Terrorism Legal Issues Summary - Higgins Counterterrorism ...

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Terrorism Legal Issues Summary - Higgins Counterterrorism ...

SUMMARY OF LEGAL ISSUES RELEVANT TOTERRORISM INCIDENTS OF 11 SEP 01(Version 4 - 24 Oct 01)PRINCIPAL AMENDMENTS FROM VERSION 3 of 9 Oct 2001- Additional material on Legal Status inserted relating to:- Status of operation- What law/policy applies?- Status of civilians- Concept of “active or direct participation in hostilities” and loss of protected status- Enlistment/commissioning of contractors- Status of chaplains and medical personnel- Updated mobilization data- Addition of material on anti-terrorist legislation-- Specifically the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)- New section on weapons-- Weapon reviews-- Specific weapons--- Fuel air explosives--- Napalm- New section on the role of lawyers in operations activities (an Air Force Perspective)Legal Issues/AF/JAI/V4 24 Oct 01


Legal Issues/AF/JAI/V4 24 Oct 01 2


SUMMARY OF LEGAL ISSUES RELEVANT TOTERRORISM INCIDENTS OF 11 SEP 01(Version 4 - 24 Oct 01)TABLE OF CONTENTS7 STATUS OF OPERATIONS ISSUES7 Categories of Operations7 Types of Armed Conflict8 Terrorism and the Armed Conflict Paradigm9 Summary11 PERSONNEL STATUS ISSUES11 Terrorists14 Airmen Downed or Captured14 Chaplains15 Medical Personnel16 Civilians19 US Position on Additional Protocol I (AP I) Regarding the Definition of aCombatant20 Contractors28 USE OF FORCE28 UN Charter28 LOAC Limitations29 Retaliation and Reprisal29 ROE30 State Responsibility30 Assassination31 CIVILIAN CONTROL OF POWER TO WAGE WAR31 Division of Power31 War Powers Resolution (WPR)32 Effect of WPR on JA Activities32 Effect of Joint Resolution 2332 Presidential Report to Congress - 24 Sep 0133 COALITION ISSUES33 Right of Collective Action33 Mutual Defense Treaties33 Current Action By Supporting Governments34 Military and Civilian Personnel of Supporting Governments35 Conduct of Multinational Operations35 Terminology35 Command and Control of Multinational Operations35 ROE for Multinational OperationsLegal Issues/AF/JAI/V4 24 Oct 01 3


70 OFFICE OF HOMELAND SECURITY70 Executive Order70 Mission70 Functions70 Administration70 Establishment of Homeland Security Council71 ANTI-TERRORISM LEGISLATION71 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)72 Other Anti-terrorist Legislation73 WEAPONS (LOAC CONSIDERATIONS)73 Weapon Reviews73 Specific Weapons73 Fuel Air Explosives74 Napalm76 CAT PLAN76 AF Crisis Action Team76 AF Continuity of Operations Program (COOP)76 Air Force Emergency Operations Center (AFEOC) a.k.a., Site R77 Contacts78 THE ROLE OF LAWYERS IN OPERATIONS ACTIVITIES -- AN AIR FORCEPERSPECTIVE81 APPENDICESLegal Issues/AF/JAI/V4 24 Oct 01 6


STATUS OF OPERATIONS ISSUES- Categories of Operations-- For the purposes of legal analysis, the key issue with any operation is determining underwhich of the following categories and/or sub-categories the operation lies:--- Armed Conflict:---- International armed conflict---- Armed conflict not of an international character--- Military Operations Other Than War (MOOTW)- Types of Armed Conflict-- International Armed Conflict--- International armed conflict exists in all cases of declared war or of any other armedconflict which may arise between nation states, even if the state of war is notrecognized by one of them---- The fact that one of the parties to a conflict is not recognized by the other as thelegitimate government of a state does not of itself prevent the conflict from beingcharacterized as an international armed conflict--- The US does not recognize the extension of the concept of “international armed conflict”contained in Additional Protocol I (AP I)---- Art. 1 extends the concept to armed conflict involving fighting against “anti-colonialdomination and alien occupation and racist regimes…”--- The point at which a contingency operation actually involves “international armedconflict” is not always clear---- If contingency involves international armed conflict then the law of armed conflictapplies (LOAC)----- The vast majority of LOAC applies to international armed conflict (as opposedto any other kinds of armed conflict - see below)---- During operations in the Balkans in 1999 this became a major issue----- Status of US personnel captured near the Macedonian/Serbian border wasdependent upon the characterization of the operation--- Non-International Armed Conflict---- International law recognizes “armed conflicts not of an international character”----- Traditionally, these other conflicts have been referred to as, and involved theconcepts of, “civil wars” or “internal conflicts”----- LOAC applies to these types of conflicts------ LOAC is quite limited compared to that applicable in international armedconflicts----- There may be considerable reluctance on the part of sovereign states tocharacterize their internal security situation as one involving any kind of armedconflict, as opposed to a mere domestic policing issueLegal Issues/AF/JAI/V4 24 Oct 01 7


---- Possibly irrelevant if an actual international armed conflict breaks out (due toinvolvement of state actor as an adversary)-- DoD Approach to Transnational Anti-Terrorist Operations--- The high level of potential military response (i.e., large scale application of combatpower) to events of 11 Sep 01, combined with third country location of the key terrorists,pushed DoD Law of War Working Group (LOWWG) thinking towards characterizingthat response against the terrorists themselves as a non-international armed conflict---- Only to the extent that the “armed conflict” remained a clash between the respondingstate and the terrorists---- Involvement of the host state would make the conflict an international armed conflictat least in respect of armed clashes between responding state and host state--- Assault on Taliban military assets appears to have pushed the current situation into“international armed conflict” with respect to relations between US and Afghanistan---- DoD GC yet to release definitive position, but should be a non-issue--- Characterization of assault on terrorists alone remains a live issue---- May have been absorbed into international armed conflict---- Alternatively, may need to be characterized separately---- Advantages of adopting position that combat responses to terrorists are within the“armed conflict” paradigm:----- Questionable legitimacy of alternative paradigms (e.g., robust criminal lawenforcement - see above)----- If role of military involves the full application of combat power then anythingless than the armed conflict paradigm fails to adequately describe the situation----- Provides a basis for claiming combatant status for the responding states militarypersonnel, and consequently POW status upon capture----- Provides a basis for using LOAC principles as the basis for target selection andweaponeering as opposed to some stricter standard---- Potential Issues:----- Application of combat power to terrorists challenges the limits of the armedconflict paradigm----- The very limited content of LOAC actually applicable to armed conflicts not ofan international character----- Application of LOAC principles concerned with combatant status, as a matter ofpolicy, may provide no real benefit or even be counterproductive:------ LOAC principles could only be used to provide equal or better treatmentthan underlying law (cannot as a matter of law transform a terrorist into an“unlawful combatant”)------ Use of term “combatant” (even if only for US forces) or other LOACterminology may lend legitimacy to terrorists claims of “military” statusfor their operation- Summary-- For there to be an international armed conflict, there must be two or more states actuallyinvolved in conflict with each other--- The targeting of terrorists within the territory of another country does not necessarilymean that there is an international armed conflictLegal Issues/AF/JAI/V4 24 Oct 01 9


--- Had the focus of targeting been exclusively on the terrorists then this might have made itimpossible to characterize situation as “international” armed conflict-- The opening of the US-led bombing campaign in Afghanistan against Taliban targets, hasalmost certainly crystallized the situation into one of international armed conflict--- DoD GC yet to release final position on this issue---- Previous indications are that this should be a non-issue--- Military action taken against the terrorists, may have been absorbed into this internationalarmed conflict, but it is possible that this portion will be described as an armed conflictnot of an international characterLegal Issues/AF/JAI/V4 24 Oct 01 10


PERSONNEL STATUS ISSUES- Terrorists (see also section “Antiterrorism/Force Protection”)-- Who is a “terrorist”?---- Definition (relevant during peacetime and armed conflict)----- A terrorist is “[a]n individual who uses violence, terror and intimidation to achieve aresult or any element regardless of size or espoused cause, which repeatedlycommits acts of violence or threatens violence in pursuit of its political, religious, orideological objectives” (Standing Rules of Engagement for US Forces (SROE))----- Read in context of definition of “terrorism” (SROE)------ “The calculated use of unlawful violence or threat of unlawful violence toinculcate fear; intended to coerce or to intimidate governments or societies inthe pursuit of goals that are generally political, religious, or ideological”-- Consequences of “Terrorist Status”--- Under Domestic Criminal Law---- At all times a terrorist is a criminal (crimes punishable under US Federal law)---- Under this view, law enforcement agencies have the responsibility for bringing theterrorists to justice (i.e., investigating, locating, arresting, and prosecuting them)---- As a domestic law enforcement issue, assistance by DoD may be provided, but islimited by the Posse Comitatus Act when such assistance would be provided CONUS(unless specific constitutional or statutory authority allows for broader participation)----- Posse Comitatus Act traditionally considered not to apply extraterritorially:------ Two important qualifications:------- At least one Circuit has taken a slightly different view, relying onthe contents of 10 USC 371-380 to assert that it is wrong to suggestthat the restrictions on military involvement in civilian lawenforcement operations do not extend to activities outside the US(See US v Kahn, 35 F.3d 426 (9 th Cir. 1994) - this runs counter to aDoJ opinion from 1989)------- DOD Directive 5525.5 DoD Cooperation With Civilian LawEnforcement Officials, Sec 8.1 requires requests for exceptions topolicy restrictions against direct assistance by military personnel toexecute the laws outside the US to be approved by the SecDef andonly in cases of compelling and extraordinary circumstances--- Application of Combat Power to Terrorists---- Events of 11 Sep 01 made it necessary to involve the US military in activities waybeyond mere assistance and support to domestic law enforcement agencies---- Role of US military in counter-terrorism already countenanced by SROE---- Under the Standing Rules of Engagement (SROE) “US national security interestsguide global objectives of deterring and, if necessary, defeating armed attack orterrorist actions against the United States”---- National, unit and individual self-defense apply regarding terrorists----- The inherent right and obligation to use all necessary means available and totake all appropriate actions to defend one’s self and US forces from hostileacts or hostile intent (unit and individual self defense)Legal Issues/AF/JAI/V4 24 Oct 01 11


----- The SROE states that National Self Defense can be exercised against terroristseither committing hostile acts or demonstrating hostile intent or if declaredhostile (hostile act, hostile intent not required before engagement)---- In response to the 11 Sep 01 attacks in the US, the US Senate passed JointResolution 23----- Provides the President specific statutory authorization to “use all necessaryand appropriate force against those nations, organizations, or persons hedetermines planned, authorized, committed, or aided the terrorist attacks thatoccurred on September 11, 2001, or harbored such organizations or persons,in order to prevent any future acts of international terrorism against the UnitedStates by such nations, organizations or persons.”----- The resolution’s preamble states that “such acts render it both necessary andappropriate that the United States exercise its rights to self-defense….”(emphasis added)----- The resolution, therefore, provides the option of responding to the terroristacts of 11 Sep 01 as a military matter, which would give DoD the lead------ Signed by President Bush on 18 Sep 01; became Public Law 107-40 on18 Sep 01----- Consequential effects?------ Not clear what effect this has on application of Posse Comitatus Act------ Given that response to terrorism was likely to involve the fullapplication of combat power, this led to discussion of the application ofLOAC to individual terrorists (as well as the more general issue of thestatus of the operation as a whole)--- Status of Terrorists under LOAC?---- As a matter of law, LOAC is applicable during armed conflict and, as far as US forcesare concerned, applicable as a matter of DoD policy during all military operations----- The content of LOAC varies between international armed conflict and armedconflict “not of an international character”---- Under LOAC a person who takes an active or direct part in hostilities duringinternational armed conflict without being a “lawful combatant” is an “unlawfulcombatant”----- Lawful combatants are those personnel who:------ Are commanded by a person responsible for his subordinates------ Have a fixed distinctive sign recognizable at a distance------ Carry arms openly, and------ Conduct operations IAW the laws and customs of war/armed conflict----- An individual who takes an active or direct part in hostile activities, including butnot limited to terrorism, without satisfying the above criteria, will be an unlawfulcombatant (a war crime itself), in addition to being liable for the separatecriminality of their hostile acts---- Some challenges exist in translating the concept of lawful/unlawful combatantsoutside of the international armed conflict scenario, either to:----- An armed conflict not of an international character (where the content of LOACis quite limited, including on the issue of combatant status)----- Any other kind of operation (where LOAC can only apply as a matter of policy)Legal Issues/AF/JAI/V4 24 Oct 01 12


---- Notwithstanding any difficulties, use of the lawful/unlawful combatant concept maybe required to adequately deal with a military response to transnational and/or statesponsoredterrorists involving the application of combat power (particularly onforeign territory)---- Issue of terminology and status discussed at DoD Law of War Working Group(LOWWG) in context of DoD lead role----- Sense of the LOWWG was that treatment of terrorists as “unlawful combatants”was the most appropriate course------ Recognized practical US interest in application of LOAC principles in thecontext of reciprocity of treatment of captured personnel (see “AirmenDowned or Captured” below)---- DoD involvement would not change the status of the terrorist from that of a criminalto that of a lawful combatant (but see DoD policy below regarding treatment uponcapture)----- Very unlikely that a captured terrorist will be legally entitled to POW statusunder the Geneva Conventions; instead, he or she is subject to criminalprosecution by the victim state----- At best, the terrorist would be an unlawful combatant, as the overall aim ofterrorist activity is to directly affect the civilian population—which violatesLOAC (i.e., a war crime)------ Has status as an unlawful combatant even if the terrorist has attacked amilitary target—lawfulness of target doesn’t change status and again,looking at their activities as a whole, their primary purpose is to terrorizecivilians------- An individual who engages in terrorism during armed conflict mightsimultaneously be treated as:-------- An unlawful combatant (itself a war crime)-------- In respect of any criminality attaching to the acts themselves:--------- A war criminal--------- A criminal under domestic law------- This individual must be distinguished from the lawful combatantengaged in “terrorist” acts, who may simultaneously be a warcriminal and a criminal under domestic law---- Quite clearly the status issue poses some difficulties (although the terrorist’s status ascriminals is assured)-- Treatment upon capture--- DoDD 5100.77, DoD Law of War Program, requires DoD members to comply withLOAC during all armed conflicts, however such conflicts are characterized, and with theprinciples and spirit of LOAC during all other operations---- Therefore, if a terrorist is captured, DoD members must at the very least comply withthe principles and spirit of LOAC----- A suspected terrorist captured by US military personnel will be given theprotections of but not the status of a POW (unlawful combatants not entitled toPOW status)----- Subsequent treatment:Legal Issues/AF/JAI/V4 24 Oct 01 13


------ Terrorists could be prosecuted for crimes, including domestic crimes andwar crimes------ Should the terrorist seek POW status then consideration for processingunder Art. 5 of the 1949 Geneva Convention III (GC III)(an “Article 5Tribunal”) may be necessary- Airmen Downed or Captured-- DoD Position (cleared by OSD/GC):“Were US armed forces personnel to be captured by a state with which we are engaged inan international armed conflict, we would expect that, as prisoners of war, they would beafforded the protections of the 1949 Geneva Convention III. The US would treatcaptured members of the armed forces of such states as prisoners of war and afford themthe same treatment as required by the Geneva Conventions.Were US armed forces personnel to be captured by terrorists, whether held as hostages oras unlawful detainees, we would consider U.S. personnel to be entitled to the fullprotections accorded to lawful combatants. We would call for their immediaterepatriation and expect them to be afforded the full protections accorded to lawfulcombatants until so repatriated.”-- Where captured by a state with which US is involved in an international armed conflict:--- Entitlement to POW status could be lost if captured in hostile territory while workingcovertly/clandestinely out of uniform--- Only entitled to repatriation at end of hostilities-- Code of Conduct applies both to capture by state actors and terrorists--- Special provisions of DoD Instruction 1300.21 give explicit guidance on capture byterrorists- Chaplains-- Ministers are persons authorized to perform religious functions in a church that may or maynot be chaplains-- Ministers who join the force, but are not officially attached as chaplains, are combatants(1949 Geneva Convention I (GC I) Art. 24, and ICRC Commentary to GC I, p. 220)--- Combatant ministers receive no protection from attack and when captured are treated asPOWs (GC III, Art. 36)--- Only competent military authority can “attach” ministers to their forces and “officially”designate them as chaplains (GC I, Art. 24)-- The Geneva Conventions consider chaplains as non-combatants and they protect them in allcircumstances (GC I, Art. 24)--- They grant chaplains protection from attack (See, GC I, Art. 19)--- When captured, chaplains receive the benefits of POWs, but are conferred a higher statusas retained personnel---- They are subject to release when no longer needed to perform their religious duties(GC III, Art. 33 and 36)-- Chaplains share a duty with medical personnel to “…refrain from taking part in hostile acts.”Legal Issues/AF/JAI/V4 24 Oct 01 14


--- This includes indirectly taking part (GC I, Art. 24, ICRC Commentary on GC I, p. 220 –221]--- AP I confirms this bar by excluding chaplains and permanent medical personnel from thelist of combatants (Art. 43, paragraph 2)--- A chaplain may not temporarily assume the role of combatant and continue to retain hisprotected status---- Instead, chaplains must entirely devote their time to religious duties (GC I, Art. 24,and ICRC Commentary on GC I, p. 220-22)--- Chaplains subject themselves to allegations of perfidy by taking part in hostilities.---- By feigning non-combatant status (taking part in hostilities as a noncombatant) thechaplain unfairly benefits from the adversary’s compliance with the law of war (API, Art. 37)--- If we allow some chaplains to switch between non-combatant and combatant roles weundermine all chaplains’ freedom from attack---- Because the enemy cannot tell which chaplain is or is not a combatant, he may claimthe right to attack all chaplains- Medical Personnel-- Permanent medical personnel are those issued the special Geneva Convention Identify Cardfor Medical and Religious Personnel--- These people work exclusively caring for the sick and wounded--- Their sole duty is humanitarian medical care, so the Geneva Convention considers themnon-combatants (GC I, Arts. 19, and 24; see also AP I, Art. 8)-- Their protection from attack derives from their neutral role of caring for the sick andwounded (See GC I, Art. 12, ICRC Commentary on GC I, p.137)-- To enjoy non-combatant immunity (protection from attack), permanent medical personnel“… must naturally abstain from any form of participation – even indirect – in hostile acts.”GC I, Art. 24, and ICRC Commentary on GC I, p. 221)--- Permanent medical personnel, including administrative staff, must be “exclusivelyengaged” in medical care--- In other words, doctors, “office staff, ambulance drivers, cooks (male or female), cleaners,etc.,” (all permanent medical personnel) must not perform any combat duties whileclaiming non-combatant status--- They should also avoid the appearance of switching roles while claiming the privilege---- This would include working as security forces (GC I, Art. 24, and ICRC Commentaryon GC I, p. 219)--- Commentary states that “doctors and their administrative staff” who are permanentmedical personnel “cannot assume their medical character temporarily.”---- In other words commanders cannot order them to switch between combat and noncombatroles on a temporary basis (GC I, Art. 25, and ICRC Commentary on GC I, p.222)---- These requirements protect permanent medical personnel, hospitals and medicalvehicles from attack as the Geneva Convention intended--- While HQ USAF/JAI takes the position that armed forces can reassign certain (nondoctor)permanent medical personnel to combat roles, they also state that armed forcesLegal Issues/AF/JAI/V4 24 Oct 01 15


cannot thereafter return these personnel to their medical duties and protected status(switch back and forth)---- Even this policy raises concern because commanders, losing a battle, may think itlawful to order all or part of their permanent medical personnel to assume temporarycombat roles-- When captured, permanent medical personnel enjoy special rights as retained personnel, andthe enemy must release them when they are no longer needed to provide medical care (GC I,Art. 28)-- All medical personnel may use arms in self-defense or defense of patients (GC I, Art. 22)--- Self defense and defense of patients does not permit them to oppose enemy occupation orcontrol (GC I, Art. 22, and ICRC Commentary on GC I, p. 203-04)--- It does allow them to use force to prevent unlawful acts such as war crimes againstthemselves or their patients (Id.)---- For example, GC I, Art. 12 protects the sick and wounded: “Any attempts upon theirlives, or violence to their persons shall be strictly prohibited; in particular, they shallnot be murdered or exterminated, subjected to torture… nor shall conditionsexposing them to contagion or infection be created.”---- Medical personnel may defend against any of these unlawful acts as well as othersthat terrorist or other enemies may be perpetrate--- Permanent medical personnel may serve as sentries or pickets, but again only acting indefensive roles as describe above (GC I, Art. 22)-- AFI 41-106 governing use of medical technicians as Security Force Augmentees onlypartially complies with law of war and policy under GC I, Art. 24 and AP I, Art. 8--- Limitations for using medical personnel in paragraph 2.5.1 correctly restates GC I, Art.22--- Paragraphs 2.5.2 through 2.5.3 correctly restates policy allowing the Air Force to reassigncertain (non-doctor) permanent medical personnel to combat duties---- Commanders must carefully apply this policy to avoid even the appearance ofreassigning medical personnel during a conflict to combat duties--- Paragraph 2.5.4 which permits the Air Force to return former medical personnel to theirmedical duties and claim protected status is inconsistent with well-established legalprinciples---- Permanent medical personnel must always refrain from even indirect acts of combat.This principle is violated where permanent medical personnel are ordered to switchbetween non-combatant and combatant roles---- Violations of the neutrality of medical personnel may lead enemies to assert thatentire medical facilities are sheltering combatants thereby forfeiting their immunityfrom attack- Civilians-- When dealing with issues of status and protection of civilians, the fundamental issue is howthe operations or conflict can be characterized--- Characterization of the operation is addressed in the section above entitled “Status ofOperation Issues”--- During the course of a single operation the characterization may change-- This section deals with the protections afforded to civilians during:Legal Issues/AF/JAI/V4 24 Oct 01 16


------ Examples:------- Contractors who accompany the force without being membersthereof are entitled to POW status if they meet certain criteria butthey are still not entitled to engage in combat (If they do take anactive or direct part in hostilities they will have become unlawfulcombatants, and can be prosecuted)------- Civilians who participate in a levee en masse (and meet certain thedefined criteria in GC III, Art. (A)(6)) are entitled to POW status;will not be criminally prosecuted for engaging in combat during therelevant levee en masse (they are no longer treated as civilians)------- Groups such as resistance movements must meet the fourrequirements of GC III, Art. 4(A)(2) to be considered lawfulcombatants-------- The US does not accept the altered formulation in AP Ibecause it lowers the standard required by GC III withrespect to the issue of carrying arms “openly”----- Forfeiting Combatant Immunity------ Lawful combatants who commit perfidious acts or other war crimes losetheir combatant immunity for those acts and may be prosecuted as warcriminals------ Noncombatants such as civilians (unless involved in a levee en masse),military medical personnel and chaplains do not possess combatantimmunity and so they cannot lose it--- Armed Conflicts Not of An International Character---- Common Article 3 to the 1949 Geneva Conventions----- Provides that in the case of an armed conflict not of an international characteroccurring on the territory of one of parties, each of the parties to the conflictwill apply a list of minimum humanitarian standards to those they capture----- Still forms part of LOAC not some other body of international law----- Does not grant combat immunity or even use terms such as “combatant” or“unlawful combatant”----- Most importantly for captured personnel, Common Article 3 requires humanetreatment and a fair trial---- Art. 75 of AP I----- Expands on the rights of the persons falling under the power of a party to aconflict (including conflicts not of an international character)---- Standing DoD Policy----- DoD policy is to comply with the law of war during all armed conflicts,however such conflicts are characterized (See DODD 5100.77, at 5.3.1)----- On this basis DoD would fully apply the distinction between combatants andnon-combatants----- Will prevent its own contractors from taking an active or direct part inhostilities----- Will afford LOAC protections to those persons not taking an active ordirect part in hostilities (e.g., the local civilian populations)Legal Issues/AF/JAI/V4 24 Oct 01 18


----- Entirely consistent with this policy for US forces to grant as a matter of policy(i.e., as an indulgence rather than an obligation), greater rights to capturedhostile personnel than those laid out in Common Article 3 or which appear inArt. 75 of AP I that reflect customary international law-- During Operations Where LOAC Applies Only as a Matter of Policy--- DoD policy is not only to comply with the law of war during all armed conflicts,(however such conflicts are characterized), but also to comply with the principles andspirit of the law of war during all other operations (See DODD 5100.77)--- In the absence of actual armed conflict, concepts such as “combatant,” “noncombatant,”“unlawful combatant” and “combatant immunity” do not become relevant because thereare simply no “combat” activities--- Application of LOAC principles by US forces may still be useful in ensuring a high or atleast recognized standard of treatment for those persons caught up in military operations---- May assist US forces in maintaining moral authority for the operation---- May encourage reciprocal treatment by other elements operating in the theater,particularly of detained personnel--- DoD may decide to exclude contractors from those activities that are akin to “active ordirect participant in hostilities” although the practicalities in, or rationale for doing somay be questionable (i.e., because there simply is no real combat occurring)---- Contractors might be excluded from activities that are performed both during andoutside of armed conflict on the notion that “we train (or operate) the way we fight.”--- Other potential limitations on applying LOAC as a matter of policy:---- When LOAC principles are applied merely as a matter of policy, if the applicablelegal position imposes higher standards of conduct on US forces, then the law mustbe followed (LOAC principles can only be used to indulge not disadvantage acaptive)----- For example, if captured personnel are not legally “unlawful combatants” and ifthey are entitled to better treatment as a suspected criminal (which may not bethe case), then the use of term “unlawful combatant” as a matter of policy doesnot affect the treatment to which they are entitled---- The terms “combatant”, “noncombatant” and “unlawful combatant” are terms of artwithin LOAC----- Do not expect universal agreement that they can be used as labels outside of ascenario where LOAC applies as a matter of law----- Use of the terminology of LOAC, such as “combatant”, “non-combatant” or“unlawful combatant” may be inappropriate if it lends any kind of “militarylegitimacy” to criminals and criminal organizations- US Position on Additional Protocol I Regarding the Definition of a Combatant-- The US rejects the means provided for in AP I dealing with the measures a combatant musttake to distinguish themselves from the civilian population-- With respect to the issue of distinction, Art. 44(3) of AP I allows an individual belligerent toattain legal combatant status merely by:--- Carrying his arms:---- Openly during each military engagement, and---- When visible to an adversary while deploying for an attackLegal Issues/AF/JAI/V4 24 Oct 01 19


