for intelligence rather than criminal prosecution).
227 See I Oth Mountain Div. AAR, supra note 108, at 8.


counsel, if retained Several detainees hired Haitian and United States lawyers to argue for their release. Two other judge advocates, including the Staff Judge Advocate for the MINF, would coordinate visits by representatives of the ICRC, human rights groups, and outside observers. 29All of these safeguards resulted in numerous releases, as the grounds for detention no longer applied. These fair and orderly procedures not only had a calming effect upon the detainee population, 20they deeply impressed Haitians who were not detained. According to one judge advocate, "[t]he ICRC credited this program with giving Haitians the first real lesson on fairness, real due process, and the right to be heard."23'

3. Encourage Commander to Delegate Authority to Release.
After receiving the separate recommendations of the judge advocate for the Facility and the judge advocate who interviewed the detainees, the Staff Judge Advocate would create a report for the MNF Commander. 22The report would list each detainee, in priority of the strength of the recommendation to retain. Thus, for instance, those who had been caught committing violent crimes would be at the top of the list, and those recommended for release would be at the bottom. The MNF Commander would receive separate recommendations from the J-2 and the Provost Marshal before deciding whom to retain and

228 SeGilbert A. Lewthwaite & Bill Glauber, American Woman Accuses U.S. Troops in
Haiti of Mistreating Her Husband in Jail, THE BALTIMORE SUN, Oct. 17, 1994, at 3A (reporting that Mrs. Michele McGurk Mourra was allowed to visit her husband, Gerry Mourra, a detainee).
229 SeeI0th Mountain Div. AAR, supra note 108, at 11I- 12.
230Id at 8 ("The International Committee of the Red Cross (ICRC) and detention
personnel remarked that this provision of minimal due process allowed detainees to let off steam. As detainees were released, other detainees knew they were being heard and their cases were being considered.").
23' Id at 8.
22See Becker Interviews, supra note 184.


whom to release. This reporting and decision-making process would occur daily. 233

Due to the sensitivity of inadvertently releasing a murderer or a potential assassin, the NINF Commander in Haiti elected to retain release authority. 234 Given the resemblance of the release decision to the duties of a military magistrate or judge and the difficulties in arranging a daily decision by the Commander in charge of all military activities in the country, delegation of the release decision to the Staff Judge Advocate would have been warranted and appropriate. 235

Discomfort of commanders to delegate release authority may
persist until the development of a comprehensive set of guidelines for establishing and operating a detention facility during operations other than war. Although judge advocates, military police, medical personnel, and interrogators gleaned many useful and specific forms, techniques, procedures, and approaches from disparate treaties, regulations, and field manuals, 236 these dedicated professionals clearly would have preferred a single source of standards. The demand for a unified approach has led the International and Operational Law Department of The Judge Advocate General's School to coin the term "Civilian Protection Law" to embrace all of the international legal sources that bear upon the recurring problems associated with detention. 237 'The United Nations could perhaps fill this demand by

233 See I Oth Mountain Div. AAR, supra note 108, at 8.
234 See Wishard Interview, supra note 68.
235 See Becker Interviews, supra note 184; Altenburg Remarks, supra note 112 (noting that early in the operation, the Commander of CJTF- 180 had delegated release authority to the Staff Judge Advocate).
236 See, e.g., supra note 214.
237 See Op. LAw HANDBOOK, supra note 9, at ch. 13 (4th ed. 1995) (proposing an approach consisting of "four tiers of protection" that attempt to provide a practical summary of the numerous and varied legal materials that bear upon detention of civilians).


supplementing its Standard Operating Procedures for Peacekeeping Operations with specific guidelines for detention. 238

. Weapons Buyback and Control

Members of the CJTF 180 staff identified at an early stage that establishing a stable and secure environment in Haiti would require a comprehensive plan for getting firearms and explosives off the street and out of the countryside. 29The plan as originally conceived would have comprised four elements. First, the MNF would purchase weapons from Haitians who had them or found them. Second, IvNF soldiers and military police would seize or confiscate weapons.24 Third, Haitians legitimately possessing small arms would register them. Fourth, the MINE would issue picture identification cards to each person authorized to carry a weapon.

The first element of the plan came to be known as the "Weapons Buyback" Program. 21This program consisted of four partially

