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

Army Lawyer, July, 2007 by Joshua E. Kastenberg

(45) See generally CHAIRMAN OF THE JOINT CHIEFS OF STAFF, INSTR. 3211.01A, JOINT MILITARY DECEPTION (15 June 1994) [hereinafter CJCSI 3211.01A]. This is a classified document and not addressed here. However, the title is not classified. Judge advocates deployed to an IO cell or operation should become familiar with this instruction.

(46) U.S. DEPT OF AIR FORCE, INSTR. 10-702, PSYCHOLOGICAL OPERATIONS (PSYOP) (19 July 1994).

(47) U.S. DEP'T OF DEFENSE, DIR. O-3600.1, INFORMATION OPERATIONS (14 Aug. 2006) (classified as "For Official Use Only").

(48) JOINT PUB. 1-04, supra note 7, at I-10.

(49) Lieutenant Colonel Pamela Stahl & Captain Toby Harryman, The Judge Advocate's Role in Information Operations, ARMY LAW., Mar. 2004, at 30, 33. It is the author's contention that Stahl's and Harriman's article is well-grounded, and the present article is complementary to it.

(50) See, e.g., JOINT CHIEFS OF STAFF, JOINT PUB. 3-53, JOINT DOCTRINE FOR PSYCHOLOGICAL OPERATIONS II-1 to II-5 (10 July 1996); JOINT CHIEFS OF STAFF, JOINT PUB. 3-05, JOINT DOCTRINE FOR SPECIAL OPERATIONS II-11 (17 Dec. 2003).

(51) FM 3-13, supra note 14.

(52) See CJCSI 3121.01 B, supra note 44.

(53) JOINT PUB. 3-53, supra note 19; Peter J. Smyczek, Regulating the Battlefield of the Future: The Legal Limitations on the Conduct of Psychological Operations under Public International Law, 57 A.F.L. REV. 209, 221 (2005).

(54) CJCSI 3211.01A, supra note 45.

(55) U.S. DEP'T OF AIR FORCE, POLICY DIR. 10-7, INFORMATION OPERATIONS para 2.6 (6 Sept. 2006).

(56) U.S. DEP'T OF AIR FORCE, INSTR. 10-704, MILITARY DECEPTION PROGRAM para. 1.1 (25 Mar. 1994).

(57) Id.

(58) Id.

(59) See, e.g., JOINT PUB. 3-13.4, supra note 21, at ll-8 (stating that MILDEC operations must not intentionally target or mislead the U.S. public, Congress, or the news media).

(60) U.S. DEP'T OF NAVY, CHIEF OF NAVAL OPERATIONS INSTR. 3434. I, PSYCHOLOGICAL OPERATIONS (22 Dec. 1997).

(61) U.S. DEP'T OF NAVY, CHIEF OF NAVAL OPERATIONS INSTR. S3433.1, MILITARY DECEPTION (4 Aug. 1995).

(62) U.S. DEP'T OF ARMY, FIELD MANUAL 27-10, THE LAW OF LAND WARFARE, at A 13 (18 July 1956) [hereinafter FM 27-10].

(63) Convention (II) with Respect to the Laws and Customs of War on Land art. 24, July 29, 1899, 32 Stat. 1803, 187 Consol. T.S. 429; see also Samuel V. Jones, Has Conduct in Iraq Confirmed the Moral Inadequacy of 'International Humanitarian Law? Examining the Confluence Between Contract Theory and In the Scope of Civilian Immunity During Armed Conflict, 16 DUKE J. INTL. & COMP. L. 249, 250-54 (2006) (describing an unlawful ruse arising to perfidy).

(64) See. e.g., COLONEL WILLIAM WINTHROP. MILITARY LAW & PRECEDENTS 786-88 (1895) (abusing a flag of truce is a violation of the law of war); see also Thomas C. Wingfield, Chivalry in the Use of Force, 32 U. TOL. L. REV. 111, 112 (2001).

(65) Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 37, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Protocol I].