--- Medical & Dental Care (Reference DoDI 3020.37)---- Deploying CP should be:----- Given medical and dental examinations, and if warranted, psychologicalevaluations, to ensure fitness for duty in the theater of operations to support themilitary mission----- Tested for HIV before deployment if the country of deployment requires it----- Have panarexs or DNA samples taken for identification purposes (dental x-raysmay be substituted when the ability to take panarex or DNA samples is notavailable)---- Extent of AF obligation:----- AF generally not obligated to perform the evaluations noted above unless statedin the contract----- Unless provided for in the contract, AF is not obligated to provide medical carein the forward area to CP----- Emergency care by AF medical personnel for serious injuries is appropriate (as itwould be for any person)--- Legal Assistance---- CP generally ineligible to receive legal assistance from military or US governmentcivilian attorneys---- They may wish to consult a privately retained attorney before deployment----- Costs strictly a private matter between the individual and the retained attorney---- If, however, the individual is accompanying AF outside of the US, he or she mayreceive certain legal assistance services from US Government attorneys when theDoD or the AF is obligated by the terms of the contract to provide such assistance aspart of logistical support----- Specific terms of the contract in question should be reviewed to verify thisobligation----- If provided overseas (under contract obligation), it must be consistent withapplicable international agreements or otherwise approved by the host nationgovernment, and limited to:------ Ministerial services (e.g., notary services)------ Counseling (including the review/discussion of legalcorrespondence/documents)------ Document preparation (limited to powers of attorney/advanced medicaldirectives)------ Help retaining a non-government attorney----- Fact that an individual is CP does not limit the services that he or she wouldotherwise be entitled to receive under another status (e.g., as a reservist, militaryretiree, or military family member)------ General legal assistance to retirees or dependents is seldom available inforward areas, nor are forward legal offices generally manned to providesuch routine services--- Identification Cards---- For LOAC purposes, CP, like DoD civilian employees, generally fall in the categoryof “persons accompanying the force without being part thereof” and should receivethe following distinct forms of identification:Legal Issues/AF/JAI/V4 24 Oct 01 21


----- Geneva Conventions Identity Card for Persons who Accompany the ArmedForces (DD Form 489)------ Identifies status as CP accompanying the US Armed Forces------- Must be issued in accordance with DoDI 1000.1------- Individual must carry it at all times while in the theater of operations----- Personal identification tags------ Will include following information: full name, SSN, blood type andreligious preference------ These tags should be worn at all times while in the theater of operations---- Based upon the nature of the operation, there may be other identification cards,badges, etc. issued----- Example, when US forces participate in UN or multinational peace-keepingoperations, CP may be required to carry items of identification that verify theirrelationship to the UN or multinational force---- When a contractor processes its employees for deployment, it is the contractor’sresponsibility to ensure that its personnel receive required identification prior todeployment-- Deployment Issues--- CCs must ensure that CP are not used in any manner that would jeopardize their statusunder international law as non-combatants (SecAF Interim Policy, Contractors in theTheater, 8 Feb 01)---- Recognize danger of inadvertently transforming perception of them (by the enemy)into illegal and/or unprivileged belligerents, by a combination of:----- Deploying these civilians with our forces to work intermingled with the military----- Allowing or requiring them to wear uniforms similar to those worn by ourmilitary forces----- In some instances issuing personal weapons to them--- Supervision, Control and Discipline---- Military CCs have no command authority over CP----- CCs cannot order them to deploy, remain in theater, or perform specific missions---- Except in Congressionally declared wars, CP accompanying our forces do not fallwithin a CC’s UCMJ jurisdiction---- Contracting officer (or their representative) is the designated liaison for implementingcontractor performance requirements----- CP are not under the direct supervision of the contracting officer or thecontracting officer’s representatives---- Control by Contract----- Control of civilian CP is tied to the terms and conditions of the governmentcontract----- Key performance requirements should be reflected in the contract------ E.g., theater CC directives, orders and essential standard operatingprocedures can be incorporated into the contract----- If AF requirements change, the contracting officer should formally modify thecontract to satisfy the CC’s new requirementsLegal Issues/AF/JAI/V4 24 Oct 01 22


---- Other Control----- CP are expected to adhere to all guidance and obey all instructions and generalorders issued by the Theater CC based upon the needs of missionaccomplishment, personal safety, and unit cohesion------ If CP violate the instructions and orders of the Theater CC, the USGovernment may employ a range of administrative actions against theindividual------- Examples-------- Military CCs may:--------- Limit access to facilities and/or--------- Revoke any special status that CP has as anindividual accompanying the force-------- Contracting officer or his or her representative may:--------- Direct the contractor to remove from the theater ofoperations any CP whose conduct endangers personsor property, or whose continued employment isinconsistent with military security (but seediscussion below with respect to host country andthird country nationals)--------- Take action against the contractor for breach ofcontract, including terminating the contract------- CP will fall into three categories: US nationals, nationals of the hostcountry, and third country nationals-------- What the CC or the contractor can do with CP may depend inpart upon the nationality of the employee--------- Actions involving host country nationals may have tobe coordinated with host nation authorities--------- DFARS subparts to consult include:---------- 222.72 “Compliance with Labor Laws ofForeign Governments”---------- 225.74 “Antiterrorism/Force ProtectionPolicy For Defense Contractors Outside theUnited States”---------- DFARS 252.247-7006 “Removal ofcontractor's employees” December 1991 asan example of the clause that could beinserted into contracts (not justtransportation contracts) in appropriatecircumstances---- MEJA----- Under the newly enacted MEJA, persons employed by the Armed Forces outsidethe US and persons accompanying the force (including CP) are subject toFederal criminal jurisdiction (see discussion above)----- Implementation of MEJA not yet completeLegal Issues/AF/JAI/V4 24 Oct 01 23


--- Vehicle & Equipment Operation---- Deployed CP may be required or asked to:----- Operate US military, government owned, or government leased equipment orvehicles----- Personnel may also be required to obtain local licenses and permits for thecountry within which they are being deployed (e.g., a German driver’s license)---- While operating a military owned or leased vehicle, CP are subject to the local lawsand regulations of the country, area, city, and/or camp in which he or she is deployed----- Traffic accidents or violations usually will be handled in accordance with thelocal laws, the Status of Forces Agreement (SOFA), and/or Theater CC guidance------ If CP do not enjoy special status under the SOFA, then he or she may besubject to criminal and/or civil liabilities (i.e., may be held liable fordamages resulting from negligent or unsafe operation of governmentmilitary vehicles and equipment)--- Weapons & Training---- CCs are not to:----- Contract out or assign to CP the authority to use military force because CP arenot lawful combatants----- Issue firearms to CP operating on their installations----- Allow CP to carry personally owned weapons---- Exception:----- CCs may deviate from this prohibition only:------ With the express permission of the geographic combatant commander(CINC------ In consultation with host nation authorities------ When unusual circumstances exist (e.g., for protection from bandits ordangerous animals if no military personnel are present to provideprotection)----- If circumstances dictate the issuing of personal firearms to CP, CCs shouldensure that adequate weapons training is provided prior to issuing firearms----- Unless specifically approved by the theater CINC, AF CCs should neither allowCP to transport personal weapons on AF aircraft nor to keep or carry suchweapons on an AF controlled installation--- Living Under Field Conditions---- Generally, the terms of contracts that contemplate performance in deployed locationswill dictate that CP living conditions, privileges, and limitations should be equivalentto those of the units supported unless the contract with the Government specificallymandates or prohibits certain living conditions---- SOFA provisions may also allow CP the same privileges as uniformed military orcivilian members of the force----- This is, however, seldom the case--in the more than 100 SOFAs to which the USis a party, less than 20 have any provisions pertaining to CP------ JAs should be aware of this and, if requested by their CCs, be prepared toseek assistance from the CINC’s legal staff or US embassy in negotiatinginterim provisions covering CPLegal Issues/AF/JAI/V4 24 Oct 01 25


--- Medical & Dental Care---- If mandated by the terms of the governing contract, CP in a theater of operations areentitled to the same medical care as military personnel, including the sameimmunizations given to military personnel in theater---- CP killed in a theater of operation should be processed by Graves Registrationconsistent with procedures utilized for the military---- Consequently, CP should be encouraged to fill out DD Form 93, “Record ofEmergency Data”---- CP returning to the United States and its territories from a theater of operations mayreceive cost-free military physical examinations----- See FAR 28.305, Overseas Workers' Compensation and War Hazard Insurance,26 July 2000--- Morale, Welfare, and Recreation Support (MWR)---- US citizen CP working within the theater of operations may be eligible to use MWRresources such as Army and Air Force Exchange Service (AAFES) facilities, subjectto the installation or Theater CC’s discretion, the terms of the contract, and the termsof the applicable SOFA---- CP may also have their MWR privileges suspended for disciplinary infractions suchas: making any sale, exchange, transfer, or other disposition of exchange merchandiseor services to unauthorized persons (whether or not for a profit); using exchangemerchandise or services in the conduct of any activity for the production of anincome; theft of exchange merchandise or other assets by shoplifting; and intentionalor repeated presentation of dishonored checks or other indebtedness--- Tours of Duty & On-Call Requirements---- CP’s tour of duty is established by his or her employer (or own contract terms as anindependent contractor) and the terms and conditions of the contract between theemployer and the Government---- On-call requirements, if any, will be included as special terms and conditions of thecontract with the Government-- Enlistment or Commissioning of CP--- Voluntary Enlistment or Commissioning of CP---- If CP voluntarily enlist or accept commissions into the armed forces, therebybecoming a part of those armed forces, then in terms of international law, andparticularly LOAC, there is no logical basis for differentiating between them and anyother members of the armed forces----- Issues for resolution might include:------ The continuing effect, if any, of the previous contractual arrangements (i.e.,when they were simply contractors not soldiers/airmen)------ The terms and conditions of military service------- In what way, if any, are they to be treated differently from othermembers of the armed forces:-------- Command and Control?-------- Discipline?-------- Pay and other entitlements?-------- Training?Legal Issues/AF/JAI/V4 24 Oct 01 26


----- In general terms, the issues raised above are only internal issues and, ofthemselves, would have no bearing on their status under LOAC----- Enlistment or commissioning of a contractor can be viewed as creating certainpresumptions of legitimacy as combatants----- LOAC would require them to wear the uniform of the armed forces during theperformance of certain duties----- There might be a problem if the central tenets of military service were missing------ For instance, if they were not subjected to any genuine military commandand control--- Involuntary Enlistment or Commissioning---- The US cannot involuntarily draft individual persons into military service.----- Draft must not target specific individuals---- Only individual voluntary sign-up is permitted. Involuntary selection must be“impartial” and “random.” See 50 App. § 455 (a)(1) and (d); U.S. v. Strayhorn, 471F. 2 nd 661 (1972). (Note: informal JAG opinion concurs.)--- Conclusion---- In principle there is no reason to believe that contractors who subsequently join thearmed forces cannot fully engage in combat activity, subject of course to the generallimitations applied by LOAC to all combatantsLegal Issues/AF/JAI/V4 24 Oct 01 27


USE OF FORCE- UN Charter-- UN Charter, Art. 2(4) requires members to “refrain … from the threat or use of force againstthe territorial integrity or political independence of any state, or in any other mannerinconsistent with the Purposes of the United Nations”--- This prohibition on the use of force does not abrogate the inherent right of individual orcollective self-defense, which is codified in Art. 51 of the Charter---- Included in the inherent right of self-defense is the right to engage in anticipatory selfdefense,i.e., conduct preemptive strikes when there is credible information indicatinga threat to national or international peace and security----- Not all states agree that there is a right to anticipatory self-defense, but the US isamong those that believe the right exists as a matter of customary internationallaw----- Moreover, some states take a restrictive view of Art 51’s statement that the useof force in self-defense is triggered by “armed attack;” they prefer to focus on themeans used to commit an act to determine whether the right to self-defense hasbeen triggered; but the growing opinion is that the effects/consequences of theactor’s conduct determine whether another state may respond in self-defense--- The UN Charter also gives the UN Security Council the authority to authorize the use offorce when necessary to maintain international peace and security- LOAC Limitations-- Use of force has limitations—it will be subject to the principles of the Law of ArmedConflict (LOAC)--- Military necessity—target military objectives only; i.e., those persons, places, or objectsthat make an effective contribution to military action--- Humanity/unnecessary suffering—don’t cause unnecessary suffering or unnecessarydestruction of property; use of arms, projectiles or material calculated to causeunnecessary suffering is prohibited--- Proportionality—collateral damage and incidental injury must not be excessive in relationto the military advantage expected to be gained viewing the operation as a whole andbased on the information reasonably available at the time--- Distinction/discrimination—discriminate between combatants and non-combatants;discriminate between military objectives and protected people/protected places; do notemploy means or methods of warfare that cannot be directed at a specific militaryobjective or that cannot be limited as required---- A non-combatant will lose his protected status if he participates in the hostilities (e.g.,a civilian commits warlike acts against a belligerent state)—he becomes an unlawfulcombatant----- This principle renders terrorists who have committed warlike acts againstanother state’s property or population unlawful combatants----- Unlawful combatants would be entitled to humane treatment if captured, butwould not be entitled to prisoner of war status, nor would they be immune fromcriminal prosecution for their actionsLegal Issues/AF/JAI/V4 24 Oct 01 28


- Retaliation and Reprisal-- It’s also important to distinguish between use of force in retaliation or reprisal--- “Retaliation” is the infliction upon a wrongdoer of the same injury caused by thewrongdoer; i.e., it is use of force to inflict punishment or retribution for its own sake;because the purpose of retaliation is to inflict punishment, which is not the purpose ofmilitary forces---- Military forces are not permitted to engage in retaliation under international or USlaw--- “Reprisal” is the legal use of an otherwise unlawful means in response to an illegal act byan enemy; reprisal is permitted only in situations of international armed conflict---- The conditions for a reprisal are:----- The reprisals must be taken with the intent to cause the enemy to cease violationsof the law of armed conflict,----- Other means of securing compliance should be exhausted,----- Reprisals must be proportionate to the violations, and----- The reprisal is not against an otherwise universally protected object or person---- Geneva Conventions of 1949 contain certain prohibitions:----- Reprisals against prisoners of war prohibited----- Reprisals against the civilian population located in occupied territories prohibited---- AP I (to which the US is not a party) prohibits reprisals against specific types ofpersons or objects----- AP I does not apply to nuclear weapons- ROE-- DoD and its allies use rules of engagement (ROE) to provide guidance on the use of force bymilitary personnel, taking political purposes, military needs, and legal requirements intoconsideration--- ROE are issued by competent military authorities to control the use of force in threesituations: to implement the inherent right of self-defense; for mission accomplishment;and throughout the spectrum of conflict from peacetime to military operations other thanwar to armed conflict---- The Standing Rules of Engagement (SROE) issued by the CJCS, is the basic ROEdocument for all US forces during military attacks on the US and during all militaryoperations, contingencies, and terrorist attacks outside the territory of the US;supplemental ROE may be requested as necessary----- Mission-specific ROE can usually be found in an annex to the operational plan(OPLAN)/ operation order (OPORD); additionally, special instructions (SPINs)sometimes contain ROE----- The SROE are inherently permissive—unless the ROE affirmatively restrict yourauthority, all means of force are authorized to accomplish the mission;additionally the SROE do not limit a CC’s inherent authority and obligation touse all necessary means available and to take all appropriate actions in selfdefenseof the CC’s unit and other US forces in the vicinity (see below forfurther discussion)----- The SROE embody the US policy that we will use force only when necessaryand only to the extent that it is proportionate to the threat defended againstLegal Issues/AF/JAI/V4 24 Oct 01 29


--- Under the SROE “US national security interests guide global objectives of deterring and,if necessary, defeating armed attack or terrorist actions against the United States”---- National, unit and individual self defense apply to terrorists----- The inherent right and obligation to use all necessary means available and totake all appropriate actions to defend one’s self and US forces from hostile actsor hostile intent (unit and individual self defense)----- SROE state that National Self Defense can be exercised against terrorists eithercommitting hostile acts or demonstrating hostile intent or if declared hostile(hostile act, hostile intent not required before engagement)- State Responsibility-- Whether a state may be held responsible for use of force by individuals depends on thecircumstances--- States are responsible for any violation of its obligations under international law resultingfrom action or inaction by the government of the state; the authorities of any politicalsubdivision of the state; or any organ, agency, official, employee, or other agent of agovernment or of any political subdivision, acting within the scope of authority or undercolor of authority---- This responsibility is limited to official acts or official inaction when there was a dutyto act---- Normally, states are not responsible for the acts of private individuals or privateentities----- Consequently, a state may not be held responsible for the acts of terroristslocated within its territory, unless the state sponsored the terrorist, became anaccessory after the fact, or otherwise can be shown to have had a duty to preventthe terrorist’s unlawful conduct- Assassination-- EO 12333, United States Intelligence Activities, is the source for the US policy prohibitingassassination--- The EO does not define assassination or provide guidance on how it can be reconciledwith deaths that occur as the result of lawful military action---- An argument that enjoys growing support is that the EO prohibition was not intendedto limit lawful self-defense against legitimate threats to US national security---- Instead, it is believed that EO 12333’s provision on assassination was intended toprohibit individual agents or agencies from making the unilateral decision to killtargets; that is, making the decision without the knowledge and authorization of theNational Command Authorities--- Because the role of the military during times of conflict includes legalized killing as amatter of self-defense, argument can be made that the killing of an unlawful combatant,such as a terrorist, during the conduct of armed conflict, would not amount toassassinationLegal Issues/AF/JAI/V4 24 Oct 01 30


CIVILIAN CONTROL OF POWER TO WAGE WAR- Division of Power-- US Constitution divides power to wage war between Executive and Legislative branches--- Congress has power to (Art. I):---- Declare war---- Raise and support armies---- Provide and maintain a navy, and---- Make all laws necessary and proper for carrying into execution the foregoing--- President (Art. II):---- Holds executive power and---- Is the Commander-in-Chief of the armed forces- War Powers Resolution (WPR)-- Presidential primacy until 1973 when Congress passed, over Presidential veto, the WarPowers Resolution (WPR)--- Purpose of WPR is to ensure the “collective judgment” of both branches in order tocommit to the deployment of U.S. forces by requiring consultation of and reports toCongress, in any of the following circumstances:---- Introduction of troops into actual hostilities---- Introduction of troops, equipped for combat, into a foreign country, or---- Greatly enlarging the number of troops equipped for combat, in a foreign country--- President required to make such reports within 48 hours of the triggering event, detailing:---- Circumstances necessitating introduction or enlargement of troops---- Constitutional or legislative authority upon which he bases his action, and---- Estimated scope and duration of the deployment or combat action--- The issuance of such a report, or a demand by Congress for the President to issue such areport, triggers a sixty-day clock--- If Congress does not declare war, specifically authorize the deployment / combat action,or authorize an extension of the WPR time limit during that period, the President isrequired to:---- Terminate the triggering action, and---- Withdraw deployed forces--- The President may extend the deployment:---- For up to thirty days should he find circumstances so require, or---- For an indeterminate period if Congress has been unable to meet due to an attackupon the US--- Because the WPR was enacted over the President’s veto, one of the original purposes ofthe act—establishment of a consensual, inter-branch procedure for committing our forcesoverseas—was undercut--- No President has conceded the constitutionality of WPR or technically complied with itsmandates---- However, President Bush’s 24 Sep 01 Letter to Congress on the American CampaignAgainst Terrorism, notifying Congress of the deployment of military forces inresponse to the 11 Sep 01 attacks, states that the letter was provided “as part of myefforts to keep the Congress informed, consistent with the War Powers ResolutionLegal Issues/AF/JAI/V4 24 Oct 01 31


and Senate Joint Resolution 23….” (emphasis added) (see below for more on thisletter)- Effect of WPR on JA Activities-- JA must be sensitive to the impact of WPR on the scope of operations, particularly withrespect to the time limitation placed upon deployment under independent Presidential action(i.e., the WPR’s 60 day clock)-- Procedures have been established which provide for CJCS review of all deployments thatmay implicate the WPR--- The Chairman’s Legal Advisor, upon reviewing a proposed force deployment, is requiredto provide to the DoD GC his analysis of the WPR’s application--- If the DoD GC makes a determination that the situation merits further inter-agencydiscussion, he or she will consult with both the State Department Legal Advisor and theAttorney General--- As a result of these discussions, advice will then be provided to the President concerningthe consultation and reporting requirements of the WPR-- Default position regarding the applicability of the WPR, is that the operation is beingconducted at the direction of the NCA and is therefore presumed to be IAW applicabledomestic legal limitations and procedures- Effect of Joint Resolution 23-- In response to the 11 Sep 01 attacks in the US, the US Senate passed Joint Resolution 23providing the President specific statutory authorization to “use all necessary and appropriateforce against those nations, organizations, or persons he determines planned, authorized,committed, or aided the terrorist attacks that occurred on September 11, 2001, or harboredsuch organizations or persons, in order to prevent any future acts of international terrorismagainst the United States by such nations, organizations or persons.”--- The resolution’s preamble states that “such acts render it both necessary and appropriatethat the United States exercise its rights to self-defense….” (emphasis added)--- The resolution became Public Law 107-40 on 18 Sep 01- Presidential Report to Congress - 24 Sep 01-- President sent a letter to President to the Speaker of the House of Representatives and thePresident Pro Tempore of the Senate covering the following issues:--- In response to the attacks on 11 Sep 01 upon US territory, citizens and way of life, thePresident ordered the deployment of various combat-equipped and combat support forcesto a number of foreign nations in the CENTCOM and PACOM areas of operation--- To prevent and deter terrorism, the President may find it necessary in the future to orderadditional forces into these and other areas of the world, including into foreign nationswhere US Armed Forces are already located--- The actions of the President were taken pursuant to his constitutional authority to conductUS foreign relations and as Commander in Chief and Chief Executive--- It is not now possible to predict the scope and duration of these deployments, and theactions necessary to counter the terrorist threat to the US--- It is likely that the US campaign against terrorism will be a lengthy one-- The full text of the letter to Congress is at Appendix 1Legal Issues/AF/JAI/V4 24 Oct 01 32


COALITION ISSUES- Right of Collective Action-- Entitled to assist the governments of other nations in combating domestic and internationalcrimes-- Right of collective self defense remains and is specifically recognized in Art. 51 of the UNCharter-- Where US is involved in an armed conflict with a hostile state:--- The status of other nation's relations with that hostile state must be determined--- No presumption that all US friends and allies are immediately parties to the conflict- Mutual Defense Treaties-- Attached at Appendices 11-15 are the relevant extracts of the mutual defense treaties with:--- NATO---- Belgium, Canada, Czech Republic, Denmark, France, Germany, Greece, Hungary,Iceland, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Spain, Turkey,United Kingdom, United States--- Australia--- Korea--- Japan--- Inter-American Treaty of Reciprocal Assistance (Rio Treaty)---- Argentina, Bahamas, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, DominicanRep., Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama,Paraguay, Peru, Trinidad and Tobago, United States, Venezuela- Current Action by Supporting Governments-- NATO--- Declared that this if this attack were found to be an attack directed from abroad againstthe US then this will be regarded as an action covered by Art. 5 of the NATO Treaty(attack on one regarded as an attack on all)--- Following their decision to invoke Art. 5, the NATO Allies agreed on 4 Oct 01, at therequest of the US. to take eight measures, individually and collectively, to expand theoptions available in the campaign against terrorism:---- Enhance intelligence sharing and co-operation, both bilaterally and in the appropriateNATO bodies, relating to the threats posed by terrorism and the actions to be takenagainst it---- Provide, individually or collectively, as appropriate and according to their capabilities,assistance to Allies and other states which are or may be subject to increased terroristthreats as a result of their support for the campaign against terrorism---- Take necessary measures to provide increased security for facilities of the US andother Allies on their territory---- Backfill selected Allied assets in NATO’s area of responsibility that are required todirectly support operations against terrorism---- Provide blanket overflight clearances for the US and other Allies’ aircraft, inaccordance with the necessary air traffic arrangements and national procedures, formilitary flights related to operations against terrorismLegal Issues/AF/JAI/V4 24 Oct 01 33


---- Provide access for the US and other Allies to ports and airfields on the territory ofNATO nations for operations against terrorism, including for refueling, in accordancewith national procedures--- NATO is sending five Airborne Warning and Control Systems aircraft (AWACS) to theUS and is also deploying its Standing Naval Force Mediterranean (STANAVFORMED)to the Eastern Mediterranean-- Australia--- Australian Government has decided, in consultation with the US, that Art. IV of theANZUS Treaty applies to terrorist attacks--- Under Art. IV each party agrees to act to meet the common danger IAW its constitutionalprocesses--- Australia announced that it has authorized the use of its exchange personnel in the US formissions both CONUS and OCONUS--- As of 17 Oct 01 had undertaken to commit:---- Two P-3 long range maritime aircraft---- Australian Special Forces detachment---- Two B-707 tanker aircraft---- One guided missile frigate, three frigates and an amphibious landing ship---- Four F/A18s--- Likely to involve about 1,550 personnel (bulk deployed overseas by mid-November)-- Inter-American Treaty of Reciprocal Assistance (Rio Treaty)--- Organization of American States (OAS), although composed of more states than thosewho are parties to the Rio Treaty, took it upon itself to:---- Convene a meeting of consultation of the hemisphere's foreign ministers, for 21 Sep01----- The Permanent Council—the OAS' second highest decision-making body—decided to convert itself into the Organ of Consultation provided for under Art.12 of the Inter-American Treaty of Reciprocal Assistance (Rio Treaty)------ Called a meeting of the Ministers of Foreign Affairs for 21 Sep 01 “toagree on measures that should be taken for the common defense of theHemisphere and for the maintenance of peace and security therein.”(see Multinational Operations - Mutual Defense Treaties for list of parties)- Military and Civilian Personnel of Supporting Governments-- US and foreign exchange personnel (see ch. 5 of AFI 16-107)--- Will not be placed on duty in areas of active hostilities, imminent hostilities or anysituation where their presence may jeopardize the interests of either parent or hostgovernment, except:---- If armed conflict involves both host and parent nations then personnel stay with unitbut will not carry out combat duties until authorized by the parent or hostgovernments---- If armed conflict does not involve both host and parent governments then exchangepersonnel must await orders from their parent governments before performing anyfurther military dutiesLegal Issues/AF/JAI/V4 24 Oct 01 34


---- SecDef can authorize deployment of USAF exchange personnel in areas of hostilities,imminent hostilities, or any situation where their presence may jeopardize theinterests of the US (including UN peacekeeping and NATO activities)--- Foreign exchange personnel will not be deployed outside the US without parent serviceapproval--- US and foreign exchange personnel may perform alert duty only in units under theOPCON of a combined command to which the parent and host government belong--- Australia announced that it has authorized the use of its exchange personnel in the US formissions both CONUS and OCONUS- Conduct of Multinational Operations-- Terminology--- Use of the term “joint” with respect to multinational operations is wrong and apt to causeconfusion (however it may persist in descriptions of elements such as a JAOC)--- A “coalition” is an ad hoc arrangement between two or more nations for common action--- A “combined operation” is an operation conducted by two or more allies (not justcoalition partners)--- An “alliance” is the result of a formal agreement between two or more nations for broad,long-term objectives that further the common interests of members--- The term "multinational operations" covers both coalition and alliance actions-- Command and Control of Multinational Operations--- President always retains command of US forces--- US forces may be placed under the OPCON or TACON of a foreign CC for a specificoperation--- Any US CC placed under the command of a foreign or UN CC retains the “capability” tocommunicate directly with US military authorities--- C2 arrangements always determined on a case-by-case basis through agreement ofparticipating national governments---- NATO members retain authority to place specific limits on the participation of theirforces or to withdraw them from coalition C2 at any time--- In a particular multinational operation Coordinating Authority or Direct Liaison Authority(neither are actual command authorities) may be the only politically acceptable means ofaccomplishing the mission-- ROE for Multinational Operations--- US SROE provide that if US forces are OPCON or TACON to a multinational force thenthey follow mission accomplishment ROE of the multinational force--- US forces always retain their right to self defense as described in the SROE (Encl A, para.1c(1))--- If US forces remain under US OPCON or TACON but are operating in conjunction withcoalition forces, then they are directed to make “reasonable efforts” to devise ROEcommon to all coalition forces---- If unable to do so then US forces operate under the SROE---- All coalition partners are to be made aware that US forces are operating under theSROE and will act in self-defense as described therein--- For US force operating in a coalition environment, there is no inherent right to use forceto defend other allied forces (must be specifically given by NCA)Legal Issues/AF/JAI/V4 24 Oct 01 35


