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

Army Lawyer, July, 2007 by Joshua E. Kastenberg

Law and Regulation

Information operations, like any military operation, are constrained by LOAC. That is, U.S. military operations will conform to the principles contained in that body of law. In 1995, the U.S. Navy instructed its forces, "in formulating and executing [Information Warfare] plans and policies, feasible options may raise difficult legal and ethical questions. When executing any [Information Warfare] mission, U.S. forces must conform to all domestic and international laws, treaties, the Law of Armed Conflict, and all applicable rules of engagement." (42) Although somewhat dated, the basic premise of this statement remains wholly accurate.

One of the two starting points for advising any tactical level PSYOP or MILDEC operation is Department of Defense Directive 2311.01E, DoD Law of War Program, which states that "[a]ll Department of Defense personnel will] comply with the law of war during all armed conflicts, however such conflicts are characterized...." (43) However, this directive only provides overarching rules to the critical arena of the law of war. It does not provide specific direction as to responsibilities and authorities to conduct operations.

The standing rules of engagement (SROE) provide the second starting point. (44) As parts of the SROE are classified, this discussion is necessarily brief. However, because all service members and commanders retain the inherent right of self defense, PSYOP and MILDEC operations used in this manner will likely pass any ROE test. The SROE delegates to combatant commanders and their delegated subordinate commanders authority to conduct tactical MILDEC. If, among other issues, the tactical plans have strategic implication, misrepresent the intentions of U.S. government foreign policy, or require major military resources to execute, the combatant commanders must first consult with the Chairman of the Joint Chiefs of Staff. (45)

A third set of critical instructions remains classified, but can be described as follows:

   DOD Instruction (DODI) S-3321.1 establishes policy, provides
   procedures, and assigns responsibilities for overt PSYOP conducted
   by the DOD in peacetime and in military operations other than war.
   This directive states that PSYOP, as an effective and essential
   instrument of national policy, is an inherent responsibility of all
   military commanders. Theater CINCs [Commanders in-Chief] must
   conduct PSYOP, and Services must support these operations and PSYOP
   undertaken by any other U.S. agencies. (46)

Information operations responsibilities are further established in DOD Directive O-3600.1, Information Operations. (47) Although the directive is classified as "For Official Use Only" (and therefore not specifically cited herein), there are basic unclassified authorities important to understand. Because IO in one theater of conflict may effect operations in another, the commander of U.S. Strategic Command (CDRUSSTRATCOM) has a specific responsibility to coordinate all IO across combatant command area of responsibility (AOR) boundaries. (48) Likewise, as addressed earlier, the CDRUSSOCOM provides PSYOP forces to support the combatant commands. This does not in any way diminish a local commander's responsibility to ensure that LOAC and other legal regimes are adhered to in his or her AOR. A JA deployed in an IO cell or advising a PSYOP or MILDEC operation must understand the approval authorities for such operations. Generally, an IO cell coordinates objectives and tasks with their counterparts at higher and lower command echelons and identifies IO targets, which are then nominated at separate targeting meetings. (49) Again, as a result of the effects-based nature of IO, cross-coordination is a prominent feature of IO. Understanding the internal and external legal and regulatory structures of combatant commands is important for JAs, as it is often the JA that a joint task force (JTF) commander turns to in determining who must receive notice of a planned operation.