238 See, e.g.. MNF Historian Memorandum, supra note 48 (submission to the Joint Uniform Lessons Learned System entitled "UN-Mandated Detention Facilities") (recommending that "[tihe UN should establish a model set of guidelines for the establishment of a detention facility and then establish administrative and operational rules to ensure humane treatment of detainees. Further, the UN should create a working group to create and support the detention facility once it becomes operational.").
29See Stai Memorandum, supra note 35, at 14. Unless otherwise noted, the remainder of this paragraph relies upon this memorandum.
20The law of armed conflict employs various terms to denote the taking of property, see, e.g., Hague Regulations, supra note 172, at art. 23(g) (relating to "seiz[ure of] the enemy's property"); id at art. 53 (relating to "seiz[ure]" of "all movable property belonging to the State which may be used for operations of the war" and of similar items "even if they belong to private individuals"); id at art. 46 ("Private property cannot be confiscated."). Some authorities recognize a hard distinction between "confiscation" and "seizure."~ See, e.g., Op. LAW HANDBOOK, supra note 9, at 9-1 (defining confiscation as "the permanent taking or destruction of enemy public property found on the battlefield," and seizure as "the temporary taking of private property"). The use of these terms in the text is not intended to imply such a distinction.
21See I10th Mountain Div. AAR, supra note 108, at 6; 25th ID Briefing Viewgraphs, supra note 58. Unless otherwise noted, the information in this paragraph is based upon JTF-180 Briefing viewgraphs, supra note 38 (viewgraph entitled "Cash for Guns Concept").


overlapping phases. Phase 1, which lasted from 23 to 26 September, involved efforts to obtain existing registration lists from the Haitian police. Phase 2, which lasted from 26 September to 24 October, consisted of psychological operations to inform and explain the program to Haitians. Phase 3, which lasted from 27 September to 17 October, was the collection phase, in which Haitians turned weapons in at designated collection points and received cash payments according the following schedule:

Weapon Payment
Handguns $100
Rifles $200
Automatic Weapons $400
Large Caliber Machineguns $600
Heavy Weapons $600
Explosives $200

Phase 4, which lasted from 17 to 24 October, marked the initial ending of the program, the passage of an amnesty period during which Haitians could reconsider a decision to retain weapons, and a formal 242
assessment of the impact of the program. The NINF then chose to continue the program in substantially the same form. 243

Although the program initially drew mixed reviews, in the end most observers cited it among the NZIF's accomplishments. The early concern was that not enough Haitians were coming to the collection points, but continued efforts to publicize the program and the distribution of chits by roving weapons collection teams partially

242 Prices were adjusted over time to respond to Haitians' willingness to sell particular
types of weapons. See, e.g., CALL INITIAL IMPRESSIONS VOL. 1, supra note 214, at 104 (listing the purchase price of handguns at $50, semi-automatic rifles at $ 100, automatic weapons at $200, any large caliber machinegun at $300, heavy weapons at $300, and high explosives at $300).
243 See Sposato Interview, supra note 216.


allayed this concern. 244 The command also maintained realistic expectations for the program, which had never been expected to be the sole means of getting weapons off the street. 245 The overall plan had foreseen many important details, such as the need for photographic identity cards, a lesson that had been well-learned from experiences in Somalia. 246 As of 2 January, the MNF had collected more than 15,000 weapons and explosive devices via cash payments or'street sweeps. 247 By 3 1 March, the total was more than 3 0,000, when President Clinton touted the success of the program in his speech during the United 248
Nations transition ceremony in Port-au-Prince.

1. Know and Coordinate With All the Key Players in the
Weapons Program During the planning and implementation phases of the plan for purchasing and controlling weapons, judge advocates benefited by knowing, in detail, what the plan entailed and which

244 See CALL INITIAL IMPRESSIONS VOL. 1, supra note 214, at 104-05.
245 See CALL INITIAL IMPRESSIONS VOL. 11, supra note 206, at 49 ("The [weapons
buyback programs in Panama, Somalia, and Haiti] have had mixed results, but, indeed, if they do not prove productive that tells the peacekeeping force something about the levels of weapons that could still be at large. Knowing what was on the street and what has been turned in provides the delta as to what is remaining. FAd'H armories and stores were fairly known quantities at the time of entry.").
246 Colonel F.M. Lorenz, Weapons Confiscation Policy During the First Phase of
Operation 'Restore Hope', SMALL WARS AND INSURGENCIES, winter 1994, at 409, 421 (describing a weapons policy that included no buyback component given the greater risk of banditry and noting that photographic identification cards reduced falsification and abuse).
247 CALL INITIAL IMPRESSIONS VOL. II., supra note 206, at ix.
249 See Appendix D infra; 25th ID Briefing Viewgraphs, supra note 55 (listing a total of 33,088 handguns, shotguns, rifles, automatic weapons, heavy weapons, explosives). The buyback program in Panama had recovered about 4,000 weapons at a cost of about $800,000. See Lorenz, supra note 246, at 415.
The recovered weapons ultimately became a source of arms for the Interim Public Security Force (IPSF), for the new army, and for the new permanent police. See 25th ID Briefing Viewgraphs, supra note 55. See also infra note 338 and accompanying text.


elements of the N4NF were involved. 249 The J-2 and intelligence elements played an important role in locating weapons and existing registration lists and in answering questions concerning collected Haitian military equipment. Civil affairs and psychological operations elements spread word that the program was in place as well as evidence that its effects were making the streets safer. The J-3 directed military police to secure the collection point and tasked a detachment of the foreign material exploitation battalion to control the weapons turn-in. The J-4 and the joint logistics support command coordinated myriad aspects of accountability, testing, demilitarization, storage, ship transport to Norfolk, truck transport to Letterkenny Army Depot, smelting, and certification of destruction.