--- The US has standing ROE agreements with NATO and Australia-- Legal Differences--- During Kosovo operations nations held different views as to the nature of the operation(armed conflict or not)---- May affect attitude to the application of LOAC generally, and most particularly:----- Status of captured personnel----- Legitimacy of combatants----- Application of LOAC targeting principles (Are there greater restrictions if not“true” armed conflict?)----- Duties and rights with respect to intercepting, boarding, diversion, etc., of aircraftand ships----- Determination that war crimes (as opposed to other crimes) have been committedLegal Issues/AF/JAI/V4 24 Oct 01 36


INTERNATIONAL ORGANIZATIONS- North Atlantic Treaty OrganizationBelgium, Canada, Czech Republic, Denmark, France, Germany, Greece, Hungary,Iceland, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Spain, Turkey,United Kingdom, United States- Partnership for PeaceAlbania, Armenia, Austria, Azerbaijan, Belarus, Bulgaria, Estonia, Finland, Georgia,Ireland, Kazakhstan, Kyrghyz Republic, Latvia, Lithuania, Moldova, Romania, Russia,Slovakia, Slovenia, Sweden, Switzerland, the Former Yugoslavian Republic ofMacedonia, Turkmenistan, Ukraine, Uzbekistan- Organization of American StatesAntigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Brazil, Canada,Chile, Colombia, Costa Rica, Cuba, Dominica, Dominican Republic, Ecuador, ElSalvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua,Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and theGrenadines, Suriname, Trinidad and Tobago, United States, Uruguay, Venezuela- Organization for Security and Cooperation in EuropeAlbania, Andorra, Armenia, Austria, Azerbaijan, Belarus, Belgium, Bosnia andHerzegovina, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia,Finland, France, Georgia, Germany, Greece, Holy See, Hungary, Iceland, Ireland, Italy,Kazakhstan, Krygyzstan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova,Monaco, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, SanMarino, Slovakia, Slovenia, Spain, Sweden, Switzerland, Tajikistan, the FormerYugoslavian Republic of Macedonia, Turkey, Turkmenistan, Ukraine, United Kingdom,United States, Uzbekistan, the Federal Republic of Yugoslavia- Council of Europe and European Court of Human RightsAlbania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Cyprus,Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece,Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta,Moldova, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, SanMarino, Slovakia, Slovenia, Spain, Sweden, Switzerland, the Former YugoslavianRepublic of Macedonia, Turkey, United Kingdom, United States- European Union (EU)Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy,Luxembourg, Netherlands, Portugal, Spain, Sweden, United Kingdom- Association of South East Asian Nations (ASEAN)Brunei, Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines,Singapore, Thailand, Vietnam- Asia Pacific Economic Cooperation (APEC)Australia, Brunei Darussalam, Canada, Chile, People’s Republic of China, Hong Kong,Indonesia, Japan, Korea, Malaysia, Mexico, New Zealand, Papua New Guinea, Peru,Philippines, Russia, Singapore, Chinese Taipei, Thailand, United States, Vietnam- The United Nations (non-members)Holy See, SwitzerlandLegal Issues/AF/JAI/V4 24 Oct 01 37


INFORMATION OPERATIONS- Computer Network Operations (CNO)-- CNO (in particular computer network attack (CNA)), will raise many novel legal and policyissues as most existing legal principles did not contemplate the network environment--- No showstoppers, but some issues could be tough to resolve--- No consensus on some critical issues involving CNA, computer network defense (CND),and computer network exploitation (CNE), but there is a consensus within DoD that wecan work through these issues without requiring a new legal regime-- Current international law imposes no direct constraints on CNO--- No multilateral or bilateral agreements to which the US is party that specifically addressCNO capabilities; likewise, there are no customary international law principles thatspecifically address CNO capabilities---- Russia asserts that CNA should be treated as a weapon of mass destruction and that anew legal regime to regulate CNA is necessary; US rejects this view---- US policy/doctrine/actions in this area will shape international law--- US believes the general principles of international law that have effectively governedtraditional military operations should be applied to CNO--- The challenge is applying these principles in a way that makes sense and remains true tothe policies the principles have traditionally advanced--- UN Charter (Art. 2(4)) prohibits use of force against another State unless such force is fora purpose consistent with the UN Charter---- Art. 51 recognizes inherent right to engage in individual and collective self defense inresponse to an armed attack----- DoD supports analysis of the effects/consequences of a computer network attack(CNA) to determine whether the operation constitutes an “armed attack” or “useof force” under international law------ Determination will consider the severity and nature of the attack; but thereare no bright lines for making the determination—the effects of some toolsmay constitute force while the effects of other tools may not------ Once engaged in an armed conflict, the issue of whether it constitutes anarmed attack among belligerents goes away, and we’re left with thetraditional LOAC analysis (military necessity, proportionality, etc.)------ If the CNA effects are comparable to effects caused by traditional kineticweapons, then the CNA activity may be considered an application of forcethat triggers the right to respond in self defense------- Response may be diplomatic or military, and need not be a responsein kind; but military responses would have to comply with existingprinciples of LOAC, including respecting the rights of neutral states-------- Because international law does not require a neutral state torestrict the use of its public communications networks bybelligerents, it should not be a violation of the state’ssovereignty to use its public communications networks as aconduit for an electronic attack------- However, attacks that cannot be shown to be state-sponsoredgenerally do not justify acts of self-defense in another state’sLegal Issues/AF/JAI/V4 24 Oct 01 38


territory; instead, the expectation is that the territorial state will putan end to the conduct-------- If the territorial state refuses to end the conduct, then theaggrieved state may resort to self help to act in self-defenseinside the other state’s territory--------- Thus, an aggrieved state may be justified inattacking terrorists using a neutral state’s territorywhen the neutral state is unable to put an end to theterrorist’s CNA activity---- Under Art. 42, UN Security Council may authorize member States to use force tomaintain international peace and security--- CNA operations might be deemed an appropriate course of action in support of regionalorganization operations (e.g., NATO)--- CNA also might be deemed an appropriate course of action in anticipatory self defense---- The doctrine of “anticipatory self defense” permits a state to strike first if an attack isimminent----- This doctrine is not expressed in any treaty, but is considered by some countries,including the US, to fall within the inherent right of self defense that is part ofcustomary international law--- CNA will be subject to the existing Laws of Armed Conflict if conducted duringhostilities---- Major LOAC principles to be observed: military necessity (only attack militaryobjects or those that provide direct or effective support for the warfighting effort;discrimination between combatants and non-combatants); proportionality (balanceforeseeable collateral damage against likely military advantage when selectingtargets/weapons)---- Targeting of dual-use networks will be a complicated decision in light of theproportionality principle----- LOAC does not prohibit unintentional collateral damage, but requires that weconsider collateral consequences in selecting weapons and targets----- The challenge will be obtaining the information we need to properly conduct thisanalysis------ Significant intelligence and technical support will be required to establishadequate understanding of the effect of the CNA weapon on the targetnetwork--- In planning CNA operations that will take place overseas, care must be taken to reviewand understand applicable host nation laws and agreements binding between the US andthe host nation for any limitations, notice, or approval requirements on the conduct ofCNA activities from or within the host nation--- CNA operations will raise several policy questions; examples:---- If we are the victim of an intrusion, do we have sufficient information about the natureof the intrusion or the intent of the intruder to conclude that the activity is “force”rather than “espionage” or domestic hacking?---- Are we prepared for the potential response to our national information infrastructure ifwe initiate CNA operations against an adversary? How do we prepare?---- Does it matter whether our response is attributable or attributed to the US?Legal Issues/AF/JAI/V4 24 Oct 01 39


---- What are our objectives and how does CNA help secure them? What other assets(military, economic, diplomatic) will be engaged and how?---- Should we seek United Nations authorization?---- Do we have sufficient information about our weapons and the adversary’s networks tounderstand the effects we will cause? How much uncertainty are we willing totolerate?---- What standard should we use for determining whether an attack is imminent, and,therefore, if anticipatory self defense is authorized?- Domestic Laws-- DoD CND operations will implicate several US domestic laws (e.g., ElectronicCommunications Privacy Act, wiretap statutes, Computer Fraud and Abuse Act, pen registerand trap-and-trace statutes, Posse Comitatus Act, and the Intelligence Oversight laws andregulations) designed to balance protection of the constitutional rights of US citizens withlaw enforcement, systems administration, and intelligence collection--- There is no general military or national security exception to these laws--- The biggest challenge from a technical and legal perspective is determining the source andintent of the attacker within our existing capabilities and authorities---- Unauthorized intruders (e.g., intelligence/military organizations, terrorist groups,criminals) attempt to mask their identity by working their way through intermediarynetworks that may belong to US entities---- Network intrusions that do not constitute state action are handled in the US by thelaw enforcement (LE) community (e.g., the Dept of Justice (FBI))----- Likewise, LE has primary responsibility for addressing an intrusion if theintruder’s identity is unknown------ This protection is in place because the US considers computer intrusionsby non-state actors to be a criminal matter, therefore best handled by LE;also, it helps to help ensure that the constitutional rights of US persons arenot violated by unauthorized military action or intelligence collection--- For CNO that originate and remain in overseas channels, we would have to addresswhether a potentially applicable US law applies extraterritorially, and whether aparticular foreign domestic law is applicable- Whose Mission?-- CNE is generally regarded as an Intelligence Community (IC) mission--- There are issues to be worked out between DoD and the IC regarding whether a particularaction is intelligence or a military operation---- Title 50, US Code, authorizes the IC to engage in intelligence operations----- Restrictions imposed by US intelligence oversight laws must be observed----- Some US federal criminal laws exempt IC activities, but not general military ops---- Title 10, US Code, provides authority for general military ops--- Some CND and CNA operations may have CNE aspects---- Some IC members question whether DoD may engage in CNE at all, and, if so,whether DoD may engage in CNE without IC participation. There is no formal DoDposition, but DoD will likely assert that certain aspects of CNE are nothing more thanLegal Issues/AF/JAI/V4 24 Oct 01 40


intelligence preparation of the battlespace and should be conducted by DoD pursuantto Title 10--- From an international law standpoint, espionage is tolerated (although it may bepunishable under foreign domestic law)---- It may be difficult, however, to determine whether a network operation is a use offorce or an act of espionage- Consultation of US Policies-- We will have to consult current US policies (including the Standing Rules of Engagement)for procedural requirements that may have to be satisfied before engaging in a particularCNO--- AF/JAI will be involved in reviewing the SROE and ensuring that they comply with USlegal obligations and afford our CCs the necessary authority to accomplish assignedmissions- Legal Review of CNO Weapons-- For CNO tools that constitute weapons, a legal review must be accomplished IAW AFI 51-402, Weapons Review, for an assessment of whether the weapon complies with US domesticand international law--- Additional legal reviews may be required on a case-by-case basis for employment ofcertain CNO capabilities--- AF/JA has been successful in getting more JAGs read-in, or eligible to be read-in, to CNOprograms in special access channels---- The more access JAGs have to these programs, the more quickly the legal and policyissues and requirements can be addressed to facilitate mission accomplishment- Summary-- The establishment of DOD CNO missions reflects the growing importance of computernetworks to the functioning of governments and militaries around the world-- The dual-use nature of many of these networks will raise thorny issues regarding compliancewith LOAC and US domestic laws-- While the general DoD consensus is that these issues can be worked within the current legalregimes, it will be incumbent upon CNO operators to involve lawyers early as resolution ofthe issues will depend upon the circumstances, which will vary from mission to mission,operation to operationLegal Issues/AF/JAI/V4 24 Oct 01 41


AIR NAVIGATION ISSUES- General Principle of Military flying:-- Military aircraft can choose (subject to DoD/AF direction) to:--- Follow ICAO flight procedures, or--- Navigate with “due regard” for civil aviation safety-- Rights and obligations may be altered by agreement and/or conditions of entry into nationalairspace- Airspace-- Airspace is either national or international airspace--- Synonyms for “national” include “sovereign” or “territorial”-- National airspace extends out to the limits of the territorial sea--- US recognizes claims up to 12 nautical miles (NM) from baselines for territorial seas andcorresponding national airspace- Air Navigation-- General principle of freedom of navigation in international airspace-- General prohibition on breaching national airspace without consent--- No right of “innocent passage” for aircraft through national airspace (including over theterritorial sea)--- Most nations, including US, recognize right of “innocent passage” through territorial seasfor ships--- The unauthorized or improper entry of an aircraft into the national airspace of anotherstate is a violation of state sovereignty--- Rockets and missiles are capable of violating sovereign airspace (require permission)--- Exceptions to general prohibition:---- Overflight of international straits overlapped by territorial seas----- Colloquially known as “transit passage”------ Transit must be continuous and expeditious in the normal modes ofoperation------ Aircraft must refrain from threat or use of force against sovereignty,territorial integrity or political independence of bordering nation(s)------ Must refrain from any activity not incident to their normal modes ofcontinuous and expeditious transit----- No diplomatic clearance is to be obtained----- Overflight rights cannot be suspended in peacetime for any reason----- Overflight rights may be affected during armed conflict as an incidence of theexercise of national self-defense, or as a result of a UN Security Councilresolution---- Archipelagic Sea Lane Passage----- All aircraft, including military aircraft, enjoy the right of archipelagic sea lanepassage while transiting over archipelagic waters and adjacent territorial seas viaall routes normally used for international overflightLegal Issues/AF/JAI/V4 24 Oct 01 42


----- Must be for the purpose of continuous, expeditious and unobstructed transitthrough archipelagic waters, in the normal mode of operation by the aircraftinvolved----- Includes carrying out activities normally undertaken during overflight of suchwaters, including taking necessary security measures (such as flying information)----- No prior approval or notification can be demanded by the archipelagic state------ US aircraft flying “due regard” will not provide notification------ US aircraft flying under ICAO rules, may file an ICAO flight plan with thearchipelagic nation, but no diplomatic clearance will ever be sought---- Right of Assistance Entry----- All ship and aircraft CCs have an obligation to assist those in danger of beinglost at sea----- This duty permits assistance entry into the airspace above the territorial sea byaircraft without the permission of the coastal nation to render emergencyassistance to those in danger or distress at sea----- This right applies only when the location of the danger or distress is reasonablywell known----- Does not extend to entering the airspace over the territorial sea to conduct asearch, which requires the consent of the coastal state- Summary of Effect of Various Zones on US Military Air Operations-- National Airspace--- Airspace out to 12 nautical miles from baselines--- No entry by aircraft without permission unless fall within recognized exception-- Archipelagic Waters--- No entry by aircraft except IAW recognized exceptions-- Contiguous Zone--- Fiscal, immigration, sanitary and customs zone 12 -24 miles from baselines---- Can fly in this zone without approval, notification or interference-- Exclusive Economic Zone (EEZ)(12-200 nautical miles when declared)--- Can fly in this zone without approval, notification or interference-- High Seas--- Can fly in this zone without approval, notification or interference-- Security Zones--- Not recognized as legal in peacetime by the US---- Can fly in these zones without approval, notification or interference-- Air Defense Identification Zone (ADIZ)--- Identification zone only---- Only aircraft intending to enter national airspace of an ADIZ operator are required toidentify themselves---- US aircraft not intending to enter national airspace need not identify themselves orotherwise comply with ADIZ procedures established by other nations, unless the UShas specifically agreed to do soLegal Issues/AF/JAI/V4 24 Oct 01 43


-- Flight Information Regions (FIR)--- Zone in which flight information and alerting services are provided (allocated to coastalstates by ICAO)--- Services ordinarily (as a matter of policy only) utilized, and ICAO procedures followed,by US military aircraft on point-to-point flights through international airspace in theinterest of safety--- US military aircraft not intending to enter national airspace need not identify themselvesor otherwise comply with FIR procedures established by other nations, unless the US hasspecifically agreed to do so- Effect of Armed Conflict-- Expansion of right to interfere with civilian and neutral aircraft and air operations-- Expansion of right to declare security and exclusion (“no-fly”) zones-- Possible collateral effects on civil air due to attitude of owners and insurers to increased riskof damage- Other Scenarios Short of Armed Conflict-- In some situations the NCA may direct JFACC to proceed with overflight or launch withoutprior consent of the nation overflown--- Most likely based on US interpretation of the principle of national self-defense (missileattacks on terrorist targets in various countries)- Clearance Procedures-- Overflight and landing rights must be provided by agreement--- Landing rights usually provided for in SOFA, basing agreement, mutual defenseagreement or access agreement--- Specific procedures and requirements for obtaining overflight, landing and exit/entryauthorization found in DoD 4500.54-G, Foreign Clearance Guide- Status of Aircraft-- US government (including military) aircraft have sovereign status and are not subject toboarding, search, seizure, inspection or any other exercise of sovereignty over the airframeitself, and the personnel and cargo on board, except by the direction of the appropriateservice headquarters or the US embassy in the country concerned-- Landing and Other Fees--- US does not pay landing fees at government airports, but will pay such fees at commercialairfield unless otherwise provided by international agreement--- US will pay for services rendered at government or commercial airfields- Matters for negotiation-- Civilian authorities may object to creation of restricted operations zones or conduct ofoperations generally which will interfere with civilian air operations, particularly approachesto civil airports and main international and civilian jetways-- Even allied governments have refused to allow overflight of their airspace for non-armedconflict operations (e.g., the French during ELDORADO CANYON, necessitated transitpassage through the Straits of Gibraltar)Legal Issues/AF/JAI/V4 24 Oct 01 44


NON-COMBATANT EVACUATION OPERATIONS- Control-- Directed by Dept of State (DoS), Dept of Defense (DoD), or another appropriate authority- Scope-- Noncombatants are evacuated from areas of danger overseas to safe havens or to US- Responsibilities-- US Chief of Diplomatic Mission or Principal Officer of the DoS (CDM/PODS)--- Lead federal official for protection and evacuation of all US noncombatants, includingDoD dependents---- Exceptions are Defense Attaché Systems personnel and Defense Intelligence Agency(DIA) Liaison Offices--- Authority of CDM/PODS to order evacuation doesn't extend to military personnel exceptas agreed upon between DoS and DoD-- SecDef--- Advises and assists SecState and Heads of other Fed. Depts and Agencies in planning forthe protection, evacuation, and repatriation of US citizens in overseas areas-- Dept of Health and Human Services--- Lead federal agency for the reception of all evacuees in the US and their onwardmovement-- Dept of the Army--- DoD Executive Agent for repatriation of DoD noncombatants-- CINCs--- Prepare and maintain plans for:---- Assisting DoS in the protection and evacuation of US noncombatants abroad---- The protection and evacuation of US noncombatants for whom DoD is responsible--- Cooperate with the CDM/PODS in the preparation of consular and/or embassy emergencyaction and evacuation plans--- Appoint military members to regional liaison groups--- Examine all DoS emergency action plans for countries and consular districts in their AORand for areas in which they might participate in noncombatant operations (criteria inDoDD 3025.14, paragraph 5.9.4.)-- DoD--- Responsible for NEOs at Guantanamo, Cuba (not DoS)- Legal Issues-- Three categories of NEOs--- Permissive (host country or controlling factions allows departure of US personnel)--- Non-permissive (host country will not permit US personnel to leave), and--- Uncertain (intent of host country toward the departure of US personnel is uncertain)-- Use of Force--- Non-permissive NEOs intrude into the territorial sovereignty of a nationLegal Issues/AF/JAI/V4 24 Oct 01 45


--- As a general rule, international law prohibits the threat or use of force against theterritorial integrity or political independence of any state--- No international consensus on the legal basis to use armed force for NEOs--- Most common bases include:---- Custom and practice of nations (pre-UN Charter) clearly allowed NEOs----- Nation could intervene to protect its citizens located in other nations when thosenations would not or could not protect them---- UN Charter----- Best argument is Art. 51 (self defense referred to there encompasses the precharterpractice of intervention to protect citizens)----- Secondary argument via Art. 2(4) (NEOs of such limited duration and purposethat fail to reach level of force prohibited by Art. 2(4))-- LOAC--- Where armed force is necessary, US forces should adhere to the rules of LOAC, even ifunclear that the event is an “international armed conflict.”--- DoD policy is generally to apply principles of LOAC to military operations other thanwar.--- Exception is that riot control agents (RCA), otherwise prohibited as a method of warfare,may be used in non-armed conflict and in defensive situations, including rescue ofhostages---- Whether use of RCA in a NEO is a “method of warfare” depends on thecircumstances of the NEO---- Presidential approval is always required prior to RCA use, but this approval may bedelegated through the CINC (EO 11850)---- Authorization to use RCA normally requested as supplemental ROE-- ROE--- CINC generally coordinates with US Marine Corps security guards (who work for DoS),host nation security, and embassy security-- Sovereignty Issues--- NEO planners need to know the territorial extent of the countries in their AOR---- Absent the consent of the host government, US forces should respect the territorialboundaries of countries in the ingress and egress routes of the NEO--- Also issues related to the extent of territorial seas and national airspace---- No such right of innocent passage for aircraft---- National airspace is inviolable absent consent from the relevant state---- Boundary limits are not a consideration for the target nation of a non-permissiveNEO-- Rights and Duties of Neutral States--- Permitting over-flight or establishment of staging areas in their state may jeopardizerelations between the two countries--- Establishing safe havens for evacuees shouldn't cause violation of neutrality concepts---- “Safe haven” a stopover point where evacuees are initially taken once removed fromdanger (they are then taken to their ultimate destination)-- Status and Treatment of Personnel--- US custody of combatantsLegal Issues/AF/JAI/V4 24 Oct 01 46


---- Captured combatants do not have a protected status, but US policy is to treat allcaptured personnel as POWs while in US custody (but leave them behind ondeparture)--- Non-US civilians seeking refuge---- May be seeking temporary refuge, but others may be seeking asylum---- Policy regarding temporary refuge and asylum found in AFPD 51-7 and AFI 51-704--- Other categories requiring consideration include status of in-laws, non-commandsponsored dependents (including local national dependents) and pets--- Fiscal issue may arise if command-sponsored dependents leave prior to an evacuationorder (these dependents may have to fund their own travel)--- Search of Personnel---- Need personal baggage to be kept to a minimum and civilians do not retain weapons---- Generally, in evacuation of US noncombatant personnel, no claim of diplomaticimmunity to luggage being searched by US military forces---- If concern for safety of transportation or personnel because of the nature of theevacuee, CC may order a search of person and their belongings as a condition toevacuation---- For non-US noncombatants, diplomatic status does not guarantee use of UStransportation---- Foreign diplomats refusing search may be refused transport (however, if time permits,raise issue up command chain)Legal Issues/AF/JAI/V4 24 Oct 01 47


STATUS OF FORCES ISSUES- Practice and Policy-- US practice is not to send personnel into harm's way without a status arrangement or at aminimum a decision at the appropriate level to deploy without one--- Issue should always be raised and elevated up the chain of command for an appropriatedecision (Senior DoD officials may decide to conduct the overseas activity without SOFAor other status coverage for policy reasons)---- CCs and JA in the field should not be making such determinations--- Negotiating SOFAs is always a “policy significant matter” which only Washington mayauthorize---- No delegation of procedural authority to the field in this regard (AFI 51-701)- Types of Status Arrangements-- Three types:--- Equivalent Administrative and Technical (A&T) status under Vienna Convention onDiplomatic Relations---- Grants:----- Full immunity from the criminal jurisdiction of the receiving state----- Immunity from civil and administrative jurisdiction to the extent that the actgiving rise to the action was done in the performance of official duty----- Protection from arrest or detention----- Inviolability of personal residence and correspondence----- Exemption from all duties and taxes---- In addition to seeking equivalent A&T status for its personnel, the US may also obtainundertakings from the host government on matters such as (examples only):----- Entry and exit----- Carriage of arms----- Guarantees that personnel will not be surrendered or otherwise transferred to aninternational tribunal or any other entity or state without express US consent---- Use for:----- Short deployments on exercises and humanitarian relief efforts----- Very small numbers of personnel on a permanent basis---- Dept of State has granted authority to negotiate and conclude A&T status throughexchange of diplomatic notes as follows:----- All US embassies worldwide to negotiate and conclude simple agreement onissue----- US embassies in Western Hemisphere Region on issue but also covering mattersusually reserved for mini- or full SOFAs--- Mini-SOFA - See Appendix 2 for matters covered in a Mini-SOFA--- Full SOFA - See Appendix 2 for matters covered in a full SOFA- Purpose of SOFAs-- Are not basing or access agreements-- Define status but do not of themselves authorize the presence or activities of forcesLegal Issues/AF/JAI/V4 24 Oct 01 48


-- Increasingly status and access issues are addressed in a single broad defense cooperationagreement-- Has been the longstanding US policy to seek broad relief from local jurisdiction through aSOFA--- Purpose is not to immunize the force from criminal jurisdiction but to apply militarydiscipline--- Purpose is to establish mechanism to share the sovereign prerogative between host andvisiting force- List of Formal SOFAs-- See Appendix 3-- AF/JAI maintains a complete repository of all SOFA Texts-- Apart from “standing” SOFAs, the US enters into many “informal” SOFAs each year toprovide SOFA coverage for activities of short duration (e.g., disaster relief)- Geographical Application-- NATO and PfP (incorporates NATO SOFA by reference) are the only multinational SOFAsto which the US is a party--- NATO SOFA:---- Governs NATO forces in US as well as US forces in NATO countries---- Is the only “reciprocal” SOFA---- Is a full treaty (advice and consent of Senate received)-- Other SOFAs to which US is a party are bilateral are not reciprocal, and do not apply in theUS (Note: Germany SOFA Supplemental Agreement which gives the US many benefitsbeyond the basic NATO SOFA, is not reciprocal)--- Are merely executive agreements--- Means that foreign forces in US do not enjoy the immunities possessed by NATOpersonnel from local laws- Guiding Principles for Matters Not Covered by SOFA-- Apply following:--- US policy to maximize US criminal jurisdiction--- SOFAs balance interests to the extent possible in a pre-determined way--- Matter may not have been addressed because agreement on the language may have beentoo difficultLegal Issues/AF/JAI/V4 24 Oct 01 49


MOBILIZATION AUTHORITIES- Executive Order (EO) 13223-- Provides authority for DoD/DoT to order Ready Reserve of Armed Forces to active duty forup to 24 months-- Permits delegation of authority from SecDef to Service Secretaries; suspends end strengthlimitations; invokes stop-loss for active duty commissioned officers-- Permits SecDef to spend funds in excess of existing appropriation acts to fund Ready Reserverecall-- A copy of EO 13223 is attached at Appendix 4- Stop Loss Authorization-- General Effect of “stop loss”--- The stop loss program allows the services to retain individuals on active duty beyond theirdate of separation--- Those affected by the order generally cannot retire or leave the service as long as reservesare called to active duty or until relieved by the President, whichever is earlier--- Stop loss was last used during Operation Allied Force over Kosovo-- President redelegated stop loss authority to SecDef (EO 13223, sec. 4)-- SecDef by memo dated 13 Oct 01 again re-delegated his stop loss authority to the heads ofthe military departments (as permitted by EO 13223, sec 6)--- Stop-loss authority had been re-delegated previously--- Copy of SecDef memo attached at Appendix 5-- Implementation by services--- The services are adopting various forms of stop loss---- They generally will target the program at service members with critical militaryoccupations--- Air Force---- SecAF redelegated stop loss authority to Assistant Secretary (Manpower & ReserveAffairs)(AS(M&RA))----- Copy of SecAF memo attached at Appendix 6---- AS(M&RA) memo details implementation (including exemptions)----- Copy of AS(M&RA) memo attached at Appendix 7---- AF has already applied stop loss to all active, Guard, and reserve forces as follows:----- The initial stop loss period for all AF specialties was to be for at least 30 days(source: Air Force Link news report, quoting Chief of Retirement andSeparation Policy)----- All retirement, separation or component transfer actions will be suspended untiltermination of stop loss, unless an exemption is applicable or waiver is granted------ AFPC has currently suspended all retirement/separation dates between 2Oct 01 and 30 Apr 02 (expect changes)----- The AF Specialty Code will be revised and made available to the public asrequirements are validated----- Exemptions (as per AS(M&RA) memo):------ Members who as of 22 Sep 01 have an approved effective date ofseparation, retirement or transfer that falls on or before 1 Oct 01Legal Issues/AF/JAI/V4 24 Oct 01 50


