Tactical level PSYOP and MILDEC information operations: how to smartly and lawfully prime the battlefield

Army Lawyer, July, 2007 by Joshua E. Kastenberg

"All warfare is based on deception. Hence, when able to attack we must seem unable; when using our forces, we must seem inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe that we are near. Hold out baits to entice the enemy. Feign disorder and crush him."

--Sun Tzu

Overview

Information operations (IO) have been viewed as a force enabler for the strategic level of warfare, but U.S. forces engaged in every level of warfare use some form of it. For instance, in World War II, allied forces dropped leaflets from aircraft to encourage surrender, used sound deception to simulate armored movements, and even convinced the German high command that the D-Day Normandy invasion was a ruse while General Patron's Third Army would land at Calais. (1) Offensive tactical level IO in the modern era of irregular warfare might target an insurgent group operating from a city, or even an element as small as a specific military unit no larger than a battalion. (2) Defensive tactical IO might be employed to protect an airfield or dissuade a population segment from supporting a hostile group. Today, both the U.S. Army and U.S. Air Force possess IO forces and delivery systems, and importantly, these forces and systems are interoperable. (3) Among the many objectives of IO is the ultimate goal of information superiority. This is defined as "the capability to collect, process, and disseminate an uninterrupted flow of information while exploiting or denying an adversary's ability to do the same." (4) It is just as important to conduct IO at the tactical level with the objective of achieving information superiority as it is at the strategic level of conflict. The concept and terminology of IO has evolved from a number of terms, some of which are still in use. Notable in this category is the term and concept of "information warfare." The terms, however, are not interchangeable; by virtue of its descriptive name, information warfare is a subset of IO. (5)

The Department of Defense (DOD) defines information warfare as "information operations conducted during time of crisis or conflict to achieve or promote specific objectives over a specific adversary or adversaries." (6) Information operations is composed of five severable pillars: electronic warfare (EW), computer network operations (CNO), PSYOP, MILDEC, and operations security (OPSEC). Although these pillars are severable, they are frequently interdependent with each other as well as with conventional military operations.

The subject matter and scope of this article is limited to providing a framework for legal oversight to the planning and execution of tactical level PSYOP and MILDEC operations. As a result, it does not cover in detail issues such as neutrality, operations conducted within the United States which impact the Constitution, or combatant command authorities and their attendant supporting and supported relations. Rather, it seeks to provide a roadmap for a JA or legal representative assigned to an IO cell in support of tactical military operations. As such, this primer is complimentary to Joint Publication (JP) 1-04, Legal Support to Military Operations, which envisions service JAs working in concert in joint operations. (7)

Section one provides a brief overview of joint and service doctrine descriptions. Doctrine and definitions are important in any realm as both provide a common lexicon for joint and coalition operations. Moreover, definitions and doctrine contextualize the application of law to operations. Section two covers the basic law and unclassified regulatory schemes under which MILDEC and PSYOP operations might be carried out. Section three applies law of armed conflict considerations to these operations and provides hypothetical examples. (8) Just as it is the goal of doctrine to establish a common lexicon between service branches, it is the goal of this primer that in our age of joint information operations, JAs will also share a common regulatory and doctrinal language. After all, Field Manual (FM) 27-100 states:

   During deployment and entry, OPLAW tasks related to the conduct of
   operations become more critical. OPLAW JAs must maintain
   situational awareness to provide effective advice about targeting,
   ROE, and legal aspects of current operations (including information
   operations).... Deploying legal specialists help the OPLAW JA
   maintain situational awareness during the operation by attending
   briefings, monitoring email traffic, tracking the battle, and
   providing other required assistance.... Finally, even during
   fast-paced operations, OPLAW JAs must continue to perform OPLAW
   military decision-making process functions in support of the
   staff's operational planning. (9)

While some of the regulations and doctrine inherent to PSYOP and MILDEC are classified, and therefore not referenced in this primer, the goal of providing basic guidance is obtainable. Finally, it is important for contextual purposes to note up front that it is extremely difficult to analogize the intended objectives of PSYOP and MILDEC to the direct impact capabilities of precision-guided munitions. The two IO pillars are planned and executed with an "effects-based" approach. That is, the measure of success is the overall effects, rather than whether or not a specific target was struck.