Knowing the "what's" and "who's" of this process proved indispensable as the temptation of large amounts of firearms soon resulted in a formal investigation into procedural irregularities, the court-martial of a soldier, and a host of questions about proper disposition of material that some units sought to keep for historical purposes. When international advisers sought to return many of the weapons collected to the newly constituted Haitian police force, knowledge of how particular weapons had been acquired became central to determining their proper disposition. Judge advocates at all levels of command assisted in working through the difficult issues of identifying statutory authority for transferring material back to the Haitian government. 250

249 The information from this paragraph and the next is based upon 10th Mountain Div. AAR, supra note 108, at 6, upon Gordon Interview, supra note 220, and upon 25th ID Briefing Viewgraphs, supra note 58.
250 These issues are difficult ones, in general, because Congress comprehensively regulates the sale or transfer of defense articles, military training, and other defense related services through the Foreign Assistance Act and the Arms Export Control Act. See supra notes 153-154; Sposato Interview, supra note 216 (discussing contemplated use of FAA 552(c),22 U.S.C. 2348a(c) "drawdown" authority and of FAA 607, 22 U.S.C. 2357 authority and recalling the urgency with which Mr. Ray Kelly was requesting weapons for the fledgling police force). Given the anxiousness with which representatives of other agencies solicit transfers of Department of Defense material to other countries, judge advocates will likely be the first to initiate the process of seeking


2 Be Prepared to Advise Commanders About Disarming
Threats to the Force. Judge advocates proved to be the main advisors to commanders and soldiers on the threshold question of whether and how much force the M4NF could use to disarm Haitians. 251 As discussed above, the rules of engagement were "conduct-based," in the sense that soldiers could use force if they identified a hostile act or hostile intent. 22What if a Haitian is not attacking a soldier (no hostile act), and is merely carrying his weapon from one point to another (no hostile intent)? The question whether the soldier should use force to disarm the Haitian in this case requires a clear picture of the mission and other mission guidance as well as complete understanding of the rules of engagement.

The mission statement did not contemplate disarming the entire Haitian population. Yet the M4NF commander issued mission guidance that a Haitian in possession of an automatic weapon was a "threat to
the force," even in the absence of hostile act or hostile intent. Resolution 940, because it mandated the use of "all necessary means" to "establish a secure and stable environment,254 provided ample authority for this guidance, which in turn permitted soldiers to use necessary and reasonable force to disarm Haitians with automatic

the Presidential determinations necessary to invoke available statutory authorities. See, e.g., Presidential Determination Number 94-16 of March 16, 1994, 59 Fed. Reg. 14081 (1994), reprinted in S. Comm. ON FOREiGN RELATIONs & HOUSE COMM. ON INTERNA'i1oNAL RELATIONS, LEGiSLAllON ON FOREIGN RELAllONS THROUGH 1994, vol. I-A, at 211-12 n. 638 (1995) [hereinafter LEGISLATION ON FOREiGN RELATIONS TIMOUGH 1994] (invoking 552(c) and directing drawdown of up to $13.5 million "to maintain Egypt's military readiness and security in view of the dedication of Egyptian resources to the United Nations Operation in Somalia (UNOSOM II)"),
251 See 10th Mountain Div. AAR, supra note 108, at 6.
252 See supra note 91 and accompanying text.
2' 'See 10Oth Mountain Div. AAR, supra note 108, at 6; Wishard Interview, supra note 68.
254 See Appendix B infra.


weapons. Military police and other soldiers came to understand the extent and limits of their authority through situational training. 255

3. Understand Applicable Search and Seizure Law. The search of Haitian dwellings and the establishment of traffic checkpoints for weapons raised a related but distinct issue. On one hand, Resolution 940 would seem to authorize searches of private homes and vehicles, if seizing the firearms suspected to be inside are deemed necessary to establishing a secure and stable environment. On the other hand, a secure and stable environment was merely a means to the end of restoring Aristide to power. Given that President Aristide had consented to the entry of the MNF, Haitian law would seem to bear upon the question whether MINF soldiers could intrude upon Haitian homes and vehicles.