------ Mandatory separation or retirement in the following categories:------- Disability------- Hardship------- Involuntary separation under AFI 36-3207, ch.2, sec B & C and ch.3------- Involuntary separations under AFI 36-3206------- Separations under AFI 3208, ch.4 & 5 and AFI 36-3209------- Retirement in lieu of actions under AFI 36-36-3203, Table 2.2,Rules 11-19------- Mandatory retirement under AFI 36-3203, ch.4 as applies to age andyears of service of regular officers------- Members who as of 22 Sep 01 have made arrangements to shiphousehold goods on or before 1 Oct 01 or have been approved as of22 Sep 01 to depart on terminal leave/transition permissive TDY(which is immediately followed by terminal leave) on or before 1Oct 01------- Members who are currently serving on an overseas unaccompaniedtour where the tour length is 15 months or less and who will retireor separate on tour completion------ Will not involuntarily extend an individual where:------- A nominated waiver authority finds IAW with criteria approved byAS(M&RA) that an individual can, and should, for good causeshown, be excused from involuntary extension without adverseimpact on:-------- NOBLE EAGLE and follow-on operations, or-------- The ability to meet overall skill requirements in short supplyin the AF------- Nominated waiver authorities are:-------- MAJCOM CCs, for all active duty members assigned to theirMAJCOMS-------- The Director, Air National Guard (NGB/CF), for ANGmembers-------- The Chief, AF Reserve (AF/DP) for AF Reserve Members-------- The Deputy Chief of Staff, Personnel (AF/DP), for activeduty personnel not assigned to MAJCOMs, including thoseassigned to HQ USAF----- Not exempted (as per AS(M&RA) memo):------ Officers being separated/retired for nonselection to the grades of captain,major or lieutenant colonel----- Military personnel flights around the AF have additional information regardingstop loss implementation----- AF will continue to review and revise the policy as circumstances dictate----- The latest message concerning Stop-Loss will be held by JA at the CAT--------- Army---- Army has no immediate plans to implement stop loss (source: Defenselink)--- NavyLegal Issues/AF/JAI/V4 24 Oct 01 51


---- Navy plans a limited stop loss affecting approximately 10,500 people in 11 criticalspecialties (source: Defenselink)--- Marine Corps---- Expects to complete its stop loss plan later this week (week commencing 24 Sep 01)(source: Defenselink)- Order to Active Duty of Ready Reserve-- SecDef memo of 13 Oct 01 (supercedes memo of 28 Sep 01) authorizes Secretaries of themilitary departments to order to active duty Ready Reserve members as follows (pursuant tosection 12302 of 10 U.S.C. and EO 13223):--- Army---- Not more than 34,000 members of the Army Ready Reserve may be on active dutyunder the authority of this memorandum at any time--- Navy and Marine Corps---- Not more than 14,400 members of the Navy Ready Reserve and not more than 7,500members of the Marine Corps Ready Reserve may be on active duty under theauthority of this memorandum at any time--- Air Force---- Not more than 40,600 members of the AF Ready Reserve may be on active duty underthe authority of this memorandum at any one time-- Note that these figures may change as the operation progresses--- Recommend check with CATLegal Issues/AF/JAI/V4 24 Oct 01 52


PRESIDENTIAL PROCLAMATIONS- Declaration of National Emergency by Reason of Certain Terrorist Acts (14 Sep 01)-- Text of Declaration attached at Appendix 8Legal Issues/AF/JAI/V4 24 Oct 01 53


CONGRESSIONAL RESOLUTIONS- Authorization for Use of Military Force (14 Sep 01)-- Joint Resolution by US Senate and House of Representatives; authorizes President to use “allnecessary and appropriate force” against those who planned, authorized, committed, or aidedthe terrorist attacks or harbored terrorist organizations or persons; declared it necessary andappropriate for the US to exercise right of self-defense; constitutes specific statutoryauthorization under the War Powers ResolutionLegal Issues/AF/JAI/V4 24 Oct 01 54


UN SECURITY COUNCIL RESOLUTIONS- Resolution 1368 (12 Sep 01)-- Summary (full text at Appendix 9):--- Recognizes the inherent right of individual or collective self-defense--- Condemns the terrorist attacks--- Calls on States to bring to justice the perpetrators, organizers, and sponsors of the attacksand hold accountable those who aid, support or harbor those persons--- Calls for increased efforts to prevent and suppress terrorist acts by increased cooperationand full implementation of UN Security Council Resolution 1269 (19 Oct 99)--- Expresses its readiness to take “all necessary steps to respond to the terrorist acts” and “tocombat all forms of terrorism” IAW the UN Charter- Resolution 1373 (28 Sep 01)-- Summary (full text at Appendix 10):--- Adopted a wide-ranging, comprehensive resolution with steps and strategies to combatinternational terrorism.--- Established a Committee of the Council to monitor the resolution’s implementation andcalled on all States to report on actions they had taken to that end no later than 90 daysfrom 28 Sep 01.--- Decided that all States should:---- Prevent and suppress the financing of terrorism, as well as criminalize the wilfulprovision or collection of funds for such acts---- Freeze without delay the funds, financial assets and economic resources of those whocommit or attempt to commit terrorist acts or participate in or facilitate thecommission of terrorist acts and of persons and entities acting on behalf of terrorists---- Prohibit their nationals or persons or entities in their territories from making funds,financial assets, economic resources, financial or other related services available topersons who commit or attempt to commit, facilitate or participate in the commissionof terrorist acts---- Refrain from providing any form of support to entities or persons involved in terroristacts---- Take the necessary steps to prevent the commission of terrorist acts---- Deny safe haven to those who finance, plan, support, commit terrorist acts andprovide safe havens as well---- Prevent those who finance, plan, facilitate or commit terrorist acts from using theirrespective territories for those purposes against other countries and their citizens---- Ensure that anyone who has participated in the financing, planning, preparation orperpetration of terrorist acts or in supporting terrorist acts is brought to justice---- Ensure that terrorist acts are established as serious criminal offences in domestic lawsand regulations and that the seriousness of such acts is duly reflected in sentencesserved---- Afford one another the greatest measure of assistance for criminal investigations orcriminal proceedings relating to the financing or support of terrorist acts---- Prevent the movement of terrorists or their groups by effective border controls as well--- Called on all States to:Legal Issues/AF/JAI/V4 24 Oct 01 55


---- Intensify and accelerate the exchange of information regarding:----- Terrorist actions or movements----- Forged or falsified documents----- Traffic in arms and sensitive material----- Use of communications and technologies by terrorist groups----- The threat posed by the possession of weapons of mass destruction.---- Exchange information and cooperate to prevent and suppress terrorist acts and to takeaction against the perpetrators of such acts--- All States should:---- Become parties to, and fully implement as soon as possible, the relevant internationalconventions and protocols to combat terrorism.---- Before granting refugee status take appropriate measures to ensure that the asylumseekers had not planned, facilitated or participated in terrorist acts---- Ensure that refugee status was not abused by the perpetrators, organizers orfacilitators of terrorist acts---- Ensure that claims of political motivation were not recognized as grounds for refusingrequests for the extradition of alleged terrorists--- Noted with concern the close connection between international terrorism and transnationalorganized crime, illicit drugs, money laundering and illegal movement of nuclear,chemical, biological and other deadly materials---- In that regard, it emphasized the need to enhance the coordination of national,subregional, regional and international efforts to strengthen a global response to thatthreat to international security--- Reaffirming the need to combat by all means, in accordance with the Charter, threats tointernational peace and security caused by terrorist acts, expressed its determination totake all necessary steps to fully implement the current resolutionLegal Issues/AF/JAI/V4 24 Oct 01 56


MILITARY SUPPORT TO CIVIL AUTHORITIES (MSCA)- Disaster and Domestic Emergency Assistance-- MSCA includes a variety of DoD actions to assist civilian agencies during emergencies orattacks-- President declares disaster or emergency and may direct federal agency to assist states orlocal agencies-- FEMA is usually the lead federal agency assigned to direct MSCA-- FEMA coordinates federal plans and programs for emergency assistance-- President may appoint a Federal Coordinating Officer (FCO) for the emergency but has alsodelegated this authority to the Director of FEMA-- FEMA officials are often FCOs-- FCOs decide whether to request military support- DoDD 3025.15 (Military Assistance to Civil Authorities)-- Army is DoD Executive Agent for MSCA, with authority of SecDef to task DoD agencies inresponse to requests from civilian authorities-- DODD 3025.15 governs MSCA by DoD components in response to civil disturbances,including terrorist attacks-- DODD 5525.5 governs military assistance by DoD components to civilian law enforcementagencies-- SAF has delegated authority for MSCA to AF Director of Operations and Training (HQUSAF/XOO)-- AF National Security Emergency Preparedness Agency (AFNSEP) is principal planningagent for execution of AF MSCA-- Three MSCA regional planning agents are ACC, 12AF, and PACAF- Disaster Support Involving Domestic Authorities-- Military operations other than MSCA have priority over MSCA unless SecDef directsotherwise-- DoD resources are provided for MSCA only when response is beyond the capabilities ofcivilian authorities-- Army/Air Force National Guard forces acting under state orders have primary responsibilityto provide MSCA-- Federal military forces provided for MSCA remain under command and control of DoDExecutive Agent or Task Force CC-- DoD components do not perform any function of civilian government unless absolutelynecessary on a temporary basis where an “Immediate Response” is required-- “Immediate Response” is required when there are imminently serious conditions that threatenlives, human suffering, or great property damage-- A CC or official acting under Immediate Response authority must advise the DoD ExecutiveAgent through command channels expeditiously and seek approval or additionalauthorization-- Immediate Response actions may include DoD assistance to civilian authorities to facilitaterescue, communication, evacuation, decontamination, emergency medical treatment,restoration of essential public services, recovery of the dead, distribution of food andLegal Issues/AF/JAI/V4 24 Oct 01 57


essential supplies, roadway movement control, and other emergency measures to safeguardpublic health-- Provision of DoD resources for MSCA is cost reimbursable, where possible, but assistanceshould not be delayed due to the inability or unwillingness of a requestor to commit toreimbursement- Military Intelligence In Support of Domestic Support Operations (see also IntelligenceOversight)-- Executive Orders signed by Presidents Ford and Reagan, as well as the Foreign IntelligenceSurveillance Act of 1978 and the Intelligence Oversight Act of 1980, require court approvalfor wiretaps, notification to Congress of certain intelligence activities, and generally prohibitAF personnel from collecting personal information about a US person unless it is necessaryto an authorized or assigned mission of an intelligence component and the type ofinformation sought falls within one of thirteen categories specified in DoD 5420.1-R,Procedure 2-- AF personnel should report intelligence-related activities that may violate law, policy, orregulations to SAF/GC(GCM), SAF/IG, OSD/GC, or ATSD-IO- Posse Comitatus (see Legal Status Issues and Anti-terrorism/Force Protection)Legal Issues/AF/JAI/V4 24 Oct 01 58


INTELLIGENCE OVERSIGHT- Basics-- DoD intelligence activities (collection, production, research, analysis, dissemination, andretention of foreign intelligence) must comply with US law, particularly Constitutionalprotections afforded US persons--- Laws and regulations specifically addressing US intelligence activities collectivelyreferred to as “intelligence oversight laws and regulations”--- Essence of the intelligence oversight laws and regulations is that:---- Persons engaged in intelligence activities that identify US persons must have thespecific mission and need to collect the information---- If the person or unit has the mission and the need, then they may collect theinformation, and they may retain retain or disseminate the information to otherauthorized persons----- Ask: Who is doing the collection? Do they have the mission? Do they have theauthority? Whom are they targeting? What do they want to collect? How willthey collect it?----- Whether the collector is acting in an intelligence capacity or a law enforcementcapacity also must be determined, as approval level and other requirements maydiffer--- President Reagan issued Executive Order (EO) 12333, United States IntelligenceActivities, to provide guidelines within which the intelligence community can conducttheir intelligence missions while protecting the constitutional rights of US persons---- EO 12333 sets out the goals, direction, duties and responsibilities with respect to thenational intelligence effort; guidelines for the conduct of intelligence activities (e.g.,collection, retention, and dissemination); and other general provisions (e.g.,congressional oversight requirements and definitions)----- E.g., EO 12333 requires that collection of information take place by the “leastintrusive means” feasible within the US or when directed against US personsabroad------ Some situations require judicial warrant; others require high-level agencyapproval---- “US person” means a US citizen, an alien known by the intelligence agencyconcerned to be a permanent resident alien, an unincorporated associationsubstantially composed of US citizens or permanent resident aliens, or a corporationincorporated in the US, except for a corporation directed and controlled by a foreigngovernment or governments--- DoD implements EO 12333 in DoDD 5240.1, DoD Intelligence Activities, and DoD5240.1-R, Procedures Governing the Activities of DoD Intelligence Components thatAffect United States Persons---- These publications define “DoD intelligence components” as all DoD componentsconducting intelligence activities; and specify components included within thedefinition (e.g., NSA, DIA, AIA, the counterintelligence elements of AFOSI, andoffices within DoD for the collection of specialized national foreign intelligencethrough reconnaissance programs (e.g., NRO))Legal Issues/AF/JAI/V4 24 Oct 01 59


---- Note also that included within the definition are “other staffs, and offices, or elementsthereof, when used for foreign intelligence or counterintelligence purposes”----- Thus, DoD personnel not assigned to intelligence units, but who engage inintelligence activities, must comply with the intelligence oversight laws andregulations---- DoD 5240.1-R sets out 15 procedures covering: general provisions; collection ofinformation about US persons; retention of information about US persons;dissemination of information about US persons; electronic surveillance (CONUS andOCONUS); concealed monitoring; physical searches; searches and examination ofmail; physical surveillance; undisclosed participation in organizations; contracting forgoods and services; provisions of assistance to law enforcement authorities;experimentation on human subjects for intelligence purposes; employee conduct; andidentifying, investigating, and reporting questionable activities----- Procedure 2—collection of information about US persons—sets out the 13categories of information that may be collected about US persons assuming thecollector has the mission and need (consent, publicly available, foreignintelligence, counterintel, potential sources of assistance to intelligence activities,protection of intelligence sources and methods, physical security, personnelsecurity, communications security, narcotics, threats to safety, overheadreconnaissance, and administrative purposes); and the means that may be used tocollect such information (e.g., least intrusive means or means requiring judicialwarrant)----- Procedure 14—employee conduct—requires that intelligence activities beconducted only pursuant to and IAW with EO 12333 and DoD 5240.1-R; andrequires that components familiarize their employees with the provisions of theEO and the regulation---- Both publications require reporting of intelligence activities that may violate a law,EO, Presidential Directive, or applicable DoD policy to the Inspector General orGeneral Counsel of the component concerned, or to the Assistant to the Secretary ofDefense (Intelligence Oversight)----- Failure to report a known violation may result in adverse action against theperson aware of the violation- Implementation-- USAF implements the DoD publications in AFI 14-104, Oversight of Intelligence Activities--- Specifies that SAF/GC is “legal counsel for all Air Force intelligence oversight issues”---- Secretary of the Air Force Order 111.5, 30 Oct 97, specifies that SAF/GC isresponsible for providing legal advice and assistance to the Office of the Secretaryand the Air Staff concerning intelligence and counterintelligence activities---- Per EO 12333, SAF/GC is the approval authority for provision of USAF expertintelligence personnel (e.g., linguists, analysts) to support law enforcement or otherdepartments or agencies--- Requires initial and annual refresher training on intelligence oversight to all USAFintelligence personnel--- Requires that copies of reports of possible violations be provided to the staff judgeadvocateLegal Issues/AF/JAI/V4 24 Oct 01 60


- Intel Collection on Foreign Nationals-- While the focus of the intelligence oversight laws and regulations is on the protection of therights of US persons, US intelligence collectors do not have unfettered authority to collectintelligence on foreign nationals, such as foreign terrorists--- The collection of such intelligence within the US will be subject to the intelligenceoversight laws and regulationsLegal Issues/AF/JAI/V4 24 Oct 01 61


ANTITERRORISM/FORCE PROTECTION (AT/FP)- Basic Policy and Practice-- DoD is not the lead agency for combating terrorism, but plays a significant role in manyareas, including support to other agencies when directed-- DoD Responsibility--- Protection of own personnel, bases, ships, deployed forces, equipment and installations-- DoD policy--- AT/FP is the CC's responsibility---- CCs are charged with balancing AT/FP considerations with mission accomplishmentimperatives---- Within AOR of a geographic CINC, the CINC’s AT/FP policies take precedence overall AT/FP policies or programs of any DoD component deployed in that AOR, andnot under the security responsibility of the Department of State (DoS)---- Exception----- AT/FP responsibility for Hawaii and Alaska rests with the Secretaries of themilitary departments (not USCINCPAC), through the services, who now haveAT/FP responsibility at all service installations within the 50 US, its territories,or possessions--- Service Secretaries---- Tasked to coordinate with geographic and functional CINCs to ensure adequateAT/FP of CINC-assigned forces within those areas---- Must ensure that overlapping AT/FP coverage is addressed and unresolveddiscrepancies are reported through the chain of command- Relationship with C2 authorities-- AT/FP responsibilities are inherent in combatant command (COCOM), operational control(OPCON), and administrative control (ADCON) authorities-- Additionally, SecDef created tactical control (TACON) for force protection (TACON-FP) toenable geographic CINCs to:--- Order implementation of force protection measures, and--- Exercise the security responsibilities outlined in any memorandums of agreement (MOAs)concluded under the Dept. of Defense and Dept. of State Memorandum of Understandingon Security of Dept. of Defense Elements and Personnel in Foreign Areas of 16December 1997 (“December 1997 DoD/DoS Universal MOU”)-- TACON-FP:--- Helps close gap in coverage over forces transiting through a CINC’s AOR (was notalways covered)--- Authorizes the CINC to change, modify, prescribe, and enforce force protection measuresfor covered forces-- CINC can direct immediate AT/FP measures, including temporary relocation and departure,when they believe such measures are necessary to ensure the safety of involved DoDpersonnelLegal Issues/AF/JAI/V4 24 Oct 01 62


- ROE-- Frequent issues arise in the areas of use of force, weapons selection and employment,collateral damage, defense of third parties, targeting, and terminology (response, reprisal,self-defense, and anticipatory self-defense)-- With AT/FP emphasis on the inherent right and obligation of self-defense is imperative--- US position is that US forces always retain the right to use necessary and proportionalforce for unit and individual self-defense in response to a hostile act or demonstratedhostile intent-- US Standing Rules of Engagement (SROE) govern traditional military operations as well asresponses to terrorist attacks- Definitions (DoDD 2000.12)-- Terrorism--- The calculated use of violence or threat of violence to inculcate fear; intended to coerce orto intimidate governments or societies in the pursuit of goals that are generally political,religious, or ideological-- Antiterrorism (AT)--- Consists of defensive measures used to reduce the vulnerability of individuals andproperty to terrorist attacks, including limited response and containment by local militaryand civilian forces.--- AT plan is normally thought of in two primary phases:---- Proactive:----- Includes the planning, resourcing, preventive measures, preparation, awareness,education, and training prior to an incident---- Reactive:----- Includes the crisis management actions in response to an attack--- DoD Role:---- CONUS:----- Generally that of providing expert technical support in the area of consequencemanagement---- OCONUS:----- Each combatant command should have an integrated and comprehensive AT plan-- Counterterrorism (CT)--- CT generally refers to offensive measures taken to prevent, deter, and respond to terrorism--- Certain national special operations forces units are prepared to execute these missions onorder by the NCA--- Combatant commanders maintain designated CT contingency forces when national assetsare not available--- Programs are sensitive, normally compartmented, and addressed in:---- Relevant National Security Decision Directives---- National Security Directives---- Contingency plans and other classified documents-- Force Protection (FP)--- FP consists of security programs designed to protect service members, civilian employees,family members, facilities, information, and equipment in all locations and situations,accomplished through the planned and integrated application of combating terrorism,Legal Issues/AF/JAI/V4 24 Oct 01 63


physical security, operations security, personal protective services, and supported byintelligence, counterintelligence, and other security programs-- Combating Terrorism Readiness Initiatives Fund (CbT-RIF)--- CJCS manages CbT-RIF established by SecDef to fund emergency or other unforeseenhigh-priority combating terrorism requirements--- Provides means for CINCs to react to unanticipated requirements from changes in terroristthreat/force protection condition (FPCON) levels or force protection doctrine/standards--- Not intended to subsidize ongoing projects, supplement budget shortfalls, or supportroutine activity that is normally a service responsibility--- Funds can be requested to obtain such things as:---- Physical security equipment (surveillance systems, lighting, alarm systems, bodyarmor, and vehicle armor kits), or---- Physical security site improvements (perimeter and entrance barriers, fencing, andgates)- Responsible Agencies-- The National Security Council (NSC)--- Formulates US policy for the President on terrorist threats that endanger US interests.--- Within NSC, the Functional Policy Coordination Committee (NSC/PCC) for Counterterrorismand National Preparedness addresses terrorism policy and operational matters-- Department of Justice (DoJ)--- Lead agency for domestic terrorism--- FBI, under DoJ, being the lead investigative agency for operational responses to terroristincidents--- The US Attorney General, through an appointed Deputy Attorney General, makes majorpolicy decisions and legal judgments related to each terrorist incident as it occurs--- In domestic terrorism incidents the Attorney General will have authorization to direct aFBI-led DEST (Domestic Emergency Support Team) - an ad hoc collection of interagencyexperts-- FBI--- When a terrorist incident occurs, the lead official is generally the Special Agent in Charge(SAC) of the field office nearest the incident and is under supervision of the Director ofthe FBI--- Maintains liaison at each governor’s office--- Because of the presence of concurrent jurisdiction in many cases, cooperates with stateand local law enforcement authorities on a continuing basis--- IAW the Atomic Energy Act is responsible for investigating a threat involving:---- Misuse of a nuclear weapon---- Special nuclear material, or---- Dangerous radioactive material--- Takes lead for an emergency involving terrorism or terrorist acts involving chemical orbiological weapons of mass destruction (WMD)--- In these efforts, cooperates with the Dept. of Energy, DoD, the Nuclear RegulatoryCommission, and the EPA as well as several states that have established nuclear, chemical& biological and/or WMD threat emergency response plansLegal Issues/AF/JAI/V4 24 Oct 01 64


-- Department of State (DoS)--- Lead agency for acts not under FBI responsibility--- Also responsible for the security of all personnel and facilities at non-military USGovernment installations abroad as well as American citizens abroad (including DoDpersonnel under the security responsibility of the DoS)-- Department of Defense (DoD)--- Responsible for protecting its own personnel (including family members), bases, ships,deployed forces, equipment and installations world-wide and is responsible for providingtechnical assistance or forces when directed by the NCA--- DoDD 2000.12 establishes the CJCS as the principal advisor and focal point responsibleto SecDef for DoD AT/FP issues--- DoD elements and personnel under the security responsibility of the DoS:---- Comply with Overseas Security Policy Board (OSPB) security standards instead ofDoD standards, and---- Coordinate their AT/FP programs with the Chief of Mission through the US DefenseRepresentative (USDR)--- See DoDI 5210.84 and the December 1997 DoD/DoS Universal MOU-- Federal Aviation Administration (FAA)--- Lead agency for terrorist incidents that occur aboard civilian aircraft in flight--- Responsible for:---- Investigating and preventing aircraft piracy, and---- For informing commercial air carriers and their passengers regarding any terroristthreat information-- US Coast Guard (USCG)--- Responsible, within the limits of US territorial seas, for reducing risk of a maritimeterrorist incident by diminishing the vulnerability of ships and facilities throughimplementation of security measures and procedures--- Lead agency for responding to terrorist actions that occur in maritime areas subject to USjurisdiction--- USCG and FBI have an interagency agreement (Commandant Instruction 16202.3A) tocooperate with each other when coordinating counterterrorism activities-- Other Agencies--- All other Federal agencies possessing resources for responding to terrorism are linkedtogether through agency command centers and crisis management groups to ensureeffective coordination of the US response- Terrorism Incidents-- Criminal Actions--- Most terrorist acts are federal crimes whether committed during peacetime or in militaryoperations. See Legal Status Issues - Terrorists, for details on status and initial treatmentupon capture-- Jurisdiction--- In peacetime military operations, most terrorist acts are federal crimes--- In an internationally recognized conflict, terrorists can be tried under local criminal lawor under military jurisdiction by either a court-martial or military tribunal CC’s authorityLegal Issues/AF/JAI/V4 24 Oct 01 65


-- Military Authority--- Employment of US military forces in response to acts or threats of domestic terrorismmust be:---- Requested by the Attorney General---- Authorized by the President---- Approved by SecDef (DoDD 3025.15)--- Upon notification of Presidential approval to use military force, the Attorney General willadvise the Director of the FBI who will notify the SAC at the terrorist incident scene---- Concurrently, SecDef will notify the on-scene military CC--- Nothing precludes the presence of the military liaison to respond and keep the militarychain of command informed--- The military CC and the SAC will coordinate the transfer of operational control to themilitary CC---- Responsibility for the tactical phase of the operation is transferred to militaryauthority when the SAC relinquishes command and control of the operation and it isaccepted by the on-site military CC---- SAC may revoke the military force commitment at any time before the assault phaseif the SAC determines that military intervention is no longer required and withdrawalmay be accomplished without seriously endangering the safety of military personnel orothers involved in the operation---- When the military CC determines that the operation is complete and militarypersonnel are no longer in danger, command and control will be promptly returned tothe SAC- Posse Comitatus Act (PCA) (18 USC 1385)-- Fundamental restriction on use of the military in law enforcement contained in PCA--- Posse Comitatus Act traditionally considered not to apply extraterritorially:---- Two important qualifications:----- At least one Circuit has taken a slightly different view, relying on the contents of10 USC 371-380 to assert that it is wrong to suggest that the restrictions onmilitary involvement in civilian law enforcement operations do not extend toactivities outside the US (See US v Kahn, 35 F.3d 426 (9 th Cir. 1994) - this runscounter to a DoJ opinion from 1989)----- DOD Directive 5525.5, DoD Cooperation With Civilian Law EnforcementOfficials, Sec 8.1 requires requests for exceptions to policy restrictions againstdirect assistance by military personnel to execute the laws outside the US to beapproved by the SecDef or the Deputy SecDef and only in cases of compellingand extraordinary circumstances--- Does not apply to civilian federal employees unless they are acting under the directcommand and control of a military officer--- Generally prohibits the direct, active participation of military personnel in the interdictionof a vehicle, vessel, or aircraft, or the surveillance, pursuit, search, seizure, and arrest ofcivilians--- Does not prohibit passive participation in law enforcement such as:---- Providing information collected during normal military operations that may berelevant to a violation of federal or state lawLegal Issues/AF/JAI/V4 24 Oct 01 66


