DoD General Counsel’s Remarks at Duke Law’s 24th Annual National Security Law Conference
We were extremely pleased to have welcomed the Hon. Paul Ney, the General Counsel of the Department of Defense, as our guest speaker at the conference dinner for the Center on Law, Ethics and National Security’s (LENS)’24th Annual National Security Law Conference. He covered a number of topics, including U.S. efforts and initiatives to minimize civilian casualties in armed conflict. Importantly, he also made a call to public service to an audience that included students from more than 17 institutions (as well as many members of the armed forces). Here are his very thoughtful remarks as prepared for delivery Feb 23rd:
Thank you for inviting me to speak with you tonight. I especially want to thank Major General Dunlap, whose leadership at the LENS Center has brought together extraordinary scholarship, experience, and practice.
The LENS Center’s work recognizes and tackles the myriad complex issues related to national security– especially those associated with resort to the use of force—very often lethal force.
Each day the exemplary leaders—and lawyers—of which we find so many in DoD, consider the legal framework, political realities, and moral and ethical consequences of the national security decisions they confront. Former-Secretary Mattis made that clear up and down the chain of command. He expected us to be “ethics sentinels,” upholding not just minimum legal standards, but “the highest degree of honor our Nation and our military are known for around the world.” Acting Secretary Shanahan continues to amplify that theme in his recent all-hands message emphasizing that ethics principles are the “the foundation upon which we make sound, informed decisions.” He asks us to lead by example, and to maintain “the most lethal – and ethical – fighting force in the world.”
As the General Counsel of the Department of Defense, I provide legal advice to the Secretary of Defense and other senior Defense Department officials. The lawyers in my office, the Office of General Counsel – or DoD OGC – advise on legal issues that can relate to any aspect of U.S. military operations around the world, including the most urgent and pressing challenges in national security, foreign policy, and the conduct of nations. These challenges are laden with tough questions about what’s legal, what’s good policy, what’s the right thing to do.
To answer these questions, we work across the U.S. Government – often with other Executive branch lawyers and senior policy officials — to help ensure the United States adheres to all applicable law. To answer these questions, we must also remain true to our oath of office: to “support and defend the Constitution” and “to bear true faith and allegiance to the same.”
That is our Prime Directive.
This evening, I will briefly answer a few overarching questions illustrative of the work and responsibilities of the lawyers in my office and our lawyer colleagues throughout the DoD: How do we conduct current operations consistent with law? What can we do better?
An earlier draft of my comments included a third question: What can we expect in the wars and threats of the future? Chine, Russia, Artificial intelligence, unmanned and autonomous vehicles, Space, and cyber operations all pose fascinating legal questions to be tackled for decades to come.
But those questions are more expertly being answered throughout this conference by our esteemed speakers and panel members.
So, I concluded that What I can do better tonight is cut out about 10 minutes of this speech so that we might have time get to get to some questions or share a beverage and conversation together.
I’ll first address how do we ensure current operations are conducted consistent with law?
As many of you know, U.S. forces, alongside our partners and allies, are currently engaged in counterterrorism operations in Iraq, Afghanistan, and a number of countries throughout the world. For example, for the past four years in the campaign to defeat ISIS in Iraq and Syria, U.S. and Coalition forces have conducted direct action strikes and have provided training, equipment, advice, and enabling assistance to local partners in Iraq and Syria. We have worked “by, with, and through” Iraqi security forces and vetted Syrian local forces to root ISIS out of its once-self-proclaimed territorial caliphate.
In Afghanistan, U.S. forces continue to deny the reemergence of terrorist safe havens, to support the Afghan government and the Afghan military as they confront the Taliban, al-Qa’ida, and ISIS in the field, and to create conditions to support a political process to achieve a lasting peace. In Yemen, Somalia, and Libya, we are confronting al-Qa’ida in the Arabian Peninsula, al-Shabab, and ISIS and we are supporting regional partner forces.