The Haitian Constitution guarantees each Haitian citizen "the
right to armed self-defence, within the bounds of his domicile," though it also states that he "has no right to bear arms without the express well-founded authorization from the Chief of Police."256 The Constitution further states that "[p]ossession of a firearm be reported to the police," and that "[t]he Armed Forces have a monopoly on the manufacture, import, export, use, and possession of weapons of war and their munitions, as well as war materiel."257 The approach taken by the MINE respected these principles of Haitian law, as Haitians were permitted to maintain individual small arms in their homes for security purposes.25

The increased risk presented by armed Haitians in vehicles and the absence of a Haitian legal prohibition on vehicular searches

255 See Wishard Interview, supra note 72
256 HAITI CONST. art. 268-1 (1987).
I7d. at art. 268-2 to 268-3.
29See I10th Mountain Div. AAR, supra note 108, at 6.


compelled MNF forces to man checkpoints throughout Port-au-Prince. Military police stopped vehicles and searched for weapons. Intelligence personnel provided likely profiles of vehicles and drivers bearing arms, and police acted upon this information. 259 Judge advocates correctly identified to commanders that any implications such procedures might have in the United States, under the Fourth Amendment and related statutory and case law, were irrelevant, so long as the procedures did not violate international and domestic Haitian law. 260

F. Media Relations.

The deployment to Haiti could scarcely have been more public. On 16 September 1994, two days before the scheduled invasion, over 200 American reporters were in the country, including the anchor for one of the major television networks. 261 As the delegation headed by former President Carter consulted with members of the junta on 18 September, television cameras from the Cable News Network (CNN) carTied more than 12 hours of live, continuous coverage to a captivated audience in the United States and around the world. 262 After the junta agreed not to combat the entry of the MNF, viewers on 19 September received the thrill of watching helicopters from the U.S.S. Eisenhower 263
deposit troops onto the Port-au-Prince airport During the ensuing weeks and months, an aggressive, mobile, and well-equipped news media continued to transmit reporters' views and cameras' images to

259 See Becker Interviews, supra note 184.
260 See I Oth Mountain Div. AAR, supra note 108, at 6.
261 See Howard Kurtz, Administration Acts to Soothe News Media, WASH. POST, Sept. 16, 1994, at A30.
262 See Ed Siegel, At End of The Day, CNN Was a Lifeline, BOSTON GLOBE, Sept. 19,1994, at 3.
263 See Interview with Sadie M. Martins, Resident of Virginia Who Was at Home on Monday, 19 September, in Charlottesville, VA (Sept. 19, 1995).


an American citizenry that was ambivalent about the entire deployment.

The media's participation in the operation was never as
disruptive or potentially dangerous as it had been during the early hours of Operation Restore Hope, when bright television lights illuminated the amphibious landing of United States forces. 264 Although major news organizations had knowledge of the departure of aircraft from Fort Bragg on 18 September, none broadcast or published this information until they confirmed that the junta already had learned of the departure. 265 These and other instances of restraint were voluntary. Reporters were not subject to the long-term press pools and other restrictions of the Persian Gulf War, an arrangement that elicited howls of media protest and led to postwar conferences. 266 Nor were they even subject to the temporary pools and more relaxed guidelines that resulted from those conferences. 267

From the start, judge advocates in Haiti heavily and favorably influenced the military's relations with the media. They gave wellreasoned advice to commanders and public affairs officers on news items or stepped forward into microphones and cameras to answer

264 See, e.g., Ben Macintyre, The Networks Have Landed, THE I)MES, Dec. 10, 1992
(reporting Secretary of Defense Richard Cheney's anger at the media's having exposed soldiers to danger by the lights of the cameras); Jonathan Clayton, Lots of Good Shotsfor Media, FINANCIAL DMES, Dec. 9, 1992, at 4; Keith Richburg, US. Vanguard Lands in Somalia; Marine Combat Troops Follow to Secure Port, WASHINGTON POST, Dec. 9, 1992, at A I; Jonathan Clayton, Reporters Provide the First Hurdle, THE IIUSHDMES, Dec. 9, 1992, at 9.
265 Jon Lafayette, Networks Cover Haiti on Own Terms, ELECTRONIC MEDIA, Sept. 26, 1994, at 52.
266 See, e.g., Vicki Kemper and Deborah Baldwin, War Stories: Between the Pentagon's Restrictions and the Media's Failings, the Public Doesn't Get the Full Picture, COMMON CAUSE MAGAZINE, Mar.-Apr. 1991 (describing media irritation following the Persian Gulf war and recounting how the press pools of that conflict grew out of earlier protests following operations in Grenada and in Panama).


questions themselves. Particular media interest during the deployment often coincided with areas where the rule of law was most challenged: the intervention by United States soldiers to protect Haitians from violence by other Haitians; the treatment of persons detained in the Joint Detention Facility; and the maintenance of discipline over members of the multinational force. In these and other areas, judge advocates had the training and the balanced viewpoint to serve as spokesmen for the military and for the interests of the United States and the participating nations. 268

1. Describe the Processes and Legal Authorities that Explain Military Actions. Whether they were speaking to the news media or helping to prepare others to do so, judge advocates in Haiti found that standard public affairs guidance is sound. 269 Thus, it proved prudent to find out who the reporter was and why he wanted to interview the command, to establish ground rules on what would be covered, and to agree upon how many minutes the interview would last. It proved valuable to anticipate questions and think through responses, to have other staff experts play devil's advocate before the interview, and to read or listen to late-breaking news stories that might affect the questions or responses. Devices such as the "five and five" rule were handy, as were the admonitions to avoid saying "no comment" to