---- Loaning military equipment and the personnel to operate and maintain suchequipment---- Making military personnel available to train civilian law enforcement officials---- Placing military personnel on-scene to ascertain whether military intervention may benecessary---- Preparing contingency plans to be used if intervention is ordered---- Providing advice or recommendations to civilian law enforcement officials--- Subject to constitutional and statutory exceptions---- Note recent development:----- In response to the 11 Sep 01 attacks in the US, the US Senate passed JointResolution 23, providing the President specific statutory authorization to “useall necessary and appropriate force against those nations, organizations, orpersons he determines planned, authorized, committed, or aided the terroristattacks that occurred on September 11, 2001, or harbored such organizations orpersons, in order to prevent any future acts of international terrorism against theUnited States by such nations, organizations or persons.”------ The resolution’s preamble states that “such acts render it both necessaryand appropriate that the United States exercise its rights to selfdefense….”(emphasis added)------ The resolution, therefore, provides the US the option of respondingto the terrorist acts of 11 Sep 01 as a military matter, which wouldgive DoD the lead the resolution became Public Law 107-40 on 18Sep 01----- Effect on PCA uncertain-- Standing exceptions relevant to terrorism:--- Immediate Response Authority---- President, based on inherent authority as the Chief Executive, has the authority to usethe military in cases of emergency and to protect federal functions and property---- Military CCs, by extension of this authority, may respond in such cases as well(Immediate Response Authority)----- For civil disturbances, which may result from a terrorist act, military CCs mayrely on this authority (contained in DoDD 3025.12 (See also DoDD 3025.15))----- Immediate Response Authority permits CCs to take immediate action to:------ Save lives------ Prevent human suffering, or------ Mitigate great property damage under imminently serious conditions----- CCs may take whatever action the circumstances reasonably justify----- As soon as practical, the CC rendering assistance shall report the fact of therequest from civil authorities, the nature of the response, and any other pertinentinformation through the chain of command to the DoD Executive Secretary, whoshall notify SecDef, the CJCS, and any other appropriate officials------ Civil authorities shall be informed that verbal requests for support in anemergency must be followed by a written request------ If the report does not include a copy of the civil authorities’ writtenrequest, that request shall be forwarded through the chain of command tothe DoD Executive Secretary as soon as it is availableLegal Issues/AF/JAI/V4 24 Oct 01 67


----- CC making the Immediate Response decision should document all facts andsurrounding circumstances, retain military response personnel under the militarychain of command, and limit military involvement to the minimum demanded bynecessity------ Emergency situations include, but are not limited to:------- Providing civilian or mixed civilian and military fire-fightingassistance where base fire departments have mutual aid agreementswith nearby civilian communities------- Providing emergency explosion ordnance disposal (EOD) service------- Using military working dog (MWD) teams in an emergency to aid inlocating lost persons (humanitarian acts) or explosive devices(domestic emergencies)--- Insurrections---- 10 U.S.C. 331-334 is primary statutory exception pertinent to terrorism scenarios----- Terrorist incident may well qualify as a civil disturbance----- Federalized National Guard would be able to rely on this exception--- Assisting the DoJ in cases of offenses against the President, Vice President, members ofCongress, the Cabinet, a Supreme Court Justice, or an “internationally protected person.”---- 18 U.S.C. 351, 1116 and 1751--- Assisting the DoJ in enforcing 18 U.S.C. 831, dealing with prohibited transactionsinvolving nuclear materials---- Statute specifically authorizes the use of DoD assets to conduct arrests and searchesand seizures with respect to violations of the statute in cases of “emergency,” asdefined by the statute--- 18 U.S.C. 382 allows DoD to assist the DoJ in enforcing 18 U.S.C. 175 and 2332 duringan emergency situation involving chemical or biological weapons of mass destruction---- DoD support in WMD situations also appears in 50 U.S.C. 2311- 2367, Weapons ofMass Destruction Act of 1996---- These statutes specifically authorize the use of DoD assets and in very limitedsituations provide authorization for DoD to arrest, search, and seize- Responsibilities of a Military Installation Commander-- Domestic Incidents--- While FBI has primary law enforcement responsibility for terrorist incidents in the US(including its possessions and territories), installation CCs are responsible for maintaininglaw and order on military installations--- Contingency plans should address the use of security forces to isolate, contain, andneutralize a terrorist incident within the capability of installation resources--- In the US, installation CCs will provide the initial and immediate response to any incidentoccurring on military installations to isolate and contain the incident--- FBI will take the following steps:---- The senior FBI official will establish liaison with the command center at theinstallation. If the FBI assumes jurisdiction, the FBI official will coordinate the useof FBI assets to assist in resolving the situation; e.g., hostage rescue team, publicaffairs assetsLegal Issues/AF/JAI/V4 24 Oct 01 68


---- If the FBI assumes jurisdiction, the Attorney General will assume primaryresponsibility for coordinating the Federal law enforcement response---- If the FBI declines jurisdiction, the senior military CC will take action to resolve theincident---- Even if the FBI assumes jurisdiction, the military CC will take immediate actions asdictated by the situation to prevent loss of life or to mitigate property damage beforethe FBI response force arrives---- In all cases, command of military elements remains within military channels---- Response plans with the FBI and service agencies should be exercised annually at theinstallation and base level to ensure the plans remain appropriate-- Foreign Incidents--- Installation CC’s responsibilities are the same as for domestic incidents—with the addedrequirement to notify the host nation and DoS---- Notification to DoS is made at the combatant CC level---- In all AORs, existing contingency plans provide guidance to the installation CCregarding notification procedures--- DoS has the primary responsibility for dealing with terrorism involving Americans abroad--- Installation’s response is also subject to agreements established with the host nation---- Such agreements notwithstanding, the SROE (see SROE para. 1.d.), make it clear thatthe CC retains the inherent right and obligation of self-defense even in such situations--- Response to off-installation foreign incident is the sole responsibility of the host nation---- US military assistance, if any, depends on the applicable status-of-forces agreement(SOFA) or memorandum of understanding (MOU) and coordination through the USembassy in that country---- Military forces will not be provided to host-nation authorities without a directive fromthe DoD that has been coordinated with DoS---- The degree of DoS interest and the involvement of US military forces depend on theincident site, nature of the incident, extent of foreign government involvement, andthe overall threat to US security--- In emergency situations, CCs must evaluate whether or not Immediate ResponseAuthority criteria are met permitting CCs to take immediate action to save lives, preventhuman suffering, or mitigate great property damage under imminently serious conditions- Attachments-- Sample Force Protection Plan at Appendix 16-- MOU between DoS and DoD on Security of DoD Elements and Personnel in Foreign Areasat Appendix 17Legal Issues/AF/JAI/V4 24 Oct 01 69


OFFICE OF HOMELAND SECURITY- Executive Order-- By Executive Order the US President established the Office of Homeland Security (SeeAppendix 18 for full text)- Mission-- Develop and coordinate the implementation of a comprehensive national strategy to securethe US from terrorist threats or attacks-- Coordinate the executive branch's efforts to detect, prepare for, prevent, protect against,respond to, and recover from terrorist attacks within the US- Functions-- National Strategy-- Detection-- Preparedness-- Prevention-- Protection-- Response and Recovery-- Incident Management-- Continuity of Government-- Public Affairs-- Cooperation with State and Local Governments and Private Entities-- Review of Legal Authorities and Development of Legislative Proposals-- Budget Review- Administration-- Directed by the Assistant to the President for Homeland Security--- First appointee Governor Tom Ridge (as of 8 Oct 01)--- Resourced by Office of Administration within the Executive Office of the President--- Provisions regarding detailing or assigning personnel from other executive departmentsand agencies- Establishment of Homeland Security Council--- SecDef a memberLegal Issues/AF/JAI/V4 24 Oct 01 70


ANTI-TERRORISM LEGISLATION- Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)-- Stimulated in part by the tragedies in Oklahoma City and the World Trade Center bombing-- Overview:--- Title I---- Substantially amends federal habeas corpus law as it applies to both state and federalprisoners whether on death row or imprisoned for a term of years----- Bars federal habeas reconsideration of legal and factual issues ruled upon bystate courts in most instances----- Creates a general one year statute of limitations----- Creates a six month statute of limitation in death penalty cases----- Encourages states to appoint counsel for indigent state death row inmates duringstate habeas or unitary appellate proceedings----- Requires appellate court approval for repetitious habeas petitions--- Title II---- Recasts federal law concerning restitution---- Expands the circumstances under which foreign governments that support terrorismmay be sued for resulting injuries---- Increases the assistance and compensation available to the victims of terrorism--- Title III---- Aims to assist the severing of international terrorists from their sources of financialand material support---- Enlarges the proscriptions against assisting in the commission of various terroristcrimes---- Authorizes the regulation of fundraising by foreign organizations associated withterrorist activities---- Adjusts the Foreign Assistance Act to help isolate countries who support terrorists andto bolster counterterrorism efforts in those who oppose them--- Title IV---- Addresses immigration-related terrorism issues---- Establishes or adjusts mechanisms to:----- Bar alien terrorists from the US----- Remove from the U.S. any who are here----- Narrow asylum provisions which allow terrorists to frustrate efforts to bar orremove them----- Expedite deportation of criminal aliens--- Title V---- Adjusts the restrictions on possession and use of materials capable of producingcatastrophic damage in the hands of terrorists--- Title VI---- Implements the treaty requiring the countries of the world to limit plastic explosivesto those with pre-explosion detection devices implanted within themLegal Issues/AF/JAI/V4 24 Oct 01 71


-- Location of AEDPA--- Pub.L. 104-132, Apr. 24, 1996, 110 Stat. 1214--- Pub.L. 104-208, Div. A. Title I, § 101(a), [Title I. § 113], Div. C, Title III, Subtitle A, §§308(d)(5), (g)(10)(H), 321(a), Subtitle E § 671(c)(1), (3) to (6), Sept. 30, 1996, 110 Stat.3009-21, 3009-625, 30009-627, 3009-722, 3009-723 (8 §§ 1101, 1105a, 1182, 1189,1225, 1225 notes, 1227, 1252, 1252a; 18 § 841 note)--- Pub.L. 104-294, Title VI, § 605(j) to (m), Oct. 11, 1996, 110 Stat.3510 (18 § 2332a, 3663)--- Pub.L. 105-119, Title I. § 120, Nov. 26, 1997, 111 Stat. 2468 (42 § 10602 note)--- Pub.L. 106-546. § 6(a). Dec. 19, 2000, 114 Stat. 2733 (28 § 531 note)- Other Anti-terrorist Legislation-- Anti-terrorism Act of 1987--- Pub.L 101-204, Title X, Dec. 22, 1987, 101 Stat. 1406 (22 §§ 5201, 5201, 5202, 5203)-- Anti-terrorism and Arms Export Amendments Act of 1989--- Pub.L. 101-222, Dec. 12, 1989, 103 Stat. 1892 (22 §§ 1732, 2151 note, 2364, 2371, 2371note, 2753, 2776, 2778, 2780; 50 App §2405)-- Anti-terrorism Act of 1990--- Pub.L. 101-519, § 132, Nov. 5, 1990, 104 Stat. 2250 (18 §§ 2331, 2331 notes, 2332a to2338)Legal Issues/AF/JAI/V4 24 Oct 01 72


WEAPONS (LOAC CONSIDERATIONS)- Weapon Reviews-- DoD Instruction 5000.2 and AFI 51-402 require reviews of weapons developed by the AirForce for compliance with US legal obligations. This legal review requirement appliesequally to all weapons programs, whether unclassified or classified special access programs(SAP)-- Legal review is triggered by the intended acquisition of a potential weapon--- The review shall be conducted before the award of the engineering and manufacturingdevelopment contract--- Review must be accomplished before the award of the initial production contract.--- Reviews are encouraged “of new, advanced, or emerging technologies which may lead todevelopment of weapons or weapon systems.”-- Weapons Definition: “Devices designed to kill, injure, or disable people, or to destroyproperty.” AFI 51-402, para. 1. The following are not weapons under AFPD 51-4 and AFI51-402: training devices; aircraft, ICBMs, and other launch platforms; and, electronicwarfaredevices-- Standard of Review: “DoD acquisitions and weapons procurement shall be consistent withapplicable domestic law and all applicable treaties, customary international law, and the lawof armed conflict”-- Responsibilities: The Head of each DoD Component shall ensure that the Component’sGeneral Counsel or Judge Advocate General (TJAG), as appropriate, conducts a legal reviewof the intended acquisition of a potential weapon--- AFI-402 tasks TJAG to “ensure all weapons being developed, bought, built, or otherwiseacquired, and those modified” receive a legal review. TJAG may delegate thisresponsibility to the JAI Division Chief--- AFI 51-402 tasks SAF/AQ to ensure TJAG or TJAG’s designee reviews, for legality, allweapons, at the earliest possible stage in the acquisition process, including the researchand development stage. SAF/AQ accomplishes this by forwarding acquisition programmanagement directives (PMD) to JAI for a legal review- Specific Weapons-- Fuel Air Explosives--- Background---- Fuel air explosives disperse an aerosol cloud of fuel that is ignited by an embeddeddetonator to produce an explosion---- The rapidly expanding wave front due to overpressure flattens all objects within closeproximity of the epicenter of the aerosol fuel cloud and produces debilitating damagewell beyond the flattened area---- The main destructive force of FAE is high overpressure, useful against soft targetssuch as minefields, armored vehicles, aircraft parked in the open, and bunkers--- Application of LOAC---- Use of FAEs is lawful under LOAC provided basic LOAC principles are adhered to(military necessity, proportionality, distinction, and humanity)---- No treaty specifically prohibits the use of FAEsLegal Issues/AF/JAI/V4 24 Oct 01 73


---- The Conventional Weapons Convention (CWC) Protocol on Prohibitions orRestrictions on the Use of Incendiary Weapons (Protocol III) (US is not a party) isnot applicable to FAEs----- Incendiary weapon is defined as “any weapon or munition which is primarilydesigned to set fire to objects or to cause burn injury to persons through theaction of flame, heat, or a combination thereof, produced by a chemical reactionof a substance delivered on the target” (Art. 1(1))----- Incendiary weapons do not include “[m]unitions designed to combinepenetration, blast or fragmentation effects with an additional incendiary effect,such as. . .explosive bombs and similar combined-effects munitions in which theincendiary effect is not specifically designed to cause burn injury to persons, butto be used against military objectives, such as armoured vehicles, aircraft andinstallations or facilities” (Art. 1(1)(b)(ii))----- Since FAE’s primary destructive force is a blast effect from ignition of the fueland not burn injury or damage, FAEs are not considered an incendiary weaponunder Protocol III---- Any FAEs currently in the US inventory that have previously received a weaponreview may be used immediately----- Prior to using a new or modified FAE weapon in conflict, a weapon review mustbe completed--- Summary---- The use of FAEs is permissible under LOAC-- Napalm--- The Protocol on Prohibitions or Restriction on the Use of Incendiary Weapons , adoptedOct. 10, 1980, 1342 U.N.T.S (1983) 137-255, 19 I.L.M. (1980) 1523-36 1980 (entry intoforce Dec. 2, 1983, US not a party) [hereinafter Protocol III] regulates napalm use byparties to the Protocol--- Neither Protocol III, nor customary international law, outlaws incendiary weapons--- Protocol III prohibits certain uses of incendiary weapons, such as making any militaryobjective located within a concentration of civilians the object of attack by air-deliveredincendiary weapons. Napalm is not specifically mentioned by Protocol III--- The usual principles of the law of armed conflict (LOAC), namely military necessity,proportionality, distinction and humanity regulate the use of incendiaries and napalm--- Protocol III first entered into force 2 Dec 1983 (for parties to the Protocol at that time)--- Over 80 nations, including a majority of NATO members (except the US, France andTurkey), Japan, Australia, and New Zealand are a party to Protocol III--- The U.S. is currently considering ratifying Protocol III - with a reservation that incendiaryweapons may be used within areas of civilian concentrations, if their use will result infewer civilian casualties---- For example: the use of incendiary weapons against a chemical weapons factory in acity could cause fewer incidental civilian casualties----- Conventional explosives would disperse the chemicals, where incendiarymunitions would burn up the chemicals--- The Air Force does not have any munitions currently fielded with its forces that fallwithin Protocol III’s definition of “incendiary weapon”Legal Issues/AF/JAI/V4 24 Oct 01 74


---- Target-marking flares or white phosphorous (“Willy Pete”) rockets or flares are notconsidered incendiary weapons---- Prior to fielding a new napalm weapon, the Air Force must complete a legal review ofthe munition----- DoD Instruction 5000.2 and AFI 51-402 require reviews of weapons developedby the Air Force for compliance with US legal obligations----- The critical factor in the prohibition against unnecessary suffering is whether thesuffering is needless or disproportionate to the military advantages secured bythe weapon, not the degree of suffering itselfLegal Issues/AF/JAI/V4 24 Oct 01 75


CAT PLAN- AF Crisis Action Team-- During contingencies and crises, JA representatives serve as the legal advisor to CATDirector and as the focal point to gather situational awareness for JA functional area-- AF/JAI designated to support, with external augmentation from other JA activities, all CAToperations- AF Continuity of Operations Program (COOP)-- COOP Programs are mandated by several Executive Orders and Presidential DecisionDirectives-- Provides a flexible response capability to continue HQ USAF functions at all times, from anylocation, in response to any threat precluding the use of the Pentagon-- HQ USAF conducts continuity of operations activities and executes HQ USAF missionessential functions in support of the SecDef, CJCS, SecAF, and the CSAF during nationalsecurity emergencies-- HQ USAF/JAI designated as Emergency Planning Coordinators (EPC) for AF/JA-- HQ USAF COOP Plan is executed:--- When directed by the SecDef or CSAF--- Concurrent with OSD and CJCS COOP plans--- Automatically under terrorist THREATCON CHARLIE and DELTA--- Automatically under higher DEFCON or Attack Conditions ALPHA and BRAVO- Air Force Emergency Operations Center (AFEOC) a.k.a., Site R-- Site R: An underground survivable command post for the individual services, the Joint Staff,OSD and representatives of the DoD and Federal Agencies-- Supports the relocation of selected personnel to alternate sites during a national securityemergency-- Executes HQ USAF mission essential functions and ensures continuous operations-- Site R Policy, Procedures, and Location: See HQ USAF Emergency Relocation Staff (ERS)Relocation Handbook (attached at Appendix 19)Legal Issues/AF/JAI/V4 24 Oct 01 76


ContactsJA OPERATIONS SUPPORT STAFFAF Crisis Action Team E-Mail (JA) jag@af.pentagon.smil.milAF Crisis Action Team Phone Numbers DSN 225-1343, Commercial (703) 695-(JA)1343AF Emergency Operations Center E-Mail jag.afeoc@af.pentagon.smil.mil(JA)AF Emergency Operations Center Phone DSN 988-2366, Commercial (717) 878-(JA)2366JCS Legal DSN 225-5459, Secure 225-5459/8138Primary CAT RepresentativeLt Col Richards, AF/JAI # removedJAI Emergency Planning Coordinators Lt Col Richards, AF/JAI # removed(EPCs)TSgt Julig, AF/JAI (703) 695-9361OPERATIONS CENTERSJCS Legal 703-697-1137National Military Command Center 703-697-6340(NMCC)AF Ops Ctr 703-697-6103Army Ops Ctr 703-693-2004Marines Ops Ctr 703-697-2671Navy Ops Ctr 703-693-2004KEY PERSONNELMG William MoormanMG Thomas FiscusMr. Harlan Wilder - JAGCol Gary Halbert - JAECol Mike Madrid - AFLSACol Dan Fincher - JAXCol Thomas Tudor - JAICol John Martinez - JAZCol Steve Donnelly - PAZ# removed# removed# removed# removed# removed# removed# removed# removed# removedLegal Issues/AF/JAI/V4 24 Oct 01 77


THE ROLE OF LAWYERS IN OPERATIONS ACTIVITIES -- AN AIR FORCEPERSPECTIVE- Lawyers, usually military judge advocates (JAGs), are heavily involved in air operations at alllevels-- This involvement is based on several considerations:--- International Law---- AP I, Art. 82, states:“The High Contracting Parties at all times, and the parties to the conflict in timeof armed conflict, shall ensure that legal advisers are available, when necessary,to advise military commanders at the appropriate level on the application of theconventions and this protocol and on the appropriate instruction to be given to thearmed forces on this subject.”--- United States Policy---- CJCSI 5810.0lA requires a legal review of all operations plans, orders, and targets.Involvement of legal personnel in this process within the JAOC is recognized andimplemented through JP 3-56.1---- DoD Directive 5100.77, requires the Chairman of the JCS and the commanders ofunified and specified commands to ensure that rules of engagement (ROE) conformto LOAC. Additionally, Service regulations and instructions require similar reviewsto ensure consistency with LOAC. (e.g., Secretary of the Navy Instruction 3300. 1A;Chief of Naval Operations Instruction 3300.52; Marine Corps Order 3300.3; AFR110-32)---- DoD policy is to comply with LOAC "in the conduct of military operations andrelated activities in armed conflict, however such conflicts are characterized." DoDDirective 5100.77, para. E(1)(b), and CJCSI 5810.01A--- Lessons Learned---- Within Air Force channels, a lesson learned from Operation DESERT STORM wasunequivocally expressed in an 11 December 1991 opinion jointly issued by the AirForce Judge Advocate General and the Deputy Chief of Staff for Plans andOperations to all MAJCOM Commanders and Staff Judge Advocates----- The memo provided in pertinent part:“One of the Air Force judge advocates' most important jobs is to provideguidance on the role of [LOAC] in air operations. One strength of ourDESERT STORM air campaign was our adherence to the law: our JAGsdefined the legal envelope and we stayed within it. ... [W]e cannot afford towait for war to bring JAGs into the operations and planning environment.Putting a JAG on your battle and planning staffs [is] a [way] to accomplishthis… We are committed to forging closer ties between law andoperations...”-- Although AP I clearly does not contemplate a "JAG in every foxhole," JAGs do advisecommanders and their staffs at virtually all levels of commandLegal Issues/AF/JAI/V4 24 Oct 01 78


--- Strategic Level---- Primarily involving the NCA, the CJCS, and the CINCs)---- Legal advisors plan and coordinate Defense-wide and theater-level legal support andcontribute to the overall planning effort----- Include the General Counsel for the Office of the Secretary of Defense, the LegalCounsel for the Office of the Chairman of the Joint Chiefs of Staff, and theCINCs’ staff judge advocates (SJAs)--- Operational Level---- The joint forces air component commander (JFACC) and the joint air operationscenter (JAOC) are at that operational level of command envisioned by the drafters ofAP I as requiring legal advisors----- The two legal advisor functions specified in AP I include assisting commanderswith Law of Armed Conflict (LOAC) compliance and training the force in therequirements of LOAC------ Under Common Article 2 of the Geneva Conventions, LOAC applies to allcases of declared war or any other international armed conflict-- JAG Role Within the JAOC--- The JAOC is the aerospace operations planning and execution focal point for the jointtask force (JTF) and is where centralized planning, direction, control, and coordination ofaerospace operations occur (AFDD-2)---- JAOC personnel are responsible for planning, executing, and assessing aerospaceoperations and directing changes as the situation dictates--- From an Air Force perspective, the role of a JAG within the JAOC is to provide expertiseon domestic, foreign, and international law that directly affects the conduct of aerospaceoperations---- The JAOC JAG gives the highest priority to operational issues, and not the more"traditional" legal roles (e.g. claims, legal assistance, and military justice) which aregenerally done through service channels--- Within the JAOC, a JAG is generally involved as soon as planning begins. The JAG’sprimary responsibility is to identify legal considerations (authorities, restraints, andconstraints) and provide them to the other planners---- Failure to identify legal considerations early in the planning process may wasteprecious time if the staff develops courses of action (COAs) that are legallyobjectionable---- The JAG assists in the development of appropriate ROE necessary for air planexecution and in drafting supplemental ROE requests, interpreting JFC or NationalCommand Authorities guidance and intent, and assisting in the dissemination andtraining of ROE----- The JAG advises on LOAC and ROE compliance for time-critical targets, statusof personnel under international law and other legal issues in search and rescue,and other legal issues emerging during air tasking order (ATO) execution--- In accordance with applicable instructions and directives, a legal review is conducted ofall plans, orders, and targets to ensure consistency with US domestic law andinternational law, especially LOAC---- The legal review generally focuses on the legal basis for an activity and ensuresappropriate guidelines are included for dealing with a variety of areas including:Legal Issues/AF/JAI/V4 24 Oct 01 79


----- Targeting and collateral damage----- Rules of Engagement----- Status of Forces----- Command Relationships----- Captured weapons, war trophies, documents, equipment----- Host Nation support----- Fiscal Considerations, including acquisitions during combat or militaryoperations----- Nuclear, biological, and chemical weapons----- Non-lethal or less-than-lethal technology----- Enemy Prisoners of War (EPW) and detainees----- Displaced Civilians (DC)----- Interaction with Non-governmental Organizations/Private VoluntaryOrganizationsLegal Issues/AF/JAI/V4 24 Oct 01 80


APPENDICES1. Presidential Report to Congress dated 24 Sep 012. Content of SOFAs3. Formal SOFA List4. EO 132235. SecDef Memo of 13 Oct 01 - Partial Mobilization (World Trade Center and PentagonAttacks) and Redelegation of Authority Under Title 10, USC, Sections 123, 123a, 527,12006, 12302 and 12305, 12011 and 120126. SecAF Memo of 20 Sep 01 - Redelegation of Authority - Partial Mobilization (WorldTrade Center and Pentagon Attacks)7. AS(M&RA) Memo - Suspension of Law and Air Force Policy Relating to Retirementand Separation8. Declaration of National Emergency by Reason of Certain Terrorist Acts (14 Sep 01)9. UN Security Council Resolution 1368 (12 Sep 01)10. UN Security Council Resolution 1373 (28 Sep 01)11. NATO Treaty12. ANZUS Treaty13. Mutual Defense Treaty with Korea14. Mutual Defense Treaty with Japan15. Rio Treaty16. Sample Force Protection Plan17. MOU between DoS and DoD on Security of DoD Elements and Personnel in ForeignAreas18 Executive Order Establishing the Office of Homeland Security and the HomelandSecurity CouncilLegal Issues/AF/JAI/V4 24 Oct 01 81


APPENDIX 1LETTER TO CONGRESS ON AMERICAN CAMPAIGN AGAINST TERRORISMText of a Letter from the President to the Speaker of the House of Representatives and thePresident Pro Tempore of the SenateSeptember 24, 2001Dear Mr. Speaker: (Dear Mr. President:)On the morning of September 11, 2001, terrorists hijacked four U.S. commercial airliners. Theseterrorists coldly murdered thousands of innocent people on those airliners and on the ground, anddeliberately destroyed the towers of the World Trade Center and surrounding buildings and aportion of the Pentagon.In response to these attacks on our territory, our citizens, and our way of life, I ordered thedeployment of various combat-equipped and combat support forces to a number of foreignnations in the Central and Pacific Command areas of operations. In the future, as we act toprevent and deter terrorism, I may find it necessary to order additional forces into these and otherareas of the world, including into foreign nations where U.S. Armed Forces are already located.I have taken these actions pursuant to my constitutional authority to conduct U.S. foreignrelations and as Commander in Chief and Chief Executive. It is not now possible to predict thescope and duration of these deployments, and the actions necessary to counter the terrorist threatto the United States. It is likely that the American campaign against terrorism will be a lengthyone.I am providing this report as part of my efforts to keep the Congress informed, consistent withthe War Powers Resolution and Senate Joint Resolution 23, which I signed on September 18,2001. As you know, officials of my Administration and I have been regularly communicatingwith the leadership and other Members of Congress about the actions we are taking to respond tothe threat of terrorism and we will continue to do so. I appreciate the continuing support of theCongress, including its passage of Senate Joint Resolution 23, in this action to protect thesecurity of the United States of America and its citizens, civilian and military, here and abroad.Sincerely,GEORGE W. BUSH# # #


