JAG Corps Ambitions

Let me tell you about my recent experience with the Marine JAG Corps. The “Marine Corps Lessons Learned” Program noticed that in the counter-IED and counter-insurgency fight, on-scene commanders in some cases have been losing the tactical advantage. According to some of the commanders, if squad leaders and fire-team leaders had the requisite questioning skills to exploit what is known as “capture shock” to elicit good actionable intelligence from the terrorists right at the point of capture, Marines could press the fight at the tactical level more effectively. When the CG Marine Corps Combat Development Command heard of these findings, he directed that we institute a “tactical questioning” course, and push it to the lowest levels.

So far so good. As a crash fix, we cobbled together some training based on questioning techniques used by counter-intelligence and human intelligence Marines, and made it happen, Stateside and in-theater. But, here is where the JAGs come in. As we convened a conference to devise “standards” for tactical questioning that would allow us to institutionalize and standardize tactical questioning training across the Marine Corps, the JAGs insisted on sending representatives to this effort. They were soon working to transform “tactical questioning” for intelligence purposes to “tactical evidence gathering.” They want to (this process is ongoing) include training to Lance Corporals and Corporals for evidence chain of custody, rights-sensitive questioning, and crime scene photography.

In the course of planning this conference, I asked one JAG, “what process is actually due a terrorist who is literally still on the battlefield?” He started to talk about how reciprocal treatment is the cornerstone of the Geneva conventions and how we need to safeguard Marines from claims in US and foreign courts based on ill treatments of detainees. So I asked him, if we are willing to allow terrorists the right-to-remain-silent that will effectively negate the moment of “capture shock” as having any tactical value, why should we not just train Marines to kill terrorists when we find them? There is no obligation under the GC to accept surrender, especially from unlawful combatants and since there is no chance to gain any intelligence from them, they are better off to us dead.

He fell back on the reciprocal treatment argument that is just ludicrous on its face. When in this conflict has any captured personnel be treated according to the GC? We are meticulously trying to adhere to a treaty to which the other party is not actually a signatory and who is clearly outside the protection the treaty is supposed to afford. It looks to me that the JAGs have made some kind of fetish out of “due process” that turns it into a universal human right inherent even in nihilistic, murderous terrorists who, ironically, consider us less than human. And, that this universal human right is something that only the JAG Corps is qualified to safeguard.

I am going to lose this battle. Tactical questioning training that should be a two day course focused on rolling up the bad guys and killing the ones we find, is going to bloat up into a massive 10 day evolution covering evidence collection, testifying in civil and JAG procedures, photography, sketching capture scenes and God knows what all else. I had not thought of the JAGs attempt to turn everything we do on the battlefield into an issue of law as some kind of growth strategy as Gertz’ and Scarborough’s source claims, but that is as good an explanation as any for their behavior.