268 Note that judge advocates need appropriate clearance in order to serve this role. See Dep't of Army, Office of The Judge Advocate General, TJAG Policy Memo 91-2, para. 3 ("Generally, no member of your office should, without your approval, prepare a written statement for publication or permit himself or herself to be quoted by the media on official matters within the purview of your office. Similarly, unless first cleared through the Executive, neither you nor any member of your office should be interviewed by, or provide statements to, representatives of the media on issues or subjects having Army-wide, national or international implications.").
269 The information in the next three paragraphs, unless otherwise noted, is based upon
Altenburg Remarks, supra note 112; Telephone Interview with Lieutenant Colonel Karl K. Warner, Staff Judge Advocate, I Oth Mountain Division (Sept. 7, 1995) [hereinafter Warner Interview]; Smith Interview, supra note 38.


acknowledge not being sure of facts, and to decline making "off the record" remarks. 270

Yet beyond following tips on interview methodology, judge
advocates had a crucial educative role. Reporters are often ignorant of legal bases and procedures that explain actions taken by commanders and troops, and forceful restatement of the pertinent substantive or procedural rule can change the entire character of a reported story. Even if the tone of the piece remains skeptical or critical, quoted remarks will transmit the military's commitment to following rules, the ultimate authority for which are Congress, civilian officials, in the executive branch, and international law.

Four examples help illustrate the suasive power of legal
authorities and processes. First, on 22 September 1995, when the media remained frenzied over attacks by police on pro-Aristide demonstrators, the Staff Judge Advocate for CJTT 190 explained that the rules of engagement implemented Resolution 940 and the CarterJonaissant agreement. 271 Second, on 16 October, when the wife of a
detained Haitian aroused the interest of several reporters, the same Staff Judge Advocate calmly explained the detainee's connections to a violent pro-Cedras group, the language in Resolution 940 that justified

270 The Op. LAW HANDBOOK, supra note 9, at F- I to F-7, reprints these and other helpful tips. The "Five and five" rule is "Know the five best and worst things about your agency-and be able to discuss them in detail any time." Id. at F-3.
271 See Altenburg Remarks, supra note 112; cf. U.S. Armed Forces Extend their Control over Haiti, THE BALTimoRE SuN, Sept. 23, 1994, at 8A ("The chief legal officer for the U.S.-led multinational force said yesterday that there has been no change in the military's rules of engagement but that the 'focus' has changed from unloading troops and supplies to protection of Haitian civilians. Col. John Altenburg, staff judge advocate for the multinational force, said that in the initial phase, the mission had to give the Haitian military time to demonstrate whether it could keep peace. Now the 'focus' has shifted and 'soldiers will be expected to intervene on behalf of Haitians,' Colonel Altenburg said."); Paul Quinn-Judge and Diego Ribadeneira, US Troops in Haiti Given OK on Force, Soldiers May Intervene to Curb Police, Military, BOSTON GLOBE, Sept. 23, 1994, at I ("If Lt. Gen. Raoul Cedras does not curb his police and military, "we will intervene," warned Col. John Altenburg, the US Task Force's staffjudge advocate. He said US troops would be allowed to use deadly force if the situation warranted it.").


his detention, and the procedure by which the military police battalion commander was investigating allegations that interrogators had mistreated the detainee. On the basis of initial inquiries, he also denied 272
that the detainee had been mistreated Third, in early November, the
Staff Judge Advocate for the MNF explained that the Geneva Conventions did not strictly apply to those being held in the Joint Detention Facility while describing how their treatment nevertheless met the dictates of fundamental fairness and due process. 273 Fourth, on
4 May 1995, newspapers reported the testimony before Congress of a retired judge advocate, who supported the court-martial of an officer in the MNF by explaining pertinent provisions of the Uniform Code of Military Justice. 274

2. Acknowledge the Legitimacy of the Media's Presence in
Operations Other Than War. "Information operations" demanded and 275
received effective command emphasis in Haiti Even as soldiers
were doing their duty on the ground, senior officials reevaluated

272 See Gilbert A. Lewthwaite and Bill Glauber, supra note 228 ("Col. John Altenburg, the staff judge advocate for the intervention force and its top lawyer, denied any physical mistreatment of Mr. Mourra but said yesterday that he had been blindfolded and gagged when first apprehended. His sleep was 'strictly controlled,' to enable shifts of interrogators to question him, he said. 'He was never denied sleep.' . 'There has been no mistreatment of Mr. Mourra,' said Colonel Altenburg in a statement responding to questions submitted by The Sun. Despite the immediate official denial, Colonel Altenburg said that there would be a full investigation of Mrs. Mourra's allegations and that the findings would be reported to the Red Cross. 'The Military Police battalion commander is currently looking into the allegations,' Colonel Altenburg said.").
273 See Roliter, supra note 169 (quoting Lieutenant Colonel Kasey Warner at length).
274 See, e.g., Prepared Testimony of Colonel Richard H. Black (USA Ret.) to the House Committee on International Relations Subcommittee on the Western Hemisphere, FEDERAL NEWS SERVICE (May 4, 1995), reprinted in Appendix V, infta.
275 DEP'T OF ARmy, FIELD MANUAL 100-23, PEACE OPERATIONS 14 (30 Dec. 1994) [hereinafter FM 100-23] ("In peace operations, national and international news media coverage plays a major role in quickly framing public debate and shaping public opinion. The news media serves as a forum for the analysis and critique of goals, objectives, and actions. It can impact political, strategic, and operational planning; decisions; and mission success and failure. Therefore, commanders should involve themselves in information operations."); see also USACOM Briefing Viewgraphs, supra note 37 (depicting 7 principles for "Winning the Information War"); Smith Interview, supra note 40.