APPENDIX 2CONTENT OF SOFAProvided below is the content, by topic and sub-topic, of mini and full-blown SOFAs.Those with as asterisk (*) are usually included in a mini-SOFA. Other items may beaddressed in a mini-SOFA as necessary. A full-blown SOFA will contain most, if not all,of the subject areas and subordinate matters in some detail. The list is not exhaustive andis intended to be thought provoking and give the reader a sense of the scope of subjectmatters addressed in a SOFA. SOFA texts can be as short as a few pages or, in the caseof the German Supplementary Agreement to the NATO SOFA, several hundred pages.Subject Areas and Subordinate Topics*DefinitionsUS armed forces*Members of the force*Members of the civilian componentDependentsContractorsContractor employees*Respect for Law and Sovereignty*Duty to respect law and sovereigntyDuty to abstain from any inconsistent political activityUS to take all measures within its authority to ensure compliance*Entry and Departure Procedures*Members of the force exempted from passport and visa requirements (need onlyidentification (ID) card and collective or individual movement order)Crews of visiting ships and aircraft need only ID card*Members of the civilian component need only passport (exempt fromvisa/multiple visa requirement)Other topics: extent of applicability of immigration and emigration inspection,exemption from laws and regulations on the registration and control of aliens,exemption from work permit requirements if employed by the force in other thana local national position, non-acquisition of any right of permanent residence ordomicile, handling request from host country for removal of an individual, andprocedures to retire or separate in the host country.*Wearing of the Uniform*When and where permittedApplication of US law and service regulationOn/Off facility distinctionOn/Off duty distinction


*Carrying of Arms*When and where permitted*Members of the force may possess and carry arms while on duty if authorized todo soOther topics: sending state to give sympathetic consideration to exceptionsrequested by host, US commander’s force protection authority, advance notice tohost if arms taken off military facility, and when and conditions for carrying armsin limited circumstances off military facility (such as escort of convoy).*Driving Licenses and Registration*Only US issued licenses required to operate US vehicles*No local registration or licensing of US vehicles; US will markAcceptance of US issued license to operate privately owned vehicle or receivingstate to issue license without test or feeLocal registration of privately owned vehicle and payment of fee thatapproximates cost of registrationOther topics: transition period and administrative procedures*Criminal Jurisdiction*Exclusive and concurrent jurisdiction sharing formula*In concurrent cases, primary jurisdiction to receiving state except for officialduty and inter se cases*Procedures for waiver of primary jurisdiction (process: request or recall;approval or automatic) (standard for waiver: “sympathetic consideration” or“except in cases of particular importance”)*Other topics: official duty certificates, authorization of US forces to disciplineand punish in the host country, special rules for death penalty cases (notpermitting to carry out sentence in host country unless host country law providesfor similar punishment), definition of security offenses and allocation ofjurisdiction in security cases, notification of decision not to exercise primary rightand other party’s latent right to exercise, notification to the other party of theexercise of concurrent jurisdiction, factors barring trial by the other party, trial byhost country military courts prohibited, judicial assistance obligations, proceduresfor arrest and apprehension, US custody rights pending completion of the judicialprocess, fair trial guarantees, prison conditions and visitation rights* Protection from the application of the Rome Statute creating the InternationalCriminal Court or from the jurisdiction of any other international or foreigntribunals, and in particular prevention of surrender or transfer of custody withoutexpress consent of USNew topics on the horizon: service of sentence in the US through enhanced use ofprisoner exchange agreements where possible; and contractor personnelprotections


*Civil Jurisdiction*Immunity for matters arising out of the performance of official dutyActions against the US GovernmentOther topics: US does not waive its defense of sovereign immunityArrest and Service of ProcessProcedures for arrest and service of process in criminal and civil matters withinthe military facility made available for US use*Claims*Types of government-to-government claims waived and procedures for handingthose claims not waived*Formula for adjudication and payment of all other claims (except contractual orcombat related) caused by the act or omission of US personnel or by an individualfor which responsible (either the US adjudicates and pays in full or host nationadjudicates and cost shares the payment)Other topics: recognition of US ex gratia claims procedures and establishing timelimits on claims submissions*Duties, Taxes and Other Charges*Importation, exportation and local purchase exemption for US material,equipment, supplies, provisions and other property (also relief for contractoracting by or on behalf of US)*Official vehicles, vessels and aircraft exempt from overflight and air navigation,landing and parking, light and harbor fees, road tolls and other similar charges(reasonable charges for services requested and received, such as for de-icing orfuel, will be paid)Other topics: customs control procedures to include procedures for transfer toothers, and contractor income tax and licensing reliefImportation, Exportation, Use and Exemptions for Personal PropertyExemptions for household goods and privately owned vehiclesExemptions for reasonable quantities for personal use during assigned tourOther topics: limitation on the number of tax-free imported privately ownedvehicles, procedures for transfer to others, procedures for inspection of householdgoods, and cooperation between the parties to prevent abusesPersonal Tax ExemptionExemption from receiving state personal income tax or any other tax based onlegal residence or domicileOther topics: condition for loss of exemption and whether filing requiredMorale, Welfare and Recreation (MWR)Authorization to establish commissaries, exchanges, sales and service activities,MWR facilities, and designation of authorized users


Other topics: circumstances when retirees, personnel on leave in host country,third country and local nationals may be authorized users, rules and proceduresfor contracting with local commercial interests and concessionairesHealth CareBasis for access to host health careOther topics: host nation desire to regulate US medical care, e.g., abortions, andprocedures for autopsies[Note: health care is an integral part of any force and therefore permission of thehost government to provide such care is not required.]Postal ServicesAuthorization to establish a military post officeOther topics: US to operate under US laws and regulations, customs controlprocedures, procedure for host to inspect private mail (not first class letters), andany special use permitted (e.g., by retirees)Use of TransportationPrivately owned vehicles exempt from road tollsUS personnel and dependents exempt from travel tax on airline tickets anddeparture fees from airportsUse of Currency and Banking FacilitiesAuthorization to contract for military banking servicesRelaxation of currency control restrictions and permission of military banks toconvert currency of both parties and third countries for official purposes and forneeds of US personnel and dependentsMilitary banks authorized to provide full-range of servicesOther topics: contracting process accomplished in accordance with US law andregulation, circumstances permitting host country to reject a bank selectedthrough US contracting process (e.g., limited to security reasons), host licensingof military bank (pro forma/one-time), procedures for military bank to acquirehost country currency (e.g., from national bank and rate of exchange)Contractors and Contractor EmployeesDefinition of who qualifiesIdentify specific rights and privileges to be accordedTax and customs reliefOther topics: relief from work permit requirement, local national hiringobligations, dual nationality treatment, third country nationals, and waiver of visarequirement (or expedited procedures)*Local Procurement*Right to accomplish in accordance with US law and regulationOther topics: commitment to use local contractors to maximum extent practicableon a competitive basis


Local ConstructionRules and procedures governingResidual valueUtilization of Local LaborAccept local labor standards but not applicability of local labor laws, rules,regulations, court decisions or rulingsOther topics: preferential local hiring, dual nationality treatment, process forallowing strikes, dispute resolution mechanisms, and wage-setting proceduresDispute ResolutionProcedures for dispute resolution (via a joint commission or through diplomaticchannels)Governing AgreementsPreserving prior agreements not inconsistentProcedures for review and termination or modification of prior agreements*Duration and Termination*Duration period and termination procedures*Ratified (if treaty) or accepted (if executive agreement) in accord with respectiveconstitutional processes*Date of entry into force or effect or event bringing into force or effect (exchangeof instruments)Other topics: authorization statement and signatures, provision for amending orsuspending (special provisions in the event of armed conflict)


APPENDIX 3FORMAL SOFA LISTThe following is a list of formal SOFAs currently in effect. The numerical references are tothe Department of State published Treaties and Other International Acts Series (TIAS), unlessotherwise noted.SOFA Country Comment ReciprocalSOFACounterpartAgreementClassifiedSOFA TextTreatyReferenceAlbania X 12666Antigua andBarbudaEAS 235, 2105,9054Ascension Island 3603, 4296, 6308Australia 5349Austria X 12666Azerbaijan X 12666Bahamas EAS 235, 2099,2105, 6308,11058BahrainXBangladesh Activity specificBelgium X 2846, 12666BeninBermuda Lend Lease EAS 235, 2105,9359Bosnia- Respecting IFORHerzegovinaBotswanaBruneiBulgaria X 12666CambodiaCanada X EAS 235, 2846,3074, 12526,12666ChadXColombia 2496, 8986Cote d’IvoireCroatiaRespecting IFORCzech Republic X 12666Denmark X 2846, 4002,12666Diego Garcia With the UK 6196, 8230Dominica Activity specific 9655DominicanRepublicEgypt 10238Estonia X 12666EthiopiaFederal Republicof YugoslaviaRespectingtransiting IFORFederated States Compact with USof MicronesiaFinland X 12666


SOFA Country Comment ReciprocalSOFACounterpartAgreementClassifiedSOFA TextTreatyReferenceFmr. Yug. Rep.X 12666of Macedonia(FYROM)France 2846, 12666GabonGeorgia X 12666Germany X 2846, 5351, 5352,7759,10367,12666GhanaGreece X 2846, 3649,12321Grenada Activity specificGuatemala Activity specific 3283HaitiHonduras 10890, 11256Hungary X 2846, 12666Iceland 2295Iran Activity specific 7963IsraelXItaly X 2846, 12666Jamaica Lend Lease EAS 235, 2105Japan 4510JordanKazakhstan X 12666KenyaXKorea 6127KuwaitXLatvia X 12666Lithuania X 12666Luxembourg X 2846MadagascarMalawiACRI activityspecificMalaysiaXMaliMarshall Islands Compact with US 11671Moldova X 12666MoroccoClassifiedsupplementMozambiqueThe Netherlands X 2846, 3174,12666New Zealand 4151NigeriaNorway X 2846, 2950,12666OmanPalauPapua NewGuineaPeruCompact with USActivity specificX11612


SOFA Country Comment ReciprocalSOFACounterpartAgreementClassifiedSOFA TextTreatyReferencePhilippinesXPoland X 2846, 12666Portugal Lajes Agreement X 2846, 12666is unpublishedQatarXRwanda No FCJ provisionRomania X 12666RussiaNuclear activityspecificSt. Kitts andNevisSt. Lucia Lend Lease EAS 235, 2105Saudi ArabiaClassified 2812, 5830, 7425supplementSingapore X XSlovak Republic X 12666Slovenia X 12666Solomon IslandsSomaliaXSouth AfricaSpain X X 2846, 12666Sri LankaSudan 10322Sweden X 12666SwitzerlandArms controldelegations7523, 7582,10298, 10056,10414, 11188Tonga 12523Trinidad and Lend Lease EAS 235, 2105TobagoTurkey X 2846, 3020, 3337,6582, 9901,12666Turks and9710, 9711Caicos IslandsUgandaUkraine X 12666Union of SovietSocialistRepublicsIntermediate-Range NuclearForces Treaty(INF) - adoptedby RussiaUnited ArabXEmiratesUnited Kingdom X 2559, 2846, 6196,11537, 12666Uzbekistan X 12666Western SamoaZaire


Although there are 108 formal SOFAs, they have been concluded with 104 countries. FourSOFAs (for Ascension, Bermuda, Diego Garcia and the Turks and Caicos) have been concludedwith the UK for these areas. Regional distribution of SOFA coverage is as follows: for Africa41.18% (21 out of 51 states); for Asia-Pacific 47.37% (18 of 38 states); for Europe 75.93% (41 of54 states); for Latin America 40% (14 of 35 states); and for the Middle East 83.33% (10 of 12states). The worldwide coverage is 54.74% (104 of 190).


APPENDIX 8DECLARATION OF NATIONAL EMERGENCY BY REASON OF CERTAINTERRORIST ATTACKSBy the President of the United States of AmericaA ProclamationA national emergency exists by reason of the terrorist attacks at the World Trade Center, NewYork, New York, and the Pentagon, and the continuing and immediate threat of further attackson the United States.NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, byvirtue of the authority vested in me as President by the Constitution and the laws of the UnitedStates, I hereby declare that the national emergency has existed since September 11, 2001, and,pursuant to the National Emergencies Act (50 U.S.C. 1601 et seq.), I intend to utilize thefollowing statutes: sections 123, 123a, 527, 2201(c), 12006, and 12302 of title 10, United StatesCode, and sections 331, 359, and 367 of title 14, United States Code.This proclamation immediately shall be published in the Federal Register or disseminatedthrough the Emergency Federal Register, and transmitted to the Congress.This proclamation is not intended to create any right or benefit, substantive or procedural,enforceable at law by a party against the United States, its agencies, its officers, or any person.IN WITNESS WHEREOF, I have hereunto set my hand this fourteenth day of September, in theyear of our Lord two thousand one, and of the Independence of the United States of America thetwo hundred and twenty-sixth.GEORGE W. BUSH# # #


APPENDIX 9The Security Council,UN SECURITY COUNCIL RESOLUTION 1368 (12 SEP 01)Reaffirming the principles and purposes of the Charter of the United Nations,Determined to combat by all means threats to international peace and security caused byterrorist acts,Recognizing the inherent right of individual or collective self-defence in accordance withthe Charter,1. Unequivocally condemns in the strongest terms the horrifying terrorist attackswhich took place on 11 September 2001 in New York, Washington (D.C.) andPennsylvania and regards such acts, like any act of international terrorism, as athreat to international peace and security;2. Expresses its deepest sympathy and condolences to the victims and their familiesand to the People and Government of the United States of America;3. Calls on all States to work together urgently to bring to justice the perpetrators,organizers and sponsors of these terrorist attacks and stresses that thoseresponsible for aiding, supporting or harbouring the perpetrators, organizers andsponsors of these acts will be held accountable;4. Calls also on the international community to redouble their efforts to prevent andsuppress terrorist acts including by increased cooperation and full implementationof the relevant international anti-terrorist conventions and Security Councilresolutions, in particular resolution 1269 of 19 October 1999;5. Expresses its readiness to take all necessary steps to respond to the terroristattacks of 11 September 2001, and to combat all forms of terrorism, in accordancewith its responsibilities under the Charter of the United Nations;6. Decides to remain seized of the matter.”


APPENDIX 10The Security Council,UN SECURITY COUNCIL RESOLUTION 1373 (28 SEP 01)Reaffirming its resolutions 1269 (1999) of 19 October 1999 and 1368 (2001) of 12September 2001,Reaffirming also its unequivocal condemnation of the terrorist attacks which took placein New York, Washington, D.C., and Pennsylvania on 11 September 2001, and expressing itsdetermination to prevent all such acts,Reaffirming further that such acts, like any act of international terrorism, constitute athreat to international peace and security,Reaffirming the inherent right of individual or collective self-defence as recognized bythe Charter of the United Nations as reiterated in resolution 1368 (2001),Reaffirming the need to combat by all means, in accordance with the Charter of theUnited Nations, threats to international peace and security caused by terrorist acts,Deeply concerned by the increase, in various regions of the world, of acts of terrorismmotivated by intolerance or extremism,Calling on States to work together urgently to prevent and suppress terrorist acts,including through increased cooperation and full implementation of the relevant internationalconventions relating to terrorism,Recognizing the need for States to complement international cooperation by takingadditional measures to prevent and suppress, in their territories through all lawful means, thefinancing and preparation of any acts of terrorism,Reaffirming the principle established by the General Assembly in its declaration ofOctober 1970 (resolution 2625 (XXV)) and reiterated by the Security Council in its resolution1189 (1998) of 13 August 1998, namely that every State has the duty to refrain from organizing,instigating, assisting or participating in terrorist acts in another State or acquiescing in organizedactivities within its territory directed towards the commission of such acts,Acting under Chapter VII of the Charter of the United Nations,1. Decides that all States shall:(a)Prevent and suppress the financing of terrorist acts;


(b)(c)(d)Criminalize the wilful provision or collection, by any means, directly orindirectly, of funds by their nationals or in their territories with theintention that the funds should be used, or in the knowledge that they areto be used, in order to carry out terrorist acts;Freeze without delay funds and other financial assets or economicresources of persons who commit, or attempt to commit, terrorist acts orparticipate in or facilitate the commission of terrorist acts; of entitiesowned or controlled directly or indirectly by such persons; and of personsand entities acting on behalf of, or at the direction of such persons andentities, including funds derived or generated from property owned orcontrolled directly or indirectly by such persons and associated personsand entities;Prohibit their nationals or any persons and entities within their territoriesfrom making any funds, financial assets or economic resources orfinancial or other related services available, directly or indirectly, for thebenefit of persons who commit or attempt to commit or facilitate orparticipate in the commission of terrorist acts, of entities owned orcontrolled, directly or indirectly, by such persons and of persons andentities acting on behalf of or at the direction of such persons;2. Decides also that all States shall:(a)(b)(c)(d)(e)Refrain from providing any form of support, active or passive, to entitiesor persons involved in terrorist acts, including by suppressing recruitmentof members of terrorist groups and eliminating the supply of weapons toterrorists;Take the necessary steps to prevent the commission of terrorist acts,including by provision of early warning to other States by exchange ofinformation;Deny safe haven to those who finance, plan, support, or commit terroristacts, or provide safe havens;Prevent those who finance, plan, facilitate or commit terrorist acts fromusing their respective territories for those purposes against other States ortheir citizens;Ensure that any person who participates in the financing, planning,preparation or perpetration of terrorist acts or in supporting terrorist acts isbrought to justice and ensure that, in addition to any other measuresagainst them, such terrorist acts are established as serious criminaloffences in domestic laws and regulations and that the punishment dulyreflects the seriousness of such terrorist acts;


(f)(g)Afford one another the greatest measure of assistance in connection withcriminal investigations or criminal proceedings relating to the financing orsupport of terrorist acts, including assistance in obtaining evidence in theirpossession necessary for the proceedings;Prevent the movement of terrorists or terrorist groups by effective bordercontrols and controls on issuance of identity papers and travel documents,and through measures for preventing counterfeiting, forgery or fraudulentuse of identity papers and travel documents;3. Calls upon all States to:(a)(b)(c)(d)(e)(f)(g)Find ways of intensifying and accelerating the exchange of operationalinformation, especially regarding actions or movements of terroristpersons or networks; forged or falsified travel documents; traffic in arms,explosives or sensitive materials; use of communications technologies byterrorist groups; and the threat posed by the possession of weapons ofmass destruction by terrorist groups;Exchange information in accordance with international and domestic lawand cooperate on administrative and judicial matters to prevent thecommission of terrorist acts;Cooperate, particularly through bilateral and multilateral arrangements andagreements, to prevent and suppress terrorist attacks and take actionagainst perpetrators of such acts;Become parties as soon as possible to the relevant internationalconventions and protocols relating to terrorism, including the InternationalConvention for the Suppression of the Financing of Terrorism of 9December 1999;Increase cooperation and fully implement the relevant internationalconventions and protocols relating to terrorism and Security Councilresolutions 1269 (1999) and 1368 (2001);Take appropriate measures in conformity with the relevant provisions ofnational and international law, including international standards of humanrights, before granting refugee status, for the purpose of ensuring that theasylum seeker has not planned, facilitated or participated in thecommission of terrorist acts;Ensure, in conformity with international law, that refugee status is notabused by the perpetrators, organizers or facilitators of terrorist acts, and


that claims of political motivation are not recognized as grounds forrefusing requests for the extradition of alleged terrorists;4. Notes with concern the close connection between international terrorism andtransnational organized crime, illicit drugs, money-laundering, illegal armstrafficking,and illegal movement of nuclear, chemical, biological and otherpotentially deadly materials, and in this regard emphasizes the need to enhancecoordination of efforts on national, subregional, regional and international levelsin order to strengthen a global response to this serious challenge and threat tointernational security;5. Declares that acts, methods, and practices of terrorism are contrary to thepurposes and principles of the United Nations and that knowingly financing,planning and inciting terrorist acts are also contrary to the purposes and principlesof the United Nations;6. Decides to establish, in accordance with rule 28 of its provisional rules ofprocedure, a Committee of the Security Council, consisting of all the members ofthe Council, to monitor implementation of this resolution, with the assistance ofappropriate expertise, and calls upon all States to report to the Committee, nolater than 90 days from the date of adoption of this resolution and thereafteraccording to a timetable to be proposed by the Committee, on the steps they havetaken to implement this resolution;7. Directs the Committee to delineate its tasks, submit a work programme within 30days of the adoption of this resolution, and to consider the support it requires, inconsultation with the Secretary-General;8. Expresses its determination to take all necessary steps in order to ensure the fullimplementation of this resolution, in accordance with its responsibilities under theCharter;9. Decides to remain seized of this matter


APPENDIX 11NORTH ATLANTIC TREATY, (AMENDED)63 STAT. 2241; TIAS 1964; 4 BEVANS 828; 34 UNTS 243. LFR V5 P363Signed at Washington, April 4, 1949Ratification advised by the Senate July 21, 1949Ratified by the President July 25, 1949Proclaimed by the President and Entered into force August 24, 1949; as amended February 15,1952, \2\ May 5, 1955, \3\ and May 29, 1982 \4\TEXTThe Parties to this Treaty reaffirm their faith in the purposes and principles of the Charter of theUnited Nations and their desire to live in peace with all peoples and all governments.They are determined to safeguard the freedom, common heritage and civilization of theirpeoples, founded on the principles of democracy, individual liberty and the rule of law.They seek to promote stability and well-being in the North Atlantic area.They are resolved to unite their efforts for collective defense and for the preservation of peaceand security.They therefore agree to this North Atlantic Treaty:Article 1The Parties undertake, as set forth in the Charter of the United Nations, to settle any internationaldisputes in which they may be involved by peaceful means in such a manner that internationalpeace and security, and justice, are not endangered, and to refrain in their international relationsfrom the threat or use of force in any manner inconsistent with the purposes of the UnitedNations.Article 2The Parties will contribute toward the further development of peaceful and friendly internationalrelations by strengthening their free institutions, by bringing about a letter understanding of theprinciples upon which these institutions are founded, and by promoting conditions of stabilityand well- being. They will seek to eliminate conflict in their international economic policies andwill encourage economic collaboration between any or all of them.


Article 3In order more effectively to achieve the objectives of this Treaty, the Parties, separately andjointly, by means of continuous and effective self- help and mutual aid, will maintain anddevelop their individual and collective capacity to resist armed attack.Article 4The Parties will consult together whenever, in the opinion of any of them, the territorial integrity,political independence or security of any of the Parties is threatened.Article 5The Parties agree that an armed attack against one or more of them in Europe or North Americashall be considered an attack against them all; and consequently they agree that, if such an armedattack occurs, each of them, in exercise of the right of individual or collective self-defenserecognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties soattacked by taking forthwith, individually and in concert with the other Parties, such action as itdeems necessary, including the use of armed force, to restore and maintain the security of theNorth Atlantic area.Any such armed attack and all measures taken as a result thereof shall immediately be reportedto the Security Council. Such measures shall be terminated when the Security Council has takenthe measures necessary to restore and maintain international peace and security.Article 6For the purpose of Article 5, an armed attack on one or more of the Parties is deemed to includean armed attack--(i)(ii)on the territory of any of the Parties in Europe or North America, on the AlgerianDepartments of France, on the territory of Turkey or the islands under the jurisdiction ofany of the Parties in the North Atlantic area north of the Tropic of Cancer;on the forces, vessels or aircraft of any of the Parties, when in or over these territories orany other area in Europe in which occupation forces of any of the Parties were stationedon the date when the Treaty entered into force or the Mediterranean Sea or the NorthAtlantic area north of the Tropic of Cancer.Article 7The Treaty does not affect, and shall not be interpreted as affecting in any way the rights andobligations under the Charter of the Parties which are members of the United Nations, or theprimary responsibility of the Security Council for the maintenance of international peace andsecurity.


Article 8Each Party declares that none of the international engagements now in force between it and anyother of the Parties or any third state is in conflict with the provisions of this Treaty, andundertakes not to enter into any international engagements in conflict with this Treaty.Article 9The Parties hereby establish a council, on which each of them shall be represented, to considermatters concerning the implementation of this Treaty. The council shall be so organized as to beable to meet promptly at any time. The council shall set up such subsidiary bodies as may benecessary; in particular it shall establish immediately a defense committee which shallrecommend measures for the implementation of Articles 3 and 5.Article 10The Parties may, by unanimous agreement, invite any other European state in a position tofurther the principles of this Treaty and to contribute to the security of the North Atlantic area toaccede to this Treaty. Any state so invited may become a party to the Treaty by depositing itsinstrument of accession with the Government of the United States of America. The Governmentof the United States of America will inform each of the Parties of the deposit of each suchinstrument of accession.Article 11This Treaty shall be ratified and its provisions carried out by the Parties in accordance with theirrespective constitutional processes. The instruments of ratification shall be deposited as soon aspossible with the Government of the United States of America, which will notify all the othersignatories of each deposit. The Treaty shall enter into force between the states which haveratified it as soon as the ratification of the majority of the signatories, including the ratificationsof Belgium, Canada, France, Luxembourg, the Netherlands, the United Kingdom and the UnitedStates, have been deposited and shall come into effect with respect to other states on the date ofdeposit of their ratifications.Article 12After the Treaty has been in force for ten years, or at any time thereafter, the Parties shall, if anyof them so requests, consult together for the purpose of reviewing the Treaty, having regard forthe factors then affecting peace and security in the North Atlantic area, including thedevelopment of universal as well as regional arrangements under the Charter of the UnitedNations for the maintenance of international peace and security.Article 13After the Treaty has been in force for twenty years, any Party may cease to be a party one yearafter its notice of denunciation has been given to the Government of the United States of


America, which will inform the Governments of the other Parties of the deposit of each notice ofdenunciation.Article 14This Treaty, of which the English and French texts are equally authentic, shall be deposited inthe Archives of the Government of the United States of America. Duly certified copies thereofwill be transmitted by that Government to the Governments of the other signatories.In witness whereof, the undersigned Plenipotentiaries have signed this Treaty.Done at Washington, the fourth day of April, 1949.