These asymmetric conflicts have presented unique challenges to lawyers and leaders. We are fighting unconventional enemies– non-State terrorist organizations. But we must apply and adapt established legal principles to these conflicts.
My office and other DoD lawyers help ensure U.S. military operations are conducted consistent with these principles in both domestic and international law.
As a matter of domestic law, U.S. military operations must be authorized under the U.S. Constitution. This means that they must be authorized either by a congressional authorization for the use of force or by the President’s Article II constitutional authority to order military action in the national interest.
Our current military operations against ISIS, al-Qa’ida, and associated forces are authorized by the 2001 and 2002 congressional Authorizations for Use of Military Force, or AUMFs. And although those AUMFs were signed into law 17 and 18 years ago, they remain valid and provide appropriate authorization for our continued military activities against the Taliban, al-Qa’ida, and associated forces, including against ISIS.
Under international law, we analyze whether military operations abroad are consistent with principles reflected in the UN Charter – that nations may not infringe upon another’s sovereignty and enter that nation’s territory except in limited circumstances. The United States has accepted several rationales for the resort to force that remain consistent with the UN Charter: host nation consent; authorization by the United Nations Security Council; and self-defense.
We analyze each country in which we conduct operations on a case-by-case basis. For example, in Iraq and Afghanistan, we are conducting counterterrorism operations with the consent and at the invitation of the host government. By contrast, the Syrian government has not consented to our presence in Syrian territory. In Syria, we conduct operations against ISIS and al-Qa’ida in self-defense, consistent with Article 51 of the UN Charter. We address the threat that those groups continue to pose to the United States and our partners and allies because the Syrian government remains unwilling or unable to address those threats effectively itself.
Once we have analyzed whether military operations have a basis in domestic and international law, we also work to ensure that DoD conducts all military operations lawfully.
The heart of the legal framework governing the conduct of military operations is the law of war. It includes abiding by applicable provisions of the 1949 Geneva Conventions and customary international law. It is premised on respecting the fundamental law of war principles of distinction, proportionality, military necessity, humanity, and honor. Compliance with the law of war requires that we only target our adversaries and not civilians. It prohibits attacks that would cause excessive harm in relation to the anticipated military advantage to be gained. And it requires taking feasible precautions to preserve innocent human life, even when fighting brutal enemies who defy the law as part of their military strategy– enemies who try to use our commitment to following the law against us, by, for example, using civilians as human shields to deter us from taking certain action. Even against these terrorist enemies, we follow the law of war because it reflects our core values and the very principles we are fighting to protect and preserve.
How do we ensure that law of war requirements are implemented during military operations? It requires steadfast vigilance and constant adherence to effective planning and processes. Some of which my office provides, and much of which is provided to the Commanders and their staffs by their military lawyers. Each DoD component is required to have legal advisers available at all levels, up and down the chain of command, to ensure compliance with the law of war during planning and execution of military operations. Military lawyers consider relevant laws of war, rules of engagement, and policy guidance specific to the military operation. These lawyers provide advice and guidance on determining appropriate military objectives and assessing collateral damage estimates prior to taking any strikes. This advice includes input into “weaponeering” – or designing the weapons and munitions that will be used for an attack in a manner that decreases the risk of harm to civilians and civilian infrastructure. It includes ensuring the implementation of and adherence to policies that require DoD personnel to report on and investigate suspected violations of the law of war.
To help inform this advice, my office published the DoD Law of War Manual in 2015, which we updated in 2016. The Manual incorporates experience from recent military operations and legal guidance, including black-letter rules and additional information to help explain and apply those rules. We are continually working to ensure that the Manual is the best resource it can possibly be to support compliance with the law of war. And it is available to the public online.
Despite maintaining robust processes and legal advisors at all levels of the chain of command. Mistakes and bad decisions can, and do, occur. As Secretary of Defense Mattis used to say: “we are the good guys, not the perfect guys.”