political and strategic objectives based on the way the media presented the military deployment. The relatively lower levels of violence inherent in this operation other than war guaranteed greater media access to all parts of the theater, and judge advocates assisted all members of the command to acknowledge both the inevitability and the legitimacy of that access.

In strict constitutional terms, the press does not have a right of access to military operations under the First Amendment. 276 Nevertheless, any constraints on the media imposed by the military in a foreign area of operations must be reasonable time, place, and 277
manner restrictions based upon an important governmental interest. Legal training and experience do not give judge advocates a unique ability to articulate important governmental interests-such as operational security or preservation of surprise. Commanders and other staff experts may be far better equipped to identify which parts of an operational plan require secrecy. Yet judge advocates do have a unique ability to judge whether proposed restrictions upon media access are reasonable in light of all the circumstances.

The ability to judge whether a restriction is reasonable stems in part from a willingness to recognize the role of the media in a participatory democracy. It also stems from a recognition that reporters-like soldiers-tend to be motivated by a mixture of selfinterest and noble ideals. Although many of them have no prior exposure to the military, reporters will often work hard to gather facts

276 Cf Nation Magazine v. United States, 762 F.Supp. 1558, 1572 (S.D.N.Y. 1991) ("If the reasoning of [Richmond Newspapers, Inc., 448 U.S. 564, 575 (1979); Globe Newspaper Co. v. Superior Court for County of Norfolk, 457 U.S. 596, 606 (1982); First National Bank v. Bellotti, 435 U.S. 765, 783 (1978)] were followed in a military context, there is support for the proposition that the press has at least some minimal right of access to view and report about major events that affect the functioning of government, including, for example, an overt combat operation. As such, the government could not wholly exclude the press from a land area where a war is occurring that involves this country. But this conclusion is far from certain since military operations are not closely akin to a building such as a prison, nor to a park or a courtroom.").
277 See id. at 1573-75.


and present an accurate story. Their questions may seem unfairly critical in both substance and tone; still, the best approach is to encourage all soldiers and commanders to treat them with unfailing respect and to remember that the military's credibility with the reading and viewing public depends upon truthftil responses. 278

G. Joint, Inter-Agency, and Nongovernmental Coordination.

Modem military operations demand judge advocates who will take initiative to coordinate with the legal advisors of other service component commands, with officials in other executive branch agencies, and with representatives of nongovernmental or private voluntary organizations. At least two recent developments make the spirit of initiative necessary. First, profound changes to the national security structure foreshadowed by the passage of the Goldwater Nichols Act in the 1986 have strengthened unified commands 279 without eliminating numerous forms of interservice competitionsome of which are durable as well as beneficial. 280 Among other things, the separate services retain control over the programming and spending of appropriated funds, and they continue to staff separate judge advocate generals' corps in order to satisfy the distinctive needs of commands possessing vastly different missions and resources.

Second, the military operations themselves are different. As this report emphasizes at several junctures, operations other than war place the military in an environment where decisive combat victory does not

271 See CALL INITIAL IMPRESSIONS VOL. 1, supra note 214, at 6 (describing training in the l0th Mountain Division for conducting the mission with a strong media presence).
279 See supra note 29.
210 See Colonel Charles J. Dunlap, Welcome to the Junta: The Erosion of Civilian Control ofthe U.S. Military, 29 WAKE FOREST L. REv. 341, 375-77 (1994); Harry Summers, Weakened Checks and Balances, WASH. TIMES, May 27, 1993, at G-3.


describe success. 281 Nonmilitary agencies and organizations will often have the lead in these operations in order to bolster the legitimacy of a fragile government receiving United States support.