APPENDIX 12SECURITY TREATY BETWEEN AUSTRALIA, NEW ZEALAND, ANDTHE UNITED STATES OF AMERICASigned at San Francisco, 1 September 1951Entry into force generally: 29 April 1952TEXTThe Parties to this treaty,REAFFIRMING their faith in the purposes and principles of the Charter of the United Nationsand their desire to live in peace with all peoples and all Governments, and desiring to strengthenthe fabric of peace in the Pacific Area,NOTING that the United States already has arrangements pursuant to which its armed forces arestationed in the Philippines, and has armed forces and administrative responsibilities in theRyukyus, and upon the coming into force of the Japanese Peace Treaty may also station armedforces in and about Japan to assist in the preservation of peace and security in the Japan Area,RECOGNIZING that Australia and New Zealand as members of the British Commonwealth ofNations have military obligations outside as well as within the Pacific Area,DESIRING to declare publicly and formally their sense of unity, so that no potential aggressorcould be under the illusion that any of them stand alone in the Pacific Area, andDESIRING further to coordinate their efforts for collective defense for the preservation of peaceand security pending the development of a more comprehensive system of regional security inthe Pacific Area,THEREFORE DECLARE AND AGREE as follows:Article IThe Parties undertake, as set forth in the Charter of the United Nations, to settle any internationaldisputes in which they may be involved by peaceful means in such a manner that internationalpeace and security and justice are not endangered and to refrain in their international relationsfrom the threat or use of force in any manner inconsistent with the purposes of the UnitedNations.


Article IIIn order more effectively to achieve the objective of this Treaty the Parties separately and jointlyby means of continuous and effective self-help and mutual aid will maintain and develop theirindividual and collective capacity to resist armed attack.Article IIIThe Parties will consult together whenever in the opinion of any of them the territorial integrity,political independence or security of any of the Parties is threatened in the Pacific.Article IVEach Party recognizes that an armed attack in the Pacific Area on any of the Parties would bedangerous to its own peace and safety and declares that it would act to meet the common dangerin accordance with its constitutional processes.Any such armed attack and all measures taken as a result thereof shall be immediately reportedto the Security Council of the United Nations. Such measures shall be terminated when theSecurity Council has taken the measures necessary to restore and maintain international peaceand security.Article VFor the purpose of Article IV, an armed attack on any of the Parties is deemed to include anarmed attack on the metropolitan territory of any of the Parties, or on the island territories underits jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in the Pacific.Article VIThis Treaty does not affect and shall not be interpreted as affecting in any way the rights andobligations of the Parties under the Charter of the United Nations or the responsibility of theUnited Nations for the maintenance of international peace and security.Article VIIThe Parties hereby establish a Council, consisting of their Foreign Ministers or their Deputies, toconsider matters concerning the implementation of this Treaty. The Council should be soorganized as to be able to meet at any time.Article VIIIPending the development of a more comprehensive system of regional security in the PacificArea and the development by the United Nations of more effective means to maintaininternational peace and security, the Council, established by Article VII, is authorized tomaintain a consultative relationship with States, Regional Organizations, Associations of States


or other authorities in the Pacific Area in a position to further the purposes of this Treaty and tocontribute to the security of that Area.Article IXThis Treaty shall be ratified by the Parties in accordance with their respective constitutionalprocesses. The instruments of ratification shall be deposited as soon as possible with theGovernment of Australia, which will notify each of the other signatories of such deposit. TheTreaty shall enter into force as soon as the ratifications of the signatories have been deposited.[1]Article XThis Treaty shall remain in force indefinitely. Any Party may cease to be a member of theCouncil established by Article VII one year after notice has been given to the Government ofAustralia, which will inform the Governments of the other Parties of the deposit of such notice.Article XIThis Treaty in the English language shall be deposited in the archives of the Government ofAustralia. Duly certified copies thereof will be transmitted by that Government to theGovernments of each of the other signatories.IN WITNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.DONE at the city of San Francisco this first day of September, 1951.FOR AUSTRALIA:[Signed:]PERCY C SPENDERFOR NEW ZEALAND:[Signed:]C A BERENDSENFOR THE UNITED STATES OF AMERICA:[Signed:]DEAN ACHESONJOHN FOSTER DULLESALEXANDER WILEYJOHN J SPARKMAN[1] Instruments of ratification were deposited for Australia, New Zealand and the United Statesof America 29 April 1952, on which date the Treaty entered into force.


APPENDIX 13MUTUAL DEFENSE TREATY BETWEEN THE UNITED STATES OF AMERICA ANDTHE REPUBLIC OF KOREA,Signed at Washington October 1, 1953Ratification advised by the Senate of the United States of America, with an understanding,January 26, 1954 Ratified by the President of the United States of America, subject to the saidunderstanding, February 5, 1954 Ratified by the Republic of Korea January 29, 1954Ratifications exchanged in Washington, November 17, 1954Proclaimed by the President of the United States of America December 1, 1954Entered into force November 17, 1954TEXTThe Parties to this Treaty, Reaffirming their desire to live in peace with all peoples and allgovernments, and desiring to strengthen the fabric of peace in the Pacific area,Desiring to declare publicly and formally their common determination to defend themselvesagainst external armed attack so that no potential aggressor could be under the illusion that eitherof them stands alone in the Pacific area,Desiring further to strengthen their efforts for collective defense for the preservation of peaceand security pending the development of a more comprehensive and effective system of regionalsecurity in the Pacific area.Have agreed as follows:Article IThe Parties undertake to settle any international disputes in which they may be involved bypeaceful means in such a manner that international peace and security and justice are notendangered and to refrain in their international relations from the threat or use of force in anymanner inconsistent with the Purposes of the United Nations, or obligations assumed by anyParty toward the United Nations.Article IIThe Parties will consult together whenever, in the opinion of either of them, the politicalindependence or security of either of the Parties is threatened by external armed attack.Separately and jointly, by self help and mutual aid, the Parties will maintain and developappropriate means to deter armed attack and will take suitable measures in consultation andagreement to implement this Treaty and to further its purposes.


Article IIIEach Party recognizes that an armed attack in the Pacific area on either of the Parties interritories now under their respective administrative control, or hereafter recognized by one ofthe Parties as lawfully brought under the administrative control of the other, would be dangerousto its own peace and safety and declares that it would act to meet the common danger inaccordance with its constitutional processes.Article IVThe Republic of Korea grants, and the United States of America accepts, the right to disposeUnited States land, air and sea forces in and about the territory of the Republic of Korea asdetermined by mutual agreement.Article VThis Treaty shall be ratified by the United States of America and the Republic of Korea inaccordance with their respective constitutional processes and will come into force wheninstruments of ratification thereof have been exchanged by them at Washington.Article VIThis Treaty shall remain in force indefinitely. Either Party may terminate it one year after noticehas been given to the other Party.In witness whereof, the undersigned Plenipotentiaries have signed this Treaty.Done in duplicate at Washington, in the English and Korean languages, this first day of October1953.Understanding as Stated in the Proclamation Whereas the Senate of the United States of Americaby their resolution of January 26, 1954, two-thirds of the Senators present concurring therein, didadvise and consent to the ratification of the said Treaty with the following understanding:“It is the understanding of the United States that neither party is obligated, underArticle III of the above Treaty, to come to the aid of the other except in case of anexternal armed attack against such party; nor shall anything in the present Treatybe construed as requiring the United States to give assistance to Korea except inthe event of an armed attack against territory which has been recognized by theUnited States as lawfully brought under the administrative control of the Republicof Korea.”


APPENDIX 14TREATY OF MUTUAL COOPERATION AND SECURITY BETWEEN THE UNITEDSTATES OF AMERICA AND JAPAN11 UST 1632Signed at Washington January 19, 1960Ratification advised by the Senate of the United States of America June 22, 1960Ratified by the President of the United States of America June 22, 1960Ratified by Japan June 21, 1960Ratifications exchanged at Tokyo June 23, 1960Proclaimed by the President of the United States of America June 27, 1960Entered into force June 23, 1960TEXTThe United States of America and Japan, Desiring to strengthen the bonds of peace andfriendship traditionally existing between them, and to uphold the principles of democracy,individual liberty, and the rule of law.Desiring further to encourage closer economic cooperation between them and to promoteconditions of economic stability and well-being in their countries.Reaffirming their faith in the purposes and principles of the Charter of the United Nations, andtheir desire to live in peace with all peoples and all governments,Recognizing that they have the inherent right of individual or collective self-defense as affirmedin the Charter of the United Nations,Considering that they have a common concern in the maintenance of international peace andsecurity in the Far East,Having resolved to conclude a treaty of mutual cooperation and security,Therefore agree as follows:Article IThe Parties undertake, as set forth in the Charter of the United Nations, to settle any internationaldisputes in which they may be involved by peaceful means in such a manner that internationalpeace and security and justice are not endangered and to refrain in their international relationsfrom the threat or use of force against the territorial integrity or political independence of anystate, or in any other manner inconsistent with the purposes of the United Nations. The Partieswill endeavor in concert with other peace-loving countries to strengthen the United Nations sothat its mission of maintaining international peace and security may be discharged moreeffectively.


Article IIThe Parties will contribute toward the further development of peaceful and friendly internationalrelations by strengthening their free institutions, by bringing about a better understanding of theprinciples upon which these institutions are founded, and by promoting conditions of stabilityand well- being. They will seek to eliminate conflict in their international economic policies andwill encourage economic collaboration between them.Article IIIThe Parties, individually and in cooperation with each other, by means of continuous andeffective self-help and mutual aid will maintain and develop, subject to their constitutionalprovisions, their capacities to resist armed attack.Article IVThe Parties will consult together from time to time regarding the implementation of this Treaty,and, at the request of either Party, whenever the security of Japan or international peace andsecurity in the Far East is threatened.Article VEach Party recognizes that an armed attack against either Party in the territories under theadministration of Japan would be dangerous to its own peace and safety and declares that itwould act to meet the common danger in accordance with its constitutional provisions andprocesses.Any such armed attack and all measures taken as a result thereof shall be immediately reportedto the Security Council of the United Nations in accordance with the provisions of Article 51 ofthe Charter. Such measures shall be terminated when the Security Council has taken themeasures necessary to restore and maintain international peace and security.Article VIFor the purpose of contributing to the security of Japan and the maintenance of internationalpeace and security in the Far East, the United States of America is granted the use by its land, airand naval forces of facilities and areas in Japan.The use of these facilities and areas as well as the status of United States armed forces in Japanshall be governed by a separate agreement, \2\ replacing the Administrative Agreement \3\ underArticle III of the Security Treaty \4\ between the United States of America and Japan, signed atTokyo on February 28, 1952, as amended, and by such other arrangements as may be agreedupon.


Article VIIThis Treaty does not affect and shall not be interpreted as affecting in any way the rights andobligations of the Parties under the Charter of the United Nations or the responsibility of theUnited Nations for the maintenance of international peace and security.Article VIIIThis Treaty shall be ratified by the United States of America and Japan in accordance with theirrespective constitutional processes and will enter into force on the date on which the instrumentsof ratification thereof have been exchanged by them in Tokyo.


Article IXThe Security Treaty between the United States of America and Japan signed at the city of SanFrancisco on September 8, 1951 shall expire upon the entering into force of this Treaty.Article X This Treaty shall remain in force until in the opinion of the Governments of the UnitedStates of America and Japan there shall have come into force such United Nations arrangementsas will satisfactorily provide for the maintenance of international peace and security in the Japanarea.However, after the Treaty has been in force for ten years, either Party may give notice to theother Party of its intention to terminate the Treaty, in which case the Treaty shall terminate oneyear after such notice has been given.


APPENDIX 15INTER-AMERICAN TREATY OF RECIPROCAL ASSISTANCE (RIO TREATY)62 STAT. 1681; TIAS 1838; 4 BEVANS 559; 21 UNTS 77. LFR V5 P293.Opened for signature at Rio de Janeiro September 2, 1947Ratification advised by the Senate of the United States of America December 8, 1947Ratified by the President of the United States of America December 12, 1947Ratification of the United States of America deposited with the Pan American Union December30, 1947 Proclaimed by the President of the United States of America December 9, 1948Entered into force December 3, 1948TEXTIn the name of their Peoples, the Governments represented at the Inter- American Conference forthe Maintenance of Continental Peace and Security, desirous of consolidating and strengtheningtheir relations of friendship and good neighborliness, andConsidering: That Resolution VIII of the Inter-American Conference on Problems of War andPeace, which met in Mexico City, recommended the conclusion of a treaty to prevent and repelthreats and acts of aggression against any of the countries of America;That the High Contracting Parties reiterate their will to remain united in an inter-Americansystem consistent with the purposes and principles of the United Nations, and reaffirm theexistence of the agreement which they have concluded concerning those matters relating to themaintenance of international peace and security which are appropriate for regional action;That the High Contracting Parties reaffirm their adherence to the principles of inter-Americansolidarity and cooperation, and especially to those set forth in the preamble and declarations ofthe Act of Chapultepec, all of which should be understood to be accepted as standards of theirmutual relations and as the juridical basis of the Inter-American System;That the American States propose, in order to improve the procedures for the pacific settlementof their controversies, to conclude the treaty concerning the "Inter-American Peace System"envisaged in Resolutions IX and XXXIX of the Inter-American Conference on Problems of Warand Peace.That the obligation of mutual assistance and common defense of the American Republics isessentially related to their democratic ideals and to their will to cooperate permanently in thefulfillment of the principles and purposes of a policy of peace;That the American regional community affirms as a manifest trust that juridical organization is anecessary prerequisite of security and peace, and that peace is founded on justice and moral orderand, consequently, on the international recognition and protection of human rights and freedoms,


on the indispensable well-being of the people, and on the effectiveness of democracy for theinternational realization of justice and security;Have resolved, in conformity with the objectives stated above, to conclude the following Treaty,in order to assure peace, through adequate means, to provide for effective reciprocal assistance tomeet armed attacks against any American State, and in order to deal with threats of aggressionagainst any of them:Article 1The High Contracting Parties formally condemn war and undertake in their internationalrelations not to resort to the threat or the use of force in any manner inconsistent with theprovisions of the Charter of the United Nations or of this Treaty.Article 2As a consequence of the principle set forth in the preceding Article, the High Contracting Partiesundertake to submit every controversy which may arise between them to methods of peacefulsettlement and to endeavor to settle any such controversy among themselves by means of theprocedures in force in the Inter-American System before referring it to the General Assembly orthe Security Council of the United Nations.Article 31. The High Contracting Parties agree that an armed attack by any State against anAmerican State shall be considered as an attack against all the American States and,consequently, each one of the said Contracting Parties undertakes to assist in meeting theattack in the exercise of the inherent right of individual or collective self-defenserecognized by Article 51 \2\ of the Charter of the United Nations.2. On the request of the State or States directly attacked and until the decision of the Organof Consultation of the Inter-American System, each one of the Contracting Parties maydetermine the immediate measures which it may individually take in fulfillment of theobligation contained in the preceding paragraph and in accordance with the principle ofcontinental solidarity. The Organ of Consultation shall meet without delay for thepurpose of examining those measures and agreeing upon the measures of a collectivecharacter that should be taken.3. The provisions of this Article shall be applied in case of any armed attack which takesplace within the region described in Article 4 or within the territory of an American State.When the attack takes place outside of the said areas, the provisions of Article 6 shall beapplied.4. Measures of self-defense provided for under this Article may be taken until the SecurityCouncil of the United Nations has taken the measures necessary to maintain internationalpeace and security.


Article 4The region to which this Treaty refers is bounded as follows: beginning at the North Pole; thencedue south to a point 74 degrees north latitude, 10 degrees west longitude; thence by a rhumb lineto a point 47 degrees 30 minutes north latitude, 50 degrees west longitude; thence by a rhumbline to a point 35 degrees north latitude, 60 degrees west longitude; thence due south to a point20 degrees north latitude; thence by a rhumb line to a point 5 degrees north latitude, 24 degreeswest longitude; thence due south to the South Pole; thence due north to a point 30 degrees southlatitude, 90 degrees west longitude; thence by a rhumb line to a point on the Equator at 97degrees west longitude; thence by a rhumb line to a point 15 degrees north latitude, 120 degreeswest longitude; thence by a rhumb line to a point 50 degrees north latitude, 170 degrees eastlongitude; thence due north to a point in 54 degrees north latitude; thence by a rhumb line to apoint 65 degrees 30 minutes north latitude, 168 degrees 58 minutes 5 seconds west longitude;thence due north to the North Pole.Article 5The High Contracting Parties shall immediately send to the Security Council of the UnitedNations, in conformity with Articles 51 \2\ and 54 \3\ of the Charter of the United Nations,complete information concerning the activities undertaken or in contemplation in the exercise ofthe right of self-defense or for the purpose of maintaining inter-American peace and security.Article 6If the inviolability or the integrity of the territory or the sovereignty or political independence ofany American State should be affected by an aggression which is not an armed attack or by anextra-continental or intra- continental conflict, or by any other fact or situation that mightendanger the peace of America, the Organ of Consultation shall meet immediately in order toagree on the measures which must be taken in case of aggression to assist the victim of theaggression or, in any case, the measures which should be taken for the common defense and forthe maintenance of the peace and security of the Continent.Article 7In the case of a conflict between two or more American States, without prejudice to the right ofself-defense in conformity with Article 51 of the Charter of the United Nations, the HighContracting Parties, meeting in consultation shall call upon the contending States to suspendhostilities and restore matters to the status quo ante bellum, and shall take in addition all othernecessary measures to reestablish or maintain inter-American peace and security and for thesolution of the conflict by peaceful means. The rejection of the pacifying action will beconsidered in the determination of the aggressor and in the application of the measures which theconsultative meetings may agree upon.


Article 8For the purposes of this Treaty, the measures on which the Organ of Consultation may agree willcomprise one or more of the following: recall of chiefs of diplomatic missions; breaking ofdiplomatic relation; breaking of consular relations; partial or complete interruption of economicrelations or of rail, sea, air, postal, telegraphic, telephonic, and radiotelephonic orradiotelegraphic communications; and use of armed force.Article 9In addition to other acts which the Organ of Consultation may characterize an aggression, thefollowing shall be considered as such:a. Unprovoked armed attack by a State against the territory, the people, or the land, sea or airforces of another State;b. Invasion, by the armed forces of a State, of the territory of an American State, through thetrespassing of boundaries demarcated in accordance with a treaty, judicial decision, or arbitralaward, or, in the absence of frontiers thus demarcated, invasion affecting a region which is underthe effective jurisdiction of another State.Article 10None of the provisions of this Treaty shall be construed as impairing the rights and obligations ofthe High Contracting Parties under the Charter of the United Nations.Article 11The consultations to which this Treaty refers shall be carried out by means of the Meetings ofMinisters of Foreign Affairs of the American Republics which have ratified the Treaty, or in themanner or by the organ which in the future may be agreed upon.Article 12The Governing Board of the Pan American Union may act provisionally as an organ ofconsultation until the meeting of the Organ of Consultation referred to in the preceding Articletakes place.Article 13The consultations shall be initiated at the request addressed to the Governing Board of the PanAmerican Union by any of the Signatory States which has ratified the Treaty.Article 14In the voting referred to in this Treaty only the representatives of the Signatory States whichhave ratified the Treaty may take part.


Article 15The Governing Board of the Pan American Union shall act in all matters concerning this Treatyas an organ of liaison among the Signatory States which have ratified this Treaty and betweenthese States and the United Nations.Article 16The decisions of the Governing Board of the Pan American Union referred to in Articles 13 and15 above shall be taken by an absolute majority of the Members entitled to vote.Article 17The Organ of Consultation shall take its decisions by a vote of two-thirds of the Signatory Stateswhich have ratified the Treaty.Article 18In the case of a situation or dispute between American States, the parties directly interested shallbe excluded from the voting referred to in two preceding Articles.Article 19To constitute a quorum in all the meetings referred to in the previous Articles, it shall benecessary that the number of States represented shall be at least equal to the number of votesnecessary for the taking of the decision.


Article 20Decisions which require the application of the measures specified in Article 8 shall be bindingupon all the Signatory States which have ratified this Treaty, with the sole exception that noState shall be required to use armed force without its consent.Article 21The measures agreed upon by the Organ of Consultation shall be executed through theprocedures and agencies now existing or those which may in the future be established.Article 22This Treaty shall come into effect between the States which ratify it as soon as the ratification oftwo-thirds of the Signatory States have been deposited.Article 23This Treaty is open for signature by the American States at the city of Rio de Janeiro, and shallbe ratified by the Signatory States as soon as possible in accordance with their respectiveconstitutional processes. The ratifications shall be deposited with the Pan American Union,which shall notify the Signatory States of each deposit. Such notification shall be considered asan exchange of ratifications.Article 24The present Treaty shall be registered with the Secretariat of the United Nations through the PanAmerican Union, when two-thirds of the Signatory States have deposited their ratifications.Article 25This Treaty shall remain in force indefinitely, but may be denounced by any High ContractingParty by a notification in writing to the Pan American Union, which shall reform all the otherHigh Contracting Parties of each notification of denunciation received. After the expiration oftwo years from the date of the receipt by the Pan American Union of a notification ofdenunciation by any High Contracting Party, the present Treaty shall cease to be in force andwith respect to such State, but shall remain in full force and effect with respect to all the otherHigh Contracting Parties.Article 26The principles and fundamental provisions of this Treaty shall be incorporated in the OrganicPact of the Inter-American System.


In witness thereof, the undersigned Plenipotentiaries, having deposited their full powers found tobe in due and proper form, sign this Treaty on behalf of their respective Governments, on thedates appearing opposite their signatures.Done in the city of Rio de Janeiro, in four texts respectively in the English, French, Portugueseand Spanish languages, on the second of September nineteen hundred forty-seven.Reservation of Honduras: The Delegation of Honduras, in signing the present Treaty and inconnection with Article 9, section (b), does so with the reservation that the boundary betweenHonduras and Nicaragua is definitely demarcated by the Joint Boundary Commission of nineteenhundred and nineteen hundred and one, starting from a point in the Gulf of Fonseca, in thePacific Ocean, to Portillo de Teotecacinte and, from this point to the Atlantic, by the line that HisMajesty the King of Spain's arbitral award established on the twenty third of December ofnineteen hundred and six.A Protocol of Amendment to this Treaty was signed at San Jose 1, Costa Rica July 26, 1975, andratified by the United States on April 17, 1978. It was however, never ratified by the necessarytwo-thirds of the member states.


APPENDIX 16SAMPLE FORCE PROTECTION GUIDANCE PLANREFERENCES1. DoDD 2000.12, Department of Defense Antiterrorism/Force Protection (AT/FP) Program,13 April 19992. DoD Handbook 2000.12-H, Protection of DoD Personnel and Activities Against Acts ofTerrorism3. DoDI 2000.16, DoD Antiterrorism Standards, 14 June 20014. USCINCXXX OPERATIONS ORDER 98-01, Antiterrorism/Force Protection5. AFI 31-210, Air Force Antiterrorism/Force Protection Program Standards, 1 August 19991. GENERALa. This document is intended as a quick reference source emphasizing force protectionconcepts addressed in the above references as well as discuss specific force protectionconsiderations for our personnel performing TDY missions to foreign countries. Forceprotection considerations will be factored into all aspects of planning and execution oftemporary duty (TDY) assignments. TDY personnel should be prepared to implementantiterrorist security measures, as well as protective measures against criminal andmedical threats, civil disturbance, effects of destructive weather, and environmentaldisasters. The senior member of a TDY group is responsible for knowing the location ofall accompanying personnel at any given time.b. Prior to any TDY assignment to an overseas location, personnel will obtain specificinformation regarding the potential terrorist, criminal, and health threat at the TDYlocation through consultation with Air Force Office of Special Investigation (AF/OSI),Intel, and public health offices.2. SPECIFIC FORCE PROTECTION MEASURES/CONSIDERATIONSa. Personnel should pack appropriate civilian clothing without unit patches, e.g., jacketshowing past duty in Korea or any other indicia that the wearer is clearly connected withUS forces.b. When traveling at the TDY location, use the safest approved transportation means,preferably one that does not draw attention to you as a foreigner. Consider use ofAmerican Embassy (AmEmbassy) approved vehicles and drivers, approved local taxiservice, or private rental cars. Depending on the threat assessment for a particularlocation, care should be exercised when using any mode of public transportation.c. Vary your routes and travel times for work and leisure activities including routes withinyour hotel, e.g., occasionally use the stairs instead of the elevator. Whether in vehicles or


on foot, personnel should travel in groups of at least two persons when possible. Travelin large groups should be avoided.d. Billeting(1) When billeting is not provided by your TDY host, billeting arrangements should bemade at an AmEmbassy approved hotel if possible.(2) When possible, members of one group should be housed on the same floor.(3) Be aware of hotel security measures. Note security guard locations, secureentrances/exits. If you are not comfortable with security at the chosen hotel, requestto move to a safer area of the hotel or arrange to move to a more secure hotel. Secureyour room at all times.(4) Be aware of fire protection considerations including the location of fire escapes, firealarms, and fire extinguishers.e. Water and food consumption: Make maximum use of bottled water. Eat at AmEmbassyapproved dining facilities when possible.f. Coordinate emergency medical care with the AmEmbassy.g. Required Actions Prior To or Immediately Upon Arrival.(1) Plan your response to emergency situations whether terrorist acts, criminal acts, orother emergencies such as a fire or earthquake.(2) Identify group meeting points in and near your hotel and work location wherepersonnel can meet should an emergency situation arise.(3) Identify safehavens in your local area where you can go for assistance. Chooseplaces where terrorists or criminals would not likely follow. While the AmEmbassymay be the best safehaven, alternate choices may be the British Embassy (or anyother friendly embassy), police stations, fire departments or military bases. Ensureyou identify alternate routes to the safehavens as well as planned modes oftransportation to those locations.(4) Establish specific code words to direct group members to report to various locationsin case of an emergency, e.g., return to hotel, seek safehaven at the AmEmbassy, seeksafehaven at the British Embassy or other friendly embassy.(5) Be familiar with any Status of Forces (SOFA) Agreements applicable to yourlocation. Any time you become involved in an incident, notify the AmEmbassy assoon as possible.


(6) Carry a list of local emergency phone numbers with you at all times, as well as theaddress and phone number of your hotel. Note the location of available telephones inyour area and ensure you have the appropriate coins/phone card to make calls.3. If you have any questions, please contact Colonel XXXXXXXX or Major XXXXXXXX ofmy International Operations Law Division, DSN XXX-XXXX/Commercial (include countrycode if outside CONUS) XXXXXXXXXXXXXX.AttachmentPhone # Smart Card FormXXXXXXXXXX, Colonel, USAFStaff Judge AdvocatePhone # Smart Card Form. Distribute copies prior to deployment/TDY with as muchinformation included as possible.EMERGENCY TELEPHONE NUMBERSAmerican Embassy:British Embassy:Police Emergency:Fire Emergency:Hotel:MAJCOM EmergencyAction Cell:Wing Command Post:________________________________________________________________________________________________________________________________________________________________________


APPENDIX 17MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENT OF STATEAND THE DEPARTMENT OF DEFENSE ON SECURITY OF DOD ELEMENTS ANDPERSONNEL IN FOREIGN AREAS(PROMULGATED BY SECDEF MSG 162100Z DEC 97)I. AUTHORITY AND PURPOSEThis memorandum of understanding (MOU) is entered into between the Department of State(DoS) and the Department of Defense (DoD) in accordance with the omnibus DiplomaticSecurity and Antiterrorism Act of 1986, as amended, 22 U.S.C. section 4801 et seq. (DiplomaticSecurity Act). Nothing in this MOU shall be construed to limit or affect Chief of Mission(COM) or United States area military commander (combatant commander in chief withgeographic responsibilities (CINC)) authority. The purpose of this MOU is to define clearly theauthority and responsibility for the security of DoD elements and personnel in foreign areas notunder the command of a CINC.II. Countries covered by this MOUA. The countries covered by this MOU (hereinafter referred to as the "covered countries") arelisted in attachment A.B. A country may be added to the list of covered countries by written agreement of the parties,signed by the Secretaries of State and Defense or by their representatives designated pursuantto section V(b). Any such addition shall be effective immediately upon signature by bothparties, unless the parties agree to a different effective date.C. A country may be deleted from the list of covered countries by written notice from eitherparty, signed by the Secretary of State or Defense or by the representative of eitherdesignated pursuant to section V(b). Any such deletion shall become effective sixty daysfrom the date of such notice, unless the parties agree to a different period.D. The assumption by the Secretary of Defense of security responsibility for DoD elements andpersonnel in a covered country shall become effective at the time specified in section III(e).III.Allocation of security responsibility for DoD elements and personnelA. Pursuant to 10 U.S.C. section 164 and 22 U.S.C. section 4802, the Secretary of Defense andthe CINC are responsible within the covered countries for the security of all DoD elementsand personnel under the command of the CINC. Nothing in this MOU alters or affects theresponsibility of the Secretary of Defense and the CINC for the security of such elements orpersonnel.


