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

Army Lawyer, July, 2007 by Joshua E. Kastenberg

Non-Combatants and Retained Personnel

A question arose in the recent past as to whether a chaplain could be a member of an IO planning cell. The purpose of the chaplain's placement was not to provide ministerial support to the other cell members, but rather to serve as an expert on the local culture and faith structures. The answer to this question was that a chaplain who served in this capacity lost all Geneva protections attendant with his chaplain status and could not, under LOAC, wear any chaplain insignia. (82) In one respect, a chaplain who participates in the IO planning cell while wearing a distinctive emblem of protection is engaged in a perfidious act.

Another issue involves the use of departmental civilians and contractor personnel in a tactical level PSYOP or MILDEC operation. Although not technically in a "kill-chain," these operations are often used to prepare the kinetic battlefield. There is no prohibition against using civilians in preparing and planning such operations; however, where the execution of these operations is closely placed to the actual combat, it will be difficult to distinguish between combatants and non-combatants. Civilians who take part in IO campaigns lose their protected status as non-combatants. (83) This includes behavioral sciences personnel who assist in planning and executing PSYOP and MILDEC operations.

One area of caution is the oversight of civilians in planning and executing MILDEC operations. Commanders are ultimately responsible for ensuring adherence to the law of war. The dicta set forth in In re Yamashita (84) remains as strong today as it did in 1946. (85) Judge advocate guidance in an IO cell or over IO operations generically must educate uniformed personnel that they may ultimately be responsible for the unlawful acts of civilians if those acts could have been prevented, or if the unlawful acts were required to have been reported.

Tactical PSYOP and MILDEC in the Detainee Arena

It has been recently observed that JAs providing legal support to interrogation operations must understand the interrogation process and how that mission is executed. (86) The interrogation process in some instances utilizes MILDEC and PSYOP. Indeed, all interrogation uses some psychological processes, and there are eighteen methods of interrogation which do not cross into torture or other illegal means. (87)

The treatment of captured persons is regulated by international law, domestic law, and policy. As alluded to earlier, Common Article 3 of the 1949 Geneva Conventions prohibits both violence to life and person, torture, and "outrages upon personal dignity, in particular humiliating and degrading treatment." (88) The language of the article is fairly clear, as is the prohibition against torture previously-cited international law sources and covered by Articles 92 and 134 of the Uniform Code of Military Justice. (89) In theory, Article 93 might also criminalize the abuse of detainees by U.S. forces serving in detention operations. (90) Geneva Convention III, Article 8 also prohibits medical or scientific experimentation, as well as forcing detained prisoners to become objects of public curiosity. (91) Article 9 requires a detaining authority to maintain respect for detained "persons and their honor." (92)