Aided by the phenomenal advances in communications, dataprocessing, and print reproduction that have occurred over the past decade, judge advocates supporting operations in Haiti coordinated legal issues at a breathtaking pace. Satellite telephone links, facsimile machines, electronic mail, computer graphics software, and photocopy equipment allowed instantaneous transmission and wide distribution of complex and detailed problems, plans, and advice. Faced with a body of "law" that might change with a new message from higher headquarters, judge advocates wisely spurned attempts at independently divining answers in favor of consulting the most knowledgeable fellow attorney-wherever in the world he or she might be. Yet some of the coordination employed the ancient technology of shoe leather. For instance, contact with a human rights organization in Port-au-Prince required only an emphasis on such contact and a willingness to walk to meet a representative of the organization. 282

1. Use Technical Judge Advocate Channels. The command channel is the direct, official link through which one headquarters passes orders and instructions to subordinate headquarters. 283 The command channel links one commanding officer to another. A technical channel is a link between two headquarters that transmits orders, instructions, advice, recommendations, and information inappropriate for the command channel because of their volume,

281 See, e.g., FM 100-5, supra note 13, at 13-4 ("In [operations other than war], other
government agencies will often have the lead. Commanders may answer to a civilian chief, such as an ambassador, or may themselves employ the resources of a civilian agency.").
292 See Wishard Interview, supra note 72.
293 See FM 10 1 -5, supra note 73, at 1-6.


specificity, or routine nature. 284 When judge advocates from different command headquarters consult with each other, they are using a technical channel. On certain highly sensitive matters, judge advocates may not have the authority to use technical channels, as when XVIIIth Airborne Corps was planning for the semi-permissive entry in the summer of 1994 without informing the staff of the I Oth Mountain Division. 285

Technical judge advocate channels received heavy use
concerning the Haiti operation beginning in February of 1994, a full seven months before the deployment. 286 At that time, an operational lawyer assigned to XVIIIth Airborne Corps began drafting rules of engagement and legal appendices to an operations plan in close coordination with a Marine Corps judge advocate assigned to United States Atlantic Command (USACOM). By June 1994, Navy, Air Force, Coast Guard, and Special Operations representatives were discussing operations plan matters with the XVIIlth Airborne Corps judge advocate, who later would note that he particularly valued expertise gained on rules. of engagement for air forces. In July 1994, the Staff Judge Advocate for Headquarters, United States Army Forces Command provided a useful summary of the possible legal bases for military deployment to then Colonel John Altenburg, who would eventually become the Staff Judge Advocate for CJTF- 180. Throughout the summer of 1994, operational lawyers in these headquarters were sending through technical channels copies of the Governors Island agreement, key Security Council resolutions, results of research on Haitian law, and other materials.

'" See id; DEP'T OF ARMY, REG. 600-20, ARMY COMMAND POLICY, para. 2-2 (29 Apr. 1988) [hereinafter AR 600-20].
285 See 10th Mountain Div. AAR, supra note 108, at 5 ("XVIII Corps was not permitted to share valuable ROE information with us until a few days before execution. Because of this, division soldiers had no knowledge of the combat operations ROE until D- 1, and the transition from forced entry ROE to civil-military operations ROE became cumbersome.").
286 The information in this paragraph and the next is based on Stai Memorandum, supra note 33 and Woods Interview, supra note 34.


In the weeks immediately prior to deployment, the use of
technical channels grew heavier still. On 19 July, XVIIIth Airborne Corps turned responsibility for planning the semi-permissive entry over to the 10Oth Mountain Division, an event which authorized a technical link between operational lawyers in the two headquarters. Examples of information transmitted during this phase included a legal opinion that pepper spray is a riot control agent within the meaning of a recent international convention, a paper outlining a proposed cash-for-weapons program, and numerous aspects of rules of engagement. Participating headquarters involved ranged from the Chairman of the Joint Chiefs, the Chief of Staff of the Army, and the Office of the General Counsel to the Secretary of the Army, in addition to those already named.

After deployment, technical judge advocate channels remained crucial. From the perspective of operational lawyers at USACOM,

operationall directives require close coordination between SJA's for ROE's, law of war issues, and
international and domestic law as it applies to operations.

-ROE changes-bridge strategic/tactical
-LOAC/Human Rights issues are high vis -War Powers notification and international
law authority must be clearly articulated to
the field ....


Technical chain provides a real-time forum for resolving operational and administrative issues which arise during
contingency operations. 287

Many of these issues persisted or arose after arrival of forces in Haiti. Issues pertaining to military justice, rotation of personnel, and claims adjudication were among those that could not have been resolved without technical channels. 288

The heavy and effective use of technical channels between unified and component headquarters mirrored the high degree of cooperation that took place in command channels. Senior commanders and outside observers agree that Operation Uphold Democracy stands as a model of joint cooperation. 29The Operation integrated medical, intelligence, logistics, search-and-rescue, and installation support. 20it involved deployment of Army troops from the US.S. Eisenhower and the US.S. America and the use of the US.S. Mt. Whitney as a joint flagship. 21Moreover, it relied upon swift and detailed planning to shift from a forced entry to a permissive entry without losing momentum. The flow of technical information between operational lawyers contributed to and epitomized these achievements.29

287 See Office of the Staff Judge Advocate, United States Atlantic Command, Technical
Chain of Command (8 May 1995) (fact sheet deposited with CLAMO during conference mentioned in note 15, supra) [hereinafter USACOM Technical Chain Fact Sheet].
28See 194th Armored Brigade AAR, supra note 12 1, at para. 5 ("Coordination with the technical JAG channels early and often is the most important element in a successful JAG deployment, and Uphold Democracy proved no exception.").
289 See [discussing briefing received by President Clinton and Secretary Perry from Admiral Miller].
290 See JTF-1 80 Briefing Viewgraphs, supra note 38.
21See, e.g., CALL INITIAL IMPRESSIONS VOL. 1, supra note 214, at 49 (finding that JTF 180's use of the U S.S. Mount Whitney as the main headquarters "greatly enhanced command and control of the entry operation").
22See, e.g., id at 38-39 (describing the provision by the theater tactical signal brigade of a Mobile Gateway Van (MGV) to meet the demand for unclassified DDN e-mail and MILNET access, the most frequent medium for technical communications).