B. Pursuant to 22 U.S.C. section 4802, the Secretary of State is responsible within the coveredcountries for developing and implementing policies and programs to provide for the securityof DoD elements and personnel not under the command of the CINC. Pursuant to this MOU,and in accordance with 22 U.S.C. sections 4802 and 4805(a), the Secretary of State and theSecretary of Defense have agreed that the Secretary of Defense and his delegees shall assumeresponsibility for providing for the security of such DoD elements and personnel in thecovered countries, subject to the standards, limitations and exceptions set out in this MOU.C. In accordance with 22 U.S.C. section 4805(a), the Secretary of State retains ultimateauthority and responsibility for the security of the DoD elements and personnel covered byparagraph B of this section, and the Secretary of Defense shall be responsible to the Secretaryof State for the exercise of the responsibilities assumed under this MOU.D. Notwithstanding paragraph B of this section, the Secretary of State shall retain responsibilityfor the security of the following DoD elements and personnel in the covered countries:E.1. Defense Attache offices;2. Marine security guard detachments;3. DoD personnel detailed to other USG Departments or agencies;4. DoD elements or personnel that are specifically enumerated in a written agreementbetween DoS and DoD pursuant to this MOU; and5. DoD elements or personnel, to include CINC-assigned forces, for which securityresponsibility has been assumed by the COM in a covered country, pursuant to a writtenagreement entered into by the COM and the CINC. Any such agreement shall generallyfollow the format provided in attachment B.(A) Such an agreement may also address other aspects of implementation of this MOU, asdeemed appropriate by the COM and the CINC.(B) DoD units, or personnel not assigned to units, which are on temporary duty shallremain under the security responsibility of the Secretary of Defense unless they areincluded in such an agreement. The COM and CINC shall consider such personnelfor inclusion in such an agreement prior to their arrival in country or, when priorconsideration is not possible, promptly upon their arrival.1. For each covered country, the assumption of security responsibility by the Secretary ofDefense pursuant to section III shall become effective immediately upon signature of anagreement between the COM and the CINC pursuant to section III(d)(5), or upon theninetieth day after the inclusion of the country on the list of covered countries(attachment A), whichever occurs first.


2. In the countries formerly covered by the Memorandum of Understanding between theDepartment of State and the Department of Defense on security on the ArabianPeninsula, signed September 15, 1996 (Bahrain, Kuwait, Oman, Qatar, Saudi Arabia,United Arab Emirates, and Yemen), the assumption of security responsibility by theSecretary of Defense pursuant to the MOU shall continue without interruption. Allagreements between the CINC and the COMs of these countries implementing the earlierMOU shall continue in full force and effect, and shall be deemed to be agreementspursuant to section III(d)(5) of this MOU.IV.StandardsA. DoD elements and personnel under the security responsibility of DoS pursuant to this MOUshall comply with Overseas Security Policy Board (OSPB) security standards and shallcoordinate the security programs through the us Defense representative (USDR) with theCOM.B. DoD elements and personnel which are under COM authority but under the securityresponsibility of DoD pursuant to this MOU shall comply with DoD security standards andshall coordinate the security programs with the COM and the CINC through the USDR. Inthe event that the COM concludes that these standards are not appropriate as applied to aspecific element or category of elements, the COM and the CINC shall agree to an alternativestandard. If the COM and CINC are unable to agree, they shall refer the matter promptly toWashington for resolution under the procedures described in section V(b).C. The COM and the CINC shall make every effort to consult and coordinate responses tocommon threat levels.V. Implementation, Coordination and Dispute ResolutionA. In each covered country, the COM and the CINC, acting when appropriate through theirdesignated representatives, shall serve as the delegates of the Secretary of State and theSecretary of Defense, respectively, for implementation and coordination under this MOU. Inany covered country not within the geographic authority of a CINC, the Secretary of Defenseshall designate a CINC for security responsibility under this MOU and shall provide writtennotification to the Secretary of State of this designation.1. The designated representatives of the COM and the CINC shall consult as frequently asnecessary to review the implementation of this MOU.2. Among other things, the COM and CINC shall ensure that DoD personnel on temporaryduty or not assigned to units are considered promptly for possible inclusion in anagreement pursuant to section III(d)(5).


3. In the event that issues arise under this MOU that the COM and CINC are unable toresolve, they shall promptly refer such issues to the Washington representativesdesignated by the Secretary of State and the Secretary of Defense for resolution.B. The Secretary of State and the Secretary of Defense shall designate representatives to meet asfrequently as necessary, but no less often than quarterly, for the purpose of reviewing theimplementation of this MOU.1. In the event that the implementation of this MOU gives rise to differences between theCOM and the CINC in a covered country, they shall refer the matter to Washington sothat the representatives designated by the secretaries may attempt to resolve thedifferences.2. In the event that the secretaries' representatives are unable to resolve any such difference,or any other issue that may arise under this MOU, they shall promptly refer the matter tothe under Secretary of State for management and the under Secretary of Defense forpolicy for resolution.3. In the event that any matter cannot be resolved under the procedures specified above, itshall be referred to the Secretary of State and the Secretary of Defense for resolution.VI.Chief of Mission AuthorityA. This MOU affects only the allocation of responsibility for the security of DoD elements andpersonnel in the covered countries that are not under the command of a CINC. Theauthorities of the COM, including those under section 207 of the Foreign Service Act of1980, 22 U.S.C. section 3927, and NSDD-38, shall not be altered or affected by this MOU.Except for the allocation of security responsibilities under this MOU, the responsibilities ofthe COMs under the president's letter of instruction to chiefs of mission shall not be alteredor affected. Pursuant to 22 U.S.C. section 2321i(e), DoS and DoD specifically confirm thatsecurity assistance organization elements and personnel remain at all times subject to theauthority of the COM.B. The COM in each covered country shall retain responsibility for liaison with host-countryauthorities concerning security issues affecting DoD elements and personnel that are notunder the command of the CINC. The CINC's representative shall have authority to consultdirectly with local and provincial officials on security matters affecting DoD elements andpersonnel over which he exercises security responsibility pursuant to this MOU, but shallcoordinate with the COM's representative in advance for such liaison activities with nationalauthorities at the national seat of government. Notwithstanding the above, the CINC'srepresentatives shall, in every case, ensure that the COM is fully and currently informed ofany liaison activities relating to the security of those DoD elements and personnel that areunder the security responsibility, but not the command, of the CINC.


C. In accordance with section 207 of the Foreign Service Act of 1980 and the president's letterof instruction, the COMs in each covered country and the CINC shall continue to keep eachother currently informed and cooperate on all matters of mutual interest.VII.Identification of DoD Elements and PersonnelA. In order to facilitate the implementation of this MOU, to permit the effective exercise ofCOM authority where applicable, and to clarify the respective authorities and responsibilitiesof DoS and DoD in the covered countries, DoD, with input from DoS, shall provide to DoSan inclusive list of all DoD elements and personnel within the covered countries, and shallindicate which are under the command of the CINC. The list shall be updated every 6months.B. In addition, DoD units or personnel not assigned to units which are on temporary duty toDoD activities under COM authority shall be notified separately to the COM prior to theirarrival in country or, when this is not possible, promptly upon their arrival. CINC-assignedforces shall comply with the applicable provisions of the DoD foreign clearance guide.C. It is understood between the parties that all DoD elements and personnel in the coveredcountries identified as not under CINC command remain under COM authority, as providedin section VI, but that security responsibility for such elements and personnel is assumed byDoD, unless security responsibility is otherwise allocated pursuant to this MOU.VIII. FundingA. Administrative support costs for DoD personnel shall be determined in accordance with theapplicable reimbursement procedures then in effect.B. DoD shall be responsible for funding the development and Implementation of securityprograms for DoD elements and personnel for which it assumes responsibility under thisMOU.IX.Other Agreements and ArrangementsAll existing agreements and arrangements, however styled, between DoS and DoD shall remainin force to the extent that they do not conflict with the provisions of this MOU. Thememorandum of understanding b etween the Department of State and the Department of Defenseon Security on the Arabian Peninsula, signed September 15, 1996, is superseded by this MOU.All implementing agreements between the CINC and the COMs of the countries formerlycovered by that MOU shall continue in full force and effect and shall be deemed to beagreements pursuant to section iii(d)(5) of this MOU.X. Implementation and TerminationA. This MOU shall become effective immediately upon signature by the representatives of DoSand DoD designated below. It shall remain in force until terminated.


B. This MOU may be terminated by either party. Termination shall occur sixty days after aparty gives notice of its intention to terminate, unless the parties agree to a different period.SignatureMadeleine K. AlbrightSecretary of StateDate:SignatureWilliam S. CohenSecretary of DefenseDate:Attachment ACountries covered by the MOU: Bahrain, Kuwait, Oman, Qatar, Republic of the MarshallIslands, Saudi Arabia, Turkey, United Arab Emirates, Yemen(Note: this model agreement provides the suggested format for COM-CINC local implementingagreements. The specific provisions are illustrative only. COMs and CINCs need not address alltopics suggested here, and may address topics not included.)Attachment BMODEL MEMORANDUM OF AGREEMENTPursuant to the memorandum of understanding (MOU), dated________, signed between theSecretary of State and the Secretary of Defense, the Chief of Mission (COM) of the AmericanEmbassy (country), and USCINC____, exercising the respective authority of the Secretary ofState and Secretary of Defense, hereby agree to the following provisions for implementing theMOU in (country):1. Chief of Mission Responsibility: The COM shall have security responsibility for the DoDelements and personnel (including dependents) identified in annex a. These elements andpersonnel include those specified in MOU section iii. D. (1) - (3) (the Defense Attache office, themarine security guard detachment, and DoD personnel detailed to other USG Departments oragencies), and those that the COM and CINC agree shall be under COM security responsibilitypursuant to MOU section iii. D. (5). These elements and personnel will be integrated with allother agencies represented at the mission with regard to security briefings, personnelidentification programs, residential surveys and the embassy emergency action plan.2. Commander in Chief Responsibility: USCINC_____ shall have the security responsibilityfor all other DoD elements and personnel (Annex B), except those specifically enumerated inAnnex A. The USDR will remain the single point of contact for the COM in dealing withmilitary issues. The (designee) will be the USCINC_____ representative for overallcoordination of security issues. The (designee) will coordinate with the COM through theUSDR. Likewise, the USDR will coordinate all COM security issues with the (designee) as wellas with other appropriate commanders. Commanders of USCINC_____ component unitsstationed in (country) will coordinate security measures with the COM, via the USDR.


3. Temporary Duty Personnel: Security for personnel on temporary duty to (country) willgenerally be the responsibility of USCINC______. However, those military and civilianpersonnel and their dependents assigned temporary duty to (country) in support of an elementunder the COM (Annex A) shall be the security responsibility of the COM. The countryclearance and deployment temporary duty orders will specify the authority responsible forsecurity.4. Emergency Action Committee (EAC): The EAC has primary responsibility for evaluatinginformation pertaining to the security of Americans, and for establishing DoS threat levels. Itincludes a participant from each USCINC_____ component with military forces in (country),and the USDR.5. Host nation Coordination: The COM will continue to have the primary responsibility forcontact and coordination with the Government of (country) regarding security issues.USCINC_____ will continue to conduct mil-to-mil contacts.6. COM/USCINC_____ Coordination: The COM and USCINC_____ shall, in accordancewith the MOU, continue to keep each other currently informed on all issues affecting security,including THREATCON status. They will ensure that a full exchange of information affectingthreat protective measures and threat levels for USG entities in (country) is coordinated closelyto reduce differences in standards of protection.Signed:Chief of MissionAmerican Embassy (country)Commander in ChiefUnited States _______ commandAnnex ADoD elements and personnel under the security responsibility of the Chief of MissionA. 1. Defense attache officesA. 2. Marine security guard detachmentsA. 3. DoD personnel detailed to other USG Departments or agenciesA. 4. Other DoD elements and personnel, to include CINC-assigned forces, that the COM andthe CINC agree shall be under COM security responsibility:[list]A. 5. DoD temporary duty (tdy) personnel assigned in support of an element under COMauthority, whose country clearance and deployment TDY orders specify the COM asresponsible for security


Annex BDoD elements and personnel under the security responsibility of the combatant commander inchief:B. 1. CINC-assigned forces[list]B. 2. All other DoD elements and personnel, except those specifically enumerated in annex A:[list]


APPENDIX 18EXECUTIVE ORDER ESTABLISHING THE OFFICE OF HOMELAND SECURITYAND THE HOMELAND SECURITY COUNCILBy the authority vested in me as President by the Constitution and the laws of the United Statesof America, it is hereby ordered as follows:Sec. 1. Establishment. I hereby establish within the Executive Office of the President an Officeof Homeland Security (the “Office”) to be headed by the Assistant to the President for HomelandSecurity.Sec. 2. Mission. The mission of the Office shall be to develop and coordinate theimplementation of a comprehensive national strategy to secure the United States from terroristthreats or attacks. The Office shall perform the functions necessary to carry out this mission,including the functions specified in section 3 of this order.Sec. 3. Functions. The functions of the Office shall be to coordinate the executive branch'sefforts to detect, prepare for, prevent, protect against, respond to, and recover from terroristattacks within the United States.(a) National Strategy. The Office shall work with executive departments and agencies, Stateand local governments, and private entities to ensure the adequacy of the national strategy fordetecting, preparing for, preventing, protecting against, responding to, and recovering fromterrorist threats or attacks within the United States and shall periodically review andcoordinate revisions to that strategy as necessary.(b) Detection. The Office shall identify priorities and coordinate efforts for collection andanalysis of information within the United States regarding threats of terrorism against theUnited States and activities of terrorists or terrorist groups within the United States. TheOffice also shall identify, in coordination with the Assistant to the President for NationalSecurity Affairs, priorities for collection of intelligence outside the United States regardingthreats of terrorism within the United States.(i) In performing these functions, the Office shall work with Federal, State, and localagencies, as appropriate, to:(A) facilitate collection from State and local governments and private entities ofinformation pertaining to terrorist threats or activities within the United States;(B) coordinate and prioritize the requirements for foreign intelligence relating toterrorism within the United States of executive departments and agencies responsiblefor homeland security and provide these requirements and priorities to the Director ofCentral Intelligence and other agencies responsible for collection of foreignintelligence;(C) coordinate efforts to ensure that all executive departments and agencies that haveintelligence collection responsibilities have sufficient technological capabilities andresources to collect intelligence and data relating to terrorist activities or possibleterrorist acts within the United States, working with the Assistant to the President forNational Security Affairs, as appropriate;(D) coordinate development of monitoring protocols and equipment for use in detectingthe release of biological, chemical, and radiological hazards; and(E) ensure that, to the extent permitted by law, all appropriate and necessary intelligenceand law enforcement information relating to homeland security is disseminated to and


exchanged among appropriate executive departments and agencies responsible forhomeland security and, where appropriate for reasons of homeland security, promoteexchange of such information with and among State and local governments andprivate entities.(ii) Executive departments and agencies shall, to the extent permitted by law, make availableto the Office all information relating to terrorist threats and activities within the UnitedStates.(c) Preparedness. The Office of Homeland Security shall coordinate national efforts to preparefor and mitigate the consequences of terrorist threats or attacks within the United States. Inperforming this function, the Office shall work with Federal, State, and local agencies, andprivate entities, as appropriate, to:(i) review and assess the adequacy of the portions of all Federal emergency response plansthat pertain to terrorist threats or attacks within the United States;(ii) coordinate domestic exercises and simulations designed to assess and practice systemsthat would be called upon to respond to a terrorist threat or attack within the UnitedStates and coordinate programs and activities for training Federal, State, and localemployees who would be called upon to respond to such a threat or attack;(iii) coordinate national efforts to ensure public health preparedness for a terrorist attack,including reviewing vaccination policies and reviewing the adequacy of and, if necessary,increasing vaccine and pharmaceutical stockpiles and hospital capacity;(iv) coordinate Federal assistance to State and local authorities and nongovernmentalorganizations to prepare for and respond to terrorist threats or attacks within the UnitedStates;(v) ensure that national preparedness programs and activities for terrorist threats or attacksare developed and are regularly evaluated under appropriate standards and that resourcesare allocated to improving and sustaining preparedness based on such evaluations; and(vi) ensure the readiness and coordinated deployment of Federal response teams to respondto terrorist threats or attacks, working with the Assistant to the President for NationalSecurity Affairs, when appropriate.(d) Prevention. The Office shall coordinate efforts to prevent terrorist attacks within the UnitedStates. In performing this function, the Office shall work with Federal, State, and localagencies, and private entities, as appropriate, to:(i)facilitate the exchange of information among such agencies relating to immigration andvisa matters and shipments of cargo; and, working with the Assistant to the President forNational Security Affairs, ensure coordination among such agencies to prevent the entryof terrorists and terrorist materials and supplies into the United States and facilitateremoval of such terrorists from the United States, when appropriate;(ii) coordinate efforts to investigate terrorist threats and attacks within the United States; and(iii) coordinate efforts to improve the security of United States borders, territorial waters, andairspace in order to prevent acts of terrorism within the United States, working with theAssistant to the President for National Security Affairs, when appropriate.(e) Protection. The Office shall coordinate efforts to protect the United States and its criticalinfrastructure from the consequences of terrorist attacks. In performing this function, theOffice shall work with Federal, State, and local agencies, and private entities, as appropriate,to:


(i) strengthen measures for protecting energy production, transmission, and distributionservices and critical facilities; other utilities; telecommunications; facilities that produce,use, store, or dispose of nuclear material; and other critical infrastructure services andcritical facilities within the United States from terrorist attack;(ii) coordinate efforts to protect critical public and privately owned information systemswithin the United States from terrorist attack;(iii) develop criteria for reviewing whether appropriate security measures are in place atmajor public and privately owned facilities within the United States;(iv) coordinate domestic efforts to ensure that special events determined by appropriatesenior officials to have national significance are protected from terrorist attack;(v) coordinate efforts to protect transportation systems within the United States, includingrailways, highways, shipping, ports and waterways, and airports and civilian aircraft,from terrorist attack;(vi) coordinate efforts to protect United States livestock, agriculture, and systems for theprovision of water and food for human use and consumption from terrorist attack; and(vii) coordinate efforts to prevent unauthorized access to, development of, and unlawfulimportation into the United States of, chemical, biological, radiological, nuclear,explosive, or other related materials that have the potential to be used in terrorist attacks.(f) Response and Recovery. The Office shall coordinate efforts to respond to and promoterecovery from terrorist threats or attacks within the United States. In performing thisfunction, the Office shall work with Federal, State, and local agencies, and private entities, asappropriate, to:(i) coordinate efforts to ensure rapid restoration of transportation systems, energyproduction, transmission, and distribution systems; telecommunications; other utilities;and other critical infrastructure facilities after disruption by a terrorist threat or attack;(ii) coordinate efforts to ensure rapid restoration of public and private critical informationsystems after disruption by a terrorist threat or attack;(iii) work with the National Economic Council to coordinate efforts to stabilize United Statesfinancial markets after a terrorist threat or attack and manage the immediate economicand financial consequences of the incident;(iv) coordinate Federal plans and programs to provide medical, financial, and other assistanceto victims of terrorist attacks and their families; and(v) coordinate containment and removal of biological, chemical, radiological, explosive, orother hazardous materials in the event of a terrorist threat or attack involving suchhazards and coordinate efforts to mitigate the effects of such an attack.(g) Incident Management. The Assistant to the President for Homeland Security shall be theindividual primarily responsible for coordinating the domestic response efforts of alldepartments and agencies in the event of an imminent terrorist threat and during and in theimmediate aftermath of a terrorist attack within the United States and shall be the principalpoint of contact for and to the President with respect to coordination of such efforts. TheAssistant to the President for Homeland Security shall coordinate with the Assistant to thePresident for National Security Affairs, as appropriate.(h) Continuity of Government. The Assistant to the President for Homeland Security, incoordination with the Assistant to the President for National Security Affairs, shall reviewplans and preparations for ensuring the continuity of the Federal Government in the event of


a terrorist attack that threatens the safety and security of the United States Government or itsleadership.(i) Public Affairs. The Office, subject to the direction of the White House Office ofCommunications, shall coordinate the strategy of the executive branch for communicatingwith the public in the event of a terrorist threat or attack within the United States. The Officealso shall coordinate the develop-ment of programs for educating the public about the natureof terrorist threats and appropriate precautions and responses.(j) Cooperation with State and Local Governments and Private Entities. The Office shallencourage and invite the participation of State and local governments and private entities, asappropriate, in carrying out the Office's functions.(k) Review of Legal Authorities and Development of Legislative Proposals. The Office shallcoordinate a periodic review and assessment of the legal authorities available to executivedepartments and agencies to permit them to perform the functions described in this order.When the Office determines that such legal authorities are inadequate, the Office shalldevelop, in consultation with executive departments and agencies, proposals for presidentialaction and legislative proposals for submission to the Office of Management and Budget toenhance the ability of executive departments and agencies to perform those functions. TheOffice shall work with State and local governments in assessing the adequacy of their legalauthorities to permit them to detect, prepare for, prevent, protect against, and recover fromterrorist threats and attacks.(l) Budget Review. The Assistant to the President for Homeland Security, in consultation withthe Director of the Office of Management and Budget (the “Director”) and the heads ofexecutive departments and agencies, shall identify programs that contribute to theAdministration's strategy for homeland security and, in the development of the President'sannual budget submission, shall review and provide advice to the heads of departments andagencies for such programs. The Assistant to the President for Homeland Security shallprovide advice to the Director on the level and use of funding in departments and agenciesfor homeland security-related activities and, prior to the Director's forwarding of theproposed annual budget submission to the President for transmittal to the Congress, shallcertify to the Director the funding levels that the Assistant to the President for HomelandSecurity believes are necessary and appropriate for the homeland security-related activities ofthe executive branch.Sec. 4. Administration.(a) The Office of Homeland Security shall be directed by the Assistant to the President forHomeland Security.(b) The Office of Administration within the Executive Office of the President shall provide theOffice of Homeland Security with such personnel, funding, and administrative support, to theextent permitted by law and subject to the availability of appropriations, as directed by theChief of Staff to carry out the provisions of this order.(c) Heads of executive departments and agencies are authorized, to the extent permitted by law,to detail or assign personnel of such departments and agencies to the Office of HomelandSecurity upon request of the Assistant to the President for Homeland Security, subject to theapproval of the Chief of Staff.Sec. 5. Establishment of Homeland Security Council.(a) I hereby establish a Homeland Security Council (the “Council”), which shall be responsiblefor advising and assisting the President with respect to all aspects of homeland security. The


Council shall serve as the mechanism for ensuring coordination of homeland security-relatedactivities of executive departments and agencies and effective development andimplementation of homeland security policies.(b) The Council shall have as its members the President, the Vice President, the Secretary of theTreasury, the Secretary of Defense, the Attorney General, the Secretary of Health and HumanServices, the Secretary of Transportation, the Director of the Federal EmergencyManagement Agency, the Director of the Federal Bureau of Investigation, the Director ofCentral Intelligence, the Assistant to the President for Homeland Security, and such otherofficers of the executive branch as the President may from time to time designate. The Chiefof Staff, the Chief of Staff to the Vice President, the Assistant to the President for NationalSecurity Affairs, the Counsel to the President, and the Director of the Office of Managementand Budget also are invited to attend any Council meeting. The Secretary of State, theSecretary of Agriculture, the Secretary of the Interior, the Secretary of Energy, the Secretaryof Labor, the Secretary of Commerce, the Secretary of Veterans Affairs, the Administrator ofthe Environmental Protection Agency, the Assistant to the President for Economic Policy,and the Assistant to the President for Domestic Policy shall be invited to attend meetingspertaining to their responsibilities. The heads of other executive departments and agenciesand other senior officials shall be invited to attend Council meetings when appropriate.(c) The Council shall meet at the President's direction. When the President is absent from ameeting of the Council, at the President's direction the Vice President may preside. TheAssistant to the President for Homeland Security shall be responsible, at the President'sdirection, for determining the agenda, ensuring that necessary papers are prepared, andrecording Council actions and Presidential decisions.Sec. 6. Original Classification Authority. I hereby delegate the authority to classifyinformation originally as Top Secret, in accordance with Executive Order 12958 or anysuccessor Executive Order, to the Assistant to the President for Homeland Security.Sec. 7. Continuing Authorities. This order does not alter the existing authorities of UnitedStates Government departments and agencies. All executive departments and agencies aredirected to assist the Council and the Assistant to the President for Homeland Security incarrying out the purposes of this order.Sec. 8. General Provisions.(a) This order does not create any right or benefit, substantive or procedural, enforceable at lawor equity by a party against the United States, its departments, agencies or instrumentalities,its officers or employees, or any other person.(b) References in this order to State and local governments shall be construed to include tribalgovernments and United States territories and other possessions.(c) References to the “United States” shall be construed to include United States territories andpossessions.Sec. 9. Amendments to Executive Order 12656. Executive Order 12656 of November 18,1988, as amended, is hereby further amended as follows:(a) Section 101(a) is amended by adding at the end of the fourth sentence: “, except that theHomeland Security Council shall be responsible for administering such policy with respect toterrorist threats and attacks within the United States.”


(b) Section 104(a) is amended by adding at the end: “, except that the Homeland SecurityCouncil is the principal forum for consideration of policy relating to terrorist threats andattacks within the United States.”(c) Section 104(b) is amended by inserting the words “and the Homeland Security Council”after the words “National Security Council.”(d) The first sentence of section 104(c) is amended by inserting the words "and the HomelandSecurity Council" after the words “National Security Council.”(e) The second sentence of section 104(c) is replaced with the following two sentences:“Pursuant to such procedures for the organization and management of the National SecurityCouncil and Homeland Security Council processes as the President may establish, theDirector of the Federal Emergency Management Agency also shall assist in theimplementation of and management of those processes as the President may establish. TheDirector of the Federal Emergency Management Agency also shall assist in theimplementation of national security emergency preparedness policy by coordinating with theother Federal departments and agencies and with State and local governments, and byproviding periodic reports to the National Security Council and the Homeland SecurityCouncil on implementation of national security emergency preparedness policy.”(f) Section 201(7) is amended by inserting the words “and the Homeland Security Council”after the words “National Security Council.”(g) Section 206 is amended by inserting the words “and the Homeland Security Council” afterthe words “National Security Council.”(h) Section 208 is amended by inserting the words “or the Homeland Security Council” after thewords “National Security Council.”GEORGE W. BUSHTHE WHITE HOUSE,October 8, 2001.# # #

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