I already mentioned that we have these processes in place to help ensure compliance with law and policy because it reflects the very values we fight to preserve. But following the law is not just what we are required to do; it is also the prudent thing to do.
Take one example – the requirement under the law of war that attacking parties take feasible precautions to reduce the risk of harm to civilians. Reducing the effects of military operations on civilians is not only morally and legally right, it is also good military strategy. Implementing measures to protect civilians, while still accomplishing the mission, can enhance the legitimacy of our military operations at home and, importantly, with the populations we’re fighting to help protect.
Which brings me to the second key question: What can we do better?
I know of no military more committed to the protection of civilians in conflicts than your own. Still, we are focused on doing better and answering hard questions about civilian casualties in war and the lessons we’ve learned.
Recently General Dunford, the Chairman of the Joint Chiefs of Staff, released portions of a study he directed to assess civilian casualties resulting from U.S. strikes in certain operations from 2015 to 2017. The study is one of the most comprehensive efforts to assess lessons learned and examine internal processes that the Department has conducted in some time. The study provides recommendations relating to policy, doctrine, operational planning, and technological investments to help us avoid civilian harm where possible and then to respond more effectively to civilian casualties that result from our operations. The study was conducted in tandem with a number of roundtables with outside groups, hosted by senior Department officials, up to and including the Secretary of Defense. These roundtables brought together military and civilian experts on civilian casualty mitigation efforts, to discuss issues and hear concerns. Allowing us to learn from perspectives outside the military – from NGOs and other civilian agencies – has enhanced our understanding of the challenges and the ways we can continue improving in this facet of war.
Drawing from experience and building upon existing policies and procedures, DoD has established an aggressive schedule to draft a new DoD-wide policy on minimizing civilian casualties and responding to reports of civilian casualties. Drafting this policy is a collaborative process among DoD policymakers and uniformed servicemembers throughout the Department.
The revised policy, born of the chairman’s initiative, will help advance the Department in:
–promulgating uniform processes and standards across geographic combatant commands for accurately recording strikes taken by the U.S. military;
–disseminating best practices for reducing the likelihood of civilian casualties resulting from U.S. military operations;
–receiving and responding to reports of civilian casualties; and
–finding ways to develop, acquire, and field new technologies more effectively to minimize our operations’ effects on civilians.
The talented lawyers of DoD OGC and our colleagues throughout the DoD, will help shape this effort and provide critical legal advice as it progresses.
And so finally– if I may take a few minutes in closing to appeal to all of you– and most especially the students– I come to the reason I am here enthusiastically and gratefully.
I agree with the late-President George H.W. Bush who said it simply, “Any definition of a successful life must include service to others.”
And I am aware each day of the immense privilege that I have to serve with and among the thousands of enormously talented and dedicated lawyers in the Department of Defense—the lawyers in my Office. Our military lawyers. And the lawyers of every DoD Department, service, and agency.
I wish for you a similar measure of professional satisfaction, and I hope you will consider working to help answer these and other critical questions facing our military and our nation, and help shape the law under which we will engage the threats to secure our nation, now and in the future.
For those of you with an interest, we have opportunities in my office and throughout the Department. And I am confident that General Dunlap will happily speak with you about service as a Judge Advocate in one of the Military Services.
Do not let the apparent fractious image of Washington dissuade you. Curiously, I think that you might find, as I have, that the clear definition of the mission somehow insulates you from that frenzy, or at least, empowers you to manage it more effectively.
Recall that Teddy Roosevelt famously observed that the success of democratic republics lies in the citizenship of the Nation. He entreated citizens to be those who are “in the arena.” To dare to join the efforts to tackle the problems we face.
So, I encourage you and invite you to:
Know great enthusiasm. Show great devotion. Join us in a worthy cause. Join us in the arena.
You will find no more rewarding way to serve as a lawyer. Or as a citizen.