The flow of technical information also contributed to smooth rotations of units into and out of the area of operations. The highly successful transitions between the I Oth Mountain Division and the 25th Infantry Division and between the MNF and UNMIH are the two most important examples. 293

2. Develop Skillsfor Inter-Agency Coordination. In Haiti, as
in all countries not subject to military invasion or occupation, the Chief of Mission was the senior representative of the President. He remained responsible for policy decisions and for the activities of United States personnel in Haiti, though military commanders retained command and control over soldiers, sailors, airmen, and marines serving in the various joint task forces. 294 The ambassador, through the Country Team, 295 worked with the CINCUSACOM, the CJTF commanders,

293 See, e.g., Colonel Brian Bush, Staff Judge Advocate, 25th Infantry Division (Light), Remarks Before the Haiti After Action Review Conference in Charlottesville, VA (May 9, 1995) (videotape on file with CLAMO) [hereinafter Bush Remarks] (emphasizing the value of technical communications and also of a leader's reconnaissance prior to transition).
294 A federal statute defines the duties of the Chief of a United States Diplomatic Mission to a foreign country:
Under the direction of the President, the Chief of Mission to a foreign country(1) shall have ftill responsibility for the direction, coordination, and supervision of all Government executive branch employees in that country (except for employees under the command of a
United States area military commander); and
(2) shall keep fully and currently informed with respect to all
activities and operations of the Government within that country,
and shall insure that all Government executive branch
employees (except for employees under the command of a
United States area military commander) comply fully with all
applicable directives of the Chief of Mission.
22 U.S.C. 3927(a); JTF COMMANDER's HANDBOOK, supra note 9 1, at 37-38 (discussing interagency and political coordination).
295 Since the 1950s, Presidents have declared what is now enshrined as law in 22 U.S.C. 3927, namely that the Ambassador is in charge of all elements in the United States Government in a host country (excluding military forces under command of a United States military commander,


the Agency for International Development, the Department of Justice, and other agencies, to integrate the diplomatic, economic, informational, and military aspects of United States policy toward Haiti.

The central role of the Ambassador, and the significant
participation of many executive branch agencies, summoned skills that judge advocates traditionally have not needed. For instance, judge advocate who deployed to train forces of coalition nations on rules of engagement discovered that officials from the Department of State had led participating foreign countries to believe that the N4NF could accommodate different nations' rules on the use of force. 296 Because he understood the delicate diplomatic constraints under which State

such as military units in Korea and Germany, or the forces in Haiti). Some Ambassadors invoke this principle more aggressively than others, but almost all utilize the management device of the 11country team."

The country team, with the Chief of Mission at its head, is the principal means by which a mission bonds itself together as a cooperative, coordinated, well-informed staffIn its broadest sense, the 1eam" is all the elements-and all the men and women-of the American mission in a foreign country. More narrowly,
it is a management tool-a council of senior officers, heads of the
various sections of the mission, working together under the
Ambassador's direction to pool their skills, resources, and problems in
the national interest.
United States Foreign Service Institute, The Team: The Ambassador Sets the Pace I (undated 3 page information paper widely distributed to individuals receiving foreign service training). No formal directive delineates the composition or functions of the Country Team. The Ambassador determines the type of team that best suits the needs of a particular country. Typical membership at large posts includes the Deputy Chief of the Diplomatic Mission, the chiefs of the political and economic sections of the embassy, the Security Assistance Officer, the Agency for International Development mission, and the United States Information Service (USIS). It also usually includes one or more of the military attaches and the agricultural attache. See generally DEFENSE INSTITUTE OF SECURITY ASSISTANCE MANAGEMENT, THE MANAGEMENT OF SECURITY ASSISTANCE 105-06 (I 4th ed., 1994) [hereinafter MANAGEMENT OF SECURITY ASSISTANCE].
296 See 194th Armored Brigade AAR, supra note 12 1, at Observation Number I ("The CARICOM deployed with a verbal agreement that they would be allowed to develop their own ROE."); cf Gordon Interview, supra note 220 (describing as routine instances in which foreign government representatives asked the MNF to provide items promised them by other agencies) ("One time, a commander in the French contingent impatiently asked me why the MNF had not yet provided him the 9mm pistols he had been promised.").